Congressional Record, Volume 151 Issue 121 (Monday, September 26, 2005)

[Congressional Record Volume 151, Number 121 (Monday, September 26, 2005)]
[Senate]
[Pages S10395-S10414]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

Senate Priorities

Mr. President, in the days and weeks since Katrina, there is no doubt
that the American people have done their part to help.
I watched an interview over the weekend with a representative of the
Red Cross who said they would soon be at $1 billion in money having
come to the Red Cross from people of good will in the United States.
I think the American people have done their part to help, but I
think--and I say this with some hesitation but certainly with as much
affirmation as I can--the Republican-controlled Congress has not done
its share. It has been a month. We have seen Hurricane Katrina come and
go. We have seen Hurricane Rita come and go. And here we are, having
done next to nothing to get victims the urgent relief they need.
Instead of letting the Senate address Katrina disaster relief in a
comprehensive way, Republicans have spent the last 4 weeks debating the
Commerce-State-Justice appropriations bill and the agriculture
appropriations bill. These are important pieces of legislation but not
nearly as important as the disaster relief measures that would give
these people help immediately. These appropriations bills do little to
help the victims. They do not offer us the opportunity to do more.
These bills, when they come to the floor, are in a parliamentary
fashion

[[Page S10397]]

where they cannot be amended except in very strict ways. People who
want to offer amendments dealing with Katrina have to use some
political gyrations to be able to get a vote, and that is a two-thirds
number they have to come up with to have it passed, which is very
difficult to do. So I would hope we could get to some of these bills
quickly.
I have said this before, and I do not want to sound like a broken
record, but yesterday we lost three more troops in Iraq. I got a call
late last night from Colonel Herbert, who is with the Nevada National
Guard, a person who has devoted his life to the military. He said:
Senator, I lost two of my men yesterday in a helicopter that went down
in Afghanistan. He felt very bad. One of the pilots and one of the crew
chiefs, both from Nevada, were killed.
This morning I was at Bethesda Naval Medical Center. As I walked in,
there was a man in a wheelchair, missing both legs, and obviously he
had had some trauma to his head. The naval officer who was with me
indicated he was one who had been in the hospital, then left, and now
is back. But yet in the Senate we have not done a bill to take care of
these people.
In spite of the fact we have almost 2,000 Americans who have been
killed in Iraq--we are spending upwards of $2.5 billion a week in
Iraq--and that we are causing the ranks of the veterans to increase
dramatically, we do not have a bill to take care of them. We have a
bill, but we are not allowed to bring it to the floor. The Defense
authorization bill, which sets up the funding and the other matters to
take care of the active personnel who wear the uniform of the United
States, plus our Guard and Reserve, plus the many obligations we as a
nation have to our veterans--we are not debating that bill to do that.
We spent a couple days on it.
These bills average about 2 weeks before we finish them. We are not
going to that bill because the Republican-controlled Senate will not
let us. We are going to do something that is unusual. We just heard
from the distinguished majority leader that after we finish the Roberts
nomination, we are going to bypass the Defense authorization bill and
go to the Defense appropriations bill which we have not authorized.
What we normally do is we authorize within certain limits and then we
bring the appropriations bills to the floor of the Senate and
appropriate moneys for what we have authorized. We have not authorized
anything, but we are going to appropriate, anyway.
There are lots of amendments pending. My staff and Senator Levin's
staff worked with counterparts on the Republican side Friday to say: We
will get rid of all our amendments. We will have 10 or 12 amendments.
That is all we want. We would have one that would relate to the gulf,
to Katrina, and the other 10 or 11 would be related to the Defense
authorization bill. There is still no approval on that.
So those people who care about what is going on in Iraq--and that is
most everyone--and those who care about what is going on in
Afghanistan--and that is most everyone--should understand the bill we
are not going to take up gives our troops and veterans the assistance
they need.
Senator Warner and Senator Levin, who are the chairman and ranking
member of that committee, have provided in the bill before the Senate
$21 billion in new spending for the military, $50 billion extra for
covering operations in Iraq, and a 3.1-percent pay raise and other
benefits to people in the United States military, which we are not
going to be able to debate or vote on. We are not going to be able to
amend the bill. That is too bad. It is really too bad. I think it shows
a lack of respect for the people in the military, as indicated by my
trip to Bethesda today.
In addition to that, we made little progress on S. 1637, the Katrina
Emergency Relief Act of 2005. This is a bill that we Democrats
submitted. It is a relief plan to give health care, housing, education,
and financial relief to those people who need it. It was introduced the
week after the hurricane. We still have not been able to get an
agreement from the majority--Senate Republicans--as to how to proceed
on this bill. None of the items have made it here to the desk, but yet
we hear people complaining that Katrina is going to cost too much money
and they want to start making cuts in Government programs. I am happy
to take a look at that. But the first place we should look is at the
budget here in the Senate. In the Senate, we authorize and appropriate,
we pass a budget, and then we execute that with something called
reconciliation. The budget we are working on is immoral. And those are
not my words; those are words that were written by the leaders--not
some offshoot groups--the leaders, the chief executives of the major
Protestant religions in the United States--Lutherans, Methodists,
Episcopalians, and others. I read into the Record the night we had that
measure on the floor a letter from them saying: The budget is immoral.
Don't vote for it. It passed with a party-line vote. The Republicans
passed this, what they referred to as an immoral document. Let's not
execute that. These church leaders were visionary. They knew then it
was immoral. Today it is even worse.

What are we being asked to do with the reconciliation? We are being
asked to give $70 billion in added tax cuts to the rich--$70 billion.
We are being asked to cut $10 billion from Medicaid. Medicaid, a
medical program that goes to the poorest of the poor, we are being
asked to cut $10 billion from that. That is in this budget we are being
asked to execute. We are being asked to cut student loans, to cut food
stamps. If we want a big offset, get rid of the $70 billion tax cut
now.
Times have changed. Our priorities must change with them. America can
do better. We can start doing better today with bipartisan health care
relief for survivors of Katrina. We have all heard about how the State
governments of Louisiana, Mississippi, and even Alabama are struggling
to provide health care. But many States in the region and elsewhere
that have accepted thousands of Katrina evacuees are facing a similar
problem. There are 60,000 evacuees in Arkansas.
We know no matter how hard these States try, they lack the resources
to do what is needed, and many survivors will be left behind--and have
been left behind. Only the Federal Government has the resources to
address the evacuees' health care and other needs.
Fortunately, Senator Grassley, the chairman of the Finance Committee,
and the ranking member, Max Baucus, set aside partisan differences and
recognized this fact, that help is needed--and needed now--and they
have come together and crafted a compromise to ensure that Katrina's
victims will be covered under Medicaid, wherever they are, with full
Federal funding.
This package does not provide coverage regardless of income, as my
bill would have, but it is a good compromise. Senators Grassley and
Baucus are to be commended. It will provide relief to many who need it.
We need to pass this bill. We need to get the House to agree with this
bipartisan approach so we can get the bill to the President's desk as
soon as possible. We need to do this now. Proceeding with business as
usual, while the administration relies on bureaucratic waivers on a
State-by-State basis, will not, and has not, gotten the job done.
The White House approach will not provide care, for example, to a 55-
year-old grandmother or father who has found a job but still needs
health care. It will not ensure uniform coverage from State to State.
It will not expedite the process for victims and States who have
already waited too long. It will not ease the financial burden that
destination States are being asked to shoulder, such as Arkansas. And
it will not provide relief to the States hit by Hurricane Katrina. In
fact, it may make their situations even worse.
The Finance Committee bill enjoys bipartisan support in the Senate,
and support from our Governors, State Medicaid directors, and numerous
patient and provider groups.
There is no reason to wait any longer. We were ready to clear the
bill Thursday. It was cleared on our side. It was all ready to go. Not
on that side. We said: Let's wait a couple hours. No. We couldn't do it
on Thursday. ``Let's come in Friday to do it.'' ``No, we can't do it on
Friday.'' ``Let's do it on Monday.'' ``Can't do it on Monday''--
although we are going to ask sometime today unanimous consent that we
take this bill up and pass it. Our side has and will agree. I would
hope we can do that. It is so important. States are

[[Page S10398]]

being hurt. They cannot bear the burden of the disaster that befell us.
The PRESIDING OFFICER (Mr. Sessions). Under the previous order, the
time from 1:30 p.m. to 2:30 p.m. will be under the control of the
majority leader or his designee.
The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, this afternoon, the Senate begins the
debate on the confirmation of Judge John G. Roberts, Jr., to be Chief
Justice of the United States. It is not an overstatement to note this
is a historic debate. At the age of 50, Judge Roberts, if confirmed,
has the potential to serve as Chief Justice until the year 2040 or
beyond.
Today, Justice John Paul Stevens, at the age of 85, continues to
serve. If you project Judge Roberts ahead 35 years, it would be to the
year 2040. Obviously, by that time it will be a very different world.
There will be very different issues which will confront the Court with
the advances in technology, with the advances in brain scanning, key
questions as to how far the privilege against self-incrimination goes
to scan someone's brain. Will it be like a blood test and fingerprints
or will it be viewed as invasive and a violation of a right to privacy?
Those are the kinds of issues which Judge Roberts will confront if
confirmed as Chief Justice.
He also has the potential to project a new image on the Supreme
Court. That Court has been buffeted by a whole series of 5-to-4
decisions. Candidly, some of them are inexplicable, where you have,
this year, the Supreme Court of the United States saying that Texas
could display the Ten Commandments outdoors, but Kentucky could not
display the Ten Commandments indoors. There are some minor differences,
but it is hard to understand how the Ten Commandments can be shown in
Texas but not in Kentucky by a 5-to-4 vote.
Under the very important legislation of the Americans With
Disabilities Act, the Supreme Court had two 5-to-4 decisions 3 years
apart. One, in a case captioned Garrett v. University of Alabama, in
2001, the Supreme Court declared the title unconstitutional which dealt
with discrimination against the disabled in employment.
Three years later, in Tennessee v. Lane, the Supreme Court upheld the
constitutionality of another title of the Americans with Disabilities
Act which dealt with access to public accommodations. We have seen a
proliferation of opinions with multiple concurrences, making them very
hard to understand. Earlier this year, the Judiciary Committee took up
the issue of what was happening in Guantanamo, and a study was
undertaken on three opinions handed down by the Supreme Court in June
of last year. On one case, they couldn't get a majority, a plurality of
four, so there was no holding. In the other two cases, there were
concurrences and dissents. You have a pattern which exists where
Justice A will write a concurring opinion, joined by Justice B, and
Justice B will write a separate concurring opinion, joined by Justice A
and Justice C.
This is an issue which was considered during the course of Judge
Roberts' hearings. It is one where a new judge, a new Chief Justice at
the age of 50, will have an opportunity to make some very systemic
changes in the way the Court functions. When Judge Roberts was
questioned about his ability to handle this matter--first during the
informal meeting in my office and later in the hearings--he said he
thought he could handle it because, in his many appearances before the
Supreme Court, some 39 in number, it was a dialog among equals. I was
impressed by his concept of a dialog among equals, that he considered
himself as a lawyer arguing before the Court to be dealing with equals.
I have had occasion three times to appear before the Supreme Court, and
it didn't seem to me like a dialog among equals. But when you have been
there 39 times and you know the Justices as well as he does--and the
word is that the Justices very much applaud his nomination to be Chief
Justice--he has the potential almost from a running start to bring a
new day and a new era to the Supreme Court. That is a very attractive
feature about his projection as Chief Justice.
We know the famous historical story about Earl Warren's becoming
Chief Justice in 1953. The Court was then faced with Brown v. Board of
Education, the desegregation case. There were many disputes in the
Court at that time. They had to carry the case over. Chief Justice
Warren was able to get a unanimous Court, which was important, so that
contentious issue was one where nine Justices agreed and came down with
an opinion which was obviously difficult to implement but had a great
deal more stature because of its unanimity. So here is an extra bonus
for the Court, an extra bonus for America, if confirmed as Chief
Justice: the potential that Judge Roberts has to promote a new day and
a new era for the Court administratively.
On his qualifications, Judge Roberts was rated ``well qualified'' by
the American Bar Association. It is understandable, since he was a
summa cum laude graduate of Harvard College, magna cum laude graduate
of Harvard Law School; had a very distinguished career as assistant to
Attorney General William French Smith, after serving as a clerk to a
distinguished Second Circuit judge, Henry Friendly; then served as
clerk to then Associate Justice William Rehnquist; then, following his
work with Attorney General William French Smith, became associate White
House counsel; practiced with the prestigious law firm of Hogan &
Hartson--Hogan & Hartson was prestigious before Judge Roberts got there
but a lot more so after he was there and, frankly, after he left--then
his status as a premier appellate lawyer; then the Supreme Court with
some 39 cases.
It was my view that Judge Roberts has a broad, expansive
understanding of the application of the Constitution. He said:

They

--referring to the Framers--

were crafting a document that they intended to apply in a
meaningful way down through the ages.

While he would not quite accept my characterization of agreement with
Justice John Marshall Harlan on the document being a living thing, he
did say that the core principles of liberty and due process had broad
meaning as applied to evolving societal conditions. He is not an
originalist. He is not looking to original intent. But he sees the
Constitution for the ages and adaptable to evolving societal
conditions.
On the issue of how many questions he answered before the Judiciary
Committee, I believe he answered more than most but, candidly, did not
answer as many questions as I would like to have had him answer. I will
detail that in the course of this brief presentation.
I have observed, in the 10 Supreme Court nominations where I have had
the privilege to participate on the Judiciary Committee, that nominees
answer about as many questions as they believe they have to in order to
be confirmed. But it has become an evolving process. A view of some of
the history of Supreme Court nominations is relevant to see what has
happened, what is in the course of happening, and what the next nominee
may face.
The Senate Judiciary Committee has conducted hearings on nominees
only since 1916--that is, for the Supreme Court--with the nomination of
Louis Brandeis by President Woodrow Wilson. Justice Brandeis did not
appear. The first time a nominee appeared before the committee was in
1925. The nominee was Harlan Fiske Stone. An issue had arisen as to
whether there was a political motivation in the controversial
investigation into the conduct of Judge Burton Wheeler. Justice Stone
asked to appear to respond to the allegations. He did so, and he was
confirmed.
In 1939, President Roosevelt nominated Felix Frankfurter, who
initially refused to appear personally, but after being attacked for
his foreign birth, his religious beliefs, and his associations,
Frankfurter decided to appear. He read from a prepared statement,
refused to discuss his personal views on issues before the Supreme
Court. His hearing lasted only an hour and a half in duration and did
not set a precedent for future nominees.

In 1949, Sherman Minton, who had been a U.S. Senator, became the only
Supreme Court nominee to refuse to testify before the Judiciary
Committee. Minton wrote to the committee:

I feel the personal participation by the nominee in the
committee proceedings related to his nomination presents a
serious question of propriety, particularly when I

[[Page S10399]]

might be required to express my views on highly controversial
and litigious issues affecting the Court.

Notwithstanding Minton's refusal, the committee conducted its hearing
in Minton's absence and confirmed him. It wasn't until 1955, with the
nomination of Justice John Marshall Harlan, that nominees have appeared
regularly before the Judiciary Committee. Only since 1981, following my
own election in 1980, have the hearings taken on a little different
approach as to what the nominees will answer. Justice O'Connor declined
to answer many questions. The next nomination hearing was that for
Chief Justice Rehnquist, who was a sitting Associate Justice. Initially
Justice Rehnquist declined to appear, then was advised that if he
wanted to be confirmed, he would have to appear. It was a contentious
hearing. As the record shows, Chief Justice Rehnquist was confirmed by
a vote of 65 to 33. He did answer a great many questions, although he
did not answer a great many questions.
I asked him a bedrock question as to whether Congress had the
authority to take away the jurisdiction of the Supreme Court of the
United States on the first amendment. He declined to answer. Overnight
a Senate staffer brought me an article which had been written by a
young Arizona lawyer in 1958 by the name of William H. Rehnquist which
appeared in the Harvard Law Record. The young Arizona lawyer, William
H. Rehnquist, was very tough on the Senate Judiciary Committee for the
way it conducted its hearings for Charles Whittaker. Charles Whittaker
was from Kansas City. There are two Kansas Cities--one in Kansas and
one in Missouri. Justice Whittaker lived in one and practiced law in
the other. A big to-do was made about the fact that it would be an
honor to two States if he was confirmed, where he worked and where he
lived.
This young lawyer from Arizona, Bill Rehnquist, didn't think that
amounted to a whole lot. He chastised the Senate Judiciary Committee
for not asking about due process and other constitutional issues. So in
the face of his declination to answer my questions on taking
jurisdiction away from the Supreme Court on the first amendment, I
asked him if he was that William H. Rehnquist from Arizona. He said,
yes, that was true, he was.
I said: Did you write this article?
He said: Yes, I did. Then he added quickly: And I was wrong.
So that didn't end the issue because having the authority of this
young lawyer from Arizona, pretty good reasoning, I pursued the
questions. Finally, he answered the question on could the Congress take
away the jurisdiction of the Court on the first amendment. He said, no,
the Congress could not do that.
So naturally I then asked about the fourth amendment, search and
seizure. Could the Congress take away the jurisdiction from the Supreme
Court on search and seizure. He declined to answer that. I went to
amendment five on privilege against self-incrimination. Again he
declined. And then six, on right to counsel, and seven, and eight on
cruel and unusual punishment. Then I asked him a follow-up question:
Why would he answer on the first amendment but not on any of the
others? As you may suspect, he refused to answer that question as well.
It was my judgment that Chief Justice Rehnquist passed muster. It was
a battle. And then Justice Scalia came before the Senate following
Chief Justice Rehnquist. Justice Scalia would not answer any questions.
As I have said--and really too apocryphal--Justice Scalia wouldn't even
give his serial number. He would only give his name and rank. Prisoners
of war are compelled to answer questions, but only three--name, rank,
and serial number. But as I have said, and I have said this to Justice
Scalia in interpersonal banter, he wouldn't even give us his serial
number. But it was perhaps an exhausted Senate following the
confirmation of Chief Justice Rehnquist or perhaps it was Justice
Scalia's superb academic and professional record, he would not even
answer the question as to whether he would uphold Marbury v. Madison, a
decision of the Supreme Court of the United States in 1803 where the
Court undertook the authority to interpret the Constitution and to
interpret the law and to be the final arbiter of the Constitution.

Then in 1987 the Judiciary Committee considered the nomination of
Judge Bork from the District of Columbia Court of Appeals. Judge Bork
had very extensive writings in law reviews and books, many speeches,
had a very extensive paper trail, a controversial paper trail. Judge
Bork had written that absent original intent there was no judicial
legitimacy, and absent judicial legitimacy, there could not be judicial
review. Understandably, the committee had many questions for Judge
Bork, and in that context Judge Bork felt compelled to answer the
questions.
In the interim between Justice Scalia and Judge Bork, Senator
DeConcini and I--Senator DeConcini being another member of the
Judiciary Committee--had prepared a resolution to be submitted to the
Judiciary Committee which would delineate an appropriate line of
questions for nominees in trying to set some standards and trying to
set some parameters as to what we felt, what questions were appropriate
and what questions had to be answered to warrant confirmation. After
the proceedings as to Judge Bork, we felt it unnecessary to move ahead
with that kind of a resolution.
The nomination of Justice Kennedy followed, and Justice Souter and
the other Justices, Justice Thomas, who answered a great many
questions, and then the nomination of Justice Ginsburg and the
nomination of Justice Breyer. These nomination proceedings found the
nominees answering some, not answering others, but essentially
following the rule that they answered about as many questions as they
felt they had to.
Judge Roberts answered more questions than most. He answered the
question about the right of privacy in a very positive manner in
response to questions which I asked, which Senator Kohl asked, and
which others answered. He said there was a right of privacy. He said
the decision of the Supreme Court of the United States in Griswold v.
Connecticut was a correct decision and he extended the contraception
issue beyond marriage to those who were single, saying that right of
privacy existed, and upheld the propriety of the decision of the
Supreme Court in the Eisenstadt case. Other nominees had refused to
answer such questions.
I felt that Judge Roberts did not answer some questions which I
thought should have been answered. For example, I asked him about the
appropriate standard for testing constitutionality under the commerce
clause. We found in United States v. Lopez in 1995 that the Supreme
Court of the United States had cut back on congressional authority of
the Congress which had been in existence for almost 60 years. Then in
the case of the United States v. Morrison, the Court struck down
portions of legislation designed to protect women against violence.
They did so on the stated principle that they disagreed with the
congressional ``method of reasoning.'' When I heard about that
rationale, it seemed to me to be inappropriate. What was the Court's
method of reasoning which was superior to the congressional method of
reasoning? I find the matter of unique historical importance that the
columns of the Senate are lined up exactly evenly with the columns of
the Supreme Court.
Interestingly, in an early draft of the Constitution, the Senate was
given the authority to appoint Supreme Court Justices. I have seen or
visualized, conceptualized a certain parody with those columns lined up
exactly the same. When I read the opinion of the Supreme Court 5 to 4
in the United States v. Morrison, striking down portions of the
legislation to protect women against violence, I wondered what was
there in the Supreme Court which led them to a method of reasoning
superior to a congressional method of reasoning? What happens when you
move across the short space of green between the Supreme Court columns
and the Senate's columns?
As the dissent pointed out, the opinion of the Court must have
presumed some unique form of judicial competency. If you have a unique
form of ``judicial competency,'' you must have a form of congressional
incompetency which is hardly fitting in an analysis of cases and facts
and a determination of

[[Page S10400]]

constitutionality with the separation of powers between the Congress
and the Court.
In the case of United States v. Morrison, the factual record exists
``showing reports on gender bias from the task force in 21 states and 8
separate reports'' issued by Congress in its committees over a long
course of time. The dissent detailed all of the evidentiary basis and
then concluded ``there was a mountain of evidence.''
When I wrote to Justice Roberts by letter dated August 8 and August
23, I had alerted him to this case and this question. At this point, I
ask unanimous consent the full text of those letters be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

U.S. Senate,

Commitee on the Judiciary,

Washington, DC, August 8, 2005.
Hon. John G. Roberts, Jr.
E. Barrett Prettyman Courthouse,
Washington, DC.
Dear Judge Roberts: I write to give you advance notice of
some of the issues I will be asking at your confirmation
hearing. In addition to identifying topics, I think it is
helpful to outline the background for the questions to save
time at the hearing.
In addition to the commentaries of scholars and others
about the Supreme Court's judicial activism and the Court's
usurping Congressional authority, members of Congress are
irate about the Court's denigrating and, really,
disrespectful statements about Congress' competence. In U.S.
v. Morrison, the Court rejects Congressional findings because
of ``our method of reasoning''. As the dissent notes, the
Court's judgment is ``dependent upon a uniquely judicial
competence'' which implicitly criticizes a lesser quality of
Congressional competence.
In Morrison, the Court invalidated, by a 5-4 vote,
legislation on gender-motivated crimes of violence involving
three Virginia Polytechnical Institute football players who
were accused of raping a fellow student.
Chief Justice Rehnquist's opinion, interpreting the
Commerce Clause, held Congress cannot regulate ``non-
economic, violent criminal conduct based solely on that
conduct's aggregate effect on interstate commerce.'' The
Court acknowledged the ``contrast with the lack of
Congressional findings that we faced in Lopez'' and the Act
was ``supported by numerous findings regarding the serious
impact of gender-motivated violence on victims and their
families.''
Writing for four dissenters, Justice Souter referred to
``the mountain of data assembled by Congress here showing the
effects of violence against women on interstate commerce.''
Citing longstanding precedents, the dissent said:
``The business of the courts is to review the Congressional
assessment not for soundness but simply for the rationality
of concluding that a jurisdictional basis exists in fact.''
Noting the obvious advantage Congress has in its fact-
finding procedures contrasted with the Court's limitations,
the Souter dissent said:
``The fact of such a substantial effect is not an issue for
the courts in the first instance . . . but for the Congress
where institutional capacity for gathering evidence and
taking testimony far exceeds ours.''
The Souter dissent further specified:
``The record includes reports on gender bias from task
forces in 21 states and we have the benefit of specific
factual finding in eight separate reports issued by Congress
and its committees over the long course leading to its
enactment.''
From the New Deal Court in 1937 to the abrupt reversals in
Lopez and Morrison, Congressional authority under the
Commerce clause had gone unchallenged based on Justice
Harlan's rationale in the 1968 case Maryland v. Wirtz:
``But where we find the legislators . . . have a rational
basis for finding a chosen regulatory scheme necessary to the
protection of commerce, our investigation is at an end.''
In the face of decades of precedents and a ``mountain of
data,'' Chief Justice Rehnquist rejected Congress' findings
because of our ``method of reasoning.''
To this Senator, who has labored through 25 years of
intense legislative hearings and fact-finding plus prior
public service and experience in the real world, my immediate
reaction is to wonder how the Court can possibly assert its
superiority in its ``method of reasoning'' over the reasoning
of the Congress.
The Souter dissent attacks the majority's ``'method of
reasoning'' dictum questioning the Court's judgment is
``dependent upon a uniquely judicial competence.'' The
dissent then points out:
``. . . these formalistic contrived confines of commerce
power in large measure provoked the judicial crisis of 1937''
so that ``one might reasonably have doubted that Members of
this Court would ever again toy with a return to the days
before NLRB v. Jones & Laughlin Steel Corporation which
brought the earlier and nearly disastrous experiment to an
end.''
The Souter dissent further notes the categorical formalism
``. . . is useful in serving a conception of Federalism.'' A
reinvigoration of Federalism is, of course, the hallmark
agenda of the judicial activism of the Rehnquist Court.
Even with the Souter dissent referencing the crisis of
1937, I do not suggest any move as radical as President
Roosevelt's attempt to pack the Court. I do see a great deal
of popular and Congressional dissatisfaction with the
judicial activism; and, at a minimum, the Senate's
determination to confirm new justices who will respect
Congress' constitutional role.
My questions are:
(1) Is there any real justification for the Court's
denigrating Congress' ``method of reasoning'' in our
constitutional structure of separation of power where the
elected Congress has the authority to decide public policy on
issues such as gender-based violence effecting interstate
commerce?
(2) Is there any possible basis for the Court's
characterization of ``uniquely judicial competence''
implicitly criticizing a lesser quality of Congressional
competence?
(3) Do you agree with Justice Harlan's jurisprudence
concerning legislation on the ``rational basis'' test as
embraced by the dissent contrasted with the majority opinion?
(4) What is your thinking on the jurisprudence of U.S. v.
Lopez and U.S. v. Morrison which overturned almost 60 years
of Congress' power under the Commerce Clause?
Sincerely,
Arlen Specter.
____

U.S. Senate,

Committee on the Judiciary,

Washington, DC, August 23, 2005.
Hon. John G. Roberts, Jr.
U.S. Department of Justice,
Washington, DC.
Dear Judge Roberts: Supplementing my letter on the Commerce
Clause, this letter deals with Supreme Court decisions on the
Americans with Disabilities Act (ADA) which I intend to ask
you about at your confirmation hearing.
Like my first letter on the Commerce Clause, I am concerned
about the Supreme Court's judicial activism which has usurped
Congressional authority by creating, as Justice Scalia's
dissent in Tennessee v. Lane states, a ``flabby test'' which
is an ``invitation to judicial arbitrariness by policy driven
decision-making''. The ``ill-advised'' result, as the Scalia
dissent further notes, is for the Court to set itself up as
``taskmaster'' to determine that Congress has done its
``homework'' which demonstrates lack of respect for a co-
equal branch of government.
Except for the swing vote of Justice O'Connor and the
dramatic image of a paraplegic crawling up the steps to a
courtroom, it is hard to discern a significant legal
difference between Alabama v. Garrett, decided in 2001
involving ADA Title I discrimination in Employment, and
Tennessee v. Lane, decided in 2004 involving ADA Title II
discrimination in pubic accommodations.
In Lane, a 5-4 decision, with Justice O'Connor in the
majority, the Court upheld the constitutionality of the Act
in mandating access by a paraplegic who had to crawl up the
steps to a second floor courtroom to answer criminal charges.
In Garrett, a 5-4 majority, with Justice O'Connor in the
majority, the Court declared the Act unconstitutional in
seeking to hold the state liable for employment
discrimination.
These decisions pose two major problems: (1) A lack of
stability or predictability in the law because the two cases,
decided three years apart, are virtually indistinguishable;
and (2) The Court's judicial activism in functioning as a
super-legislature.
Dissenting in Lane, Chief Justice Rehnquist complained that
the majority referenced the same Congressional task force's
``unexamined, anecdotal'' evidence that the Court had already
rejected in Garrett. Contrary to that assertion, the records
in the two cases, which appear to be similar, seem to contain
overwhelming evidence to support the Congressional findings.
Title II of ADA involved in Lane was supported by 13
Congressional hearings and a special task force that had
gathered evidence from every state in the Union. Similarly,
Title I of ADA involved in Garrett was based on task force
field hearings in every state attended by more than 30,000
people including thousands who had experienced discrimination
with roughly 300 examples of discrimination by state
governments.
Notwithstanding those findings, the Garrett Court
concluded:
``The legislative record of the ADA, however, simply fails
to show that Congress did in fact identify a pattern of
irrational state discrimination in employment against the
disabled.''
Writing for four justices, Justice Breyer's dissent found
ample evidence to support the legislation noting:
``Unlike courts, Congress can readily gather facts from
across the Nation, assess the magnitude of a problem and more
easily find an appropriate remedy.''
The dissent makes three more related points:
(1) ``Moreover, unlike judges, Members of Congress are
elected.''
(2) ``. . . The Courts do not `sit as a superlegislature to
judge the wisdom or desirability of legislative policy
determinations' '' and
(3) ``To apply a rule designed to restrict Courts as if it
restricted Congress' legislative power is to stand the
underlying principle--a principle of judicial restraint--on
its head.''
In imposing liability on the states in Lane, the Supreme
Court justifies abrogating the

[[Page S10401]]

states' Eleventh Amendment immunity by enforcing fundamental
rights under the Fourteenth Amendment. To do that, under the
Court's reasoning, there must be ``a congruence and
proportionality'' between the injury and the remedy imposed.
That leaves the Court substantial latitude, as a matter of
interpretation, to declare acts of Congress unconstitutional
notwithstanding the enormous evidentiary support for
Congress' public policy determinations.
Justice Scalia's dissent in Lane attacked the ``congruence
and proportionality standard'' calling it a ``flabby test''
and an ``invitation to judicial arbitrariness and policy
driven decision making.'' The dissent added:
``Worse still, it casts this Court in the role of Congress'
taskmaster. Under it, the courts (and ultimately this Court)
must regularly check Congress' homework to make sure that
it has identified sufficient constitutional violations to
make its remedy constitutional and proportional. As a
general matter, we are ill advised to adopt or adhere to
constitutional roles that bring us into conflict with a
coequal branch of Government.''
Justice Scalia then carved out a new rationale for
disagreeing with the ADA's remedy, unmentioned when he joined
the majority three years earlier in Garrett, that the
Fourteenth Amendment applies only to state racial
discrimination and ``do not apply to this field of social
policy far removed from the principal object of the Civil War
amendments.''
My questions are:
(1) Aren't the ``congruence and proportionality standard''
and Chief Justice Rehnquist's ``method of reasoning'' dictum
in Morrison examples of manufactured rationales used by the
Supreme Court to exercise the role of super legislature and
make public policy decisions which is the core Congressional
role under the Constitution?
(2) Without invoking the ``flabby test'' and engaging in an
``invitation to judicial arbitrariness by policy driven
decision making'' embodied in the ``congruence and
proportionality standard,'' wouldn't a preferable test of
constitutionality be the standard applied by Justice Harlan
to the Commerce clause in Maryland v. Wirtz, and again
invoked in Gonzales v. Raisch:
``But where we find the legislators . . . have a rational
basis for finding a chosen regulatory scheme necessary to the
protection of commerce, our investigation is at an end''?
(3) Isn't there a lack of respect for Congress demonstrated
by the Supreme Court as Justice Scalia points out that it is
``ill advised'' for the Court to set itself up as
``taskmaster'' to determine that Congress has done its
``homework'' and to strike down Acts of Congress as Chief
Justice Rehnquist did in Morrison by impugning our ``method
of reasoning''?
(4) Using the maxim that ``hard cases make bad laws'',
should there be any place in the judicial decision-making
process to make allowances for the unique and sympathetic
factual situation in Lane where a paraplegic had to crawl up
the courthouse steps?
Sincerely,
Arlen Specter.

P.S. Following the release of my prior letter on the
Commerce Clause, there were misrepresentations that my
questions asked how you would have decided specific prior
cases. That is not true. The questions were carefully crafted
to elicit your thinking on your jurisprudence and judicial
philosophy as opposed to how you would have decided specific
cases.

Mr. SPECTER. At this juncture, it might be appropriate to note that
Republicans have the floor until 2:30, and if one of my colleagues is
to come over, I may speak a more abbreviated period of time, we will
have time for another speaker to take the floor before Senator Leahy is
recognized under the unanimous consent request at 2:30.
I asked Judge Roberts the questions which I had set forth in the
letter that I referred to, What is an appropriate jurisprudential
standard on the commerce clause? Is it the one which has been followed
for so many years, which is a substantial basis for the congressional
decision, or is it some ``method of reasoning'' which is impossible to
understand even in the context of a record from a task force in 21
States and 8 separate reports to the Congress?
Judge Roberts declined to answer the question. I pressed him and
finally said we would have to agree to disagree. But it seems to me
when you have a question about philosophy, about judicial approach,
about what is the proper standard to apply on constitutionality of a
congressional exercise of authority under the commerce clause, that is
the kind of question which should be answered, not sufficient to vote
``no,'' but candidly the beginning of being a little bit tempting.
Then I asked him about the jurisprudence of the Supreme Court in the
two cases I have already referred to under the Americans With
Disabilities Act.
In Garrett v. Alabama, in the year 2001, the Supreme Court struck
down a title of the Americans With Disabilities Act which dealt with
discrimination in employment involving Ms. Barrett, who had breast
cancer. And then, 3 years later with an identical record--the records
are the same in all titles of the Americans With Disabilities Act--you
had a striking case of a paraplegic, a case called Tennessee v. Lane,
where the parapalegic had to crawl up the steps to a courtroom. The
issue there was whether there was discrimination under the Americans
With Disabilities Act on access. The Supreme Court of the United
States, in a 5-to-4 decision, said that was constitutional.
It is inexplicable how, given two titles of the Americans With
Disabilities Act with identical records, the Court could find one to be
constitutional and the other to be unconstitutional. I asked Judge
Roberts about that. Again, he declined to answer.
The Supreme Court in both Garrett and Lane adopted a brand new
standard for testing constitutionality of congressional action under
section V of the 14th amendment as contrasted with the right of the
States for immunity from suit under the 11th amendment.
The Supreme Court of the United States picked up a doctrine which
they had adopted in a case called City of Boerne v. Flores. In 1997,
when the Supreme Court overturned the Religious Freedom Restoration Act
of 1993, legislation which had been very carefully considered by the
Congress of the United States, the Supreme Court said that act was
unconstitutional because it did not satisfy a test of congruence and
proportionality. When I read that standard, I wondered what it meant.
Congruence and proportionality. Where did the Court get this standard?
They plucked it right out of thin air. There was no basis for this kind
of a standard.
Justice Scalia, in dissenting in the Lane case, said it was a
``flabby test'' which was put into effect in order to allow the Supreme
Court to engage in policymaking decisions, in effect, judicial
legislation.
The dissenting opinion by Justice Scalia in the Lane case took the
Court to task for an ``ill-advised opinion'' where they acted as the
taskmaster of the Congress to see that the Congress was doing its
homework. Like the Supreme Court decision in Morrison attacking our
method of reasoning, it seemed to me the Court had gone much too far in
challenging the competency of the Congress in striking down
congressional authority.
Again, I ask Judge Roberts, what about this test of congruence and
proportionality? Does it have any basis in the law? Is there any
rationality in what the Court did in these two cases under the
Americans with Disabilities Act? Again, he declined to answer.
After talking to a number of my colleagues, the Senate Judiciary
Committee will give very serious consideration to legislation which
would give the Congress standing to defend the constitutionality of the
statutes which it enacts. Standing is a very delicate subject and there
are a great many cased where people seek to go to court to enforce the
Endangered Species Act or to enforce a variety of laws. Congress has
the authority to grant standing.
It seems to me that it might be a good occasion for Congress to
exercise this authority to grant standing to Congress. Why should we
rely upon the litigants to defend the constitutionality of these
enactments which we pass very carefully and very laboriously, as we did
the Religious Freedom Restoration Act of 1993 or the Americans with
Disabilities Act? That is a move which might have material implications
on reasserting the balance of power and the separation of power between
Congress and the Court.
If we have standing, we can have our own counsel, we can proceed to
brief the cases, we can proceed to have someone argue it on our behalf.
We may be able to stop the flood of actions by the Supreme Court which
have reversed acts of Congress, the actions by an activist Court
engaged in judicial legislation and doing it under the guise of
illusory standards such as congruence and proportionality, standards
plucked out of thin air. They disagree with our method of reasoning
when there is no basis for asserting superiority of reasoning by the
Supreme Court over the Congress.
When we talk about this judicial activism, we are talking about a
form of

[[Page S10402]]

activity which is abhorred by both the right and the left on the
political spectrum. My distinguished colleague, Senator Hatch, who
preceded me as chairman of the Judiciary Committee, and I have
discussed the decision of the Supreme Court in striking down the
Religious Freedom Restoration Act of 1993, and it is one which candidly
defies logic. But the Court decided to undertake that restriction of
congressional authority, and it did so in that case.
The issue of how many questions a nominee must answer will be before
the Senate again on the next nomination to replace retiring Justice
Sandra Day O'Connor. The refusal of nominees to answer questions where
the case is likely to come before the Court is, in my opinion, well-
founded.
Judge Roberts answered more questions than many. Justice Scalia, for
example, as I said, would not even comment on Marbury v. Madison. Judge
Roberts did not answer questions where, in his judgment, the case was
likely to come before the Supreme Court. If the case is to come before
the Supreme Court, as a matter of judicial independence, the nominee
ought not to answer that question.
I said in advance of the hearings, and I said during the hearings,
that any Senator had a right to ask any question which he or she chose,
including how a case would be decided, and that the nominee had the
right to answer or decline to answer as the nominee chose, and that it
was my view that if a question did involve a question on a case likely
to come before the Court, the nominee was within his rights to decline
to answer.
The public does not understand the issue of judicial independence and
the ramifications of answering a question on a case likely to come
before the Court. The public in the opinion polls wanted to know what
Judge Roberts thought about a woman's right to choose. The public
wanted to know whether he would uphold Roe v. Wade or overrule Roe v.
Wade.
It seems to me this is a classic case of the irresistible force
meeting the immovable object. The immovable object is judicial
independence--not to make a commitment in advance on a case likely to
come before the Court--and the sort of irresistible object is the
public interest in knowing.
During the course of the hearings on Judge Roberts, Senator after
Senator was moving right into the area of wanting to know how Judge
Roberts would decide a case. I pressed Judge Roberts on the issue of
stare decisis and on the value he would place on precedent, on Planned
Parenthood v. Casey, on some 38 cases where the Supreme Court of the
United States had an opportunity to overrule Roe and declined to do so.
I asked him about a doctrine which had been articulated in some
quarters about Casey being a superprecedent and took a step on coining
a new concept called the super-duper precedent. It has not landed too
well, but sometimes these new ideas take a while to gestate.
I believe the next nominee is going to face very close questioning.
It is my thought, already expressed by a number of Senators--and
Senators on both the right and the left--that Senators want to know
more about the thinking of the new nominee than Judge Roberts was
willing to give.
Judge Roberts was able to run between the raindrops in a hurricane
because of his unique talent; his record was so extraordinary that he
was able to fend off many questions. A number of Senators have stated a
reason for a ``no'' vote is Judge Roberts' refusal to answer questions
and their lack of sufficient knowledge as to where he stands.
It is a virtual certainty--in fact, you can strike ``virtual''--it is
a certainty that the next nominee will have these questions and many
more. Some would say that Judge Roberts would be replacing Chief
Justice Rehnquist, so that when you have somebody perhaps on the same
ideological line, although that is by no means certain from Judge
Roberts' answers, the fact is you just do not know how Judge Roberts is
going to rule on Roe v. Wade or other controversial issues. Again, I
repeat, that is, in my opinion, as it should be as a matter of judicial
independence. If there is any rule as to what happens, it is a rule of
surprise as to what nominees do.
There is no doubt that the hearings in the Judiciary Committee have
become more contentious because of concern about the highly
controversial issues, and it is more than the issue of choice in Roe v.
Wade, it is the issue of congressional authority versus the action of
the Supreme Court in declaring laws unconstitutional. It is in the
issue of religious freedom as embodied in the Religious Restoration Act
where there is concern from both the right and from the left.

It was this kind of angst, this kind of unease which led me to the
suggestion that the President defer a replacement for Justice O'Connor
until the end of the June term, at a point where we would know a great
deal more about Judge Roberts. But in the context where there are
uncertainties as to two votes, it compounds the angst and anxiety as to
what may occur.
I called Justice O'Connor, as I said in the meeting involving the
President, Senator Frist, Senator Reid, Senator Leahy, the Vice
President, Chief of Staff Andy Card, and myself. I said I called
Justice O'Connor and asked her if she would be willing to stay on--
obviously quite a sacrifice--and she said she would if she was asked.
But that is the President's call, and the President has indicated he is
going to proceed in a timely manner where the expectation is the
nomination will be made, my estimate would be, shortly if not
immediately after a decision is made by the Senate on the Roberts
nomination.
It is going to be a contentious hearing. The contentious quality was
bubbling just below the surface during the hearing of Judge Roberts.
There are a number of factors already stated, already articulated which
would pose even more of a contentious issue.
I ask unanimous consent, although I don't know if I need to, to
introduce a bill at this point, and it is right in line with the issues
involved in the Roberts nomination. That is legislation that will call
for televising the Supreme Court of the United States.
The PRESIDING OFFICER. Without objection, it is in order to introduce
this measure. It will be received and appropriately referred.
Mr. SPECTER. I thank the Chair.
The nomination of Judge Roberts to be Chief Justice has created a
great deal of interest, and I think the televised hearings have
captured the imagination of the American people. I have long believed
that the Court ought to be televised. There is a certain reluctance of
the Court for television as a change in practice and as a change in
procedure, but there is much to recommend it.
Televising the House of Representatives and the Senate has produced a
great deal more public understanding on the important activities we
undertake here and what we do.
The Supreme Court of the United States in 1980, in a case captioned
Richmond Newspapers v. Virginia, set the rationale for televising the
Court when the Supreme Court itself said:

Instead of acquiring information about trials firsthand
observation or by word of mouth from those who attend, people
now acquire it chiefly through the print and electronic
media. In a sense, this validates the media claim of acting
as a service for the public. Media presence--

The intended subject here--

contributes to the understanding of the rule of law and the
comprehension of the function of the entire criminal justice
system.

That would be true for the entire justice system.
The Congress has the established authority to set the date when the
Supreme Court starts its session. We have legislated that it should be
the first Monday in October. We have the authority to establish the
number of Justices--nine. We all recall the famous court-packing effort
by President Roosevelt in about 1937. We could increase the number as
we would choose. The Congress has the authority to establish a quorum,
which is set at six for the Court to function. The Congress has the
authority to establish a timetable for the disposition of habeas corpus
cases, capital punishment. We establish the timetable for the Federal
courts under the Speedy Trial Act. Of course, the final arbiter in all
of these cases is the Supreme Court of the United States.
So if the Supreme Court should decide that legislation enacted by
Congress to call for being televised was violative of the Constitution,
they would have the final word. But in the context where the Supreme
Court decides the cutting edge questions of our

[[Page S10403]]

day--the question of choice, the question of the right to die, the
question of the Ten Commandments, the question of establishment of
religion, the question of the free exercise clause, the question of the
death penalty, the question of exonerating the innocent--it is very
much in the public interest, in my view, to have the Supreme Court
televised.
We all know the momentous decision of the Supreme Court in Bush v.
Gore. On that occasion, when I walked across the green to attend the
argument, the square block was overloaded with television trucks
because of the enormous interest, but the television cameras could not
go inside. At that time, Senator Biden and I wrote to the Chief Justice
and asked that the Court be open for television. We received a letter
of declination. As I recollect, the Court did have a transcript which
was released right after the oral argument concluded.
I believe proceedings of the Court could be televised with due regard
to the security and safety of the members of the Court. Under the
proposed legislation, the Court would have the authority in a
particular case to stop the television if it felt it necessary.
In conclusion, as we approach the confirmation of Judge Roberts to be
Chief Justice, I urge my colleagues to take a close look at his record.
The conventional wisdom is that the nomination is assured at this
point. I believe that is true. Nevertheless, I think there is value in
rolling up the score. We frequently cite the vote of 98 to 0 for
Scalia; only three votes against Justice Ginsburg; 52 to 48 for Justice
Thomas. I believe a strong vote for Judge Roberts would give him added
stature. It is pretty hard to add stature to the Chief Justice of the
U.S. Supreme Court, but I believe it would add a modicum of stature.
As the President ponders the nominee to replace Justice Sandra Day
O'Connor, it is my hope that there will be balance maintained on the
Court. With the uncertainties of the vote of Judge Roberts, the
uncertainties of the vote of a new nominee, and the prospects of
retirements in the immediate future, the composition of the Court could
change, and the rule of law is structured on stability. The rule of law
is structured on expectations being fulfilled, and reliance, and it is
enhanced by not having sharp turns.
The nomination of Judge Roberts to replace Chief Justice Rehnquist
may work out to be a substitution of people with about the same
judicial approach. Although it is far from certain exactly how Judge
Roberts will rule, there is no doubt that Justice O'Connor was a swing
vote, tipping the scale. I believe that is a factor to be considered.
While I would like to see more women, a Hispanic, and more African
Americans on the Court, I urge the President to name the very best
person he can find. We could use a Brandeis or a Holmes on the Supreme
Court. I am not saying we do not have one now, but if we do, we could
use more.
President Bush disarmed his critics by nominating Judge Roberts with
his extraordinary record, and I urge the President to nominate the very
best person he can, regardless of gender, ethnicity, or any other
factor.
I draw the attention of my colleagues to the full text of my remarks
of Monday, September 19, 2005.
The PRESIDING OFFICER (Ms. Murkowski). The Senator from Alabama.
Mr. SESSIONS. Madam President, I appreciate the leadership of Senator
Specter in this confirmation process. We stayed on track and on time
better than at any time I can remember. We had a lot of people with a
lot of strong views and ideas they wanted to express and they were
given plenty of time to do that. We had 30-minute rounds of questioning
and then 20-minute rounds. Some got more who asked for it. Judge
Roberts was appropriately forthcoming under certain circumstances and
appropriately failing to be drawn into discussions of cases that may
come before him.
I think things went well. A lot of people doubted whether we would be
in position to have a vote this week, but the Senator from Pennsylvania
was tireless. He stayed as long as it took. He listened to all of it,
chaired the hearings, and kept us going straight, and made sure on
occasion the witness had a chance to answer. Sometimes he was given
more questions and interruptions than he was given a chance to answer.
The Senator did a great job and I want to thank him for that.
I also join the Senator in saying that one never knows what a judge
will be confronted with 10, 12, 15, 20 years from now. We might as well
get the best person we can get who can deal with those questions that
are unanticipated now and who can construct a philosophy of the
judiciary that will be healthy and faithful to the Constitution, to the
people who have ratified that Constitution, who have elected the
representatives, to be respectful of all of that, and who understands
the proper role of a judge.
I think Judge Roberts meets every one of those qualities. I think he
is an extraordinary individual. Everyone who has been watching the
hearings has been very impressed. I think he represents the American
ideal of what a judge should be. The President deserves great credit
for nominating the best.
I asked Professor Fried of Harvard, who is a former Solicitor General
of the United States and had himself argued cases before the Supreme
Court--he is now at Harvard teaching philosophy of law--how would he
rank Judge Roberts as an advocate before the Supreme Court, and he said
the best, as so have certain legal magazines that rate the best lawyers
in the country.
I think the people like him. I think his idea that judges should show
modesty and be faithful to the Constitution, his expression that the
greatest threat to the Court could be judicial activism, where the
people feel the judges are not faithful to the Constitution and are
imposing their political views on the people that are not required by
the Constitution, that this is a threat to the rule of law because at
some point in the future the Court may have to call on the American
people to do things they do not want to do, they may not be popular, to
be faithful to the Constitution. To erode and give away that good
respect the American people have for the courts and the law would be a
mistake.
I want to express how strongly I feel that our nominee is an
extraordinary individual. I saw on C-SPAN today John Roberts' former
coach and teacher, and he said he was the finest student we had in our
school and the finest student the school has ever produced. He did not
hesitate to say that. He coached him in wrestling. He played football.
He was top academically in the class and cared about those kinds of
things. He worked hard and he was honest. He said, I remember when he
came up at graduation and they gave the award for the finest student in
English, it was John G. Roberts; they gave the one for French, and it
was John Roberts; in Latin, it was John Roberts; mathematics, it was
John Roberts. He said nobody, none of the students, had the slightest
doubt that he deserved those honors and he earned them, because of both
his work and his intelligence.
John Roberts went to Harvard to do his undergraduate degree, finished
Harvard in 3 years, not 4, and was magna cum laude on his graduation
from Harvard in 3 years. Then he went to law school at Harvard,
likewise did exceedingly well, and was selected for Law Review, which
is a great honor for a student in law school to be selected for the Law
Review. I suppose some of us might grumble, but most people would
probably admit that the Harvard Law Review is the finest, most
prestigious Law Review in the country. His fellow members of the Law
Review elected him to be managing editor of the Law Review, which again
is an affirmation of their respect for him and his abilities.
After law school, he clerked for Judge Friendly, one of the great
circuit judges in America. This is the court of appeals that is just
below the Supreme Court. I note that outstanding law graduates apply
for these courts of appeal clerkships. There are not that many of them.
They are very coveted and only the best students are selected.
Judge Friendly, one of the great circuit judges in the last 50 years
in the United States, would have been very competitive. Many students
would have liked to have clerked for him. He chose John Roberts.
After that, I am sure Judge Friendly recommended him--or however it
occurred, he was recommended to Chief Justice Rehnquist. I believe
Justice

[[Page S10404]]

Rehnquist was not chief at that time but a justice on the Supreme
Court. He clerked for the Supreme Court, the very Court on which he
will now sit. Trust me, it is an honor for a lawyer to be chosen to
clerk for the U.S. Supreme Court, because they want the very best young
lawyers who can help them decide the most complex cases. So I think
that is something we should remember.

Then he is in private practice. He goes to the Department of Justice.
He is called over as part of Fred Fielding's efforts to bring the
brightest to the White House. He found him and snatched him away to the
White House. He was White House counsel under President Reagan, helped
President Reagan carry out his agenda, an agenda that 48 States
affirmed when he was reelected by one of the largest votes in history.
Some have tried to say, oh, he worked in the Reagan White House. He
was conservative and out of the mainstream. President Reagan carried 48
States. He was not out of the mainstream. We have some leftists in this
country who are out of the mainstream, but I do not think because he
worked in the Reagan White House anybody could suggest he is not a
mainstream lawyer.
He later becomes principal Deputy Solicitor General in the Department
of Justice. The Solicitor General represents the United States of
America before the Supreme Court. That is the job many lawyers call the
greatest lawyer job in the world, to be able to represent the United
States of America before the Supreme Court. That is a great honor. He
was the principal deputy. He argued cases there and in private
practice. He has argued a total of 39 cases before the Supreme Court. I
am sure there is no lawyer in America his age who has argued 39 cases
before the Supreme Court. We have maybe a few lawyers in the Senate. I
know Jon Kyl has argued two cases before the Supreme Court. I doubt
there are any of us who have; maybe others who have done it. It will
not be me. But 39 means he is a professional practitioner before the
Supreme Court, a student of the Supreme Court, so good that when anyone
else is preparing to make an argument for the Court, they want to have
a moot court practice before John Roberts because he knows how the
Court thinks, what the issues are, how the cases are handled.
I asked him to explain what a Chief Justice on the Court does and how
the Supreme Court works. He explained in great detail about how cases
are tried in the trial courts, the U.S. district courts, how every word
is written down. They have juries. They have lawyers who argue the case
before the juries. The judge makes rulings on the law and the evidence.
After the case is over, a transcript is prepared. If someone wishes to
appeal, they do so, and they point out what in that record is in error
and argue that the case should be reversed or some other remedy. They
go first to the court of appeals, such as where Judge Friendly served.
We have 11 circuit courts of appeal and the DC Circuit in the United
States. They review the record. The lawyers argue why this transcript
proved a judge committed error or error occurred. They argue why the
case should be affirmed or not affirmed. They submit briefs on that,
citing the record and the detailed facts, and why they believe their
views should be affirmed. It goes up that way. They have oral
arguments. Then the court of appeals judges meet, discuss it, and they
render a written opinion. Then if someone is not happy with that, they
can appeal to the U.S. Supreme Court.
All of this is already prepared before it gets to the judge. They
have oral arguments, and then they have briefs. Then friends of the
court submit briefs and everybody can submit briefs.
The PRESIDING OFFICER. The time reserved for the majority has
expired.
Mr. SESSIONS. Madam President, I ask to have 1 minute to wrap up.
Mr. LEAHY. No objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. They meet with their fellow judges, they read the law
and the transcripts, and they make a decision after all of that.
I asked him, isn't that why, Judge Roberts, you ought not to
blithely, here in this Senate committee room, start expressing opinions
on cases when they have not had all the study in advance to clarify the
issues?
He answered that yes.
Madam President, I see the distinguished ranking member of our
committee, Senator Leahy. I will note he has worked hard to make sure
that every opportunity has been presented on his side. He had every
question answered. He got extra time for people who wanted extra time.
But after hearing it all, I think he made the right decision in his
choice to vote for Judge Roberts. He was an effective advocate for his
views of his members and at the same time I think he made an
independent decision that I respect. I enjoyed working with him and I
think we did a pretty good job with these hearings--although my
daughter told me not long ago, she said: Daddy, it was pretty clear who
the brightest bulb in that room was, and it was not the Senators.
I yield the floor.
The PRESIDING OFFICER. Under the previous order, the time from 2:30
until 3:30 p.m. will be under the control of the Democratic leader or
his designee.
The Senator from Vermont.
Mr. LEAHY. Madam President, we are beginning our debate today on the
Roberts nomination. We know the vote will not come today, but I urge
Members for him and against him to come and speak. I say that because
there are very few decisions we face here in the Senate that are as
consequential or as enduring as the one we face today. Few in our
Nation's history have served as Chief Justice of the United States. It
is a unique and significant position. Once one assumes it, he or she
holds it for life. To put that in perspective, we have had 43
Presidents. We have only had 16 Chief Justices of the United States.
I explained last week why I was supporting John Roberts's nomination
to be Chief Justice. It was neither an easy decision nor was it a
hurried decision. But it was a decision that my conscience led me
toward.
I thank Senators Reid, Kennedy, Kerry, Bingaman, Boxer, Pryor, Obama,
Nelson of Nebraska, and others for their thoughtful remarks these past
few days. I commend to the Senate each of the statements on both sides
made in the Judiciary Committee meeting on Thursday.
I must say, as the Democratic leader of that committee, I believe the
Democratic Senators distinguished themselves by the thoughtful manner
in which they proceeded. The hearing record upon which the Senate can
draw in making this decision is as full as it is largely through their
diligence. Now each Senator has to carefully weigh this question and
decide it for himself or herself.
Regardless of how Senators decide to vote on this nomination, the
Democratic members of the Judiciary Committee can all be proud that we
have done our job, we have fulfilled our constitutional responsibility
to fully, fairly, and openly review this nomination on its merits. For
that I thank them all.
I note that it is true that Democratic Senators are not all voting in
lockstep. Each Senator individually gave this nomination serious
consideration. They each honored their constitutional duty and their
obligation to the American people in reviewing this nomination.
Democratic Senators kept open minds throughout this process, unlike
some partisan cheerleaders who rallied to endorse the White House
decision long before the first day of hearings opened. I urged my
colleagues on this side of the aisle to wait until we had the hearings
before they made a decision either for or against the nominee. I
thought that was the most responsible thing for any Senator to do.
I have served in the Senate for more than 30 years, much of that time
on the Judiciary Committee. This is the 11th Supreme Court Justice
nomination on which I cast my vote. I am one vote out of 100, but I
recognize that those 100 of us privileged to serve in the Senate are
entrusted with protecting the rights of 280 million of our fellow
citizens. Just think for a moment, the Chief Justice is there to
protect the rights of all 280 million Americans. Only 101 Americans can
have a say in who is going to be Chief Justice: The President, of
course, with the nomination, and then the 100 Members of the

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U.S. Senate who have to stand in the shoes of 280 million Americans.
There is no entitlement to confirmation for lifetime appointments on
any court or any nomination by any President, Democratic or Republican.
Americans deserve a Supreme Court that acts in its finest tradition as
a source of justice. The Supreme Court must be an institution where the
Bill of Rights and human dignity are honored, preserved, and protected.
As I considered this nomination, I reflected on the hearings and my
meetings with Judge Roberts. While I believe Judge Roberts should and
could have been more forthcoming, I was encouraged by some of his
answers to my questions both at the hearings and during our nearly 3
hours of face-to-face meetings.
I took Judge Roberts at his word when he gave the committee
assurances that he would respect congressional authority. His steadfast
reliance on the Supreme Court's recent Raich decision as significant
precedent, contravening further implications from Lopez and Morrison,
was intended to reassure us that he would not join in what has been a
continuing assault on congressional authority. I heard him and I rely
on him to be true to the impression he created. To do otherwise would
greatly undermine Congress's ability to serve the interest of
Americans, to protect the environment, to ensure equal justice, and to
provide health care and other basic resources that are so vitally
important to some of our neediest citizens. I think he knows that now.
I was also struck by Judge Roberts's admiration for Justice Robert
Jackson and for Justice Jackson's protection of fundamental rights,
including the right of unpopular speech under the first amendment. We
all know we don't have to fight to protect popular speech. It protects
itself. We have to fight to protect unpopular speech under the first
amendment. Justice Jackson's protection of unpopular speech, and his
willingness to serve as a check on Presidential authority, are among
the finest actions by any Justice in our history.
I expect Judge Roberts to act in the tradition of Justice Jackson and
serve as an independent check on the President. When he joins the
Supreme Court, he can no longer simply defer to Presidential authority.
We know we are in a period in which the executive has had a complicit--
and I believe compliant--Republican Congress that has not served as an
effective check or balance. Without the Court to fulfill its own
constitutional role as check and balance, excess will continue; the
balance will be further tilted.
Justice Roberts said he went to law school because of his love of the
law and the rule of law. I was struck by that comment. I was struck by
it because it was the same thing that motivated me when I entered
Georgetown Law School here in this city. The purpose of the law is to
serve justice. A Justice on our highest Court needs to know in his
core, in his entire being, that the words engraved in the Vermont
marble on the Supreme Court building are not just ``Under Law'' but
``Equal Justice Under Law,'' and that under our great national charter
it is not just the rule of law that a Justice must serve but the cause
of justice. The rule is there so we can serve the cause of justice.
As Chief Justice, John Roberts will be responsible for the way in
which the judicial branch administers justice for all Americans. I was
encouraged that he said he would provide a fifth vote in staying an
execution when four other Justices voted to review a capital case.
Effective judicial review is all the more important in an era in which
so many innocent citizens have been sent to death row.
I respect those who come to different conclusions about this
nomination. Actually, when I listened to those who came to different
conclusions, I readily acknowledge the unknowable at this moment.
Perhaps they are right and I am wrong. Only time will tell. But in my
judgment, in my experience, especially in my conscience, I find it
better to vote ``yes'' than ``no.'' My Vermont roots, which are deep
and cherished in my family, have always told me to go with my
conscience and that is what I have done in this decision.
Judge Roberts is a man of integrity. For me, a vote to confirm
requires faith that the words he spoke to us had meaning. I take him at
his word that he does not have an ideological agenda and that he will
be his own man as Chief Justice. I take him at his word that he will
steer the Court to serve as an appropriate check of potential abuses of
Presidential power. I hope and trust he will.
This nomination process we complete this week provides some important
lessons for the President as he renews his efforts to select a
successor to Justice O'Connor. Last week Chairman Specter--I might add,
parenthetically, a chairman who ran a superb hearing in the best
tradition of the Senate, making sure that both Republicans and
Democrats were heard and that questions were asked--and I, along with
the Republican and Democratic leaders of the Senate, met with President
Bush. I urged him to follow through with meaningful consultation this
time, to share with us his intentions, and to seek our advice before he
chooses; to use both parts of the advice and consent clause of the
Constitution.
I remain concerned by the administration's lack of cooperation with
the Senate on Judge Roberts's nomination. We did start off well with
some early efforts at consultation. I praised the President for that.
But then those early efforts didn't result in meaningful discussions.
The President's naming of Judge Roberts, first to replace Justice
O'Connor and then swapping that for the vacancy left by Justice
Rehnquist, came as a surprise both to Republicans and Democrats, not as
a result of meaningful consultation. I believe there could and should
have been consultation with the Senate on the nomination of someone to
serve as the 17th Chief Justice of the United States, and I am sorry
there was not. Many other Senators, including many Republican Senators,
have offered similar advice.
Chairman Specter has appropriately counseled that the next nominee
should be someone who promotes stability on the Court, much like
Justice O'Connor. Senator Graham urged the President to listen to
Democrats and what we have to say as he considers his next nominee.
What we are saying could easily be summed up by quoting the President's
campaign promise. We are asking him, in this case especially, to be a
uniter, not a divider, for the sake of the country--not for the sake of
the 100 Senators but for the sake of the country.
I thought the White House did not help the Roberts nomination by
withholding information that has traditionally been shared with the
Senate. The Administration treated Senators' requests for information
with very little respect for the constitutional role the Senate is
expected to fulfill in this process. Actually, the Administration
stonewalled entirely the very narrowly tailored request for a very
small number of important work papers from John Roberts's time as the
principal political deputy to Kenneth Starr at the Solicitor General's
Office. This decision did not help the nominee. I suspect he could very
easily have answered questions about those papers. But the choice was
taken out of his hands, and the choice was made at the White House.
That should not be allowed to establish a new standard because it
would override the precedent from Chief Justice Rehnquist's hearings
and others. Previous Presidents have had the appropriate respect for
the constitutional process and worked with the Senate to provide such
materials.
I urge the Administration to go back to precedent, to work with us
and cooperate on future nominations.
Finally, some Republican Senators did not help the confirmation
process by urging the nominee not to provide fuller answers during the
course of the hearings.
I say that because, again, I remind all Senators, it would be the
same thing whether it was a Democratic President who made nominations.
No matter who makes the nomination, Democratic President or Republican
President, we are the only 100 people in this country out of 280
million Americans who get to vote on the nomination and we should not
start off by asking a nominee or telling the nominee not to answer any
questions.
I can't imagine too many of our constituents would like that. I know
thousands of questions were mailed in by Americans from all over who
would

[[Page S10406]]

have liked to ask questions, and they could not be asked.
These hearings which we hold in the Senate are the best and only
opportunity for the American people to hear from the nominee on
important issues that affect all of us. The hearings we hold are the
best and only opportunity to hear directly from the nominee about his
or her judicial philosophy.
The President asked for a dignified process and an up-or-down vote.
That is what we accomplished in the Judiciary Committee. With the
Senate vote this week, we will complete our action and grant the
Senate's consent. The hearings were dignified and they were fair.
Chairman Specter has every reason to be proud of what the committee
accomplished under his leadership.
And I must say, I was personally very humbled by what the Democratic
leader, Senator Reid, said about the senior Senator from Vermont this
afternoon on the Senate floor. I appreciate hearing that from my dear
friend, Senator Reid.
With the benefit of lessons learned from this nomination, the
President is facing a new opportunity to unite this country around a
nominee to succeed Justice O'Connor.
I hope the President and those around him are listening this
afternoon.
Now more than ever--with Americans fighting and dying in Iraq every
day, with hundreds of thousands of our fellow Americans being displaced
by disasters here at home--now more than ever is the time to unite
rather than divide this Nation. The Supreme Court belongs to each and
every American, not to any political party or any faction. For our
country's sake, for the sake of all Americans, no matter what their
politics might be, I urge the President to make a choice that unites us
and doesn't divide us.
I will have more to say as the week goes on.
I see the distinguished Senator from Maryland in the Chamber. I yield
to her such time as she may need.
The PRESIDING OFFICER. The Senator from Maryland.
Ms. MIKULSKI. Thank you, very much.
Madam President, I rise today to address one of the most significant
and far-reaching decisions a Senator makes--the vote on the
confirmation of a Supreme Court Justice.
This vote will have an immense impact on current and future
generations, because we are voting on a person who will lead the Court
for the next 20 years.
I compliment Chairman Specter and Ranking Member Leahy for the way
the whole process within the Senate was conducted.
I think we owe to the President, as well as to the nominee, a
dignified process that focuses on intellectual rigor, substantive
discussion, and plain good manners. I believe overall that process was
indeed dignified and open.
This vote is crucial. A Senator is only called upon to make two
decisions in our career that are either irrevocable or irretrievable.
One is the decision to go to war. Once we vote to go to war, to put our
troops in harm's way, we cannot say a day later, Oops, we changed our
minds or, 6 months later, cut off the money. Once they go, they go, and
we have to stick with them.
The other is the confirmation of members of the Supreme Court. Those
are lifetime appointments, and they can only be removed for an
impeachable offense, to be tried here in the Senate.
So this decision is among the top two that we are called upon to
make.
We make budget decisions, and we can change it later. We make a
legislative decision--most of our legislation is for 3 years'
authorization we can always change it. But not this decision.
The people of Maryland have entrusted me with the right to make this
decision, and I take it seriously. I really pondered this and what I
thought about this nomination. Two of my main questions were: No. 1,
what will it mean for the fundamental constitutional liberties that has
meant so much to so many? And two, what will a Chief Justice Roberts
mean to our future?
After a thorough and careful review of his record and his testimony,
I must state now that I will oppose the confirmation of Judge Roberts
to be the Chief Justice.
I do so because I have too many doubts about the direction a Roberts
Court will take us--persistent, nagging doubts about his positions on
nondiscrimination, and the right of privacy in personal decisions, and
in public policy.
On nondiscrimination, I just couldn't get to what his views were. Is
it thorough? Is it broad? Is it narrow? On the issue of privacy, his
views sounded eerily like those of Clarence Thomas's that were given to
reassure us, only to find that they are not what we heard.
On the issue of discrimination, I am looking at very specific issues
such as the Voting Rights Act, Americans with Disability Act, title IX,
which has meant so much to combat gender discrimination in education.
And, of course, on the right of privacy. What will this mean for
personal decisions related to a woman's reproductive choice, or public
policy in terms of where we are going to safeguard our records and
safeguard ourselves.
When I decided how I would vote on the nominee, I looked at three
threshold criteria: One, is the nominee competent? Second, is the
nominee a man of integrity?
I believe every Senator knows, having both met Judge Roberts and from
also reviewing his background, he is competent. He is endorsed by the
American Bar Association. I also truly believe he is a man of personal
integrity.
But what about the nominee protecting core constitutional values and
guarantees that are central to our system of government? I really do
not know the answer to this question.
Based on his writings and his testimony, as I said, I am left with
these persistent doubts about whether he will safeguard civil rights,
the right to privacy, and equal protection under the law.
I have approached this nomination very seriously. I have approached
it with an open mind and an open door.
I have personally met with Judge Roberts. I found him to be very
intelligent, to be very affable. Although he is personally appealing,
personal demeanor is not synonymous with personal philosophy. Personal
demeanor is not synonymous with judicial philosophy. It is not his
demeanor that we are voting on. We are voting on what will his judicial
philosophy mean to the Court, and particularly with his being its Chief
Justice.
When I looked at the hearings, they occurred as I was moving my
Commerce-State-Justice bill. I put in a couple of shifts, which I know
the Presiding Officer does as well--one shift being here in the Senate
with my colleague, Senator Shelby, getting an appropriations bill
through, and then I would go home and do a second shift and watch the
Roberts hearings on C-SPAN so that I could hear his words personally
about those answers.
Then, after listening to the hearings, I reviewed the testimony. I
reviewed his writings and I also reviewed the testimony of others.
I was disappointed that we didn't have access to documents from 16
cases that he prepared while he worked for Solicitor General's office
in the previous Bush administration, which would have given us insight,
even though similar documents were given when Justice Rehnquist was
nominated.
I tried to get insight into his legal reasoning and judicial
philosophy.
Is he smart? Yes. Is he experienced? Yes. As a young man, was he flip
and a bit cheeky? The answer is yes. But put me in that column, too. I
understand that. We all mature. But as we mature, we sometimes distance
ourselves from those remarks. Yet Judge Roberts did not distance
himself from those remarks.
I was puzzled by it. I did not quite understand it. I read and
pursued it further.
In the hearings, he had the opportunity to let us know whether he
would ensure personal rights, but he didn't clear up the uncertainty.
He didn't back away from his record and his writings. He wouldn't tell
us if he shared the views of his clients. Again, he left too many
doubts about whether he will safeguard the rights that Marylanders and
all Americans rely on each day.
He did say that he would follow the rule of law. I believe that. But
you

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know, coming to a decision in the Supreme Court, unlike the lower
court, is not necessarily only following the law. It is not a
mechanical decision. It is not like punching in a legal question, you
go to the 15 precedents and out comes the printout. This is
interpretation of the law at the highest level. And the Supreme Court
has the authority to create precedent, not only follow precedent.
So I couldn't get to where Judge Roberts was going. Take an example
such as civil rights. One of the most important civil rights is the
right to vote--cherished, fought for both through social movements and
our wars. Yet Judge Roberts left me with serious doubts.
One of the most compelling testimonies during the hearing was that of
Congressman John Lewis. He was a hero of the civil rights movement. He
marched side by side and hands on with Dr. Martin Luther King Jr. When
John Lewis speaks, we listen. He raised questions about whether Judge
Roberts would support the basic guarantee of the Voting Rights Act, the
law that ensures every citizen may vote and that there should be no
barriers, no publicly sanctioned barriers to participation in the
voting process. Yet as a young lawyer in the Reagan administration,
Roberts held a very restrictive view.
John Lewis spoke about section 2 of the Voting Rights Act, which is
an important section because it seeks to remedy not only intentional
discrimination and barriers to participation but also the effects of
discrimination on under represented groups.
Judge Roberts held a very restrictive view, as I said. He argued that
only intentional discrimination violated the law.
If that argument prevailed, it would have made it impossible to
change discriminatory voting practices that stood in the way of African
Americans voting and holding elective office.
Let us take the poll tax, for example, a repugnant and despicable
practice that has now been outlawed. The poll tax was a barrier that
prevented African Americans from voting. But what could we do? Look at
one person at a time? No. Section 2 bars it, because it was a
discriminatory practice that affected a whole group of people.
During the hearings, Judge Roberts could have clarified or changed
his views.
Yet he said nothing to distance himself from that very narrow
legalistic viewpoint that would have maintained barriers to
participation, and we have no idea what principles he might apply to a
case that would come before the Court like, for example, on the so-
called voter verified paper trail. We do not know today where he stands
on such important voting rights issues.
Now to disability rights. He left doubts about whether he would
provide disabled Americans with guarantees under the law for equal
opportunity, particularly to education. Again, going back to being that
lawyer in the Reagan administration, he wrote a memo attacking a
Federal court decision that would have provided a deaf child with
learning tools. He thought this was too burdensome on the local school
system, local government and, therefore, the State. He believed that
States should not be required to provide these same equal opportunities
to handicapped children and that the burden it placed on the states had
to be evaluated. He called the lower court's decision an activist one.
What would this mean for disabled children? What would this mean for
his interpretation of the Americans with Disabilities Act? This raises
doubts for me as to if he would apply a cost-benefit analysis to other
areas of discrimination. Certainly when we look at disability and the
equal opportunity or an opportunity for education, we have to look at
the benefit, not at the cost.
And now title IX. That has changed the face of American scholarships
and of American sports. Title IX, for those who might not be familiar
with it, prevents gender discrimination in education. It says that
schools that receive Federal funds can't treat men and women
differently. That means there has to be parity--not sameness but
parity--in the number of sports programs, access to classes, and
opportunities for scholarships. That meant there had to be girl's
soccer teams at college just like there were boy's football teams; that
there had to be girl's lacrosse just like there was boy's lacrosse.
Let's take a look at what that has meant. It was phenomenal. All of a
sudden, girls were getting scholarships for basketball, for playing
lacrosse, and for playing soccer. Aren't we proud of what we have done?
We can only look at the Olympics and see our so-called ``all star''
basketball team lost to Puerto Rico, but our girl's team brought home
the gold. People such as soccer player Mia Hamm passed the torch to the
next generation, which will go on and win the gold and give us such
honor. That is what title IX meant. It meant if you wanted to go to
school and sports was your thing, you would not be restricted because
you were a girl.
In his writings, Judge Roberts argued that the only part of the
school receiving direct Federal aid but not the whole school would not
have abided by title IX protection. That would have meant schools could
discriminate in their athletics or scholarships even when another part
of the school got federal funds. In his testimony, he did nothing to
back away from this view.
What would the Roberts Court mean to millions of girls who now have
access to scholarships? What would this mean to thousands of girls who
right now this afternoon are heading for practice in middle school,
working at it in high school, and ready to go? In my own home State, we
are known for producing Olympic gymnastics stars, primarily out of
Montgomery County, stars such as Dominique Dawes. Right now at that gym
in Montgomery County are young girls working to either be able to go on
to the Olympics, or if they do not make the Olympic team, on to make
the college team. We should never close the door to that kind of heart
and soul and hard work because of gender. Where would the Roberts Court
be on that? Would he close that door? I am not so sure. That is why I
come back to these nagging doubts.
Finally, in the area of the constitutional, protected right to
privacy, I appreciate Judge Roberts speaking on the right to privacy.
He certainly said more on it than some other nominees have. Yet what he
said does not tell us what he thinks about how far the right of privacy
extends. He said he supported Griswold. Griswold upheld the right of
married couples to buy contraception. Connecticut banned the sale of
contraception to married couples. So under the right of privacy, the
Supreme Court said that if you are married, you have the freedom to buy
family-planning mechanisms.
In many of his answers, he sounded as if he was assuring members that
the right of privacy is settled law, stating that ``I believe in
precedent,'' et cetera. But many of these answers sounded like Clarence
Thomas, eerily like Clarence Thomas. Thomas said there is a
constitutional right to privacy. He did not say how he would apply it
to the most personal choices or what it would mean to public policy.
Since Clarence Thomas has gone to the Supreme Court, we know he does
not quite follow what we thought he was assuring us he would. In fact,
I don't know if Judge Thomas really supports the right of privacy in
the Constitution.
Roberts followed the same script. He refused to clarify his previous
dismissal of Roe v. Wade, nor would he elaborate on what the right to
privacy includes. What would that mean to the future of reproductive
rights? What would that mean to privacy rights in general?
This is important because I am voting not only about today, I am
voting about tomorrow. If Mr. Roberts is confirmed at age 50, he will
be on the Court for the next 20 or more years. And we wish him good
health. But just think how profoundly society has changed with the
internet and information technology. Where we were 20 years ago. Where
was the Internet 20 years ago? We did not have laptops; laptops were
big boxes. What about 30 years ago? What was the computer? They were
big machines in big warehouses.
Twenty years ago, we would not have thought about privacy rights in
this context. But now, because of the Internet and computerization, we
think about all the issues related to our right of privacy. Think how
they can plunge in with your financial records, your medical records,
the so-called data-

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mining where they know everything about you and find out all your
moves. Who do you want to have access to that? Who do you want to
protect your basic rights?
What will technology mean 20 years from now? What will that
technology mean in terms of right of privacy? How do we need to protect
our privacy?
Today have a national debate on privacy, the right for security of
our country versus our own personal privacy. The right of search. The
right, literally, of intrusion in our records. The PATRIOT Act would
give us some sets of rules; the ACLU would frown on others. It is
likely many of these decisions will go to the Supreme Court. Where will
those decisions be made? They have to be made to serve the national
interest but also to serve the principles of the Constitution. I am not
dictating what the decision should be, but I can dictate who I want on
the Supreme Court to listen to that delicate balance between preserving
the security needs of our country with one's ability to be left alone
from the intrusions of government.
How would Judge Roberts apply the right of privacy in a world where
all our most personal health and financial records can be easily stored
and shared?
So here we are now at this decision point. As I have looked at this,
I have too many doubts about what Judge Roberts will mean for the
Supreme Court--caused by what he said and what he didn't say. I believe
the American people were entitled to know what he thinks. The American
people are entitled to know if judge Roberts will be a protector of
their most basic and fundamental rights. I would have been more
comfortable if in any way he would have said how he was different from
that young, cheeky lawyer trying to write up attention-getting briefs.
Something that would have moved him to say: Oh, that was my client, not
me. I never wanted him to say how he would rule on cases in the future
or any pending before the Court. But I would have liked to have known
who is this man for whom I am voting. What he believes is what he is
and it will shape the Supreme Court for the next 20 years.
Several times, I came right up to the threshold. As I said, there are
many magnetic aspects about the Roberts nomination, but at the end of
the day and after careful review, I have too many doubts about his
commitment to nondiscrimination, the right of privacy, and equal
protection under the law. So when my name is called for this
nomination, I will vote no.
I suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Sununu). The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DORGAN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DORGAN. Mr. President, I ask unanimous consent to speak as in
morning business for a few minutes.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
(The remarks of Mr. Dorgan are printed in today's Record under
``Morning Business.'')
Mr. DORGAN. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Ms. SNOWE. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Under the previous order, the time from 3:30 to 4:30 will be under
the control of the majority.
The Senator from Maine is recognized.
Ms. SNOWE. Mr. President, I rise today to speak to the nomination of
Judge John G. Roberts, Jr. to be the next Chief Justice of the United
States of America. After a careful and considered review of his
testimony before the Senate Judiciary Committee, his overall record,
and a personal meeting with Judge Roberts in July, I have concluded
that Judge John Roberts should be confirmed as the 17th Chief Justice
of the United States.
I first want to express my deepest gratitude to my good friend and
colleague, Senator Specter, who--as Chair of the Senate Judiciary
Committee--was extraordinary in leading the nomination process to fill
the first Supreme Court vacancy in 11 years, the longest such interval
since the administration of President James Monroe 181 years ago.
Together with Ranking Member Leahy, Senator Specter ensured a thorough,
rigorous, and civil examination of the individual who now comes before
the full Senate for a confirmation vote.
I have not arrived at my decision lightly. It has been said that, of
all the entities in government, the Supreme Court is the most closely
identified with the Constitution and that no other branch or agency has
as great an opportunity to speak directly to the rational and moral
side of American character, to bring the power and moral authority of
government to bear directly upon the citizenry.
The Supreme Court passes final, legal judgment on many of the most
profound social issues of our time. The Court is uniquely designed to
accept only those cases that present a substantial and compelling
question of Federal law, cases for which the Court's ultimate
resolution will not be applied merely to a single, isolated dispute
but, rather, will guide legislatures, executives, and all other courts
in their broader development and interpretation of law and policy.
In the end, ours is a government of both liberty and order, State and
Federal authority, and checks and balances. The remarkable challenge of
calibrating these fundamental balance points is entrusted, ultimately,
to the nine justices of the Supreme Court of the United States.
To help meet the extraordinary challenges of this role, any nominee
for the Court must have a powerful intellect, a principled
understanding of the Court's role, and a sound commitment to judicial
method.
Moreover, the nominee for Chief Justice must also, among other
leadership skills, engender collegiality and respect among all of the
justices in order to facilitate the consensus of majority, command the
respect of lower Federal courts, and faster cooperation with the
States' highest courts. And the nominee must have a keen understanding
of, and a disciplined respect for, the great and tremendous body of law
that precedes them to warrant our consent.
These are the threshold qualifications against which a person chosen
by the President of the United States to serve as just the 17th Chief
Justice of the United States must be measured. And all the more so when
our Nation would undoubtedly bear the mark of the nominee for decades
to come.
Indeed, given the age of this particular nominee, it is not
unreasonable to conclude that John Roberts may indeed serve longer than
Chief Justice Marshall, who--with his 34 year tenure--still stands as
our longest serving Chief Justice. If confirmed, Judge Roberts could
well directly impact the Nation for a half century and for decades
beyond. He would conceivably be entrusted with the ``care of the
constitution'' for the next 40 years.
It is against the backdrop of this reality that we also evaluate the
record of Judge Roberts. And from a professional standpoint, it is
clear that Judge John Roberts is one of the most highly-qualified
individuals ever to be nominated for the Supreme Court, given his
experience clerking for both the Second Circuit Court of Appeals and
the Supreme Court, and serving as counsel to a President, Attorney
General and Solicitor General and given he is one of the most respected
lawyers in the Nation who has argued 39 cases before the Supreme Court
and currently serves on the second highest court in the land with
unanimous consent of this Chamber just a few years ago. So I applaud
the President for selecting an individual who indisputably possesses
the professional credentials to serve as Chief Justice.
Concurrently, however, I believe there are four additional threshold
qualifications that are critical to assess and evaluate the nominee.
They are judicial temperament, integrity, methodology, and philosophy,
and by their nature, are more challenging to measure. That is why I
have arrived at my conclusions based on a thorough analysis of the
complete and accumulated record accompanying Judge Roberts's
nomination.

[[Page S10409]]

With regard to the matter of judicial temperament, the members of the
Judiciary Committee rightly and vigorously questioned the nominee on
the tone and content of memoranda he authored as counsel to the Reagan
administration in the 1980s.
Because these memos presented opinions on such critical issues as
civil rights, the right to privacy, and gender equity--including a 1984
memorandum regarding a letter I initiated as a member of the U.S. House
of Representatives requesting the Administration not to intervene in a
Federal court decision on the matter of women receiving lower pay
because they often work in different jobs than men--I would have
welcomed a more direct and forceful refutation of these documents.
At the same time, Judge Roberts did testify that, ``Of course gender
discrimination is a serious problem. It's a particular concern of mine
. . . and always has been. I grew up with three sisters, all of whom
work outside the home. I married a lawyer who works outside the home. I
have a young daughter who I hope will have all of the opportunities
available to her without regard to any gender discrimination . . .''
Further, when probed about memoranda on vital civil rights issues,
Judge Roberts's stated to the committee that he believes Congress has
the power to guarantee civil rights for all Americans.
As an example, when he was asked, ``Do you believe that the Court had
the power to address segregation of public schools on the basis of the
Equal Protection Clause of the Constitution?'', Roberts responded,
``yes''. And when questioned by Senator Kennedy, John Roberts agreed
with the approach taken by Justice O'Connor in upholding an affirmative
action program within a university's admissions policy.
With regard to the right to privacy, in responding to concerns that
he characterized this fundamental right as a ``so-called right to
privacy'' in one Reagan administration memorandum, Judge Roberts
testified that he does believe the Constitution guarantees such a
right, that he was representing the administration's views in his
memorandum, and he elaborated that this right emanates from at least
five different sources--the first, third, fourth, fifth, and fourteenth
amendments--with the due process clause of the 5th and 14th amendments
applying substantively as well as procedurally with respect to the
right to privacy.
To quote Judge Roberts: ``There's a right to privacy to be found in
the liberty clause of the 14th Amendment. I think there is a right to
privacy protected as part of the liberty guarantee in the due process
clause. It's protected substantively.'' And specifically, he testified
that he ``agree[d] with the Griswold Court's conclusion that marital
privacy extends to contraception'' and agreed with the later Eisenstadt
decision that confirmed this right for unmarried couples as well.
And finally in regard to the qualification embodied by judicial
temperament, Judge Roberts offered the committee that some of the
memoranda in question owed their content to a more youthful discretion
some 25 years ago and that others merely reflected the views of his
clients.
In the end, whatever one takes from the universe of exchanges before
the committee, I have concluded that the combination of this testimony
with the judge's current reputation among lawyers and peers for
discretion, modesty, and humility is the more accurate and
contemporaneous measure of the man whose name stands before us today.
And that conclusion is buttressed by an examination of another of the
threshold qualifications--judicial methodology--which directly reflects
a judge's commitment to the essential tenets of fairness and judicial
integrity.
In making this assessment, it is most instructive to consider the
emphasis Judge Roberts has placed on judicial process in adjudicating
cases. Rather than a ``top down'' approach wherein a decision is made
and then the opinion is written to support that position, Judge Roberts
has espoused a ``bottom up'' approach to decision-making--meaning that
he will work through the specific facts and law of each case, and then
arrive at a conclusion based on that analysis.
As regards judicial integrity, I believe we can all agree it is
absolutely essential that a judge be fair and open minded. Our citizens
simply must have confidence that a judge who hears their legal claims
does not do so with a closed mind.
A judge must be truly committed to providing a full and fair day in
court, and to arriving at decisions based on the facts and applicable
law, not on any personal agenda or ulterior motive. For it is when the
latter occurs that the public justifiably loses faith in the
independence and fairness of our courts.
I conclude that no such faith should be lost here with Judge Roberts.
He is, by all accounts, a man of sound character whose integrity is
widely respected by Democratic and Republican lawyers alike.
To illustrate the essence of his judicial integrity, I recall during
the course of our meeting in July that he indicated it was not uncommon
for him to author an entire legal opinion before reaching the
conclusion that the reasoning was wrong leading him to a different
decision.
He also spoke at length about his year as a law clerk to the late
Judge Henry Friendly of the Second Circuit, one of the most respected
legal minds of our time, and a mentor and legal role model for Judge
Roberts.
He recounted how Judge Friendly was assigned the duty of writing an
opinion for the three judge panel that heard a certain case. But once
Judge Friendly began trying to write what was supposed to be the
majority opinion, he realized that the reasoning behind the ruling
simply was not sound.
So after a number of failed attempts, Judge Friendly finally
circulated a folder to each of this colleagues containing two opinions,
with this note attached,--``The first opinion fulfills my obligation
for writing the majority opinion. The second is my dissent in the
case.'' Judge Friendly's ``dissent'' was so persuasive that it
ultimately became the majority opinion.
Again, this is reflected in Judge Robert's approach that is
demonstrated in his methodical writings and decisions.
While serving on the DC Circuit Court of Appeals between 2003 and
2005, John Roberts wrote opinions in 49 of 169 cases. And his final
rulings in those 49 cases bear the very balance of his analysis. For
example, he has ruled both for and against the government, both for and
against corporations, and both for and against labor unions.
Moreover, he has shown a capacity for consensus, writing separately
in only 7 of the 169 cases before the Circuit Court. This record of
collegiality would bode well for the current Supreme Court which can
benefit from more consensus opinions.
And of the 49 opinions Judge Roberts authored, only seven were
appealed to the Supreme Court and all seven were denied. Again, all of
these facts stand in testament to the meticulous methodology and the
``bottom up'' approach followed by Judge John Roberts.
I recognize that some believe that the fourth and final threshold
qualification I referenced--the matter of judicial philosophy--should
be a factor for Presidents, but it should not be one the Senate
considers in its confirmation process. I respectfully disagree.
In my view, the Senate must also consider the nominee's sense of the
limits and horizons of the great promises of our Constitution, and of
the nominee's specific view of the proper role of the Supreme Court in
deciding whether to take such cases and, if so, the method used to rule
upon them.
The inquiry into Judge Roberts' judicial philosophy assumed
particular significance for all of us who value the Court's landmark
rulings. Decisions protecting the rights of privacy, of civil rights,
and of women seeking equal protection in the workplace--just to name a
few--comprise an important and settled body of the Court's case law.
Entire generations of Americans have come to live their lives in
reliance upon the Court's rulings in these key areas, and overruling
these precedents would simply roll back decades of societal advancement
and impose substantial disruption and harm.
Therefore, central to the question of a nominee's judicial philosophy
is his views on one of the cornerstones of jurisprudence, and that is,
judicial precedent. Because it was once said--by a

[[Page S10410]]

Professor Walter Murphy--the Court is bound by the ``wisdom of the
past, not the free choice of the present.''
On this vital matter, John Roberts has firmly stated to me his belief
that precedent plays a crucial role in the judicial process, and the
fact, a precedent has been directly challenged and upheld deserves
respect from the Court.
In the course of our July meeting, John Roberts expressed to me that
judges must keep in mind that they are not the first ones to address
most legal issues that arise, and that stability in the law is key to
maintaining the legitimacy of the courts. When I solicited his thoughts
with respect to, Chief Justice Rehnquist's decision in the Dickerson
case to uphold the Miranda decision even as the Chief Justice Rehnquist
opposed Miranda itself, John Roberts concurred with the Chief Justice's
principled deference to the doctrine of precedent.
As Judge Roberts later indicated to the judiciary committee:

I do think that it is a jolt to the legal system when you
overrule a precedent. Precedent plays an important role in
promoting stability and evenhandedness . . . It is not enough
that you may think the prior decision was wrongly decided.

Furthermore, Judge Roberts is on record stating that nothing in his
personal beliefs, including his religion, would prevent him from
faithfully applying the laws of our land. As well, he indicated that
nothing in his personal views would prevent him from applying Supreme
Court precedent as governed by the doctrine of stare decisis.
Thus, he acknowledged the crucial interest by the doctrine of stare
decisis to promote stability and predictability, and therefore respect
for the law. This commitment to stare decisis takes on, of course, a
special significance for this issue of privacy that I and so many
Americans accept and embrace as a basic and established right. So,
essentially, with regard to a landmark case such as Roe v. Wade, Judge
Roberts has outlined the process he would apply in reviewing such a
challenge.
Specifically, Judge Roberts explained, that, in essence, Roe is
buffered by the Casey decision, which affirmed the essential holding of
Roe and therefore serves as the more immediate precedent of the Court.
And he responded to Senator Specter that Roe is ``settled as a
precedent of the court, entitled to respect under principles of stare
decisis. And those principles, applied in the Casey case, explain when
cases should be revisited and when they should not. And it is settled
as a precedent of the court, yes.''
Mr. President, given the totality of the record before us, I have
concluded from his testimony regarding both his judicial methodology
and his judicial philosophy that Judge Roberts is not predisposed to
overturning the settled precedent represented by Roe. Obviously, none
of us can know with certainty how Judge Roberts would vote on any
particular case. But we can assess his methodology and analysis in
approaching cases, based on his responses to questions posed by the
committee throughout this confirmation process.
Finally, in meeting with Judge Roberts, I also expressed my view that
Justice Sandra Day O'Connor's approach on the Court epitomizes a
critical nexus between the decisions of the United States Supreme Court
and the ``real world'' impact of those decisions on the lives of the
American people. As Justice Frankfurter once wrote, the most
fundamental questions that arise from the Constitution are decided
``not from reading the Constitution but from reading life.''
That sense of perspective will be critical in fulfilling the enormous
responsibility Judge Roberts will have serving as Chief Justice. And
Judge Roberts has indicated in compelling terms that his approach is to
stand back and consider the larger implications of any future ruling
and I would encourage him to continue with that model on the Court.
It is not an exaggeration to suggest that Judge John Roberts has the
potential to become one of the preeminent Chief Justices in modern
times.
Of course, no Member of this body can forecast with 100 percent
accuracy the shape of the Supreme Court under John Roberts.
Nonetheless, in evaluating the universe of the threshold qualifications
I have outlined, the entirety of the legal and judicial record
regarding Judge Roberts points to a fair minded judge with deep respect
for the rule of law, the independence of the courts, and the judicial
method . . . a judge committed to stability in the law, and to the
established judicial principles for reviewing and upholding precedent.
There is little doubt that Judge John Roberts will have the
opportunity to author a legacy for America that will reverberate for
the ages. After intensive examination, it is my conclusion that the
totality of the record before us, has earned him the privilege of
writing that legacy as the next Chief Justice of the United States.
Thank you, Mr. President. I yield the floor.
The PRESIDING OFFICER. The Senator from Ohio.
Mr. DeWINE. Mr. President, the Constitution gives us a solemn duty
when it comes to the confirmation of an individual to sit on the U.S.
Supreme Court. While the President is to nominate that individual, it
is our duty in the Senate to decide whether to provide our consent.
When it comes to whether Judge John Roberts should be the 17th Chief
Justice of the United States, I have little trouble providing mine.
Judge Roberts is one of the most accomplished legal minds of his
generation. He has argued 39 separate cases before the U.S. Supreme
Court, and he served with great distinction for 2 years on the Court of
Appeals for the District of Columbia. He is certainly an eloquent
spokesman for the rule of law, and he has received a ``unanimously well
qualified'' rating from the American Bar Association, a rating that
specifically addresses his openmindedness and freedom from bias and
commitment to equal justice under the law.
I will vote to confirm Judge Roberts. I encourage my colleagues to do
the same.
I think it might be helpful for us to consider this afternoon what we
have learned about Judge Roberts over the past several months.
First, we have learned something about his judicial philosophy.
Judges should not make policy. They don't pass laws or implement
regulations. Instead, in the words of Justice Byron White, judges
simply decide cases, nothing more. Judge Roberts embodies this
philosophy.
During our hearing in the Judiciary Committee, he told us:

The role of the judge is limited. A judge is to decide the
cases before them. They are not to legislate. They are not to
execute the laws.

Time and again he repeated his belief that judges should play a
limited and modest role. During the confirmation hearings, he said this
to Senator Hatch, Senator Grassley, Senator Graham, Senator Cornyn, and
Senator Kohl. He told Senator Kyl:

Judges and Justices do not have a side in these disputes.
Rather, they need to be on the side of the Constitution.

Judge Roberts explained his philosophy clearly and, yes, in plain
English without using fancy words or resorting to long dissertations.
By the end of last week, there was little doubt where Judge Roberts
stood.
He believes that judges play a limited and modest role and, to use
his own words, ``judges and Justices are servants of the law, not the
other way around.''
Second, over the past several months, we have learned that the
American people share our view that Judge Roberts will be fair,
openminded, and modest as Chief Justice. We need to look no further
than the editorial pages of America's papers to know that Judge Roberts
has broad support.
The Los Angeles Times put it bluntly:

It will be a damning indictment of petty partisanship in
Washington if an overwhelming majority of the Senate does not
vote to confirm John G. Roberts, Jr., to be the next Chief
Justice of the United States. As last week's confirmation
hearings made clear, Roberts is an exceptionally well-
qualified nominee, well within the mainstream of American
legal thought, who deserves broad bipartisan support. If a
majority of Democrats in the Senate vote against Roberts,
they will reveal themselves as nothing more than self-
defeating obstructionists.

The Washington Post has offered a similar sentiment:

John G. Roberts, Jr., should be confirmed as Chief Justice
of the United States. He is overwhelmingly well qualified,
possesses an

[[Page S10411]]

unusually keen legal mind and practices collegiality of the
type an effective Chief Justice must have. He shows every
sign of commitment to restraint and impartiality. Nominees of
comparable quality have, after rigorous hearings, been
confirmed nearly unanimously. We hope Judge Roberts will
similarly be approved by a large bipartisan vote.

Papers from my home State of Ohio have also given Judge Roberts their
approval. The Akron Beacon Journal, a paper that endorsed Al Gore in
2000, and then John Kerry in 2004, called Roberts ``supremely
qualified.'' They went on to write:

Judge Roberts is eminently qualified. He has a sharp mind,
a sound temperament, and a keen understanding of the
collegiality required to run an effective Supreme Court.

According to the Cleveland Plain Dealer:

In selecting a leader for the U.S. courts, intellect and
probity are far more important than predictable political
philosophy. In the instance of John Roberts, it is difficult
to find, even among his most committed opponents, anyone who
will deny his intellectual superiority. His ethics are
unimpeached. He is, by all measures, a fair mind. There is no
reason to doubt that he will make an outstanding Chief
Justice.

The Dayton Daily News described Judge Roberts in straightforward
terms:

Ya gotta like the guy. Judge John Roberts' 3-day appearance
before the Senate was impressive. Facing a Judiciary
Committee full of people who obviously consider themselves
expert on constitutional issues, he displayed mastery. He was
familiar with just about any case the Senators could name. He
discussed not only their main thrusts, but their nuances. His
decency was as unmistakable as his brilliance and diligence.
He bears no ill will toward any group that Democrats in the
Senate are concerned about--minorities, women, working
people, handicapped people, the poor.

These sentiments in these papers are certainly echoed by many of my
constituents. For instance, Eric Brandt from Pataskala, OH, wrote in
strong support of Judge Roberts:

The citizens of this State and country deserve a fairminded
jurist who does not use the power of the bench to usurp the
elected voice of the people.

Robert Hensley from College Corner, OH, made a similar point:

I believe it is imperative we have judges who rule
according to our Constitution and not their own beliefs and
ideas. I believe John Roberts is such a man.

And Al Law from Perrysburg, OH, had this to say:

We need prudent jurists who understand the proper role of
the court, and [Judge Roberts] is such a man.

Clearly, these citizens saw what we saw during the hearings last
week. Judge John Roberts is a modest, decent, and fair man who actually
fully understands the limited role that judges should play in our
constitutional system of government.
Finally, over the past few months, we have heard from those
individuals who really know John Roberts the best. His colleagues in
the bar, Democrats and Republicans alike, have overwhelmingly supported
Judge Roberts' elevation to the Supreme Court.
As I mentioned earlier, the American Bar Association has given Judge
Roberts a rating of ``unanimously well qualified,'' its highest
possible rating. As Steve Tober, the chairman of the ABA Standing
Committee on the Federal Judiciary, explained, Judge Roberts has ``the
admiration and respect of his colleagues on and off the bench. And, he
is, as we have found, the very definition of collegial.''
We have also heard from Judge Roberts' friends and coworkers and
learned that they respect and admire him. Maureen Mahoney, former
Deputy Solicitor General of the United States, said Judge Roberts ``is
probably the finest lawyer of his generation.'' She described the
assistance he provided her in her own career, and testified from her
personal experience that he had an enduring commitment to providing
equal opportunity to women in the workplace.
Another example, Professor Kathryn Webb, a lifelong Democrat who said
that she does not support President Bush, nonetheless said that Judge
Roberts has her ``full and enthusiastic support.''
Bruce Botelho, the mayor of Juneau, AK, a self-proclaimed liberal
Democrat, offered his full support. The mayor worked closely with Judge
Roberts on several cases and described him as ``the most remarkable and
inspiring lawyer I have ever met.''
Finally, Catherine Stetson, a partner at Hogan & Hartson and a
longtime colleague of Judge Roberts, offered her praise as well. She
told us how Judge Roberts helped her transition back into the workplace
after the birth of her first child. According to Stetson, Judge Roberts
supported her in both of her roles as lawyer and as mother, ``and he
did it quietly and without fanfare.'' She explained how Judge Roberts
was instrumental in helping her become a partner at Hogan & Hartson,
despite the unfounded concerns of others that her obligations as a new
mother might interfere somehow with her ability to do the job.
All of these individuals have something in common. What they have in
common is they know Judge Roberts personally. They have seen him handle
cases. They have seen him deal with clients. They know him as an
individual. They know him as a human being. They have worked with him.
Each one of them supports his nomination to be the next Chief Justice
of the U.S. Supreme Court.
It is true that we have heard comments and some testimony from well-
intended individuals who oppose Judge Roberts, but I must say these
individuals do not know Judge Roberts the way Maureen Mahoney does,
they did not work with him the way Mayor Botelho has, and they have not
dealt with Judge Roberts on a day-to-day basis the way Catherine
Stetson has.
To be sure, over the past several months we have learned a great deal
about who John Roberts is. We know about his extraordinary professional
accomplishments. We have seen the overwhelming bipartisan support that
he has earned from his colleagues in the legal profession. We have
heard from John Roberts himself in a very eloquent defense of the rule
of law. For all of these reasons, I will vote to confirm Judge John
Roberts as the 17th Chief Justice of the U.S. Supreme Court, and I
certainly urge my colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER (Mr. Allen). The Senator from Utah.
Mr. HATCH. Mr. President, last week the Judiciary Committee gave its
solid, bipartisan recommendation that the Senate confirm John G.
Roberts, Jr., to be Chief Justice of the U.S. Supreme Court. The Senate
should follow that recommendation with a substantial bipartisan vote
supporting this exceptional nominee. As the Los Angeles Times put it
when endorsing Judge Roberts, anything short of an overwhelming vote
would be an indictment of petty partisanship.
I think Judge Roberts is the most analyzed and evaluated Supreme
Court nominee in history. The American Bar Association, whose rating my
Democratic colleagues once hailed as the gold standard for evaluating
judicial nominees, completed two exhaustive reviews. Each time the ABA
unanimously gave Judge Roberts its highest well-qualified rating.
The ABA, by the way, includes in its criterion of judicial
temperament such important qualities as compassion, openmindedness,
freedom from bias, and commitment to equal justice under law.
Judge Roberts spent almost 20 hours before the Judiciary Committee
while Senators asked him 673 questions. Senators then asked him 243
more questions in writing. Judge Roberts provided nearly 3,000 pages to
the Judiciary Committee, including his published articles,
congressional testimony, transcripts from interviews, speeches, and
panel discussions and material related to the dozens of cases that he
argued before the U.S. Supreme Court.
The Judiciary Committee obtained more than 14,000 pages of material
in the public domain, including the opinions Judge Roberts authored and
joined while on the U.S. Court of Appeals and legal briefs from his
years at the law firm of Hogan & Hartson and as Deputy Solicitor
General in the first Bush administration.

As if all of that were not enough, the Judiciary Committee obtained a
staggering 82,943 pages of additional material from the National
Archives and both the Reagan and Bush Libraries regarding Judge
Roberts' service in those administrations. Total that up, and we have
more than 100,000 pages of material on a 50-year-old nominee. That
amounts to about 2,000 pages for every year of his life.

[[Page S10412]]

By orders of magnitude, this is more information than any Senators
have had about any previous Supreme Court nominee.
The real debate over this nomination is about the standard we should
apply to this mountain of information. The standard a Senator applies
reflects a particular job description, what a Senator believes judges
should do in our system of government. For some Senators, it is a
political job description. They see judges as playing a political role,
delivering results favoring certain political interests, setting or
changing policy, creating new rights, defending social progress, and
blazing a trail toward justice and equality.
Not surprisingly, Senators who believe in this kind of political job
description ask political questions and apply political standards
during the hiring process.
During the hearing, for example, the distinguished assistant minority
leader, a member of the Judiciary Committee, told Judge Roberts he
needed to know the nominee's personal values. Personal values are a
condition for judicial service only if judges make their decisions
based on their personal values. This is a political standard.
The Senator from Massachusetts, Mr. Kennedy, a former Judiciary
Committee chairman, has repeatedly said that the central question is,
in his words, Whose side will Judge Roberts be on when different kinds
of cases come before him?
Demanding that judges take sides before cases even begin is, again, a
political standard.
Last week on the Senate floor, the Senator from Massachusetts, Mr.
Kerry, said he could not support Judge Roberts because, as he put it:

I can't say with confidence that I know on a sufficient
number of critical constitutional issues how he would rule.

Basing support for a judicial nominee on a checklist of results,
without regard for the facts or the law in each case, is a political
standard.
The Senator from California, Mrs. Boxer, last week announced her
opposition to Judge Roberts and described her standard by asking: Who
will be the winners if we confirm Judge Roberts?
This question, of course, completely contradicts the age-old teaching
of parents in California, my home State of Utah, and everywhere else
that it does not matter if one wins or loses but how they play the
game.
Focusing on the political correctness of a judge's results rather
than the judicial correctness of his reasoning is a political standard.
Other Senators, and I place myself squarely in this camp, use a
judicial standard. We see judges as playing a judicial rather than a
political role.
During his hearing, Judge Roberts properly compared judges to umpires
who apply rules they did not make and cannot change to a contest before
them.
Can anyone imagine conditioning an umpire's employment on knowing
before he officiates his first game which teams on the roster will win
or lose?
Similarly, judges must not take sides before a case begins.
Senators who believe in a judicial job description ask judicial
questions and apply judicial standards during the hiring process, and
during the hearing process as well, I might add.
I want to know, for example, whether Judge Roberts believes he can
make law at all, not the particular law he would make. I want to know
whether parties will win before him because the law favors their side,
not because he does.
Like America's Founders, I believe it makes all the difference for
our liberty whether judges occupy a judicial or a political role in our
system of government.
In the Federalist No. 78, Alexander Hamilton wrote, quoting the
political philosopher, Montesquieu, that there is no liberty at all if
judicial power is not separated from legislative and executive power.
The separation of powers is literally the lynchpin of liberty. That
principle had a 200-year-old pedigree when America's Founders listed as
a reason for seeking independence that King George had made judges
dependent upon his political will.
We must insist on appointing judges who meet a judicial rather than a
political standard.

I will list some of the evidence that Judge Roberts meets this
judicial standard.
Judge Roberts told the Judiciary Committee that a judge is obligated
to respect precedent, and he described in some detail the principles
guiding how judges utilize those prior decisions.
If my friends on the other side oppose this nomination, do they
believe that judges should not respect precedent? Do they reject the
traditional principles of stare decisis that Judge Roberts outlined? If
so, my friends should try to make that case to the American people. If
not, if they agree with Judge Roberts that judges should respect
precedent, then they should vote to confirm this nomination.
Judge Roberts repeatedly insisted that judges must be impartial. Here
is how he put it:

I think people on both sides need to know that if they go
to the Supreme Court that they're going to be on a level
playing field, the judge is going to interpret the law, that
the judge is going to apply the Constitution and not take
sides in their dispute.

That was said by Judge John G. Roberts, Jr., on September 13, 2005.
If my friends on the other side oppose this nomination, are they
saying that judges should instead be partial, that judges should
actually take sides, that people coming before the Court do not deserve
the confidence that judges will be fair? If that is what they believe,
I invite them to try to make that case to the American people. If not,
if they agree with Judge Roberts that judges should be impartial, then
they should confirm his nomination.
Judge Roberts said that judges must be open to the views of their
judicial colleagues. This is a mark of modesty and humility he
consistently said should characterize judges. If my friends on the
other side of this nomination oppose this nomination, are they arguing
that judges should not consider anyone else's views but narrowly insist
that they are always right? If so, then once again they should make
their case to the American people. If not, if they agree with Judge
Roberts that modest judges remain open to consider what others have to
say, then they should vote for his nomination.
Judge Roberts told us that judges are not politicians. If my friends
on the other side oppose this nomination, do they really believe that
judges, and not elected legislators, should make the law and determine
public policy? Do my friends really believe that there is no difference
between what the Justices do across the street in the Supreme Court and
what we do in this Chamber? If so, I wish them luck trying to make that
case to the American people. If not, if they agree with America's
Founders and with Judge Roberts that judges are not politicians, they
should vote to confirm this nomination.
Judge Roberts says judges are the servants of the law. If my friends
on the other side oppose this nomination, do they believe judges are
instead the masters of the law? Do they believe the Constitution is
whatever the Supreme Court says it is? If so, then I invite them to
make that case to the American people. If not, if they agree with
America's Founders that the Constitution governs the judicial as well
as the legislative branch, if they agree with Judge Roberts that judges
are as subject to the rule of law as the parties before them, then my
friends should vote to confirm this nomination.
Judge Roberts pledged that, as he has done on the appeals court
bench, he will approach every case with an open mind and consider each
case on its own merits.
If my friends on the other side oppose this nomination, do they
believe instead judges should have a closed mind on issues that come
before them, that judges should prejudge issues in cases even before
they know the facts?
If so, then I urge my friends to try and convince the American
people.
If not, if they agree with Judge Roberts that judges should safeguard
their impartiality and keep an open mind, then they should vote to
confirm this nomination.
Judge Roberts said:

The role of the judge is limited, that judges are to decide
the cases before them, they're not to legislate.

If my friends on the other side oppose this nomination, do they
believe instead judges have an unlimited role,

[[Page S10413]]

that judges should decide cases not properly before them, and that
judges should do the legislating?
If so, I urge them to try to make that case before the American
people.
If not, if they share Judge Roberts' view about the proper limited
judicial role, then they should vote to confirm this nomination.
Judge Roberts said judges must decide cases--and I am quoting him
again--judges must decide cases:

according to the rule of law, not their own social
preferences, not their policy views, not their personal
preferences, but according to the rule of law.

Again, that was on September 13, 2005.
If my friends on the other side oppose this nomination, do they
believe judges should decide cases based on their personal preferences
or policy views rather than the rule of law?
If so, again, they should make this case to the American people.
If not, if they agree with Judge Roberts that the rule of law trumps
a judge's personal views, then they should vote to confirm this
nomination.
Judge Roberts said when Congress enacts a statute, we do not expect
judges to substitute their judgment for ours but to implement our view
of what we are accomplishing. If my friends on the other side oppose
this nomination, are they instead saying judges should substitute their
judgment for ours?
If so, again, they should make that case to the American people.
If not, if they agree with Judge Roberts that Congress's intent
should prevail regarding Congress's own statutes, then they should vote
to confirm this nomination.
Judge Roberts said:

I don't think the Court should be the task master of
Congress. I think the Constitution is the Court's task master
and it's Congress' task master as well.

That was said on September 14 of this year.
If my friends on the other side oppose this nomination, do they mean
the Supreme Court should in fact be the taskmaster of Congress, and
even of the Constitution itself?
If so, then I wish them well, trying to convince the American people
by making that case to the American people.
If not, if they agree with Judge Roberts that the Constitution is the
taskmaster of both Congress and the Supreme Court, then they should
vote to confirm this nomination.
Judge Roberts told us the Bill of Rights does not change during times
of war or crisis. If my friends on the other side oppose this
nomination, are they arguing for setting aside the Bill of Rights in
times of war or crisis?
If so, then they should make their case to the American people.
If not, if they agree with Judge Roberts that neither the Bill of
Rights nor a judge's obligation to uphold the rule of law is suspended
in a time of war or crisis, then they should vote to uphold this
nomination.
I want to quote Judge Roberts again because his particular words are
very important. He said:

If the Constitution says that the little guy should win,
the little guy is going to win in court before me. But if the
Constitution says that the big guy should win, well, then,
the big guy is going to win, because my obligation is to the
Constitution.

He said that on September 15 of this year.
If my friends on the other side oppose this nomination, are they
arguing that whoever the little guy might be must win, regardless of
what the facts and regardless of what the law requires? Are they saying
judges should disregard their oaths to do justice without respect to
persons?
If so, I will be watching with great expectation as they try to make
that case to the American people.
If not, if they agree with Judge Roberts that the law, not the judge,
determines who wins, if they agree with Judge Roberts that the judge's
obligation is to the Constitution and not to a particular side, then
they should confirm this nomination.
These examples show the type of judge John Roberts is on the appeals
court, the kind of Justice John Roberts will be on the Supreme Court.
Judge Roberts knows the difference between politics and law. He knows
as a judge he must settle legal disputes by interpreting and applying
law and leave the politics to the politicians.

We have all the information we need about this exceptional nominee.
If we apply a judicial rather than a political standard, the Senate
will confirm him as the Nation's 17th Justice overwhelmingly and
without delay.
Judge Roberts is one of the finest nominees ever to come before the
Congress of the United States, and in particular the Senate confirming
body. Not only was he an excellent student, graduating from Harvard in
only 3 years as an undergraduate, but he became the top graduate in law
school and the editor in chief of the Harvard Law Review, a position
everybody in this Chamber has to respect and admire.
He also served as a clerk for Judge Friendly, one of the greatest
circuit court judges this country has ever seen. He served as a clerk
for Chief Justice Rehnquist.
I was impressed at the Rehnquist funeral to see some 95 former clerks
paying respect to their Justice Rehnquist, some of whom were my fellow
Utahns.
He then worked in the White House counsel's office as a young man and
served with distinction there. He then went on to become Deputy
Solicitor General of the United States and did a terrific job while
there. He rose to become one of the top partners in one of the top law
firms in this country and argued 39 cases before the U.S. Supreme
Court. Hardly anybody can make that claim today.
I have asked various Justices on the Supreme Court who they consider
to be the best appellate lawyer to appear before them, and invariably
the name John Roberts comes up from the Justices themselves.
I was intrigued that Justice Stevens is overjoyed that John Roberts
is going to join them on the Court because he has such respect for John
Roberts.
I have to say in 20 hours of testimony, how could anybody vote
against him? I have to say also it concerns me that there will be some
who will. I suggest if they would vote against Judge Roberts for the
Supreme Court, then I doubt sincerely there is any nominee this
President could put forth they would vote for, and that is a sorry case
and I think a sad indictment.
I urge everybody in this body to vote for this outstanding nominee
for Chief Justice of the United States. In doing so, I don't think
anybody who does is going to be sorry afterward. Yes, I believe him to
be conservative. Yes, I believe he is not going to be an activist on
the bench. Yes, I believe he will honor and sustain the law--and I know
one thing: he is going to approach the law as intelligently as any
person who has ever been nominated to the Supreme Court. I think people
who watched those hearings have to come to the same conclusion. If they
do, then I hope our colleagues who have announced they are going to
vote against him will change their mind, do what is right, and vote for
him.
Remember, when now Justices Ginsburg and Breyer came before this
body, I was the leader on the Judiciary Committee. I have to say, we
Republicans all knew both of those now Justices were social liberals,
that they disagreed with many of the things we believed and we
disagreed with many of the things they believed. But they were both
qualified and they were put forth by the then President of the United
States, President William Jefferson Clinton. And Presidents deserve
respect on these nominations.
Justice Ginsburg was confirmed on a vote of 96 to 3, and I believe
Justice Breyer was confirmed on a vote of 87 to 9, which means
virtually every Republican voted for both of them. We did not take the
political way. I have to say I don't think others should take it here
in this case with this person who everybody acknowledges is
exceptionally well qualified, including the American Bar Association.
I recommend everybody vote for Judge Roberts, and in the end you are
going to be able to go to sleep at night knowing you did the right
thing.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. JOHNSON. Mr. President, I ask unanimous consent that the order
for the quorum call be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.

[[Page S10414]]

Mr. JOHNSON. Mr. President, I come to the Chamber today to discuss
the nomination of Judge John G. Roberts to be Chief Justice of the
United States.
Last week, the Senate Judiciary Committee approved the nomination of
Judge Roberts to be the next Chief Justice of the United States by a
13-to-5 margin. This came after weeks of exhaustive research by the
Judiciary Committee and a thorough set of hearings.
While I wish the White House would have been more cooperative during
the process by releasing a more comprehensive set of documents relating
to Judge Roberts' work in the executive branch, I do believe the
committee hearings were conducted in a fair and dignified manner, and I
do have some understanding of where Judge Roberts' judicial views fall
within the political spectrum.
After careful review of Judge Roberts' testimony and the information
prepared by the Judiciary Committee, I have come to the conclusion that
Judge Roberts should be confirmed by the Senate to be Chief Justice of
the U.S. Supreme Court. It is my intention to vote in favor of his
confirmation when his nomination comes for a full vote before the
Senate later this week.
There are few decisions of greater consequence that I will ever be
asked to make than whether to approve an individual for a lifetime
appointment as Chief Justice of our Nation's highest Court. While there
is no absolute certainty how Judge Roberts will conduct himself as
Chief Justice when he is confirmed, it is my belief that he appears to
be a thoughtful and respected jurist who possesses integrity and great
legal skills. I see no reason to believe that the nominee is an
ideologue or otherwise outside the broad mainstream of contemporary
conservative legal thinking. In addition, it is important to note that
with the confirmation of Judge Roberts to replace Chief Justice
Rehnquist, the balance of the Court will be maintained.
It is the prerogative of the President to nominate whomever he sees
fit to lifetime appointments to the Federal judiciary, so it should
come as no surprise that President Bush has nominated a conservative
jurist such as Judge Roberts for the Supreme Court. While I have voted
against President Bush's nominees to the lower Federal courts on a
modest number of instances, I have voted roughly 200 times to confirm
judicial nominees who I believed were conservative Republicans of great
legal skill and who deserved bipartisan respect. With the nomination of
Judge Roberts, I am once again prepared to support a qualified,
conservative judicial nominee. However, with this vote I also send a
message to President Bush that I hope his nominee to fill the vacancy
of retiring Associate Justice Sandra Day O'Connor will as well be a
person of great legal skill and who has the ability to garner strong
bipartisan support.
In my home State of South Dakota, we have seen difficult and
polarizing political battles over the past few years. I believe South
Dakotans as well as all Americans desire a bipartisan centrist approach
to government. Our Nation is governed best when it is governed from the
broad bipartisan mainstream but not by the extremes of the political
far left or far right. I encourage President Bush to nominate someone
for Justice O'Connor's seat who will further unite the citizens of our
great Nation rather than drive a political wedge between them. The
proper legal foundation for America is found in the broad mainstream of
contemporary jurisprudence. It is my hope that Judge Roberts will unite
Americans and serve the Supreme Court in a fair and prudent and
centrist manner.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BENNETT. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.