Congressional Record, Volume 151 Issue 119 (Wednesday, September 21, 2005)

[Congressional Record Volume 151, Number 119 (Wednesday, September 21, 2005)]
[Senate]
[Pages S10258-S10264]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

NOMINATION OF JOHN ROBERTS

Mr. KENNEDY. Mr. President, our Founders proclaimed the bedrock
principle that we are all created equal. But everyone knows that when
we started, the reality was far different. For more than two centuries,
we have struggled, sometimes spilling precious blood, to fulfill that
unique American promise. The goals, the principles, and the sacrifices
of millions of Americans breathed an ever-fuller life into our
constitutional ideals.
The Constitution itself has been the inspiration for this march of
progress. The open-ended principles that our Founders had the wisdom to
bequeath us have acquired ever-deepening meaning over the years--a
remarkably steady movement toward greater protection for individual
rights and liberties, and an increasing assurance that governments at
all levels have the authority to defend ordinary Americans from
overreaching by those who would discriminate against them or exploit
them.
We have made much progress. But our work is not finished, and we
still look to our elected representatives and our independent courts to
uphold those founding principles in each new generation, to continue
the great march of progress, to never turn back and never give up our
hard-won gains.
This was the basic issue in our hearings on the nomination of John
Roberts to become our next Chief Justice. Would he bring to that high
office the values and ideals that would enable our struggle for
equality and opportunity for all to continue, or would he stand in the
way?
The only records made available to us were those of John Roberts as
an aggressive activist in the Reagan administration, eager to limit
basic values that we have achieved at great cost and sacrifice over the
years, especially in basic areas such as voting rights, women's rights,
civil rights, and disability rights. He is an outstanding lawyer who
says he could represent clients on any side of a question. As
Congressman John Lewis eloquently stated in our hearings, 25 years ago,
John Roberts was on the wrong side of the Nation's struggle to achieve
genuine equality of opportunity for all Americans. Now, we need to know
which side he is on today. We need to know that as Chief Justice of the
United States, his sole client would be all the American people.
John Roberts is a highly intelligent nominee. He has argued 39 cases
before the Supreme Court and won more than half of them. He is adept at
turning questions on their head while giving seemingly appropriate
answers. These skills served him well as a Supreme Court advocate.
These same skills, however, did not contribute to a reasonable
confirmation process. At the end of the 4 days of hearings, we still
know very little more than we knew when we started.
In answer to another question about his views, he stated again:

I will confront issues in this area as I would confront
issues in any area, . . . and that would be to fully and
fairly consider the arguments presented and decide them
according to the rule of law.

In yet another instance, he proclaimed:

The responsibility of the judicial branch is to decide
particular cases that are presented to them in this area
according to the rule of law.

And again:

I became a lawyer or at least developed as a lawyer because
I believe in the rule of law.

The rule of law--everyone in the Senate agrees with that. In fact, we
have each taken an oath of office to protect and defend the
Constitution, and we take that oath seriously. But it reveals little
about how we will vote on the important questions of the day, and what
values and ideals we bring to our decisions.
Judge Roberts said that a judge should be like an umpire, calling the
balls and strikes but not making the rules.
But we all know that with any umpire, the call may depend on your
point of view. An instant replay from another angle can show a very
different result. Umpires follow the rules of the game. But in critical
cases, it may depend on where they are standing when they make the
call.
The same holds true of judges.
As Justice Oliver Wendell Holmes famously stated:

The life of the law has not been logic; it has been
experience.

As Justice Stephen Breyer offered in his confirmation hearing:

I always think law requires both a heart and a head. If you
do not have a heart, it becomes a sterile set of rules,
removed from human problems, and it will not help. If you do
not have a head, there is the risk that in trying to decide a
particular person's problem in a case that may look fine for
that person, you cause trouble for a lot of other people,
making their lives yet worse.

The rule of law is not some mathematical formula for meting out
justice. It is our values and ideals that give it real meaning in the
case of the Constitution, not our personal values and ideals but our
values and ideals, derived from the meaning of the constitutional text.

[[Page S10259]]

We all believe in the rule of law. But that is just the beginning of
the conversation when it comes to the meaning of the Constitution. The
Constitution of Justice Scalia and Justice Thomas is a very different
document from the Constitution of Justice Stevens and Justice Souter.
Everyone follows the same text. That is the rule of law. But the
meaning of the text is often imprecise. You must examine the intent of
the Framers, the history, and the current reality. And this examination
will lead to very different outcomes depending on each Justice's
constitutional world view. Is it a full and generous view of our rights
and liberties and of government power to protect the people, or a
narrow and cramped view of those rights and liberties and the
government's power to protect ordinary Americans?
Based on the record available, there is clear and convincing evidence
that Judge Roberts' view of the rule of law would narrow the protection
of basic voting rights. The values and perspectives displayed over and
over again in his record cast large doubts on his view of the validity
of laws that remove barriers to equal opportunity for women,
minorities, and the disabled. His record raises serious questions about
the power of Congress to pass laws to protect citizens in matters that
they care about.
In fact, there is nothing in the record to indicate otherwise. For
all the hoopla and all the razzle-dazzle, the record is no different in
its bedrock substance than it was the day the hearings started.
When Senator Kohl and others asked Judge Roberts whether he would
disavow any of the positions he took over the years, he refused to do
so. On the first day of the hearing, Senator Kohl asked, ``Which of
those positions were you supportive of, or are you still supportive of,
and which would you disavow?'' in order to try to determine what his
views are today. Judge Roberts never provided a clear response.
In the area of voting rights, he has a long and detailed record of
strong opposition to section 2 of the Voting Rights Act, which is
widely acknowledged by scholars and civil rights experts to be one of
the most powerful and effective civil rights laws ever enacted. It
outlaws voting practices that deny or dilute the right to vote based on
race, national origin, or language minority status--and is largely
uncontroversial today. Before it was passed, there had not been a
single African American elected since Reconstruction from seven of the
Southern States with the greatest of African-American populations.
But in 1981 and 1982, Judge Roberts was one of a small group of
attorneys in the Justice Department urging the administration to oppose
a strong section 2, which allowed discrimination to be proved by
demonstrating its results, not just its intent. Although Judge Roberts
sought to characterize his opposition to this critical amendment as
simply following the policy of the Reagan administration, the dozens of
memos he wrote on this subject show that he personally believed the
administration was right to oppose the ``effects test.''
In fact, he pressed to keep others from changing their minds about
opposing the law. When the Assistant Attorney General for the Civil
Rights Division Brad Reynolds raised concerns about sending the Senate
a letter on this issue, John Roberts urged the Attorney General to send
it, stating that ``my own view is that something must be done to
educate the Senators on the seriousness of this problem. . . .'' Of
course, the problem he saw was the amendment, not the discrimination it
was designed to end.

He also urged the Attorney General to assert his leadership against
the amendment to section 2. He wrote that the Attorney General should
``head off any retrenchment efforts'' by the White House staff who were
inclined to support the amendment. He consistently urged the
administration to require voters to bear the heavy burden of proving
discriminatory intent in order to overturn practices that locked them
out of the electoral process.
Judge Roberts clearly knew that his position would make it harder for
voters to overturn restrictive voting laws. As he wrote at the time,
``violations of section 2 should not be made too easy to prove. . . .''
That was his quote, remember, when he wrote this there were no African
Americans elected to Congress from the States with the largest Black
populations, and only 18 in Congress overall. And there were only 6
Latinos in Congress. There is no indication in any of his writings on
the Voting Rights Act that he was the least bit troubled by this
obvious discrimination.
The year after section 2 was signed into law, Judge Roberts wrote in
a memo to the White House counsel that ``we were burned'' by the Voting
Rights Act legislation, even though it was signed by President Ronald
Reagan.
Given his clear record of hostility to this key voting rights
protection, the public has a right to know if he still holds these
views. But Judge Roberts gave us hardly a clue.
When I asked him if he holds these views today, he refused to answer.
He repeatedly tried to characterize his views as the views of the
administration. He declined to say whether he agreed with them--then or
now. That answer strains credibility, when the memos themselves
declare: ``my own view is that something must be done. . . .''
In fairness, he did concede that he no longer believes that section 2
is, to use his words from the 1980s, ``constitutionally suspect.'' But
the fact that it took almost 20 minutes for him to provide this obvious
answer to a straightforward yes-or-no question is not reassuring.
Both Senator Feingold and I tried to find out whether he came to
agree with the strengthened Voting Rights Act after President Reagan
signed it into law.
Even when Senator Feingold asked whether Judge Roberts would
acknowledge today that he had been wrong to oppose the effects test, he
refused to give a yes-or-no answer.
Senator Feingold asked:

What I'm trying to figure out is, given the fact that
you've followed this issue for such a long time, I would
think you would have a view at this point about . . . whether
the department was right in seeking to keep the intent test
or whether time has shown that the effects test is really the
more appropriate test.

Judge Roberts responded:

I'm certainly not an expert in the area and haven't
followed and have no way of evaluating the relative
effectiveness of the law as amended or the law as it was
prior to 1982.

So we still don't know whether he supports the basic law against
voting practices that result in denying voting rights because of race,
national origin, or language minority status.
You don't need to be a voting rights expert to say we are better off
today in an America where persons of color can be elected to Congress
from any State in the country, as opposed to the America of 1982, in
which no African American had been elected to Congress since
Reconstruction from Mississippi, Florida, Alabama, North Carolina,
South Carolina, Virginia, or Louisiana, because restrictive election
systems effectively denied African Americans and other minorities the
equal chance to elect representatives of their choice. In these States,
African Americans were a third or more of the population, but they were
effectively blocked from electing any candidate of their choice decade
after decade throughout the 20th century.
Yet Judge Roberts repeatedly refused to give even this simple
reassurance about the act. Is that what he means by the rule of law?
Another very important area in which Judge Roberts refused to disavow
his long history of opposition to civil rights is the prevention of
discrimination by recipients of Federal funds. These laws were adopted
because, Congress believed, as President Kennedy said in 1963, that
``[s]imple justice requires that public funds, to which all taxpayers .
. . contribute, not be spent in any fashion which encourages,
entrenches, subsidizes, or results in . . . discrimination.'' As an
assistant to Attorney General William French Smith, John Roberts argued
that these important laws should be narrowed.
In fact, his position was even more extreme than the Reagan
administration's. In 1981, he supported a recommendation to exempt
institutions from civil rights laws if the only Federal financial
assistance they received was in the form of loans to their students.
Under this view, the enormous subsidies the Federal Government

[[Page S10260]]

gives to colleges and universities in the form of Federal financial aid
would not have been enough to require them to obey the laws against
discrimination. Can you imagine that? Those were just the type of
things that President Kennedy was addressing. These are the
universities, the colleges that are getting all this help and
assistance from grants and loans which are essential to the running of
it. He said oh, no, we are going to have to look at the other
requirements. Because they get all these loans, it is still done
meaning they have to conform to the nondiscrimination, title XI, the
women, on hiring on race or the disabled. Let me continue.
At many private institutions, financial assistance to students was
the only form of Federal aid, so Judge Roberts' suggestion would have
left those institutions largely free to discriminate against women, the
disabled, and minorities in both education and hiring.
In fact, Judge Roberts's position was so extreme that it was rejected
by the Reagan administration and later by the Supreme Court. But in his
testimony, Judge Roberts ignored this aspect of his record. He refused
even to acknowledge that his past positions had gone beyond the
administration's. Instead, he stated repeatedly that he was just doing
his job.
He said:

I was articulating and defending the administration's
position. . . . The position that the administration advanced
was the one I just described. The universities were covered
due to Federal financial assistance to their students. It
extended to the admissions office.

That is an accurate statement of the administration's position but
the view Judge Roberts advanced in his December 8, 1981, memo was quite
different.
I also asked whether he still agreed with the statement he made in
1985, that ``[t]riggering coverage of an institution on the basis of
its accepting students who receive Federal aid is not too onerous if
only the admissions office is covered. If the entire institution is to
be covered, however, it should be on the basis of something more solid
than Federal aid to the students.''

Again and again, Judge Roberts refused to say whether he still agrees
with those words. He said only, ``Well, Senator, the administration
policy was as I articulated it. And it was my job to articulate the
administration policy.''
That is no answer at all. I never asked about the policy of the
Reagan administration. I asked only whether today, he still believed,
or would disavow, his earlier position. Given his repeated refusal to
answer, I can only conclude that he still holds those views today,
given his failure to respond.
In other words, his position was the following: It really doesn't
make a difference, if a university is getting financial aid through
grants or through loans, that they can go ahead and discriminate if
they are not going to discriminate in the admissions office. So if they
do not discriminate in the admissions office, then they can
discriminate in the other areas of the university.
That happened to be the holding in the Grove City case. The question
was: Was that what the Congress meant when it said we were not going to
provide funds and permit any entities to discriminate? The overwhelming
majority in the House and the Senate said: That is what we intended. If
they are going to get this aid and assistance through college loans and
grants, they can't discriminate against women in sports, against hiring
of black professors or against the disabled, overwhelmingly.
Not Judge Roberts, no, no. He wanted it program specific.
Say they had 15 in the admissions office, and if they didn't
discriminate based on race, disability or against women, it doesn't
make any difference what the rest of the university did.
That position was absolutely, completely rejected by the
administration and overwhelmingly in a bipartisan way. We asked Judge
Roberts now what his position still was on this issue, and we could not
get an answer.
In addition, in response to questions from Senator Biden, Judge
Roberts refused to say he no longer agrees with his former position
that laws against discrimination should be narrowly interpreted to
apply only in the parts of the institution that directly receive
Federal funds. Under this view, a college that received Federal
financial assistance through its admissions office could not
discriminate in admissions, but it could discriminate in every other
aspect of its operations--in hiring teachers, in instructing students,
and in athletics. When Senator Biden reminded Judge Roberts that he had
written in 1982 that he ``strongly agreed'' with this view, Judge
Roberts never said he no longer holds that position. Instead he
testified under oath, ``So if the view was strongly held, it was
because I thought that was a correct reading of the law.'' Is that his
view of the rule of law?
Another very important area in which Judge Roberts failed to give any
reassurance was his position protecting women and girls against
discrimination in educational programs under title IX. In the case of
Franklin v. Gwinnett County, in 1991, Judge Roberts argued that title
IX did not allow a high school girl who had been sexually abused by her
teacher to recover damages. Judge Roberts' argument would have left the
victim with no remedy at all.
Senator Leahy asked him, ``Do you now personally agree with and
accept as binding law the reasoning of Justice White's opinion in
Franklin v. Gwinnett?'' Judge Roberts replied that, ``It certainly was
a precedent of the court that I would apply under principles of stare
decisis.''
That answer sounds reassuring, until you realize that Judge Roberts
never answered whether he personally agreed with this unanimous
decision of the Court.
Senator Leahy offered Judge Roberts several chances to disavow his
position in the Franklin case. He asked, ``Do you now accept that
Justice White's position [in Franklin v. Gwinnett County] was right and
the government's position was wrong?'' Judge Roberts replied again, ``I
certainly accept the decision of the court--the 9 to 0 decision, as you
say--as a binding precedent of the court. Again, I have no cause or
agenda to revisit it or any quarrel with it.''
That also sounded reassuring, until I recalled that Justice Thomas
repeatedly used the same words--``I have no quarrel with it''--to evade
answers during his nomination hearing. Justice Thomas testified, for
instance that he had ``no quarrel'' with the test established by the
Supreme Court in the Lemon v. Kurzman case for analyzing claims under
the first amendment's prohibition on the establishment of religion. But
just 2 years later, Justice Thomas joined a dissent ridiculing the test
and saying it should not be applied, and Justice Thomas has
consistently opposed the Lemon test ever since.
I wonder why it was so difficult for Judge Roberts simply to say,
``Yes, in hindsight, I personally believe that Franklin v. Gwinnett was
correctly decided, and that victims of intentional sex discrimination
in educational programs do have a right to relief under title IX.'' Why
was that so difficult an answer for Judge Roberts to give? Could it be
that it was contrary to his view of the rule of law?
Judge Roberts's record is also one of consistent and long-standing
opposition to affirmative action. In the 1980s, he urged the Reagan
administration to oppose affirmative action. In the 1990s, in the
administration of the first President Bush, he urged the Supreme Court
to overturn a Federal affirmative action program. In private practice
in the late 1990s and as recently as 2001, he litigated cases
challenging affirmative action. That includes his repeated challenges
to the Department of Transportation's disadvantaged business enterprise
program, which has been upheld by every court that has reviewed it, and
endorsed overwhelmingly by bipartisan majorities in the House and
Senate.
On affirmative action, his view of the rule of law seems to be that
established court precedents have little meaning, even though they have
been found again and again to advance our progress on civil rights.
In 1981, he advocated abolishing race- and gender-conscious remedies
for discrimination, although he admitted this position was in
``tension'' with the Supreme Court's opinion in United Steelworkers of
America v. Weber, upholding affirmative action in employment--a case
that had been decided only 2 years earlier. He wrote that the

[[Page S10261]]

administration did not see that opinion--Supreme Court opinion--as a
``guiding principle.''
In the same memos dealing with the Weber decision, Judge Roberts even
suggested that the opinion might be overturned because of changes in
the Court's composition.
Given his long and consistent opposition to affirmative action,
Senators were entitled to seek some reassurance from the nominee that
he would not use the power of the Chief Justice to continue his past
efforts to end affirmative action.
I asked Judge Roberts:

Do you agree then with Justice O'Connor, writing for the
majority, who gave great weight to the real-world impact of
affirmative action policies in universities?

He stated:

I can certainly say that I do think that that is the
appropriate approach, without commenting on the outcome or
the judgment in a particular case. But you do need to look at
the real-world impact in this area, and I think in other
areas as well.

So he thinks that we should consider real world impact, but he never
stated whether he agreed with Justice O'Connor that the University of
Michigan case was correctly decided. On that issue, we don't know any
more than we did before the hearing.
Senator Feinstein also asked Judge Roberts his views on affirmative
action, but he avoided her question as well. She asked, Do you
personally subscribe, not to quotas, but to measured efforts that can
withstand strict scrutiny?'' Judge Roberts replied, ``A measured effort
that can withstand strict scrutiny is . . . a very positive approach.''
Well, that sounds as though he agrees, but then he also said, ``And I
think people will disagree about exactly what the details should be.''
When Senator Feinstein stated she specifically wanted to know his
view of Grutter v. Bollinger, the University of Michigan case upholding
affirmative action, Judge Roberts gave a long--answer that was no
answer at all. ``In the Michigan case, obviously, you have I always
forget whether it's the law school--but I think the law school program
was upheld and the university program was struck down because of the
differences in the program. But efforts to ensure the full
participation in all aspects of our society by people, without regard
to their race, ethnicity, gender, religious beliefs, all those are
efforts that I think are appropriate.''
But of course, Senator Feinstein had not asked about efforts to
ensure participation without regard to race. She asked his view on a
particular affirmative action program at the University of Michigan Law
School that took race into account. We still do not know whether he
agrees with that important Supreme Court decision. His refusal to tell
us is very troubling.

I ask unanimous consent for 5 additional minutes.
Mr. BENNETT. Mr. President, I shall not object, but the junior
Senator from Massachusetts is looking for time and we are anxious to
get on to the bill. I will not object to the request for an additional
5 minutes, but I hope the Senator could, in fact, finish in that 5-
minute time.
Mr. KENNEDY. I will try and do it in a shorter time.
I am also troubled by Judge Roberts' refusal to distance himself from
his past criticism of the very important Supreme Court decision Plyler
v. Doe that held that the basic principle of equal protection requires
all school-age children to have the same access to public education,
including the children of undocumented immigrants. In a very real
sense, the Plyler decision is as important to the children of
undocumented workers as the Brown decision is to African-American
children. Yet Judge Roberts strongly criticized the decision. On the
day the case was decided, he coauthored a memo criticizing the
Solicitor General's office for failing to file a brief, arguing that
these children could be denied public education.
Senator Durbin asked Judge Roberts:

Did you agree with the decision . . . then? Or do you agree
with the decision now?

Judge Roberts avoided the question, saying:

I haven't looked at the decision in the Plyler v. Doe in 23
years.

Senator Durbin asked:

Is this settled law, as far as you are concerned, about our
commitment in education . . . ?

Judge Roberts avoided this, saying he had not looked at the case
recently, and that when he wrote the memo he was doing his job.
So we are left with nothing to reassure us he has changed his mind
from his harsh criticism of that opinion in the past. His many
statements of support for the rule of law yield no clue about his true
convictions on this important question today.
Finally, a number of my colleagues on the committee asked Judge
Roberts about issues related to women's rights, women's right to
privacy. On these important matters, too, he never gave answers that
shed light on his current views.
No one is entitled to become Chief Justice of the United States. The
confirmation of nominees to our courts, by and with the advice of the
Senate, should not require a leap of faith. Nominees must earn their
confirmation by providing full knowledge of the values and convictions
they will bring to the decisions that may profoundly affect our
progress as a nation toward the ideal of equality.
Judge Roberts has not done so. His repeated allegiance to the rule of
law reveals little about the values he would bring to the job of Chief
Justice of the United States. The record we have puts at serious risk
the progress we have made toward our common American vision of equality
of opportunity for all of our citizens.
Supporting or opposing nominees in the Supreme Court should not be a
partisan issue. In my 43 years in the Senate, I have supported more
nominees for the Supreme Court by Republican Presidents than by
Democratic Presidents, but there is clear and convincing evidence that
Judge Roberts is the wrong choice for Chief Justice.
I oppose the nomination. I urge my colleagues to do the same.
Mr. BENNETT. Mr. President, the order now is that we go to the
Agriculture appropriations bill. I ask unanimous consent the junior
Senator from Massachusetts be allowed to speak for 15 minutes as in
morning business.
The PRESIDING OFFICER (Mr. Graham). Without objection, it is so
ordered.
The Senator from Massachusetts.
Mr. KERRY. Mr. President, we all know there are few things the Senate
does which are as important as confirming a Supreme Court Justice, let
alone the Chief Justice of the United States. We know that making the
decision to support or oppose the nomination is both serious and
complicated. We do not need to belabor those points.
What we do need to talk about is what kind of process ought to occur,
must occur, before a Senator can vote for or against a judicial
nominee. What kind of information should be provided? What kind of
discourse should we engage in?
I met with Judge Roberts last week. I must say I enjoyed our
conversation enormously. He is earnest, friendly, incredibly
intelligent, and on a personal level I liked him. He has dedicated his
life to the law, has given back to the legal community, and is
certainly beyond question a superb lawyer. It may turn out he will be
an outstanding Chief Justice. But I can't say with confidence that I
know on a sufficient number of critical constitutional issues how he
would rule or what his legal approach would be. I have read memos he
wrote during the Reagan administration. I have reviewed the limited
materials available from his time in the Solicitor General's office,
where he worked under Ken Starr, and then in private practice at Hogan
and Hartson. I have read the cases he participated in on the DC
Circuit. I have listened to as much of the Judiciary Committee hearings
as I could and I have reviewed transcripts where I couldn't.
After all of that, I still find something essential is missing,
something critical to our democratic process, something to ensure that
we have an appropriate understanding of both our courts and our judges
and their role in America. That understanding requires a genuine
exchange of information and a real development of ideas, similar, in
fact, to that which occurs in every argument at the Supreme Court
itself or in the appellate courts.
In appellate arguments, judges and Justices question lawyers, probing
the depth of their legal arguments, testing their particular legal
argument against

[[Page S10262]]

the court's, or determining how it fits into their interpretation of
the Constitution. They determine how interpretive principles apply and
how they can reconcile apparently conflicting arguments. They make a
judgment about the consequences of a potential outcome. The result in
the end is a better understanding of the record before the court and,
hopefully, a principled approach to deciding the case.
Judge Roberts' Judiciary Committee hearings, notwithstanding the
efforts of the Chair and many other of the Senators partaking in it,
continue an increasingly sterile confirmation process: little genuine
legal engagement between the questioners and the questioned, no real
exchange of information, and too little substantive discussion. The
confirmation exercise has now become little more than an empty shell.
People are left guessing, hoping they understand the nominee's
positions.
The administration's steadfast refusal to disclose documents Judge
Roberts worked on while serving as a Deputy Solicitor General in the
first Bush administration has only compounded this problem. They claim
disclosure of the documents will violate attorney-client privilege. I
find that argument absurd. What client are they trying to protect? The
Solicitor General represents the people of the United States of
America. He is charged with arguing cases on behalf of all Americans.
We were Judge Roberts' client when he worked in the Solicitor General's
office. We have a right to know what he thought about the arguments he
made on behalf of the American people.
When John Roberts served as a Deputy Solicitor General under Ken
Starr, he was intimately involved in critical decisions that office
made, such as whether to intervene in a pending case; what legal
arguments to advance in support of their position; whether to push for
Supreme Court review; what the consequences of those arguments or that
action would be; how those arguments fit into their theory of
constitutional interpretation, whether those arguments reflect the
views of the American people--all of these decisions are critical to an
individual's thinking, to their approach to the law, to their
understanding of public trust and public responsibility, to their
understanding of the Constitution itself. All of these decisions helped
to shape how Federal law was applied and how our Constitution was
interpreted during that period of time.
The fact is, there are bureaucrats, none of whom take an oath, as we
do, to uphold the Constitution, who are aware of the contents of those
particular memoranda. Yet we, the Senators, who are constitutionally
obligated to give consent to this nominee, still do not know what
positions Judge Roberts took, the arguments he made, or the thinking
behind those arguments.
For example, the Solicitor General's office decided to intervene in
Bray v. Alexandria Women's Health Clinic. That case was brought against
abortion clinic protesters during the height of clinic violence and
bombings. The plaintiffs argued that protesters were violating a
Federal antidiscrimination law by blocking access to clinics and
inciting violence. The Government intervened and argued that the
Federal antidiscrimination law did not apply and, therefore, could not
be used to stop the protesters.
Judge Roberts briefed and argued the case for the Government. I
believe the arguments advanced by the Government and the consequences
of those arguments are troubling, but what we do not know is even more
important: What role did Judge Roberts play in making them? What did he
think about that approach? Did he consider the consequences on life,
limb, and individual? Did he argue for a more narrow or broad
interpretation of the law?
At the same time, the Solicitor General's office intervened in a
district court case in Wichita, KS, which raised the same issues that
the Supreme Court in Bray was facing. The Government tried to get the
district court to lift an injunction put in place to protect the safety
of the clinic workers and patients. They argued that the plaintiffs
could not win and, therefore, the injunction was improper. The district
court denied the Government's request and chastised it for
unnecessarily endangering people's lives. Those are the real
consequences. We ought to know what kind of thinking, what were the
legal approaches to the protection of those individuals' lives.
The question still remains, what role did Judge Roberts have in
making that decision? What was the legal reasoning that prompted it?
Did he consider the real-life dangers that would result from that legal
argument?
The Solicitor General's office is never obligated to intervene in
private litigation. There are thousands of cases pending every day like
these questions. Why did the Government choose to intervene in those
particular cases? And, even more importantly, what role did Judge
Roberts have in making that decision?
The administration's refusal to disclose those documents, in my
judgment, creates a serious roadblock in the Senate's ability to
properly evaluate Judge Roberts. But Judge Roberts' refusal to
genuinely engage in the confirmation hearings, answer legitimate
questions, or at least shed light on them creates a bigger one.
I understand a Supreme Court nominee cannot answer questions about a
case in controversy, cannot answer questions about a case that may well
come before him, and I understand that he can't promise to resolve a
future case in a particular way. I am not asking him to do that. I
don't expect that to be the standard of the hearings.
But that does not mean you can't discuss the principles of decided
cases and whether you agree with them. What legal principles do you
bring to the job? It doesn't mean you should refuse to disclose an
approach to constitutional analysis. It doesn't mean you should do
nothing more than recite the status of current Supreme Court case law.
This is not the first time the Supreme Court nominees have refused to
engage in that kind of meaningful discourse. Justice Souter refused to
answer fundamental questions about his judicial philosophy. For that
reason I voted against him at that time. I am happy to say I have been
surprised, and pleasantly, that my concerns did not come to pass.
Justice Thomas also refused to answer fundamental questions about
judicial philosophy. As I said at the time, Justice Thomas found a lot
of ways to say ``I don't know'' or ``I disagree'' or ``I cannot agree''
or ``I can't say whether I agree.'' I voted against Justice Thomas
because again I didn't know what the end product was going to be. I
believe I was correct in making that decision.
At the end of the day I find myself in the same position I was with
both of these Justices. Notwithstanding Judge Roberts' impressive legal
resume, I can't say with confidence that I know what specific
constitutional approach he believes in or what kind of Chief Justice he
will be. Will he protect the civil rights and civil liberties we fought
for so long and hard, which he acknowledged in the course of the
hearings? Will he support the power of Congress to enact critical
environmental legislation? Will he be an effective check on executive
branch actions? In my judgment, before you vote for Chief Justice,
particularly one who may lead a court for potentially 30 years or more,
we ought to know the answers to those fundamental questions. In the
case of Judge Roberts, we don't.
For example, I don't know how Judge Roberts will approach cases
challenging the power of Congress to enact vital national legislation.
I understand that terms such as the ``Commerce Clause,'' ``Section 5 of
the 14th Amendment,'' and ``Spending Clause'' don't mean a lot to
everybody in the country on a daily basis. But however technical and
legalistic the discussion of those terms may be, they are critical to
us in our judgments as Senators about how our Government functions. A
Justice with a limited view of congressional power will undermine
Congress's ability to respond to national problems.
For example, under the commerce clause, Congress can only regulate
things that affect interstate commerce. When Congress enacted the
Violence Against Women Act in 1996, it made numerous very specific
findings about how that violence affected interstate commerce. The
Court found those findings insufficient and struck down that piece of
legislation.
When asked by Senator Specter whether he agreed with the Court in
this case, Judge Roberts refused to answer. When asked whether he would

[[Page S10263]]

have found similar congressional findings insufficient, Judge Roberts
refused to answer. I believe those answers ought to have been
forthcoming, particularly when they address how Judge Roberts would
interpret Congress's fundamental constitutional powers.
Judge Roberts has shed some light himself on his view of the commerce
clause because he wrote about it in a dissenting opinion on the DC
Circuit. In Rancho Viejo v. Norton, the so-called ``hapless toad
case,'' Roberts suggested that the Endangered Species Act, as applied
to the California toads at issue, might be unconstitutional because
they had an insufficient connection to interstate commerce.
He also suggested there might be other ways of looking at the case to
preserve the act's constitutionality. When asked about it during the
hearings, and again personally in my own meeting with him, Judge
Roberts did not endorse one view or the other. He gave no sense of how
he might interpret Congress's power and its limitations.
While his refusal to completely condemn the Endangered Species Act
was obviously somewhat reassuring, at the end of the day, I am left
without any real understanding of how he would approach a commerce
clause question. I have no idea whether he will undermine Congress's
ability to pass needed legislation. I have no idea how he will approach
challenges to existing Federal environmental laws, such as the
Endangered Species Act. Which of the possible approaches he laid out in
Rancho Viejo does he believe is the most correct? This certainly
creates a risk I personally am unwilling to accept when voting to
confirm the next Chief Justice of the United States.
Another area of great concern to me is obviously the area of privacy,
an area where Judge Roberts skillfully answered a lot of questions
without giving a hint as to his own position. For example, while
Roberts admitted that the Court has recognized that privacy is
protected under the Constitution as part of the liberty in the due
process clause, he refused to give any indication of what he thought
about the Court's most recent decisions.
The furthest he went was to say he had no quarrel with the decisions
in Griswold and Eisenstadt, yet this kind of endorsement is not
reassuring. In his confirmation hearings, Justice Thomas agreed that
the Court had found a constitutional right to privacy. Like Judge
Roberts, he also stated he had no quarrel with the Court's holding in
Eisenstadt. Yet when he got to the Supreme Court, he disavowed the very
rights he had said the Constitution protected.
In fact, more recently in Lawrence v. Texas, Justice Thomas stated he
could not ``find [neither in the Bill of Rights nor any other part of
the Constitution a] general right of privacy.'' The bottom line is I do
not know how Judge Roberts will approach those questions with respect
to the fundamental right of privacy.
In addition to what I do not know, what I do know about Judge Roberts
also raises issues. I know in the early 1980s, while he worked in the
Department of Justice and White House Counsel's Office, Judge Roberts
took an active role in advocating on behalf of administration policies
that would have greatly undermined our civil rights and liberties.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator's time has expired.
Mr. KERRY. Mr. President, may I ask for an additional few minutes?
Thank you.
For example, Judge Roberts argued against using the ``effects test''
to determine whether section 2 of the Voting Rights Act was violated.
Instead, he believed that an ``intent'' test--requiring proof of a
discriminatory motive--should be required, regardless of the fact that
many victims of discrimination would be absolutely unable to prove a
real discriminatory intent and, therefore, would be unable to enjoy the
protections afforded by the act. In some cases, the effect of Judge
Roberts' intent test meant that disenfranchised individuals had to
prove the motive of long dead officials who had crafted the
legislation. Obviously, that is impossible. So he would have set up an
unacceptable standard, one that would come between citizens and their
constitutionally protected right to fair representation in our
democracy.
Judge Roberts also argued that the obligations imposed on educational
institutions by title IX should apply only to the specific program that
received Federal funding rather than to the whole institution. Again,
by limiting the application of an important antidiscrimination law,
there is an effect, which is to deny people their constitutional right.
In the area of affirmative action, Judge Roberts argued in favor of
limiting race-conscious remedies to instances where individuals were
proven to be the victims of identifiable acts of impermissible
discrimination.
I realize Judge Roberts took the positions I just described some time
ago. I know he told the Judiciary Committee he was simply advocating
the views of the administration at the time. But I think those of us
who have worked in and around Government for a period of time find it
hard to believe that a staffer at Justice or in the White House never
wrote a memo that represented some of his views rather than just
administration positions, particularly when the theme of those memos is
consistent across the board--strict adherence to narrow principles of
law despite their real-world impact, and particularly when some of the
memos released from this time include acknowledgements by Judge Roberts
that his own position failed to prevail in the internal deliberations.

That was certainly true when he argued, unsuccessfully, within the
administration that Congress could strip the Federal courts of
jurisdiction over abortion and desegregation cases.
I will conclude, Mr. President. I do not want to abuse the Senator's
permissiveness here. Let me close with this particular argument.
Judge Roberts' more recent decision to join to Judge Randolph's
opinion in Hamdan v. Rumsfeld is important with respect to the security
consequences regarding the military and our soldiers. That opinion gave
the President unfettered and unreviewable authority to place captured
individuals outside the protections of the Geneva Convention. Six
retired senior military officials with extensive experience in legal
policy, the laws of war, and armed conflict, have filed a friend-of-
the-court brief in the Supreme Court, arguing that Hamdan must be
overturned immediately because it directly endangers American soldiers.
These are the real effects of these rigid applications of law.
I understand that Judge Roberts felt he could not discuss the case
while it was pending before the Supreme Court, but even when asked
about his views of the scope of executive power unrelated to the Hamdan
case, he was evasive. He did little more than describe the Court's
current framework for analyzing assertions of executive power.
As a result, I do not know whether he believes that the state of war
is a blank check for the President or whether he would closely
scrutinize the legality of executive branch actions at all times. Given
the fact that the Hamdan decision placed our troops at risk, I am
forced to conclude that some of his future decisions might threaten the
security of troops abroad and our security at home.
Now, some may argue that Democrats ought to vote for Judge Roberts
because he is the best nominee we could expect from the administration.
I cannot agree to confirm the next Chief Justice of the United States
simply because the next nominee to the Court may be less protective of
our fundamental rights or liberties or less dangerous to national
security. Frankly, I am not sure how I would make that determination
given the limited record before me.
Some may argue that Democrats should vote for Judge Roberts because
of his resume. He obviously is qualified in terms of his legal
education and litigation experience. But I do not think that should be
the test. A Supreme Court Justice needs more qualifications than an
impressive legal resume. They need compassion and sensitivity. They
need a clarity with respect to their approach to the Constitution. They
need an understanding of the consequences of their decisions and how
they further democratic traditions.
As a Senator, I am duty bound to consider each nominee as an
individual and how he or she will fit into the current Court--the
current closely divided

[[Page S10264]]

Supreme Court. I have a duty to protect the fundamental rights I
believe our Constitution guarantees. I have a duty to preserve the
incredible progress that has been made toward the realization of those
rights for Americans. I have a duty to safeguard our national security,
and to prevent the executive from using war as a blank check to violate
both national and international law.
John Roberts will be confirmed. I hope and look forward to decisions
that will allay all of my concerns. He may author or join opinions
protecting the rights which we hold so dear, and in so doing he may
prove all of my concerns to be groundless. I hope so. But the questions
I have raised, the absence of critical documents, the lack of clarity
surrounding fundamental issues on how he would interpret the
Constitution, requires me to fulfill my constitutional duty by opposing
his nomination to be the next Chief Justice.
I thank the Chair again, and I thank the Senator for his courtesy.

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