[Congressional Record Volume 151, Number 122 (Tuesday, September 27, 2005)]
[Senate]
[Pages S10526-S10527]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JOHN G. ROBERTS, JR., TO BE CHIEF JUSTICE OF THE UNITED 
                                 STATES

  Mr. SARBANES. Mr. President, in the complex institutional framework 
established by our Founding Fathers, members of all three branches of 
our national government take an oath to support the Constitution. 
However, it falls uniquely to the Supreme Court of the United States to 
expound and interpret the Constitution and the laws passed pursuant to 
it so that our governing law remains true to the basic principles upon 
which the Nation was founded.
  The Senate's role in giving advice and consent to the nomination of 
the men and women who serve on the Supreme Court for a life tenure is 
amongst the Senate's most important constitutional responsibilities.
  The argument is made by some that the President is entitled to the 
confirmation of his or her nominee unless that person is shown to have 
a serious disqualification. On the contrary, it is my view that the 
Senate's duty to advise and consent on nominations is an integral part 
of the Constitution's system of checks and balances among our 
institutions of government. Nomination does not constitute an 
entitlement to hold the office.
  Although all Presidential nominations require the most careful and 
independent review, judicial nominations differ from nominations to the 
executive branch in two important respects. Within the constitutional 
framework, the judiciary is a third coequal branch of government, 
independent of both the executive and legislative branches. Those who 
sit on the Federal bench receive lifetime tenure and are to render 
independent judicial decisions. In contrast, appointees to the 
executive branch are meant to carry out the program of the President 
who nominates them, and they serve only at the pleasure of the 
President or for limited tenure. The bar must, therefore, be set very 
high when we consider a judicial nomination, especially when the 
nomination is to the Supreme Court and, as in the matter pending before 
the Senate, to the position of Chief Justice of the United States.
  While qualifications and intellect are important criteria, obviously, 
in considering a nomination to the Supreme Court, the Senate must also 
take into consideration the judicial philosophy and constitutional 
vision of any nominee for appointment to the Supreme Court. As Chief 
Justice Rehnquist, for whom Roberts clerked, wrote in 1959, well before 
he went on the Court:

       [U]ntil the Senate restores its practice of thoroughly 
     informing itself on the judicial philosophy of a Supreme 
     Court nominee before voting to confirm him, it will have a 
     hard time convincing doubters that it could make effective 
     use of any additional part in the selection process.

  Inquiring into a nominee's judicial philosophy does not mean 
discovering how he or she would decide specific cases. Rather, it seeks 
to ascertain the nominee's fundamental perspective on the Constitution: 
how it protects our individual liberties, ensures equal protection of 
the law, maintains the separation of powers and checks and balances. 
The Constitution is a living document. Its strength lies in its 
extraordinary adaptability and applicability over more than 200 years 
to conditions that the Framers could not have anticipated or even 
imagined.
  The confirmation process provided Judge Roberts with an opportunity 
to outline his general approach to the Constitution in critical areas--
among them, the rights and liberties guaranteed to our citizens, the 
extent of Congress's power under the Commerce Clause, and the balance 
of power among the three branches of government. Regrettably, he 
declined to do so, saying that he does not have an overarching judicial 
philosophy and comparing the role of a Justice to that of an umpire. 
The New York Times put it succinctly in an editorial:

       In many important areas where Senators wanted to be 
     reassured that he would be a careful guardian of Americans' 
     rights, he refused to give any solid indication of his legal 
     approach.
  The uncertainty arising from the hearings is compounded by the 
refusal of the administration to provide documents from Judge Roberts' 
service as principal Deputy Solicitor General, which members of the 
Judiciary Committee had requested in the course of carrying out their 
constitutional responsibility.
  As a result, we must try to infer his underlying philosophy and views 
from the earlier documents made available to the committee. Those 
documents are not reassuring. I am deeply concerned that the documents 
we have from John Roberts raise questions about his approach and his 
thinking on such basic issues as voting rights, affirmative action, 
privacy, racial and gender equality, limitation on executive authority, 
and congressional power under the commerce clause.
  Given the importance of the position of Chief Justice, in deciding 
whether to give consent to this nomination it is essential that it be 
an informed consent--an informed consent.
  As the New York Times editorial pointed out:

       That position is too important to entrust to an enigma, 
     which is what Mr. Roberts remains.

  I will vote against confirming John Roberts to be the Chief Justice 
of the United States.
  I yield the floor.
  Ms. CANTWELL. Mr. President, I rise to share my concerns about the 
nomination of Judge John Roberts.
  Let me say to my colleagues who have taken the floor through the last 
couple of days and have been eloquent I think on both sides of the 
aisle in their views, that I really do believe that we are at a very 
unique point in time at our history, that we are at the tip of the 
iceberg as it relates to the information age, and that this issue of 
personal privacy is only going to gain in importance over the lifetime 
of the next nominee to the Supreme Court.
  And that is why this discussion and debate is so important, and that 
is why a diversity of voices I think should be heard on this issue.
  Now, I am not a member of the Judiciary Committee but I did spend 2 
years on the Judiciary Committee, and I made it clear in my time there 
that I had the intention to ask every nominee about their views on the 
rights to privacy and how they existed in the Constitution and what 
they thought was settled law as it relates to that and how they viewed 
some of the important decisions of the Courts in the past.
  And I think that you have to give a context to the day and age in 
which we are making this decision on a Supreme Court nominee and the 
next nominee as it relates to these privacy rights.
  We are at a time and age when individual citizens are concerned about 
their most personal information being obtained by businesses or health 
care organizations and somehow being released. They are concerned about 
government and government's overreaching in privacy matters and the use 
of technology that could be used without probable cause and warrant. We 
have even seen discussion by courts

[[Page S10527]]

and judges and a variety of people on the due process of enemy 
combatants--even a judge in our State raised concerns about how you 
balance protecting rights and security interests.
  I know in Washington State these are among the key issues that the 
citizenry of Washington State cares about. They care about their 
personal privacy and they care about it being protected. They also care 
about that personal privacy as it relates to a variety of rights that 
they have come to expect.
  In fact, in Washington State, a right of privacy is guaranteed in our 
Constitution. Article 1, section 7, which says--quote--``no person 
shall be disturbed in his private affairs or his home invaded without 
the authority of law.'' We adopted this constitutional right of privacy 
upon the founding of our State and the deep respect that we have for 
those individual rights.
  It has been settled for decades by the courts of Washington State. 
Washington State law even goes further than the Federal Government in 
protecting people's privacy in a search and seizure context, for 
example. And I thinkit is very important to understand how much the 
State of Washington cares about these constitutional protections.
  Now, as it relates specifically to a woman's right to choose, 
Washingtonians again have been very outspoken. In fact, in 1970, 3 
years before the Federal courts spoke on this matter, the residents of 
my State passed a referendum legalizing abortion rights through the 
first trimester. That is in 1970. In 1991, the voters of my State 
passed by initiative a codification of Roe v. Wade into State statute.
  I would hope that any nominee to the Supreme Court would understand 
how important the privacy rights are in not just Washington State but 
throughout the country and how challenged they are going to be in the 
next decades as the information age rolls out and more and more issues 
confront Americans about their privacy and the privacy of information 
about them.
  During my tenure on the Judiciary Committee, I heard many 
conservative nominees express views in opposition to abortion rights 
and some were very critical of the decision in Roe v. Wade. I did not 
agree with these views, but where those nominees demonstrated an 
understanding that privacy in the choice context is an accepted right, 
and that the Nation and the courts have determined that right should be 
upheld, I voted to confirm these judges.
  Sixty-one percent of Americans said that they wanted Judge Roberts to 
answer questions about how he would have ruled on past Supreme Court 
precedent. And I know that more than a majority of Americans believe 
that we should do our job in asking judicial nominees about their 
judicial philosophy.
  But as my colleagues have pointed out, I have some concerns about 
Judge Roberts' views on the rights to privacy as it relates to how 
those will continue to protect a woman's right to choose. And I am 
concerned, as he talks about stare decisis exactly what he will uphold.
  Now, I think a very important case that probably hasn't gotten a lot 
of attention on the floor but it is something that again Washingtonians 
care a lot about is Judge Roberts' dissent in the Rancho Viejo case. 
Judge Roberts went out of his way in this dissent to raise issues about 
whether Congress had overstepped its bound in enacting the Endangered 
Species Act. Courts have already decided this issue: Congress has the 
authority to protect our most precious species without concern that 
these efforts might be thrown out bit by bit. Judge Roberts has told us 
how important longstanding precedent is in his philosophy, yet he 
questions congress' longstanding authority to enact environmental 
protections.
  In the Northwest, we absolutely rely on a very robust interpretation 
of the interstate commerce clause, both in its environmental context 
and with regard to other laws. We have a great, wonderful environment 
in the Northwest that we want to protect. And just as with the privacy 
context, Judge Roberts was asked during the hearing about his views on 
Congress's power to enact environmental protections and he declined to 
answer them specifically.
  The Pacific Northwest is blessed with incredible beauty, complemented 
by the diverse wildlife that inhabits our lands and coastal waters. 
Unfortunately, habitat loss and other pressures threaten some of my 
State's most iconic species, whether that be the salmon that spawn our 
great rivers, birds that depend on old-growth forests, or even the orca 
whale that holds a special plan in the heart of everyone who lives near 
the Puget Sound. The Endangered Species Act is helping protect these 
animals from extinction. I have concerns about what Judge Roberts says 
about precedent yet in the case of the Endangered Species Act; his 
concern for following precedent wasn't there.
  I share the concerns of my colleagues who have been to the floor that 
we want to know how Judge Roberts is going to make his philosophy about 
the right to privacy clearer for the individuals who have to vote for 
him. I am not clear what he considers the privacy rights in the 
Constitution that aren't enumerated. And I know that that may not be 
the same opinion of our Members on the floor of the Senate, but I think 
Washingtonians have come to expect that these privacy rights mean a 
great deal to them.
  And so I cannot vote to confirm Judge Roberts until I know more about 
his philosophy. I am doing the job that I think the State of Washington 
wants me to do in fighting for these protections that have been 
constitutionally guaranteed, that have been voted on by initiative of 
the people in our State, and for the great protection of those privacy 
rights that they know need to be protected in the future.
  I yield the floor.

                          ____________________