[Congressional Record (Bound Edition), Volume 151 (2005), Part 16]
[Senate]
[Pages 21261-21278]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

 NOMINATION OF JOHN G. ROBERTS, JR., TO BE CHIEF JUSTICE OF THE UNITED 
                            STATES--Resumed

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
proceed to executive session for the consideration of Calendar No. 317, 
which the clerk will report.
  The legislative clerk read the nomination of John G. Roberts, Jr., of 
Maryland, to be Chief Justice of the United States.
  The PRESIDENT pro tempore. Under the previous order, the time from 10 
a.m. until 11 a.m. will be under the control of the majority leader or 
his designee.


               recognition of the acting majority leader

  The acting majority leader is recognized.
  Mr. McCONNELL. Thank you, Mr. President.


                                SCHEDULE

  Mr. President, shortly, we will resume consideration of John Roberts 
to be Chief Justice of the United States. Last night, we locked in a 
consent which provides for the final vote on confirmation. That vote 
will occur at 11:30 a.m. on Thursday.
  Today, we have controlled time to allow Senators to come to the 
Chamber to give their statements on this extremely important 
nomination. As usual, we will recess from 12:30 until 2:15 for the 
weekly policy luncheons.
  As mentioned last night, the Appropriations Committee is expected to 
report the Defense appropriations bill tomorrow. We expect the Senate 
to begin consideration of that bill on Thursday following the Roberts 
nomination.
  I also remind my colleagues that we need to pass a continuing 
resolution by the close of business this week.
  Finally, I once again alert all Members that we are working under a 
very compressed schedule. Next week, we will need to accommodate the 
Rosh Hashanah holiday, and therefore we will be stacking rollcall votes 
for midweek. Given this schedule, it is extremely important that we use 
our time wisely, both this week and obviously next week as well. 
Therefore, Members should anticipate busy sessions Thursday and Friday 
of this week. Friday will be a working day as we make progress on the 
Defense appropriations bill. Senators should plan their schedules 
accordingly.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. DURBIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
ordered.
  Mr. DURBIN. Mr. President, I ask unanimous consent to speak as if in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Disaster Assistance

  Mr. DURBIN. Mr. President, it is very clear from Hurricane Rita and 
Hurricane Katrina that America is now learning how to be prepared for 
disasters. Many more positive things happened as a result of the threat 
of Hurricane Rita than happened just a few weeks before in Louisiana, 
Mississippi, and Alabama. We now know that it is not a question of 
pointing the finger of blame, but those of us in leadership in 
Washington need to get to the bottom of this--not so we can decide who 
was wrong in days gone by but, frankly, to make sure this doesn't 
happen again.
  The American people do not want to know who wins the game of 
``gotcha'' here; they want to know if America is ready for the next 
disaster. We were clearly not prepared for Hurricane Katrina. The 
scenes we all saw night and day on television of helpless victims in 
New Orleans and other communities remind us over and over again that 
the Federal Emergency Management Agency was not prepared for this 
challenge. We came to that realization when Mr. Brown was asked to 
leave FEMA. I believe that was the right decision.
  But I was stunned to learn that he is still on the payroll. It is 
hard to imagine that this man who was at FEMA with such a thin resume 
and such limited experiences dealing with disasters was asked to leave 
and be replaced and then continues on as a consultant to FEMA. He is 
going to be scrutinized today by a panel in the House of 
Representatives that may ask him some questions about what he did. The 
first thing they should ask him is by what standard is he still on the 
Federal payroll. Why is this man still being paid by the Federal 
Government? The administration clearly cannot investigate itself when 
it comes to Hurricane Katrina, and this decision to keep Mr. Brown on 
the payroll reflects on what he did in the past but, more importantly, 
what he might do in the future. He doesn't have the skill set needed 
for the disasters that could come as soon as tomorrow. Why is he still 
there? I don't believe this is the right way to approach a natural 
disaster or a terrorist disaster. We need to put people in place who 
understand how to deal with it.
  I believe the President was right in removing Mr. Brown and putting 
in his place Commander Allen from the Coast Guard. I have met with him 
in New Orleans. He is a man who apparently takes control of the 
situation and does it very well, and I believe we should give him a 
chance to lead--to make certain that we handle that past disaster but 
also that we are prepared for the next one.
  But this is a recurring problem. It isn't just a question of Michael 
Brown being replaced by Commander Allen. It is a question of whether 
there are people in other key spots in this Government who do not have 
the qualifications to lead.

[[Page 21262]]

  Make no mistake about it: Every President brings in people of their 
own political persuasion and friendship. This happened from time 
immemorial. It is understandable that sometimes these people do an 
excellent job. I can recall when President Clinton suggested that Jamie 
Lee Witt from Arkansas, his emergency management director, was coming 
up to run FEMA in Washington. I want to tell you that when I heard 
that, I thought: Here we go again, an old political friend is going to 
come up here and run this important agency. This could be awful. I am 
happy to report I was wrong. Jamie Lee Witt did an extraordinary job. I 
never heard a word of criticism about the job he did for 8 years in 
Washington. He had skills, extraordinary skills, and brought them to 
the job. But we need at this moment in time to ask critical questions 
as to whether there are men and women in this administration such as 
Michael Brown who are not prepared to deal with the next challenge to 
the United States.
  I ask unanimous consent to have printed in the Record an article from 
Time magazine of this week entitled ``How Many More Mike Browns Are Out 
There?''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  [From TIME Magazine, Sep. 25, 2005]

                How Many More Mike Browns Are Out There?

           (By Mark Thompson, Karen Tumulty, and Mike Allen)

       In presidential politics, the victor always gets the 
     spoils, and chief among them is the vast warren of offices 
     that make up the federal bureaucracy. Historically, the U.S. 
     public has never paid much attention to the people the 
     President chooses to sit behind those thousands of desks. A 
     benign cronyism is more or less presumed, with old friends 
     and big donors getting comfortable positions and impressive 
     titles, and with few real consequences for the nation.
       But then came Michael Brown. When President Bush's former 
     point man on disasters was discovered to have more expertise 
     about the rules of Arabian horse competition than about the 
     management of a catastrophe, it was a reminder that the 
     competence of government officials who are not household 
     names can have a life or death impact. The Brown debacle has 
     raised pointed questions about whether political connections, 
     not qualifications, have helped an unusually high number of 
     Bush appointees land vitally important jobs in the Federal 
     Government.
       The Bush Administration didn't invent cronyism; John F. 
     Kennedy turned the Justice Department over to his brother, 
     while Bill Clinton gave his most ambitious domestic policy 
     initiative to his wife. Jimmy Carter made his old friend Bert 
     Lance his budget director, only to see him hauled in front of 
     the Senate to answer questions on his past banking practices 
     in Georgia, and George H.W. Bush deposited so many friends at 
     the Commerce Department that the agency was known internally 
     as ``Bush Gardens.'' The difference is that this Bush 
     Administration had a plan from day one for remakmg the 
     bureaucracy, and has done so with greater success.
       As far back as the Florida recount, soon-to-be Vice 
     President Dick Cheney was poring over organizational charts 
     of the government with an eye toward stocking it with people 
     sympathetic to the incoming Administration. Clay Johnson III, 
     Bush's former Yale roommate and the Administration's chief 
     architect of personnel, recalls preparing for the inner 
     circle's first trip from Austin, Texas, to Washington: ``We 
     were standing there getting ready to get on a plane, looking 
     at each other like: Can you believe what we're getting ready 
     to do?''
       The Office of Personnel Management's Plum Book, published 
     at the start of each presidential Administration, shows that 
     there are more than 3,000 positions a President can fill 
     without consideration for civil service rules. And Bush has 
     gone further than most Presidents to put political stalwarts 
     in some of the most important government jobs you've never 
     heard of, and to give them genuine power over the 
     bureaucracy. ``These folks are really good at using the 
     instruments of government to promote the President's 
     political agenda,'' says Paul Light, a professor of public 
     service at New York University and a well-known expert on the 
     machinery of government. ``And I think that takes you well 
     into the gray zone where few Presidents have dared to go in 
     the past. It's the coordination and centralization that's 
     important here.''
       The White House makes no apologies for organizing 
     government in a way that makes it easier to carry out Bush's 
     agenda. Johnson says the centralization is ``very 
     intentional, and it starts with the people you pick . . . 
     They're there to implement the President's priorities.'' 
     Johnson asserts that appointees are chosen on merit, with 
     political credentials used only as a tie breaker between 
     qualified people. ``Everybody knows somebody,'' he says. 
     ``Were they appointed because they knew somebody? No. What we 
     focused on is: Does the government work, and can it be caused 
     to work better and more responsibly? . . . We want the 
     programs to work.'' But across the government, some 
     experienced civil servants say they are being shut out of the 
     decision making at their agencies. ``It depresses people, 
     right down to the level of a clerk-typist,'' says Leo Bosner, 
     head of the Federal Emergency Management Agency's (FEMA's) 
     largest union. ``The senior to mid-level managers have really 
     been pushed into a corner career-wise.''
       Some of the appointments are raising serious concerns in 
     the agencies themselves and on Capitol Hill about the 
     competence and independence of agencies that the country 
     relies on to keep us safe, healthy and secure. Internal e-
     mail messages obtained by TIME show that scientists' drug-
     safety decisions at the Food and Drug Administration (FDA) 
     are being second-guessed by a 33-year-old doctor turned stock 
     picker. At the Office of Management and Budget, an ex-
     lobbyist with minimal purchasing experience oversaw $300 
     billion in spending, until his arrest last week. At the 
     Department of Homeland Security, an agency the Administration 
     initially resisted, a well-connected White House aide with 
     minimal experience is poised to take over what many consider 
     the single most crucial post in ensuring that terrorists do 
     not enter the country again. And who is acting as watchdog at 
     every federal agency? A corps of inspectors general who may 
     be increasingly chosen more for their political credentials 
     than their investigative ones.
       Nowhere in the federal bureaucracy is it more important to 
     insulate government experts from the influences of politics 
     and special interests than at the Food and Drug 
     Administration, the agency charged with assuring the safety 
     of everything from new vaccines and dietary supplements to 
     animal feed and hair dye. That is why many within the 
     department, as well as in the broader scientific community, 
     were startled when, in July, Scott Gottlieb was named deputy 
     commissioner for medical and scientific affairs, one of three 
     deputies in the agency's second-ranked post at FDA.
       His official FDA biography notes that Gottlieb, 33, who got 
     his medical degree at Mount Sinai School of Medicine, did a 
     previous stint providing policy advice at the agency, as well 
     as at the Centers for Medicare and Medicaid Services, and was 
     a fellow at the American Enterprise Institute, a conservative 
     think tank. What the bio omits is that his most recent job 
     was as editor of a popular Wall Street newsletter, the 
     Forbes/Gottlieb Medical Technology Investor, in which he 
     offered such tips as ``Three Biotech Stocks to Buy Now.'' In 
     declaring Gottlieb a ``noted authority'' who had written more 
     than 300 policy and medical articles, the biography neglects 
     the fact that many of those articles criticized the FDA for 
     being too slow to approve new drugs and too quick to issue 
     warning letters when it suspects ones already on the market 
     might be unsafe. FDA Commissioner Lester Crawford, who 
     resigned suddenly and without explanation last Friday, wrote 
     in response to e-mailed questions that Gottlieb is ``talented 
     and smart, and I am delighted to have been able to recruit 
     him back to the agency to help me fulfill our public-health 
     goals.'' But others, including Jimmy Carter-era FDA 
     Commissioner Donald Kennedy, a former Stanford University 
     president and now executive editor-in-chief of the journal 
     Science, say Gottlieb breaks the mold of appointees at that 
     level who are generally career FDA scientists or experts well 
     known in their field. ``The appointment comes out of nowhere. 
     I've never seen anything like that,'' says Kennedy.
       Gottlieb's financial ties to the drug industry were at one 
     time quite extensive. Upon taking his new job, he recused 
     himself for up to a year from any deliberations involving 
     nine companies that are regulated by the FDA and ``where a 
     reasonable person would question my impartiality in the 
     matter.'' Among them are Eli Lilly, Roche and Proctor & 
     Gamble, according to his Aug. 5 ``Disqualification Statement 
     Regarding Former Clients,'' a copy of which was obtained by 
     TIME. Gottlieb, though, insists that his role at the agency 
     is limited to shaping broad policies, such as improving 
     communication between the FDA, doctors and patients, and 
     developing a strategy for dealing with pandemics of such 
     diseases as flu, West Nile virus and SARS.
       Would he ever be involved in determining whether an 
     individual drug should be on the market? ``Of course not,'' 
     Gottlieb told TIME. ``Not only wouldn't I be involved in that 
     . . . But I would not be in a situation where I would be 
     adjudicating the scientific or medical expertise of the [FDA] 
     on a review matter. That's not my role. It's not my 
     expertise. We defer to the career staff to make scientific 
     and medical decisions.''
       Behind the scenes, however, Gottlieb has shown an interest 
     in precisely those kinds of deliberations. One instance took 
     place on Sept. 15, when the FDA decided to stop the trial of 
     a drug for multiple sclerosis during which three people had 
     developed an unusual disorder in which their bodies 
     eliminated their blood platelets and one died of

[[Page 21263]]

     intracerebral bleeding as a result. In an e-mail obtained by 
     TIME, Gottlieb speculated that the complication might have 
     been the result of the disease and not the drug. ``Just seems 
     like an overreaction to place a clinical hold'' on the trial, 
     he wrote. An FDA scientist rejected his analysis and replied 
     that the complication ``seems very clearly a drug-related 
     event.'' Two days prior, when word broke that the FDA had 
     sent a ``non-approvable'' letter to Pfizer Inc., formally 
     rejecting its Oporia drug for osteoporosis, senior officials 
     at the FDA's Center for Drug Evaluation and Research received 
     copies of an e-mail from Gottlieb expressing his surprise 
     that what he thought would be a routine approval had been 
     turned down. Gottlieb asked for an explanation.
       Gottlieb defends his e-mails, which were circulated widely 
     at the FDA. ``Part of my job is to ask questions both so I 
     understand how the agency works, and how it reaches its 
     decisions,'' he told TIME. However, a scientist at the agency 
     said they ``really confirmed people's worst fears that he was 
     only going to be happy if we were acting in a way that would 
     make the pharmaceutical industry happy.''
       The Oporia decision gave Pfizer plenty of reason to be 
     unhappy: the drug had been expected to produce $1 billion a 
     year in sales for the company. Pfizer's stock fell 1.4% the 
     day the rejection was announced. The FDA has not revealed why 
     it rejected the drug, and Pfizer has said it is ``considering 
     various courses of action'' that might resuscitate its 
     application for approval.
       Health experts note that Gottlieb's appointment comes at a 
     time of increased tension between the agency and drug 
     companies, which are concerned that new drugs will have a 
     more difficult time making it onto the market in the wake of 
     the type of safety problems that persuaded Merck to pull its 
     best-selling painkiller Vioxx from the market last year. The 
     agency's independence has also come under question, most 
     recently with its decision last month to prevent the 
     emergency contraceptive known as Plan B from being sold over 
     the counter, after an FDA advisory panel recommended it could 
     be. That Gottlieb sits at the second tier of the agency, 
     critics say, sends anything but a reassuring signal.
       David Safavian didn't have much hands-on experience in 
     government contracting when the Bush Administration tapped 
     him in 2003 to be its chief procurement officer. A law-school 
     internship helping the Pentagon buy helicopters was about the 
     extent of it. Yet as administrator of the Office of Federal 
     Procurement Policy, Safavian, 38, was placed in charge of the 
     $300 billion the government spends each year on everything 
     from paper clips to nuclear submarines, as well as the $62 
     billion already earmarked for Hurricane Katrina recovery 
     efforts. It was his job to ensure that the government got the 
     most for its money and that competition for federal 
     contracts--among companies as well as between government 
     workers and private contractors--was fair. It was his job 
     until he resigned on Sept. 16 and was subsequently arrested 
     and charged with lying and obstructing a criminal 
     investigation into Republican lobbyist Jack Abramoff's 
     dealings with the Federal Government.
       Safavian spent the bulk of his pregovern-
     ment career as a lobbyist, and his nomination to a top 
     oversight position stunned the tightly knit federal 
     procurement community. A dozen procurement experts 
     interviewed by TIME said he was the most unqualified person 
     to hold the job since its creation in 1974. Most of those who 
     held the post before Safavian were well-versed in the arcane 
     world of federal contracts. ``Safavian is a good example of a 
     person who had great party credentials but no substantive 
     credentials,'' says Danielle Brian, executive director of the 
     Project on Government Oversight, a nonprofit Washington 
     watchdog group. ``It's one of the most powerful positions in 
     terms of impacting what the government does, and the kind of 
     job--like FEMA director--that needs to be filled by a 
     professional.'' Nevertheless, Safavian's April 2004 
     confirmation hearing before the Senate Governmental Affairs 
     Committee (attended by only five of the panel's 17 members) 
     lasted just 67 minutes, and not a single question was asked 
     about his qualifications.
       The committee did hold up Safavian's confirmation for a 
     year, in part because of concerns about work his lobbying 
     firm, Janus-Merritt Strategies, had done that he was required 
     to divulge to the panel but failed to. The firm's filings 
     showed that it represented two men suspected of links to 
     terrorism (Safavian said one of the men was ``erroneously 
     listed,'' and the other's omission was an ``inadvertent 
     error'') as well as two suspect African regimes. Ultimately, 
     the committee and the full Senate unanimously approved 
     Safavian for the post.
       His political clout, federal procurement experts say 
     privately, came from his late-1990s lobbying partnership with 
     Grover Norquist, now head of Americans for Tax Reform and a 
     close ally of the Bush Administration. Norquist is an antitax 
     advocate who once famously declared that his goal was to 
     shrink the Federal Government so he could ``drag it into the 
     bathroom and drown it in the bathtub.'' As the U.S. 
     procurement czar, Safavian was pushing in that direction by 
     seeking to shift government work to private contractors, 
     contending it was cheaper. Federal procurement insiders say 
     his relationship with Norquist gave Safavian the edge in 
     snaring the procurement post. But Norquist has ``no memory'' 
     of urging the Administration to put Safavian in the post, 
     says an associate speaking on Norquist's behalf. A White 
     House official said Norquist ``didn't influence the 
     decision.'' Clay Johnson, who was designated by the White 
     House to answer all of TIME's questions about administration 
     staffing issues and who oversaw the procurement post, says 
     Safavian was ``by far the most qualified person'' for the 
     job. Perhaps it also didn't hurt that Safavian's wife 
     Jennifer works as a lawyer for the House Government Reform 
     Committee, which oversees federal contracting.
       In addition, Safavian had worked at a law firm in the mid-
     '90s with Jack Abramoff, one of the capital's highest-paid 
     lobbyists, a top G.O.P. fund raiser and a close friend of 
     House majority leader Tom DeLay. Abramoff was indicted last 
     month on unrelated fraud and conspiracy charges. In 2002, 
     Abramoff invited Safavian on a weeklong golf outing to 
     Scotland's famed St. Andrews course (as Abramoff had done 
     with DeLay in 2000). Seven months after the trip, an 
     anonymous call to a government hotline said lobbyists had 
     picked up the tab for the jaunt. That wasn't true; Safavian 
     paid $3,100 for the trip. But the government alleges that he 
     lied when he repeatedly told investigators that Abramoff had 
     no business dealings with the General Services 
     Administration, where Safavian worked at the time. 
     Prosecutors alleged last week, however, that Safavian worked 
     closely with Abramoff--identified only as ``Lobbyist A'' in 
     the criminal complaint against Safavian--to give Abramoff an 
     inside track in his efforts to acquire control of two pieces 
     of federal property in the Washington area. Safavian, who is 
     free without bail, declined to be interviewed for this story. 
     His attorney, Barbara Van Gelder, said the government is 
     trying to pressure her client to help in its probe of 
     Abramoff. ``This is a creative use of the criminal code to 
     secure his cooperation,'' she said.
       Three days after the Sept. 12 resignation of FEMA's Michael 
     Brown, Julie Myers, the Bush Administration's nominee to head 
     Immigration and Customs Enforcement (ICE) came before the 
     Senate Homeland Security and Governmental Affairs Committee. 
     The session did not go well. ``I think we ought to have a 
     meeting with [Homeland Security Secretary] Mike Chertoff,'' 
     Ohio Republican George Voinovich told Myers. ``I'd really 
     like to have him spend some time with us, telling us 
     personally why he thinks you're qualified for the job. 
     Because based on the resume, I don't think you are.''
       Immigration and Customs Enforcement is one of 22 agencies 
     operating under the umbrella of the Department of Homeland 
     Security, but its function goes to the heart of why the 
     department was created: to prevent terrorists from slipping 
     into the U.S. If that weren't enough, the head once must also 
     contend with money launderers, drug smugglers, illegal-arms 
     merchants and the vast responsibility that comes with 
     managing 20,000 government employees and a $4 billion budget. 
     Expectations were high that whoever was appointed to fill the 
     job would be, in the words of Michael Greenberger, head of 
     the University of Maryland's Center for Health and Homeland 
     Security, ``a very high-powered, well-recognized intelligence 
     manager. ``
       Instead the Administration nominated Myers, 36, currently a 
     special assistant handling personnel issues for Bush. She has 
     experience in law enforcement management, including jobs in 
     the White House and the Commerce, Justice and Treasury 
     departments, but she barely meets the five-year minimum 
     required by law. Her most significant responsibility has been 
     as Assistant Secretary for Export Enforcement at the Commerce 
     Department, where, she told Senators, she supervised 170 
     employees and a $25 million budget.
       Myers may appear short on qualifications, but she has 
     plenty of connections. She worked briefly for Chertoff as his 
     chief of staff at the Justice Department's criminal division, 
     and two days after her hearing, she married Chertoff's 
     current chief of staff, John Wood. Her uncle is Air Force 
     General Richard Myers, the outgoing Chairman of the Joint 
     Chiefs of Staff. Julie Myers was on her honeymoon last week 
     and was unavailable to comment on the questions about her 
     qualifications raised by the Senate. A representative 
     referred TIME to people who had worked with her, one of whom 
     was Stuart Levey, the Treasury Department's Under Secretary 
     for Terrorism and Financial Crime. ``She was great, and she 
     impressed everyone around her in all these jobs,'' he said. 
     ``She's very efficient, and she's assertive and strong and 
     smart, and I think she's wonderful.''
       To critics, Myers' appointment is a symptom of deeper ills 
     in the Homeland Security Department, a huge new bureaucracy 
     that the Bush Administration resisted creating. Among those 
     problems, they say, is a tendency on the part of the 
     Administration's political appointees to discard in-house 
     expertise, particularly when it could lead to additional 
     government regulation of industry. For instance, when 
     Congress passed the intelligence reform bill last year, it 
     gave the

[[Page 21264]]

     Transportation Security Administration (TSA) a deadline of 
     April 1, 2005, to come up with plans to assess the threat to 
     various forms of shipping and transportation--including rail, 
     mass transit, highways and pipelines--and make specific 
     proposals for strengthening security. Two former high-ranking 
     Homeland Security officials tell TIME that the plans were 
     nearly complete and had been put into thick binders in early 
     April for final review when Deputy Secretary Michael Jackson 
     abruptly reassigned that responsibility to the agency's 
     policy shop. Jackson was worried that presenting Congress 
     with such detailed proposals would only invite it to return 
     later and demand to know why Homeland Security had not 
     carried them out. ``If we put this out there, this is what 
     we're going to be held to,'' says one of the two officials, 
     characterizing Jackson's stance. Nearly six months after 
     Congress's deadline, in the wake of the summer's subway 
     bombings in London, TSA spokeswoman Amy Von Walter says the 
     agency is in the process of declassifying the document and 
     expects to post a short summary on its website soon.
       In the meantime, Myers' nomination could be in trouble. 
     Voinovich says his concerns were satisfied after a 35-minute 
     call with Chertoff, in which the Homeland Security Secretary 
     argued forcefully on Myers' behalf. But other senators are 
     raising questions, and Democrats have seized on Myers' 
     appointment as an example of the Bush Administration's 
     preference for political allies over experience.
       The Post-Watergate law creating the position of inspector 
     general (IG) states that the federal watchdogs must be hired 
     ``without regard to political affiliation,'' on the basis of 
     their ability in such disciplines as accounting, auditing and 
     investigating. It may not sound like the most exciting job, 
     but the 57 inspectors general in the Federal Government can 
     be the last line of defense against fraud and abuse. Because 
     their primary duty is to ask nosy questions, their 
     independence is crucial.
       But critics say some of the Bush IGs have been too cozy 
     with the Administration. ``The IGs have become more political 
     over the years, and it seems to have accelerated,'' said A. 
     Ernest Fitzgerald, who has been battling the Defense 
     Department since his 1969 discovery of $2 billion in cost 
     overruns on a cargo plane, and who, at 79, still works as a 
     civilian Air Force manager. A study by Representative Henry 
     Waxman of California, the top Democrat on the House 
     Government Reform Committee, found that more than 60% of the 
     IGs nominated by the Bush Administration had political 
     experience and less than 20% had auditing experience--almost 
     the obverse of those measures during the Clinton 
     Administration. About half the current IGs are holdovers from 
     Clinton.
       Johnson says political connections may be a thumb on the 
     scale between two candidates with equal credentials, but 
     rarely are they the overriding factor in a personnel 
     decision. Speaking of all such appointments, not just the 
     IGs, he said, ``I am aware of one or two situations where 
     politics carried the day and the person was not in the job a 
     year later.''
       Still, several of the President's IGs fit comfortably into 
     the friends-and family category. Until recently, the most 
     famous Bush inspector general was Janet Rehnquist, a daughter 
     of the late Chief Justice. Rehnquist had been a lawyer for 
     the Senate Permanent Subcommittee on Investigations and 
     worked in the counsel's office during George H.W. Bush's 
     presidency before becoming an IG at the Department of Health 
     and Human Services. In that sense, she was qualified for the 
     job. But a scathing report by the Government Accountability 
     Office asserted that she had ``created the perception that 
     she lacked appropriate independence in certain situations'' 
     and had ``compromised her ability to serve as an effective 
     leader.'' Rehnquist also faced questions about travel that 
     included sightseeing and free time, her decision to delay an 
     audit of the Florida pension system at the request of the 
     President's brother, Governor Jeb Bush of Florida, and the 
     unauthorized gun she kept in her office. She resigned in June 
     2003 ahead of the report.
       Three weeks ago, however, Joseph Schmitz supplanted 
     Rehnquist as the most notorious Bush IG. Schmitz, who worked 
     as an aide to former Reagan Administration Attorney General 
     Ed Meese and whose father John was a Republican Congressman 
     from Orange County, Calif., quit his post at the Pentagon 
     following complaints from Senate Finance Committee chairman 
     Charles Grassley, Republican of Iowa. In particular, Grassley 
     questioned Schmitz's acceptance of a trip to South Korea, 
     paid for in part by a former lobbying client, according to 
     Senate staff members and public lobbying records, and 
     Schmitz's use of eight tickets to a Washington Nationals 
     baseball game. But those issues aren't the ones that led to 
     questions about his independence from the White House. Those 
     concerns came to light after Schmitz chose to show the White 
     House his department's final report on a multiyear 
     investigation into the Air Force's plan to lease air-
     refueling tankers from Boeing for much more than it would 
     have cost to buy them. After two weeks of talks with the 
     Administration, Schmitz agreed to black out the names of 
     senior White House officials who appeared to have played a 
     role in pushing and approving what turned out to be a 
     controversial procurement arrangement. Schmitz ultimately 
     sent the report to Capitol Hill, but Senators are irked that 
     they have not yet received an original, unredacted copy.
       Congressional aides said they are still scratching their 
     heads about how Schmitz got his job. He now works for the 
     parent company of Blackwater USA, a military contractor that, 
     in his old job, he might have been responsible for 
     investigating.

  Mr. DURBIN. Mr. President, I will tell you, when we hear about the 
contracts that are being let for Hurricane Katrina and other natural 
disasters, it raises similar questions. Just last week, the head of 
procurement in the White House, Mr. Safavian, was arrested. He was the 
top man in the White House when it came to procurement and contracts. 
Because of some misrepresentations that he apparently made--it has been 
alleged that he made these misrepresentations--he has been asked to 
step down from this spot in the White House.
  But we have to ask about the contracts that are being let now for 
Hurricane Katrina. The Senate and House approved some $60 billion for 
emergency aid. So far, 80 percent of the contracts that FEMA has let 
are no-bid contracts. They have just awarded them to companies without 
any competitive bidding whatsoever.
  The New York Times on September 26 said as follows:

       More than 80 percent of the $1.5 billion of contracts 
     signed by FEMA alone were awarded without bidding, or with 
     limited competition, government records show, provoking 
     concerns among auditors and government officials about the 
     potential for favoritism and abuse. Already questions have 
     been asked about the political connection of major contracts.

  And the article goes on:

       Questions are being raised as to whether this money is 
     actually going to the victims and is actually being well 
     spent. It raises a question of compensation, not just to make 
     certain these victims and communities get back on their feet 
     as quickly as possible but to make certain we are prepared 
     for the next disaster that may face the United States. We 
     have seen and read of serious problems which have occurred 
     with Hurricane Katrina. Some of the same occurred with 
     Hurricane Rita.

  In Texas, in Express News on September 26, it is written that:

       Jefferson County Texas Judge Carl Griffith said the county 
     has encountered problems gaining access to troops, equipment 
     and supplies needed to help rebuild the storm-battered 
     region. The judge said local authorities weren't able to use 
     about 50 generators the State had prepositioned at an 
     entertainment complex until late Sunday night because no 
     clearance had been given to release them. Mr. Johnson, 
     Jefferson County Administrator, said he had asked for 
     generators to supply power to St. Elizabeth's Hospital and 
     was told there were none available. Then he said, ``I had to 
     show the FEMA representatives the generators were sitting in 
     the parking lot.''

  So there clearly is a need for us to increase the level of competency 
and performance when it comes to dealing with these disasters.
  The bottom line is this: If we want to find out what went wrong and 
learn how to avoid it in the future, there is one thing that we can do 
and do now as a Congress which will reach that goal--an independent, 
nonpartisan commission, not a commission created by Republicans or 
Democrats in Congress of their own Members, nor an investigation 
initiated by the administration to look at wrongdoing that it might 
have committed itself, but an independent, nonpartisan commission. Some 
have argued against it, saying we waited a year for the 9/11 
Commission, why shouldn't we wait a year to look into the problems of 
Katrina? We waited a year because the White House opposed the creation 
of that Commission. Ultimately, it was created and did a great service 
to this country.
  The force that kept the 9/11 Commission moving--this independent, 
nonpartisan commission--was the families who were victims of 9/11. That 
same force needs to come forward here. The victims of Hurricane Katrina 
and Hurricane Rita should be the moving force for the creation of an 
independent, nonpartisan commission.
  The Republican leadership in Congress and the Democratic leadership 
in Congress should acknowledge the obvious: If we are going to get 
clear answers as to what went wrong so those

[[Page 21265]]

mistakes will not be made again, we need an independent, nonpartisan 
commission. We shouldn't be fearful of them. If they point a finger of 
blame at Congress, so be it. If they point a finger of blame at State 
and local leaders, so be it. The important thing is not who was wrong 
before, the important thing is let us make certain that America is safe 
in the future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, what is the time allocation?
  The PRESIDING OFFICER. The time between 10 a.m. and 11 a.m. is under 
the control of the majority leader or his designee.
  Mr. HATCH. Thank you.
  Mr. President, I rise once again to speak in favor of the nomination 
of John Roberts. I urge all of my colleagues in the Senate to vote to 
make John Roberts the next Chief Justice of the United States.
  The central focus this week is properly on the nomination of Judge 
Roberts. In addition, the manner in which the Senate acts on this 
nomination also will be subject to public scrutiny. In this regard, I 
join those who have commended Senator Specter and Senator Leahy and 
other members of the Judiciary Committee for working together to plan 
and carry out a fair series of hearings on the Roberts nomination.
  This week, the full Senate faces the challenge of debating the merits 
of John Roberts to serve as our Nation's 17th Chief Justice. A widely 
respected journalist, David Broder, observed about the Roberts 
nomination:

       He is so obviously ridiculously well equipped to lead 
     government's third branch that it is hard to imagine how any 
     Democrat can justify a vote against his confirmation.

  To put a fine point on it, if Democrats do not vote for John Roberts, 
is it fair to ask whether some Democrats will ever give a fair shake to 
any Republican Supreme Court nominee?
  I recognize that many leftwing special interest groups are putting a 
lot of pressure on Democratic Senators to vote against this 
extraordinarily qualified nominee. For example, last Wednesday, 
September 21, 2005, the newspaper Rollcall contained an article with 
the headline ``Liberal Groups Lecture Democrats on Roberts.'' Let me 
read a portion of this article:

      . . . Sens. Dick Durbin and Charles Schumer received a sharp 
     rebuke at a weekend meeting in Los Angeles from wealthy 
     activists such as television producer Norman Lear over 
     Roberts' glide path to confirmation.
       At an event on behalf of People for the American Way, the 
     first of the major liberal groups to announce opposition to 
     Roberts, Lear lashed out at the Democrats for not mounting 
     more determined resistance to the nomination, according to 
     several sources familiar with the event.
       Schumer, chairman of the Democratic Senatorial Campaign 
     Committee, confirmed that the event included a `frank 
     discussion' between activists and the Senators.

  That says it all, the pressure on our colleagues on the other side: 
lectures, sharp rebukes, frank discussions. It sounds as if there may 
be some dissension in ``All in the Family.'' One can only wonder if 
``the Meathead'' took part in this harangue against the Senators. I 
have no doubt that pressure from some liberal groups was substantial.
  There are compelling reasons why the health of both the Senate and 
Judiciary require that this vote should be about, and only about, John 
Roberts' qualification to serve as Chief Justice. Some leftwing special 
interest groups seem to be urging a ``no'' vote on this highly 
qualified nominee in large part to somehow send a message to President 
Bush, as he deliberates on how to fill the remaining vacancy on the 
Supreme Court. If that is the case, it is a garbled, misguided message.
  I understand the political fact of life that some outside interest 
groups normally affiliated with the Republican side of the aisle might 
have preferred that Republican Senators would have voted against the 
Supreme Court nominees of President Clinton. But I also respect the 
political reality that he who wins the White House has the right under 
the Constitution to nominate judicial nominees, including filling 
Supreme Court vacancies.
  In undertaking our advice and consent role, the Senate, due to the 
Constitution, prudence, and tradition, owes a degree of deference to 
Presidential nominees. This helps explain why the two Supreme Court 
nominations made by President Clinton were given broad bipartisan 
support by the Senate once they were found to possess the intellect, 
integrity, character, and mainstream judicial philosophy necessary to 
serve on the Court. When the votes were counted for these two Clinton 
nominees, both of whom were known as socially liberal, Justice Breyer 
was confirmed by 87 to 9, and Justice Ruth Bader Ginsburg was approved 
by a 96-to-3 vote. Given the already stated opposition of both the 
minority leader and the assistant minority leader and many other 
Democratic Senators, it does not appear likely that Judge Roberts will 
receive the same level of support from Democrat Senators as Republican 
Senators provided for the last two Democrat nominees. This is 
unfortunate, unjustified, and unfair. Comity must be a two-way street.
  At least during the debate of this extremely well-qualified nominee 
the distinguished Senator from Massachusetts has not renewed his over-
the-top pledge ``to resist any Neanderthal that is nominated by this 
President of the United States.''
  Frankly, I do not think that much of the opposition against the 
nominee can be wholly explained by anything that Judge Roberts said or 
did or did not say over the course of his exemplary 25-year career as a 
lawyer.
  I commend the growing number of Democrats, including the ranking 
Democrat member of the Senate Judiciary Committee, Senator Leahy, for 
their decisions to support Judge Roberts. I hope many others across the 
aisle will join them.
  I also commend President Bush for consulting closely with the Senate 
and for sending a truly outstanding nominee in John Roberts. By all 
accounts, the President is continuing his practice of consulting widely 
with the Senate in filling the remaining vacancy on the Court.
  Turning to the merits of this nomination, I take a few moments to 
briefly discuss John Roberts' education and experience to help explain 
why so many think so highly of this nominee. Too often in this debate, 
Judge Roberts' opponents quickly acknowledged his brilliance and 
qualifications before launching into a series of speculative if's, 
and's, or but's that somehow justify a vote against the confirmation in 
their eyes.
  The American public realizes John Roberts has the right stuff. John 
Roberts graduated from Harvard College summa cum laude in 3 years. He 
went on to Harvard Law School where he graduated magna cum laude and 
was managing editor of the Harvard Law Review.
  Judge Roberts began his career by clerking for two leading Federal 
appellate judges, Judge Henry Friendly and Justice William Rehnquist. 
Judge Roberts began his career in the executive branch by serving as a 
Special Assistant to Attorney General William French Smith. Next, he 
was Associate Counsel in the White House Counsel's Office.
  In the administration of President George H.W. Bush, John Roberts 
served as Principal Deputy Solicitor General of the Department of 
Justice. Upon departing Government and moving back into private 
practice, he was justifiably recognized as one of the leading appellate 
lawyers in the country. He has argued an almost astounding number of 39 
cases before the Supreme Court.
  John Roberts has represented a diverse group of clients, including 
environmental, consumer, and civil rights interests and has taken 
seriously his obligation to provide voluntary legal services to the 
poor, including criminal defendants.
  Just 2 years ago, John Roberts was confirmed in the Senate without 
objection; not one Senator raised an objection to his nomination for a 
seat on the U.S. Court of Appeals for the District of Columbia Circuit. 
The American Bar Association evaluated Judge Roberts four times in the 
last 4 years, and each time he earned the highest ABA rating

[[Page 21266]]

of ``well-qualified.'' And four times in a row this ``well-qualified'' 
rating was unanimous. This must be some kind of a record for ABA 
ratings.
  John Roberts has the temperament, integrity, intelligence, judgment, 
and judicial philosophy to lead the Supreme Court and Federal Judiciary 
well into the 21st century.
  The Senate and the American public heard directly from John Roberts 
as he testified for over 20 hours before the Judiciary Committee. Most 
of us liked what we saw and heard. Judge Roberts told us he would bring 
back to the Supreme Court no agenda--political, personal, or otherwise. 
He told us he would consider each case based solely on the merits of 
the relevant facts and the applicable laws. With Judge Roberts, all 
litigants will continue to receive the bedrock American right of equal 
justice under the law.
  Here is what Judge Roberts said about the rule of law during his 
hearing:

       Somebody asked me, ``Are you going to be on the side of the 
     little guy?'' And you want to give an immediate answer. But 
     if you reflect on it, if the Constitution says the little guy 
     should win, the little guy should win in court before me. But 
     if the Constitution says the big guy should win, well, the 
     big guy should win, because my obligation is to the 
     Constitution. . . .The oath that a judge takes is not that 
     ``I'll look out for special interests'' . . . the oath is to 
     uphold the Constitution and laws of the United States and 
     that's what I would do.

  It seems to me that Judge Roberts got it exactly right. I cannot say 
the same thing about those, including the distinguished Senator from 
Massachusetts and the distinguished Senator from California, Mrs. 
Boxer, who embraced results-oriented litmus tests when they repeatedly 
asked just whose side will Judge Roberts be on in deciding cases. As 
Judge Roberts explained, a judge has to hear the case and consider the 
law before he or she decides who should prevail under the law.
  I also greatly appreciated Judge Roberts' comments on judicial 
activism and judicial restraint. Judge Roberts believes that in our 
system of government, judges ``do not have a commission to solve 
society's problems, but simply to decide cases before them according to 
the rule of law.''
  I found enlightening Judge Roberts' description about how he decides 
cases through a careful process of reviewing briefs, participating in 
oral arguments, conferring with other judges at conference, and, 
finally, writing the decision. He noted that he often adjusts his view 
of the case throughout the course of the deliberative process.
  Both in his opening testimony and in answering questions, Judge 
Roberts stressed the response of judges exercising institutional and 
personal modesty and humility. I have no doubt that this view is 
genuinely held by this nominee. I can say that an overwhelming majority 
of my fellow Utahans say they are fairly impressed with Judge Roberts' 
attitude toward the law and the role of judges.
  Some, particularly many leftwing special interest groups, do not 
share my enthusiasm for Judge Roberts. Despite the fact that Judge 
Roberts answered dozens of questions on many topics, some complain that 
Judge Roberts did not answer all the questions.
  Let us be clear. Under the Cannons of Judicial Ethics, it would have 
been inappropriate for Judge Roberts to comment on matters that could 
come before the Court. These liberal groups apparently have forgotten 
that back in 1993 when Democrat nominee, Ruth Bader Ginsburg, appeared 
before the Judiciary Committee in connection with her 96-to-3 
confirmation to the Supreme Court, she took a position of ``no hints, 
no forecasts, no previews,'' on many questions.
  This was consistent with what the distinguished Senator from 
Massachusetts, Mr. Kennedy, said back in 1967 with respect to the 
Supreme Court nomination of Thurgood Marshall. He said:

       We have to respect that any nominee to the Supreme Court 
     would have to defer any comments on any matters which are 
     either before the court or very likely to appear before the 
     court.

  Some critics argue that the administration should have turned over 
memos that Judge Roberts wrote in his former capacity as Deputy 
Solicitor General, when the fact is that several years ago a bipartisan 
group of seven former Solicitors General, four of whom were Democrats, 
wrote to the Judiciary Committee to tell us that, generally, providing 
these documents to the Senate and making them public was a bad idea 
given the unique role of the Solicitor General's Office.
  Some critics assert that Judge Roberts is insufficiently sensitive to 
their views in some areas of the law, including civil rights, voting 
rights, women's rights, and abortion, Presidential power and the 
commerce clause. A careful analysis of Judge Roberts' professional 
record over the last 25 years, coupled with the rigorous review of the 
hearing transcript, leads to the conclusion that Judge Roberts is well 
within the mainstream on his general perspectives on these issues and 
has pledged to be fair and openmined on any future litigation involving 
these and other areas. I take him at his word.
  For example, the distinguished Senator from Massachusetts has 
attempted to suggest that Judge Roberts is somehow against voting 
rights and other civil rights. Yet in response to questions from 
Senator Kennedy, Judge Roberts clearly stated that he believed that 
voting is the preservative of all other rights. It is this principle 
that undergirds the leading case of Baker v. Carr that brought us into 
the one man-one vote era that changed the political landscape of 
America.
  Moreover, Judge Roberts acknowledges the importance of the Voting 
Rights Act, and he has supported its reauthorization and said he is 
unaware of any fundamental legal deficiency in the statute.
  While in the Solicitor General's Office, John Roberts joined several 
briefs urging the Supreme Court to adopt broad interpretations of the 
Voting Rights Act. For example, in the 1993 case of Voinovich v. 
Quilter, Roberts successfully argued in a brief on behalf of the United 
States for a reading of the Ohio redistricting plan that made it easier 
to create minority legislative districts. The Supreme Court concurred.
  To claim John Roberts is hostile to voting rights is simply not true. 
Nor is he hostile to, or predisposed against, any other rights, 
interests, or legal claims. John Roberts is committed to hearing every 
case in a fair, unbiased manner.
  Let me conclude by saying that some, including some members of the 
Judiciary Committee, having failed to make a substantial case against 
this stellar nominee, have resorted to suggesting we are somehow 
``rolling the dice'' or ``betting the house'' with this nominee.
  To me, supporting John Roberts is a sound investment and, I will say, 
a sound investment in our Nation's future, not some long-shot bet.
  John Roberts' long and distinguished record as an advocate and judge 
over the past 25 years, buttressed by his recent confirmation hearing 
testimony, demonstrates he is a bright, careful, and thoughtful legal 
professional of the highest integrity and character. He is not an 
ideologue inclined to, or bent on, high court mischief.
  I think it likely one day historians will conclude that in making 
John Roberts our 17th Chief Justice, the President and Senate made a 
wise choice that helped maintain and advance the rule of law for all 
present and future citizens of the United States.
  Mr. President, I will vote aye to confirm Judge Roberts, and I hope 
the vast majority of Senators will do likewise.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska.
  Mr. STEVENS. Mr. President, I ask unanimous consent that I be allowed 
to speak for a minute as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Stevens are printed in today's Record under 
``Morning Business.'')
  Mr. STEVENS. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page 21267]]

  The assistant legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAHAM. Mr. President, I would like to be recognized to speak on 
behalf of Judge Roberts.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. GRAHAM. Mr. President, as Senator Hatch indicated, I do not think 
we are ``rolling the dice'' at all to vote for this uniquely qualified 
man. It is not about whether he gets confirmed. He will be confirmed in 
the Senate by the close of business on Thursday, unless something major 
happens that no one anticipates now. Judge Roberts will then become the 
17th Chief Justice of the U.S. Supreme Court, and his confirmation will 
receive somewhere in the range of 70-plus votes probably. So his 
nomination is not in doubt.
  But I think this whole process will be viewed by scholars of the 
Court and those who follow the confirmation process, in the Senate 
particularly, in a very serious way because the vote totals do matter. 
He will get well over 50 votes, but the reasons being offered to vote 
``no'' I think suggest a change in standard from the historical point 
of view of how the Senate approaches a nominee.
  One of the things I think they will look at in the Roberts 
confirmation process is: What is the standard? If it is an objective 
standard of qualifications, character, integrity, has the person lived 
their life in such a way as to be able to judge fairly, not to be 
ideologically driven to a point where they cannot see the merits of the 
case, then Judge Roberts should get 100 votes. The reason I say that 
is, not too long ago in the history of our country President Clinton 
had two Supreme Court vacancies occur on his watch. One was Justice 
Ginsburg, who sits on the Court now. I believe she received 96 votes. 
The other was Justice Breyer, who sits on the Court now, who received 
well over 90 votes. Shortly before that, under President Bush 1's 
watch, Justice Scalia--a very well-known conservative--received 98 
votes.
  What is the difference between then and now? I think that is a very 
important point for the country to spend some time talking about. If he 
receives 70 or 75 votes, then, obviously, there has been a reduction in 
the vote total for someone who I think is obviously qualified. But in 
terms of qualifications, I am going to read some excerpts from what 
some Senators have said about Judge Roberts.

  Senator Biden: Incredible. Probably one of the most schooled 
appellate lawyers . . . at least in his generation.
  Senator Boxer: A brilliant lawyer. Well qualified. Well spoken. 
Affable. Unflappable.
  Senator Corzine: Eloquen[t]. A great lawyer. A great litigator.
  Senator Durbin: A judge [who] will be loyal and faithful to the 
process of law, to the rule of law. A great legal mind.
  Senator Feinstein: Very full and forward-speaking. Eloquent. Very 
precise.
  Senator Kennedy: An outstanding lawyer. A highly intelligent nominee. 
Well-educated and serious. A very pleasant person. Intelligent.
  Senator Kerry: Obviously qualified in his legal education and 
litigation experience. Earnest. Friendly. Incredibly intelligent. A 
superb lawyer.
  Senator Landrieu: Very well credentialed.
  Senator Obama: Qualified to sit on the highest court in the land. 
Humble. Personally decent. Very able. Very intelligent. Unflappable.
  Senator Reid: A very smart man. An excellent lawyer. A very affable 
person. A thoughtful mainstream judge on the D.C. Circuit Court of 
Appeals.
  Senator Schumer: Brilliant. Accomplished. Clearly brilliant. A very 
bright and capable man. Very, very smart man. Outstanding lawyer. 
Without question, an impressive, accomplished and brilliant lawyer. A 
decent and honorable man.

  There is more, and I will read those later. I would hope half that 
could be said about me in any job I pursued. The reason those 
testimonials were offered is, it is obvious to anyone who has been 
watching the hearings and paid any attention to what has gone on here 
in the last week or so that we have in our midst one of the most well-
qualified people in the history of our Nation to sit on the Supreme 
Court--probably the greatest legal mind of his generation or maybe of 
any other generation. I think when history records President Bush's 
selection of Judge Roberts, it will be seen historically as one of the 
best picks in the history of this country.
  The man is a genius. I was there in his presence a whole week. He 
never took a note. He never asked anybody how to say something or what 
to say, or get any advice from anyone as to how to answer a question. 
He had almost complete total recall of memos from 20-some years in the 
past. Not only did he understand every case he was questioned upon 
without notes, he understood how the dissenting opinions did not 
reconcile themselves. I have been around a lot of smart people. I have 
never been around anyone as capable as Judge Roberts.
  Now, why would he not get 96 or 98 or 100 votes? Well, some people 
have said all these glowing things but said that is not enough. There 
comes the problem. If him being intelligent, brilliant, a superb 
lawyer, the greatest legal mind of our generation, and well qualified 
is not enough, what is? What are some of the reasons that have been 
offered in terms of why anyone could not support this eminently 
qualified man?
  Most of the reasons I think have to do with a subjective analysis of 
the nominee that apparently was not used before. Because if a 
conservative went down the road of something other than qualifications, 
character, and integrity, I doubt if a conservative could have voted 
for Justice Ginsburg or Justice Breyer, if you wanted to use some 
subjective test as to how they might vote on a particular case or if 
you had a philosophical test in place of a qualifications test. I will 
talk about that a bit later.
  One of the reasons people have offered for a ``no'' vote is that 
during the questioning period he would not give complete answers to 
constitutional issues facing the country. I think Senator Kerry said: 
He is a superb, brilliant lawyer, but I can't vote for him because I 
don't know how he will come out on the great constitutional issues of 
our time.
  Well, I would say that is good. You are not supposed to know how he 
is going to decide the great constitutional questions of our time 
because that is done in a courtroom with litigants before the judge. It 
is not done in a confirmation process where you have to tell people 
before you go on the Court how you are going to rule.
  At least one Senator has said: I can't vote for this man because he 
won't tell me if he will buy into the right of privacy and uphold Roe 
v. Wade. If that becomes the standard, the hearing could be limited to 
one question: Will you uphold Roe v. Wade, yes or no? And that is the 
end of the deal.
  I would argue if we go down that road as a nation, using one case, an 
allegiance to one line of legal reasoning, or a particular case, 
whether you uphold it or whether you will reverse it, then you have 
done a great disservice to the judiciary because we are not looking for 
judges to validate our pet peeves as Senators in terms of law. We are 
looking for judges to sit in judgment of our fellow citizens who will 
wait until the case is being litigated, listen to the arguments, read 
the briefs, and then decide.
  That is not unknown to the Senate. The idea that Court nominees in 
the past would refuse to give specific answers to specific cases is not 
unknown at all.
  Mr. President, I have excerpts from past nominees and questions that 
were asked.
  I will read some of these excerpts.
  This is an abortion question by Senator Metzenbaum to Justice 
Ginsburg: After the Casey decision, some have questioned whether the 
right to choose is still a fundamental right. In your view, does the 
Casey decision stand for the proposition that the right to choose is a 
fundamental constitutional right?

[[Page 21268]]

  That is a very direct question: Do you buy into the precepts of Roe 
v. Wade?
  Ginsburg: What regulations will be permitted is certainly a matter 
likely to be before the Court. Answers depend in part, Senator, on the 
kind of record presented to the Court. It would not be appropriate for 
me to go beyond the Court's recent reaffirmation that abortion is a 
woman's right guaranteed by the 14th amendment. It is part of the 
liberty guaranteed by the 14th amendment.
  She recited the current law and said: There will be lines of attack 
on the right to privacy. I am going to wait until the record is 
established.
  Good answer.
  Voting rights. Senator Moseley-Braun: I guess my concern in Presley 
really is a matter of your view of the language of the statute, the 
specific language of section 5 of the Voting Rights Act, and given the 
facts of that case whether or not the Court gave too narrow an 
interpretation of the language in such a way that essentially 
frustrated the meaning of the statute as a whole.
  That is a topic before the Senate now.
  Ginsburg: I avoided commenting on Supreme Court decisions when other 
Senators raised that question, so I must adhere to that position.
  The death penalty. Senator Specter: Let me ask you a question 
articulated the way we ask jurors, whether you have any conscientious 
scruple against the imposition of the death penalty.
  Ginsburg: My own view of the death penalty I think is not relevant to 
any question I would be asked to decide as a judge. I will be 
scrupulous in applying the law on the basis of the Constitution, 
legislation, and precedent.
  Who does that sound like?
  Ginsburg: As I said in my opening remarks, my own views and what I 
would do if I were sitting in the legislature are not relevant to the 
job for which you are considering me, which is the job of a judge.
  A very good answer.
  Ginsburg: So I would not like to answer that question any more than I 
would like to answer the question of what choice I would make for 
myself, what reproductive choice I would make for myself. It is not 
relevant to what I will decide as a judge.
  Now, within that answer she does two things that I think are 
important. She refuses to give a personal view of the death penalty 
based on the idea that: My personal views are not going to decide how I 
will judge a particular case. And for me to start commenting in that 
fashion will compromise my integrity as a judge. She also said: I am 
not going to play the role of being a legislator because that is not 
what judges do.
  So I would argue not only did she give the right answers, but that is 
all Judge Roberts has done. When he is advising the President of the 
United States about conservative policies initiated by the Reagan 
administration, he is doing so as a lawyer, advising a client. He 
several times indicated that his personal views about matters are not 
going to dictate how he decides the case. What will dictate how he 
decides the case are the facts presented, the law in question, and the 
record.
  All right, more about the death penalty.
  Senator Hatch: But do you agree with all the current sitting members 
that it is constitutional, it is within the Constitution?
  Again, talking about the death penalty. This is Senator Hatch trying 
to get Judge Ginsburg to comment on sitting members of the Court.
  Ginsburg: I can tell you that I agree that what you have stated is 
the precedent and clearly has been the precedent since 1976. I must 
draw the line at that point and hope you will respect what I have tried 
to tell you, that I am aware of the precedent and equally aware of the 
principle of stare decisis.
  Now, who does that sound like? That sounds like Roberts on Roe v. 
Wade, but she is talking about the death penalty.
  Hatch: It isn't a tough question. I mean I am not asking----
  Ginsburg: You asked me what was in the fifth amendment. The fifth 
amendment used the word ``capital.'' I responded when you asked me what 
is the state of current precedents. But if you want me to take a pledge 
that there is one position I am not going to take, that is what you 
must not ask a judge to do.
  So Senator Hatch was trying to draw her out on the death penalty and 
follow a particular line of reasoning. She says, no, I am not going to 
pledge to get on the Court to tip my hand there.
  Hatch: But that is not what I asked you. I asked you, is it in the 
Constitution, is it constitutional?
  Again, he was talking about the death penalty.
  Ginsburg: I can tell you the fifth amendment reads, no person shall 
be held to answer for a capital or otherwise infamous crime unless, and 
the rest. But I am not going to say to this committee that I reject the 
position out of hand in a case as to which I have never expressed an 
opinion. I have never ruled on a death penalty case. I have never 
written about it. I have never spoken about it in a classroom.
  Specter, on women's rights: Would you think it is appropriate for the 
court to employ in general terms the original understanding of the 14th 
amendment which you wrote about in the Washington University Law 
Quarterly as interpretive to women's rights?
  Ginsburg: I have no comment on that, Senator Specter. I have said 
that these issues will be coming before the Court. I will not say 
anything in the legislative Chamber that will hint or forecast how I 
will vote in cases involving particular classifications.
  It goes on and on. I have 30 pages here. I will put them in the 
Record. The idea that Judge Roberts, during his time before the 
committee, was evasive or unresponsive, different than people who came 
before him, is not supported by the record. What we have in this 
confirmation process is a frontal assault on the nominee in terms of 
pledging allegiance to Roe v. Wade, something that didn't happen to 
Ginsburg as directly.
  There is at least one Senator who appears to be basing her vote on 
the idea that he won't tell me whether he will uphold Roe v. Wade; 
therefore, I can't vote for Judge Roberts. Again, I argue if that is 
the standard for a yes or no vote, the standard has changed 
dramatically. It will be unhealthy for the country as a whole. It will 
do great damage to the judiciary. It will be a standard Democrats would 
not want to be applied in the future, I can assure my colleagues.
  The other issue is about the idea of civil rights, that somehow Judge 
Roberts' position during the Reagan administration was unfriendly to 
civil rights to the point that we can't vote for him. Bottom line is, 
of all the reasons given, that is the most distorted. That is a reason, 
that is a cut-and-paste job we have seen too much of to try to cast 
someone in a bad light for doing what their job required of them. John 
Roberts was in his 20s, working for the Reagan administration. The idea 
that he would be advising President Reagan about conservative policy 
initiatives shouldn't surprise anyone. That was his job.
  The issue of civil rights is important to all of us. One of the worst 
things you can do is try to question someone's character, integrity, to 
the point that it puts a shadow of who they are in terms of being 
sensitive to other people based on race or any other difference. The 
idea that John Roberts, when he was working for the Reagan 
administration, showed a hard heart and insensitivity to people's 
ability to fairly vote is a shameful attack, not supported by the 
record. It is a cut-and-paste job. It is a distortion of what he said 
then, what he said now, and we ought to reject it.
  The issue that was being discussed was whether Ronald Reagan's 
position of reauthorizing the Civil Rights Voting Act as written was 
extreme. The Reagan administration said: We will reauthorize the Voting 
Rights Act as written. The problem in the early 1980s was that you had 
a Supreme Court decision, the Boulder case, where the Supreme Court 
said that when it comes to section 2, where you look at the effects of 
voting patterns and whether there is

[[Page 21269]]

discrimination being applied based on race and voting and 
representation, the test to determine that would be the intent test. 
Did the people who drew the lines setting up the voting procedures and 
the voting districts, was it their intent to racially discriminate and 
undermine African-American voting rights in the States in question. 
That was the test the Supreme Court applied.
  Senator Kennedy and others wanted to change that test to the effects 
test, where you would look at the effects of how the lines were drawn 
and how the districts were set up. It was an honest debate.
  The third concept no one has talked much about is proportionality. 
The Reagan administration was against proportional representation which 
is basically an electoral quota. You look at a district based on race, 
and you come to the conclusion that the elected officials within that 
district have to mirror the population. In other words, you will have a 
racial quota. If 40 percent of the district is of a particular race, 
then 40 percent of the people have to be of that race. I don't think 
most Americans want that. What we want is people to have a chance to 
run for office, be successful and vote their conscience, without 
anything interfering and without bad forces standing in the way. I 
don't think most Americans want to decide the election based on race 
before you cast any ballot.
  That was the debate in the 1980s. The Reagan administration was 
against proportionality. They were standing for the Civil Rights Act as 
written in the 1960s. Then you had the Supreme Court case that 
interjected a new concept. What Judge Roberts, then a lawyer in the 
Reagan administration, was advising was that the current law was the 
intent test. The Reagan administration was supporting the Supreme 
Court's intent test. How that has been twisted and turned to show or to 
make the argument that John Roberts is insensitive to people's ability 
to vote and has stood in the way of people having their fair day at the 
ballot box, to me is a complete distortion of who he is and the 
position he took.
  At the end of the day, here is what happened. There was a legislative 
compromise. The Supreme Court intent test was replaced by a totality of 
the circumstances test which is somewhere between the effects and 
intent test. I know this is a bit hard to follow, but the bottom line 
is, there was a compromise legislatively dealing with a Supreme Court 
decision. John Roberts' legal advice to the Reagan administration was 
very much in the mainstream of where America is, very much in the 
mainstream of the Reagan position. To say his legal memos arguing that 
proportionality was inappropriate and the intent test was based on 
sound legal reasoning, to somehow go from that legal reasoning to the 
idea that the man, the person, is insensitive to people's voting 
rights, again, is quite shameful.
  He said in the hearing, it is the right of which everything else 
revolves around, the ability to go to the ballot box and express 
yourself.
  This has happened to Judge Pickering, and it is going to happen to 
the next nominee. I will put the Senate on record from my point of 
view, coming from the South, there have been plenty of sins where I 
live in the South. The Voting Rights Act has cured a lot of those sins. 
But one of the things we should not lay on John Roberts is the idea 
that because he represented the Reagan administration, arguing that the 
Supreme Court was right, somehow he, as a person, is insensitive to 
minority rights.
  The reason that is a bogus argument is because there is not one 
person who came before the Senate Judiciary Committee or otherwise to 
say John Roberts has ever lived his life in a way that would suggest he 
is insensitive to people's rights based on race. As a matter of fact, 
one of the witnesses before the committee analyzed the cases Judge 
Roberts presented to the Supreme Court dealing with civil rights. They 
found out he won 71 percent of his cases dealing with civil rights 
issues. That says not only does he understand civil rights law well, he 
is arguing mainstream concepts. When he looked at how Justices agreed 
or disagreed with him, apparently Thurgood Marshall agreed with John 
Roberts, the advocate, over 60 something percent of the time. So if you 
look at the way he has lived his life, the way he has argued the law 
and who he has represented, there is not one ounce of evidence to 
suggest John Roberts the man is in any way insensitive to people's 
ability to vote based on race.
  Tomorrow we will come back and we will look at the other reasons to 
say no to this fine man. I think we are getting into a dicey area, if 
we are going to play this game of voting no based on ``you won't tell 
me how you will vote on a particular case'' or that we take someone's 
legal advice and use the client's position against that person, that 
you are going to set a standard that will chill out a lot of people 
wanting to be members of the Court. There are other things being said 
about this fine man that would be dangerous if the Senate adopted as 
the test in the future. I will talk next time about how the sitting 
Justices would not fare so well. The bottom line is there is a reason 
that Scalia, Ginsberg, and Breyer received well over 90 votes apiece. 
They were well qualified. They were people of good character and good 
integrity.
  If this man, John Roberts, after all that has been said about him in 
terms of his qualifications, doesn't get 90-plus votes, the Senate 
needs to do some self-evaluation because we have gone down the wrong 
road.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Idaho.
  Mr. CRAIG. Mr. President, let me associate myself with the remarks of 
the Senator from South Carolina. He so clearly lays out the 
foundational basis by which we ought to be reviewing nominees to our 
highest Court. At the same time, he brings a lot of valid criticism to 
those who would choose to be tremendously selective not by character 
but by philosophy of those who are sent to us to consider.
  Like many of our colleagues engaged in the confirmation process of 
John Roberts to the position of the Chief Justice of the Supreme Court, 
I have been here before. Maybe that is one way of saying it. The last 
time John Roberts came before the Senate, he was confirmed for his 
position by unanimous consent. He was placed on the District of 
Columbia's Circuit Court of Appeals, the second highest in the land as 
it relates to our judicial system. However, unlike most of our 
colleagues, I was a member of the Senate Committee on the Judiciary at 
that time, and his was one of the first confirmations before the 
committee that session. That only increased my sense of duty to 
thoroughly review his fitness for a lifetime appointment to the court.
  Undoubtedly, one of the most serious duties of a Senator is the 
constitutional obligation and opportunity to confirm the President's 
judicial nominees. At that time I was satisfied that John Roberts was a 
superior candidate for the job. A review of his record for the past 20 
months only proves that decision to have been the correct one. Not a 
single question has been raised as to his competence or his character 
during that time serving on the DC Circuit. Furthermore, in his time on 
the court, John Roberts has shown he does not bring an agenda to work 
with him in the morning. Rather, he takes an intellectual approach to 
each case, basing his rulings on the facts and the law, not any 
personal bias.
  To the extent there has been a debate over the nomination, it has not 
been about Judge Roberts' qualifications to sit on the Supreme Court. 
Rather, he has been subject to an ideological litmus test.
  I submit that this is not the job of the Senate. We are not social 
engineers, even though some of my colleagues might like to be, and it 
is not our role to pack the courts with members of certain ideologies.
  Judge Roberts points out that he is not standing for election, and 
appropriately so. I agree with this critical distinction. We are not 
here to debate his politics or whether we agree with them. Our duty is 
to give advice and consent to our President's nominations.

[[Page 21270]]

  To politicize this duty of supreme importance, I think is 
fundamentally wrong, but it is occurring with this nominee. For the 
last 2 weeks, we have been subjected to some of that rhetoric coming 
out of the Judiciary Committee which is purely political and an attempt 
to politicize the process. Politicizing the confirmation hearings runs 
contrary to the idea of an unbiased judiciary. As Judge Roberts himself 
has suggested, it undermines the integrity of that judicial process.
  That being the case, we must ask why anyone would want to bring 
issues of politics to the process. The simple answer is that opponents 
of Judge Roberts are not looking impartially. They want a nominee who 
will agree with their beliefs. Judge Roberts has said, time and time 
again, he would not engage in bargaining or state his beliefs on 
specific issues.
  Let me suggest that a Member who votes against this nominee because 
he will not state his position on a specific case or ruling is voting 
against an unbiased judiciary. In other words, they want a bias in the 
Court to fit their political beliefs instead of the unbiased Court that 
our Founding Fathers envisioned.
  While some seem bound and determined to inject politics into the 
Court and have applied intense pressure to secure his assistance in 
that effort, Judge Roberts has stood by his commitment to the rule of 
law, and that is what a judge should do.
  This speaks highly of his integrity, but again his integrity is not 
in question. No one had brought forth any evidence to suggest that he 
is not a person of high moral character. In fact, many of the Members 
who say they will vote against his confirmation say that he appears to 
be a very fine fellow--smart, witty, thoughtful. So where are they 
going and what are they attempting to dredge up? His judicial demeanor 
is also not in question.
  The overwhelming assessment of Judge Roberts' performance before the 
Senate Committee on the Judiciary is that he did an outstanding job. He 
remained calm, thoughtful, impartial, and unshaken. In a word, he was 
judicial.
  I said during my tenure on that committee and during confirmation 
processes, while I may agree or disagree, what I was looking for was 
the character of the individual, the judicial demeanor: How would he or 
she perform on the court? Would they bring integrity to the court in 
those kinds of rulings to which they would be subjecting their mind and 
their talent?
  Some believe that all documents related to Judge Roberts during his 
service as Deputy Solicitor General should be disclosed even though 
this would violate attorney-client and deliberate process privileges. 
He will not infringe upon past employers' rights and privileges. He 
knows this would discourage consultation and new ideas and reduce the 
effectiveness of the Office of Solicitor General. This is a man who 
truly exemplifies integrity. Although he is criticized for not 
releasing some documents, it is his integrity that will not allow that 
to happen. If it were not unethical to disclose these documents, I am 
sure the judge would release them. In fact, those that would not 
infringe upon his integrity have been released.
  We have reviewed some 76,000 pages of documents, including documents 
for more than 95 percent of the cases he worked on in the Solicitor 
General's Office. Our access has been restricted to a mere 16 out of 
327 cases. Finding Judge Roberts unfit to be Chief Justice on the 
grounds of undisclosed privileged internal deliberations is not only 
unfair, I believe it is illegal and, at any test, it is ludicrous.
  Judge Roberts' competence is not being called into question, not in 
any sense by any Senator. It would be very difficult to find a better 
candidate anywhere to serve as Chief Justice. He seems to have done 
extremely well in whatever he has undertaken. Graduating summa cum 
laude says that this man is bright. Managing editor of the Harvard Law 
Review--that only comes to the top of the class. Later, he clerked for 
Judge Friendly of the U.S. court of appeals in Manhattan and for 
Supreme Court Justice William Rehnquist. He has tried 39 cases before 
the Supreme Court, both as a private litigant and as a Government 
litigant while serving as the Deputy Solicitor General. Judge Roberts 
now serves, as I mentioned, on the U.S. Court of Appeals for the DC 
Circuit.
  His credentials are impeccable. This man deserves a unanimous vote, 
as he received 20 months ago. But that will not be the case today 
because some have chosen to inject politics into this process. Thank 
goodness Judge Roberts has stood unwaveringly not allowing that to 
happen when it comes to himself. His integrity is not in question. That 
is why he was nominated by the President of the United States to serve 
as the Chief Justice of our highest Court.
  He deserves my vote. He will get my vote. He deserves the vote of 
every Senator serving in the Senate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kentucky.


                           Senator Bill Frist

  Mr. McCONNELL. Mr. President, I first met Bill Frist 11 years ago 
when he was a world-renown heart transplant surgeon from the 
neighboring State of Tennessee. He was considering a career change to 
public service in the Senate. Then, as now, I believe he was one of the 
most gifted, hard-working, and honest people I had ever met. He is a 
bit of a rarity in this town. He has more talent and less ego than 
almost anyone I can think of.
  There has been this question raised about the sale of some stock. Of 
course, a bit lost in this dustup is the simple fact that the Senate 
Ethics Committee preapproved the sale. However, this is Washington, and 
sometimes even honest actions are questioned.
  I have absolutely no doubt that the facts will demonstrate that 
Senator Frist acted in the most professional and the most ethical 
manner, as he has throughout his distinguished medical and Senate 
career.
  Senator Frist has been clear that he welcomes the opportunity to meet 
with the appropriate authorities and put this situation in its proper 
context as a completely--a completely--appropriate transaction.
  Furthermore, Senator Frist has my full and unconditional support. He 
is a great majority leader. I find myself agreeing with my good friend 
from Nevada, the Democratic leader, Harry Reid, who said he knew 
Senator Frist would not do anything wrong. Senator Reid has it right.
  Finally, I think there are few settled facts in this contentious 
capital of ours, but there is one fact of which I am completely 
certain: Bill Frist is a decent, honest, hard-working man who puts 
public service before private gain.
  Mr. President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER (Mr. Isakson). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Mr. President, we have had several people on the Senate 
floor this morning speaking of the Roberts nomination. I understand 
that we have several Senators on this side of the aisle who are going 
to speak in a few minutes, and I will yield the floor when they arrive.
  I hope the American people will listen to this discussion. The 
outcome is sort of foreordained because we know the number of people 
who are going to vote for Judge Roberts, as am I. The reason it is 
important to hear all the different voices is that we are a nation of 
280 million Americans. But for the Chief Justice of the United States, 
only 101 people have a say in who is going to be there and, of course, 
they are the President, first and foremost, with the nomination, and 
the 100 men and women in this Senate.
  We have to stand in the shoes of all 280 million Americans. Can we be 
absolutely sure in our vote of exactly who the Chief Justice might be 
as a person, somebody who will probably serve long after most of us are 
gone, certainly long after the President is gone and actually long 
after several Presidents will be gone? No. We have to make our

[[Page 21271]]

best judgment. I have announced how I am going to vote. With me, it is 
a matter of conscience.
  I see the distinguished Senator from Colorado. I know he wishes to 
speak, and I will be speaking later about this issue. I will yield the 
floor to the distinguished Senator from Colorado.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. SALAZAR. Mr. President, I thank my wonderful friend from Vermont 
for his great leadership in the Senate Judiciary Committee, along with 
Senator Specter.
  I rise today concerning the nomination of Judge John Roberts to be 
Chief Justice of the U.S. Supreme Court. I have interviewed and 
recommended the appointment of many men and women who serve as State 
and Federal judges in my home State of Colorado. I am no stranger to 
analyzing the record of a candidate for the judiciary. I am no stranger 
to evaluating the character and temperament of people to serve in these 
positions. Yet I know this confirmation vote is special. It is one of 
the most significant votes that I will cast during my tenure as a 
Senator. I know this vote is likely to endure the rest of my life and 
the lives of those who serve in this Chamber.
  The decisions of the Supreme Court significantly affect the everyday 
lives of the people in my State and all the people who live throughout 
our great Nation. The Chief Justice is first among equals among the 
nine Justices who make these decisions. The Chief Justice's ability to 
run the Court's conferences and to assign opinions gives the Chief 
Justice important influence on the directions taken by the Court. The 
Chief Justice molds and defines the cohesiveness of the Court in the 
sense that he or she can lead efforts to reduce separate and 
complicated opinions and to make the opinions of the Court clear and 
understandable to all. This is an especially important influence to 
reduce confusion in the law.
  Finally, the Chief Justice sits at the very pinnacle of our Federal 
judicial branch. The Chief Justice leads the judges and the rest of the 
21,000 employees of the Federal court system. The Chief Justice is 
responsible for making sure the Federal courts run effectively and 
efficiently. The administrative responsibilities of the Chief Justice 
are important for another reason. The Chief Justice can lead the 
judicial branch to become a place of inclusion, a place where women are 
as welcome as men, and where people work together who are black, brown, 
yellow, white, and every other color of human skin.
  The Chief Justice can make the judicial branch a shining example of 
diversity and inclusiveness. This is not an abstraction. When people of 
any background come to the Court they should be looking in the mirror. 
The faces of the Court should be the same as the faces of those who 
come before the Court. In my view, this is an essential aspect of 
justice.
  I commend the Senate Judiciary Committee for its fair, serious, and 
dignified hearings on the Roberts nomination. Chairman Specter, Ranking 
Member Leahy, and all members of the committee have earned our 
gratitude. They have performed a very valuable service for our country. 
These Senators gave us a wonderful example worthy of repetition in the 
Senate of how the Senate should operate in the interest of our Nation. 
They did their work with courtesy, civility, and in the spirit of the 
parties working together in good faith to discuss their differing 
views. Our Nation is better for their efforts.
  I also want to take a minute to thank Democratic Leader Reid. I have 
been surprised and taken aback by the attacks on him from some people 
in this debate. To read the musings of Washington insiders, Senator 
Reid is somehow guilty of not uniting Democrats, and at the same time 
not being too beholden to Democratic interest groups. As is the usual 
case in the debates in Washington, the truth can be found elsewhere.
  Senator Reid made very clear to this Senator and to the entire caucus 
that this is a vote of conscience. To suggest otherwise is unfair and 
dishonest. Our leader, a man of unshakable faith and conviction, helped 
ensure that this Senate lived up to its constitutional obligation of 
advice and consent.
  I want to speak briefly about the history of America and our 
Constitution concerning equality under the law and the key role of the 
U.S. Supreme Court. The history of equal protection is a reminder of 
the most painful and at the same time the most promising moments of our 
Supreme Court and our Nation. We must not forget that history and its 
lessons, for to do so would undo our progress as a nation.
  In retracing our history, the inevitable conclusion is that we have 
made major progress over four centuries. That history includes 250 
years of slavery in this country, 100 years of legal segregation of the 
races, and the struggle in the new and recent times to achieve another 
age and celebrate the age of diversity.
  We must look back at that history so that we do not forget its 
painful lessons. We must never forget that for the first 250 years of 
this country, after the European settlers reached the shores of Mexico 
and New England, the relationship between groups was characterized by 
slavery and the subjugation of one group for the benefit of another.
  In Mexico and in the Southwest, the Spanish enslaved Native 
Americans. In the East and the South, the Americans brought Blacks from 
Africa and treated them as property. In the Dred Scott decision in 
1857, the U.S. Supreme Court, in a terrible moment for our Nation, 
reasoned that Blacks were inferior to Whites and therefore the system 
of slavery was somehow justified.
  At that point, the U.S. Supreme Court was endorsing the untenable 
proposition that one person could own another person as property simply 
because of their race. But the march toward freedom and equality would 
not be stopped by the U.S. Supreme Court in the Dred Scott decision.
  The Civil War ensued. Let us never forget that the Civil War became 
the bloodiest war in American history, with over 500,000 Americans 
killed in battle. In the end, the 13th, 14th and 15th amendments to the 
U.S. Constitution ended the system of slavery and ushered in a new era 
of equal protection under the laws. Yet even with the end of slavery 
and the civil rights amendments to the Constitution, equal protection 
under the laws for the next 100 years would still require the 
segregation of the races.
  The law of the land in many States and cities required the separation 
of the races in schools, theaters, restaurants, and public 
accommodations. It was not until 1954 that the U.S. Supreme Court 
marked the end of legal segregation by the Government in its historic 
decision of Brown v. Topeka Board of Education.
  In that decision, Chief Justice Warren, writing for a unanimous 
Supreme Court, stated that in the field of public education the 
doctrine of separate but equal has no place. The Brown decision marked 
an historic milestone for the U.S. Supreme Court and our Nation about 
the relationships between groups.
  Over the next decade, the U.S. Supreme Court struck down laws that 
required segregation on golf courses, parks, theaters, swimming pools, 
and numerous other facilities. These changes were met with intense 
controversy, marked by marches, protests, riots, and assassinations. 
Because of the leadership of Dr. Martin Luther King, Presidents Kennedy 
and Johnson, Robert Kennedy, and thousands of civil rights activists, 
Congress ushered in the sweeping civil rights reforms of the 1960s.
  We, as an American society, began to understand that the doctrine of 
separate but equal truly had no place in America and that the age of 
diversity truly was upon us. But the age of diversity has been marked 
by significant and continuing tension. A part of that debate was put to 
rest only recently with the majority opinion authored by Justice Sandra 
Day O'Connor in the University of Michigan Law School case.
  There, Justice O'Connor said:

       Today, we hold that the Law School has a compelling 
     interest in attaining a diverse student body.


[[Page 21272]]


  Justice O'Connor continued:

       The Law School's claim of a compelling interest is further 
     bolstered by its amici, who point to the educational benefits 
     that flow from student body diversity.

  She explained further:

       These benefits are not theoretical but real, as major 
     American businesses have made clear that the skills needed in 
     today's increasingly global marketplace can only be developed 
     through exposure to widely diverse people, cultures, ideas 
     and viewpoints.

  What is more, high-ranking retired officers and civilian leaders of 
the U.S. military assert that, and she quotes:

       [B]ased on [their] decades of experience, a highly 
     qualified, racially diverse officer corps . . . is essential 
     to the military's ability to fulfill its principal mission to 
     provide national security.

  She continued:

     . . . To fulfill its mission, the military must be selective 
     in admissions for training and education for the officer 
     corps, and it must train and educate a highly qualified, 
     racially diverse officer corps in a racially diverse setting.
       We agree that [i]t requires only a small step from this 
     analysis to conclude that our country's other most selective 
     institutions must remain both diverse and selective.

  I believe Justice Sandra Day O'Connor was a beacon of wisdom at this 
moment in our Nation's history. We know we have had beacons of wisdom 
in our past to help guide us in our future. I am hopeful that Judge 
Roberts will be that kind of Chief Justice.
  In 1896, Justice Harlan was a beacon of wisdom when he dissented in 
Plessy v. Ferguson against his colleagues on the U.S. Supreme Court 
when they decided to sanction the right to segregation under the law. 
Then Justice Harlan stated in his dissent:

       The destinies of the races, in this country, are 
     indissolubly linked together and the interests of both 
     require that the common government law shall not permit the 
     seeds of race hate to be planted under the sanction of law.

  I do not know exactly how judge Roberts will provide us with that 
beacon of wisdom for the 21st century, but the doctrine of inclusion is 
somehow at the heart of the answer, and I expect and implore Judge 
Roberts to follow that doctrine.
  That doctrine means that we should be inclusive of all, and that 
doctrine means that there is something wrong when we look around and we 
see no diversity in the people who surround us, and that doctrine means 
that the motto on our American coins, ``E Pluribus Unum,'' can only be 
achieved if we include all those who make the many of us into one 
nation.
  My criteria for the confirmation of judges remain the same as they 
have been. I reviewed Judge Roberts' record for fairness, impartiality, 
and a proven record for upholding the law. I have given this difficult 
decision the careful deliberation it deserves. I have reviewed his 
writings. I have read his cases. I have reviewed his testimony to the 
Judiciary Committee. I have met twice with Judge Roberts, the second 
time last Friday, asking him pointed and specific questions to gauge 
the measure of the man.
  I am grateful for his courtesy and appreciative of his time. I 
concluded that a vote to confirm Judge Roberts as the next Chief 
Justice of the U.S. Supreme Court is the appropriate vote to cast. 
Judge Roberts' intellect is unquestioned. His technical legal skills 
are unquestioned. He is a lawyer that other lawyers respect, those who 
have worked with him as well as those who have worked against him.
  Judge Roberts has convinced me that he understands the constitutional 
need for judicial independence. He believes in the bedrock principle 
that decisions of the Supreme Court must be carefully based upon the 
facts of the case and the law. He believes that all cases must be 
decided on their specific merits by a judge with an open and fair mind. 
These concepts lie at the heart of our judicial system. They 
differentiate the courts from other institutions of government. They 
are critical to our freedom.
  I am favorably impressed by Judge Roberts' statement to do his best 
to heal the gaping fractures in the opinions of the Supreme Court in 
recent years. When the Court issues three or five or nine opinions in a 
single case, it is a recipe for confusion and uncertainty for judges, 
lawyers, and litigants. This is bad for the law.
  I believe Judge Roberts has a clear understanding of the jolts to the 
system that disrupt the country when the Court overturns settled law, 
and he is equally understanding and determined to avoid these jolts. I 
lived through that type of difficult and expensive disruption as 
Colorado attorney general, when the Supreme Court changed long-settled 
expectations about sentencing by judges in criminal cases. The criminal 
justice system in Colorado and across the Nation was thrown into 
turmoil. It still has not recovered.
  I believe Judge Roberts has an understanding of the Supreme Court's 
role to guide the lower courts, lawyers, and litigants, with clear and 
understandable direction. I have been particularly interested in Judge 
Roberts' views on diversity and inclusion of all people, women as well 
as men, in our country. I have lived my life by the bedrock principle 
that people of all backgrounds and both genders should be included in 
all aspects of our society. This is very important to me. So I have 
asked Judge Roberts directly and personally about his commitment to 
diversity and inclusiveness in our country. He has assured me of his 
commitment to this principle.
  Finally, Judge Roberts passes a simple test that I will apply to 
judicial candidates for as long as I am a Senator. I do not believe he 
is an ideologue. He is not the kind of judge--like some--for whom 
anyone can predict the outcome of a case before the case is briefed and 
argued. The ideologue's approach to the law makes a mockery of judicial 
independence, and it is the opposite of being openminded and fair.
  In conclusion, I have reached my decision to vote for Judge Roberts 
based upon his word that, first, he will stand up and fight for an 
independent judiciary and defend the judiciary from unwarranted attacks 
on its independence; second, he will not roll back the clock of 
progress for civil rights and recognizes that the equal protection 
provided under the Constitution extends to all Americans, including 
women and racial and ethnic minorities; third, he will respect the rule 
of law and the precedents of the U.S. Supreme Court, including the most 
important decisions of the last century; fourth, he understands the 
importance of the freedom of religion and religious pluralism as a 
cornerstone of a free America; and five, he will work to create a 
Federal judicial system that embraces diversity and has a face that 
reflects the diverse population of America.
  I will vote to confirm Judge Roberts to be the Chief Justice of the 
United States. I wish Judge Roberts the very best as he assumes his new 
responsibilities on behalf of our Nation.
  I yield the floor to my wonderful and good friend from the State of 
Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. LIEBERMAN. Mr. President, I thank my friend from Colorado for his 
very thoughtful and eloquent statement.
  I rise to speak on the President's nomination of John Roberts of 
Maryland to be Chief Justice of the U.S. Supreme Court. During my 17 
years as a Member of the Senate, I have had the opportunity on four 
previous occasions to consider nominees to the Supreme Court--two from 
the first President Bush and two from President Clinton. On three of 
those occasions--Justices Souter, Ginsburg and Breyer--I carried out my 
constitutional responsibility by giving not only advice but consent. On 
the fourth, Justice Thomas, I withheld my consent.
  I must say that on each of those preceding four occasions, I was 
struck, as I am again now in considering President Bush's nomination of 
John Roberts, by the wisdom of the Founders and Framers of our 
Constitution and by the perplexing position they put the Senate in when 
we consider a nominee to the U.S. Supreme Court.
  As we know, our Founders declared their independence and formed their 
new government to secure the inalienable rights and freedoms which they 
believed are the endowment of our Creator to every person. But from 
their

[[Page 21273]]

knowledge of history and humanity, and from their own experiences with 
the English monarch, they saw that governments had a historic tendency 
to stifle, not secure, the rights and freedoms of their citizens. So in 
constructing their new government, they allocated power and then they 
limited it, time and time again. Theirs was to be a government of 
checks and balances, except for one institution which is, generally 
speaking, unchecked and unlimited, and that is the Supreme Court.
  I understand that Congress can reenact a statute that has been struck 
down by the Court as inconsistent with the Constitution, but I also 
know that the Court can then nullify the new statute. I understand, 
too, that the people may amend the Constitution to overturn a Supreme 
Court decision with which they disagree, but that is difficult and 
cumbersome and therefore rare in American history. So the Supreme Court 
almost always has the last word in our Government. It can be, and has 
been, a momentous last word, with great consequences for our national 
and personal lives.
  Why then, in constituting the Supreme Court, did our Nation's 
Founders vary from their system of limited government, of checks and 
balances? I believe one reason is that they were wise enough to know 
that to be orderly, to function, a system must have a final credible 
point where disputation and uncertainty end and from which the work of 
society and government proceeds. But there was a larger reason, I am 
convinced, consistent with their highest value, and that was their 
understanding, again from their knowledge of history and humanity, that 
freedom can just as easily be taken by a mob of citizens as it can by a 
tyrannical leader. So they created a Supreme Court that was to be 
insulated from the political passions of the moment and that would base 
its decisions not only on transitory public opinion but on the eternal 
values of our founding documents--the Declaration, the Constitution, 
the Bill of Rights--and the rule of law.
  They did this, these Founders and Framers, not just by giving the 
Court such enormous power but also by giving its individual members 
life tenure. The President nominates Justices, the Senate advises and 
decides whether to consent, and then the Justice who is confirmed 
serves for as long as he or she lives or chooses to serve, absent the 
unusual possibly of impeachment, of course; limited in that service 
only by the Justice's own conscience, intellect, sense of right and 
wrong, understanding of what the Constitution and law demand, and by 
the capacity of the litigants who appear before the Court and by the 
Justice's own colleagues on the Court to convince him or her.
  This gets to why I have described the Senate's responsibility to act 
on nominations to the Supreme Court as perplexing. It is our one and 
only chance to evaluate and influence the nominees, and then they are 
untouchable and politically unaccountable. But the Senate is a 
political body. We are elected by and accountable to the people. So 
naturally during the confirmation process we try to extract from the 
nominees to this Court, on this last chance that we have, commitments, 
political commitments that they will uphold the decisions of the Court 
with which we agree and overrule those with which we disagree; and they 
naturally try to avoid making such commitments.
  We are both right. Because the Supreme Court has such power over our 
lives and liberties, we Senators are right to ask such questions. But 
because the Court is intended to be the nonpolitical branch of our 
Government, the branch before which litigants must come with confidence 
that the Justices' minds are open, not closed by rigid ideology or 
political declaration, the nominees to the Court are ultimately right 
to resist answering such questions in great detail. I understand that I 
am describing an ideal which has not always been reached by individual 
Justices on the Court. But on the other hand, the history of the 
Supreme Court is full of examples of Justices who have issued 
surprisingly different opinions than expected, or even than expressed 
before they joined the Court; and also of Justices who have changed 
their opinions over the years of their service on the Court. That is 
their right, and I would add the responsibility the Constitution gives 
to Justices of our Supreme Court.
  Our pending decision on President Bush's nomination of John Roberts 
to the Supreme Court is made more difficult because it comes at an 
excessively partisan time in our political history. That makes it even 
more important that we stretch to decide it correctly and without 
partisan calculations, whichever side we come down on. Judge Roberts, 
after all, has been nominated to be Chief Justice of the highest Court 
of the greatest country in the world, and our decision on whether to 
confirm him should be a decision made above partisanship.
  Today in these partisan times, it is worth remembering that seven of 
the nine sitting Justices were confirmed by overwhelmingly bipartisan 
votes in the Senate. Justices O'Connor by 99, Stevens and Scalia by 98, 
Kennedy by 97, Ginsburg by 96, Souter by 90, and Breyer 89. So it was 
not always as it is now, and it is now hard to imagine a nominee who 
would receive so much bipartisan support. That is wrong and it is 
regrettable.
  One reason for this sad turn, is that our recent Presidential 
campaigns have unfortunately made the Supreme Court into a partisan 
political issue, contrary to the intention of the Founders of our 
country as I have described it, with candidates in each party promising 
to nominate only Justices who would uphold or overrule particular 
prevailing Supreme Court decisions. I know that is not the first time 
in our history this has happened.
  But it nonetheless today undercuts the credibility and independence 
of the Supreme Court, and I might add it complicates this confirmation 
process. Because President Bush promised in his campaign that he would 
nominate Supreme Court Justices in the mold of Justices Scalia and 
Thomas, an extra burden of proof was placed on Judge Roberts to prove 
his openness of mind and independence of judgment.
  All of that is one reason why earlier this year I was proud to be one 
of the ``group of 14'' Senators. I view the agreement of that group of 
14 as an important step away from partisan politicizing of the Supreme 
Court. By opposing the so-called nuclear option, we were saying--7 
Republicans and 7 Democrats--that a nominee for a lifetime appointment 
to the Supreme Court should be close enough to the bipartisan 
mainstream of judicial thinking to obtain the support of at least 60 of 
the 100 Members of the Senate. That is not asking very much for this 
high office.
  When I was asked during the deliberation of the group of 14 to 
describe the kind of Justice I thought would pass that kind of test, I 
remember saying it would be one who would not come to the Supreme Court 
with a prefixed ideological agenda but would approach each case with an 
open mind, committed to applying the Constitution and the rule of law 
to reach the most just result in a particular case. I remember also 
saying the agreement of the group of 14 could be read as a bipartisan 
appeal to President Bush which might be phrased in these words:

       Mr. President, you won the 2004 election and with it came 
     to the right to fill vacancies on the Supreme Court. We 
     assume you will nominate a conservative but we appeal to you 
     not to send us an extreme conservative who will confront the 
     court and the country with a disruptive, divisive, 
     predetermined ideological agenda. Send us an able, honorable 
     nominee, Mr. President, who will take each case as it comes, 
     listen fully to all sides, and try to do right thing.

  Based on the hours of testimony Judge Roberts gave to the Judiciary 
Committee under oath, the lengthy personal conversation I had with him, 
a review of his extraordinary legal and judicial ability and 
experience, and the off-the- record comments of people who have known 
or worked with Judge Roberts at different times of his life, and 
volunteered them to me, and uniformly testified to his personal 
integrity and decency, I conclude that John Roberts meets and passes 
the tests I have described. I will, therefore, consent to his 
nomination.

[[Page 21274]]

  In his opening statement to the Judiciary Committee on September 13, 
Judge Roberts said:

       I have no platform.
       Judges are not politicians who can promise to do certain 
     things in exchange for votes. If I am confirmed, I will 
     confront every case with an open mind. I will fully and 
     fairly analyze the legal arguments that are presented. I will 
     be open to the considered views of my colleagues on the 
     bench. And I will decide every case based on the record, 
     according to the rule of law, without fear or favor, to the 
     best of my ability.

  I could not have asked for a more reassuring statement.
  During the hearings, some of our colleagues on the Judiciary 
Committee challenged Judge Roberts to reconcile that excellent pledge 
with memos or briefs he wrote during the 1980s or early 1990s, or 
opinions he wrote on the Circuit Court in more recent years. They were 
right to do so. I thought Judge Roberts' answers brought reassurance, 
if not total peace of mind. But then again, I have no constitutional 
right to total peace of mind as a Senator advising and deciding whether 
to consent on a Justice of the Supreme Court.
  From his statements going back more than 20 years, I was troubled by, 
and in some cases strongly disagreed with, opinions or work he had been 
involved in on fundamental questions of racial and gender equality, the 
right of privacy, and the commerce clause. But in each of these areas 
of jurisprudence, his testimony was reassuring.
  On questions of civil rights, Judge Roberts told the Judiciary 
Committee of his respect for the Civil Rights Act and the Voting Rights 
Act, as precedents of the Court, and he said they ``were not 
constitutionally suspect.''
  He added that he ``certainly agreed that the Voting Rights Act should 
be extended.''
  When asked by Senator Kennedy whether he agreed with Justice 
O'Connor's statement in upholding an affirmative action program that it 
was important to give ``great weight to the real world impact of 
affirmative action policies in universities,'' Judge Roberts answered, 
``You do need to look at the real world impact in these areas and in 
other areas as well.'' He also told Senator Durbin that he believed the 
Reagan administration had taken the ``incorrect position'' on Bob Jones 
University.
  I have said, and I say again, that I found those answers to be 
reassuring.
  With regard to the right of privacy, Judge Roberts gave a lengthy and 
informed statement: ``The right of privacy is protected under the 
Constitution in various ways.''
  He said:

       It's protected by the Fourth Amendment which provides that 
     the right of people to be secure in their persons, houses, 
     effects, and papers is protected.
       It's protected under the First Amendment dealing with 
     prohibition on establishment of a religion and guarantee of 
     free exercise.
       It protects privacy in matters of conscience.

  These are all quotes from Judge Roberts, and I continue:

       It was protected by the framers in areas that were of 
     particular concern to them--: The Third Amendment protecting 
     their homes against the quartering of troops.
       And in addition the Court--has recognized that personal 
     privacy is a component of the liberty protected by the due 
     process clause.
       The Court has explained that the liberty protected is not 
     limited to freedom from physical restraint and that it's 
     protected not simply procedurally, but as a substantive 
     matter as well.
       And those decisions have sketched out, over a period of 
     years, certain aspects of privacy that are protected as part 
     of the liberty in the due process clause of the Constitution.

  I thought that was a learned embrace of the constitutional right of 
privacy, particularly when combined with Judge Roberts' consistent 
support of the principle of stare decisis, respect for the past 
decisions and precedents of the Court in the interest of stability in 
our judicial system and in our society.
  Regarding Roe v. Wade, Judge Roberts specifically said, ``That is a 
precedent entitled to respect under the principles of stare decisis 
like any other precedent of the Court.''
  When asked by Senator Feinstein to explain further when, under stare 
decisis, a Court precedent should be revisited, Judge Roberts said:

       Well, I do think you do have to look at those criteria. And 
     the ones that I pull from these various cases are, first of 
     all, the basic principle that it's not enough that you think 
     that the decision was wrongly decided. That's not enough to 
     justify revisiting it. Otherwise there would be no role for 
     precedent, and no role for stare decisis. Second of all, one 
     basis for reconsidering the issue of workability (And) . . . 
     the issue of settled expectations, the Court has explained 
     you look at the extent to which people have conformed their 
     conduct to the rule and have developed settled expectations 
     in connection with it.

  Again, specifically with regard to Roe v. Wade, I found those answers 
reassuring.
  One of Judge Roberts' circuit court opinions on the commerce clause 
gave rise to fears that he would constrict Congress's authority to 
legislate under that important clause. But in his consistent 
expressions of deference to the work of Congress and his several 
references to the Supreme Court's recent decision in Gonzales v. Raich, 
Judge Roberts was once more reassuring.
  So I will vote to confirm John Roberts and send him off to the 
nonpolitical world of the Supreme Court with high hopes, encouraged by 
these words of promise he spoke to the Judiciary Committee at the end 
of his opening statement to that committee as follows:

       If I am confirmed, I will be vigilant to protect the 
     independence and integrity of the Supreme Court, and I will 
     work to ensure that it upholds the rule of law and safeguards 
     those liberties that make this land one of endless 
     possibilities for all Americans.

  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Thank you, Mr. President.
  Mr. President, along with a vote to authorize war, the vote on the 
nomination of a Supreme Court Justice, especially a Chief Justice, is 
one of the most important votes that Senators ever cast. Because the 
Supreme Court is the guardian of our most cherished rights and 
liberties, the vote on any Supreme Court nominee has enormous 
significance for the everyday lives of all Americans.
  Supporting or opposing a Supreme Court nominee is not--and should not 
be--a partisan issue. Indeed, in my time in the United States Senate, I 
have voted to confirm nearly twice as many Republican nominees to the 
high Court as Democratic nominees. To be sure, there are also some 
nominees that I have opposed. But that opposition was not based on the 
political party of the President who nominated them, but on the 
record--or lack of record--of the testimony and writings of each 
individual nominee. In hindsight, there are some votes--either for or 
against--that I wish I had cast differently, but each vote reflected my 
best, considered judgment at the time, based on the information and 
record before me. That is what the Constitution calls us to do as 
Senators.
  Yet some of our friends on the other side of the aisle have tried to 
portray a vote against John Roberts as a reflexive, partisan vote 
against any nominee by President Bush. Still others have made the 
sweeping statement that any Senator who can't vote for Roberts can't 
vote for any nominee of a Republican President. These broad statements 
are patently wrong and suggest partisan posturing that does serious 
injustice to the most serious business of giving a lifetime appointment 
to a Justice on the highest Court in the land.
  With full appreciation and awareness of the Senate's solemn 
obligation to give advice and consent to this all-important Supreme 
Court nomination by President Bush, I have read the record, asked 
questions, re-read the record, and asked even more questions. But after 
reviewing the record such as it is, I am unable to support the 
nomination of John Roberts to be the Chief Justice of the United States 
Supreme Court.
  Our Founders proclaimed the bedrock principle that we are all created 
equal. But everyone knows that in the early days of our Republic, the 
reality was far different. For more than two centuries, we have 
struggled, sometimes spilling precious blood, to fulfill that unique 
American promise. The beliefs and sacrifices of millions of Americans 
throughout the history of our Nation have breathed fuller life and 
given real world relevance to our constitutional ideals.

[[Page 21275]]

  With genius and foresight, our founders gave us the tools--the 
Constitution and the Bill of Rights--that have aided and encouraged our 
march towards progress. The guarantees in our founding documents, as 
enhanced in the wake of a divisive Civil War, have guided our Nation to 
live up to the promise of liberty, equality and justice for all.
  We have made much progress. But our work is not finished. We still 
look to our elected representatives and our independent courts in each 
new generation to uphold those guiding principles, to continue the 
great march of progress, and never to turn back or give up hard-won 
gains.
  The commitment to this march of progress was the central issue in the 
John Roberts hearing. We asked whether he, as Chief Justice, would 
bring the values, ideals and vision to lead us on the path of continued 
equality, fairness, and opportunity for all. Or would he stand in the 
way of progress by viewing the issues that come before the Court in a 
narrow and legalistic way, thereby slowly turning back the clock and 
eroding the civil rights and equal rights gains of the past.
  We examined the only written record before us and saw John Roberts, 
aggressive activist in the Reagan Administration, eager to narrow hard-
won rights and liberties, especially voting rights, women's rights, 
civil rights, and disability rights. As Congressman John Lewis 
eloquently stated in our hearings, 25 years ago John Roberts was on the 
wrong side of the nation's struggle to achieve genuine equality of 
opportunity for all Americans. And, despite many invitations to do so, 
Judge Roberts never distanced himself from the aggressively narrow 
views of that young lawyer in the Reagan administration.
  Who is John Roberts today? Who will he be as the 17th Chief Justice 
of the United States?
  John Roberts is a highly intelligent nominee. He has argued 39 cases 
before the Supreme Court, and won more than half of them. He is adept 
at turning questions on their head while giving seemingly appropriate 
answers. These skills served him well as a Supreme Court advocate. 
These same skills, however, did not contribute to a productive 
confirmation process. At the end of the 4 days of hearings, we still 
know very little more than we knew when we started.
  John Roberts said that ``the responsibility of the judicial branch is 
to decide particular cases that are presented to them in this area 
according to the rule of law.''
  Of course, everyone agrees with that. Each of us took an oath of 
office to protect and defend the Constitution, and we take that oath 
seriously. But the rule of law does not exist in a vacuum. 
Constitutional values and ideals inform all legal decisions. But John 
Roberts never shared with us his own constitutional values and ideals.
  He said that a judge should be like an umpire, calling the balls and 
strikes, but not making the rules.
  But we all know that with any umpire, the call may depend on your 
point of view. An instant replay from another angle can show a very 
different result. Umpires follow the rules of the game. But in critical 
cases, it may well depend on where they are standing when they make the 
call.
  The same is true with judges.
  As Justice Oliver Wendell Holmes famously stated: The life of the law 
has not been logic; it has been experience.'' He also said that legal 
decisions are not like mathematics. If they were, we wouldn't need men 
and women of reason and intellect to sit on the bench--we would simply 
input the facts and the law into some computer program and wait for a 
mechanical result.
  We all believe in the rule of law. But that is just the beginning of 
the conversation when it comes to the meaning of the Constitution. 
Everyone follows the same text. But the meaning of the text is often 
imprecise. You must examine the intent of the Framers, the history, and 
the current reality. And this examination will lead to very different 
outcomes depending on each Justice's constitutional world view. Is it a 
full and generous view of our rights and liberties and of government 
power to protect the people or a narrow and cramped view of those 
rights and liberties and the government's power to protect ordinary 
Americans?
  Based on the record available, there is insufficient evidence to 
conclude that Judge Roberts view of the rule of law would include as 
paramount the protection of basic rights. The values and perspectives 
displayed over and over again in his record cast doubt on his view of 
voting rights, women's rights, civil rights, and disability rights.
  In fact, for all the hoopla and razzle-dazzle in four days of 
hearings, there is precious little in the record to suggest that a 
Chief Justice John Roberts would espouse anything less that the narrow 
and cramped view that staff attorney John Roberts so strongly advocated 
in the 1980s.
  On the first day of the hearing, Senator Kohl asked, ``Which of those 
positions were you supportive of, or are you still supportive of, and 
which would you disavow?'' Judge Roberts never gave a clear response.
  Other than his grudging concession during the hearing that he knows 
of no present challenge that would make section 2 of the Voting Rights 
Act ``constitutionally suspect''--a concession that took almost 20 
minutes of my questioning to elicit--John Roberts has a demonstrated 
record of strong opposition to section 2, which is almost universally 
considered to be the most powerful and effective civil rights law ever 
enacted. Section 2 outlaws voting practices that deny or dilute the 
right to vote based on race, national origin, or language minority 
status--and is largely uncontroversial today.
  But in 1981 and 1982, Judge Roberts urged the administration to 
oppose a bi-partisan amendment to strengthen section 2, and to have, 
instead, a provision that made it more difficult some say impossible to 
prove discriminatory voting practices and procedures. Although Judge 
Roberts sought to characterize his opposition to the so-called 
``effects test'' as simply following the policy of the Reagan 
administration, the dozens of memos he wrote on this subject show that 
he personally believed the administration was right to oppose the 
``effects test.''
  When Roberts worried that the Senate might reject his position, he 
urged the Attorney General to send a letter to the Senate opposing the 
amendment, stating, ``My own view is that something must be done to 
educate the Senators. . . .''
  He also urged the Attorney General to assert his leadership against 
the amendment strengthening section 2. He wrote that the Attorney 
General should ``head off any retrenchment efforts'' by the White House 
staff who were inclined to support the effects test. He consistently 
urged the administration to require voters to bear the heavy burden of 
proving discriminatory intent--even on laws passed a century earlier--
in order to overturn practices that locked them out of the electoral 
process.
  Judge Roberts wrote at the time that ``violations of section 2 should 
not be made too easy to prove. . . .'' Remember, when he wrote those 
words there had been no African-Americans elected to Congress since 
Reconstruction from seven of the States with the largest black 
populations.
  The year after section 2 was signed into law, Judge Roberts wrote in 
a memorandum to the White House Counsel that ``we were burned'' by the 
Voting Rights Act legislation.
  Given his clear record of hostility to this key voting rights 
protection, the public has a right to know if he still holds these 
views. But Judge Roberts gave us hardly a clue.
  Even when Senator Feingold asked whether Judge Roberts would 
acknowledge today that he had been wrong to oppose the effects test, he 
refused to give a yes-or-no answer.
  Judge Roberts responded: ``I'm certainly not an expert in the area 
and haven't followed and have no way of evaluating the relative 
effectiveness of the law as amended or the law as it was prior to 
1982.''
  So we still don't know whether he supports the basic law against 
voting practices that result in denying voting rights because of race, 
national origin, or language minority status.

[[Page 21276]]

  You don't need to be a voting rights expert to say we're better off 
today in an America where persons of color can be elected to Congress 
from any State in the country. You don't need to be a voting rights 
expert to know there was a problem in 1982, when no African American 
had been elected to Congress since Reconstruction from Mississippi, 
Florida, Alabama, North Carolina, South Carolina, Virginia, or 
Louisiana--where African Americans were almost a third of the 
population--because restrictive election systems effectively denied 
African Americans and other minorities the equal chance to elect 
representatives of their choice.
  You don't need to be a voting rights expert to say it's better that 
the Voting Rights Act paved the way for over 9,000 African American 
elected officials and over 6,000 Latino elected officials who have been 
elected and appointed nationwide since the passage of that act.
  And you don't need to be an expert to recognize that section 2 has 
benefited Native Americans, Asians and others who historically 
encountered harsh barriers to full political participation.
  Yet Judge Roberts refused in the hearings to say that his past 
opposition to section 2 doesn't represent his current views.
  Judge Roberts also refused to disavow his past record of opposition 
to requiring non-discrimination by recipients of federal funds. These 
laws were adopted because, as President Kennedy said in 1963, 
``[s]imple justice requires that public funds, to which all taxpayers . 
. . contribute, not be spent in any fashion which . . . subsidizes, or 
results in . . . discrimination.''
  He supported a cramped and narrow view that would exempt many 
formerly covered institutions from following civil rights laws that 
protect women, minorities and the disabled. Under that view, the 
enormous subsidies the Federal government gives colleges and 
universities in the form of Federal financial aid would not have been 
enough to require them to obey the laws against discrimination. That 
position was so extreme that it was rejected by the Reagan 
administration and later by the Supreme Court. Although Judge Roberts 
later acknowledged that the Reagan administration rejected this view, 
he would not tell the committee whether he still holds that view today.
  He also never stated whether he personally agrees with the decision 
in Franklin v. Gwinnett, where the Supreme Court unanimously rejected 
his argument that title IX, the landmark law against gender 
discrimination, provided no monetary relief to a schoolgirl who was 
sexually abused by her schoolteacher.
  A careful reading of the transcript of his testimony makes clear that 
he never embraced the Supreme Court's decision to uphold affirmative 
action at the University of Michigan Law School, nor did he expressly 
agree with the Supreme Court decision that all children--including 
those who are undocumented--have a legal right to public education. He 
emphasized his agreement with certain rationales used by the court in 
those cases, but he left himself a lot of wiggle room for future 
reconsideration of those 5-4 decisions.
  Finally, a number of my colleagues on the committee asked Judge 
Roberts about issues related to women's rights and a woman's right to 
privacy. On these important matters, too, he never gave answers that 
shed light on his current views.
  No one is entitled to become Chief Justice of the United States. The 
confirmation of nominees to our courts--by and with the advice and 
consent of the Senate--should not require a leap of faith. Nominees 
must earn their confirmation by providing us and the American people 
with full knowledge of the values and convictions they will bring to 
decisions that may profoundly affect our progress as a nation toward 
the ideal of equality.
  Judge Roberts has not done so. His repeated reference to the rule of 
law reveals little about the values he would bring to the job of Chief 
Justice of the United States. The record we have puts at serious risk 
the progress we have made toward our common American vision of equal 
opportunity for all of our citizens.
  There is clear and convincing evidence that John Roberts is the wrong 
choice for Chief Justice. I oppose the nomination. I urge my colleagues 
to do the same.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ALEXANDER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Burr). Without objection, it is so 
ordered.
  Mr. ALEXANDER. Mr. President, my constituents have been asking me, 
``Who will President Bush nominate for the second Supreme Court 
vacancy?'' The question reminds me of a story about a punter from 
California who went all the way to the University of Alabama to play 
for Coach Bear Bryant. Day after day, this punter would kick it more 
than 70 yards in practice. Day after day, Coach Bear Bryant watched the 
punter kick it 70 yards and said nothing. Finally the young kicker came 
over to the coach and said: Coach, I came all the way from California 
to Alabama to be coached by you. I have been out here kicking for a 
week, and you haven't said a word to me.
  Coach Bryant looked at him and said: Son, when you start kicking it 
less than 70 yards, I will come over there and remind you what you were 
doing when you kicked it more than 70 yards.
  That is the way I feel about President Bush and the next Supreme 
Court nominee. My only suggestion for him would be respectfully to 
suggest that he try to remember what he was thinking when he appointed 
John Roberts and to do it again. Especially for those of us who have 
been trained in and who have respect for the legal profession, it has 
been a pleasure to watch the Roberts nomination and confirmation 
process. It is difficult to overstate how good he seems to be. He has 
the resume that most talented law students only dream of: editor of the 
Harvard Law Review and a law clerk to Judge Henry Friendly.
  I was a law clerk to Judge John Minor Wisdom in New Orleans, who 
regarded Henry Friendly as one of the two or three best Federal 
appellate judges of the last century. In fact, we law clerks used to 
sit around and think about ideal Federal panels on which three judges 
would sit. Sometimes Judge Wisdom and Judge Friendly would sit on the 
same panel, and we tried to think of a third judge. There was a judge 
named Allgood. We thought if we could get a panel of judges named 
Wisdom, Friendly, and Allgood, we would have the ideal panel.
  So Judge Roberts learned from Judge Friendly. Then he was law clerk 
to the Chief Justice of the United States. Add to that his time in the 
Solicitor General's Office, where only the best of the best lawyers are 
invited to serve; then his success as an advocate before the Supreme 
Court both in private and in public practice. Then what is especially 
appealing is his demeanor, his modesty both in philosophy and in 
person, something that is not always so evident in a person of superior 
intelligence and such great accomplishment. Then there are the stories 
we heard during the confirmation process of private kindnesses to 
colleagues with whom he worked.
  Judge Roberts' testimony before the Senate Judiciary Committee 
demonstrated all those qualities, as well as qualities of good humor 
and intelligence, and an impressive command of the body of law that 
Supreme Court Justices must consider. Those televised episodes, which I 
took time to watch a number of, could be the basis for many law school 
classes or many civics classes. Judge Roberts brings, as he repeatedly 
assured Senators on the committee, no agenda to the Supreme Court. He 
understands that he did not write the Constitution but that he is to 
interpret it, that he does not make laws--Congress does that--but that 
he is to apply them. He demonstrates that he understands the Federal 
system. It is not too much to say that for a devotee of the law, 
watching John Roberts in those hearings was like having the

[[Page 21277]]

privilege of watching Michael Jordan play basketball at the University 
of North Carolina in the early 1980s or watching Chet Atkins as a 
sessions guitarist in the 1950s in Nashville.
  One doesn't have to be a great student of the law to recognize there 
is unusual talent here.
  If Judge Roberts' professional qualifications and temperament are so 
universally acclaimed, why do we now hear so much talk of changing the 
rules and voting only for those Justices who we can be assured are ``on 
our side''? That would be the wrong direction for the Senate to go. In 
the first place, history teaches us that those who try to predict how 
Supreme Court nominees will decide cases are almost always wrong. Felix 
Frankfurter surprised Franklin Roosevelt. Hugo Black surprised the 
South. David Souter surprised almost everybody. In the second place, 
courts were never intended to be set up as political bodies that could 
be relied upon to be predictably on one side or the other of a 
controversy. That is what Congress is for. That is why we go through 
elections. That is why we are here. Courts are set up to do just the 
opposite, to hear the facts and apply the law and the Constitution in 
controversial matters. Who will have confidence in a system of justice 
that is deliberately rigged to be on one side or the other despite what 
the facts and the law are?
  Finally, failing to give broad approval to an obviously well-
qualified nominee such as Judge Roberts--just because he is ``not on 
your side''--reduces the prestige of the Supreme Court. It jeopardizes 
its independence. It makes it less effective as it seeks to perform its 
indispensable role in our constitutional republic.
  For these three reasons, Republican and Democratic Senators, after 
full hearings and discussion, have traditionally given well-qualified 
nominees for Supreme Court Justice an overwhelming vote of approval. I 
am not talking about the ancient past. I am talking about the members 
of today's Supreme Court, none of whom are better qualified than Judge 
Roberts. For example, Justice Breyer was confirmed by a vote of 87 to 9 
in a Congress composed of 57 Democrats and 43 Republicans. Justice 
Ginsburg was confirmed by a vote of 96 to 3 in the same Congress. 
Justice Souter was confirmed by a vote of 90 to 9 in a Congress 
composed of 55 Democrats and 45 Republicans. Justice Kennedy was 
confirmed by a vote of 97 to 0 in a Congress composed of 55 Democrats, 
45 Republicans. Justice Scalia, no shrinking violet, was confirmed by a 
vote of 98 to 0 in a Congress composed of 47 Democrats as well as 53 
Republicans. Justice O'Connor was confirmed by a vote of 99 to 0 in a 
Congress composed of 46 Democrats and 53 Republicans. And Justice 
Stevens was confirmed by a vote of 98 to 0 in a Congress composed of 61 
Democrats and 37 Republicans. The only close vote, of those justices on 
this Court, was for the nomination of Justice Thomas, following certain 
questions of alleged misconduct by the nominee. Thomas was confirmed by 
a vote of 52 to 48. However, even in that vote, 11 Democrats crossed 
the aisle to support the nominee.
  If almost all Republican Senators can vote for Justice Ginsburg, a 
former counsel for the American Civil Liberties Union, and a nominee 
who also declined, as Judge Roberts occasionally did, to answer 
questions so as not to jeopardize the independence of the Court on 
cases that might come before her. If every single Democratic Senator 
could vote for Justice Scalia, then why cannot virtually every Senator 
in this Chamber vote to confirm John Roberts?
  I was Governor for 8 years in Tennessee. I appointed about 50 judges. 
I looked for the qualities that Judge Roberts has so amply 
demonstrated: intelligence, good character, respect for the law, 
restraint, and respect for those who might come before the court. I did 
not ask one of my nominees how he or she might vote on abortion or on 
immigration or on taxation. I appointed the first woman circuit judge, 
as well as men. I appointed the first African-American chancellor and 
the first African-American State supreme court justice. I appointed 
some Democrats as well as Republicans. That process, looking back, has 
served our State well. It helped to build respect for the independence 
and fairness of our judiciary.
  I hope that we Senators will try to do the same as we consider this 
nomination for the Supreme Court of the United States. It is unlikely 
in our lifetime that we will see a nominee for the Supreme Court whose 
professional accomplishments, demeanor, and intelligence is superior to 
that of John Roberts. If that is so, then I would hope that my 
colleagues on both sides of the aisle will do what they did for all but 
one member of the current Supreme Court and most of the previous 
Justices in our history and vote to confirm him by an overwhelming 
majority.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent that 
the order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                 Energy

  Mr. NELSON of Florida. Mr. President, I am going to vote for Judge 
Roberts as Chief Justice. I will be making a lengthy statement later on 
in the day as there is time allowed, since the time allocated right now 
under the previous order is very limited.
  However, I did want to take this opportunity to say, with the fresh 
memories of Katrina and now Rita, I think it is incumbent upon us to 
finally get our collective heads as Americans out of the sand and face 
up to the fact that we are dependent on foreign energy sources, and 
that since we cannot drill our way out of the problem because the 
development of those resources of oil would take years and years to 
complete, one of the great natural resources of this country is coal.
  Of course, that does not affect my State of Florida; we have 300 
years of reserves of coal, and we now have the technology to cook this 
coal with highly intense heat in what is known as a coal gasification 
project. It burns off the gas, and that is a clean-burning gas.
  It would be my hope that this country will start getting serious 
about weaning ourselves from dependence on foreign oil by using our 
technology to address this problem.
  So that is what I wanted to share with my colleagues, since there 
were a couple of minutes under the previous order, and then I will be 
making my statement about Judge Roberts later in the day.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. I ask unanimous consent that the time be extended 
until the end of my statement.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CHAMBLISS. Mr. President, I rise in support of the nomination of 
John G. Roberts to be Chief Justice of the United States. By his 
nomination of Judge Roberts to be Chief Justice, President Bush has not 
only fulfilled his constitutional responsibility but he has 
demonstrated sound judgment and great wisdom by this nomination.
  In bipartisan fashion, our colleagues on the Judiciary Committee have 
similarly demonstrated such judgment and wisdom in recommending that we 
consent to that nomination. I urge my colleagues to follow the 
committee's recommendation.
  Judge Roberts is an able jurist, a decent man, and he should be the 
next Chief Justice of the Supreme Court of the United States. Both by 
his professional career and his answers to questions during the 
committee's consideration of his nomination, Judge Roberts has 
demonstrated his unwavering fidelity to the Constitution and commitment 
to the rule of law.
  ``The rule of law'' is a phrase often used in public discourse. It 
trips easily off the tongue. Too often, it seems, we recite it with a 
banality that comes with the assumption that it is self-evident and 
self-executing. It is neither.
  Jefferson wisely taught that eternal vigilance is the price of 
liberty. So,

[[Page 21278]]

too, the rule of law requires both vigilance and continuous oversight.
  Far beyond fulfilling the constitutional responsibilities of this 
body, the confirmation process involving Judge Roberts has served as an 
essential reminder of the constitutional role of judges and the 
judiciary under our Republican form of government. At a time when too 
many of those in the judicial branch have sought to use their lifetime-
tenured position to advance their own personal ideological or political 
preferences in deciding matters which come before them, at a time when 
too many within the legal, media, and political elites have sought to 
recast the role of the judiciary into a superlegislature, approving of 
and even urging judges to supplant their views for those of the elected 
representatives of the American people, Judge Roberts has served to 
remind us that such actions and such views are anticonstitutional and 
contrary to the rule of law itself.
  The American people have listened to Judge Roberts in this regard. 
They like what they have heard because it rings true with what we all 
learned but some have forgotten, from high school civics class and what 
we profess in doctrines of separation of powers among the branches of 
our Federal Government.
  Let me repeat some of what Judge Roberts has said:

       Judges and Justices are servants of the law, not the other 
     way around.
       Judges are not to legislate, they're not to execute the 
     laws.
       Judges need to appreciate that the legitimacy of their 
     action is confined to interpreting the law and not making it.
       Judges are not individuals promoting their own particular 
     views, but they are supposed to be doing their best to 
     interpret the law, to interpret the Constitution, according 
     to the rule of law, not their own preferences, not their own 
     personal beliefs.

  These are simple but profound statements. They go to the heart of our 
constitutional system and what we mean by the rule of law.
  As Chief Justice of the United States, John Roberts will not only 
serve as the Chief Justice of the Supreme Court but he will also serve 
as the leader of the entire Federal judiciary, setting the standards, 
showing the way, and speaking for an entire branch of our Federal 
Government. Every judge in our Federal system and every person who 
aspires to join its ranks at some future date should hear and receive 
Judge Roberts' words and seek to follow them with fidelity. A lot is 
riding on their willingness to do so.
  Judicial independence is another phrase bantered about of late by 
judges and others who feel threatened by legitimate congressional 
oversight of the judiciary. Judicial independence does not exist to 
shield judges from congressional and public scrutiny from improper 
judicial actions. Judicial independence does not shield judges from the 
inquiry of impeachment and removal from office for lawless actions on 
the bench. Federal judges, appointed for life, subject to removal only 
upon impeachment, are afforded this extraordinary power precisely to 
permit them to follow the law, even when following the law may be 
politically unpopular.
  Describing his own fidelity to the Constitution and to the rule of 
law, Judge Roberts told the Judiciary Committee:

       As a judge I have no agenda. I have a guide in the 
     Constitution and the laws and the precedents of the Court, 
     and those are what I would apply with an open mind, after 
     fully and fairly considering the arguments and assessing the 
     considered views of my colleagues on the bench.

  We should confirm Judge Roberts not merely because he said that; we 
should confirm him because he has lived it. We can ask no more of our 
judges but we must ask no less. Let this be the standard we apply to 
this nominee and to future nominees, both to the Supreme Court and to 
lower courts.
  I urge my colleagues to confirm the President's nomination of Judge 
John G. Roberts as Chief Justice of the United States.
  I yield the floor.

                          ____________________