[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
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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.
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