[Congressional Record Volume 151, Number 122 (Tuesday, September 27, 2005)]
[Senate]
[Pages S10470-S10477]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                           Senator Bill Frist

  Mr. McCONNELL. Mr. President, I first met Bill Frist 11 years ago 
when he was a world-renown heart transplant surgeon from the 
neighboring State of Tennessee. He was considering a career change to 
public service in the Senate. Then, as now, I believe he was one of the 
most gifted, hard-working, and honest people I had ever met. He is a 
bit of a rarity in this town. He has more talent and less ego than 
almost anyone I can think of.
  There has been this question raised about the sale of some stock. Of 
course, a bit lost in this dustup is the simple fact that the Senate 
Ethics Committee preapproved the sale. However, this is Washington, and 
sometimes even honest actions are questioned.
  I have absolutely no doubt that the facts will demonstrate that 
Senator Frist acted in the most professional and the most ethical 
manner, as he has throughout his distinguished medical and Senate 
career.
  Senator Frist has been clear that he welcomes the opportunity to meet 
with the appropriate authorities and put this situation in its proper 
context as a completely--a completely--appropriate transaction.
  Furthermore, Senator Frist has my full and unconditional support. He 
is a great majority leader. I find myself agreeing with my good friend 
from Nevada, the Democratic leader, Harry Reid, who said he knew 
Senator Frist would not do anything wrong. Senator Reid has it right.
  Finally, I think there are few settled facts in this contentious 
capital of ours, but there is one fact of which I am completely 
certain: Bill Frist is a decent, honest, hard-working man who puts 
public service before private gain.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Isakson). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. 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the quorum call be rescinded.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. LEAHY. Mr. President, we have had several people on the Senate 
floor this morning speaking of the Roberts nomination. I understand 
that we have several Senators on this side of the aisle who are going 
to speak in a few minutes, and I will yield the floor when they arrive.
  I hope the American people will listen to this discussion. The 
outcome is sort of foreordained because we know the number of people 
who are going to vote for Judge Roberts, as am I. The reason it is 
important to hear all the different voices is that we are a nation of 
280 million Americans. But for the Chief Justice of the United States, 
only 101 people have a say in who is going to be there and, of course, 
they are the President, first and foremost, with the nomination, and 
the 100 men and women in this Senate.
  We have to stand in the shoes of all 280 million Americans. Can we be 
absolutely sure in our vote of exactly who the Chief Justice might be 
as a person, somebody who will probably serve long after most of us are 
gone, certainly long after the President is gone and actually long 
after several Presidents will be gone? No. We have to make our best 
judgment. I have announced how I am going to vote. With me, it is a 
matter of conscience.
  I see the distinguished Senator from Colorado. I know he wishes to 
speak, and I will be speaking later about this issue. I will yield the 
floor to the distinguished Senator from Colorado.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. SALAZAR. Mr. President, I thank my wonderful friend from Vermont 
for his great leadership in the Senate Judiciary Committee, along with 
Senator Specter.
  I rise today concerning the nomination of Judge John Roberts to be 
Chief Justice of the U.S. Supreme Court. I have interviewed and 
recommended the appointment of many men and women who serve as State 
and Federal judges in my home State of Colorado. I am no stranger to 
analyzing the record of a candidate for the judiciary. I am no stranger 
to evaluating the character and temperament of people to serve in these 
positions. Yet I know this confirmation vote is special. It is one of 
the most significant votes that I will cast during my tenure as a 
Senator. I know this vote is likely to endure the rest of my life and 
the lives of those who serve in this Chamber.
  The decisions of the Supreme Court significantly affect the everyday 
lives of the people in my State and all the people who live throughout 
our great Nation. The Chief Justice is first

[[Page S10471]]

among equals among the nine Justices who make these decisions. The 
Chief Justice's ability to run the Court's conferences and to assign 
opinions gives the Chief Justice important influence on the directions 
taken by the Court. The Chief Justice molds and defines the 
cohesiveness of the Court in the sense that he or she can lead efforts 
to reduce separate and complicated opinions and to make the opinions of 
the Court clear and understandable to all. This is an especially 
important influence to reduce confusion in the law.
  Finally, the Chief Justice sits at the very pinnacle of our Federal 
judicial branch. The Chief Justice leads the judges and the rest of the 
21,000 employees of the Federal court system. The Chief Justice is 
responsible for making sure the Federal courts run effectively and 
efficiently. The administrative responsibilities of the Chief Justice 
are important for another reason. The Chief Justice can lead the 
judicial branch to become a place of inclusion, a place where women are 
as welcome as men, and where people work together who are black, brown, 
yellow, white, and every other color of human skin.
  The Chief Justice can make the judicial branch a shining example of 
diversity and inclusiveness. This is not an abstraction. When people of 
any background come to the Court they should be looking in the mirror. 
The faces of the Court should be the same as the faces of those who 
come before the Court. In my view, this is an essential aspect of 
justice.
  I commend the Senate Judiciary Committee for its fair, serious, and 
dignified hearings on the Roberts nomination. Chairman Specter, Ranking 
Member Leahy, and all members of the committee have earned our 
gratitude. They have performed a very valuable service for our country. 
These Senators gave us a wonderful example worthy of repetition in the 
Senate of how the Senate should operate in the interest of our Nation. 
They did their work with courtesy, civility, and in the spirit of the 
parties working together in good faith to discuss their differing 
views. Our Nation is better for their efforts.
  I also want to take a minute to thank Democratic Leader Reid. I have 
been surprised and taken aback by the attacks on him from some people 
in this debate. To read the musings of Washington insiders, Senator 
Reid is somehow guilty of not uniting Democrats, and at the same time 
not being too beholden to Democratic interest groups. As is the usual 
case in the debates in Washington, the truth can be found elsewhere.
  Senator Reid made very clear to this Senator and to the entire caucus 
that this is a vote of conscience. To suggest otherwise is unfair and 
dishonest. Our leader, a man of unshakable faith and conviction, helped 
ensure that this Senate lived up to its constitutional obligation of 
advice and consent.
  I want to speak briefly about the history of America and our 
Constitution concerning equality under the law and the key role of the 
U.S. Supreme Court. The history of equal protection is a reminder of 
the most painful and at the same time the most promising moments of our 
Supreme Court and our Nation. We must not forget that history and its 
lessons, for to do so would undo our progress as a nation.
  In retracing our history, the inevitable conclusion is that we have 
made major progress over four centuries. That history includes 250 
years of slavery in this country, 100 years of legal segregation of the 
races, and the struggle in the new and recent times to achieve another 
age and celebrate the age of diversity.
  We must look back at that history so that we do not forget its 
painful lessons. We must never forget that for the first 250 years of 
this country, after the European settlers reached the shores of Mexico 
and New England, the relationship between groups was characterized by 
slavery and the subjugation of one group for the benefit of another.
  In Mexico and in the Southwest, the Spanish enslaved Native 
Americans. In the East and the South, the Americans brought Blacks from 
Africa and treated them as property. In the Dred Scott decision in 
1857, the U.S. Supreme Court, in a terrible moment for our Nation, 
reasoned that Blacks were inferior to Whites and therefore the system 
of slavery was somehow justified.
  At that point, the U.S. Supreme Court was endorsing the untenable 
proposition that one person could own another person as property simply 
because of their race. But the march toward freedom and equality would 
not be stopped by the U.S. Supreme Court in the Dred Scott decision.
  The Civil War ensued. Let us never forget that the Civil War became 
the bloodiest war in American history, with over 500,000 Americans 
killed in battle. In the end, the 13th, 14th and 15th amendments to the 
U.S. Constitution ended the system of slavery and ushered in a new era 
of equal protection under the laws. Yet even with the end of slavery 
and the civil rights amendments to the Constitution, equal protection 
under the laws for the next 100 years would still require the 
segregation of the races.
  The law of the land in many States and cities required the separation 
of the races in schools, theaters, restaurants, and public 
accommodations. It was not until 1954 that the U.S. Supreme Court 
marked the end of legal segregation by the Government in its historic 
decision of Brown v. Topeka Board of Education.
  In that decision, Chief Justice Warren, writing for a unanimous 
Supreme Court, stated that in the field of public education the 
doctrine of separate but equal has no place. The Brown decision marked 
an historic milestone for the U.S. Supreme Court and our Nation about 
the relationships between groups.
  Over the next decade, the U.S. Supreme Court struck down laws that 
required segregation on golf courses, parks, theaters, swimming pools, 
and numerous other facilities. These changes were met with intense 
controversy, marked by marches, protests, riots, and assassinations. 
Because of the leadership of Dr. Martin Luther King, Presidents Kennedy 
and Johnson, Robert Kennedy, and thousands of civil rights activists, 
Congress ushered in the sweeping civil rights reforms of the 1960s.
  We, as an American society, began to understand that the doctrine of 
separate but equal truly had no place in America and that the age of 
diversity truly was upon us. But the age of diversity has been marked 
by significant and continuing tension. A part of that debate was put to 
rest only recently with the majority opinion authored by Justice Sandra 
Day O'Connor in the University of Michigan Law School case.
  There, Justice O'Connor said:

       Today, we hold that the Law School has a compelling 
     interest in attaining a diverse student body.

  Justice O'Connor continued:

       The Law School's claim of a compelling interest is further 
     bolstered by its amici, who point to the educational benefits 
     that flow from student body diversity.

  She explained further:

       These benefits are not theoretical but real, as major 
     American businesses have made clear that the skills needed in 
     today's increasingly global marketplace can only be developed 
     through exposure to widely diverse people, cultures, ideas 
     and viewpoints.

  What is more, high-ranking retired officers and civilian leaders of 
the U.S. military assert that, and she quotes:

       [B]ased on [their] decades of experience, a highly 
     qualified, racially diverse officer corps . . . is essential 
     to the military's ability to fulfill its principal mission to 
     provide national security.

  She continued:

     . . . To fulfill its mission, the military must be selective 
     in admissions for training and education for the officer 
     corps, and it must train and educate a highly qualified, 
     racially diverse officer corps in a racially diverse setting.
       We agree that [i]t requires only a small step from this 
     analysis to conclude that our country's other most selective 
     institutions must remain both diverse and selective.

  I believe Justice Sandra Day O'Connor was a beacon of wisdom at this 
moment in our Nation's history. We know we have had beacons of wisdom 
in our past to help guide us in our future. I am hopeful that Judge 
Roberts will be that kind of Chief Justice.
  In 1896, Justice Harlan was a beacon of wisdom when he dissented in 
Plessy v. Ferguson against his colleagues on the U.S. Supreme Court 
when they decided to sanction the right to segregation under the law. 
Then Justice Harlan stated in his dissent:

       The destinies of the races, in this country, are 
     indissolubly linked together and the interests of both 
     require that the common government law shall not permit the 
     seeds of

[[Page S10472]]

     race hate to be planted under the sanction of law.
  I do not know exactly how judge Roberts will provide us with that 
beacon of wisdom for the 21st century, but the doctrine of inclusion is 
somehow at the heart of the answer, and I expect and implore Judge 
Roberts to follow that doctrine.
  That doctrine means that we should be inclusive of all, and that 
doctrine means that there is something wrong when we look around and we 
see no diversity in the people who surround us, and that doctrine means 
that the motto on our American coins, ``E Pluribus Unum,'' can only be 
achieved if we include all those who make the many of us into one 
nation.
  My criteria for the confirmation of judges remain the same as they 
have been. I reviewed Judge Roberts' record for fairness, impartiality, 
and a proven record for upholding the law. I have given this difficult 
decision the careful deliberation it deserves. I have reviewed his 
writings. I have read his cases. I have reviewed his testimony to the 
Judiciary Committee. I have met twice with Judge Roberts, the second 
time last Friday, asking him pointed and specific questions to gauge 
the measure of the man.
  I am grateful for his courtesy and appreciative of his time. I 
concluded that a vote to confirm Judge Roberts as the next Chief 
Justice of the U.S. Supreme Court is the appropriate vote to cast. 
Judge Roberts' intellect is unquestioned. His technical legal skills 
are unquestioned. He is a lawyer that other lawyers respect, those who 
have worked with him as well as those who have worked against him.
  Judge Roberts has convinced me that he understands the constitutional 
need for judicial independence. He believes in the bedrock principle 
that decisions of the Supreme Court must be carefully based upon the 
facts of the case and the law. He believes that all cases must be 
decided on their specific merits by a judge with an open and fair mind. 
These concepts lie at the heart of our judicial system. They 
differentiate the courts from other institutions of government. They 
are critical to our freedom.
  I am favorably impressed by Judge Roberts' statement to do his best 
to heal the gaping fractures in the opinions of the Supreme Court in 
recent years. When the Court issues three or five or nine opinions in a 
single case, it is a recipe for confusion and uncertainty for judges, 
lawyers, and litigants. This is bad for the law.
  I believe Judge Roberts has a clear understanding of the jolts to the 
system that disrupt the country when the Court overturns settled law, 
and he is equally understanding and determined to avoid these jolts. I 
lived through that type of difficult and expensive disruption as 
Colorado attorney general, when the Supreme Court changed long-settled 
expectations about sentencing by judges in criminal cases. The criminal 
justice system in Colorado and across the Nation was thrown into 
turmoil. It still has not recovered.
  I believe Judge Roberts has an understanding of the Supreme Court's 
role to guide the lower courts, lawyers, and litigants, with clear and 
understandable direction. I have been particularly interested in Judge 
Roberts' views on diversity and inclusion of all people, women as well 
as men, in our country. I have lived my life by the bedrock principle 
that people of all backgrounds and both genders should be included in 
all aspects of our society. This is very important to me. So I have 
asked Judge Roberts directly and personally about his commitment to 
diversity and inclusiveness in our country. He has assured me of his 
commitment to this principle.
  Finally, Judge Roberts passes a simple test that I will apply to 
judicial candidates for as long as I am a Senator. I do not believe he 
is an ideologue. He is not the kind of judge--like some--for whom 
anyone can predict the outcome of a case before the case is briefed and 
argued. The ideologue's approach to the law makes a mockery of judicial 
independence, and it is the opposite of being openminded and fair.
  In conclusion, I have reached my decision to vote for Judge Roberts 
based upon his word that, first, he will stand up and fight for an 
independent judiciary and defend the judiciary from unwarranted attacks 
on its independence; second, he will not roll back the clock of 
progress for civil rights and recognizes that the equal protection 
provided under the Constitution extends to all Americans, including 
women and racial and ethnic minorities; third, he will respect the rule 
of law and the precedents of the U.S. Supreme Court, including the most 
important decisions of the last century; fourth, he understands the 
importance of the freedom of religion and religious pluralism as a 
cornerstone of a free America; and five, he will work to create a 
Federal judicial system that embraces diversity and has a face that 
reflects the diverse population of America.
  I will vote to confirm Judge Roberts to be the Chief Justice of the 
United States. I wish Judge Roberts the very best as he assumes his new 
responsibilities on behalf of our Nation.
  I yield the floor to my wonderful and good friend from the State of 
Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Colorado for his 
very thoughtful and eloquent statement.
  I rise to speak on the President's nomination of John Roberts of 
Maryland to be Chief Justice of the U.S. Supreme Court. During my 17 
years as a Member of the Senate, I have had the opportunity on four 
previous occasions to consider nominees to the Supreme Court--two from 
the first President Bush and two from President Clinton. On three of 
those occasions--Justices Souter, Ginsburg and Breyer--I carried out my 
constitutional responsibility by giving not only advice but consent. On 
the fourth, Justice Thomas, I withheld my consent.
  I must say that on each of those preceding four occasions, I was 
struck, as I am again now in considering President Bush's nomination of 
John Roberts, by the wisdom of the Founders and Framers of our 
Constitution and by the perplexing position they put the Senate in when 
we consider a nominee to the U.S. Supreme Court.
  As we know, our Founders declared their independence and formed their 
new government to secure the inalienable rights and freedoms which they 
believed are the endowment of our Creator to every person. But from 
their knowledge of history and humanity, and from their own experiences 
with the English monarch, they saw that governments had a historic 
tendency to stifle, not secure, the rights and freedoms of their 
citizens. So in constructing their new government, they allocated power 
and then they limited it, time and time again. Theirs was to be a 
government of checks and balances, except for one institution which is, 
generally speaking, unchecked and unlimited, and that is the Supreme 
Court.
  I understand that Congress can reenact a statute that has been struck 
down by the Court as inconsistent with the Constitution, but I also 
know that the Court can then nullify the new statute. I understand, 
too, that the people may amend the Constitution to overturn a Supreme 
Court decision with which they disagree, but that is difficult and 
cumbersome and therefore rare in American history. So the Supreme Court 
almost always has the last word in our Government. It can be, and has 
been, a momentous last word, with great consequences for our national 
and personal lives.
  Why then, in constituting the Supreme Court, did our Nation's 
Founders vary from their system of limited government, of checks and 
balances? I believe one reason is that they were wise enough to know 
that to be orderly, to function, a system must have a final credible 
point where disputation and uncertainty end and from which the work of 
society and government proceeds. But there was a larger reason, I am 
convinced, consistent with their highest value, and that was their 
understanding, again from their knowledge of history and humanity, that 
freedom can just as easily be taken by a mob of citizens as it can by a 
tyrannical leader. So they created a Supreme Court that was to be 
insulated from the political passions of the moment and that would base 
its decisions not only on transitory public opinion but on the eternal 
values of our founding documents--the Declaration, the Constitution, 
the Bill of Rights--and the rule of law.
  They did this, these Founders and Framers, not just by giving the 
Court

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such enormous power but also by giving its individual members life 
tenure. The President nominates Justices, the Senate advises and 
decides whether to consent, and then the Justice who is confirmed 
serves for as long as he or she lives or chooses to serve, absent the 
unusual possibly of impeachment, of course; limited in that service 
only by the Justice's own conscience, intellect, sense of right and 
wrong, understanding of what the Constitution and law demand, and by 
the capacity of the litigants who appear before the Court and by the 
Justice's own colleagues on the Court to convince him or her.
  This gets to why I have described the Senate's responsibility to act 
on nominations to the Supreme Court as perplexing. It is our one and 
only chance to evaluate and influence the nominees, and then they are 
untouchable and politically unaccountable. But the Senate is a 
political body. We are elected by and accountable to the people. So 
naturally during the confirmation process we try to extract from the 
nominees to this Court, on this last chance that we have, commitments, 
political commitments that they will uphold the decisions of the Court 
with which we agree and overrule those with which we disagree; and they 
naturally try to avoid making such commitments.
  We are both right. Because the Supreme Court has such power over our 
lives and liberties, we Senators are right to ask such questions. But 
because the Court is intended to be the nonpolitical branch of our 
Government, the branch before which litigants must come with confidence 
that the Justices' minds are open, not closed by rigid ideology or 
political declaration, the nominees to the Court are ultimately right 
to resist answering such questions in great detail. I understand that I 
am describing an ideal which has not always been reached by individual 
Justices on the Court. But on the other hand, the history of the 
Supreme Court is full of examples of Justices who have issued 
surprisingly different opinions than expected, or even than expressed 
before they joined the Court; and also of Justices who have changed 
their opinions over the years of their service on the Court. That is 
their right, and I would add the responsibility the Constitution gives 
to Justices of our Supreme Court.
  Our pending decision on President Bush's nomination of John Roberts 
to the Supreme Court is made more difficult because it comes at an 
excessively partisan time in our political history. That makes it even 
more important that we stretch to decide it correctly and without 
partisan calculations, whichever side we come down on. Judge Roberts, 
after all, has been nominated to be Chief Justice of the highest Court 
of the greatest country in the world, and our decision on whether to 
confirm him should be a decision made above partisanship.
  Today in these partisan times, it is worth remembering that seven of 
the nine sitting Justices were confirmed by overwhelmingly bipartisan 
votes in the Senate. Justices O'Connor by 99, Stevens and Scalia by 98, 
Kennedy by 97, Ginsburg by 96, Souter by 90, and Breyer 89. So it was 
not always as it is now, and it is now hard to imagine a nominee who 
would receive so much bipartisan support. That is wrong and it is 
regrettable.
  One reason for this sad turn, is that our recent Presidential 
campaigns have unfortunately made the Supreme Court into a partisan 
political issue, contrary to the intention of the Founders of our 
country as I have described it, with candidates in each party promising 
to nominate only Justices who would uphold or overrule particular 
prevailing Supreme Court decisions. I know that is not the first time 
in our history this has happened.
  But it nonetheless today undercuts the credibility and independence 
of the Supreme Court, and I might add it complicates this confirmation 
process. Because President Bush promised in his campaign that he would 
nominate Supreme Court Justices in the mold of Justices Scalia and 
Thomas, an extra burden of proof was placed on Judge Roberts to prove 
his openness of mind and independence of judgment.
  All of that is one reason why earlier this year I was proud to be one 
of the ``group of 14'' Senators. I view the agreement of that group of 
14 as an important step away from partisan politicizing of the Supreme 
Court. By opposing the so-called nuclear option, we were saying--7 
Republicans and 7 Democrats--that a nominee for a lifetime appointment 
to the Supreme Court should be close enough to the bipartisan 
mainstream of judicial thinking to obtain the support of at least 60 of 
the 100 Members of the Senate. That is not asking very much for this 
high office.
  When I was asked during the deliberation of the group of 14 to 
describe the kind of Justice I thought would pass that kind of test, I 
remember saying it would be one who would not come to the Supreme Court 
with a prefixed ideological agenda but would approach each case with an 
open mind, committed to applying the Constitution and the rule of law 
to reach the most just result in a particular case. I remember also 
saying the agreement of the group of 14 could be read as a bipartisan 
appeal to President Bush which might be phrased in these words:

       Mr. President, you won the 2004 election and with it came 
     to the right to fill vacancies on the Supreme Court. We 
     assume you will nominate a conservative but we appeal to you 
     not to send us an extreme conservative who will confront the 
     court and the country with a disruptive, divisive, 
     predetermined ideological agenda. Send us an able, honorable 
     nominee, Mr. President, who will take each case as it comes, 
     listen fully to all sides, and try to do right thing.

  Based on the hours of testimony Judge Roberts gave to the Judiciary 
Committee under oath, the lengthy personal conversation I had with him, 
a review of his extraordinary legal and judicial ability and 
experience, and the off-the- record comments of people who have known 
or worked with Judge Roberts at different times of his life, and 
volunteered them to me, and uniformly testified to his personal 
integrity and decency, I conclude that John Roberts meets and passes 
the tests I have described. I will, therefore, consent to his 
nomination.
  In his opening statement to the Judiciary Committee on September 13, 
Judge Roberts said:

       I have no platform.
       Judges are not politicians who can promise to do certain 
     things in exchange for votes. If I am confirmed, I will 
     confront every case with an open mind. I will fully and 
     fairly analyze the legal arguments that are presented. I will 
     be open to the considered views of my colleagues on the 
     bench. And I will decide every case based on the record, 
     according to the rule of law, without fear or favor, to the 
     best of my ability.

  I could not have asked for a more reassuring statement.
  During the hearings, some of our colleagues on the Judiciary 
Committee challenged Judge Roberts to reconcile that excellent pledge 
with memos or briefs he wrote during the 1980s or early 1990s, or 
opinions he wrote on the Circuit Court in more recent years. They were 
right to do so. I thought Judge Roberts' answers brought reassurance, 
if not total peace of mind. But then again, I have no constitutional 
right to total peace of mind as a Senator advising and deciding whether 
to consent on a Justice of the Supreme Court.
  From his statements going back more than 20 years, I was troubled by, 
and in some cases strongly disagreed with, opinions or work he had been 
involved in on fundamental questions of racial and gender equality, the 
right of privacy, and the commerce clause. But in each of these areas 
of jurisprudence, his testimony was reassuring.
  On questions of civil rights, Judge Roberts told the Judiciary 
Committee of his respect for the Civil Rights Act and the Voting Rights 
Act, as precedents of the Court, and he said they ``were not 
constitutionally suspect.''
  He added that he ``certainly agreed that the Voting Rights Act should 
be extended.''
  When asked by Senator Kennedy whether he agreed with Justice 
O'Connor's statement in upholding an affirmative action program that it 
was important to give ``great weight to the real world impact of 
affirmative action policies in universities,'' Judge Roberts answered, 
``You do need to look at the real world impact in these areas and in 
other areas as well.'' He also told Senator Durbin that he believed the 
Reagan administration had taken the ``incorrect position'' on Bob Jones 
University.
  I have said, and I say again, that I found those answers to be 
reassuring.

[[Page S10474]]

  With regard to the right of privacy, Judge Roberts gave a lengthy and 
informed statement: ``The right of privacy is protected under the 
Constitution in various ways.''

  He said:

       It's protected by the Fourth Amendment which provides that 
     the right of people to be secure in their persons, houses, 
     effects, and papers is protected.
       It's protected under the First Amendment dealing with 
     prohibition on establishment of a religion and guarantee of 
     free exercise.
       It protects privacy in matters of conscience.

  These are all quotes from Judge Roberts, and I continue:

       It was protected by the framers in areas that were of 
     particular concern to them--: The Third Amendment protecting 
     their homes against the quartering of troops.
       And in addition the Court--has recognized that personal 
     privacy is a component of the liberty protected by the due 
     process clause.
       The Court has explained that the liberty protected is not 
     limited to freedom from physical restraint and that it's 
     protected not simply procedurally, but as a substantive 
     matter as well.
       And those decisions have sketched out, over a period of 
     years, certain aspects of privacy that are protected as part 
     of the liberty in the due process clause of the Constitution.

  I thought that was a learned embrace of the constitutional right of 
privacy, particularly when combined with Judge Roberts' consistent 
support of the principle of stare decisis, respect for the past 
decisions and precedents of the Court in the interest of stability in 
our judicial system and in our society.
  Regarding Roe v. Wade, Judge Roberts specifically said, ``That is a 
precedent entitled to respect under the principles of stare decisis 
like any other precedent of the Court.''
  When asked by Senator Feinstein to explain further when, under stare 
decisis, a Court precedent should be revisited, Judge Roberts said:

       Well, I do think you do have to look at those criteria. And 
     the ones that I pull from these various cases are, first of 
     all, the basic principle that it's not enough that you think 
     that the decision was wrongly decided. That's not enough to 
     justify revisiting it. Otherwise there would be no role for 
     precedent, and no role for stare decisis. Second of all, one 
     basis for reconsidering the issue of workability (And) . . . 
     the issue of settled expectations, the Court has explained 
     you look at the extent to which people have conformed their 
     conduct to the rule and have developed settled expectations 
     in connection with it.

  Again, specifically with regard to Roe v. Wade, I found those answers 
reassuring.
  One of Judge Roberts' circuit court opinions on the commerce clause 
gave rise to fears that he would constrict Congress's authority to 
legislate under that important clause. But in his consistent 
expressions of deference to the work of Congress and his several 
references to the Supreme Court's recent decision in Gonzales v. Raich, 
Judge Roberts was once more reassuring.
  So I will vote to confirm John Roberts and send him off to the 
nonpolitical world of the Supreme Court with high hopes, encouraged by 
these words of promise he spoke to the Judiciary Committee at the end 
of his opening statement to that committee as follows:

       If I am confirmed, I will be vigilant to protect the 
     independence and integrity of the Supreme Court, and I will 
     work to ensure that it upholds the rule of law and safeguards 
     those liberties that make this land one of endless 
     possibilities for all Americans.

  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Thank you, Mr. President.
  Mr. President, along with a vote to authorize war, the vote on the 
nomination of a Supreme Court Justice, especially a Chief Justice, is 
one of the most important votes that Senators ever cast. Because the 
Supreme Court is the guardian of our most cherished rights and 
liberties, the vote on any Supreme Court nominee has enormous 
significance for the everyday lives of all Americans.
  Supporting or opposing a Supreme Court nominee is not--and should not 
be--a partisan issue. Indeed, in my time in the United States Senate, I 
have voted to confirm nearly twice as many Republican nominees to the 
high Court as Democratic nominees. To be sure, there are also some 
nominees that I have opposed. But that opposition was not based on the 
political party of the President who nominated them, but on the 
record--or lack of record--of the testimony and writings of each 
individual nominee. In hindsight, there are some votes--either for or 
against--that I wish I had cast differently, but each vote reflected my 
best, considered judgment at the time, based on the information and 
record before me. That is what the Constitution calls us to do as 
Senators.
  Yet some of our friends on the other side of the aisle have tried to 
portray a vote against John Roberts as a reflexive, partisan vote 
against any nominee by President Bush. Still others have made the 
sweeping statement that any Senator who can't vote for Roberts can't 
vote for any nominee of a Republican President. These broad statements 
are patently wrong and suggest partisan posturing that does serious 
injustice to the most serious business of giving a lifetime appointment 
to a Justice on the highest Court in the land.
  With full appreciation and awareness of the Senate's solemn 
obligation to give advice and consent to this all-important Supreme 
Court nomination by President Bush, I have read the record, asked 
questions, re-read the record, and asked even more questions. But after 
reviewing the record such as it is, I am unable to support the 
nomination of John Roberts to be the Chief Justice of the United States 
Supreme Court.
  Our Founders proclaimed the bedrock principle that we are all created 
equal. But everyone knows that in the early days of our Republic, the 
reality was far different. For more than two centuries, we have 
struggled, sometimes spilling precious blood, to fulfill that unique 
American promise. The beliefs and sacrifices of millions of Americans 
throughout the history of our Nation have breathed fuller life and 
given real world relevance to our constitutional ideals.
  With genius and foresight, our founders gave us the tools--the 
Constitution and the Bill of Rights--that have aided and encouraged our 
march towards progress. The guarantees in our founding documents, as 
enhanced in the wake of a divisive Civil War, have guided our Nation to 
live up to the promise of liberty, equality and justice for all.
  We have made much progress. But our work is not finished. We still 
look to our elected representatives and our independent courts in each 
new generation to uphold those guiding principles, to continue the 
great march of progress, and never to turn back or give up hard-won 
gains.
  The commitment to this march of progress was the central issue in the 
John Roberts hearing. We asked whether he, as Chief Justice, would 
bring the values, ideals and vision to lead us on the path of continued 
equality, fairness, and opportunity for all. Or would he stand in the 
way of progress by viewing the issues that come before the Court in a 
narrow and legalistic way, thereby slowly turning back the clock and 
eroding the civil rights and equal rights gains of the past.
  We examined the only written record before us and saw John Roberts, 
aggressive activist in the Reagan Administration, eager to narrow hard-
won rights and liberties, especially voting rights, women's rights, 
civil rights, and disability rights. As Congressman John Lewis 
eloquently stated in our hearings, 25 years ago John Roberts was on the 
wrong side of the nation's struggle to achieve genuine equality of 
opportunity for all Americans. And, despite many invitations to do so, 
Judge Roberts never distanced himself from the aggressively narrow 
views of that young lawyer in the Reagan administration.
  Who is John Roberts today? Who will he be as the 17th Chief Justice 
of the United States?
  John Roberts is a highly intelligent nominee. He has argued 39 cases 
before the Supreme Court, and won more than half of them. He is adept 
at turning questions on their head while giving seemingly appropriate 
answers. These skills served him well as a Supreme Court advocate. 
These same skills, however, did not contribute to a productive 
confirmation process. At the end of the 4 days of hearings, we still 
know very little more than we knew when we started.
  John Roberts said that ``the responsibility of the judicial branch is 
to decide particular cases that are presented to them in this area 
according to the rule of law.''
  Of course, everyone agrees with that. Each of us took an oath of 
office to

[[Page S10475]]

protect and defend the Constitution, and we take that oath seriously. 
But the rule of law does not exist in a vacuum. Constitutional values 
and ideals inform all legal decisions. But John Roberts never shared 
with us his own constitutional values and ideals.
  He said that a judge should be like an umpire, calling the balls and 
strikes, but not making the rules.
  But we all know that with any umpire, the call may depend on your 
point of view. An instant replay from another angle can show a very 
different result. Umpires follow the rules of the game. But in critical 
cases, it may well depend on where they are standing when they make the 
call.
  The same is true with judges.
  As Justice Oliver Wendell Holmes famously stated: The life of the law 
has not been logic; it has been experience.'' He also said that legal 
decisions are not like mathematics. If they were, we wouldn't need men 
and women of reason and intellect to sit on the bench--we would simply 
input the facts and the law into some computer program and wait for a 
mechanical result.
  We all believe in the rule of law. But that is just the beginning of 
the conversation when it comes to the meaning of the Constitution. 
Everyone follows the same text. But the meaning of the text is often 
imprecise. You must examine the intent of the Framers, the history, and 
the current reality. And this examination will lead to very different 
outcomes depending on each Justice's constitutional world view. Is it a 
full and generous view of our rights and liberties and of government 
power to protect the people or a narrow and cramped view of those 
rights and liberties and the government's power to protect ordinary 
Americans?
  Based on the record available, there is insufficient evidence to 
conclude that Judge Roberts view of the rule of law would include as 
paramount the protection of basic rights. The values and perspectives 
displayed over and over again in his record cast doubt on his view of 
voting rights, women's rights, civil rights, and disability rights.
  In fact, for all the hoopla and razzle-dazzle in four days of 
hearings, there is precious little in the record to suggest that a 
Chief Justice John Roberts would espouse anything less that the narrow 
and cramped view that staff attorney John Roberts so strongly advocated 
in the 1980s.
  On the first day of the hearing, Senator Kohl asked, ``Which of those 
positions were you supportive of, or are you still supportive of, and 
which would you disavow?'' Judge Roberts never gave a clear response.
  Other than his grudging concession during the hearing that he knows 
of no present challenge that would make section 2 of the Voting Rights 
Act ``constitutionally suspect''--a concession that took almost 20 
minutes of my questioning to elicit--John Roberts has a demonstrated 
record of strong opposition to section 2, which is almost universally 
considered to be the most powerful and effective civil rights law ever 
enacted. Section 2 outlaws voting practices that deny or dilute the 
right to vote based on race, national origin, or language minority 
status--and is largely uncontroversial today.
  But in 1981 and 1982, Judge Roberts urged the administration to 
oppose a bi-partisan amendment to strengthen section 2, and to have, 
instead, a provision that made it more difficult some say impossible to 
prove discriminatory voting practices and procedures. Although Judge 
Roberts sought to characterize his opposition to the so-called 
``effects test'' as simply following the policy of the Reagan 
administration, the dozens of memos he wrote on this subject show that 
he personally believed the administration was right to oppose the 
``effects test.''
  When Roberts worried that the Senate might reject his position, he 
urged the Attorney General to send a letter to the Senate opposing the 
amendment, stating, ``My own view is that something must be done to 
educate the Senators. . . .''
  He also urged the Attorney General to assert his leadership against 
the amendment strengthening section 2. He wrote that the Attorney 
General should ``head off any retrenchment efforts'' by the White House 
staff who were inclined to support the effects test. He consistently 
urged the administration to require voters to bear the heavy burden of 
proving discriminatory intent--even on laws passed a century earlier--
in order to overturn practices that locked them out of the electoral 
process.
  Judge Roberts wrote at the time that ``violations of section 2 should 
not be made too easy to prove. . . .'' Remember, when he wrote those 
words there had been no African-Americans elected to Congress since 
Reconstruction from seven of the States with the largest black 
populations.
  The year after section 2 was signed into law, Judge Roberts wrote in 
a memorandum to the White House Counsel that ``we were burned'' by the 
Voting Rights Act legislation.
  Given his clear record of hostility to this key voting rights 
protection, the public has a right to know if he still holds these 
views. But Judge Roberts gave us hardly a clue.
  Even when Senator Feingold asked whether Judge Roberts would 
acknowledge today that he had been wrong to oppose the effects test, he 
refused to give a yes-or-no answer.
  Judge Roberts responded: ``I'm certainly not an expert in the area 
and haven't followed and have no way of evaluating the relative 
effectiveness of the law as amended or the law as it was prior to 
1982.''
  So we still don't know whether he supports the basic law against 
voting practices that result in denying voting rights because of race, 
national origin, or language minority status.
  You don't need to be a voting rights expert to say we're better off 
today in an America where persons of color can be elected to Congress 
from any State in the country. You don't need to be a voting rights 
expert to know there was a problem in 1982, when no African American 
had been elected to Congress since Reconstruction from Mississippi, 
Florida, Alabama, North Carolina, South Carolina, Virginia, or 
Louisiana--where African Americans were almost a third of the 
population--because restrictive election systems effectively denied 
African Americans and other minorities the equal chance to elect 
representatives of their choice.
  You don't need to be a voting rights expert to say it's better that 
the Voting Rights Act paved the way for over 9,000 African American 
elected officials and over 6,000 Latino elected officials who have been 
elected and appointed nationwide since the passage of that act.
  And you don't need to be an expert to recognize that section 2 has 
benefited Native Americans, Asians and others who historically 
encountered harsh barriers to full political participation.
  Yet Judge Roberts refused in the hearings to say that his past 
opposition to section 2 doesn't represent his current views.
  Judge Roberts also refused to disavow his past record of opposition 
to requiring non-discrimination by recipients of federal funds. These 
laws were adopted because, as President Kennedy said in 1963, 
``[s]imple justice requires that public funds, to which all taxpayers . 
. . contribute, not be spent in any fashion which . . . subsidizes, or 
results in . . . discrimination.''
  He supported a cramped and narrow view that would exempt many 
formerly covered institutions from following civil rights laws that 
protect women, minorities and the disabled. Under that view, the 
enormous subsidies the Federal government gives colleges and 
universities in the form of Federal financial aid would not have been 
enough to require them to obey the laws against discrimination. That 
position was so extreme that it was rejected by the Reagan 
administration and later by the Supreme Court. Although Judge Roberts 
later acknowledged that the Reagan administration rejected this view, 
he would not tell the committee whether he still holds that view today.
  He also never stated whether he personally agrees with the decision 
in Franklin v. Gwinnett, where the Supreme Court unanimously rejected 
his argument that title IX, the landmark law against gender 
discrimination, provided no monetary relief to a schoolgirl who was 
sexually abused by her schoolteacher.
  A careful reading of the transcript of his testimony makes clear that 
he never embraced the Supreme Court's decision to uphold affirmative 
action at the University of Michigan Law School, nor did he expressly 
agree with the Supreme Court decision that all

[[Page S10476]]

children--including those who are undocumented--have a legal right to 
public education. He emphasized his agreement with certain rationales 
used by the court in those cases, but he left himself a lot of wiggle 
room for future reconsideration of those 5-4 decisions.
  Finally, a number of my colleagues on the committee asked Judge 
Roberts about issues related to women's rights and a woman's right to 
privacy. On these important matters, too, he never gave answers that 
shed light on his current views.
  No one is entitled to become Chief Justice of the United States. The 
confirmation of nominees to our courts--by and with the advice and 
consent of the Senate--should not require a leap of faith. Nominees 
must earn their confirmation by providing us and the American people 
with full knowledge of the values and convictions they will bring to 
decisions that may profoundly affect our progress as a nation toward 
the ideal of equality.
  Judge Roberts has not done so. His repeated reference to the rule of 
law reveals little about the values he would bring to the job of Chief 
Justice of the United States. The record we have puts at serious risk 
the progress we have made toward our common American vision of equal 
opportunity for all of our citizens.
  There is clear and convincing evidence that John Roberts is the wrong 
choice for Chief Justice. I oppose the nomination. I urge my colleagues 
to do the same.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Mr. ALEXANDER. Mr. President, my constituents have been asking me, 
``Who will President Bush nominate for the second Supreme Court 
vacancy?'' The question reminds me of a story about a punter from 
California who went all the way to the University of Alabama to play 
for Coach Bear Bryant. Day after day, this punter would kick it more 
than 70 yards in practice. Day after day, Coach Bear Bryant watched the 
punter kick it 70 yards and said nothing. Finally the young kicker came 
over to the coach and said: Coach, I came all the way from California 
to Alabama to be coached by you. I have been out here kicking for a 
week, and you haven't said a word to me.
  Coach Bryant looked at him and said: Son, when you start kicking it 
less than 70 yards, I will come over there and remind you what you were 
doing when you kicked it more than 70 yards.
  That is the way I feel about President Bush and the next Supreme 
Court nominee. My only suggestion for him would be respectfully to 
suggest that he try to remember what he was thinking when he appointed 
John Roberts and to do it again. Especially for those of us who have 
been trained in and who have respect for the legal profession, it has 
been a pleasure to watch the Roberts nomination and confirmation 
process. It is difficult to overstate how good he seems to be. He has 
the resume that most talented law students only dream of: editor of the 
Harvard Law Review and a law clerk to Judge Henry Friendly.
  I was a law clerk to Judge John Minor Wisdom in New Orleans, who 
regarded Henry Friendly as one of the two or three best Federal 
appellate judges of the last century. In fact, we law clerks used to 
sit around and think about ideal Federal panels on which three judges 
would sit. Sometimes Judge Wisdom and Judge Friendly would sit on the 
same panel, and we tried to think of a third judge. There was a judge 
named Allgood. We thought if we could get a panel of judges named 
Wisdom, Friendly, and Allgood, we would have the ideal panel.
  So Judge Roberts learned from Judge Friendly. Then he was law clerk 
to the Chief Justice of the United States. Add to that his time in the 
Solicitor General's Office, where only the best of the best lawyers are 
invited to serve; then his success as an advocate before the Supreme 
Court both in private and in public practice. Then what is especially 
appealing is his demeanor, his modesty both in philosophy and in 
person, something that is not always so evident in a person of superior 
intelligence and such great accomplishment. Then there are the stories 
we heard during the confirmation process of private kindnesses to 
colleagues with whom he worked.
  Judge Roberts' testimony before the Senate Judiciary Committee 
demonstrated all those qualities, as well as qualities of good humor 
and intelligence, and an impressive command of the body of law that 
Supreme Court Justices must consider. Those televised episodes, which I 
took time to watch a number of, could be the basis for many law school 
classes or many civics classes. Judge Roberts brings, as he repeatedly 
assured Senators on the committee, no agenda to the Supreme Court. He 
understands that he did not write the Constitution but that he is to 
interpret it, that he does not make laws--Congress does that--but that 
he is to apply them. He demonstrates that he understands the Federal 
system. It is not too much to say that for a devotee of the law, 
watching John Roberts in those hearings was like having the privilege 
of watching Michael Jordan play basketball at the University of North 
Carolina in the early 1980s or watching Chet Atkins as a sessions 
guitarist in the 1950s in Nashville.
  One doesn't have to be a great student of the law to recognize there 
is unusual talent here.
  If Judge Roberts' professional qualifications and temperament are so 
universally acclaimed, why do we now hear so much talk of changing the 
rules and voting only for those Justices who we can be assured are ``on 
our side''? That would be the wrong direction for the Senate to go. In 
the first place, history teaches us that those who try to predict how 
Supreme Court nominees will decide cases are almost always wrong. Felix 
Frankfurter surprised Franklin Roosevelt. Hugo Black surprised the 
South. David Souter surprised almost everybody. In the second place, 
courts were never intended to be set up as political bodies that could 
be relied upon to be predictably on one side or the other of a 
controversy. That is what Congress is for. That is why we go through 
elections. That is why we are here. Courts are set up to do just the 
opposite, to hear the facts and apply the law and the Constitution in 
controversial matters. Who will have confidence in a system of justice 
that is deliberately rigged to be on one side or the other despite what 
the facts and the law are?
  Finally, failing to give broad approval to an obviously well-
qualified nominee such as Judge Roberts--just because he is ``not on 
your side''--reduces the prestige of the Supreme Court. It jeopardizes 
its independence. It makes it less effective as it seeks to perform its 
indispensable role in our constitutional republic.
  For these three reasons, Republican and Democratic Senators, after 
full hearings and discussion, have traditionally given well-qualified 
nominees for Supreme Court Justice an overwhelming vote of approval. I 
am not talking about the ancient past. I am talking about the members 
of today's Supreme Court, none of whom are better qualified than Judge 
Roberts. For example, Justice Breyer was confirmed by a vote of 87 to 9 
in a Congress composed of 57 Democrats and 43 Republicans. Justice 
Ginsburg was confirmed by a vote of 96 to 3 in the same Congress. 
Justice Souter was confirmed by a vote of 90 to 9 in a Congress 
composed of 55 Democrats and 45 Republicans. Justice Kennedy was 
confirmed by a vote of 97 to 0 in a Congress composed of 55 Democrats, 
45 Republicans. Justice Scalia, no shrinking violet, was confirmed by a 
vote of 98 to 0 in a Congress composed of 47 Democrats as well as 53 
Republicans. Justice O'Connor was confirmed by a vote of 99 to 0 in a 
Congress composed of 46 Democrats and 53 Republicans. And Justice 
Stevens was confirmed by a vote of 98 to 0 in a Congress composed of 61 
Democrats and 37 Republicans. The only close vote, of those justices on 
this Court, was for the nomination of Justice Thomas, following certain 
questions of alleged misconduct by the nominee. Thomas was confirmed by 
a vote of 52 to 48. However, even in that vote, 11 Democrats crossed 
the aisle to support the nominee.

  If almost all Republican Senators can vote for Justice Ginsburg, a 
former counsel for the American Civil Liberties Union, and a nominee 
who also

[[Page S10477]]

declined, as Judge Roberts occasionally did, to answer questions so as 
not to jeopardize the independence of the Court on cases that might 
come before her. If every single Democratic Senator could vote for 
Justice Scalia, then why cannot virtually every Senator in this Chamber 
vote to confirm John Roberts?
  I was Governor for 8 years in Tennessee. I appointed about 50 judges. 
I looked for the qualities that Judge Roberts has so amply 
demonstrated: intelligence, good character, respect for the law, 
restraint, and respect for those who might come before the court. I did 
not ask one of my nominees how he or she might vote on abortion or on 
immigration or on taxation. I appointed the first woman circuit judge, 
as well as men. I appointed the first African-American chancellor and 
the first African-American State supreme court justice. I appointed 
some Democrats as well as Republicans. That process, looking back, has 
served our State well. It helped to build respect for the independence 
and fairness of our judiciary.
  I hope that we Senators will try to do the same as we consider this 
nomination for the Supreme Court of the United States. It is unlikely 
in our lifetime that we will see a nominee for the Supreme Court whose 
professional accomplishments, demeanor, and intelligence is superior to 
that of John Roberts. If that is so, then I would hope that my 
colleagues on both sides of the aisle will do what they did for all but 
one member of the current Supreme Court and most of the previous 
Justices in our history and vote to confirm him by an overwhelming 
majority.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.