[Congressional Record (Bound Edition), Volume 151 (2005), Part 15]
[Senate]
[Pages 21032-21033]
[From the U.S. Government Publishing Office, www.gpo.gov]




                       NOMINATION OF JOHN ROBERTS

  Mr. OBAMA. Mr. President, thank you very much.
  First of all, let me congratulate Senator Specter and Senator Leahy 
for moving the process of confirming the nomination of Judge Roberts 
along with such civility, a civility that I believe speaks well of the 
Senate.
  Let me also say that I remain distressed that the White House during 
this confirmation process, which overall went smoothly, failed to 
provide critical documents as part of the record that could have 
provided us with a better basis to make our judgment with respect to 
the nomination. This White House continues to stymie efforts on the 
part of the Senate to do its job. I hope with the next nominee who 
comes up for the Supreme Court that the White House recognizes that in 
fact it is its duty not just to the Senate but to the American people 
to make sure we can thoroughly and adequately evaluate the record of 
every single nominee who comes before us.
  Having said that, the decision with respect to Judge Roberts' 
nomination has not been an easy one for me to make. As some of you 
know, I have not only argued cases before appellate courts but for 10 
years was a member of the University of Chicago Law School faculty and 
taught courses in constitutional law. Part of the culture of the 
University of Chicago Law School faculty is to maintain a sense of 
collegiality between those people who hold different views. What 
engenders respect is not the particular outcome that a legal scholar 
arrives at but, rather, the intellectual rigor and honesty with which 
he or she arrives at a decision.
  Given that background, I am sorely tempted to vote for Judge Roberts 
based on my study of his resume, his conduct during the hearings, and a 
conversation I had with him yesterday afternoon.
  There is absolutely no doubt in my mind Judge Roberts is qualified to 
sit on the highest court in the land. Moreover, he seems to have the 
comportment and the temperament that makes for a good judge. He is 
humble, he is personally decent, and he appears to be respectful of 
different points of view. It is absolutely clear to me that Judge 
Roberts truly loves the law. He couldn't have achieved his excellent 
record as an advocate before the Supreme Court without that passion for 
the law, and it became apparent to me in our conversation that he does, 
in fact, deeply respect the basic precepts that go into deciding 95 
percent of the cases that come before the Federal court--adherence to 
precedence, a certain modesty in reading statutes and constitutional 
text, a respect for procedural regularity, and an impartiality in 
presiding over the adversarial system. All of these characteristics 
make me want to vote for Judge Roberts.
  The problem I face--a problem that has been voiced by some of my 
other colleagues, both those who are voting for Mr. Roberts and those 
who are voting against Mr. Roberts--is that while adherence to legal 
precedent and rules of statutory or constitutional construction will 
dispose of 95 percent of the cases that come before a court, so that 
both a Scalia and a Ginsburg will arrive at the same place most of the 
time on those 95 percent of the cases--what matters on the Supreme 
Court is those 5 percent of cases that are truly difficult. In those 
cases, adherence to precedent and rules of construction and 
interpretation will only get you through the 25th mile of the marathon. 
That last mile can only be determined on the basis of one's deepest 
values, one's core concerns, one's broader perspectives on how the 
world works, and the depth and breadth of one's empathy.
  In those 5 percent of hard cases, the constitutional text will not be 
directly on point. The language of the statute will not be perfectly 
clear. Legal process alone will not lead you to a rule of decision. In 
those circumstances, your decisions about whether affirmative action is 
an appropriate response to the history of discrimination in this 
country or whether a general right of privacy encompasses a more 
specific right of women to control their reproductive decisions or 
whether the commerce clause empowers Congress to speak on those issues 
of broad national concern that may be only tangentially related to what 
is easily defined as interstate commerce, whether a person who is 
disabled has the right to be accommodated so they can work alongside 
those who are nondisabled--in those difficult cases, the critical 
ingredient is supplied by what is in the judge's heart.
  I talked to Judge Roberts about this. Judge Roberts confessed that, 
unlike maybe professional politicians, it is not easy for him to talk 
about his values and his deeper feelings. That is not how he is 
trained. He did say he doesn't like bullies and has always viewed the 
law as a way of evening out the playing field between the strong and 
the weak.
  I was impressed with that statement because I view the law in much 
the same way. The problem I had is that when I examined Judge Roberts' 
record and history of public service, it is my personal estimation that 
he has far more often used his formidable skills on behalf of the 
strong in opposition to the weak. In his work in the White House and 
the Solicitor General's Office, he seemed to have consistently sided 
with those who were dismissive of efforts to eradicate the remnants of 
racial discrimination in our political process. In these same 
positions, he seemed dismissive of the concerns that it is harder to 
make it in this world and in this economy when you are a woman rather 
than a man.
  I want to take Judge Roberts at his word that he doesn't like bullies 
and he sees the law and the Court as a means of evening the playing 
field between the strong and the weak. But given the gravity of the 
position to which he will undoubtedly ascend and the gravity of

[[Page 21033]]

the decisions in which he will undoubtedly participate during his 
tenure on the Court, I ultimately have to give more weight to his deeds 
and the overarching political philosophy that he appears to have shared 
with those in power than to the assuring words that he provided me in 
our meeting.
  The bottom line is this: I will be voting against John Roberts' 
nomination. I do so with considerable reticence. I hope that I am 
wrong. I hope that this reticence on my part proves unjustified and 
that Judge Roberts will show himself to not only be an outstanding 
legal thinker but also someone who upholds the Court's historic role as 
a check on the majoritarian impulses of the executive branch and the 
legislative branch. I hope that he will recognize who the weak are and 
who the strong are in our society. I hope that his jurisprudence is one 
that stands up to the bullies of all ideological stripes.
  Let me conclude with just one more comment about this confirmation 
process.
  I was deeply disturbed by some statements that were made by largely 
Democratic advocacy groups when ranking member Senator Leahy announced 
that he would support Judge Roberts. Although the scales have tipped in 
a different direction for me, I am deeply admiring of the work and the 
thought that Senator Leahy has put into making his decision. The knee-
jerk unbending and what I consider to be unfair attacks on Senator 
Leahy's motives were unjustified. Unfortunately, both parties have 
fallen victim to this kind of pressure.
  I believe every Senator on the other side of the aisle, if they were 
honest, would acknowledge that the same unyielding, unbending, dogmatic 
approach to judicial confirmation has in large part been responsible 
for the kind of poisonous atmosphere that exists in this Chamber 
regarding judicial nominations. It is tempting, then, for us on this 
side of the aisle to go tit for tat.
  But what I would like to see is for all of us to recognize as we move 
forward to the next nominee that in fact the issues that are confronted 
by the Supreme Court are difficult issues. That is why they get up to 
the Supreme Court. The issues facing the Court are rarely black and 
white, and all advocacy groups who have a legitimate and profound 
interest in the decisions that are made by the Court should try to make 
certain that their advocacy reflects that complexity. These groups on 
the right and left should not resort to the sort of broad-brush 
dogmatic attacks that have hampered the process in the past and 
constrained each and every Senator in this Chamber from making sure 
that they are voting on the basis of their conscience.
  Thank you very much, Mr. President. I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  The PRESIDING OFFICER. In my capacity as a Senator from the State of 
Texas, I ask unanimous consent that the order for the quorum call be 
rescinded.
  Without objection, it is so ordered.

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