[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.

                          ____________________