[Congressional Record Volume 151, Number 122 (Tuesday, September 27, 2005)]
[Senate]
[Pages S10521-S10523]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE

  Mr. DURBIN. Mr. President, the Senate is considering the nomination 
of John G. Roberts, Jr. to be Chief Justice of the United States. This 
is a rare occurrence, rare for us to even consider a Supreme Court 
vacancy, let alone a Chief Justice. I have been honored to be a member 
of the Senate Judiciary Committee and have spent the week before last, 
a major part of it, in hearings where Judge Roberts came and testified. 
They were historic in nature. I am surprised, as I go back home to 
Illinois, how many people followed them and listened, either over the 
radio or watched them on television, and followed the questions and 
answers so closely.
  It has been a very difficult process for many. I can't think of a 
more challenging assignment than to try to measure a person and try to 
decide how a person will react to certain questions and challenges over 
the rest of their natural lifetime. But that is our responsibility. 
Filling this vacancy on the Supreme Court means choosing a person of 
Judge Roberts' age, for example, who could serve for 20 or 30 years. 
That is the reality of this decisionmaking process.
  The greatest compliment one can pay a judge is not that he is smart 
or has great intelligence. The greatest compliment one can pay a judge 
is that he is wise, that in his work on the bench, he has shown the 
wisdom of Solomon.
  In the Scriptures, Solomon was often described as the wisest man who 
ever lived. But in chapter 3 of First Book of Kings, we learn what 
Solomon wanted even more than wisdom. It is written:

       In Gibeon, the Lord appeared to Solomon in a dream at 
     night, and God said, ``Ask what you wish me to give you.'' 
     Then Solomon said, ``So give your servant an understanding 
     heart to judge your people, to discern between good and evil. 
     For who is able to judge this great people of yours?''

  Many questions were asked of John Roberts at his hearings. If there 
was any effort to determine whether he had a great legal mind or great 
intelligence, he certainly satisfied every question. But then if you 
look at the questions more carefully, more closely, you will find we 
were asking even more fundamental questions of John Roberts. We were 
asking and trying to determine not his knowledge but his wisdom, 
whether he had, as Solomon wished, an understanding heart.
  Some have argued that it is unfair for any Senator to raise that kind 
of a question. Senator Lindsey Graham of South Carolina is my friend. 
He said it was not fair to get into this whole line of questioning 
about what is in your heart. I disagree. I believe we are not being 
fair to the American people if we don't understand the values of people 
who serve on the Supreme Court, if we don't strive to understand their 
philosophies, and if we don't try to put ourselves inside the mind and 
heart of someone we are entrusting with a lifetime position to serve on 
the highest Court in the United States.
  In 1991, at his confirmation hearing, Justice Souter said that judges 
must understand that since they are people who have the power to 
``affect the lives of other people and who are going to change their 
lives by what they do, we had better use every power of our minds and 
our hearts and our beings to get these rulings right.''
  Justice Breyer in 1994 said:

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

  I asked John Roberts if he could meet the test that my mentor and 
predecessor, Illinois Senator Paul Simon, brought to the Judiciary 
Committee questioning years ago. Senator Simon asked of the judicial 
nominees: Is this nominee committed to expanding the freedom enjoyed by 
all Americans, or will he or she restrict it? I also asked Judge 
Roberts whether he had the courage of Frank Johnson, an Alabama Federal 
judge and a Republican appointee who stood up for civil rights in the 
1960s at a time and place when it was very unpopular to do so. What did 
we learn? Regrettably, we learned very little about Judge Roberts 
during the 20 hours of testimony.
  Senator Feinstein and Senator Biden asked an important line of 
questions that I followed carefully. They asked of Judge Roberts what 
he would do, not as a judge, not as a lawyer, but as a father in a 
family circumstance where someone you love has left instructions to you 
that at the closing moments of their life, they do not want any 
extraordinary life support. This happens thousands of times every day. 
Families face this decision, and it is an important decision, not just 
on a personal and emotional basis but on the basis of our right of 
privacy in America. In the Terry Schiavo case--that tragedy in 
Florida--this sad woman was on a support system for some 15 years, if I 
am not mistaken. The case went through the courts year after year, and 
finally, when all the appeals in Florida had been exhausted, there was 
an effort

[[Page S10522]]

made by some in the House of Representatives to have the Federal courts 
intervene and try to make the decision for that family, a decision 
which her husband believed had already been made. It was unfortunate 
that Judge Roberts, even on a personal basis, would not address that 
issue. We were looking for an insight into his thinking about a family 
decision that many will face.
  I asked him as well about his decision as a private attorney to 
represent an HMO in a case called Rush Prudential HMO v. Moran. That 
was a case that was important because this patient had an expensive 
surgery that cost over $90,000. When the doctor said the patient needed 
the surgery and went ahead with it, the HMO said: No, we didn't approve 
it, and refused to pay.
  John Roberts as a private attorney represented the HMO. He went 
before the Supreme Court and argued that the HMO should not have to pay 
for this patient's expensive surgery. I asked Judge Roberts: When you 
took that case, did you ever consider the fact that if you won that 
case, millions of Americans could lose their health insurance 
protection? Did you have any reservations about taking a case where so 
many people could suffer as a result?
  He said no. And he said something more. He said: If the other side on 
that case had walked in first and asked me to be their lawyer, I would 
have represented the other side as well.

  The following day, I asked him questions about cases he had taken, 
cases he pointed to with pride, so-called pro bono cases where lawyers 
work for free when people cannot afford a lawyer, a case where he 
represented welfare recipients in the District of Columbia who were 
about to lose benefits, and another case where he represented people 
with different sexual orientation, gays and lesbians, who were afraid 
they would be discriminated against because of a Colorado law.
  I asked him: In both of those cases you pointed to with pride, you 
represented the people who were asserting their rights, asking for 
their freedom, asking not to be discriminated against. From what you 
said yesterday, could you have represented the other side in those 
cases, taking away the rights and the freedoms of individuals?
  He said: Yes.
  So you have to understand that many of us come to the Chamber, having 
listened to several days of questions and answers, still uncertain 
about John Roberts and the values he would bring to the U.S. Supreme 
Court.
  Many questions were asked about the power of the President in a time 
of war. We asked Judge Roberts about a recent decision, Hamdan v. 
Rumsfeld. Judge Roberts signed on to an opinion in that case which 
concludes that a detainee can challenge his detention in court but has 
no legal rights that are enforceable in court. In other words, John 
Roberts seems to believe that detainees of the Government can get to 
the courthouse door but cannot come inside. His approach seems to be 
inconsistent with Supreme Court law. What if detainees claimed they 
were being tortured or even executed? Would Judge Roberts say the Court 
has no right to review the Government's actions?
  Unfortunately, Judge Roberts would not respond, and I still don't 
know when it comes to so many issues where he stands.
  Fifty-five different times, he said: I will follow the rule of law. 
But we know that following the rule of law is neither automatic nor 
something that is easily predicted. Oliver Wendell Holmes, Jr. once 
wrote:

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

  Whenever we asked Judge Roberts basic questions about his moral 
compass and his life experience, he declined to answer. I asked him at 
one point: What could you say to a poor person in America, a minority 
in America, a disenfranchised person in America, a powerless person in 
America, what can you say about your life experience that would lead 
them to believe that if their case came before your court, they had a 
fighting chance?
  I acknowledged the fact that Judge Roberts was raised in a 
comfortable middle-class family in the Middle West. When it was all 
said and done, he could not point to many life experiences which 
suggest he would have an understanding of those people in his Court. 
His response again, as it was so many times, was that he would follow 
the rule of law.
  I voted against Judge Roberts two years ago when he was a nominee for 
the U.S. Court of Appeals for the DC Circuit. I was upset with the way 
the vacancies were created in that circuit in an effort to fill them 
with Republicans when President Bush was elected. Perhaps I went a 
little too far in my language about that with my frustration, but I 
said at the time that I could not support Judge Roberts because I just 
didn't know who he was or for what he stood.
  When this process began, I promised Judge Roberts that we would start 
with a clean slate. Sadly, when the process was over, it was largely an 
empty slate.
  I am uncertain about Judge Roberts' commitment to civil rights. He 
wrote some memos during the Reagan administration which reflect a very 
narrow view of voting rights in America, a right which he calls the 
preservative right, which is so important for preserving a democracy. 
When it came to interpreting the Voting Rights Act under the Reagan 
administration, he took a position that was ultimately rejected and 
discredited. We listened as Senator Kennedy and others asked him many 
questions about that, and we did not learn too much about his thinking 
today and whether it has changed.
  I asked him about his criticism of a historic case, Plyler v. Doe. 
This 1982 Supreme Court case held that it is unconstitutional to deny 
elementary education to children on the basis of their immigration 
status. The Supreme Court struck down a Texas law that allowed 
elementary schools to refuse entrance to undocumented children. It has 
been called the ``Brown v. Board of Education'' for Hispanics in 
America.
  On the day it was decided, Judge Roberts, then a Reagan staffer, 
coauthored a memo that criticized the Solicitor General's Office for 
failing to file a brief in support of the Texas law. His memo disagreed 
with the administration's position, so he could not seek refuge in the 
common answer: I was just doing my job for the administration.
  It has been 23 years since Plyler v. Doe was decided. Millions of 
children have been educated. Many have become good citizens. They serve 
in our military, they have become doctors, police officers, people who 
constitute the fabric of our society--thanks to the Supreme Court 
decision that Judge Roberts found objectionable.
  So at the hearing, I said to him: As you reflect on this 23 years 
later, do you agree it was the right decision and should be settled law 
to offer education to these children? He was unwilling to say that.
  It is no surprise that Judge Roberts' nomination is opposed by the 
League of United Latin American Citizens, LULAC, the organization which 
for the first time in its history opposes a Supreme Court nominee, as 
well as by the Mexican American Legal Defense and Educational Fund, 
MALDEF. The President of MALDEF, Ann Marie Tallman, testified as a 
witness against Judge Roberts and said that his opinions ``often place 
him in opposition not only to equal justice for Latinos, but opposed to 
positions taken by bipartisan majorities in Congress and the Reagan 
administration that he served.''

  One of the most compelling witnesses against Judge Roberts is a man 
who is one of my personal heroes, Congressman John Lewis of Atlanta, 
GA. Those who don't know John Lewis should read about this man who 
literally risked his life time and again during the civil rights 
movement and now serves a constituency in the House of Representatives. 
John Lewis opposes the nomination of John Roberts because he does not 
believe John Roberts is as sensitive to the issue of civil rights as he 
should be.
  So I asked John Lewis this. I said: John, I happen to believe in the 
power of redemption, both politically and personally. I ask you, John, 
can't people change? Wouldn't you think Judge Roberts may have changed 
some of his hard-line views from the Reagan days?
  This is what Congressman Lewis said:

       [W]hen you believe and feel and know from your experience, 
     or maybe from the law and from history that you have been 
     wrong, you show some sign. And you are not afraid to

[[Page S10523]]

     talk about it. You are not afraid to go on the record. Judge 
     Roberts has been afraid to show or demonstrate any signs that 
     he has changed. I wonder whether it is part of his mindset.

  To follow the words of John Lewis, we don't have from John Roberts a 
demonstration of the kind of courage of Frank Johnson, that Alabama 
Federal judge who issued rulings that allowed Martin Luther King, Jr. 
as well as John Lewis and others to march from Selma to Montgomery, 
rulings that permitted African Americans to organize a boycott of the 
city of Montgomery's segregated bus system following the arrest of Rosa 
Parks.
  Judge Johnson was also called the most hated man in Alabama by the Ku 
Klux Klan and received so many death threats that he and his family 
were under constant Federal protection from 1961 to 1975, with crosses 
burned on the lawn of his family.
  Judge Johnson's enemies, incidentally, called him a ``judicial 
activist.'' So when you hear that term being used around here today, 
excuse me if I happen to believe that it has been used in cases where 
it was entirely inappropriate. Judge Frank Johnson spoke out for civil 
rights at a moment in America's history when we needed a judge with 
courage, and risked a lot to do so. He showed courage to do so. If that 
is judicial activism, then thank goodness for a judicial activist who 
was sensitive to civil rights in America.
  Many conservatives have also railed against the Supreme Court's 
references to international laws and legal opinions in recent cases. 
This was an interesting sideline to this hearing. Putting John Roberts 
on the spot: Does he promise, if he goes on the bench, that he won't be 
looking to legal opinions from foreign countries.
  I was disappointed to hear Judge Roberts' reply. He embraced this 
hostility toward even considering lessons of foreign law. What does it 
say of us as a nation when we try to promote democratic ideas around 
the world and yet recoil at the thought of another country having 
useful ideas for our own Nation to consider?
  Of course, U.S. judges don't base their decisions entirely on foreign 
law or legal opinions, but the experience of other democracies may help 
inform their thinking. Just last week, Justice Ginsburg defended the 
practice of Supreme Court reference to foreign legal opinions, not for 
precedent but for guidance. She observed:

       I will take enlightenment wherever I can get it.

  I hope Judge Roberts will reconsider this position and take heart not 
only in Justice Ginsburg's wise words but also the wise words of the 
man whose robes he hopes to fill, Chief Justice Rehnquist, who once 
said:

       When many constitutional courts were created after the 
     Second World War, these courts naturally looked to decisions 
     of the Supreme Court of the United States, among other 
     sources, for developing their own law. But now that 
     constitutional law is solidly grounded in so many countries, 
     it is time that the United States courts begin looking to the 
     decisions of other constitutional courts to aid in their own 
     deliberative process.

  It amazes me that this has become such a whipping point for some 
political groups in this town. Of course, we should consider other 
legal opinions from other countries as Justice Ginsburg and Chief 
Justice Rehnquist suggested. American law will decide the case, but as 
Justice Ginsburg said, we should take enlightenment wherever we can 
find it.
  I think Supreme Court nominees carry the burden of proof when they 
come before the Senate. They must prove they are worthy of a lifetime 
appointment to the highest Court in the land. In the case of Judge 
Roberts, the burden of proof is especially heavy because President Bush 
refused to share memos from the period of time when John Roberts served 
as the Principal Deputy Solicitor General. Those more contemporary 
memos would have given us a greater insight into what he really 
believes on some critical issues, but the Bush administration said 
``no.'' They denied us these documents.
  When it came to the Reagan-era memos, many times Judge Roberts argued 
they were so old they should be discounted.
  I also think Judge Roberts bears a heavy burden of proof because he 
has been nominated to serve as Chief Justice. When he is approved this 
week, we will move from the Rehnquist Court to the Roberts Court for 20 
or 30 years to come.
  The Chief Justice is the most important and powerful judge in 
America. We need a Chief Justice who has wisdom, courage, and 
compassion.
  At the beginning of the process, Judge Roberts came by my office. I 
had a chance to sit down for a few minutes with him. I want to 
congratulate him and thank him for doing that not only for my benefit 
but for the benefit of so many other Senators. I like him. During the 
hearings, I looked at his wife and his kids and I said, This is a man I 
really could like. As I said earlier, I promised him a clean slate but 
unfortunately he could not add much to that slate during the course of 
this process.
  Next to a vote on whether America goes to war, the most important 
votes we cast as Senators are for Justices of the Supreme Court. That 
Court, more than any other institution in America, is the most 
important when it comes to America's rights and liberties.
  The decision made by those nine Justices can change the face of 
democracy in America. That Court has done that so many times in the 
past and can certainly do it in the future. Their decisions, more 
important than any single law we pass, can decide basic personal 
freedoms for millions of Americans.
  I sincerely wish I believed that John Roberts was the right person 
for this historic appointment. I will vote no on his nomination, but I 
will pray that John Roberts proves to be a Chief Justice with not only 
a great legal mind but also the courage of Judge Frank Johnson of 
Alabama and the understanding heart of Solomon.

                          ____________________