[Congressional Record (Bound Edition), Volume 151 (2005), Part 15]
[Senate]
[Pages 20897-20898]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF JOHN ROBERTS

  Mr. CORNYN. Mr. President, while the Senator is leaving the floor, I 
wish to say to the ranking member of the Judiciary Committee how much I 
appreciate his decision. I know how seriously he has weighed his 
decision whether to vote to confirm John Roberts as Chief Justice of 
the United States. I believe we are at our best in this body when we 
set aside our differences that come from our partisan affiliation. The 
fact that some of us are Republicans and some are Democrats is a fact 
of life, and we have to work within our political system to try to 
solve America's problems the best we can. But I do believe we are at 
our best when we rely upon the principles and the values that bind us 
together rather than those that distinguish us and separate us as 
Senators.
  I must confess that yesterday I was more than a little bit 
disappointed when the distinguished Democratic leader announced that he 
would vote no on this nomination. Clearly, it is within his right and 
prerogative, as it is within any Senator's right and prerogative to 
vote as they see fit. But I guess what struck me was the fact that at 
the same time he announced he would vote no, he called Judge Roberts an 
``excellent lawyer'' and ``a thoughtful, mainstream judge'' who may 
make ``a fine Supreme Court Justice.''
  These were words quoted in today's editorial in the Washington Post 
entitled, ``Words That Will Haunt.'' I guess what concerns me is you 
can be an excellent lawyer, you can be a thoughtful mainstream judge 
who may make a fine Supreme Court Justice, and yet because of the 
outside groups that demand allegiance to their positions that do not 
represent the mainstream of America, do not represent rational thought 
but, rather, the triumph over partisanship and special interest groups 
over the public interest, what worries me so much is that they seem to 
have such undue influence on the decisionmaking process of some Members 
when it comes to judicial confirmations.
  Indeed, I believe it was because of the interest groups that we had 
several years of near meltdown when it came to the unprecedented use of 
the filibuster to block a simple up-or-down vote on the President's 
nominees, something that had never happened before that time in the 200 
years of the history of the Senate, and particularly when it came to 
judicial confirmation votes.
  I do want to address some of the concerns the distinguished ranking 
member, Senator Leahy, raised because I do have a different view. 
Unfortunately, the formula that seems to be creating the theme here of 
consultation, questions, and documents is one that was foreshadowed in 
earlier news stories

[[Page 20898]]

that said this was the strategy the outside groups were going to use in 
an attempt to defeat this nomination.
  By that I mean--first on consultation--I know Senator Leahy said he 
did not think consultation was adequate, but there was unprecedented 
consultation by the White House with Senators about the nomination, 
something that had never before occurred. The President listened to 
ideas of Senators on both sides of the aisle about the type of person 
and individual he should nominate to the Supreme Court.
  Ultimately, though, the Constitution provides the authority to choose 
to the President and the President alone. The Constitution does not 
contemplate the Senate being cochoosers of the nominee but, rather, the 
President making that choice and then the Senate providing advice and 
consent during this judicial confirmation process, ultimately leading 
up to an up-or-down vote on the Senate floor.
  I am a little disappointed that in spite of this attempt to reach out 
more than halfway to the Senate, and particularly the minority in the 
Senate on consultation, the President's good efforts have been rejected 
as inadequate. But I don't see how any reasonable outside observer 
could reach that conclusion.
  Second, the issue of questions. What kind of questions should a 
nominee answer? The standard for this was set in the early 1990s by 
Ruth Bader Ginsburg who was nominated by President Clinton and 
confirmed to the U.S. Supreme Court. While she was willing to talk 
about things she had written in the past, it was clear that she was 
going to draw a very important line in terms of sending signals or 
prejudging cases or issues that were likely to come back before the 
Court. It was using that same standard observed by not only Judge 
Ginsburg but Judge Breyer, who was confirmed after her--also a Clinton 
nominee--Thurgood Marshall, Sandra Day O'Connor, or William Rehnquist 
in his confirmation proceeding.
  It is clear, as Judge Roberts said, that there is an ethical line 
that judges cannot cross, one of which is set by the American Bar 
Association Model Code on Judicial Ethics. It says clearly, in 
confirmation proceedings--I asked Judge Roberts during the Senate 
Judiciary Committee hearings--that applies to judicial confirmation 
hearings. So it would have been unethical to cross the line. And now 
some Senators insist Judge Roberts should have crossed the line when it 
came to answering certain types of questions that would ask him to 
prejudge certain issues and cases.
  But there is also a constitutional standard because the independence 
of the judiciary is a core value of our form of government and of the 
American people. Who could feel that a judge was truly independent and 
fair who has already stated in a confirmation hearing how he would rule 
on an issue that later comes before the Supreme Court? Everyone 
recognizes that is not fair, that is not an independent judiciary. So I 
believe the judge drew an appropriate line from that standpoint as 
well.
  Finally, there is the third prong of this three-prong attack laid out 
by the special interest groups long before Judge Roberts was even 
nominated and has to do with the documents issue. This has to do with 
documents prepared by the Solicitor General's Office as it prepared to 
represent the United States in the Supreme Court.
  I asked Judge Roberts whether that sort of ability to have candid and 
confidential communications among the lawyers who are representing the 
United States was part of a recognized privilege that all lawyers and 
clients share, whether it is the Government or whether it is 
individuals, and he said it was.
  In fact, a number of Senators on our Judiciary Committee were quite 
upset last year when it appears confidential documents written by their 
committee lawyer to those Senators were then published in the outside 
world, claiming their rights had been violated. If the Senators are 
entitled to have confidential communication from our own lawyers and 
our own staff without having it published in the outside world, then 
surely the President of the United States enjoys that same right and 
privilege.
  This nominee has withstood in admirable form more than 20 hours of 
questions from members of the Senate Judiciary Committee. There were 32 
witnesses who testified after he did, including the American Bar 
Association which has given him an A plus, so to speak, that considered 
him unanimously to be well qualified for this position. In the end, 
though, this nominee is probably better known to the Senate and the 
Senate Judiciary Committee than any nominee in recent history, having 
only 2 years ago been confirmed by unanimous consent to the District of 
Columbia Court of Appeals, what some have called the second highest 
court in the land.
  I ask my colleagues who are bound and determined to vote against this 
nominee who, by most accounts, is one of the most impressive nominees 
and outstanding nominees who has ever been nominated to the Supreme 
Court, is there any nominee of this President for whom they could vote? 
I fear the answer to that is no, that for some of our colleagues, there 
is no nominee by this President to the U.S. Supreme Court for whom they 
could ever vote.
  That should sadden and disappoint all of us because what it means is 
that the bitter partisan divisions that separate us in this body far 
too often and distract us from the important work we have been sent 
here by our constituents to do have triumphed over the constitutional 
obligation to provide advice and consent and to conduct our ourselves 
with civility and dignity and to resist the pressures of interest 
groups who cry out for the political scalp of not just this President 
but all of his nominees and discourage good men and women from being 
willing to answer the call to public service. If they know they are 
getting ready to be put through a sausage grinder, if they know 
everything they did and said would be examined and distorted even and 
in the end that the merit of their nomination would play second fiddle 
to bitter partisan politics, I fear there are good men and women who 
would like to answer the call to public service who will simply say no.
  I am looking forward on Thursday to the Senate Judiciary Committee 
voting Judge Roberts out of the committee and his nomination coming to 
the floor. I hope our colleagues will study his background, the record 
created before the Judiciary Committee, and come to their own decision, 
without regard to politics, without regard to partisanship, and judge 
it solely on the merits. But particularly it is my earnest hope and 
plea they resist the cry of the outside special interest groups who 
care nothing about good government but only about their narrow special 
interests and are using these nominations, more than anything, to raise 
money by scaring people and by distorting the qualifications and 
credentials of good men and women such as John Roberts.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.

                          ____________________