[Congressional Record Volume 156, Number 84 (Monday, June 7, 2010)]
[Senate]
[Pages S4590-S4599]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SENATE'S ROLE IN SUPREME COURT NOMINATIONS
Mr. SPECTER. Mr. President, I have sought recognition to comment on
the way in which the Senate discharges its constitutionally assigned
responsibility to consent to the appointment of Justices to the Supreme
Court of the United States.
With almost 30 years of experience, my thinking on this subject has
evolved and changed. At the outset, I thought the President was
entitled to considerable deference, providing the nominee was
academically and professionally well qualified, under the principle
that elections have consequences. With the composition of the Supreme
Court a Presidential campaign issue, it has become acceptable for the
President to make ideological selections. As the Supreme Court has
become more and more of an ideological battleground, I have concluded
that Senators, under the doctrine of separation of power, have equal
standing to consider ideology.
For the most part, notwithstanding considerable efforts by Senators,
the confirmation process has been sterile. Except for Judge Bork, whose
extensive paper trail gave him little choice, nominees have danced a
carefully orchestrated minuet, saying virtually nothing about ideology.
As I have noted in the past, nominees say only as much as they think
they have to in order to be confirmed. When some nominees have given
assurances about a generalized methodology, illustrated by Chief
Justice Roberts and Justice Alito, their decisions have been markedly
different. In commenting on those Justices, or citing critical
professorial evaluations of their deviations, I do not do so to
challenge their good faith. There is an obvious difference between
testimony before the Judiciary Committee and deciding a case in
controversy. But it is instructive to analyze nominees' answers for
Senators to try to figure out how to get enough information on judicial
ideology to cast an intelligent vote.
In seeking to determine where a nominee will go once confirmed, a
great deal of emphasis is placed on the nominee's willingness to commit
to, and in fact follow, stare decisis. If the nominee maintains that
commitment, then there are established precedents to know where the
nominee will go. But, as has frequently been the case, the assurances
on following stare decisis have not been followed. I use the
illustrations of Chief Justice Roberts and Justice Alito as two recent
confirmation processes--in 2005 and 2006--as illustrative.
Chief Justice Roberts testified extensively about his purported
fidelity to stare decisis. For example, during his confirmation
hearing, he said:
I do think that it is a jolt to the legal system when you
overrule a precedent. Precedent plays an important role in
promoting stability and evenhandedness. It is not enough--and
the Court has emphasized this on several occasions. It is not
enough that you may think the prior decision was wrongfully
decided. . . . I think one way to look at it is that the
Casey decision itself, which applied the principle of stare
decisis to Roe v. Wade, is itself a precedent of the Court,
entitled to respect under principles of stare decisis.
He went on to say:
Well, I think people's personal views on this issue derive
from a number of sources, and there's nothing in my personal
views based on faith or other sources that would prevent me
from applying the precedents of the Court faithfully under
principles of stare decisis.
Less than a year later, Justice Alito was no less emphatic. He
testified:
I think the doctrine of stare decisis is a very important
doctrine. It's a fundamental part of our legal system, and
it's the principle that courts in general should follow their
past precedents. . . . It's important because it protects
reliance interests and it's important because it reflects the
view that courts should respect the judgment and the wisdom
that are embodied in prior judicial decisions.
He went on to say:
There needs to be a special justification for overruling a
prior precedent.
Of consequence, along with adhering to the principle of stare
decisis, is the Justices' willingness to accept the findings of fact
made by Congress through the extensive hearing processes in evaluating
the sufficiency of a record to uphold the constitutionality of
legislative enactments. Here again, Chief Justice Roberts and Justice
Alito gave emphatic assurances that they would give deference to
congressional findings of fact.
Chief Justice Roberts testified as follows:
The Court can't sit and hear witness after witness after
witness in a particular area and develop a kind of a record.
Courts can't make the policy judgments about what kind of
legislation is necessary in light of the findings that are
made. . . . We simply don't have the institutional expertise
or the resources or the authority to engage in that type of a
process. . . . The courts don't have it. Congress does. It's
constitutional authority. It's not our job. It is your job.
So the deference to Congressional findings in this area has a
solid basis.
Chief Justice Roberts went on to say:
[A]s a judge, you may be beginning to transgress into the
area of making a law . . . when you are in a position of
reevaluating legislative findings, because that doesn't look
like a judicial function.
But what happened in practice was very different, illustrated by the
decision where the Chief Justice, in discussing McConnell v. Federal
Election Commission, did not say whether McConnell was correctly
decided. But the Chief Justice did acknowledge, as the Court emphasized
in its decision, that the act was a product of an ``extraordinarily
extensive [legislative] record. . . . My reading of the Court's
opinion,'' said Chief Justice Roberts in his testimony, ``is that that
was a case where the Court's decision was driven in large part by the
record that had been compiled by Congress. . . . [T]he determination
there was based . . . that the extensive record carried a lot of weight
with the Justices.''
When the issue of campaign finance reform came up later before the
Court,
[[Page S4591]]
Chief Justice Roberts took a very different view of the weight to be
given to congressional findings of fact. On the issue of the deference
to be given to congressional findings of fact, Justice Alito's
testimony was equally emphatic. He testified as follows:
[The] judiciary is not equipped at all to make findings
about what is going on in the real world, not this sort of
legislative findings. And Congress, of course, is in the best
position to do that. . . . Congress can have hearings and
examine complex social issues, receive statistical data, hear
testimony from experts, analyze that and synthesize that and
reduce that to findings. . . . I have the greatest respect
for [Congressional] findings. This is an area where Congress
has the expertise and where the Congress has the opportunity
to assemble facts and assess the facts. We on the appellate
judiciary don't have that opportunity.
In practice, there was very material deviation by both Chief Justice
Roberts and Justice Alito, when it came to evaluating legislation with
the point being what deference would be given to congressional
factfinding. The commentators have been very critical of both of the
Justices. For example, Prof. Geoffrey Stone, the Edward H. Levi
Distinguished Service Professor of Law at the University of Chicago Law
School, had this to say, referring to the testimony just referred to,
given by Chief Justice Roberts in his confirmation hearing. Professor
Stone wrote that their records on the Court `` . . . speak much louder
than their words to Congress.'' Their ``abandon[ment] of stare
decisis'' in ``case after case'' has required Chief Justice Roberts to
``eat'' his words.
Professor Stone has written that the two Justices have:
. . . abandoned the principle of stare decisis in a
particularly insidious manner, and their approach to
precedent has been ``dishonest.''
A similar judgment was rendered by Prof. Ronald Dworkin of the New
York University School of Law. Professor Dworkin said Chief Justice
Roberts and Justice Alito, ``who . . . promised fidelity to the law''
during their confirmation hearings, have ``brazenly ignore[d] past
decisions.''
None of the decisions of the Roberts Court speaks more directly to
these issues than the case of Citizens United v. the Federal Election
Commission. In that case, the Supreme Court overruled two decisions--
McConnell v. Federal Election Commission, decided in 2003, where
Justices had, just 7 years earlier, upheld section 203 against a facial
challenge to constitutionality; and Austin v. Michigan Chamber of
Commerce, a 1990 decision where the Supreme Court upheld the
constitutionality of even a broader State statute regulating corporate
campaign-related expenditures. Overruling Austin was especially
significant because Congress had specifically relied on that decision
in drafting the McCain-Feingold Act.
Justice Stevens said about that decision, in dissent, that ``pulling
out the rug beneath Congress,'' in this manner, ``shows great
disrespect for a coequal branch.''
Justice Stevens emphasized the deviation from the kinds of
commitments which had been made to deference to congressional findings,
noting that in that decision the Court, with the backing of Chief
Justice Roberts and Justice Alito, can't decide the ``virtual mountain
of evidence'' establishing the corrupting influence of corporate money
on which Congress relied in drafting section 203.
So there you have a much heralded recent decision in Citizens United,
which has put the campaign finance area upside down; really on its
head. In the context of the extensive congressional hearings, the
finding of the corrupting influence of money and politics, the forceful
assurance given by those two Justices to have it so cavalierly set
aside, is a factor which has to be taken into account in how we
evaluate the testimony of the nominees.
Where, then, are Senators to look to try to make an evaluation of
what is the judicial ideology of the nominee? I suggest there may be a
way, looking into the earlier writings of the nominee, paying
relatively little if any attention to the testimony on confirmation, to
find out what the nominees believe, where they stand on the ideological
spectrum.
Some indicators as to where Chief Justice Roberts stood can be
gleaned from views he expressed on the remediation of racial
discrimination while serving in a political capacity as a member of the
Reagan administration, much earlier in his career. His views attracted
a great deal of attention when he commented on the 1982 reauthorization
of the Voting Rights Act. He then wrote more than two dozen documents
urging the administration to reject a provision of the then-pending
House bill that would have allowed plaintiffs to establish a violation
of the act, not only by establishing that a voting practice was
impermissibly motivated, but also by establishing that it had a
discriminatory effect.
He claimed the so-called ``effects test'' would establish a quota
system in elections and, more disturbingly still in light of the
extensive record of voting rights amassed by congressional committees,
he said that ``there was no evidence of voting abuses nationwide.''
Hardly consistent with the factual record which had been amassed giving
some indication as to this predilections at that time.
He then made the comment in a memorandum on the same subject:
``Something must be done to educate the Senators on the seriousness of
this problem.'' Another example in the race discrimination context was
a 1981 memorandum that Roberts wrote to the Attorney General
questioning the legality of regulations promulgated by the Department
of Labor to enforce Executive Order 11246.
Issued in 1965, that order requires private-sector employers to
contract with the Federal Government to evaluate whether qualified
minorities and women are underutilized in their workforce; that if so,
to adopt roles to increase their representation by encouraging women
and minorities to apply for positions. It does not require or authorize
employers to give any racial or sex-based preference. In fact, its
implementing regulations expressly prohibit such preferences.
Roberts then attacked the regulations on the ground that they
conflicted with the color blindness principle of Title VII of the Civil
Rights Act of 1964 and used ``quota-like concepts.'' In that context
only the most extreme conservatives have questioned the legality of
that Executive order.
Roberts, as a younger man, working in the Federal Government, wrote
despairingly about ``so-called fundamental rights,'' including the
right to privacy.
Similar traces may be found in examining Justice Alito's earlier
writings. Among them was his characterization of Judge Bork as ``one of
the most outstanding nominees of this century.''
Justice Alito shared Bork's antipathy, in particular, to the abortion
right first recognized in Roe v. Wade. While Justice Alito was serving
as assistant to Solicitor General Charles Fried in 1985, he took it
upon himself to outline, in the words of Prof. Lawrence Tribe, ``a
step-by-step process toward the ultimate goal of overruling Roe.''
That year, when applying for a position as Assistant Attorney General
in the Office of Legal Counsel, Judge Alito unequivocally stated in his
cover letter that the Constitution does not provide for a right to
terminate a pregnancy.
Justice Alito's extrajudicial writings also evidence an expansive
view of executive power. Among them, in 1989, was a speech defending
Justice Scalia's lone dissent in Morrison v. Olson. There the Court
upheld the constitutionality of the independent counsel law passed by
Congress in the wake of Watergate.
Justice Scalia was the lone dissenter. He also expressed his
agreement with the ``unitary'' executive theory around which Justice
Scalia had framed that dissent. Justice Alito's conservative views were
again evidenced in his support of the expansion of executive power at
the expense of Congress reflected in the memorandum he wrote supporting
the use of Presidential signing statements to advance a President's
interpretation of a Federal statute. So that in seeking to make a
determination of ideology, we have seen from the analysis, the
extensive testimony of both Chief Justice Roberts and Justice Alito on
two core issues--stare decisis and the deference to be afforded to
congressional factfinding--a disregard of the platitudes of the
generalizations of the methodology so emphatically testified to before
the Judiciary Committee, and requiring a
[[Page S4592]]
search into their views as expressed in other contexts where there is
not the motivation for Senate confirmation.
The kinds of answers given by other nominees require similar
scrutiny. The Judiciary Committee, for example, should no longer
tolerate the sort of answer which Justice Scalia gave during his
confirmation hearing when I asked him whether Marbury v. Madison was
settled precedent. One would think that that would be about the easiest
kind of questions to answer.
In 1986, in the so-called courtesy hearing, I asked Justice Scalia,
then Judge Scalia, about a bedrock case like Marbury v. Madison. As
evidenced during the hearing, he refused to answer with a yes or no on
the question. He acknowledged only that Marbury was a ``pillar of our
system'' and then said:
Whether I would be likely to kick away Marbury v. Madison,
given not only what I just said, but also what I have said
concerning my respect for the principle of stare decisis, I
think you will have to judge on the basis of my record as a
judge in the Court of Appeals, in your judgment as to whether
I am, I suppose on that issue, sufficiently intemperate or
extreme.
In effect, he was saying that a nominee who kicks the legs out from
under Marbury v. Madison should be considered ``intemperate or
extreme,'' and hence presumably denied appointment to the Court. Yet he
would not forthrightly rule out a possible overturning of Marbury v.
Madison. And so went the balance of the testimony Justice Scalia gave
in his confirmation hearing. It is my suggestion that that kind of
response ought no longer to be tolerated. There is an abbreviation for
Justice Scalia's testimony of the famous limitation of comment by
someone arrested in a time of war to give only name, rank, and serial
number. I think, by any fair standard, Justice Scalia would only give
his name and rank, and we ought to be looking for something
substantially more.
Nor can the committee, in my judgment, any longer accept a statement
given by Justice Clarence Thomas in 1991 that he did not have an
opinion as to whether Roe was properly decided, and, more remarkably
still, could not recall ever having had a conversation about it.
In searching for some of the bedrock principles which I would suggest
the Senators ought to look for in the confirmation process, I would
enumerate five. First, I believe a nominee should accept that the 14th
and 15th amendments confer substantial power on Congress to enforce
their substantive provisions.
In the past 13 years since the case in the City of Boerne v. Flores,
the Court has adopted a concept of proportionality and congruence, a
standard which is impossible to understand, certainly impossible for
Congress to know on our legislative findings and our legislative
enactments as to what will satisfy the Supreme Court of the United
States on what they may, at some later day, consider to be
``proportional and congruent.''
I suggest that Justice Breyer has the correct standard when he said
the courts should ask no more than whether ``Congress could reasonably
have concluded that a remedy is needed and that the remedy chosen
constitutes an appropriate way to enforce the amendments.''
A second guiding principle I would suggest is, a nominee should
accept that the Constitution, and in particular the due process clause
of the 14th amendment, protects facets of individual liberty not yet
recognized by the Court. The Court has repeatedly held, through the due
process clause of the 14th amendment, the Constitution protects facets
of liberty, a realm of personal liberty which the government may not
enter, and in accordance with the shifting values of our society has
expanded the reach of the due process clause.
=========================== NOTE ===========================
On page S4592, June 7, 2010, the Record reads: . . . a nominee
must . . .
The online Record has been corrected to read: . . . a nominee
should . . .
========================= END NOTE =========================
A third principle which I suggest the Senate should adopt is a
nominee should accept that liberty protected by the Constitution's due
process clause includes the right to terminate a pregnancy before the
point of viability. I recognize that abortion remains a divisive moral
and social issue. But the constitutional status of abortion rights has
been settled. The Court has declined the opportunity to overrule Roe v.
Wade in nearly 40 cases. In Casey v. Planned Parenthood, three
Republican nominees to the Court joined two other Justices in affirming
Roe's central holding.
=========================== NOTE ===========================
On page S4592, June 7, 2010, the Record reads: . . . a nominee
must . . .
The online Record has been corrected to read: . . . a nominee
should . . .
========================= END NOTE =========================
Even conservative Federal Judge Michael Luttig has characterized
Casey as ``super stare decisis.'' Even some of Roe's most vociferous
critics, including President Reagan's Solicitor General Charles Fried,
who urged the Court in the 1980s to overturn the decision, and the late
John Hart Ely, perhaps Roe's most prominent academic critic, have said
that the Supreme Court should not at this late date overrule Roe.
The fourth principle which I suggest ought to be accepted is that a
nominee should accept the equal protection clause of the 14th amendment
does not prohibit narrowly tailored race-based measures, that is, does
not mandate color blindness so long as the measures do not amount to
quotas.
=========================== NOTE ===========================
On page S4592, June 7, 2010, the Record reads: . . . a nominee
must . . .
The online Record has been corrected to read: . . . a nominee
should . . .
========================= END NOTE =========================
A fifth principle which I think ought to be a standard is that a
nominee should accept the constitutionality of statutory restrictions
on campaign contributions to candidates for office.
=========================== NOTE ===========================
On page S4592, June 7, 2010, the Record reads: . . . a nominee
must . . .
The online Record has been corrected to read: . . . a nominee
should . . .
========================= END NOTE =========================
The statement which I have made is an abbreviation of a much more
extended written statement, which I ask unanimous consent to have
printed in the Record with these introductory remarks as I have just
made them.
I make this explanation to give a reason why there is obviously some
repetition between what I have said in abbreviated form and the full
text of the statement.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Floor Statement on Confirmation of Supreme Court Nominees
Mr. President, I have sought recognition to comment on the
way in which the Senate discharges its constitutionally
assigned responsibility to consent to the appointment of
Justices to the Supreme Court.
With almost 30 years of experience, my thinking on this
subject has evolved and changed. At the outset, I thought the
President was entitled to considerable deference providing
the nominee was academically and professionally well
qualified. Under the principle that elections have
consequences with the composition of the Supreme Court a
presidential campaign issue, it has been accepted for the
President to make ideological selections. As the Supreme
Court has become more and more of an ideological
battleground, I have concluded that Senators, under the
doctrine of separation of power, have equal standing to
consider ideology.
For the most part, notwithstanding considerable effort by
Senators, the confirmation process has been sterile. Except
for Judge Bork, whose extensive paper trail gave him little
choice, nominees have danced a carefully orchestrated minuet,
saying virtually nothing about ideology. Nominees say only as
much as they think they have to in order to be confirmed.
When some nominees have given assurances about a generalized
methodology, illustrated by Chief Justice Roberts and Justice
Alito, their decisions have been markedly different.
In commenting on those Justices or citing critical
professorial evaluations of their deviations, I do not do so
to challenge their good faith. There is an obvious difference
between testimony before the Judiciary Committee and deciding
a case in controversy. But it is instructive to analyze
nominees answers for Senators to try to figure out how to get
enough information on judicial ideology to cast an
intelligent vote.
I. As a member of the Committee on the Judiciary since
entering the Senate, I have participated in the confirmation
hearings of eleven nominees to the Court (Sandra Day
O'Connor, Antonin Scalia, Robert Bork, Anthony Kennedy, David
Souter, Clarence Thomas Ruth Bader Ginsburg, Stephen Breyer,
John Roberts, Samuel Alito, and Sonya Sotomayor) and the
nomination of then-Associate Justice William Rehnquist to
serve as Chief Justice. I chaired the confirmation hearings
on two of these nominees, John Roberts and Samuel Alito.
I voted to confirm all but one of the nominees, Judge
Robert Bork. His own testimony placed him well outside the
judicial mainstream. Judge Bork made clear his view, for
instance, that the Fourteenth Amendment's due process clause
imposes no substantive limits on governmental actions that
infringe upon fundamental rights to conduct one's intimate
relations in private, to control one's reproduction, to
choose one's spouse, and so forth. Not even Justice Scalia,
who reads the due process clauses narrowly, has taken that
position. Nor have the Court's newest conservative members,
Chief Justice Roberts and Justice Alito.
Still more troubling were Judge Bork's extreme views on the
constitutionality of racial discrimination. He went so far as
to say that the Court wrongly decided Bolling v. Sharpe
(1954), which held unconstitutional racial segregation in
Washington, DC's public education system; and Shelly v.
Kraemer (1948), which held unenforceable race-based
restrictive covenants in residential housing. Both were
unanimous decisions joined by conservative justices.
It was not his mere criticism of these and many other
important decisions alone that led me to vote against Judge
Bork. It was
[[Page S4593]]
the very real possibility that he would vote to overturn or
resist the application of bedrock precedents of the Court.
(Arlen Specter, Why I Voted Against Bork, New York Times,
Oct. 9, 1987.) So objectionable was Judge Bork's judicial
ideology that it drew rebukes even from some prominent
Republicans. Among them was William Coleman, Jr., one of
America's leading lawyers of the twentieth century, and along
with Justice Scalia, a member of the Ford Administration.
My vote on Judge Bork proved the right decision. Judge
Bork's post-hearing writings beginning with the The Tempting
of America: The Political Seduction of the Law in 1988 left
no doubt that his testimony was but a preview of the
extremism he would have brought to the Court.
II. I have never demanded that a nominee satisfy an
ideological litmus test whether liberal or conservative much
less demanded that a nominee commit to reaching a particular
certain outcome in any given case. What I have demanded is
that a nominee, first, affirm his or her commitment to the
doctrine of stare decisis (the policy of following precedent
rather than interpreting constitutional and statutory
provisions anew in each case, unless compelling reasons
demand otherwise); and, second, pledge to honor the
legislative powers the Constitution assigns to the Congress,
especially its remedial powers to enforce the Fourteenth and
Fifteenth Amendments.
Nominees committed to stare decisis and respectful of
Congress' lawmaking powers are much less likely to indulge
their ideological preferences whether left or right in
interpreting the open-ended provisions of the Constitution
and federal statutes to which very different meanings could
be ascribed. They are, in short, less likely to become
activists. Noted Court commentator Jeffrey Rosen made just
that point soon before the Roberts confirmation hearing. He
said that the best way to find out whether Chief Justice
Roberts was a conservative activist (in the mold of Justices
Scalia and Thomas) or a moderate, cautious, and restrained
conservative (in the mold of Justice O'Connor) would be to
explore Judge Roberts's view of precedents, which the lawyers
call stare decisis, or let the decision stand. (In Search of
John Roberts, The New York Times, July 21, 2005.)
That is why when I questioned Roberts and Alito in 2005 and
2006, respectively, I focused heavily on the issue of stare
decisis. Several other Senators did as well. Both Chief
Justice Roberts and Justice Alito provided extensive
testimony on the subject. Their testimony warrants extensive
quotation.
Chief Justice Roberts testified:
Judges are like umpires. Umpires don't make the rules, they
apply them. The role of an umpire and a judge is critical.
They make sure everybody plays by the rules, but it is a
limited role. Nobody ever went to a ball game to see the
umpire. Judges have to have the humility to recognize that
they operate within a system of precedent shaped by other
judges equally striving to live up to the judicial oath. . .
.
[T] importance of settled expectations in the application
of stare decisis is a very important consideration.
I do think that it is a jolt to the legal system when you
overrule a precedent. Precedent plays an important role in
promoting stability and evenhandedness. It is not enough and
the Court has emphasized this on several occasions. It is not
enough that you may think the prior decision was wrongly
decided.
Well, I think people's personal views on this issue derive
from a number of sources, and there's nothing in my personal
views based on faith or other sources that would prevent me
from applying the precedents of the Court faithfully under
principles of stare decisis.
I think one way to look at it is that the Casey decision
[Casey v. Planned Parenthood of Southeastern Pennsylvania
(1992)] itself, which applied the principles of stare
decisis to Roe v. Wade [1973], is itself a precedent of
the Court, entitled to respect under principles of stare
decisis. And that would be the body of law that any judge
confronting an issue in his care would begin with, not
simply the decision in Roe v. Wade but its reaffirmation
in the Casey decision. That is itself a precedent. It's a
precedent on whether or not to revisit the Roe v. Wade
precedent. And under principles of stare decisis, that
would be where any judge considering the issue in this
area would begin.
Testifying a year later, Justice Alito was no less
emphatic. He testified:
I think the doctrine of stare decisis is a very important
doctrine. It's a fundamental part of our legal system, and
its the principle that courts in general should follow their
past precedents, and its important for a variety of reasons.
Its important because it limits the power of the judiciary.
Its important because it protects reliance interests, and its
important because it reflects the view of the courts should
respect the judgments and the wisdom that are embodied in
prior judicial decisions. It's not an inexorable command, but
it's a general presumption that courts are going to follow
prior precedents.
I agree that in every case in which there is a prior
precedent, the first issue is the issue of stare decisis, and
the presumption is that the Court will follow its prior
precedents. There needs to be a special justification for
overruling a prior precedent.
I don't want to leave the impression that stare decisis is
an inexorable command because the Supreme Court has said that
it is not, but it is a judgment that has to be based, taking
into account all of the factors that are relevant and that
are set out in the Supreme Court's cases.
It was not only the nominees themselves who testified that
they would follow stare decisis. Numerous hearing witnesses
made that claim on their behalf. One prominent practitioner
before the Court (Maureen E. Mahoney) told the Committee that
Chief Justice Roberts had the deepest respect for legal
principles and legal precedent. Charles Fried, the
conservative Solicitor General during the Reagan
Administration, testified that he did not believe that Chief
Justice Roberts would vote to overturn Roe v. Wade (1973).
Commenting in 2007, federal circuit judge Diane Sykes wrote
that Chief Justice Roberts's and his supporters hearing
testimony portrayed a cautious judge who would be attentive
to the discretion-limiting force of decisional rules and
precedent (Of a Judiciary Nature: Observations on Chief
Justice's First Opinions, 34 Pepperdine Law Review 1027
(2007)). In the case of Justice Alito, the late Edward
Becker, the former Chief Judge of and Justice Alito's
colleague on the Court of Appeals for the Third Circuit, a
nationally acclaimed judicial centrist, testified that as
circuit court judge Justice Alito scrupulously adhere[d] to
precedent. A group of Third Circuit judges backed Judge
Becker by speaking out in favor of Justice Alito's
confirmation.
Numerous liberal commentators also noted Chief Justice
Roberts's and Justice Alito's professed respect for precedent
despite their apparent ideological conservatism. New York
Times Court reporter Linda Greenhouse, for instance, noted
that [b]oth Chief Justice John G. Roberts, Jr. and Justice
Samuel Alito, Jr., assured their Senate questioners at their
confirmation hearing that they . . . respected precedent
(Precedents Begin to Fall for Roberts Court, The New York
Times, July 21, 2007). Chief Justice Roberts's commitment to
stare decisis even earned him the support of some noted
liberal constitutional scholars. Among them was Laurence
Tribe, the renowned professor of constitutional law at
Harvard Law School, and Geoffrey Stone, the Edward H. Levi
Distinguished Service Professor at the University of Chicago
Law School. Professor Stone wrote in an op-ed that Chief
Justice Roberts is too good of a lawyer, too good a
craftsman, to embrace . . . a disingenuous approach to
constitutional interpretation. Everything about him suggests
a principled, pragmatic justice who will act cautiously and
with a healthy respect for precedent (President Bush's Blink,
Chicago Tribune, July 27, 2005, at 27). He noted in a
subsequent law review article that [b]ased largely on Chief
Justice Roberts's testimony on stare decisis, I publicly
supported his confirmation. (The Roberts Court, Stare Decisis
and the Future of Constitutional Law, 82 Tulane Law Review
1533 (2008).) Professor Cass Sunstein of Harvard Law School,
who now heads the Obama Administration's Office of
Information and Regulatory Affairs (OIRA), likewise supported
Chief Justice Roberts's confirmation for this reason.
(Minimalist Justice, The New Republic, Aug. 1, 2005 [check].)
So, too, did Court commentator Jeffrey Rosen. (Jeffrey Rosen,
In Search of John Roberts, The New York Times, July 21,
2005.)
In addition to stare decisis, the confirmation hearings
also addressed what I bluntly referred to during the Roberts
hearing as the denigration by the Court of Congressional
authority. I noted several important cases in which the Court
had disregarded legislative fact-findings made incidental to
Congress's constitutionally assigned legislative powers.
The issue has taken on particular importance with respect
to two of the civil rights amendments: the Fourteenth, which
forbids a state from (among things) abridging the right of
any person within its jurisdiction the equal protection of
the laws, and the Fifteenth, which forbids the states and the
federal government from denying any citizen the right to vote
on account of race. Both amendments give Congress the power
to enforce their prohibitions by appropriate legislation.
Difficult questions have arisen as to the contours of
Congress's powers under the Fourteenth and Fifteenth
Amendments. This much, though, should be beyond debate:
Congress alone has the institutional fact-finding capacity to
investigate whether state practices result in systemic
deprivations of the rights guaranteed by these amendments
and, having found such deprivations, to fashion appropriate
measures to remediate them.
Just as they did on the subject of stare decisis, both
Chief Justice Roberts and Justice Alito gave the Committee
assurances that they would defer to Congressional findings of
fact that underlay the exercise of Congress's powers not only
under the civil rights amendments but also the Commerce
Clause. Chief Justice Roberts testified:
The reason that congressional fact finding and
determination is important in these cases is because the
courts recognize that they can't do that. Courts can't have,
as you said, whatever it was, the 13 separate hearings before
passing particular legislation. . . . [The Supreme] Court
can't sit and hear witness after witness after witness in a
particular area and develop that kind of a record. Courts
can't make the policy judgments about what type of
legislation is necessary in light of the findings that are
made . . . We simply don't have the institutional expertise
or the resources or the authority to engage in that type of a
process. So that is sort of the basis for the deference to
the
[[Page S4594]]
fact finding that is made. It's institutional competence. The
courts don't have it. Congress does. It's constitutional
authority. It's not our job. It is your job. So the deference
to congressional findings in this area has a solid basis.
I appreciate very much the differences in institutional
competence between the judiciary and the Congress when it
comes to basic questions of fact finding, development of a
record, and also the authority to make the policy decisions
about how to act on the basis of a particular record. It's
not just disagreement over a record. It's a question of whose
job it is to make a determination based on the record . . .
[A]s a judge, you may be beginning to transgress into the
area of making a law . . . when you are in a position of re-
evaluating legislative findings, because that doesn't look
like a judicial function.
Chief Justice Roberts also addressed the issue of
legislative fact-finding when discussing the Court's decision
in McConnell v. Federal Election Commission (2003). There the
Court rejected a First Amendment facial challenge to a
provision of the Bipartisan Campaign Reform Act (commonly
known as McCain-Feingold Act) that bars corporations and
labor unions from funding advertisements in support of or
opposition to a candidate for federal office soon before an
election. Although he would not say whether McConnell was
correctly decided, Chief Justice Roberts did acknowledge, as
the Court emphasized in its decision, that the Act was the
product of an extraordinarily extensive [legislative] record.
. . . My reading of the Court's opinion . . . is that that
was a case where the Court's decision was driven in large
part by the record that had been compiled by Congress. . . .
[T]he determination there was based . . . that the extensive
record carried a lot of weight with the Justices.
On the subject of legislative fact-finding, Justice Alito's
testimony was in accord. Justice Alito testified:
I think that the judiciary should have great respect for
findings of fact that are made by Congress. . . .
[The] judiciary is not equipped at all to make findings
about what is going on in the real world, not this sort of
legislative findings. And Congress, of course, is in the best
position to do that.
Congress can have hearings and examine complex social
issues, receive statistical data, hear testimony from
experts, analyze that and synthesize that and reduce that to
findings.
I have the greatest respect for [Congressional] findings.
This is an area where Congress has the expertise and where
Congress has the opportunity to assemble facts and to assess
the facts. We on the appellate judiciary don't have that
opportunity.
And when Congress makes findings on questions that have a
bearing on the constitutionality of legislation, I think they
are entitled to great respect.
III. The record of the newly constituted Roberts Court and,
in particular, that of Chief Justice Roberts and Samuel Alito
raises serious questions as to the adequacy of the prevailing
standard for evaluating nominees to the Court. Although
barely four years old, the Roberts Court has already amassed
a record of conservative judicial activism that the country
has not seen since the early New Deal era. This has
manifested, most significantly, in the Court's willingness to
overrule precedent and usurp the lawmaking powers of Congress
in service of conservative political objectives.
Numerous commentators have highlighted the contradiction
between Chief Justice Roberts's and Justice Alito's
testimony, and their actions on the Court. Professor Stone,
whose words in support of Chief Justice Roberts I just
quoted, has written that their records on the Court speak
much louder than their words to Congress. Their abandon[ment]
of stare decisis in case after case has required Chief
Justice Roberts to eat his words about commitment to
precedent. (The Roberts Court, Stare Decisis, and the Future
of Constitutional Law, 82 Tulane Law Review 1533 (2008).)
Another prominent academic lawyer, Professor Ronald Dworkin
of New York University Law School, has said that Justices
Roberts and Alito had both declared their intention to
respect precedent in their confirmation hearings, and no
doubt they were reluctant to admit so soon how little those
declarations were worth. (Quoted in Linda Greenhouse,
Precedents Begin to Fall for Roberts Court, The New York
Times, June 21, 2007). Professor Dworkin later said that
Chief Justice Roberts and Justice Alito, who . . . promised
fidelity to the law during their confirmation hearings, have
brazenly ignore[d] past decisions (Justice Sotomayor: The
Unjust Hearing, The New York Review of Books, Sept. 24,
2009). And Jeffrey Rosen of The New Republic recently asked
in an article, and later in a hearing before the Judiciary
Committee, whether the John Roberts who testified before the
Senate was the same John Roberts who now sits on the Court
(Roberts Versus Roberts: How Radical is the Chief Justice?
The New Republic, Feb. 17, 2010).
No decision of the Roberts Court supports these assessments
more powerfully than Citizens United v. Federal Election
Commission (2010). A five-four majority of the Court struck
down as facially unconstitutional section 203 of the
Bipartisan Campaign Act of 2002 (commonly known as the
McCain-Feingold Act), which prohibits corporations and unions
from making independent campaign expenditures (independent
because they are not coordinated with a campaign) to fund any
broadcast, cable, or satellite communication that refers to a
clearly identified candidate for federal office and is made
within 30 days of a primary or 60 days of a general election.
(Federal law leaves corporations free to finance television
ads, during a campaign or otherwise, addressing whatever
political issues they wish and to engage in express advocacy
for or against a candidate in print or through other mediums
of communication not covered by the statute. It also leaves
them free to engage freely in political advocacy, as they
often do, through PACs.)
The upshot is that election-related speech by corporations
including foreign corporations now apparently enjoys the same
constitutional protection as campaign-related speech by
citizens. It is little wonder that even three-fourths of
Republicans polled have expressed disagreement with the
Court's decision.
The much-discussed rebuke of the Court by the President
during the last state-of-the-union address was deserved. For
the Court's decision did not merely reflect an erroneous, but
reasonable, interpretation of the First Amendment. It
reflected five Justices willingness to repudiate precedent,
history, and Congressional findings to an extraordinary
degree. To highlight: (1) The Court went out of its way to
overrule two decisions: McConnell v. Federal Election
Commission (2003), where six Justices (including most notably
Chief Justice Roberts's and Justice Alito's predecessors,
Chief Justice Rehnquist and Justice O'Connor) had just seven
year earlier upheld section 203 against a facial challenge to
its constitutionality, and Austin v. Michigan Chamber of
Commerce (1990), where the Court upheld the constitutionality
of even broader state statute regulating corporate campaign-
related expenditures. Overruling Austin was especially
significant because Congress specifically relied on that
decision in drafting the McCain Feingold Act. Pulling out the
rug beneath Congress in this manner, Justice Stevens noted in
dissent, shows great disrespect for a coequal branch. (2) The
Court eschewed a number of narrower grounds (both
constitutional and statutory) for ruling in favor of the
corporate litigant. (3) The Court, in Justice Stevens's
words, rewr[ote] the law relating to campaign expenditures by
for-profit corporations and unions (emphasis) by putting for-
profit corporations on the same constitutional footing as
individuals, media corporations, and non-profit advocacy
corporations, and made a dramatic break from our past by
repudiating a century's history of federal regulation of
corporate campaign activity. (4) And the Court, to quote
Justice Stevens once more, cast aside the virtual mountain of
evidence establishing the corrupting influence of corporate
money on which Congress relied in drafting ' 203. Recall the
words I quoted earlier of the Chief Justice during his
confirmation hearing as to the extensive legislative record
on which McConnell was based.
Citizens United is the most visible demonstration of Chief
Justice Roberts' and Justice Alito's troubling disregard of
precedent and usurpation of Congress' constitutionally
assigned powers. It is not the only. Let me offer some
additional examples first in cases interpreting the
Constitution and then in cases interpreting federal statutes.
Especially troubling is Parents Involved in Community
Schools v. Seattle School District No. 1 (2007). The Court
struck down narrowly tailored race-conscious remedial plans
adopted by two local boards designed to maintain racially
integrated school districts. In his opinion for the Court,
Chief Justice Roberts concluded that only upon establishing
that it had intentionally discriminated in the assignment of
students may a school district voluntary adopt such a plan
that is to say, only when the Fourteenth Amendment's equal
protection clause would actually require race-conscious
remedial efforts. But as Justice Breyer emphasized in his
dissenting opinion, a longstanding and unbroken line of legal
authority tells us that the Equal Protection Clause [of the
Fourteenth Amendment] permits local school boards to use
race-conscious criteria to achieve positive race-related
goals, even when the Constitution does not compel it. The
majority's disregard of that precedent, Justice Breyer wrote
in dissent, threatens to substitute for present calm a
disruptive round of race-related litigation, and . . .
undermines Brown's promise of integrated . . . education that
local communities have sought to make a reality. Justice
Breyer pointedly asked: What has happened to stare decisis?
[S]o extreme was Chief Justice Roberts position, New York
Times Court reporter Linda Greenhouse has written, that
concurring Justice Anthony Kennedy, himself a conservative on
the equal protection clause, refused to sign it (Op-ed, The
Chief Justice on the Spot, The New York Times, Jan. 9, 2009).
Hein v. Freedom from Religion Foundation, Inc., 127 S. Ct.
2553 (2007), written by Justice Alito, and Morse v.
Frederick, 127 S. Ct. 1610 (2007), written by Chief Justice
Roberts, present two additional examples in the area of
constitutional law. Hein held that an individual taxpayer did
not have standing to challenge the constitutionality of
government expenditures to religious organizations under the
Bush administration's faith-based initiatives program. That
conclusion ran counter to a four-decade-old precedent holding
that taxpayers have standing to challenge federal
expenditures as violative of the
[[Page S4595]]
Establishment Clause (Flast v. Cohen (1968)). Justice Alito
distinguished the precedent on the ground that it involved a
program authorized by the legislative branch rather than the
executive branch. But as Justice Souter explained in dissent,
Justice Alito's distinction has no basis in either logic or
precedent.
The second case, Morse, held that the suspension of high
school students for displaying a banner across the street
from their school that read BONG Hits 4 JESUS did not violate
the First Amendment. That holding ran counter to another
long-standing precedent, Tinker (1969), which held
unconstitutional the discipline of a public-school student
for engaging in First Amendment-protected speech unless it
disrupts school activities. Chief Justice Roberts attempted
to distinguish Tinker on the ground that the banner in the
case before him could be read to encourage illegal drug use.
That distinction is unpersuasive. The communicative display
held protected in Tinker the wearing of an arm band
protesting the Vietnam war might just as plausibly be
interpreted to encourage illegal activity, i.e., draft
dodging.
Nowhere has Chief Justice Roberts's and Justice Alito's
disrespect for precedent manifested itself more consistently,
perhaps, than in their statutory decisions favoring business
and corporate interests over consumers, employees, and civil
rights plaintiffs. During the Court's last Term alone, Chief
Justice Roberts and Justice Alito voted in three five-to-four
decisions to upend precedent in favor of business interests,
twice ruling against civil rights claimants. The most recent
such case upended the Court's unanimous 1974 decision in
Alexander v. Gardner-Denver Co. (1974), which held that an
employee cannot be compelled to arbitrate a statutory
discrimination claim under a collectively bargained-for
arbitration clause to which he did not consent. The Court
held otherwise in 14 Penn Plaza, LLC v. Pyett (2009), thereby
depriving many employees of their right to bring statutory
discrimination claims in federal court. Rather than
acknowledge that it was overruling Gardner-Denver, however,
the Court cast that decision's holding in implausibly narrow
terms. This prompted the dissenters to lament the Court's
subversion of precedent to the policy favoring arbitration.
Other examples are cataloged in the record of a 2008
Judiciary Committee hearing on the subject of decisions
favoring big business. (Courting Big Business: the Supreme
Court's Recent Decisions on Corporation Misconduct and Laws
Regulating Corporations, Hearing Before the S. Comm. on the
Judiciary, July 23, 2008.)
During the Court's 2006 Term, Chief Justice Roberts and
Justices Alito and Thomas joined the majority in two major
cases (also decided by bare five-four majorities) overruling
precedents so as to favor large corporate interests: Leegin
Creative Leather Products, Inc. v. PSKS (2007), where the
Court overturned a century-old precedent holding that
vertical price-fixing agreement per-se violate the federal
antitrust laws; and Ashcroft v. Iqbal (2009), where the
Court, drawing on Bell Atlantic Corp. v. Twombly, 550 U.S.
544 (2007), changed the long-standing rules governing what a
plaintiff must allege at the outset of his or her case in
order to get into federal court. One reporter has noted that
Iqbal gives corporate defendants a gift that keeps on giving.
(Tony Mauro, Plaintiffs Groups Mount Effort to Undo Supreme
Courts Iqbal Ruling, The National Law Journal, Sept. 21,
2009.)
It is not just that Chief Justice Roberts and Justice Alito
have disregarded precedent. It is the matter in which they
have done it by distinguishing it on unpersuasive grounds or
outright ignoring it without forthrightly overruling it.
Professor Stone has written that the two Justice have
abandoned the principle of stare decisis in a particularly
insidious manner and that their approach to precedent has
been dishonest (Geoffrey Stone, The Roberts Court, Stare
Decisis, and the Future of Constitutional Law, 82 Tulane Law
Review 1533 (2008)). Another notes that [t]his may be a long-
term characteristic of the Roberts Court, changing the law,
even dramatically, but without expressly overruling
precedent. But this may also be a short-term phenomena and
reflective of the recent confirmation hearings of John
Roberts and Samuel Alito. At both, there was considerable
discussion of precedent and even super precedent. Perhaps
with these confirmation discussions still fresh in mind,
these Justices did not want to expressly overrule recent
precedent. But as time passes, the hesitancy may disappear .
. . . (Erwin Chemerinsky, Forward, Supreme Court Review, 43
Tulsa L. Rev. 627 (2008).)
Even fellow conservative Justices Scalia and Thomas have
criticized Chief Justice Roberts and Justice Alito for the
way in which they dispense with precedent without
forthrightly overruling it. In Federal Election Commission v.
Wisconsin Right to Life (2007), for instance, Justice Scalia
went so far as to accuse Chief Justice Roberts and Justice
Alito of practicing what he called faux judicial restraining
by effectively overruling McConnell v. Federal Election
Commission without expressly saying so.
Numerous distinguished academics have criticized the
Roberts's Courts record with respect to stare decisis.
Professor Stone has even said that Chief Justice Roberts's
and Alito's conduct during the first term during which they
both sat on the Court was the most disheartening judicial
performances he has ever witnessed. (The Roberts Court,
Stare Decisis, and the Future of Constitutional Law, 82
Tulane Law Review 1533 (2008).) Similarly, Professor
Dworkin has charged Chief Justice Roberts and Justice
Alito with leading a revolution Jacobin in its disdain for
tradition and precedent, and said of their testimony
before the Judiciary Committee that it was actually a
coded script for the continuing subversion of the American
constitution. (The Supreme Court Phalanx, New York Review
of Books, Sept. 27, 2007, at 92.) And Dean Erwin
Chemerinsky has noted the Roberts Court's pronounced
willing[ness] to depart from prior rulings, even recent
precedents. (Forward, Supreme Court Review, 43 Tulsa L.
Rev. 627 (2008).)
As for the Roberts Court's denigration of Congressional
power, its record is not as extensive as it is with respect
to stare decisis, but it is troubling nonetheless. I have
already discussed Citizens United, where the Court overturned
a precedent (Austin v. Michigan Chamber of Commerce (1990))
on which Congress relied in drafting the McCain-Feingold Act
and disregarded a record of legislative fact-finding
establishing the corruption of our electoral system by the
influx of independent corporate campaign-related
expenditures. Two other cases support that assessment.
The first is Northwest Austin Municipal Utility District v.
Holder (2009). At issue was the constitutionality of '5 of
the Voting Rights Act of 1965. Section 5 prohibits changes in
the election procedures of states with a history of racial
discrimination in voting unless the Attorney General or a
three judge district court determines that the change neither
has the purpose nor will have the effect of denying or
abriding the right to vote on account of race or color.
Congress passed the Act under the express power conferred on
it by article 2 of the Fifteenth Amendment to enforce the
Amendments first section which prohibits racial
discrimination in voting by appropriate legislation. Congress
reauthorized the Act in 1970 (for five years), in 1975 (for
seven years), in 1982 (for twenty-five years), and in 2006
(for another twenty five years). The Court upheld the first
three extensions. At issue in Austin was whether the 2006
extension was supported by an adequate legislative record.
There was no question that it was. Writing for the Court in
Northwest Austin, Chief Justice Roberts himself conceded that
'2 of the Fifteenth Amendment empowers Congress, not the
Court, to determine in the first instance what legislation is
needed to enforce it and that Congress amassed a sizeable
record [over ten months in 21 hearings] in support of its
record to extend ['5s] preclearance requirements, a record
the District Court determined document[ed] contemporary
racial discrimination in covered states. Ultimately the Court
avoided the constitutional question in Austin by deciding the
case on a narrow statutory ground. But during oral argument
in the case, Chief Justice Roberts made clear that he was
disinclined to accept Congress' legislative finding as to the
need for '5. He said that, in extending '5s so-called
preclearance requirements, Congress was sweeping far more
broadly than they need to, to address the intentional
discrimination under the Fifteenth Amendment. Numerous Court
commentators have suggested that it was only because Chief
Justice Roberts could not muster a majority for striking down
'5 that he agreed to decide the case on narrow statutory
grounds. (E.g., Linda Greenhouse, Down the Memory Hole, The
New York Times, Oct. 2, 2009.) It is difficult to resist that
conclusion. There was no reason for four Justices to have
granted certiorari in the case unless they wanted to strike
down '5. The statutory issue the Court decided was
unimportant.
Another example is Ashcroft v. Iqbal (2009). Building on
its earlier decision in Bell Atlantic v. Twombly (2007), the
Court there changed the long-standing rules of pleadings the
rules governing what a plaintiff must allege in a complaint
to have his case heard in federal court under the Federal
Rules of Civil Procedure. Until Twombly and Iqbal, the
Federal Rules required no more of a complaint than that it
provide a short and plain statement of the claim, sufficient
to give the defendant fair notice of what the plaintiffs
claim is and the grounds upon which it rested. Conley v.
Gibson (1957) (quoting Rule 8(a)(2)). A plaintiff was not
required to plead the specific facts underlying his
allegations. Only if a complaints allegations, accepted as
true, failed to support a viable theory of relief that is,
fail[ed] to state a claim upon which relief can be granted
(Fed. R. Civ. P. 12(b)(6)) could the complaint be dismissed.
That rule makes eminent sense: not until receiving a
plaintiff's post-discovery evidentiary submission can the
court evaluate the sufficiency of his factual allegations.
Twombly jettisoned notice pleading by requiring that a
complaint include sufficiently detailed factual allegations
to render its key allegations plausible. Iqbal went a
substantial distance beyond Twombly by requiring courts to
draw on [their] judicial experience and common sense in
effect, to indulge their subjective judgments without the
benefit any evidence in evaluating a complaint's
plausibility. No one yet knows the extent to which these new
rules will limit Americans' access to the courts. But so far
the signs especially in civil rights cases are not
encouraging.
The significance of the two decisions, apart from whatever
effect they may have on access to the federal courts, is that
the Court end ran the Congressionally established
[[Page S4596]]
process for changing the rules of civil procedure. In the
Rules Enabling Act of 1938, Congress delegated to the federal
judiciary its power to promulgate procedural rules for cases
in the federal courts, but not through the normal mechanism
of case-by-case adjudication. Congress recognized that
establishing procedural rules is not a judicial function; it
is a legislative function. Therefore, Congress required that
any proposed rule change be noticed and subjected to public
comment (much as a proposed rule by a administrative agency
is subjected to notice-and-comment rulemaking procedures),
carefully reviewed by the relevant committees of the Judicial
Conference in open proceedings that allows for public
participation, and then approved by the Conference. The rule
must then be presented to the Supreme Court for approval and,
if approved, sent to Congress, which has six months to review
and disapprove the rule. Twombly and especially Iqbal
represent a brazen disregard for these Congressionally
established procedures. No one should let the technical
nature of the issues in these cases obscure that fact.
IV. Where does all this leave us? It is clear that we can
no longer content ourselves with assurances from a nominee
that he or she will respect precedent a promise all nominees
now seem to employ, in Laurence Tribe's words, as a magic
elixir [citation] and defer to the legitimate exercise of
Congressional power (including legislative factfinding).
Chief Justice Roberts' and Justice Alito's performance on the
Court demonstrate how little those promises tell us about how
a nominee will decide particular cases once seated on the
Court. Still less can we content ourselves with vague
promises of the sort that we have heard repeatedly from
nominees of both Democratic and Republican Presidents in the
post-Bork era that they will decide cases according to the
law, honor the rule of law, approach each case with an open
mind, put aside personal policy preferences when donning
their robes, and so on. None of these promises tells us
anything meaningful about how a Justice will decide cases.
Nor will a nominees testimony about what interpretative
methodologies he or she will employ in deciding cases or what
role he or she envisions for judicial review in our system
usually tell us much, if anything useful, about what sort of
voting record he or she will have on the Court. As one
academic who has carefully studied the confirmation
hearing of every nominee beginning with Justice O'Connor
in 1982 observes, most Supreme Court nominees say more or
less the same thing when answering inquiries about the
nominee's general approach to constitutional philosophy or
interpretation. (Lori A. Ringhand, I'm Sorry, I Can't
Answer That: Positive Scholarship and the Supreme Court
Confirmation Process, University of Pennsylvania Journal
of Constitutional Law 331 (2008).) Solicitor General Kagan
made much the same point in 1995 when, in a law review
article whose key arguments she still stands by, wrote
that a nominee's statements of judicial philosophy may be
so abstract as to leave uncertain, especially to the
public, much about their real-world consequences. (Elena
Kagan, Confirmation Messes, Old and New, University of
Chicago Law Review, 62 University of Chicago Law Review
919, 935 (1995).)
Consider one interpretative methodology that, beginning
with Robert Bork, has taken on special prominence in the
confirmation process: original intent, sometimes called
original meaning. Conservatives claim that only by
interpreting the Constitution according to its original
intent can judges avoid reading their personal ideological
views into the Constitution. But as Christopher Eisgruber,
the Provost of Princeton University and a former law
professor at New York University School of Law, has observed
in an important book, originalist accounts of constitutional
meaning . . . reflect the ideological values of the judges
who render them, no less than do other interpretations of the
Constitution.
Original intent is not the exclusive province of
conservatives. Both liberal and conservatives regularly
appeal to original intent to justify their positions. One
prominent liberal academic lawyer, paraphrasing another,
claims that w[e] are all originalists now. (Laurence H.
Tribe, Comment in Antonin Scalia, A Matter of Interpretation
(1997), p. 67.) It is not surprising that during their
confirmation hearings both Judge Bork and Justice Souter
Republican nominees who, we later learned, shared very
different judicial ideologies subscribed to original intent
as an interpretative methodology. The problem is that
liberals and conservatives reach competing conclusion as to
what the original intent requires with respect to contested
constitutional provisions. Sometimes even conservatives
disagree among themselves about original intent in particular
cases. Professor Eisgruber notes: The originalist Justice
Antonin Scalia insists that the framers intended for the free
speech clause to establish a principle that protects flag
burning; the orignalist former judge . . . Robert Bork says
that they did not. Scalia says that the framers did not
intend the free exercise clause to provide religious
believers with exemptions from generally applicable laws; the
originalist scholar and federal judge Michael McConnell says
that they did. John Paul Stevens and four other moderate-to-
liberal justices say that the framers intended to provide
term limits for federal legislators; four more conservative
justices say that they did not. (The Next Justice (2007), p.
40.) Another of many more recent examples relates to gun
rights. Two years ago in District of Columbia v. Heller
(2008), the Supreme Court was presented with the question
whether the Second Amendment guarantees an individual right
to bear arms unconnected with service in a state militia. The
Court's five conservative Justices answered definitively yes;
the Court's four more liberal members answered definitively
no. Both relied on the framers' original understanding of the
Second Amendment to reach their conclusions. Here, as in many
cases where original is invoked, to quote Professor Eisgruber
again, the judges' conclusions about the framers wanted align
with their own constitutional values.
One reason that neither originalism nor any other neutral
interpretative approach will dictate the result in the
difficult cases that come before the Court is that the
Constitution's most contested provisions set forth general
principles using abstract language. The First Amendment
prohibits Congress from making a law that respecting an
establishing of religion or abridging the freedom of speech.
The Fifth and Fourteenth Amendments prohibit the federal
government and the states, respectfully, from depriving any
person of life, liberty, or property without due process of
law. The Eighth Amendment prohibits the imposition of cruel
and unusual punishment. And the Fourteenth Amendment
prohibits the states from depriving any person within their
jurisdiction the equal protection of the laws. Many statutes
are similarly open-ended and no less demanding of judicial
interpretation. Think, for instance, of the Sherman Antitrust
Act, whose main provision declares only that [e]very
contract, combination in the form of trust or otherwise, or
conspiracy, in restraint of trade or commerce among the
several States, or with foreign nations, is declared to be
illegal.
What meaning a Justice gives to such open-ended provisions
in particular cases will depend on a judge's ideology his or
her understanding of what these provisions mean when applied
to the types of governmental actions that regularly come
before the Court. Consider, for example, the Fourteenth
Amendment's equal protection clause, perhaps the most open-
ended of the open-ended provisions to which I have referred.
Does it forbid all (or nearly all) state action based on
racial classifications? Does it, that is, always require the
state to be color-blind? Or does it allow states to take race
into account and sometimes even prefer a person over one race
over a person of another in order to diminish inequality,
promote diversity, render public institutions more
representative of the population (and thereby more
legitimate), or otherwise? The text of the equal protection
clause cannot answer these questions. Nor, in many cases, can
precedent. Only the judges ideology or, if you will, his or
her understanding of the clause's purpose can.
The situation is no different when it comes to the
interpretation of statutes. On the subject of affirmative
action, consider Title VII of the Civil Rights Act of 1964's
seemingly straightforward prohibition on employment
discrimination because of race. Does this prohibition extend
to every sort of differential treatment based on race, in
which case affirmative action programs nearly always violate
Title VII, or does it just extend to invidious forms of
discrimination, in which case at least some carefully drawn
affirmative action programs do not violate Title VII? The
text of the statute does not answer these questions. Again,
only a judge's views of what discrimination means can. That
is why, more than forty five years after Title VII's
enactment, the Justices have not reached a consensus as to
the legality of affirmative action.
The inescapable conclusion I draw from all this that, in
future confirmation hearings, the Senate should consider a
nominee's substantive judicial ideology or, to use Solicitor
General Kagan's words in the article to which I just
referred, a nominee's constitutional views and commitments.
(Elena Kagan, Confirmation Messes, Old and New, 62 University
of Chicago Law Review 919, 942 (1995).) I say judicial rather
than political ideology because a judge may hold subscribe to
a judicial ideology that dictates substantive results he or
she would not vote for if sitting as a legislator. A judge
may, for instance, be opposed to affirmative action as a
political matter but believe that the Constitution cuts a
wide swath for Congress to pass raced-based remedial measures
(as the framers of the Reconstruction Amendments may well
have believed). Or a judge may believe legislatures should
not ban abortions but that the constitution allows them to do
so. Of course, there will often be substantial overlap
between a judge's political and legal ideologies, and it may
sometimes be difficult to distinguish between the two.
=========================== NOTE ===========================
On page S4596, June 7, 2010, in the Record reads: . . . Senate
must consider . . .
The online Record has been corrected to read: . . . Senate
should consider . . .
========================= END NOTE =========================
To those who say that it is inappropriate for the Senate,
in discharging its advice and consent function, to consider
ideology, I would remind them of an oft-reflected reality:
presidents choose among candidates for nomination based on
ideology. Christopher Eisgruber notes in The Next Justice
that when people discuss Supreme Court nominations, they
usually focus on the Senates role . . . Much less
attention gets paid to the process by which presidents
nominate justices. . . . However understandable this focus
may be, it produces a distorted picture of how Supreme
Court Justices get chosen. Handwringing polemics about
[Senate] confirmation wars presuppose that presidents
choose nominees on apolitical grounds and
[[Page S4597]]
that partisanship enters only at the confirmation stage.
That is nonsense. Ideological and political considerations
have always figured in presidential decisions about whom
to nominate to the Court. If the President may consider a
nominees ideology, why may not the Senate do so? Then-
Senator Obama made just that point during his well-known
floor statement on then-Judge Alitos nomination when he
said that the Senates advice-and-consent function, like
the Presidents nominating function, requires an
examination of a judges philosophy, ideology, and record
(January 26, 2006).
This raises two questions: First, to what substantive
ideological principles should we be confident a nominee
subscribes before confirming him or her? And second, how
should the Senate ascertain a nominees position on these
matters during a confirmation hearing?
=========================== NOTE ===========================
On page S4597, June 7, 2010, the Record reads: . . . principles
must we . . .
The online version has been corrected to read: . . . principles
should we . . .
========================= END NOTE =========================
As for the first question, I would be reluctant to suggest
a definitive list. Many commentators have offered suggestions
as to how the Senate should go about ascertaining a nominees
judicial ideology, but few have offered any specific
suggestions as to what that ideology should be, except to say
that we should generally prefer ideological moderates. (E.g.,
Christopher Eisgruber, The Next Justice (2007).) The
objective would be to identify certain important principles
that are specific enough to tell us something about what
outcomes a nominee is likely to reach in broad categories of
cases, but not too specific as to require the nominee to
prejudge the outcome of particular cases. Let me suggest a
tentative list:
(1) A nominee should accept that the Fourteenth and
Fifteenth Amendments confer substantial power on Congress to
enforce their substantive provisions. Over the last fifteen
years, considerable attention has been given to Congress's
express power to enforce the Fourteenth and Fifteenth
Amendment by appropriate legislation. The Court has
significantly limited Congress's remedial powers under those
amendments. The main issue in these cases is how much
deference the Courts should accord Congress in deciding
whether remediation is necessary and, if so, what remedies
are appropriate. The Courts conservatives have accorded
Congress virtually none. But the drafters of the Fourteenth
and Fifteenth Amendment did not make the Court Congress's
taskmaster. The Court should ask no more than whether, in
Justice Breyer's words, Congress could reasonably have
concluded that a remedy is needed and that the remedy chosen
constitutes an appropriate way to enforce the amendments.
(Board of Trustees of the University of Alabama v. Garrett
(2001) (Breyer, J., dissenting).) The Senate should look
askance at any nominee who does not share Justice Breyer's
view.
(2) A nominee should accept that the Constitution and, in
particular, the due process clause of the Fourteenth
Amendment protects facets of individual liberty not yet
recognized by the Court. The Court has held repeatedly that,
through the due process clause of the Fourteenth Amendment,
the Constitution protects facets of personal liberty a realm
of personal liberty which the government may not enter (Casey
v. Planned Parenthood of Southeastern Pennsylvania (1992))
not tethered to any of the rights expressly enumerated in the
Constitution's other amendments. These rights include the
right to terminate a pregnancy (Roe v. Wade (1973), Casey)),
the right to marry (Loving v. Virginia (1967) (alternative
holding)), and the right to enter into intimate personal
relationships (Lawrence v. Texas (2003). No nominee since
Robert Bork has taken the position that the due process
clause is limited to procedure. Not even Justice Scalia has
taken that position on the Court. Some Justices, though, have
taken an unduly restrictive view of the liberty interests
protected by the due process clause so restrictive as to
drain it of any meaningful content. Justice Scalia, for
instance, has demanded that a personal liberty interest not
only be fundamental before it is given constitutional
protection but also that it can be shown have been protected
against government interference by other rules of the law
when the Fourteenth Amendment was ratified. Justice Thomas
may have an even more restrictive view. We should ask of
nominees that they embrace the proposition that the due
process clause protects facets of personal liberty whether
involving privacy or otherwise not yet recognized by the
Court. This is important because no one can predict what
future government actions will infringe on facets of liberty
yet unaddressed by the Court.
(3) A nominee should accept that the liberty protected by
the Constitutions due process clauses includes the right to
terminate a pregnancy before the point of viability. I
realize that abortion remains a divisive moral and social
issue. But the constitutional status of abortion rights has
been settled. The Court has declined the opportunity to
overrule Roe v. Wade (1973) in nearly forty cases. In Casey
v. Planned Parenthood (1992), three Republican nominees to
the Court (Justices Kennedy, O'Connor, and Souter) joined two
other Justices in affirming Roe's central holding. Even
conservative federal judge Michael Luttig, a former clerk of
Justice Scalia, has characterized Casey as super stare
decisis. (Richmond Medical Center for Women v. Gilmore (4th
Cir. 1998). Roe should now be taken off the table as a
candidate for overruling, just as Brown v. Board of Education
(1954), Griswald v. Connecticut (1965), and other bedrock
precedents have been taken off the table by recent nominees
to the Court (including Justice Alito) in their confirmation
testimony. Even some of Roe's most vociferous critics
including President Reagan's Solicitor General, Charles
Fried, who urged the Court in the 1980s to overturn the
decision, and the late John Hart Ely, perhaps Roe's most
prominent academic critic, have said that the Supreme Court
should not, at this late date, overrule Roe.
(4) A nominee should accept that the equal protection
clause of the Fourteenth Amendment does not prohibit narrowly
tailored race-based remedial measures that is, does not
mandate color-blindness so long as they do not amount to
quotas. Two of the Courts conservative Justices Scalia and
Thomas have adopted the extreme and a historical
interpretation of the equal protection clause that denies the
government any ability to adopt any race-based preferences to
remedy past discrimination, no matter how narrowly drawn.
Neither Justice has justified this position, ironically, by
reference to the views of the Fourteenth Amendment's framers.
Their position is based, rather, on their nakedly political
position that, in Justice Scalia's words, affirmative action
reinforce[s] and preserve[s] . . . the way of thinking that
produced race slavery, race privilege, and race hatred, and
in Justice Thomas's words, that affirmative action
undermine[s] the moral basis of the equal protection
principle. (Adarand Constructors, Inc. v. Pena (1995).)
Language in Chief Justice Roberts's opinion in Parents
Involved in Community Schools v. Seattle School District No.
1 (2007) suggests that he may well share this strong
antipathy to race-based remedies.
(5) A nominee should accept the constitutionality of
statutory restrictions on campaign contributions to
candidates for office. In Buckley v. Valeo, 424 U.S. 1
(1976), the Supreme Court upheld limits on contributions by
individuals, even as it struck down a provision of federal
law prohibiting independent expenditures in support of
candidates for office. The Court accepted Congress finding
that allowing large individual financial contributions
threatens to corrupt the political process and undermine
public confidence in it. Id. at 26. Buckley's holding on
this point has been well-settled law for nearly 35 years.
Let me be clear about what we should not demand of
nominees. We should not demand that they promise to reach
particular outcomes in particular cases before the Court or
likely to come before the Court, or even require that they to
state their views on issues with so much specificity that we
know how they will probably rule in particular cases. We
should not demand, for instance, that a nominee promises to
recognize a right to engage in assisted suicide, or to uphold
' 5 of the Voting Rights Act, or to recognize that a
particular state regulation imposes an undue burden on the
right to an abortion under Casey. Nor should we condition a
nominees confirmation on passing a single-issue litmus test.
We should not demand ideological purity of nominees. Some
ideological diversity on the Court is a good thing.
The second question I have asked how do we ascertain a
nominees judicial ideology? is more easily answered. I would
first carefully evaluate the nominees pre-hearing record for
clues to his or her ideology, much as the Presidents staff
does. They may provide important clues about a nominees
ideology, especially if the nominee has a limited judicial
record on which to draw, as did Chief Justice Roberts, or,
also like the Chief Justice, avoided writing law review
articles of the sort condemned Robert Bork during his
confirmation hearing.
Chief Justice Roberts's and Justices Justice Alito's
statements before becoming lower court judges at least raised
serious questions (admittedly with the benefit of some
hindsight) as to whether they were conservative judicial
ideologues. Let me offer some examples.
Most revealing in Chief Justice Roberts's record, perhaps,
were the views he expressed on the remediation of racial
discrimination while serving in a political capacity as a
member of the Reagan administration. None attracted more
attention than his views on the 1982 reauthorization of the
Voting Rights Act. The Chief Justice wrote more than two
dozen documents urging the administration to reject a
provision of the then-pending House bill that would have
allowed plaintiffs to establish a violation of the Act not
only by establishing that a voting practice was impermissibly
motivated, but also by establishing that it had a
discriminatory effect. Roberts claimed that the so-called
effects test would establish a quota system in elections and,
more disturbingly still in light of the extensive record of
voting-rights abuses amassed by Congressional committees,
claimed that there was no evidence of voting abuses
nationwide. In one memorandum, for instance, he wrote that
something must be done to educate the Senators on the
seriousness of this problem. Roberts's position did not
prevail. Congress passed a reauthorization bill that included
an effects test, and President Reagan signed into law. The
law has worked well to prevent discrimination in voting. No
one has seriously contended that the reauthorization
established an electoral quota system.
Another example in the race discrimination context (this
one not, unfortunately, raised at the confirmation hearing)
was a 1981 memorandum that Roberts wrote to the Attorney
General questioning the legality of regulations promulgated
by the Department of Labor to enforce Executive Order 11246.
Issued in 1965, that order requires private-
[[Page S4598]]
sector employers that contract with the federal government to
evaluate whether qualified minorities and women are
underutilized in their workforces and, if so, to adopt goals
to increase their representation by encouraging women and
minorities to apply for positions. It does not require or
authorize employers to give any racial or sex-based
preferences; in fact, its implementing regulations expressly
forbid such preferences. Roberts attacked the regulations on
the ground that they conflicted with the color-blindness
principle of Title VII of the Civil Rights Act of 1964 and
use quota-like concepts. Only the most hardened conservatives
have questioned the legality of Executive Order 11246 in this
manner.
That is not all. For example, Roberts wrote disparagingly
about so-called fundamental rights (including the right to
privacy) recognized by the courts, in his view, to arrogate
power to themselves; questioned whether Congress had the
authority to terminate an overseas military engagement by
joint resolution without treading on the Presidents inherent
executive powers; and, in one case involving alleged systemic
gender discrimination at a prison, urged the Attorney General
to reject the advice of the Civil Rights to intervene in the
case because, among things, gender classifications should not
receive any heightened constitutional scrutiny.
Justice Alito's extra-judicial statements while serving in
the Reagan Administration were more even revealing than Chief
Justice Roberts's. Among them was his characterization of
Robert Bork as one of the most outstanding nominees of this
century. Alito shared Borks antipathy, in particular, to the
abortion right first recognized in Roe v. Wade (1973). While
serving as an assistant to Solicitor General Charles Fried in
1985, Alito took it upon himself to outline, in the words of
Professor Laurence Tribe, a step-by-step process toward the
ultimate goal of overruling Roe. That same year, when
applying for a position as the Assistant Attorney General in
the Office of Legal Counsel, Judge Alito unequivocally stated
in his cover letter the Constitution does not provide for the
right to terminate a pregnancy.
Justice Alito's extra-judicial writings also evidenced an
expansive view of executive power. Among them was 1989 speech
defending Justice Scalias lone dissent in Morrison v. Olson
(1988). There the Court upheld the constitutionality of the
independent counsel law passed by Congress in the wake of
Watergate. Justice Scalia was the lone dissenter. Justice
Alito expressed his agreement with the unitary executive
theory around which Justice Scalia framed his dissent. Alito
did so again in 2000 during a speech to the Federalist
Society. Justice Alito's support for the expansion of
executive at the expense of Congressional power was also
reflected in memoranda he wrote supporting the use of
presidential signing statements to advance a presidents
interpretation of a federal statute. Such statements, Justice
Alito contended, could serve as part of a statute's
legislative history to compete with floor statements,
committee reports, and other expressions of Congressional
intent. Professor Erwin Chemerinsky testified that Alitos
objective was to shift power from the legislature . . . to
the executive. Justice Alito's views on the subject surfaced
soon after he was seated on the Court. In Hamdan v. Rumsfeld
(2006), Justice Alito joined a dissenting opinion by Justice
Scalia chiding the majority for relying on legislative
history without also consulting President Bush's signing
statement.
Another oft-neglected source of information about a
nominees ideology that should be taken for granted are those
made by the nominating Presidents. Presidents often promise
the public to select candidates of particular ideological
stripe. President George W. Bush, for instance, said that he
would nominate Justices in the mold of Justices Scalia and
Thomas. Maybe we should take presidents at their word.
Presidents, after all, select nominees to the Court for
ideological reason, and presidents, notes Christopher
Eisgruber in The Next Justice, have numerous opportunities to
gather information from Washington insiders about a potential
nominee before nominating him or her information to which
Senators are often not privy. Professor Eisgruber reports,
for example, that Clarence Thomas told White House counsel C.
Boyden Gray that he was opposed to affirmative action. That
important piece of information did not surface during Justice
Thomas's confirmation hearing. (Christopher L. Eisgruber, The
Next Justice (Princeton, 2007), p. 146.) It is no surprise
that Justice Thomas has turned out to be the Court's most
unyielding opponent of affirmative action.
What, if any, weight should we give to a nominees own
testimony? A few commentators have suggested that the Senate
should return to the practice that prevailed before the mid-
1950s and dispense with testimony from the nominee
altogether. (E.g., Richard Brust, No More Kabuke
Confirmations, ABA Journal, Oct. 2009.) They say that the
nominees reveal nothing important about a nominee's judicial
ideology. I have made that complaint myself. At the outset of
the Roberts confirmation hearing, I said: It has been my
judgment . . . that nominees answer about as many questions
as they think they have to in order to be confirmed. It is a
subtle minuet . . . Nominees of both parties do the dance. In
fact Justice Sotomayor, whose nomination I supported, took
the dance to a new level. She said repeatedly that her
judicial philosophy was fidelity to the law. That told us
nothing about Judge Sotomayor. It is unfathomable to think
that any nominee no matter how liberal or conservative would
testify that he or she would be unfaithful to the law.
I do not agree, however, that we should dispense with a
nominee's testimony. It can be an important and, if the
nominee has a limited paper record, critical source of
information about the nominee's ideology. It is also
important to allow nominees to explain whether positions
imputed to her in fact reflected her views and, if so,
whether they still do. Perhaps a position a nominee once took
was really not his own, but instead his clients. Or perhaps a
nominee has abandoned a once-held position. Nominees should
be given the opportunity to explain their records. Senators
can judge the sincerity of their testimony. Moreover,
dispensing with a nominee's testimony would deprive members
of the public of an important opportunity to evaluate the
nominee while watching live on television.
Instead, the Judiciary Committee should insist that a
nominee actually provide meaningful testimony. Repetitiously
reciting platitudes such as I will follow the law or apply
the law to the facts or address each case on its merits or
approach each case with an open mind can no longer do. They
tell us nothing about a nominee's ideology or judicial
philosophy. One type of question the Senate might make better
use of is to ask the nominee for his opinion on cases already
decided by the Court. As Robert Post of Yale Law School has
argued, this sort of question, if answered, will reveal
information about the nominee's ideology that vague questions
about his or her approach to interpretation cannot. (Robert
Post & Reval Siegel, Questioning Justice: Law and Politics in
Judicial Confirmation Hearings, Yale L.J. (The Pocket Part),
Jan. 2006.) Senators have asked that sort of question before,
but often without adequate follow-up or without demanding
answers. A nominee who answers such a question is no more
guilty of prejudging a case that may come before the Court
than a sitting Justice who decided the particular case in
question. Recall that, during Justice Ginsburg's confirmation
hearing, she testified that she believed that the Court
reached the right result in Roe, although she disagreed with
its reasoning, just as she had previously done in her
academic writings. We need more testimony like that.
Whatever particular mode of questioning is employed, the
important point is that, when the Senate cannot ascertain the
nominee's judicial ideology from his or her pre-nomination
record, the Senate must insist that the nominee be
forthcoming with it. The Judiciary Committee should no longer
tolerate the sort of answer Justice Scalia gave during his
confirmation hearing when I asked him whether Marbury v.
Madison, the 1803 case holding that the Court has the
authority to pass on the constitutionality of a federal law,
was a settled precedent not subject to reconsideration.
Justice Scalia refused to answer with the yes or no my
question deserved. He acknowledged only that Marbury was a
pillar of our system and then said: Whether I would be likely
to kick away Marbury v. Madison given not only what I just
said but also what I have said concerning my respect for the
principle of stare decisis, I think you will have to judge on
the basis of my record as a judge in the court of appeals,
and your judgment as to whether I am, I suppose, on that
issue sufficiently intemperate or extreme. In effect, Justice
Scalia was saying that a nominee who kicked the legs out from
under Marbury should be considered intemperate or extreme and
hence presumably denied appointment by the Senate and yet he
would not forthrightly rule out the possibility of
overturning Marbury. Nor can the Committee accept a statement
like Clarence Thomas's in 1991 that he did not have an
opinion as to whether Roe was properly decided and, more
remarkably still, could not recall ever even having a
conversation about it.
It is not just the nominees of Republican Presidents, of
course, who have withheld their substantive views from the
Judiciary Committee. Every nominee since Robert Bork has done
so. In her 1995 law review article on the confirmation
process, the current nominee to the Court, Elena Kagan,
highlighted the testimony of President Clinton's two Supreme
Court appointments, Justices Ginsburg and Breyer to show what
was wrong with confirmation hearings. (Elena Kagan,
Confirmation Messes, Old and New, University of Chicago Law
Review, 62 University of Chicago Law Review 919, 935 (1995)).
Justice Ginsburg refused to answer even as simple a question
as to whether the Korean War was, in fact, a war, just as
Justice Souter had done over a decade earlier. Justice
Breyer, to quote Solicitor General Kagan, declined to answer
not merely questions concerning pending cases, but questions
relating in any way to any issue that the Supreme Court might
one day face. And as I have already noted, Justice Sotomayor,
whose confirmation I supported, was even less forthcoming
with her views than her two immediate predecessors Chief
Justice Roberts and Justice Alito. Numerous commentators
supportive of her nomination share my assessment.
And of course, a nominee's testimony must not be the final
word. A nominee's testimony should be evaluated, as Professor
Laurence Tribe testified during the Alito confirmation
hearing, not as though it were burned onto a blank CD to be
evaluated on its own, but
[[Page S4599]]
against an extensive backdrop of the nominee's pre-hearing
record.
Mr. SPECTER. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KYL. I ask unanimous consent that the order for the quorum call
be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
____________________