[Congressional Record (Bound Edition), Volume 151 (2005), Part 16]
[Senate]
[Pages 21278-21280]
[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--Continued

  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. Mr. President, what is pending before the Senate?
  The PRESIDING OFFICER. Under the previous order, the time from 2:15 
to 2:45 p.m. will be under the control of the majority. We are on the 
Roberts nomination.
  Mr. SESSIONS. Mr. President, I appreciate the opportunity to share 
some thoughts on this important matter and I probably will speak again 
before this final vote occurs.
  Mr. President, this is an important process. What we are doing here 
is more important than the average confirmation, in my view. What has 
been going on for virtually the entire time I have been in the Senate, 
going on 8 years, and certainly in the last 5 years, has been a 
rigorous and vigorous debate over the role of courts in American life. 
The American people have become very concerned that those we appoint 
and confirm to the Federal judiciary and have been given a lifetime 
appointment, as a result of that are unaccountable to the American 
people; that they are not, therefore, any longer a part of the 
democratic process and can only be removed from office on causes 
relating to an impeachment or their own resignation or death.
  This has raised concerns because these lifetime-appointed, 
unaccountable officials of our Government have set about to carry out 
political agendas. There is no other way to say it. I hate to be 
negative about our courts because I believe in our courts. The courts I 
practiced before, the Federal courts in Alabama, are faithful to the 
law. If a Democratic judge or Republican judge, a liberal or 
conservative, is faithful to the law, I do not see a problem. 
Overwhelmingly, in the courts of America today, justice is done.
  But we have a growing tendency among the members of our Supreme 
Court. Many of them have been there for many years. It strikes me that 
perhaps they have lost some discipline. They have forgotten they were 
appointed and not anointed. As my good friend said--a former judge, now 
deceased, Judge Thomas, in the Southern District of Alabama: Remember, 
you were appointed, not anointed.
  I think they have forgotten that. I believe they have begun to think 
it is important for them and the courts to settle disputed social 
issues in the country; that they are somehow an elite group of 
guardians of the public health and that they should protect us from 
ourselves on occasion.
  We have seen that. We have seen a series of opinions that, as a 
lawyer, I believe cannot be justified as being consistent with the 
words or any fair interpretation of the words of the Constitution of 
the United States. That is what a judge is sworn to uphold.
  These issues are important, as I said, because if this is true, and 
if judges are going beyond what they have been empowered to do, and 
they are twisting or redefining or massaging the words of the 
Constitution to justify them in an unjustified act of imposing a 
personal view on America, then that is a serious problem indeed, and I 
am afraid that is what we have.
  They say it is good. The law schools, some of them, these professors, 
believe judges should be strong and vigorous and active and should 
expand the law and that the Constitution is living. So, therefore 
``living'' means, I suppose, you can make it say what you want it to 
say this very moment.
  But Professor Van Alstyne at Duke once said to a judicial conference 
I attended many years ago: If you love this Constitution, if you really 
love it, if you respect it, you will enforce it--

[[Page 21279]]

``it''--as it is written. When judges don't do that they therefore do 
not respect the Constitution. In fact, they create a situation in which 
a future court may be less bound by that great document. It can erode 
our great liberties in ways we cannot possibly imagine today.
  The name of Justice Ginsburg sometimes came up at Judge Roberts 
hearings because of her liberal positions on a number of issues before 
she went on the bench. Yet she was confirmed overwhelmingly. An 
argument was made therefore Judge Roberts, who has mainstream views, 
ought to be confirmed. She just recently made a speech to the New York 
Bar Association. She said she was not happy being the only female 
Justice on the Court but she stated:

       Any woman will not do. There are some women who might be 
     appointed who would not advance human rights or women's 
     rights.

  What about other groups' rights? Do you need to advance all those 
other rights, too? And what is a right?
  Then she dealt with the question of foreign law being cited by the 
Supreme Court of the United States. We have had a spate of judges, 
sometimes in opinions and sometimes in speeches, making comments that 
suggest their interpretation of the law was influenced by what foreign 
people have done in other countries. She said:

       I will take enlightenment wherever I can get it. I don't 
     want to stop at the national boundary.

  Then she noted that she had a list of qualified female nominees, but 
the President hadn't consulted with her--and I would hope not, frankly.
  Why are we concerned about citing foreign law? We are concerned 
because this is an element of activism. Our historic liberties are 
threatened when we turn to foreign law for answers.
  This is a bad philosophy and a bad tendency because we are not bound 
by the European Union. We didn't adopt whatever constitution or laws or 
documents they have in the European Union. What does our Constitution 
say?

       We the People of the United States, in Order to form a more 
     perfect Union, establish Justice, insure domestic 
     Tranquility, provide for the common defense, promote the 
     general Welfare, and secure the Blessings of Liberty to 
     ourselves and our Posterity, do ordain and establish this 
     Constitution for the United States of America.

  Not some other one. Not one you would like, not the way you might 
like to have had it written, but this one. That is the one that we 
passed. That is the one the people have ratified. That is the one the 
people have amended. And that is the one a judge takes an oath to 
enforce whether he or she likes it or not.
  You tell me how an opinion out of Europe or Canada or any other place 
in the world has any real ability to help interpret a Constitution, a 
provision of which may have been adopted 200 years ago.
  I submit not.
  You see, we have to call on our judges to be faithful to that. I do 
not want, I do not desire, and the President of the United States has 
said repeatedly that he does not want, he does not desire that a judge 
promote his political or social agenda. That is what we fight out in 
this room right here, right amongst all of us. We battle it out, and I 
am answerable to the people in my State, the State of Alabama. That is 
who I answer to, and each one of us answers to the people in our 
states; and the President answers to all the people of the United 
States. That is where the political decisions are made, and we leave 
legal decisions in the court.
  My time to speak is limited. I will close with this: We have never 
had a judge come before this Senate, in my opinion, who has in any way 
come close to expressing so beautifully and so richly and so 
intelligently the proper role of a court. Judge Roberts used a common 
phrase: You should be a neutral umpire. Certainly he should be that. 
Absolutely that is a good phrase.
  A judge should be modest. He should decide the facts and the law 
before the court, not using that in an expansive way to impose personal 
views beyond the requirement of that court; that a court does not seek 
to set out to establish any result, it simply decides the dispute that 
is before a court.
  That is why I think we have had a long political battle over this. 
Frankly, Senator after Senator has been elected after committing to 
support the kind of judges President Bush has said he would nominate 
and has, in fact, nominated. If we continue this process, we will 
return our courts to that wonderful station they need to always hold; 
that is, they will be neutral, fair, objective arbiters, will not 
legislate in any way based upon their personal views, their personal 
biases, their political opinions, their social agendas to affect or 
infect and corrupt their decisions as they go about their daily jobs. 
John Roberts understands that completely. He has articulated that 
principle far more eloquently than I could ever do, and he has won the 
support of the people. Everywhere I go, people tell me how magnificent 
they thought he has been in explaining these issues.
  It is what the American people want. The President has given us that. 
And I believe, in the long run, this could be a turning point in which 
we take politics out of the courtroom, leave the politics to the 
politicians, and put the courts back in the business of deciding the 
legal cases.
  I think my time has expired. I yield the floor.
  The PRESIDING OFFICER (Mr. Voinovich). The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I rise on the advice and consent question 
of Judge John Roberts.
  Before I address my judgment on that, I would like to pay tribute for 
a second to Sandra Day O'Connor and the late William Rehnquist.
  Sandra Day O'Connor's announced retirement caused the nomination by 
the President of John Roberts, and subsequently the untimely passing of 
Chief Justice Rehnquist afforded the opportunity for that nomination to 
be for Chief Justice as well. In the anticipated furor of this debate 
and confirmation, the credit never was given that should have been to 
Justice O'Connor or Justice Rehnquist.
  Sandra Day O'Connor was the first woman appointed to the U.S. Supreme 
Court. She served with honor and distinction. She wrote brilliantly, 
concisely, and succinctly, and, most importantly of all, she had an 
insight and wisdom second to none. In fact, I commend to everyone her 
final writing, her dissenting opinion on the eminent domain case, if 
you want to see a Justice who was well grounded and interested in the 
American people.
  Judge Rehnquist was the 16th Justice of the United States, an 
outstanding individual of immense capacity, dedication, and commitment 
to the United States of America. His loss is a tragedy, and the 
retirement of Justice O'Connor is a loss to the Court.
  But now we are confronted with our constitutional responsibility as 
Members of the Senate to address the question of John Roberts, the 
nominee of President Bush.
  I come to this debate somewhat differently than a lot who preceded 
me. I am not an attorney. Before my election to the Senate, I was a 
businessman, always had been, always will be when I leave. I come also 
as a new Member of the Senate. In fact, a year ago today, I was engaged 
in a debate in Columbus, GA, with my Democratic opponent for the Senate 
seat. The issue that night of that debate was clearly what was the role 
of the Senate in terms of the confirmation of a Justice to the Supreme 
Court and the issue of the day, which was filibuster. It was only a 
year ago when whether a judge could even get an up-or-down vote was a 
major question on the floor of the Senate.
  I happen to have been elected, obviously, to that Senate seat, sworn 
in on January 4, and came to the Senate to find that advice and consent 
was impossible because filibuster was the rule of the day. Then a 
unique thing happened. Fourteen Members of this body made a deal--and I 
commend them for it. They broke a logjam, and very quickly we were able 
to confirm six appointments to the court, some who had languished as 
long--as in the case of Judge Pryor--as 4 years.
  No one knew Justice O'Connor would announce her retirement a few 
weeks

[[Page 21280]]

later, nor that Chief Justice Rehnquist would die, but all of us knew 
that when an appointment came, the agreement that had been made might 
be put in jeopardy because it set forth a standard that filibuster 
might be necessary under extraordinary circumstances. There were many 
who anticipated whomever the President appointed would be in and of 
itself an extraordinary circumstance.
  Then along came John G. Roberts, who is an extraordinary man.
  I will vote to confirm the President's nomination of John G. Roberts 
as Chief Justice of the United States. In large measure, I will do so 
because of who and what John G. Roberts is, has been, and will be--a 
decent and humble man of immense intelligence and demonstrated 
compassion.
  We will hear and I have heard earlier today some in this Chamber who 
will tell us that he never answered any questions; we don't know where 
he stands. Well, to me, those are simply code words for them saying 
they couldn't pin him down, tie him in knots, or prejudice him for 
future decisions. Personally, I don't want a Justice who any lawyer can 
tie in knots or predispose. I want a judge I can stand before and count 
on the fact that he will call them like he sees them, that he won't be 
in one corner or the other, that he will do what is right, what is 
dictated by the law and the Constitution.
  In my 33 years in business, I was in court from time to time--as few 
times as possible. But all of us have been. I served as a foreman of a 
grand jury. I served on a petit jury. I have been, in the case as a 
businessman, in court myself. I don't want to go into a courtroom where 
I know I have a judge who has a bent, a predisposition, or an agenda. I 
want to go before a judge who wants to treat me under the law as 
equally and as fairly as my opponent on the other side, who will rule 
based on the facts, based on what is before him, based on the law, and 
based on our Constitution. I want a Justice who will study the law, 
listen to my side of the case, listen to the other side, and call it as 
he sees it.
  In his introduction, John Roberts said he was an umpire and he was a 
humble man. That says a lot about John Roberts. If there is anything we 
need on the bench today, it is those who see themselves umpires making 
the right call, the right decision the right time in every single case, 
for there is no instant replay on the Supreme Court of the United 
States of America. As Judge Roberts said in his confirmation hearing 
before the Judiciary Committee, just as people do not go to a baseball 
game to watch the umpires, they do not go to court to watch the judge. 
They go to court to get a fair decision, unvarnished and untainted.
  I was in Columbus, GA, during the break in August. I did an education 
listening session. After it was over, I met with some 6th grade kids of 
that school, some kids I gave the chance to ask me questions, some 
children I gave the chance to find out what they would like to know 
from a Senator.
  A little girl by the name of Maleka said: Senator Isakson, I have one 
question for you. What is the hardest decision you are going to have to 
make in the U.S. Senate? What is the most important decision you are 
going to have to make in the U.S. Senate?
  That was about a month ago today.
  The first answer I gave her was confirming Justices to the Supreme 
Court of the United States.
  It came to my mind instinctively because we all knew the nomination 
of Judge Roberts had been made and we would make that decision. All of 
us in here also know that the Constitution specifically says it is our 
advice and our consent which makes that determination.
  We also know that the third leg of the stool which is the great 
genius of the United States of America is the judicial branch, which is 
equal and separate from the courts and the executive. But it is also in 
these confirmations where the executive, the legislative, and the 
judicial come together. There is no more important decision made by a 
Member of the Senate than who the next Justice or Chief Justice of the 
United States will be.
  I close my remarks by telling you this: John G. Roberts has made the 
toughest decision I will have to make an easy one. He is a class act. 
He is an intellect. He is an honorable man. He is a man who, when the 
cases of justice in America are decided before our Supreme Court, will 
call it as he sees it, listen to both sides, rule on the law, and 
understand the Constitution. You can ask no more of a man than John 
Roberts has demonstrated time and again. That is precisely what he will 
deliver.
  Thursday at 11:30 I will be honored to cast my vote on behalf of the 
people of Georgia to confirm John G. Roberts as the 17th Chief Justice 
of the United States in the history of our country.
  I yield the floor.

                          ____________________