[Congressional Record Volume 151, Number 122 (Tuesday, September 27, 2005)]
[Senate]
[Pages S10481-S10508]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                          Energy Independence

  Mr. NELSON of Florida. Mr. President, I am going to continue to speak 
out on the vulnerable position our country finds itself in with regard 
to our dependence on foreign oil. Somewhere between 58 percent and 60 
percent of our daily consumption of oil comes from foreign shores. If 
that in and of itself is not enough to alarm us--and I think the 
collective Nation has put its head in the sand to ignore the 
ramifications of that fact--certainly the two hurricanes, Katrina and 
Rita, hitting the gulf coast at a very vulnerable position of our oil 
supply as well as our oil refining capacity has reminded us.
  So now with several of the refineries shut down first from Katrina in 
the New Orleans region and the gulf coast region of Mississippi, but 
now with some additional refineries that will be shut down in the Lake 
Charles, LA, region as a result of Hurricane Rita, it

[[Page S10503]]

all the more underscores how vulnerable we are on this thin thread of 
oil supply and oil distribution.
  I think we need an Apollo project or a Manhattan project for energy 
independence. I do not think we ought to make decisions for the 
governing of our country and the comfort and protection of our people 
based on a system of supply and distribution of energy that makes us so 
subject to the whims of things that can happen beyond our control. I 
think we are likely to see this play out in the concern that we are not 
going to have enough home heating fuel for this winter because of the 
disruption that has already occurred. We clearly know what the 
disruption has done already to the prices, but I want to remind the 
Senate that the prices were very high before Hurricane Katrina 
happened.
  In the townhall meetings I was conducting throughout the month of 
August in Florida, continuously people were telling me: Senator Bill, 
we cannot afford to drive to work or, Senator, we cannot afford to 
drive to the doctor.
  That is when the price was at $2.70. After Katrina, of course, it 
went to $3. Who knows what the effect is going to be now as a result of 
Rita. We are living on a thin little margin of error in our supply, in 
our distribution of oil products.
  Is this not enough to wake us up to the fact that this Nation 
collectively ought to come together and say we are going to reduce and 
ultimately eliminate our dependence on foreign oil? We can do that in 
so many different ways.
  Yesterday, I spoke about the coal gasification process for which we 
have put incentives in the energy bill that was signed into law, a 
process that cooks coal, emitting the gas that is a clean-burning gas. 
But that is just one process. Remember, we have 300 years of reserves 
of coal in this country. We do not have to worry about going elsewhere 
in the world to get oil if we are able, through technology development, 
to convert that coal so that it is a clean-burning fuel. That is what I 
spoke about yesterday.
  Today, I tell my colleagues about a process that was actually 
developed back in the first part of the last century by the Germans, 
that is the making of synthetic fuel from coal that is clean burning. 
The South Africans did it, and a lot of the transportation vehicles in 
South Africa run on this synthetic fuel--I think it is a kind of 
diesel--that powers almost all of their vehicles and some of their 
airplanes. Well, we certainly have the resource. We have the coal. Do 
we have the will? The technology is certainly here. It has been here 
since the early part of the last century and one country has already 
employed it and employed it very successfully.
  Tomorrow I am going to come to the Senate floor again and I am going 
to talk about another technology that will help us move toward energy 
independence and to stop this dependence that has put us in such a 
vulnerable position with regard to the defense interests of our country 
and certainly our economic interests. Look what has happened to Delta 
Airlines already. They were in trouble economically long before the 
price of fuel started shooting up, but that is just one 
consequence. Look at the ripple effects of the thousands of people who 
are going to be laid off. Look at the ripple effects of what this 
Congress is going to have to do as we consider the protection of those 
employees' pensions.

  So here it goes. It all comes back to one thing, and that is our 
dependence on an economy that runs on oil when we have known for years 
that we were going to reach the crisis point. It happened with Katrina, 
but it happened back in the early 1970s when there was an oil embargo 
out of the Middle East. It happened again in the late 1970s when there 
was another embargo. When is America going to wake up?
  Each of us has our own ideas, but whenever we try one little thing, 
we cannot get a consensus in the Senate. For the last 4 years, we have 
brought an amendment to the floor, a simple little amendment on doing 
nothing more than raising miles-per-gallon on SUVs, phased in over a 
10-year period so it would not hurt anybody, and we cannot get the 
votes on this floor to pass that.
  Are we beginning to wake up because of what we are facing with 
Katrina? I hope so. This Senator is going to continue to speak out. My 
State, Florida, is in a vulnerable position because we are a peninsula 
that sticks down into these wonderful seas that surround us. But that 
energy has to be brought in. We are a State that does not have a 
natural resource such as oil or coal. We are a State that has to import 
that, and we have to bring it usually from long distances.
  I will continue my dialog with the Senate of the United States 
tomorrow, bringing forth another technology that we can develop if we 
but have the will to change our dependence on foreign oil.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the time from 5:45 
to 6:45 p.m. will be under the control of the majority.
  The Senator from Alaska is recognized.
  Ms. MURKOWSKI. Mr. President, I rise this afternoon to join many of 
my colleagues speaking in strong support of the nomination of Judge 
John Roberts to the position of Chief Justice to the United States. It 
is unquestionable that Judge Roberts is eminently qualified to take on 
the position of Chief Justice. He has an impeccable resume. You can 
look at that and say: There is a person who has given his life to the 
law. An encyclopedic recitation of the law and a solid record as both a 
lawyer and a judge void of an ideological agenda indicate that he will 
be a thoughtful and impartial Justice.
  I had an opportunity to speak with Judge Roberts. There are some 
individuals whose knowledge of the law is so overwhelming and so 
impressive that, quite honestly, they are leaps and bounds above the 
rest of us and it is difficult to follow the conversation. The 
conversation I had with John Roberts was one where you are carrying on 
a conversation, he is able to bring in and impart his legal knowledge 
and continue a conversation that both flows and is comfortable. That is 
a unique talent.
  Of interest to me and my State of Alaska is that John Roberts has 
litigated on behalf of Alaskan clients. When the Mayor of Juneau, who 
was Bruce Botelho, testified on behalf of Judge Roberts before the 
Judiciary Committee, he did so as a former attorney general for the 
State of Alaska and as a Democrat. He had this to say in his testimony 
about Judge John Roberts. He said:

       Working with Judge Roberts, I was fortunate to get to know 
     the most remarkable and inspiring lawyer I have ever met. He 
     will lead the Court in a way that will instill public 
     confidence in the fairness, justice and wisdom of the 
     judiciary.

  When he was attorney general, Mayor Botelho retained John Roberts to 
represent Alaska in cases, to defend Alaska's sex offender registry, 
Alaska's right to submerged lands, and most notably a case involving 
Indian country, an Alaska Native Claims Settlement Act.
  While he was retained by the State of Alaska, John Roberts, I think 
very eagerly, traveled up to the State to learn firsthand those things 
that he was going to be speaking to. He toured the waters of Glacier 
Bay in a Fish and Game boat, went out on a little riverboat, a skiff by 
most people's standards, in the Yukon-Kuskokwim Delta for a couple of 
days just traveling around. He traveled around and not only talked with 
the other lawyers who might be with the group, but he spoke with the 
people. He talked to the crews on the fishing boats. He engaged the 
people where they were. He talked with them about their local concerns. 
He practiced the pronunciation of the native village names. He was 
engaged. He was a real person to those Alaskans he met.
  So often when we have kind of your east coast lawyers coming back to 
visit us up North, they are viewed with a little bit of suspicion. But 
I think it is fair to say that John Roberts made a very serious and a 
very genuine effort to know and appreciate firsthand the facts that 
were going to be presented to him, the facts he was going to be 
arguing. He was not just going to read some brief in the comfort of his 
study, he was going to come and learn for himself.

  As Alaskans, we are fortunate to have a nominee who understands 
Alaska's unique landscape, our people, and its laws. We have some 
Federal laws and acts that are unique to where we

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are and our people and our land up there, so much so that it is very 
difficult to become well versed in the law. Sometimes I think it is 
fair to say we think those on the outside, those in the lower 48, just 
don't get what happens up North and how it applies with us. But I think 
we have learned with Judge John Roberts that he will take the time to 
know and understand not only Alaska's people but the facts and 
circumstances all over.
  As Americans, we have yet to imagine some of the legal questions John 
Roberts will consider in his tenure. But with his breadth of experience 
and his desire to wholly understand the legal matters before him, I 
believe Judge John Roberts will serve the court with integrity, 
thoughtfulness, and dedication to the law.
  John Roberts has made it clear as a judge that it is not his place to 
use the law to further politics or to seek to question settled law. The 
role of justice is one of great restraint, of strict application of the 
law and not judicial activism. I believe John Roberts when he 
unequivocally pledged to uphold impartiality in the law.
  Judge Roberts has explicitly assured us that his respect for the law 
and legal principle vastly outweigh his personal values, his views, or 
loyalty to anyone or anything other than the rule of law. This is the 
basis, the fundamental standard from which we should consider Judge 
Roberts' nomination. In my mind, there is simply no clear cause for 
opposing his nomination.
  If in his testimony Judge Roberts did not communicate his views on 
legal matters which may come before the Court during his tenure, he was 
entirely forthcoming on his judicial philosophy. Judge Roberts stated 
repeatedly that he would bring no agenda to his work as Chief Justice. 
He stated he would judge each issue on its merits and approach each 
case with an open mind, that legal precedent and not his personal views 
would be his guide.
  Perhaps more so than any other recent nominee, Judge Roberts has 
demonstrated a sound understanding and appreciation of the role of a 
Justice and the necessary constraints within which the third branch of 
government should operate. So today, I call on my Senate colleagues to 
take a step back from our politically charged setting to consider 
fairly a man who is incredibly qualified to become our Chief Justice.
  I will quote from Roberts' testimony as I end here. He said:

       The rule of law--that's the only client I have as a judge. 
     The Constitution is the only interest I have as a judge. The 
     notion I would compromise my commitment to that principle . . 
     . because of views toward a particular administration is one 
     that I reject entirely. That would be inconsistent with the 
     judicial oath.

  John Roberts has what it takes to be the Chief Justice of the United 
States, which is complete love for the law, an erudite legal mind, and 
judicial modesty. I lend my support to the nominee and look forward to 
this body confirming him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I rise in support of Judge Roberts to be 
the next Chief Justice of the U.S. Supreme Court. That probably comes 
as no great surprise to anyone who has followed my career, but I think 
my reasoning hopefully will illuminate a little bit as to the 
difference between my passions as a Member of the Senate and as a 
legislator and my duty as a Senator to confirm nominees to the courts 
of this country because I do see them as different.
  My job as a Senator is to be a passionate advocate for the things I 
believe are best for my State, for the constituents I represent, and 
best for the country and ultimately the world. I come here, as my 
colleagues have noted on occasions, with a fair degree of energy and 
passion and commitment to those causes.
  When I approach the issue of nominations, particularly to a position 
of this import, judicial nominations, I come with a different agenda. A 
court is not a place for zealous advocates to impose their will upon 
the American public. It is not a place for people who believe their 
views as judges are superior to the views of the democratically elected 
officials in this country--better put, that their views are better than 
the people's views because we are, in fact, accountable to the people 
we represent. When I look at the confirmation process for judges, I try 
to step back and use a different criteria--not whether I agree with the 
judge's points of view on a variety of different issues but whether I 
believe the judge can carry out the role of a judge.
  It is interesting in this debate that we have heard here in the 
Chamber and we have been hearing across this country now for the better 
part of 3 or 4 years since we have been locked up in the judicial 
confirmation battle that it has been a battle about ideology. It has 
been a battle about interpretations of the Constitution and rights 
derived from that Constitution and whether they will be upheld or 
whether they will be struck down or whether they will be modified. I 
believe that is an unfortunate debate. It is unfortunate that those who 
are applying or have been nominated for judicial positions are put in 
the positions of now being questioned as if they are running for 
political office, under the scrutiny of someone who is running for 
political office and make judgments about public policy as opposed to 
what the traditional role of the Court has been up until the last 40 or 
50 years, just to decide the case before them in a narrowly tailored 
fashion, to do justice to the parties, in concert with the Constitution 
of this country--applying the law in this narrowly tailored fashion to 
come up with a just result for the parties in the case.

  In the last 40 or 50 years, that type of justice has been rarer and 
rarer to find in our decisions, particularly on the Supreme Court.
  As I come here, I again don't come here as a conservative. A lot of 
my supporters have said I am not sure Judge Roberts is a conservative. 
My response is, I am not sure either. Further, I am not sure it 
matters. What I am sure of is Judge Roberts will be a good judge, will 
be someone who sits and judges the case on the merits of the arguments 
as they apply to the Constitution of this country, and will do so in a 
way that comports with the great tradition in the last 40 or 50 years 
of the American judiciary. I am confident of that.
  I think if there is anything that those on both sides of the aisle 
would say it is that Judge Roberts understands the limited role of the 
courts.
  When Judge Roberts came into my office shortly after he was 
nominated, he stunned me. I have met with a lot of nominees who wanted 
to be judges from Pennsylvania, from the circuit courts as well as 
district courts. This was my first opportunity to meet a nominee for 
the Supreme Court. I have been here 11 years, and this is the first 
nomination for the Supreme Court in my 11 years here in the Senate. But 
having met many people who wanted to aspire to be judge, he was the 
first nominee I met with who used terms such as ``humility'' and 
``modesty'' when describing the role of a judge in his role in the 
judicial process. Words such as ``judicial restraint'' again are not 
hallmarks of this judicial debate we have been engaged in now for the 
last few years. That may give some pause to conservatives who would 
like to see an activist conservative reversing lots of decisions 
conservatives are concerned about which the Court has passed down in 
the last few decades.
  But to me, it gives me comfort to know this is a judge who will apply 
the law, who will not seek to replace the role of the legislature, or 
the President, State legislatures, and the Governors, township 
supervisors, county councils, but that he will do justice with the 
facts before him in the case in solving the dispute that has been 
presented to him.
  As I said, we have had far too little of that kind of justice over 
the last few years.
  As a result, I have written and spoken about the concern I have in 
this country that the judiciary is taking an ever increasing and 
dominant role in our society and in our Government. We are supposed to 
be a government that has checks and balances. When you talk about 
checks and balances, most people think about Republicans and Democrats. 
Of course, checks and balances were written long before there were such 
things as Republicans and Democrats. Checks and balances are the 
remainder of power between the branches of Government, one to check the 
other to make sure this finely

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tuned and crafted document, the Constitution, that establishes these 
three branches would stay in equilibrium.
  There were concerns at the time about a strong President running 
roughshod over the Congress and the judiciary and a strong Congress 
doing the same. Very few had concerns about the judiciary, particularly 
Hamilton in the Federalist Papers. He showed very little concern about 
a judiciary getting out of control. One exception to that was Thomas 
Jefferson. It was not at the time of the writing of the Constitution 
but years later, after a few court decisions had been handed down which 
gave power to the courts, which I am not sure many of the writers of 
the Constitution envisioned.
  But having given them power as a result of earlier court decisions, 
Jefferson wrote in 1821, ``The germ of destruction of our Nation is in 
the power of the judiciary, an irresponsible body working like gravity 
by night, and by day gaining a little today and a little tomorrow and 
advancing its noiseless step like a thief over the field of 
jurisdiction until all shall render powerless the checks over one 
branch over the other, and will become as venal and oppressive as the 
government from which we were separated.''
  That was Jefferson's concern about our judiciary, this 
``irresponsible'' body, in his terms--irresponsible in the sense that 
it owes no responsibility or duty, has no real ability over the 
executive or legislative branches to be checked.
  Why do I go off on this discussion about the courts? It is because of 
this penchant of the judiciary to grab more authority, to act as a 
superlegislature and lord itself over the rest of society that we need 
men such as John Roberts on this Court who understand as Chief Justice 
the danger a judiciary of this kind is to the United States of America 
and to our democracy.
  While I am not sure John Roberts is a conservative, I am not sure he 
will overturn cases which I believe should be overturned, I am sure he 
will do justice. He will execute his duties with restraint, modesty, 
and humility as the Founders who had no concern about the judiciary 
believed those in positions on the Court would do. He is someone whom 
our Founders would be proud of to serve in that position. He is someone 
we desperately need to speak in the Court, to speak to the Court, and 
lead the Court in a direction that usurps less the powers reserved for 
the people in our Constitution.
  I strongly support John Roberts. I hope the President in his next 
nomination will nominate someone very much in the vein of John Roberts. 
This Court and this country need people such as John Roberts.
  I yield the floor.
  Mr. President, 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. MARTINEZ. 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. MARTINEZ. Mr. President, today I rise for the first time as a 
U.S. Senator to exercise my constitutional obligation to provide advice 
and consent to a presidential nominee for Chief Justice to the United 
States Supreme Court. It is a high privilege that carries with it great 
responsibility. The responsibility to ensure, in so much as is 
possible, that the nominee is not only of the highest intellect, 
integrity and character, but that he or she comes to the process with 
no personal ideological agenda. That the nominee recognizes there is no 
room in the business of judging for the personal policy ideals of 
individual judges and that the symbolism of the judge's black robe to 
shield both the litigants and the country from the personal 
idiosyncrasy must be carried out in the discharge of the heavy 
responsibilities of the Court.
  Today I add my voice to that of my colleagues speaking in support of 
the nomination of John Roberts to become the 17th Chief Justice of the 
United States of America.
  Before the confirmation hearings began, we knew that John Roberts had 
impeccable academic qualifications to serve as the chief judicial and 
administrative officer of the highest court in the land.
  Before the hearings began we knew that John Roberts had the 
wholehearted support of prior Solicitors General, in both Democrat and 
Republican administrations.
  We knew that he had the overwhelming support of a majority of members 
of the District of Columbia bar where he practiced and we knew that he 
received the highest possible rating from the American Bar Association.
  In short, we knew that his qualifications to serve were impeccable 
and unassailable.
  And what we now know after the confirmation hearings, after extensive 
interaction with Members of the Senate, 20 hours of testimony and the 
give and take of responding to over 500 questions, is that Judge 
Roberts is possessed of: a quiet humility; a deep understanding and 
modest view of his own significance; a healthy appreciation of the role 
of the Court in the governance of our nation; respect for the 
limitation of precedent; an awareness of the dangers of looking to 
foreign jurisdictions for guidance in shaping the laws of our land; and 
a commitment to respecting the proper role of the courts in 
interpretation of the law.
  I am persuaded that Judge Roberts will look to established precedent, 
be respectful of the doctrine of stare decisis and will use the 
constitution and the law as his guideposts as opposed to any personal 
whim or political agenda.
  In my private meeting with Judge Roberts we discussed his view of the 
role of the Chief Justice. From his thoughtful response, it was clear 
that he had well considered ideas about providing effective and 
constructive leadership to his colleagues on the Court. In every 
institution or endeavor, great leadership finds a way to unite rather 
than to divide. I am confident that Judge Roberts will provide that 
leadership.
  I want to mention that while a nominee's views issues such as the 
``right to privacy'' are unquestionably significant and have occupied a 
great deal of the time dedicated to the confirmation process, our 
entire judiciary looks to the Supreme Court for guidance on many other 
issues other than the ``great constitutional questions of our day.''
  I'm hopeful that as we go forward with our next nominee, we can find 
some time to also discuss issues that are vital to the day-to-day 
administration of justice.
  What are the nominee's views on the cost of litigation in our country 
or the length of time required for litigants to have their claims 
adjudicated? Is there a fair mechanism to address legitimate concerns 
about nonmeritorious cases?
  What has the effect of the speedy trial rule been on the ability of 
litigants in civil case to have a fair and prompt resolution of their 
claims?
  What are the nominee's views on the argument that complex cases 
involving scientific evidence are beyond the ken of average jurors?
  Where does the nominee stand on the difficult issue of sentencing 
guidelines and the current tension existing between the Congress and 
the Courts on the appropriateness of giving federal judges discretion 
in the imposition of sentences?
  Where does the nominee stand on the problems of electronic discovery 
in civil and criminal cases?
  What are the nominee's views on the importance of 12 member juries in 
civil cases? Could juries of 6 serve justice just as well? Why are 
unanimous verdicts required in civil cases could another method lead to 
a better quality of justice?
  These questions may not make for good headlines, but they surround 
issues that are vital to the administration of justice in our great 
country.
  It is my hope we will take the time to discuss them in the coming 
weeks as we go forward with the confirmation process of a nominee to 
replace Sandra Day O'Connor. These are the questions we should consider 
as we depoliticize the confirmation process and return our attention to 
working together to advance the cause of justice in our Nation.
  My colleagues should take note that the American Bar Association gave 
Judge Roberts the rating of ``Well Qualified'' for Chief Justice of the 
United States.
  To earn that rating, the ABA which is viewed as the solo standard, 
says, ``the nominee must be at the top of the

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legal profession, have outstanding legal ability and exceptional 
breadth of experience and meet the highest standards of integrity, 
professional competence and judicial temperament.
  The evaluation of ``Well Qualified'' is reserved for only those found 
to merit the Standing Committee's strongest affirmative endorsement.'' 
In conducting its investigation, the ABA reached out to a wide spectrum 
of people across political, racial and gender lines, including lawyers, 
judges and community leaders--people with personal knowledge of Judge 
Roberts.
  The ABA interviewed Federal and state court judges, including all 
members of the Supreme Court of the United States, members of the 
United States Courts of Appeals, members of the United States District 
Courts, United States Magistrate Judges, United States Bankruptcy 
Judges, and numerous state judges. The results were as follows:
  On integrity: ``He is probably the most honorable guy I know and he 
is a man of his word.'' ``I would be amazed if anyone had any greater 
integrity on either a personal or professional level.'' ``He's a man of 
extraordinary integrity and character.''
  On judicial temperament: ``He has the kind of temperament and 
demeanor you would want in a judge.'' ``He was extremely even-tempered 
and was so good that he could give classes on it.'' ``John Roberts is 
respectful, polite and understated. He has no bluster and is a fabulous 
lawyer. He has no need to impress anyone.
  On professional competence: ``He is brilliant and he understands the 
importance of the independence of the judiciary and the role of the 
rule of law.'' ``His opinions are clear, succinct and very well-
written.'' ``His opinions are in the mainstream of American 
jurisprudence.''
  In my own meeting with Judge Roberts, I was particularly impressed 
with his discussion of the dangers associated with looking beyond the 
borders for guidance or the support of precedent.
  His response reflected a deep and comprehensive understanding not 
only of the importance of judicial precedent in setting boundaries for 
the Court, but also the role of the people, the legislative process and 
our representational form of government. Judge Roberts noted in our 
meeting and again in his testimony before the committee that our judges 
are appointed by our elected President and their appointment requires 
the consent of the duly elected members of the Senate.
  This provides a measure of accountability consistent with the 
intention of the Founding Fathers.
  Looking to a foreign source for legal principles deprives the 
American people of that accountability. To use Judge Roberts words, and 
I paraphrase, it's a bit like looking out over a large crowd to 
identify your friends. If you look hard enough, you can find something 
you like.
  To my colleagues who are poised to cast a vote in opposition to the 
nominee, I would ask them to take a close look at Judge Robert's 
testimony at the commencement of the hearing:

       I have no agenda, but I do have a commitment. 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, and I will remember it's my job to call 
     balls and strikes, and not to pitch or bat.

  I must ultimately arrive at my decision based on a considered 
judgment as to whether this nominee has the qualifications, temperament 
and experience required of such high appointment. Does he have the 
requisite personal ethics and moral code to serve as our nation's 
highest judicial officer?
  I have measured this nominee against this high bar for confirmation 
and find him qualified in every respect.
  I accept Judge Roberts' word as his bond, consistent with his history 
as a man of unquestioned integrity and commitment to the highest ideals 
demanded of our judicial officers. I look forward to casting a historic 
vote in support of this most highly qualified nominee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. COBURN. Mr. President, first, I have the distinct privilege of 
being on the Judiciary Committee. I also have the distinct privilege of 
serving with three other members on that committee who are nonlawyers 
so I bring to that committee not a legal background but a citizen 
background. One of the things I found very refreshing during the 
hearings was the fact that we have a person in the name of John Roberts 
who recognizes the role of the judiciary as outlined by our Founders. I 
will go into that in a minute.
  I will address, first, some issues that are important.
  We heard today some criticisms of Judge Roberts in sitting and 
hearing the Hamdan case while he was under consideration for this 
position. For the record, I show that Justice Ginsburg, during her 
consideration, decided 24 cases. Justice Breyer decided 15 cases during 
the period of time he was under consideration. I have the attestation 
of ethicists who have made statements in support of the fact that Judge 
Roberts violated no ethical creed and did nothing but his job as an 
appellate justice while hearing this, and I ask unanimous consent to 
have them printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 George Washington


                                        University Law School,

                                  Washington, DC, August 18, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: A recent story in the Washington Post 
     suggested that it might have been improper for Judge John 
     Roberts to participate on the D.C. Circuit panel that decided 
     the recent case of Hamdan v. Rumsfeld. The Post story relied 
     heavily on a short article written by three professors, 
     Stephen Gillers, David Luban and Steven Lubet, and published 
     on the internet in slate.com.
       I write to provide perspective on the issues raised by 
     these articles and to make clear that Judge Roberts' 
     participation on the panel was proper. To briefly suggest my 
     background to draw such a conclusion, I have taught and 
     written in the field of legal and judicial ethics for over 
     thirty years. The law school text that I co-author has long 
     been the most widely used in the country, and it covers 
     judicial ethics in considerable detail.
       There are several points on which all observers would 
     agree. First, 28 U.S.C. Sec. 455 requires Judge Roberts or 
     any other federal judge to disqualify himself ``in any 
     proceeding in which his impartiality might reasonably be 
     questioned.'' The key term, of course, is ``reasonably.'' 
     Anyone could assert that a given judge was not impartial. 
     Indeed, a litigant might be expected to do so whenever he or 
     she preferred to have someone else hear their case. Thus, the 
     statute does not allow litigants (or reporters or professors) 
     to draw a personal conclusion about the judge's impartiality; 
     the conclusion must be ``reasonable'' to a hypothetical 
     outside observer.
       Second, saying as some cases do, that judges must avoid 
     even ``the appearance of impropriety'' adds nothing to the 
     analysis. Unless the ``appearance'' is required to be found 
     reasonable by the same hypothetical outside observer, the 
     system would become one of peremptory challenges of judges. 
     That is not the system we have, nor would it be one that 
     guarantees the judicial authority and independence on which 
     justice ultimately depends.
       Third, there is no dispute that judges may not hear cases 
     in which they would receive a personal financial benefit if 
     they were to decide for one party over another. The first 
     case cited (albeit not by name) by Professors Gillers, Luban 
     & Lubet was Liljeberg v. Health Services Acquisition Corp., 
     486 U.S. 847 (1988). It simply decided that a judge had a 
     personal interest conflict and could not decide a case that 
     would financially benefit a university on whose Board of 
     Trustees the judge sat. In short, the case says nothing 
     relevant to Judge Roberts' conduct.
       Fourth, a judge may not hear a case argued by a private 
     firm or government office with which the judge is negotiating 
     for employment. The reason again is obvious. That was the 
     fact situation in the remaining two cases cited by Professors 
     Gillers, Luban & Lubet in their slate.com article. The cases 
     break no new ground and provide no new insights relevant to 
     this discussion.
       Critics of Judge Roberts suggest, however, that his 
     ``interviews'' with the Attorney General and with members of 
     the White House staff were analogous to private job 
     interviews. That is simply not the case. A judge's promotion 
     within the federal system has not been--and should not be--
     seen as analogous to exploration of job prospects outside of 
     the judiciary.
       Except for the Chief Justice, every federal judge is at 
     least in principle a potential candidate for promotion to a 
     higher status in the judiciary. One might argue that no 
     district judge should ever be promoted to a

[[Page S10507]]

     court of appeals, and no court of appeals judge should be 
     elevated to the Supreme Court, but long ago, we recognized 
     that such an approach would deny the nation's highest courts 
     the talents of some of our most experienced and able judges. 
     One need only imagine the chaos it would cause if we were to 
     say that no federal judge could hear a case involving the 
     federal government because he or she might be tempted to try 
     to please the people thinking about the judge's next role in 
     the federal judiciary. Nothing in Sec. 455 requires us to say 
     that it would be ``reasonable'' to assume such temptation. We 
     properly assume that judges decide cases on their merits and 
     see their reputation for so doing as their basis for 
     promotion, if any.
       To be fair to the critics, they argue that a judge's 
     situation might be different once actual ``interviews'' begin 
     for the new position. The problem with that, of course, is 
     that interviews are only a step beyond reading the judge's 
     decisions in a file, interviewing observers of the judge's 
     work, and the like. That kind of thing goes on all the time, 
     including in the media. Further, all accounts suggest that 
     several judges were being ``interviewed'' and that for most 
     of the period of the interviews, there was not even a Supreme 
     Court opening to fill. Assuming, as even Professors Gillers, 
     Luban & Lubet do, that no improper pressure or discussion 
     took place in the interviews themselves, it is hard to see 
     that physically meeting with White House staff transforms 
     what is inevitable and proper in the judicial selection 
     process into something more suspect.
       Again, even Professors Gillers, Luban & Lubet ultimately 
     concede that Judge Roberts should not have had to withdraw 
     from all cases brought by the government as the logic of 
     their criticism would seem to suggest. They argue instead 
     that the Hamdan was special. It was ``important'' to the 
     Administration and therefore required special caution.
       I respectfully suggest that an ``importance'' standard for 
     disqualification could not provide sufficient guidance for 
     the administration of the federal courts. Every case is 
     important, at least to the parties. Furthermore, while some 
     cases have greater media interest than others, and some are 
     watched more closely by one interest group or another, every 
     case before the D.C. Circuit that involves the federal 
     government is there because high level Justice Department 
     officials have concluded that the appeal is worth filing or 
     resisting.
       Saying that some cases are important and others are not 
     ultimately reveals more about the speaker's priorities than 
     it does about the intrinsic significance of the case. Indeed, 
     earlier this year, the Supreme Court decided United States v. 
     Booker and United States v. Fanfan involving the Sentencing 
     Guidelines. Few decisions have had more impact on the 
     operation of federal courts in recent years, yet it was 
     widely reported that Professor Gillers opined to Justice 
     Breyer--correctly in my view--that he need not recuse himself 
     even though his own work product as a former member of the 
     Sentencing Commission arguably was indirectly at issue. 
     Importance of the case was not the controlling issue for 
     Professor Gillers then, and it is simply not a standard now 
     that can clearly guide a judge as to which cases require 
     disqualification and which do not.
       Indeed, the critics of Judge Roberts' remaining a part of 
     the Hamdan panel overlook the fact that judges of the D.C. 
     Circuit are assigned to the cases that they hear on a random 
     basis. That randomness is part of the integrity of the 
     court's process and it guarantees that no panel can be 
     ``stacked'' with judges favorable to one litigant or another. 
     Weakening the standard for a reasonable appearance of 
     impropriety, and making recusal turn on which litigants can 
     place news stories accusing judges with of a lack of ethics 
     would adversely affect the just outcomes of cases more than 
     almost any other thing that might come out of the hearings on 
     Judge Roberts' confirmation.
       In short, in my opinion, no reasonable observer can 
     ``reasonably question'' the propriety of Judge Roberts' 
     conduct in hearing the Hamdan case. He clearly did not 
     violate 28 U.S.C. Sec. 455. Indeed, he did what we should 
     hope judges will do; he did his job. He participated in the 
     decision of a case randomly'assigned to him. We should honor 
     him, not criticize him, for doing so.
           Respectfully,
                                                 Thomas D. Morgan,
     George Washington University Law School.
                                  ____



     Statement by Professor Geoffrey C. Hazard, Jr., University of 
                        Pennsylvania Law School

       In my opinion, Judge Roberts could have decided to recuse 
     himself in the Hamdan case but was not obliged to. Hence, it 
     was a matter of professional judgment. These situations, 
     where a judge is being considered for some other or 
     additional possibility, are fairly common these days, hence 
     part of the environment. Also, recusing would require some 
     kind of explanation, which could lead to leaks, which could 
     embarrass other government procedures, such as background 
     checks. I believe that it is reasonable to say that he 
     should, have recused himself, but also reasonable for him to 
     have concluded that it was not obligatory.

  Mr. COBURN. I thought it would be important for the American people 
to hear what our Constitution says about our judges. I also thought it 
would be important for the American people to hear the oath sworn by a 
judge.
  I have been a Senator for less than a year. When I was campaigning--I 
also will readily admit I am a pro-life conservative from Oklahoma--but 
when I was asked during that campaign if I had a litmus test on a 
Supreme Court nominee, every time I said ``no,'' except one: Integrity. 
It doesn't matter what position a judge holds. It doesn't matter what 
their background is. It doesn't matter what their thoughts on any issue 
are. If they lack integrity, none of the rest of it matters. No one can 
claim that John Roberts lacks integrity.
  During that campaign, I very well explained to the people of Oklahoma 
that I didn't want a Justice that sided with me. I didn't want a 
Justice that sided with anybody, except the law and the Constitution.
  Here is what article III says about judges:

       The judicial Power of the United States, shall be vested in 
     one supreme Court, and in such inferior Courts as the 
     Congress may from time to time ordain and establish. The 
     Judges, both of the supreme and in inferior Courts, shall 
     hold their offices during good Behavior, [we heard some 
     conversation about foreign law; Judge Roberts passes the bar 
     on his refusal to use foreign law] and shall at stated Times, 
     receive for their Services a Compensation which shall not be 
     diminished during their Continuance in Office.
       [Their power] shall extend to all Cases, in Law and Equity, 
     arising under this Constitution, and the Laws of the United 
     States, and Treaties made, or which shall be made, under 
     their Authority;

  It reads in article 6 that:

       This Constitution and the Laws of the United States which 
     shall be made in Pursuance thereof, and all Treaties made, or 
     which shall be made, under Authority of the United States, 
     shall be the supreme Law of the Land, and the Judges in every 
     State shall be bound thereby, any Thing in the Constitution 
     or Laws of any State to the Contrary notwithstanding.
       The Senators and Representatives before mentioned, and the 
     Members of the several State Legislatures, and all executive 
     and judicial Officers, both of the United States and the 
     several States, shall be bound by Oath or Affirmation, to 
     support this constitution; but no religious Test shall ever 
     be required as a Qualification to any Office or public Trust 
     under the United States.

  The oath John Roberts will take and each Justice before him is as 
follows:

       I do solemnly swear that I will administer justice without 
     respect to persons and do equal right to the poor and to the 
     rich, and that I will faithfully and impartially discharge 
     and perform all the duties incumbent upon me under the 
     Constitution and the laws of these United States, so help me 
     God.

  There are going to be several of my colleagues who will vote against 
John Roberts. The real reason they will be voting against John Roberts 
is because he would not give a definite answer on two or three of the 
social issues today that face us. He is absolutely right not to give a 
definite answer because that says he prejudges, that he has made up his 
mind ahead of time. The religious test I spoke about is one of if you 
don't agree with me and what I believe and if you don't believe there 
are certain rights to privacy or certain rights that are there that are 
not spelled out in the Constitution that have become rights, you have 
set up a religion. The religious test is going to be that if he won't 
give an answer on those controversial social issues such as abortion 
today, he will never qualify. Under that religious test, no nominee 
President Bush will nominate to the Supreme Court will ever get their 
vote, regardless of whether they are pro-Roe v. Wade or against Roe v. 
Wade. The fact is, they will not commit.
  Therefore, if you can't know or you are suspicious that somebody 
might take one position or the other ahead of time and you have that as 
a test, you yourself are violating one of the tests of the 
Constitution.
  I believe John Roberts is a man of quality. Most importantly, he is a 
man of integrity. I don't want him to rule my way. I want him to rule 
the right way. The right way is equal justice under the law for all of 
us. If he does that and if the rest of the Supreme Court starts 
following him, we will reestablish the confidence that is sometimes 
lacking in the Court today, and we will also reestablish the balance 
between the judiciary, executive, and legislative branches.
  It is my hope this body will give a vote to John Roberts that he 
deserves based on his interpretation, knowledge, and honesty with the 
committee and, fundamentally, with his integrity that is endorsed by 
the American Bar Association. Everyone who knows him

[[Page S10508]]

knows he will do just that, equal justice under the law for every 
American.
  I yield the floor.
  Mr. ENZI. I rise today to share my thoughts on the nomination of 
Judge John Roberts to be the Chief Justice of the U.S. Supreme Court. 
Like most Americans, I watched the Judiciary Committee hearings with 
great interest and curiosity. Judge Roberts could potentially be the 
17th Supreme Court Chief Justice in the history of the United States. 
It is amazing to consider that only 16 other people have shared that 
honor. It is a much shorter line than the number of Presidents back to 
George Washington--42.
  Considering this tie with history, I was thrilled to be watching the 
proceedings. However, I am also aware of my serious responsibility as a 
U.S. Senator at this time. The Senate has the duty to give its advice 
and consent to the President's nomination. Given the comparative youth 
of Judge Roberts, the vote this week could affect the dispensation of 
constitutional questions for many decades.
  During over 20 hours of questions, I had ample opportunity to 
consider the qualities and character of Judge Roberts. I observed Judge 
Roberts' keen intelligence and modesty regarding his accomplishments. I 
also enjoyed his sense of humor in the midst of intense and repetitive 
questioning. He convinced me that he is qualified to serve on the 
highest Federal bench.
  During the hearings, I was reminded of a common fallacy where people 
think judges are politicians. Judges are not politicians. It has been 
easy to slip into the thinking that we need to know their political 
allegiance so that we can know what their decisions will be. We also 
begin thinking that judges should make decisions based on good policy. 
Finally, we believe that judges have to make us promises on the future 
decisions so they can win our votes. Judges are not politicians. We 
need to know their qualifications, not their political allegiances. We 
need to know that their decisions will be made on the rule of law, not 
on good policy. We need to know that judges will not make promises to 
prejudge future cases in order to win votes. Judges are not 
politicians. A judge's only constituent should be the U.S. 
Constitution. If the people were the constituents of judges, our 
confidence in an impartial hearing and ruling on our case would 
collapse.
  A judge should be an intelligent, impartial, open, and unbiased 
executor of the law. I believe that Judge Roberts meets these 
qualifications and is fit to serve as the Chief Justice of the Supreme 
Court. I am pleased that a bipartisan majority of the Judiciary 
Committee passed him through the committee. I go home to Wyoming most 
weekends. It lets me personally poll my constituents. That is an 
advantage of being from the least populated State. I can assure you 
they are impressed with Judge Roberts. That is probably not a surprise. 
However, during the week when I am in DC, I visit with the janitors, 
electricians, picture hangers, and others around the offices. To a 
person they had comments like ``this man really knows his stuff.'' ``He 
answers their questions without a single note or staff person 
whispering in his ear. I bet he could take the bar exam tomorrow and 
still pass it. This guy is good'' and I think that is the opinion of 
mainstream America. I look forward to voting on his nomination later 
this week.
  Even after the vote, the Senate's work to fill the Supreme Court will 
not be complete. We are waiting for another nomination from President 
Bush to replace retiring Justice O'Connor. I am pleased with the recent 
precedent set by the Judiciary Committee.
  In a bipartisan and timely manner, they voted out a nominee based on 
his qualifications. They voted him out based on his stated devotion to 
applying the rule of law. As the Senate prepares to consider the next 
Supreme Court nomination, it is my hope that the same process will be 
followed--a timely consideration based upon the qualifications of the 
nominee and not on scoring political points.
  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. COBURN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________