[Congressional Record (Bound Edition), Volume 151 (2005), Part 16]
[Senate]
[Pages 21282-21310]
[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

  Mr. DODD. Mr. President, I believe the time will be allocated to my 
colleague from Michigan, Senator Levin, but he has agreed to allow me 
to use his time to speak. He will speak at a later time today.
  The PRESIDING OFFICER. The Senate is under the control of the 
Democrats from 3:45 on, so the Senator can speak.
  Mr. DODD. Mr. President, the outcome of this nomination is now all 
but certain. In that regard, what I am about to say will have little 
impact on the fate of this nominee.
  Nevertheless, it is exceedingly rare that the Senate is asked to 
consider a nominee to fill a vacancy in the office of Chief Justice of 
the United States. Indeed, there have only been 16 Chief Justices in 
our Nation's history. Further, it is difficult to overstate the 
importance of the next Chief Justice on our Nation's future.
  For these reasons, I feel compelled to come to the floor today to 
explain how I will vote on the nomination of John Roberts to be our 
country's next Chief Justice.
  Every vote we cast as Senators is important. But some votes are more 
important than others. In my view, the most important votes that we 
cast in this body are those giving the President authority to go to 
war, those amending the United States Constitution, and those that fill 
vacancies in the judicial branch.
  These votes, more than any others, can permanently affect the 
essential character of our Nation. They involve fundamental questions 
about whether our Nation will spend blood and treasure in armed 
conflict; about whether the cornerstone document of our Republic will 
be modified; and about the make-up of a third, separate, coequal branch 
of our Government--the principal duty of which is to make real for each 
American the promise of equal justice under the law.
  Of the votes that we cast regarding judicial nominees, a small 
percentage is cast for Supreme Court Justice. An even smaller number of 
votes is cast for Chief Justice. In nearly a quarter of a century in 
this body, I have had the privilege of casting 8,415 votes--more than 
all but 16 of our colleagues. This is only the 10th time in that period 
that I have had the duty to consider a vote for Supreme Court Justice. 
And it is only the second time that I have considered a nominee for 
Chief Justice.
  In casting these votes--and in casting other votes for judicial 
nominees--I have supported the vast majority of candidates nominated by 
this and prior presidents. That includes nominees to the Supreme Court. 
I have supported six of the last nine nominees to the High Court. Of 
the current president's 219 judicial nominees, only five have failed to 
win confirmation. I, like all of our colleagues, have supported the 
overwhelming majority of these nominees.
  In reviewing a nomination for the judicial branch, I believe the 
Senate has a duty to undertake a higher degree of independent review 
than might be appropriate for a nomination to the Executive branch. 
There are two reasons for that heightened degree of scrutiny:
  First, because we are considering nominees who will populate--and in 
this case, lead--a separate, coequal branch of government; and
  Second, because Article III nominees, when confirmed, are confirmed 
for life. That makes them unique among all other Federal officials.
  In reviewing judicial nominees, I have never imposed any litmus 
tests.
  Indeed, I have supported nominees--including to the Supreme Court--
whose views and philosophy I did not necessarily share. I did so 
because they met what I consider to be the three crucial qualifications 
that every judicial nominee must meet:
  First, that they possess the legal and intellectual competence 
required to discharge the responsibilities of their office;

[[Page 21283]]

  Second, that they possess the qualities of character required of a 
judge or justice--including reason, wisdom, and fairmindedness; and
  Third, that they possess a commitment to equal justice for all under 
the law, which is the legal principle that is the foundation for all of 
our laws.
  With respect to the nomination now before the Senate, I have reviewed 
the record. I have read the briefs, if you will, of both sides. I have 
heard the case both for and against Judge Roberts.
  In so doing, I would be remiss not to thank the distinguished 
chairman Senator Specter, and ranking member of the Judiciary Committee 
Patrick Leahy of Vermont, for the extraordinary service they have 
rendered to the Senate and to the country. The hearings into this 
nomination were thorough, thoughtful, and deliberate, and I have 
watched many over the years. They are to be congratulated for the 
manner in which they led the committee in discharging its duties.
  I approached Judge Roberts' nomination with an open mind. I harbored 
no hidden proclivity to oppose his nomination because of his 
conservative record. Nor did I carry a presumption to support it 
because he is ``the President's choice'', or because he was described 
by the President as a ``gentleman'', or because of his stellar legal 
credentials.
  The written and testimonial record with respect to this nominee is 
mixed. It does lead this Senator to unequivocally conclude that his 
nomination should be supported or opposed. For those of us concerned 
about the right to privacy, about a woman's right to choose, about 
equal opportunity, about environmental protection, about ensuring that 
all are truly equal before the bar of justice--in short, for those of 
us concerned about keeping America strong and free and just--this is no 
easy matter.
  The record in several respects provides cold comfort for those of us 
seeking to preserve and expand America's commitment to equal justice 
for all. I was concerned about numerous written statements he made 
during his previous stints in Federal service--about voting rights, 
about the right to privacy, about Roe v. Wade, about equality between 
men and women, about restricting the ability of courts to strike down 
racially discriminatory laws and practices, and about environmental 
protection.
  Nor did Judge Roberts' hearing testimony do much to dispel my 
concerns about those earlier statements. On multiple occasions, he 
explained that he was reflecting the views of his superiors, rather 
than voicing his own personal opinions. Yet, when invited to explain 
his personal views, he repeatedly demurred--explaining that to state 
his own views would potentially telegraph his position on sensitive 
matters that could come before the Court.
  I can certainly understand the nominee's reluctance to prejudge a 
matter. No responsible nominee would do that; it would be inherently 
injudicious to do so. Yet, it is hard to escape the conclusion that 
these were answers of convenience, as well as duty.
  At the very least, his refusal to answer certain questions leaves us 
wanting. We certainly know less about this nominee than many of us 
would like to know.
  For that reason, I understand and respect the decision by those of 
our colleagues--including the Democratic Leader, Senator Reid, Senator 
Kennedy, Senator Biden, Senator Feinstein, and others--who feel that 
they cannot vote to confirm this nominee in large part because the 
Senate has been denied additional information about his background and 
views.
  Nevertheless, we are required to make a judgment based on the 
information we know, as well as in consideration of what we do not 
know. The record is incomplete. But unfortunately it is all we have. It 
cannot and should not be read selectively. The question for this 
Senator is not whether the record is all I would like it to be, but 
whether it provides sufficient information to determine whether the 
nominee meets the three qualifications I have just set forth--
competence, character, and a commitment to equal justice.
  On the question of competence, there is absolutely no doubt that John 
Roberts possesses the capabilities required to serve not only as a 
Justice on the Supreme Court, but as Chief Justice, as well. He has 
been described as one of finest lawyers of his generation--if not the 
finest. His academic and legal qualifications are superior. Even those 
who oppose his nomination readily agree that he has proven himself an 
outstanding advocate and jurist.
  On the question of character, there is no real question that this 
nominee possesses the qualities of mind and temperament that make him 
well-suited to serve as Chief Justice. He impressed me as someone who 
is personally decent, level-headed, and respectful of different points 
of view. In his answers to questions and in his demeanor, he convinced 
me that he will exercise judgment based on the law and the facts of a 
particular matter.
  Judge Roberts demonstrated that he understands the unsurpassing 
importance of separating his personal views--including his religious 
views--from his judicial reasoning in arriving at decisions. And I 
believe that his decisions as a Federal appellate judge demonstrate his 
ability to do that.
  I was particularly intrigued and impressed by Judge Roberts' 
discussion of former Justice Robert Jackson. Justice Jackson was known 
for opinions protecting first amendment freedoms and placing principled 
checks on the power of the President. These opinions--including Board 
of Education v. Barnette, the ``Steel Seizure Cases'', and the 
Korematsu case--were all the more remarkable for the fact that Jackson 
went to the Court directly from his position as Attorney General under 
President Roosevelt. In the Youngstown case, Justice Jackson actually 
disagreed with a position he had taken as Attorney General.
  In these and other cases, Jackson demonstrated a remarkable capacity 
for independent, progressive thought, and a deep commitment to uphold 
the constitutional rights that belong to each and every American, 
regardless of their station in life. Judge Roberts cited Justice 
Jackson with admiration. That provides some reassurance to those of us 
looking for him to demonstrate an understanding that as a Justice of 
the Supreme Court he will carry no brief for a particular party or 
president, but rather for the Constitution and the people it governs.
  On the question of competence, and on the question of character, this 
nominee clears the high bar required of a Supreme Court Justice. We are 
left, then, to consider the question of his commitment to the 
fundamental principle of our law: that all men and women are entitled 
to equal justice.
  In so doing, we do not have a crystal ball. We cannot say with 
certainty how he will rule on the critical issues that the Court is 
likely to face in months and years to come: on privacy, on choice, on 
civil rights, on the death penalty, on presidential power, and many 
others.
  However, I believe that the record contains sufficient information to 
provide a reasonable expectation of how Judge Roberts will go about 
making decisions if confirmed. His approach, in my view, is certainly 
within the mainstream of judicial thinking. Allow me to briefly discuss 
two critical aspects of that approach as I see it.
  First, he demonstrated an appropriate respect for precedent. This 
respect is the first and most important quality that a good judge must 
possess. If a judge is unwilling or unable to consider settled 
precedent, then the law is unsettled--and our citizenry cannot know 
with assurance that the rights, privileges, and duties that they 
possess today will continue to exist in the future.
  This is a delicate area, for the obvious reason that some precedents 
deserve to be overruled. Cases such as the Dred Scott decision and 
Plessy v. Ferguson come to mind. But in many other instances, precedent 
is of enormous importance in maintaining and strengthening our system 
of laws.
  Judge Roberts acknowledged as much in his discussion of the right to 
privacy. In vigorous questioning by the Judiciary Committee, he made 
clear that he respects Supreme Court precedents that recognize a 
constitutional

[[Page 21284]]

right to privacy. He stated further that this right is protected by the 
liberty clauses of the 5th and 14th Amendments to the Constitution, as 
well as by the 1st, 3rd, and 4th Amendments. Moreover, he asserted that 
this right is a substantive one, and not merely procedural. This view 
stands in stark contrast to that of Justice Scalia, for instance, who 
believes that the right to privacy has no basis in the Constitution.
  In discussing the right to privacy, Judge Roberts favorably cited 
both the Griswold and Eisenstadt cases, which recognize the right to 
privacy with respect to birth control for married and unmarried 
couples, respectively. Moreover, he stated that Roe v. Wade and Planned 
Parenthood v. Casey are settled law and therefore deserving of respect 
under principles of stare decisis.
  The second aspect of his approach to judging that places him squarely 
in the mainstream is his view of the role of judges in our 
constitutional system. He made clear that he rejects theories that view 
the judicial function as one where the Constitution is considered as a 
static document. He rejects in my view, the notion that the job of the 
judge is to place himself into a time machine and decide cases as if he 
or she lived in the 19th century.
  In his view, the Framers intended the Constitution, by its very 
language, to live in and apply to changing times. A judge by that view 
is neither a mechanic nor a historian.
  Words like ``liberty,'' ``equal protection'' and ``due process'' are 
not sums to be solved, but vital principles that must be applied to the 
untidiness of human circumstances--including those circumstances that 
the Framers themselves could never have envisioned.
  In that sense, the ``original intent'' of the Framers, if you will, 
was that their marvelous handiwork be interpreted in light of modern 
concepts of liberty and equal justice--not just those concepts as they 
were understood 218 years ago.
  At the same time, Judge Roberts rejects the notion that judges may 
act as superlegislators. His discussion of the 1905 Lochner case which 
crippled the ability of Congress to pass laws protecting children and 
workers--was pivotal in articulating the dangers of judges who 
substitute their policy preferences for those of the legislative 
branch.
  Here again, in my view, he reiterated his view that judges act on the 
basis of the facts and the law, not their own personal preferences. In 
this regard, it is worth noting that he indicated a willingness to 
examine recent Supreme Court decisions that severely restrict 
Congressional authority under the Commerce Clause to protect the public 
well-being.
  Mr. President, in closing, today I am deciding not to vote on the 
basis of my fears about this nominee and I have them Rather, I choose 
to vote on the basis of my hopes that he will fulfill his potential to 
be a superb Chief Justice of the Supreme Court. He is a person of 
outstanding ability and strong character who possesses in my view a 
deep commitment to the law and the principle of equal justice for all.
  As Chief Justice, John Roberts will have a great deal to do with what 
kind of country America will become in the 21st century. On the 
personal note, he will have a lot to say about what kind of lives my 
two young daughters will lead.
  His relative youth, his intellect, his decency, and his dedication to 
justice provide him with a unique opportunity to shape the destiny of 
our Nation. For the sake of children like my daughters who will grow up 
in a world with opportunities and challenges we can barely imagine--and 
for the sake of the country we all love--I will support his nomination 
for Chief Justice of the United States and do so with my highest hopes 
for his success.
  Mr. President, I yield the floor. I note the absence of a quorum.
  The PRESIDING OFFICER (Mr. Coleman). The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DORGAN. 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. DORGAN. Mr. President, I know many will provide us with their 
views on this nominee for the Supreme Court, and I will make a couple 
points today as I describe the process by which I arrived at my 
decision.
  Mr. President, the Constitution of this country establishes three 
branches of Government. When you look at this Constitution and read it, 
it is quite a remarkable document in all of the history of governments 
around the world. It was 1787 when in Philadelphia, in a hot room 
called the Assembly Room, 55 white men went into that room, pulled the 
shades because it was warm in Philadelphia that summer and they had no 
air-conditioning, and they wrote the Constitution; the Constitution 
that begins with the words, ``We the people.'' What a remarkable 
document. And that Constitution creates a kind of framework for our 
Government that is extraordinary and that has worked in the most 
successful way of any democracy in the history of mankind. In that 
Constitution they provided for what is called separation of powers, and 
for three branches of Government. One of those branches is the 
judiciary, and the Supreme Court is the top of the judiciary structure 
which interprets the Constitution in our country. Further, it is the 
only area in which there are lifetime appointments.
  When we decide on a nominee for the Federal bench to become a Federal 
judge, as is the case with respect to the Supreme Court, we decide yes 
or no on a nominee sent to us by the President. That person will be 
allowed to serve for a lifetime--not for 10 years or 20 years but for a 
lifetime. So it is a critically important judgment that the Senate 
brings to bear on these nominations.
  The President sends us a nomination and then the Senate gives its 
advice and consent; America approves or disapproves. Even George 
Washington was unable to get one of his Supreme Court nominees approved 
by the Senate. He was pretty frustrated by that. But even George 
Washington failed on one of his nominees.
  The role of the Senate is equal to the role of the President. There 
is the submission of a nominee by the President, and the yes or no by 
the Senate. Regrettably, in recent years, these issues have become 
almost like political campaigns with groups forming on all sides and 
all kinds of campaigning going on for and against nominees. It did not 
used to be that way, but it is in today's political climate.
  I want to talk just a little about the nominee who is before us now, 
Judge John Roberts, for the Chief Justice of the Supreme Court. The 
position of Chief Justice is critically important. He will preside over 
the Supreme Court. And, it is a lifetime appointment proposed for a 
relatively young Federal judge. John Roberts, I believe, is 50 years 
old. He is likely to serve on the Supreme Court as Chief Justice for 
decades and likely, in that position, to have a significant impact on 
the lives of every American.
  I asked yesterday to meet once again with Judge Roberts. I had met 
with him previously in my office. He came to my office again yesterday 
and we spent, I guess, 40 or 45 minutes talking. I wanted to meet with 
him just to discuss his views about a range of issues. There were a 
number of things that happened in the Judiciary Committee that 
triggered my interest--civil rights issues, women's rights, the right 
of privacy, court striping, and many others. Some of his writings in 
his early years, incidentally, back in the early 1980s also gave me 
some real pause.
  So I asked to meet with him yesterday morning, and at 9:30 we had a 
lengthy discussion about a lot of those issues. But I confess that 
Judge Roberts did not give me specific responses that went much beyond 
that which he described publicly in the Judiciary Committee hearings. 
Nonetheless, by having met with Judge Roberts twice and having had some 
lengthy discussions about these many issues, he is clearly qualified 
for this job. That has never been in question. He has an impressive set 
of credentials, probably as impressive a set of credentials as any 
nominee who has been sent here in

[[Page 21285]]

some decades. He clearly is smart, he is articulate, he is intense.
  The question that I and many others have had is, Who is this man, 
really? What does he believe? What does he think? Will he interpret the 
Constitution of this country in a way that will expand or diminish the 
rights of the American people? For example, there are some, some who 
have previously been nominated to serve on the Supreme Court, who take 
the position there is no right to privacy in this country; that the 
Constitution provides no right to privacy for the American people. I 
feel very strongly that is an error in interpretation of the 
Constitution, and the nominees who have suggested that sort of thing 
would not get my support in the Senate. Those who read the Constitution 
in that manner, who say there is no right to privacy in the U.S. 
Constitution, I think, misread the Constitution.
  I think at the conclusion of his hearings, it is interesting that 
advocates from both the left and the right had some concerns as a 
result of those hearings. I believe the conservatives worried at the 
end of his hearings that he wasn't conservative enough. I think 
liberals and progressives worried that he was too conservative.
  Well, Judge Roberts clearly is a conservative. I would expect a 
Republican President to nominate a conservative. But from the 
discussions I have had with him, I also believe that Judge John Roberts 
will be a Chief Justice who will honor precedent and who will view his 
high calling to an impartial interpretation of the laws of this 
country.
  Having now spent two occasions visiting with him about a number of 
issues, I believe he has the ability to serve this Nation well as Chief 
Justice, and I have decided, as a result, to vote for the confirmation 
of the nomination of Judge John Roberts. Some of my colleagues have 
announced they will vote for him, and they are voting their hopes 
rather than their fears. I would not characterize my vote that way. I 
think he is qualified, and I don't think he is an ideologue off to the 
far right--who believes there is no right to privacy and who wants to 
take us back in time in ways that would diminish the rights of the 
American people. As a result of that feeling, I intend to vote for this 
nominee. I recognize there is plenty of room for disagreement, that 
there is much that we don't know, not only about this nominee, but 
about everyone who comes before this Senate. And I fully respect the 
opinions of those who come to a different conclusion and who have 
reached a different point on this issue. But for me, this nominee, in 
my judgment, is well qualified to be a good Chief Justice for the 
country.
  Mr. President, I yield the floor, and I make a point of order that a 
quorum is not present.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REED. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REED. I thank the Chair.
  Mr. President, we are at a moment of great importance in our Nation's 
history: the chance to choose a new Chief Justice for a lifetime 
appointment on the U.S. Supreme Court.
  The Constitution makes the Senate an equal partner in the appointment 
and confirmation of Federal judges. Article II, section 2, clause 2, of 
the Constitution states that the President ``shall nominate, and by and 
with the Advice and Consent of the Senate, shall appoint . . . Judges 
of the Supreme Court.''
  Neither this clause itself, nor any other text in the Constitution, 
specifies or restricts the factors that Senators should consider in 
evaluating a nominee. It is in upholding our constitutional duty to 
give the President advice and consent on his nominations to Federal 
courts that I believe we have our greatest opportunity and 
responsibility to support and defend the Constitution.
  This is the first nominee to the Supreme Court that this body has had 
the opportunity to vote upon in 11 years. Like Members of this Chamber, 
this is my first opportunity to review and vote on a candidate for the 
Supreme Court.
  My test for a nominee is simple, and it is drawn from the text, the 
history, and the principles of the Constitution.
  A nominee's intellectual gifts, experience, judgment, maturity, and 
temperament are all important, but these alone are not enough. In this 
regard, I want to say something about the difference between a 
nomination to a lower court, including a court of appeals, and to the 
Supreme Court. The past decisions of the Supreme Court are binding on 
all lower courts. Therefore, even if a judge on a circuit court 
disagrees with well-established precedent about the rule of law, he or 
she is bound to apply that law in any case. However, the Supreme Court 
alone can overturn established legal precedent. As a result, I need to 
be convinced that a nominee for Supreme Court Justice will live up to 
the spirit of the Constitution.
  The nominee needs to be committed not just to enforcing laws, but to 
doing justice. The nominee needs to be able to make the principles of 
the Constitution come alive--equality before the law, due process, full 
and equal participation in the civic and social life of America for all 
Americans, freedom of conscience, individual responsibility, and the 
expansion of opportunity. The nominee also needs to see the unique role 
the Court plays in helping balance the often conflicting forces in a 
democracy between individual autonomy and the obligations of community, 
between the will of the majority and the rights of the minority. A 
nominee for Supreme Court Justice needs to be able to look forward to 
the future, not just backward. The nominee needs to make the 
Constitution resonate in a world that is changing with great rapidity.
  Judge Roberts' testimony before the Judiciary Committee and the legal 
documents he has produced throughout his career have not convinced me 
that he will meet this last test, that he will protect the spirit as 
well as the letter of the Constitution. In Judge Roberts' work as a 
private lawyer, and in two Republican administrations, he has created a 
long trail of documents revealing his judicial philosophy to be narrow 
and restrictive on issue after issue.
  He has attempted to distance himself from some of his record by 
saying he was merely representing his clients and stating his clients' 
view. I cannot fully accept this argument. With a degree from Harvard 
Law School and a Supreme Court clerkship, this man could have chosen 
any legal role he wanted, but he chose to become a political activist 
in the Reagan and Bush I administrations, to advocate for the ideas he 
believed in. He knew what he believed then, and he chose his clients to 
pursue his own constitutional agenda.
  We only have insight into this nominee's political activism because 
of papers obtained from the Ronald Reagan Presidential Library. I will 
point out, as others have, that our deliberations have been handicapped 
because this administration has refused to turn over documents that 
would be illustrative of his views, his ideas, his principles, and his 
passions. We only received the documents we have on his early career in 
the Government because they were in the custody of the Ronald Reagan 
Presidential Library. That, to me, has hobbled his nomination. I hope 
in the future, when a nominee is sent to us by the White House, they 
will be willing to release pertinent documents that will illustrate 
more clearly the positions of that nominee.
  The Bush administration, though, repeatedly refused requests to give 
Senators records from Judge Roberts' time in the U.S. Solicitor 
General's Office. If Judge Roberts did wish to disassociate himself 
from the agenda he has advocated throughout his legal career, he had 
that opportunity during his hearings before the Judiciary Committee. 
Each of my colleagues on that committee asked him extensive questions 
about his judicial philosophy, his understanding of important legal 
issues, and his opinion of major Supreme Court precedents. Judge 
Roberts had the burden to convince this body that

[[Page 21286]]

he would be a judicious and balanced member of the Supreme Court that 
would uphold the spirit of the Constitution. He had numerous 
opportunities to do so by releasing legal documents he had written and 
by candidly discussing his views on previously decided cases and broad 
areas of the law.
  However, Judge Roberts failed to pass this test. He failed, in my 
view, to inform this body of his views on important constitutional 
issues. He stonewalled the release of important documents. He evaded 
fair and important questions, instead of offering honest and insightful 
answers, and he failed to demonstrate that he would uphold not just the 
letter of the law but also the spirit. As a result, I cannot support 
his lifetime nomination to the highest Court in America.
  Now I would like to turn to some of the areas I have the most concern 
about regarding this nominee. The Constitution relies on a careful 
system of checks and balances between the judiciary, the legislature, 
and the executive. If the judiciary becomes a blank check for executive 
desires, this careful balance will break down. As a political appointee 
in the Reagan White House and Justice Department, however, Judge 
Roberts advocated expansive Presidential powers. For example, in a July 
15, 1983, memorandum to White House counsel Fred Fielding, Roberts 
supported reconsidering the role of independent regulatory agencies 
like the FCC and the FTC, bringing them within the control of the 
executive branch. We lack sufficient information about his advocacy 
within the Reagan and Bush I administrations. But from his short tenure 
on the court of appeals, we already have two examples of cases where 
Judge Roberts has deferred to the administration. Judge Roberts has not 
had the chance to hear that many cases in his brief stint on the DC 
Circuit. However, these two are troubling, and they both give the 
President sweeping and unprecedented powers.
  In Hamdan v. Rumsfeld, Roberts joined an opinion that upheld the 
military commissions this administration has created to try foreign 
nationals at Guantanamo Bay and agreed with the Bush administration 
that the Geneva Conventions did not apply to Hamdan. Judge Roberts' 
majority opinion argued that under the Constitution, the President 
``has a degree of independent authority to act'' in foreign affairs 
and, for this reason and others, his construction and application of 
treaty provisions is entitled to ``great weight.''
  But part of this decision was rejected by concurring senior judge 
Stephen Williams, a distinguished jurist and Republican appointee. He 
wrote that the United States, as a signatory to the Geneva Convention, 
was bound by its ``modest requirements of `humane treatment' and `the 
judicial guarantees which are recognized as indispensable by civilized 
peoples.'''
  That was not the only case. In another case, Acree v. Republic of 
Iraq in 2004, Judge Roberts, alone among three judges, supported the 
Bush administration's position that a Presidential order validly 
divested the Federal courts of jurisdiction to hear suits against Iraqi 
officials brought by American prisoners of war for torture they 
suffered during the first Gulf War. For a man who has so little 
judicial experience, opinions in support of the administration's 
expansive powers in two different cases presents a troubling pattern to 
me.
  Finally, if I may add, Judge Roberts' refusal to cooperate in turning 
over documents from his service in two presidential administrations to 
this body indicates his support for and compliance in this 
administration's unprecedented secrecy of executive branch operations. 
Indeed, memos he wrote in the 1980s show that he agreed with the 
administration's overly expansive claims of executive privilege to 
shield documents from the Congress and the public.
  A number of cases on Presidential authority are likely to come before 
the Court in the near future. Although I am reassured that during the 
hearings Judge Roberts declared his support for the analytical 
framework established in Youngstown Sheet & Tube Company v. Sawyer, 
which some in the current administration have not done, I am still 
concerned about his respect for the balance of power required by the 
Constitution.
  At the same time that Judge Roberts' record suggests he has been 
excessively deferential to the actions and whims of the executive 
branch, he has shown a troublesome activism in overruling the sovereign 
acts of this Congress. In recent years, a narrow majority on the 
Supreme Court and some lower court judges and right-wing academics and 
advocates have launched a Federalism revolution, cutting back on the 
authority of this Congress to enact and enforce critical laws important 
to Americans' rights and interests. These judges have overturned 
settled precedent by narrowly construing the commerce clause and 
section 5 of the 14th amendment, while broadly interpreting the 11th 
amendment and reading State sovereignty immunity into the text. Judge 
Roberts' short record raises troubling signs that he may subscribe to 
this new Federalism revolution.
  In one case, Rancho Viejo v. Norton, Judge Roberts issued a dissent 
from the decision by the full DC Circuit not to reconsider upholding 
the constitutionality of the Endangered Species Act in this case. In 
other words, Judge Roberts viewed part of the Endangered Species Act as 
unconstitutional because he believed its application was an 
unconstitutional exercise of Federal authority under the commerce 
clause. This narrow reading of Congress's constitutional authority 
could undermine the ability of Congress to protect not just the 
environment but other rights and interests of the American people.
  Judge Roberts' reasoning suggests he may subscribe to an extremely 
constricted interpretation of the commerce clause recently rejected by 
the Supreme Court in the medical marijuana case, Gonzales v. Raich. 
There the Court followed longstanding precedent, dating back to the 
1940s, to hold that Congress commerce clause authority includes the 
power to regulate some purely local activities.
  And this is not just about endangered species. Congress uses its 
constitutional authority under the commerce clause for all sorts of 
purposes in representing the American people. Other environmental 
protections of clean air and clean water come from the commerce clause. 
So, too, the commerce clause provides civil rights safeguards, minimum 
wage, and maximum hour laws, and workplace safety protections.
  Although Judge Roberts affirmed that the Constitution does contain a 
right to privacy, this declaration did not tell me much at all. As we 
know, at least three Justices on the current Supreme Court believe in a 
right to privacy but don't believe it extends to a woman's right to 
choose. Furthermore, Judge Roberts' written record shows that he did 
not believe there was, in his words, a ``so-called right to privacy'' 
in the Constitution. This places a higher burden on him to answer 
questions regarding this constitutional line of cases. Not only did 
Judge Roberts fail to answer any direct questions on this issue, he 
also failed to answer questions about whether he would uphold this line 
of cases as precedents that a generation of Americans have come to rely 
upon. Senator Specter repeatedly asked questions about how his view on 
precedent might inform his decisions regarding the constitutional right 
to privacy. Senator Specter pointed out that Chief Justice Rehnquist 
had ultimately agreed to uphold the Miranda rule, even though he 
disagreed with the original Miranda case, because he believed the 
warnings to criminal subjects had become part of our national culture. 
Judge Roberts refused to agree that the right to certain types of 
privacy were equally embedded in our national culture.
  In fact, Judge Roberts pointedly refused to answer questions about 
whether the right to privacy applies to either the beginning or end of 
life. The only decided case in this area he was willing to talk about 
was in response to a question from Senator Kohl regarding Griswold v. 
Connecticut, the case that says the Constitution's right to privacy 
extends to a married couple's right to use contraception. However, in 
response to a followup question from

[[Page 21287]]

Senator Feinstein, Judge Roberts did not make it clear if he agreed 
with the Supreme Court's opinion in Eisenstadt v. Baird, which upheld 
the right of single people to use contraception, saying only that ``I 
don't have any quarrel with that conclusion.'' I found it hard to tell 
whether he was embracing the right to privacy in this context or just 
restating what the Supreme Court has said.
  So what might this all mean? For me, it is again a question of 
whether Judge Roberts will uphold not just the letter but the spirit of 
the Constitution. Since he has a written record demonstrating his lack 
of support for the so-called right of privacy, I believe Judge Roberts 
owed us more candid responses to questions regarding these issues. 
There are a number of cases coming before the Supreme Court this term 
on these issues, and there will be many more in the future. These cases 
are not just about parental notification or the relationship between 
doctors and their patients, they go to core constitutional protections 
for all members of our society, particularly women.
  I am also concerned that as a young lawyer in the Reagan 
administration, Judge Roberts appears to have joined in its efforts to 
dismantle the civil rights gains of the 1960s and 1970s. For example, 
Judge Roberts wrote vigorous defenses of a proposal to narrow the reach 
of the 1965 Voting Rights Act. That act is now up for reauthorization, 
and I am proud to see that this Congress and the country as a whole 
have come to see how important and successful it has been in giving all 
Americans the ability to participate in our democracy. And we should 
not have a Justice who would wish for anything less.
  In other civil rights cases, Judge Roberts' record suggests that he 
wished to limit the Congress's authority to protect and enforce civil 
rights. Recently released documents show that Judge Roberts, when 
working in the Reagan Justice Department, disagreed with Ted Olsen, 
himself a strong conservative, on this issue, with Roberts arguing that 
Olsen's position wasn't conservative enough. In other documents, he 
challenged arguments by the U.S. Commission on Civil Rights in favor of 
busing and affirmative action. He described a Supreme Court decision 
broadening the rights of individuals to sue States for civil rights 
violations as causing ``damage'' to administration policies, and he 
urged that legislation be drafted to reverse it. In the context of the 
1984 case of Grove City College v. Bell, he wished to limit the use of 
title 9, endorsing a narrow reading of that statute that Congress would 
later overrule in 1988.
  Perhaps the issue I am most bothered about in the civil rights area 
is Judge Roberts' apparent support for court stripping. In the 1980s, 
there were a number of bills introduced in Congress to effectively gut 
Brown v. Board of Education. There were other bills proposed to strip 
courts of the ability to hear cases involving school prayer or 
reproductive rights, essentially stripping away the right of a citizen 
to go before a court and claim that they have been aggrieved.
  Judge Roberts was supportive of these court stripping bills and wrote 
several memos trying to influence the administration to support them as 
well. Although he ultimately appears to have lost the debate in the 
administration on this issue, I believe these bills would have stripped 
the Federal courts of the ability to be the final arbiter of what the 
Constitution means, as well as an assault on the separation of powers.
  Perhaps these memos are especially troubling to me since this 
Congress just passed legislation to strip the courts of the power to 
hear cases involving the negligence of gun dealers and manufacturers. 
This legislation is likely to end up before the Supreme Court in the 
near future and effectively strips ordinary citizens who have been 
injured from being able to take their grievances to court. Again, this 
makes me question Judge Roberts' desire to uphold the spirit of the 
Constitution.
  From what we know about Judge Roberts, I am also concerned about his 
commitment to upholding the constitutional separation of church and 
state. As is true with many areas of constitutional law, he has not 
expressed his personal views on these topics in articles or speeches. 
But the briefs he wrote while in the Solicitor General's Office, if 
indicative of his views, suggest Judge Roberts would move the Court in 
a more conservative direction, allowing far more governmental 
involvement with religion.
  One of the geniuses of our Constitution is its separation of church 
and state. The first amendment has allowed a multitude of religions to 
flourish in our country. Indeed, I find it ironic, as we try to create 
a constitution in Iraq that allows a number of religions to flourish, 
we are not more aware of the importance of our own Constitution in 
making that possible in America. As well-funded religious movements 
attempt to inject religion into Government, the Supreme Court remains 
an important bulwark against going down such a path.
  For example, while at the Solicitor General's Office, Judge Roberts 
authored a brief arguing that school officials and local clergy should 
be allowed to deliver prayers at public school graduation ceremonies. 
The Government brief, written by Roberts, contended that religious 
ceremonies should be permitted in all aspects of ``our public life'' in 
recognition of our Nation's religious heritage. The brief argued for no 
limits on the content of prayers, allowing even overtly proselytizing 
messages. The Supreme Court, in a 5-to-4 opinion written by Justice 
Kennedy, rejected Judge Roberts' argument on behalf of the Government, 
finding that it ``turns conventional first amendment analysis on its 
head.''
  The Supreme Court in Lee v. Weisman, and elsewhere, has stated it 
would not reconsider the longstanding Lemon v. Kurtzman test, which is 
the benchmark for evaluating issues of church and state relations. The 
Lemon test forbids Government officials from acting with a religious 
agenda, endorsing religion, or excessively entangling Government and 
religion. Roberts has advocated that the Lemon test be scrapped and 
replaced by a far more permissive standard, the coercion test. Under 
this view, the Government would violate the first amendment only if it 
literally established a church or coerced religious behavior. Critics 
of the Lemon test believe Government should be able to give money to 
religious schools for religious instruction. They believe it is proper 
for the Government to display profoundly religious symbols in a way 
that clearly and unambiguously endorses religion.
  I worry that a Court with Judge Roberts has the potential to 
dramatically change the law with regard to the establishment clause. 
These changes could lead to many activities which today, wisely, are 
beyond the endorsement of Government and in the province of religion, 
as they should be.
  As a judge, private lawyer, and Government attorney, Judge Roberts 
also has repeatedly argued to narrow the protections of the Americans 
with Disabilities Act. He argued in one case before the Supreme Court 
that a woman who developed severe bilateral carpal tunnel syndrome and 
tendinitis from working on an auto manufacturing assembly line was not 
a person with a disability because she was not sufficiently limited in 
major life activities outside of her job.
  Judge Roberts has long held these views. In 1982, Judge Roberts wrote 
a memo while at the Reagan Justice Department criticizing a trial court 
and appeals court decision that a Federal law required a deaf student 
to have a sign language interpreter to assist her in school. Even the 
conservative Justice Department of that administration disagreed with 
this view and supported the student. This is just one more area where, 
based on what we know, it appears Judge Roberts would roll back 
freedoms and rights this Congress and the American people have long 
fought for.
  Some on the Supreme Court, to judge by their dissenting and 
concurring opinions, would use the bench to impose a dramatic change in 
the meaning of the Constitution on the American people. With one or two 
more votes,

[[Page 21288]]

they could overturn dozens, even hundreds, of important precedents 
going back decades. They could dismantle rights and freedoms Americans 
have fought for and come to rely on: the right to privacy, civil 
rights, the ability of Congress to fight discrimination, to protect 
consumers, workers, and the environment.
  The next Justice appointed will likely sit on the Court for 25, maybe 
even 35 years. He or she will be in a position to decide important 
constitutional questions, not only for our generation, but for our 
children and our grandchildren. The precedents he or she helps to 
create will bind our country for the 21st century and beyond. They will 
be the definitive interpretation of our founding document, not just in 
the Supreme Court, but in all the Federal appellate courts and all the 
district courts in the land. They will affect every American, from the 
earliest days of their childhood through the closing days of their 
life.
  The Supreme Court will cast rulings on every issue of importance to 
the American people. The list is familiar: right to privacy, civil 
rights, freedom of speech and religious liberty, environmental, labor, 
and consumer protections. But these are only the issues we are aware of 
now. The Court will also confront future issues beyond our foresight or 
imagination. From cloning and bioethics to control of intellectual 
property and access to information in a global economy, the Supreme 
Court in the years to come will face challenging issues we cannot yet 
even conceive.
  A lifetime nomination to the Supreme Court presents an awesome power 
and responsibility, one that transcends our time. The Supreme Court has 
been a pillar of America's constitutional democracy, and its 
responsibility for upholding and protecting the Constitution has proven 
a model for emerging constitutional democracies around the world. 
Alexander Hamilton wrote in Federalist No. 78, in defending the 
Constitution's creation of an independent judiciary with lifetime 
appointments to judges:

       This independence of the judges is equally requisite to 
     guard the Constitution and the rights of individuals from the 
     effects of those ill humors, which the arts of designing men, 
     or the influence of particular conjunctures, sometimes 
     disseminate among the people themselves, and which, though 
     they speedily give place to better information, and more 
     deliberate reflection, have a tendency, in the meantime, to 
     occasion dangerous innovations in the government, and serious 
     oppressions of the minor party in the community.

  I intend to vote against the nomination of Judge Roberts to be the 
Chief Justice of the U.S. Supreme Court because I am not convinced he 
will discharge this great responsibility in the way he should. He has 
not convinced me that he will protect minority communities in our 
country, that he will halt dangerous innovations from the executive 
branch, or that he will guard the Constitution and the rights of all 
individuals. Judge Roberts has not convinced me he will uphold not just 
the letter of the Constitution, but the spirit of the Constitution as 
well.
  Mr. President, I yield the floor, and 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. KYL. 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. KYL. Mr. President, I rise to speak on the nomination of Judge 
John Roberts to be the Chief Justice of the United States and I am 
delighted to indicate my support for his confirmation.
  First, I would like to make a couple of preliminary comments about 
things that others have spoken to, one of which is the question of 
whether additional documents from the Solicitor General's Office, the 
Department of Justice, should have been provided as part of a record to 
consider Judge Roberts.
  There were something like 80,000 pages of documents produced. That 
does not count the scores of pages of opinions he had written as a 
judge, speeches, law review articles, notes for courses he taught, and 
a whole variety of other documents he had written--probably more 
documents than had ever been produced for any other nominee in the 
history of the United States.
  I think it is inappropriate for Members to suggest that Judge Roberts 
somehow withheld documents. He withheld nothing. He had no documents in 
his possession that were relevant that were not turned over to the 
committee. In fact, as I recall, his answers to the committee's 
questionnaire were some 80 pages, voluntarily provided by him. He did 
not withhold any documents.
  The only documents the administration did not produce were those 
private memoranda between lawyers in the Solicitor General's Office, of 
whom he was one, and the other officials of the Solicitor General's 
Office, including the Solicitor General himself. Those are private 
attorney/client work product kind of memoranda that should not be 
produced and, of course, were not produced by the administration.
  Judge Roberts is not in possession of those. He did not refuse to 
turn those documents over and it is proper we retain the precedent that 
those private communications between attorney and client not be 
produced.
  There was a great hullabaloo, correctly so, in this Chamber when it 
was discovered that a staffer had broken into the computers of some 
Democratic members of the Judiciary Committee and found private 
communication between members of their staff and the Senators. This was 
rightly condemned as having a chilling effect. If the public is 
becoming aware now of the communication between staff and a Senator, 
that would chill the communication between the staff and Senator. It 
might cause them not to fully and candidly express their views. That is 
correct. That is why that was wrong and why the people responsible were 
punished.
  The same thing applies here. One cannot get into the private 
communications between an attorney and a client any more than one would 
want to in the Solicitor General's Office.
  Secondly, there has been some suggestion that the administration did 
not produce these documents because it had something to hide.
  I ask unanimous consent that a letter from the Department of Justice 
dated September 9, 2005 to Senator Leahy, the ranking Democrat, be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                       U.S. Department of Justice,


                                Office of Legislative Affairs,

                                Washington, DC, September 9, 2005.
     Hon. Patrick J. Leahy,
     U.S. Senate,
     Washington, DC.
       Dear Senator Leahy:  I write in response to your letter 
     dated September 7, 2005, regarding your request that the 
     Department disclose confidential legal memoranda from Judge 
     John Roberts' tenure in the Office of the Solicitor General. 
     As you know, we have been working closely with the Committee 
     on the Judiciary to facilitate the Committee's consideration 
     of Judge Roberts' nomination, and we look forward to 
     continuing to do so. The Department recently produced to the 
     Committee another 1,300 pages of documents relating to Judge 
     Roberts' government service, bringing to approximately 76,000 
     the number of pages the White House and the Department have 
     provided. That number does not include the voluminous 
     production made by Judge Roberts himself.
       With regard to your request, we remain unable to provide 
     memoranda disclosing the internal deliberations of the 
     Solicitor General's office. The privileged nature of those 
     documents is widely recognized, and the Department has 
     traditionally declined to breach that privilege. We have 
     considered carefully the legal arguments you make in support 
     of disclosure. As discussed below, the authorities your 
     letter cites relate to contexts very different from this one 
     and have no relevance here.
       Your letter cites an opinion by Attorney General Robert H. 
     Jackson and argues that this opinion supports disclosure to 
     the Committee of internal Solicitor General documents. We 
     believe this is an inaccurate characterization of that memo. 
     To be sure, Attorney General Jackson stated that in the 
     context of executive nominations, certain otherwise-
     confidential documents would be provided to the Senate. But 
     the documents in question were FBI reports of criminal 
     investigations. The Attorney General's opinion that the 
     Senate should be informed of a nominee's criminal activities 
     does not support your request that we disclose privileged and 
     deliberative attorney communications. In fact, the opinion 
     lists several examples of Attorneys General faithfully 
     discharging the

[[Page 21289]]

     ``unpleasant duty'' of declining to produce to Congress 
     information that should remain confidential. 40 U.S. Op. 
     Atty. Gen. 45, 48.
       Your letter also includes a charge that the Department's 
     unwillingness to breach the traditional confidentiality of 
     internal deliberations raises an inference adverse to Judge 
     Roberts. We disagree with this argument on both legal and 
     factual bases.
       First, it is a matter of well-settled law that no inference 
     of any kind may be drawn from a decision not to release 
     privileged documents. Notably, none of the judicial decisions 
     you cite dealt with privileged documents. With regard to 
     claims of privilege, the law is clear. As one federal court 
     of appeals recently recognized, ``the courts have declined to 
     impose adverse inferences on invocation of the attorney-
     client privilege.'' Knorr-Bresme Systeme Fuer Nutzfahrzeuge 
     GMBH v. Dana Corp., 383 F.3d 1337, 1345 (Fed. Cir. 2004). 
     Another court of appeals explained the justification for this 
     firmly established rule: ``This privilege is designed to 
     encourage persons to seek legal advice, and lawyers to give 
     candid advice, all without adverse effect. If refusal to 
     produce an attorney's opinion letter based on claim of the 
     privilege supported an adverse inference, persons would be 
     discouraged from seeking opinions, or lawyers would be 
     discouraged from giving honest opinions. Such a penalty for 
     invocation of the privilege would have seriously harmful 
     consequences.'' Nabisco, Inc. v. PF Brands, Inc., 191 F.3d 
     208, 226 (1999), overruled on other grounds, Moseley v. V 
     Secret Catalogue, Inc., 537 U.S. 418 (2003); see also Parker 
     v. Prudential Ins. Co., 900 F.2d 772, 775 (4th Cir. 1990).
       Second, the implication that the Department's decision is 
     motivated by an attempt to hide something assumes that the 
     decision-makers have some knowledge of the documents' 
     contents. That assumption is factually wrong. No one involved 
     with the Administration's Supreme Court nomination process 
     has reviewed the documents you request. The decision not to 
     disclose the internal deliberations of the Solicitor 
     General's office is made by the Department as a matter of 
     principled regard for preservation of the Solicitor General's 
     ability to represent the United States effectively.
       In summary, for the reasons stated above and in my letters 
     of August 5, 2005, and August 18, 2005, we cannot agree to 
     your request to produce the internal, privileged 
     communications of the Office of the Solicitor General. We 
     nonetheless remain committed to providing the Committee full 
     and prompt assistance in its consideration of Judge Roberts' 
     nomination.
           Sincerely,
                                             William E. Moschella,
                                       Assistant Attorney General.

  Mr. KYL. I will read part of one paragraph:

       No one involved with the Administration's Supreme Court 
     nomination process has reviewed the documents you request. 
     The decision not to disclose the internal deliberations of 
     the Solicitor General's office is made by the Department as a 
     matter of principled regard for preservation of the Solicitor 
     General's ability to represent the United States effectively.

  So for anybody to suggest that somebody had something to hide is to 
ignore the facts. This letter was widely distributed. Every Senator 
should know that the administration had not even looked at the 
material, so they obviously could not be hiding something.
  There has been some reference--I would almost even refer to it as 
guilt by association--that John Roberts worked in the Reagan 
administration. I remind my colleagues that this is the Reagan 
administration which was reelected with, as I recall, 59 percent of the 
vote and 49 of our 50 States. I would be pleased to debate any of my 
colleagues in this Chamber about the record of the Reagan 
administration, and I can say in advance that I will take the 
affirmative side of that debate that it should be defended. John 
Roberts has nothing to apologize for because he worked for President 
Ronald Reagan.
  I want to express in a more formal way my support for Judge Roberts. 
So much has already been said about his intellect, his character, his 
qualifications, his experience, his eloquently expressed commitment to 
the rule of law, and I certainly agree with all of those who have been 
impressed with those qualities. I believe these are the qualities that 
should govern this body's advise and consent role. In other words, that 
intelligence, character, experience, and commitment to the rule of law 
are the qualities we should be looking for in a nomination for the U.S. 
Supreme Court and other courts as well. We should not be looking to how 
this particular nominee might rule in a future case. We certainly 
should not play a bargaining process with the nominee, in effect 
saying, if you will tell me how you will rule on these future cases and 
if I agree with that, then I will support your confirmation. That 
would, of course, undermine the impartiality and the independence of 
our courts, and it is improper.
  I noted recently that fellow Arizonian Justice Sandra Day O'Connor 
spoke in Arizona and she said judicial independence is hard to create 
and easier than most people imagine to destroy.
  Well, I think she is exactly right on that. Judge Roberts made a 
similar comment during his opening statement. He said:

       President Ronald Reagan used to speak of the Soviet 
     constitution, and he noted that it purported to grant 
     wonderful rights of all sorts to people. But those rights 
     were empty promises, because that system did not have an 
     independent judiciary to uphold the rule of law and enforce 
     those rights. We do, because of the wisdom of our Founders 
     and the sacrifices of our heroes over the generations to make 
     their vision a reality.

  In other words, that rule of law is what lies at the foundation of 
the American system of ordered liberty. Judges owe their loyalty to the 
law, not to political parties, not to interest groups, and they must 
have the courage to make tough decisions, however unpopular. Consider, 
for example, how Judge Roberts answered a question of whether he would 
stand up for the little guy. He said:

       If the Constitution says that the little guy should win, 
     the little guy is going to win. . . . But if the Constitution 
     says that the big guy should win, well, then the big guy is 
     going to win, because my obligation is to the Constitution.

  That is the essence of the rule of law as enforced by independent 
judges, doing what the Constitution and the law demand, regardless of 
the political or economic power of the parties. Indeed, that is the 
best way to ensure that the voice of the little guys will, in fact, be 
heard.
  Judge Roberts often spoke of the rule of law during his hearing. 
Considering this additional excerpt, he explained that he used to 
represent the U.S. Government before the Supreme Court when he was the 
Deputy Solicitor General, and then he stated:

       But it was after I left the Department and began arguing 
     cases against the United States that I fully appreciated the 
     importance of the Supreme Court and our constitutional 
     system.
       Here was the United States, the most powerful entity in the 
     world, aligned against my client. And yet, all I had to do 
     was convince the Court that I was right on the law and the 
     government was wrong and all that power and might would 
     recede in deference to the rule of law. That is a remarkable 
     thing.
       It is what we mean when we say that we are a government of 
     laws and not of men. It is that rule of law that protects the 
     rights and liberties of all Americans. It is the envy of the 
     world--because without the rule of law, rights are 
     meaningless.

  I was struck by this comment when I heard Judge Roberts make it, 
because it reminded me of my earlier career as a private attorney 
practicing before the State and Federal courts, including the Supreme 
Court. Parties, be they corporations or civil plaintiffs or governments 
or criminals, all put their faith in judges to adhere to legal 
principles and make decisions based on the rule of law, not based on 
what they personally believe to be right. Parties have disputes that 
require a neutral arbiter who is beholden to nobody, and who will not 
be dissuaded from doing his duty, no matter what the cost. As Judge 
Roberts later emphasized, ``This is the oath.'' This is what the 
Constitution and an independent judiciary demand.
  Of course, it is equally important to understand what judicial 
independence is not. Judicial independence does not mean the judge has 
the right to disregard the Constitution or the statutes passed by 
legislatures. Judicial independence does not mean that because of a 
lifetime appointment, the judicial role is unconstrained by precedent 
and by principle, and judicial independence is not an invitation to 
remake the Constitution or the laws if it does not lead to the result 
the judge prefers. Nor is judicial independence an invitation to the 
judge to legislate and resolve questions that properly belong to the 
democratic branches of our Government, no matter how wise a particular 
judge might be.

[[Page 21290]]

  Judicial independence gives judges tremendous freedom, but it is a 
freedom to do their duty to the law, not a freedom from or independence 
from the constraints of the law. When judges confuse the freedom to 
follow the law with the freedom to depart from it, we see the unhinged 
judicial activism that has infuriated so many Americans throughout my 
lifetime.
  Consider what Justice Antonin Scalia wrote while dissenting from one 
of the Ten Commandments cases the Supreme Court decided this past 
spring, McCreary v. ACLU. He said:

       What distinguishes the rule of law from the dictatorship of 
     a shifting Supreme Court majority is the absolutely 
     indispensable requirement that judicial opinions be grounded 
     in consistently applied principle. That is what prevents 
     judges from ruling now this way, now that, thumbs up or 
     thumbs down, as their personal preferences dictate.

  I focus on the need for judicial independence and respect for the 
rule of law because I am very concerned about threats to judicial 
independence that have infected the confirmation process. During Judge 
Roberts' hearings, we saw efforts to demand political promises in 
exchange for confirmation support. Specifically, some Senators demanded 
to know how Judge Roberts will vote on issues that will come before the 
Supreme Court. In doing this, Senators risk turning the confirmation 
process into little more than a political bargaining session in which 
the Senators refuse to consent to a fully qualified nominee unless the 
nominee promises under oath to vote a certain way in future cases.
  Yet during this confirmation process, some Senators said they would 
not support Judge Roberts unless they knew where he stood on important 
issues of the day. In fact, the only reason they asked the question is 
because they thought the issue might be before the Court; otherwise, 
there would be no reason to find out how he might rule.
  When the Judiciary Committee voted last week, more than one Senator 
explained that while Judge Roberts was a brilliant man who would be a 
thoughtful Chief Justice, they were not going to support him because 
they could not learn enough about his views on issues that they thought 
would come before the Court.
  The Senate must reject this improper politicization of our judiciary. 
A judicial nominations process that required nominees to make a series 
of specific commitments in order to navigate the maze of Senate 
confirmation would bring into disrepute the entire enterprise of an 
independent judiciary.
  In July, I asked the Senate Republican Policy Committee, which I 
chair, to examine the canons of judicial ethics and the views of the 
sitting Supreme Court Justices on this matter.
  I ask unanimous consent that the resulting report entitled ``The 
Proper Scope of Questioning for Judicial Nominees'' be printed after my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. KYL. Judge Roberts confronted this challenge repeatedly during 
the hearing. Senators would ask him, sometimes directly, sometimes 
obliquely, how he felt about certain issues. To his credit, he resisted 
answering those questions that could have jeopardized his judicial 
independence. As he explained, the independence and integrity of the 
Supreme Court requires that nominees before the committee for a 
position on that Court give no forecast, predictions, nor give hints 
about how they might rule in cases that might come before the Court.
  Judge Roberts' formulation is exactly right. If judges were forced to 
make promises to Senators in order to be confirmed, constitutional law 
would become a mere extension of politics. If we allow this radical 
notion to take hold, and if Senators can demand such promises, then 
what would become of litigants' expectations of impartiality and 
fairness in the courtroom? The genius of our system of justice is that 
people are willing to put their rights, their property, and even their 
lives before a judge, to be dealt with as he or she sees fit. People do 
this because of the expectation that they will be treated fairly by a 
judge, with no preconceived notion of how their case should be decided.
  That is a pretty remarkable thing, to have that much confidence in 
the system that we would literally place our lives, our rights, our 
property in the hands of one person. Yet we do that every day all over 
this country because we have confidence in the system. And that system 
says the judge will decide your case free of any preconceived notion, 
so we as Senators should not be seeking to find out in advance how that 
judge might rule.
  Let me be clear. I share my colleagues' curiosity about how Judge 
Roberts and the next nominee will rule on the hot-button issues of the 
day. For example, I hope he will join most Americans in recognizing 
that partial-birth abortion does not deserve constitutional protection. 
Similarly, it is my personal wish that the Supreme Court will allow 
States to pass laws requiring minor girls to gain the consent of--or at 
least to notify--their parents before getting an abortion. We remain a 
Nation at war, and I believe it is crucial to our national security 
that the Supreme Court support commonsense rules governing the war on 
terror without requiring that foreign terrorists be treated the same as 
American criminals with the same constitutional rights as citizens. I 
would like him to resist the siren songs of those judges who would 
craft a constitutional right to same sex marriage. I would strongly 
prefer he uphold legislative efforts to guarantee that crime victims 
have a substantial role in the prosecution and sentencing of 
perpetrators. And I hope he will help clean up the Supreme Court's 
habeas corpus jurisprudence so we do not have to wait 20 years for 
justice to be done.
  On these and many other matters I have a deep interest and strong 
opinions about what the Supreme Court ought to do. But I did not ask 
John Roberts for commitments on these matters. Of course, I am curious 
but I didn't ask him how he would rule because, had I done so, I would 
have been encouraging him to violate his judicial ethics as a sitting 
judge as well as to jeopardize the independence of the Supreme Court 
itself.
  Should a nominee fully answer questions? Absolutely. But should a 
nominee engage in political bargaining by prejudging an issue or a 
case? Absolutely not. Nobody disputes that John Roberts will be 
confirmed later this week. I am encouraged by the strong bipartisan 
support for John Roberts, and I am cautiously optimistic that the size 
of this vote represents a repudiation of the politicization of the 
judiciary, but I am concerned that others will see the number of votes 
against Judge Roberts as justification for the proposition that one 
should not support a nominee who refuses to indicate how he will rule 
in future cases.
  This vote should represent a fresh start. The President sent us a 
brilliant and distinguished nominee who had the character and 
commitment to the rule of law to deserve the Senate's support. The 
nominee is a Republican who clerked for one of the great conservative 
judges of the 20th century. He served in the executive branch for 
Republican Presidents. He advocated conservative policies on those 
Presidents' behalves. Yet that political background will not be a bar 
to Judge Roberts' confirmation. Equally important, Judge Roberts' 
refusal throughout his hearings to make promises to Senators in 
exchange for their support is being affirmed as an appropriate 
adherence to judicial ethics. The courage that John Roberts has shown 
in upholding his ethical standards should not be punished.
  Justice O'Connor stated earlier this month:

       We must be ever vigilant against those who would strong-arm 
     the judiciary into adopting their preferred policies.

  Once again, my fellow Arizonan was right. The Senate will exercise 
that vigilance later this week by confirming Judge Roberts and by 
rejecting the politicization of the confirmation process. In the coming 
weeks, the Senate will consider the nominee to replace Justice 
O'Connor. It is my hope that Senators will exercise that same 
vigilance. The rule of law demands it.

[[Page 21291]]



                               Exhibit 1

         The Proper Scope of Questioning for Judicial Nominees


                              Introduction

       Some Senate Democrats are demanding that Supreme Court 
     nominee John G. Roberts announce his positions on 
     constitutional questions that the Supreme Court will be 
     deciding after he is confirmed. [FN1: For example, Senator 
     Charles Schumer has said, ``Every question is a legitimate 
     question, period.'' New York Post, July 6, 2005. Senator 
     Schumer has also said that he will ask how Mr. Roberts will 
     rule on issues that the Supreme Court certainly will 
     consider, including free speech, religious liberty, campaign 
     finance, environmental law, and other political and legal 
     questions. Foxnews.com, July 19, 2005. Likewise, Senator Ted 
     Kennedy has demanded to know ``whose side'' Judge Roberts 
     will favor, and ``where he stands'' on legal questions before 
     the Supreme Court. Congressional Record, July 20, 2005. Just 
     yesterday, Senator Evan Bayh picked up this theme: ``You 
     wouldn't run for the Senate or for Governor or for anything 
     else without answering people's questions about what you 
     believe. And I think the Supreme Court is no different.'' CNN 
     ``Inside Politics,'' July 25, 2005.] Although these Senators 
     are quick to say that they do not seek pre-commitments on 
     particular cases, the ethical rules governing judicial 
     confirmations are not limited to preventing prejudgment of 
     particular cases. As nominees in the past have recognized, it 
     is inappropriate for any nominee to give any signal as to how 
     he or she might rule on any issue that could come before the 
     court, even if the issue is not presented in a currently 
     pending case.
       If these novel ``prejudgment demands'' were tolerated, the 
     judicial confirmation process would be radically transformed. 
     While questions about judicial philosophy in general have 
     always been appropriate, any effort to learn how particular 
     constitutional questions will be resolved has always been out 
     of bounds. It was for this reason that all sitting Supreme 
     Court Justices declined to answer some questions on 
     constitutional issues or past cases of the Supreme Court. For 
     example:
       Justice Sandra Day O'Connor expressly refused to answer 
     questions about past cases that she believed would later come 
     before the Supreme Court. [FN2: Confirmation Hearing, July 
     1994, at p. 199.]
       Justice Ruth Bader Ginsburg testified during her hearing: 
     ``I must avoid giving any forecast or hint about how I might 
     decide a question I have not yet addressed.'' [FN3: 
     Confirmation Hearing, July 1993, at p. 265.]
       Then-Chairman Joseph Biden advised Justice Ginsburg during 
     her hearing: ``You not only have a right to choose what you 
     will answer and not answer, but in my view you should not 
     answer a question of what your view will be on an issue that 
     clearly is going to come before the Court in 50 different 
     forms . . . over your tenure on the Court.'' [FN4: 
     Confirmation Hearing, July 1993, at p. 275.]
       There is a reason for this longstanding precedent: to 
     demand that a judicial nominee ``prejudge'' cases and issues 
     threatens the independence of the federal judiciary and 
     jeopardizes Americans' expectation that the nation's judges 
     will be fair and impartial. That is why the canons of 
     judicial ethics prohibit any judicial nominee from prejudging 
     any case or issue. [FN5: ABA Model Code of Judicial Conduct, 
     Canon 5A(3)(d)(ii) (2003).] Judges should only reach 
     conclusions after listening to all the evidence and arguments 
     in every case. Americans expect judges to keep an open mind 
     when they walk into the courtroom--not to make decisions in 
     the abstract and then commit to one side before the case 
     begins. No judge can be fair and impartial if burdened by 
     political commitments that Senators try to extract during 
     confirmation hearings. Otherwise, judicial nominees will be 
     forced to sacrifice ethics and impartiality to be confirmed.
       Senators naturally want to know how future cases will be 
     decided, but curiosity must yield to the greater value--the 
     preservation of an independent judiciary and the guarantee of 
     equal justice. The following materials provide detailed 
     support for why the traditional norms should be upheld, and 
     why the Senate would tread into very murky waters if it were 
     to upset these settled practices.


                      The Canon of Judicial Ethics

       ``[A] judge or a candidate for election or appointment to 
     judicial office shall not . . . with respect to cases, 
     controversies, or issues that are likely to come before the 
     court, make pledges, promises or commitments that are 
     inconsistent with the impartial performance of the 
     adjudicative duties of the office. . . .''--ABA Model Code of 
     Judicial Conduct, Canon 5A(3)(d)(ii) (2003).


  All Nine Supreme Court Justices Disagree With Requiring Nominees to 
                       Prejudge Issues and Cases

     Justice Ruth Bader Ginsburg
       ``A judge sworn to decide impartially can offer no 
     forecasts, no hints, for that would show not only disregard 
     for the specifics of the particular case, it would display 
     disdain for the entire judicial process. Similarly, because 
     you are considering my capacity for independent judging, my 
     personal views on how I would vote on a publicly debated 
     issue, were I in your shoes, were I a legislator, are not 
     what you will be closely examining.''--Confirmation Hearing, 
     July 1993, at p. 52.
       ``Because I am and hope to continue to be a judge, it would 
     be wrong for me to say or to preview in this legislative 
     chamber how I would cast my vote on questions the Supreme 
     Court may be called upon to decide. Were I to rehearse here 
     what I would say and how I would reason on such questions, I 
     would act injudiciously.''--Confirmation Hearing, July 1993, 
     at p. 52. Justice Ginsburg was a judge on the D.C. Circuit 
     when nominated to the Supreme Court.
       ``I sense that I am in the position of a skier at the top 
     of that hill, because you are asking me how I would have 
     voted in Rust v. Sullivan (1991). Another member of this 
     committee would like to know how I might vote in that case or 
     another one. I have resisted descending that slope, because 
     once you ask me about this case, then you will ask me about 
     another case that is over and done, and another case. . . . 
     If I address the question here, if I tell this legislative 
     chamber what my vote will be, then my position as a judge 
     could be compromised. And that is the extreme discomfort I am 
     feeling at the moment.''--Confirmation Hearing, July 1993, at 
     p. 188.
       ``When a judicial candidate promises to rule a certain way 
     on an issue that may later reach the courts, the potential 
     for due process violations is grave and manifest.''--
     Republican Party of Minnesota v. White, 536 U.S. 765,816 
     (2002) (Ginsburg, J., dissenting).
       ``[H]ow a prospective nominee for the bench would resolve 
     particular contentious issues would certainly be `of 
     interest' to the President and the Senate in the exercise of 
     their respective nomination and confirmation powers. . . . 
     But in accord with a longstanding norm, every member of this 
     Court declined to furnish such information to the Senate, and 
     presumably to the President as well.''--Republican Party of 
     Minnesota v. White. 536 U.S. 765, 807 n.1 (2002) (Ginsburg, 
     J., dissenting).
       ``This judicial obligation to avoid prejudgment corresponds 
     to the litigants'' right, protected by the Due Process Clause 
     of the Fourteenth Amendment, to an 'impartial and 
     disinterested tribunal in all civil and criminal cases. ``,--
     Republican Party of Minnesota v. White, 536 U.S. 765, 813 
     (2002) (Ginsburg, J., dissenting) (internal citation 
     omitted).
     Justice Sandra Day O'Connor
       ``I feel that is improper for me to endorse or criticize a 
     decision which may well come back before the Court in one 
     form or another and indeed appears to be coming back with 
     some regularity in a variety of contexts. I do not think we 
     have seen the end of that issue or that holding and that is 
     the concern I have about expressing an endorsement or 
     criticism of that holding.''--Confirmation Hearing, September 
     1981, at p. 199.
     Justice Stephen Breyer
       ``I do not want to predict or to commit myself on an open 
     issue that I feel is going to come up in the Court. . . . 
     There are two real reasons. The first real reason is how 
     often it is when we express ourselves casually or express 
     ourselves without thorough briefing and thorough thought 
     about a matter that I or some other judge might make a 
     mistake. . . . The other reason, which is equally important, 
     is . . . it is so important that the clients and the lawyers 
     understand the judges are really open-minded.''--Confirmation 
     Hearing, July 1994, at p. 114.
       ``The questions that you are putting to me are matters of 
     how that basic right applies, where it applies, under what 
     circumstances. And I do not think I should go into those for 
     the reason that those are likely to be the subject of 
     litigation in front of the Court.'' Confirmation Hearing, 
     July 1994, at p. 138 (regarding the right to an abortion).
       ``Until [an issue] comes up, I don't really think it 
     through with the depth that it would require. . . . So often, 
     when you decide a matter for real, in a court or elsewhere, 
     it turns out to be very different after you've become 
     informed and think it through for real than what you would 
     have said at a cocktail party answering a question.''--
     Remarks at Harvard Law School, December 10, 1999, quoted in 
     Arthur D. Hellman, Getting it Right: Panel Error and the En 
     Banc Process in the Ninth Circuit Court of Appeals. 34 U. C. 
     Davis L. Rev. 425, 462 (2000).
     Justice John Paul Stevens
       ``A candidate for judicial offices who goes beyond the 
     expression of `general observations about the law . . . in 
     order to obtain favorable consideration' of his candidacy 
     demonstrates either a lack of impartiality or a lack of 
     understanding of the importance of maintaining public 
     confidence in the impartiality of the judiciary.''--
     Republican Party of Minnesota v. White, 536 U.S. 765,800 
     (2002) (Stevens, J., dissenting) (internal citation omitted).
     Justice David Souter
       ``[C]an you imagine the pressure that would be on a judge 
     who had stated an opinion, or seemed to have given a 
     commitment in these circumstances to the Senate of the United 
     States, and for all practical purposes, to the American 
     people?''--Confirmation Hearing, September 1990, at p. 194.

[[Page 21292]]


     Justice Anthony Kennedy
       ``[The] reason for our not answering detailed questions 
     with respect to our views on specific cases, or specific 
     constitutional issues [is that] the public expects that the 
     judge will keep an open mind, and that he is confirmed by the 
     Senate because of his temperament and his character, and not 
     because he has taken particular positions on the issues.''--
     Confirmation Hearing, January 1987, at p. 287.
     Chief Justice Rehnquist
       ``For [a judicial nominee] to express any but the most 
     general observation about the law would suggest that, in 
     order to obtain favorable consideration of his nomination, he 
     deliberately was announcing in advance, without the benefit 
     of judicial oath, briefs, or argument, how he would decide a 
     particular question that might come before him as a 
     judge.''--Laird v. Tatum, 409 U.S. 824, 836 n.5 (1972) (Mem. 
     on Motion for Recusal).
     Justice Clarence Thomas
       ``I think it's inappropriate for any judge who is worth his 
     or her salt to prejudge any issue or to sit on a case in 
     which he or she has such strong views that he or she cannot 
     be impartial. And to think that as a judge that you are 
     infallible I think totally undermines the process. You have 
     to sit, you have to listen, you have to hear the arguments, 
     you have to allow the adversarial process to work. You have 
     to be open and you have to be willing to work through the 
     problem. I don't sit on any issues, on any cases that I have 
     prejudged. I think that it would totally undermine and 
     compromise my capacity as a judge.''--Confirmation Hearing, 
     September 1991, at p. 173.
     Justice Antonin Scalia
       ``I think it is quite a thing to be arguing to somebody who 
     you know has made a representation in the course of his 
     confirmation hearings, and that is, by way of condition to 
     his being confirmed, that he will do this or do that. I think 
     I would be in a very bad position to adjudicate the case 
     without being accused of having a less than impartial view of 
     the matter.''--Confirmation Hearing, August 1986, at p. 37.


             Additional Opposition to Prejudgment of Issues

     Justice Thurgood Marshall
       ``I do not think you want me to be in a position of giving 
     you a statement on the Fifth Amendment and then, if I am 
     continued and sit on the Court, when a Fifth Amendment case 
     comes up, I will have to disqualify myself.''--Confirmation 
     Hearing, August 1967.
     Senator Joseph Biden
       In 1989, then-Chairman Joseph Biden crafted the question 
     that is now asked of all nominees to the federal bench: ``Has 
     anyone involved in the process of selecting you as a judicial 
     nominee discussed with you any specific case, legal issue or 
     question in a manner that could reasonably be interpreted as 
     asking how you would rule on such case, issue or question? If 
     so, please explain fully.''
       ``I believe my duty obliges me to learn how nominees will 
     decide, not what they will decide, but how they will 
     decide.''--Confirmation Hearing for Ruth Bader Ginsberg, July 
     1993, at p. 114.
       ``You not only have a right to choose what you will answer 
     and not answer, but in my view you should not answer a 
     question of what your view will be on an issue that clearly 
     is going to come before the Court in 50 different forms . . . 
     over your tenure on the Court.''--Confirmation Hearing for 
     Ruth Bader Ginsberg, July 1993, at p. 275-276.
     Democrat-Controlled Senate Judiciary Committee Report on Abe 
         Fortas Nomination
       ``Although recognizing the constitutional dilemma which 
     appears to exist when the Senate is asked to advise and 
     consent on a judicial nominee without examining him on legal 
     questions, the Committee is of the view that Justice Fortas 
     wisely and correctly declined to answer questions in this 
     area. To require a Justice to state his views on legal 
     questions or to discuss his past decisions before the 
     Committee would threaten the independence of the judiciary 
     and the integrity of the judicial system itself. It would 
     also impinge on the constitutional doctrine of separation of 
     powers among the three branches of Government as required by 
     the Constitution.''--Committee Report on Nomination of Abe 
     Fortas to be Chief Justice of the United States, September 
     20, 1968.


                               Conclusion

       Every sitting Supreme Court Justice disagrees with the 
     approach urged by some Senate Democrats--for good reason. 
     Nothing less than judicial independence and the preservation 
     of a proper separation of powers is at stake. The Senate 
     should not allow short-term curiosity about particular issues 
     to override the settled procedures that have governed this 
     process for so long.

  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. COLEMAN. I am pleased to speak on the matter of the nomination of 
John Roberts to be Chief Justice of the Supreme Court of the United 
States. The authors of our Constitution were at the same time profound 
idealists about the human spirit and cold-blooded realists about the 
evil people are capable of. They had witnessed how even heroism can 
turn into tyranny, so they wrote a document that struck a balance 
between power and accountability that has remained level through a 
Civil War, World War, depressions, booms, and many social upheavals.
  We are part that have process in this debate. Our job is not to add 
value to the Constitution but to conserve as much of its value as we 
can. We are a government of laws and not men and women. But men and 
women make and interpret and apply those rules. The voters choose us. 
The President that the people chose makes the choice of Justices of the 
Supreme Court, with our advice and consent. It is a solemn and 
momentous transition in our history when we put a new Justice on the 
Court to sit for the next generation.
  First of all, I commend the President for the quality of his 
appointment. John Roberts is a person of brilliant mental capacity. We 
all know Lord Acton's statement about how absolute power corrupts 
absolutely. But in this case, I also want us to invoke Barbara 
Tuchman's reply that weakness, which must depend on compromises and 
deals to maintain its position, corrupts even more.
  Judge Roberts is as mentally strong as a person can be. He has the 
kind of mental strength that does not rely on intimidation, 
manipulation or style points to carry his argument. It was wonderful to 
watch his mind work during the nominee confirmation process. Whether 
you are for or against this nomination, the strength of his intellect 
has never been in doubt.
  The President's choice is also a person of integrity. The word 
``integrity'' has the same root as the mathematical term ``integer,'' 
which is a whole number. Integrity means that all the pieces fit 
together to make a consistent whole. Judge Roberts has been in many 
situations which sorely tested his integrity, and he has held together 
and held consistent in a remarkable way. Through his writings and 
testimony, Judge Roberts has demonstrated he knows his historical 
place. Judge Roberts is not a person driven by ego or ambition. He 
knows we all have a part to play in this constitutional design and to 
step out of the role would be to step into the place of others. 
Respectful humility in the wielding of power is an indispensable 
attribute that Judge Roberts has shown.
  In his own words, Judge Roberts testified before the Senate Judiciary 
Committee and said:

       My obligation is to the Constitution--that's the Oath.

  My colleague from Arizona told about that wonderful exchange between 
Judge Roberts and members of the committee when he was asked about the 
big guy and the little guy, how he would decide a case.
  There are some in this body who, with past nominees, have looked at 
the status of the person before the Court as somehow that should be 
determinative of whether they win. So if they were the little guy or 
they were a woman or this or that, that somehow that was more 
important; if they didn't win, that somehow that was a negative to the 
person who made the decision.
  Judge Roberts responded: If the Constitution says that the little guy 
should win, the little guy is going to win. But if the Constitution 
dictates that the big guy wins, then the big guy will win.
  Little guys need the Constitution because in other places and at 
other points in times in other countries it is your status that 
determines whether you win. Typically, it is a person with wealth and 
power that would use that status to win. So the little guy needs the 
Constitution. John Roberts is respectful of the Constitution.
  Judge Roberts believes in a judicial philosophy that defers to 
legislative judgments and refuses to insert judges into disputes in 
which the Constitution gives the judiciary no role.
  Judge Roberts told us:

       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.

  Judge Roberts' approach to the law is one of restraint. He is not an 
ideologue,

[[Page 21293]]

intent on imposing his views on the law. Those who know him say Judge 
Roberts possesses an ideal judicial temperament. He has a balanced view 
of the power of the Federal Government that is respectful of Supreme 
Court precedent.
  During his hearings, Judge Roberts described his understanding of the 
Supreme Court's commerce clause jurisprudence and explained that he had 
no agenda to overrule established cases. Judge Roberts also 
demonstrated his respect for the authority of Congress to make factual 
findings that form the basis for legislation under the commerce clause.
  As Judge Roberts explained at the hearings:

       One of the warning flags that suggest to you as a judge 
     that you may be beginning to transgress into the area of 
     making a law is when you are in a position of reevaluating 
     legislative findings, because that does not look like a 
     judicial function. It is not an application of analysis under 
     the Constitution. It is just another look at findings.

  Both in private practice and on the bench, Judge Roberts has 
established, beyond any doubt, that he is a fair judge within the 
judicial mainstream. Judge Roberts' judicial decisions reflect a fair 
approach and a scrupulous unwillingness to impose his own policy 
preferences on law. I commend Chairman Specter and the members of his 
committee for the way they have brought this nomination to the floor. 
We are a political people, and there were some politics at play. In 
past times, a nominee of Judge Roberts' intellect and integrity and 
caliber would receive 96, 97, 98 votes in confirmation. I believe 
Justice Ginsburg received 86 votes. I also believe Justice Scalia 
received 98 votes. I suspect that will not happen on Thursday. Special 
interests and single interests have driven a wedge into this Senate 
body, and that is lamentable. At times, I wondered if committee members 
were using the hearing to assess Judge Roberts or to lobby him about 
future cases. Standards that some Democratic members of the committee 
have applied to Judge Roberts were the opposite of those applied when 
appointees of their party's President sent up Justices Ginsburg and 
Breyer.
  Earlier, they counseled judges not to answer specific questions, and 
now they fault Judge Roberts for being insufficiently specific. But I 
would say, on a whole, the hearing was fair and dignified. I hope we 
are making progress toward a consistent standard to apply to judicial 
nominees, Supreme Court nominees.
  A Supreme Court confirmation is not a rehashing of the last 
Presidential campaign or a preview of the next one. The people chose a 
President, and that person has a right to appoint a judge who they 
believe is consistent with their view of the role and the direction the 
Court should take. This is a conservative approach. They chose us in 
the Senate not to substitute our judgment for the President's, but to 
provide a check against a Justice who was deficient in some clear way. 
That is why I have stated that whether a Republican or Democrat is 
President, my standard will be: Is the person qualified? Do they have 
the requisite integrity? Do they have the temperament and commitment to 
be stewards of the rule of law?
  Judge Roberts meets that test with flying colors. He not only will be 
a strong Chief Justice, he will be a role model for the rest of the 
Nation. His predecessor and mentor, William Rehnquist, was a 
midwesterner, as is Judge Roberts. Those of us who call the Midwest 
home have the utmost respect for those who have the humility to keep 
their brilliance a secret. My own remarkable State of Minnesota has 
been compared to a dog that is too shy to wag its own tail. Our license 
plates say: The Land Of 10,000 Lakes. I actually think we have closer 
to 15,000, but humility, I think, is a Minnesota way. It certainly is 
the style of Judge Roberts. We admire Judge Roberts for his grace and 
humility as he takes on the awesome power of his position. We admire 
his commitment to equal justice under the law. These are turbulent 
times in America. The people need a confidence builder. The President 
has given them one with this nomination, and we can and should add to 
it with a strong bipartisan vote to confirm Judge Roberts to be Chief 
Justice of the Supreme Court. On Thursday, the Senate will exercise its 
solemn advice-and-consent responsibility on the nomination of John 
Roberts to be Chief Justice of the Supreme Court of the United States. 
I will vote to give my consent to the Roberts nomination. I will vote 
in favor of John Roberts.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Martinez). The Senator from Maine.
  The PRESIDING OFFICER. The Senator from Maine is recognized.
  Ms. COLLINS. Mr. President, I rise today to speak in favor of the 
nomination of John Roberts to serve as Chief Justice of the United 
States.
  The Chief Justice is commonly referred to as the ``first among 
equals,'' a title reflecting the significance of this position in terms 
of shaping the Court, and serving as the head of the Judicial branch. 
Assuming he is confirmed, Judge Roberts will be only the 17th person in 
our Nation's history to serve as Chief Justice.
  In confirming a Chief Justice, we entrust this individual with 
considerable power--the power to interpret the Constitution, to say 
what the law is, to guard one branch against the encroachments of 
another, and to defend our most sacred rights and liberties. Along with 
these powers, this individual also bears a responsibility to act with 
an understanding of the limited role of judicial review and the need 
for judicial restraint.
  The cases that come before the Supreme Court each year present legal 
issues of tremendous complexity and import. Given the difficulty of the 
questions presented, it is not surprising that most good Justices do 
not know how they will rule before a case comes before them. Their 
decisions are rendered only after extensive briefing, argument, 
research, and discussion with the other Justices. Indeed, when any 
person goes before the Court, he or she has a right to expect that the 
Justices will approach the case with an open mind and a willingness to 
fully consider all of the arguments presented.
  Some of our colleagues have called on nominees to announce beforehand 
how they would rule in cases that have yet to come before them. Yet, a 
good judge will not know, and would not try to say--even hazarding a 
guess could raise questions about judicial impartiality and integrity.
  Similarly, our ability to question nominees about future cases is 
limited by the difficulty of predicting the issues that will come 
before the Court over the next several decades. Twenty years ago, few 
would have expected that the Court would hear issues related to a 
presidential election challenge, would try to make sense of copyright 
laws in an electronic age, or would confront questions on how to 
protect our cherished civil liberties in light of a new domestic 
terrorism threat.
  And even if nominees were to indicate how they would rule, the 
reality is that we are not in a position to hold them to their word. 
Appointments to the Court are, of course, lifetime appointments.
  While we can not know with certainty how a nominee will rule on the 
many questions that may come before him or her, we can and must strive 
to take the measure of the person: carefully assessing the excellence 
of the nominee's qualifications, integrity, and judicial temperament, 
as well as the principles that will guide the nominee's decisionmaking.
  Does the nominee have the intellect and learning necessary to be a 
superb jurist? Is he or she open-minded and pragmatic? Does he or she 
have a sense of restraint and humility concerning the role of a judge? 
Does the nominee take seriously the role of our courts in protecting 
our basic liberties and rights from the passions and fads of the 
moment? And for Judge Roberts, the answer to these questions is yes.
  The excellence of his legal qualifications is beyond doubt. He is a 
superb attorney and one of the finest legal minds of his generation. 
Prior to his appointment to the D.C. Circuit in 2003, Judge Roberts had 
argued an impressive 39 cases before the Supreme Court,

[[Page 21294]]

and more often than not, his arguments were accepted by a majority of 
the Court. The American Bar Association Standing Committee on the 
Judiciary has reviewed his qualifications for his nominations to the 
Court of Appeals and the United States Supreme Court on three separate 
occasions. In every instance, it has given Judge Roberts its highest 
possible rating.
  Earlier this month, I met with Judge Roberts to discuss his judicial 
philosophy, his views on the importance of precedent, and the role of 
the judiciary. I was extremely impressed by his answers to my 
questions, which reassured me that he will be a justice dedicated to 
the rule of law--not someone who bends the rules to suit personal 
preferences or to advance a particular agenda.
  At our meeting, I asked Judge Roberts about his views regarding the 
importance of stare decisis--the principle that courts should adhere to 
the law set forth in previously decided cases. I asked Judge Roberts 
whether a judge should follow precedent, even if he believed that the 
original case was incorrectly decided in the first instance. He told me 
that overruling a case is a ``jolt to the legal system'' and said that 
it is not enough that a judge may think the prior case was wrongly 
decided. He emphasized the importance that adherence to precedent plays 
in promoting evenhandedness, fairness, stability, and predictability in 
the law.
  Following my personal meeting with Judge Roberts, I felt confident 
that Judge Roberts was eminently qualified to serve as Chief Justice. 
The Judiciary Committee hearings have only further confirmed my view 
that he is the right person for this weighty position.
  Without question, these hearings demonstrated Judge Roberts' keen 
legal intellect and commanding knowledge of the law and the precedents 
of the Supreme Court. He demonstrated a winning and collegial style 
while under fire, and his testimony has been justifiably praised. Most 
important, he demonstrated an understanding of the limited role of the 
judiciary and a deep and abiding commitment to the rule of law.
  During the confirmation process, I was impressed by Judge Roberts' 
statement that he wants to be known, he said, ``as a modest judge.'' 
This simple phrase is one that speaks volumes about the approach he 
brings to the Court. It tells us that he knows a judge must be 
restrained by the law, and by the principles, the practices, and the 
common understandings that make up our legal tradition.
  It tells us that he has an abiding respect for our Constitution, for 
the separation of Federal powers it describes, and for the powers it 
reserves for the States and for the people. Perhaps most important, it 
tells us that his rulings will not be influenced by his own political 
views and personal values, whatever they may be.
  Given the increasing concerns about judicial activism and the desire 
by some to use the courts to achieve the political ends that have 
eluded them, I believe that Judge Roberts' modest and disciplined 
approach to the law will serve our Nation well.
  The President, in consultation with the Senate, has selected an 
outstanding nominee. We have fulfilled our advice and consent 
responsibility through extensive interviews, investigations and 
hearings. Judge Roberts has emerged from this process remaining true to 
his ideals of the proper role of a judge, and demonstrating beyond a 
doubt his fitness for the office.
  Based on my personal discussions with Judge Roberts, my review of his 
record, and his testimony before Judiciary Committee, I am confident 
that Judge Roberts will be a Justice committed to the rule of law and 
one who will protect the liberties and rights guaranteed by our 
Constitution. I believe he will exercise his judicial duties with an 
understanding of the limited role of the judiciary to review and decide 
the specific cases before them based on the law--not to make policy 
through case law. He will be guided not by his own personal view of 
what the law should be, but by a disciplined review and analysis of 
what the law is. He understands that the very integrity of our judicial 
system depends on judges exercising this restraint.
  For these reasons, I look forward to voting to confirm Judge Roberts, 
and I applaud the President for making an outstanding choice.
  Thank you, Mr. President. I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I rise today to speak about the 
nomination of Judge John Roberts to be Chief Justice of the United 
States.
  We have had a lot of debate on the Senate floor. We certainly had 
Judiciary Committee hearings talking about our view of this nominee, 
exercising our right of advice and consent for the President's 
nomination, and each of us comes to this role of advice and consent 
with our own set of criteria.
  What do I look for in the Chief Justice of the United States? First, 
and most importantly, are academic qualifications. Certainly John 
Roberts started his academic career looking toward a future of academic 
excellence. He has the background and the intelligence, which he 
exhibited in his hearings and in the meetings we had one-on-one with 
him. He also has proven his academic qualifications by excelling at 
Harvard in every discipline he studied.
  Experience: You look for someone who has been tested by life. Someone 
who is in his 20s probably is not yet ready for cases and laws that 
will be interpreted for our country because he has not had all of 
life's experiences to mold him into the person he is going to be--
knowing life's difficulties and what the laws are like to live with in 
the private sector. Looking for experience is very important to me.
  Judge Roberts is 50 years old. I think that is exactly the right age 
to have the requisite experience and is, at the same time, young enough 
to help shape the Supreme Court. If confirmed, Judge Roberts would be 
one of the younger Justices in the history of our country.
  I believe he will make a very important mark on the Court, and 
certainly as Chief Justice. From the beginning, he will have the 
opportunity to weigh in and do what he thinks is right in interpreting 
our Constitution and keeping the Supreme Court as an equal--not better, 
not lower--branch of our government.
  Of course, the balance of powers in the three branches of Government 
is what has kept our democracy, our Republic, and our Constitution so 
relevant for the entire history of our country. The checks and balances 
in the three branches of Government have been what has allowed the 
Constitution to stay true to the democracy that it has supported for 
more than 200 years.
  With regard to knowledge of the law and the key rulings of the 
Supreme Court, I do not think any of us have ever seen a nominee, for 
any level of the judiciary, sit before the Judiciary Committee without 
notes and talk about all of the key rulings of the Supreme Court--not 
only talking about the majority opinions and who wrote them, but also 
citing from the minority opinions and dissecting what those opinions 
meant in the context of the question. It was awesome to hear his 
knowledge of the law and of the key rulings of the Supreme Court.
  Humility. A lot has been said about Judge Roberts' humility. It is 
good that he is a humble man and that he has talked about modesty. 
However, it was not a factor in my decision-making that he is modest. 
To me, he could have been an arrogant, smart man with experience, and I 
still would have supported him. The fact that he is modest is one added 
advantage that is worth noting, although it was not the prime factor in 
my decision.
  Humility does relate to one other point that is important and worth 
mentioning; that is, the role of a judge with a lifetime appointment. 
When we have a lifetime appointment, it is, in my opinion, almost a 
leap of faith by those who are consenting to him, and certainly by the 
President who is nominating him, about what kind of accountability that 
judge will enforce on him or herself. It is a self-enforced 
accountability on which we must depend. As a matter of fact, when there 
is a lifetime appointment, unless something patently illegal is done, 
one will

[[Page 21295]]

be in that position for an indefinite period of time, maybe even beyond 
the years of productivity. Having a judge who starts out humble is an 
advantage though not a deciding factor.
  The role of a judge, as Judge Roberts has said on many occasions, is 
one of being a referee, an umpire; not the batter, not the pitcher. 
That is a good analogy. A judge with a lifetime appointment certainly 
is not accountable to an electorate and is no longer accountable to the 
people who appointed him or her and the people who consented to the 
nomination. You have to appoint someone who has a pretty good feel for 
his role in society and in the government. You hope that person is 
going to remain in the role of a judge, interpreting the law and being 
faithful to the Constitution, and not step out of that role to become a 
lawmaker or a decision-maker of the law.
  Judge Roberts said during all of his hearings, in response to the 
questions that were asked of him, the rule of law was so important to 
him it was the central point that made him want to be a lawyer. I 
believe the rule of law protects the rights and liberties of all 
Americans against the tyranny of the majority and against the tyranny 
of the minority. It is the rule of law, as Theodore Roosevelt once 
said, that was very simply stated: ``No person beneath the law; no 
person above the law.''
  Judge Roberts testified he became a lawyer, or at least developed as 
a lawyer, because he believes in the rule of law. He put it best when 
he said, if ``you believe in civil rights, you believe in environmental 
protection, whatever the area might be, believe in rights for the 
disabled, you're not going to be able or effectively to vindicate those 
rights if you don't have a place that you can go where you know you're 
going to get a decision based on the rule of law. . . .So that's why I 
became a lawyer, to promote and vindicate the rule of law.''
  It is this commitment to the rule of law we must expect in our 
judiciary. I remember in particular during the hearings the answer to a 
question I appreciated very much. One of the members of the Judiciary 
Committee was trying so hard to find out how Judge Roberts would rule--
even lean--in a case, so he gave an example. And he said: ``Now, what I 
am trying to find out is, will you vote for the little guy?''
  Judge Roberts said:

       If the law is on the side of the little guy, I will vote 
     for the little guy. If the law is on the side of the big guy, 
     I will vote for the big guy.

  That is what the rule of law is. As one senior justice on the Fifth 
Circuit Court of Appeals remarked, the Honorable Tom Reavley:

       The social order and well-being of our country depends upon 
     the preservation of and allegiance to the rule of law.

  You can tell a lot about a person by whom he admires and why. I 
thought one part of Judge Roberts' testimony told us a lot about him. 
It was about Judge Henry Friendly. Judge Friendly is one of the great 
justices in the history of our judiciary. He said Judge Friendly had a 
total devotion to the rule of law and the confidence that if you just 
worked hard enough at it, you would come up with the right answers. He 
especially pointed out that Judge Friendly kept at every stage of 
deciding a case, including reversing his opinion when he found, while 
writing an opinion, that his original decision--the one he had already 
written a majority decision on--no longer seemed to be the right one. 
Then he would take the best majority opinion he could to the other 
judges and explain that he had changed his mind, and he was going to 
vote the other way.
  Finally, you could see Judge Roberts' admiration for Judge Friendly 
when he described his humility. He remarked that Judge Friendly was a 
genius and that most people would agree he would have made a better 
decision on most matters than the legislature or a Federal agency. 
Still, Judge Roberts explained that Judge Friendly insisted on 
deferring to them, the other branches of Government, because those 
decisions were supposed to be made by the other branches rather then a 
judge who was supposed to simply consider whether their decisions 
conformed to the law.
  In these remarks Judge Roberts made about his mentor, as well as his 
own reflections on the rule of law, we clearly see the kind of Chief 
Justice that Judge Roberts will be. He is the sort of Chief Justice our 
Nation should have, that our Nation needs. I will support Judge John 
Roberts to be elevated to Chief Justice of the United States.
  I am very pleased this process has gone as smoothly as it has. The 
President nominated Judge Roberts after direct consultation with almost 
every Member of the Senate--certainly every Member who had an opinion 
to give. The hearing process and the time devoted to looking into the 
background of the nominee was certainly sufficient. The Judiciary 
Committee had ample time to ask its questions, and we were enlightened 
by his answers. I believe the Senate will overwhelmingly confirm Judge 
Roberts. I think he will be one of the great Chief Justices in the 
history of our country.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SUNUNU. Mr. President, I rise in support of the nomination of 
John Roberts to be Chief Justice to the Supreme Court.
  I note, as did the Senator from Texas, this has been a relatively 
smooth process. We should all be glad for that. It has been one that 
maybe has taken a little bit longer than some would have hoped. 
Everything seems to take longer in the Senate. Maybe that is part of 
the process. It is a process that is straightforward and clear. This is 
a life appointment, and for that reason alone it should be a process 
that is very deliberate and thorough.
  It is unfortunate that some people have used the deliberate nature of 
the process to accentuate the dramatic. There has probably been an 
excess of hyperbole and an excess of rhetoric probably on both sides of 
the aisle as we consider this nomination. This is something that has 
been done before; it will be done again for decades to come. The Senate 
approves nominations for the judiciary all the time. It should be 
something we are accustomed to and feel comfortable in doing and do in 
the natural course of things rather than deal with the rhetoric and the 
hyperbole and sometimes the partisan tactics we have seen, even in this 
nomination, albeit it has been relatively smooth.
  The hearings are a case in point. One would expect the bulk of 
nomination hearings to be taken up by testimony from the nominee to be 
a Justice, to be the Chief Justice of the Supreme Court, the bulk of 
the hearings to be taken up by that nominee answering questions or 
responding to queries. For those who did watch the hearings, they would 
agree the bulk of the hearings seemed to be taken up by very lengthy, 
and at times self-indulgent speeches by members of the committee. I 
don't think that serves the institution particularly well when we view 
the nomination process or these hearings as an opportunity to talk 
about ourselves, to talk about our view of the world, to talk about 
what we want, rather than to talk about what the country or the 
judiciary needs.
  We seek--and I think opponents and supporters of Judge Roberts would 
agree with this statement--individuals who are well-qualified to serve 
on the bench. I argue, to the chagrin of ideologues on both sides, we 
have found just that in John Roberts. I say to the chagrin of people on 
both sides because in the past the smallest perceived or argued concern 
about an individual's qualification would be used as a screen or as a 
justification for voting against a nominee. In the absence of that 
decoy, the truth is laid bare that the only reason to object to such a 
qualified nominee is on partisan or ideological grounds.
  Judge Roberts is eminently qualified. I don't need to describe his 
unbelievably strong record not just as a judge but as an individual 
bringing cases before the court. He has very distinguished experience 
in the private sector, as well as Harvard Law School. In recognizing 
this individual is among the most qualified ever to come before the 
Senate, his opponents are forced to recognize that their vote against 
him

[[Page 21296]]

is simply because he fails their litmus test of partisan ideology 
because he refuses to tell legislators how he is going to vote on cases 
that are yet to come before the court because he believes that Justices 
should decide cases and not write the law.
  There are some Members who have already stated their decision to vote 
against him for just these reasons. But those are the very reasons, or 
the very principles, that should be the foundation of an independent 
and impartial judiciary. So when John Roberts' opponents, when those 
Senators who are going to vote no, say: He is well respected, well 
qualified, has a great record on the bench, a great academic record and 
great experience, but I am going to vote against him anyway, they are 
saying, I am going to vote against him because he does not fit my view 
of ideology because he has not committed to vote a particular way on a 
particular case. That is to say, I am voting against John Roberts 
because I do not want an impartial or independent judiciary.
  That is a wrong and, in fact, dangerous view of what the judiciary 
should be.
  They are opposing a capable, accomplished, well-qualified individual, 
and in doing so they are casting a vote against an independent and 
impartial judiciary. Those who will vote would take to this floor and 
say: No, that is not the case at all; we are for an independent and 
impartial judiciary. But I cite for them the very example, the very 
testimony that was cited earlier by the Senator from Texas. She spoke 
about a question that concluded in the Judiciary Committee: Will you 
vote for the little guys? That very question indicates that someone had 
already presupposed what the best vote was for that case, hypothetical 
or not. And if you are looking for a judge who agrees with your 
presupposed verdict in a case, or your presupposed vote in a case, then 
you have no interest in an impartial or independent judiciary. I think 
it is very difficult to argue the contrary.
  This is not just a slippery slope, this is a dangerous precedent to 
set--left or right, liberal or conservative. To ask any judge, whether 
it is for the Supreme Court or for the Federal judiciary or the appeals 
court, to sit in front of a room of elected legislators and ask them 
about the position that they would take in cases that they are yet to 
hear is to stand up in front of your constituents, to stand up in 
public and say: I don't want an independent judiciary. I do not want an 
impartial judiciary. I just want someone who will commit to me to vote 
a specific way.
  That is not what any judiciary should do. That is not how judges 
should comport or handle themselves, and that means that I will not 
always agree with cases and decisions rendered by the Supreme Court or 
my judge or Justice, but it means that as an elected official or as an 
American feeling confident that instead of looking for a biased 
judiciary, a judiciary that handles its job like a politician selling 
votes to get where they are, I can sleep at night knowing that I have 
cast votes consistently for an independent, impartial, well-qualified 
judiciary.
  I think if you talk to the Republicans who are in the Senate who 
voted nearly unanimously for Judge Ruth Bader Ginsburg, they will argue 
that is exactly what they had in their minds--not casting a vote for a 
judge that would vote a particular way but voting for someone who at 
the end of the day they recognized was capable, was well qualified, and 
therefore would bring those skills and that capability to the judiciary 
in a direct and impartial way. Judge Roberts, in his testimony, 
summarized the importance of this approach quite well. He said the role 
of a judge is limited. The judges are to decide the cases before them; 
they are not to legislate. They are not to decide cases.
  I think it was Justice White who first used those two words to 
describe the role of a judge as a Supreme Court Justice--decide cases, 
and decide those cases based on the text of the Constitution as it is 
written, not as any one of us wishes that it might have been written. I 
think in Judge Roberts we find just such an individual who is 
qualified, who is capable, who will, I hope, sit on the bench for a 
long time supporting, verifying, and validating this very concept of an 
independent and impartial judiciary. And those who vote against him set 
a bad precedent in striking a blow and casting a vote against that 
independence and impartiality that the Framers so hoped for our country 
for years to come.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the time from 4:45 
to 5:45 p.m. will be under the control of the Democratic side.
  The Senator from Minnesota.
  Mr. DAYTON. I ask unanimous consent that the Record show that the 
remarks of the members of the majority caucus have exceeded their 
allotted time by 5 minutes, and that the hour allotted under the 
previous order to the Democratic caucus be extended by those 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DAYTON. I thank the Chair.
  I rise today to oppose the nomination of Judge John G. Roberts, Jr., 
to be the next Chief Justice of the U.S. Supreme Court. The available 
record of Judge Roberts' writings during his public career in the 
administrations of President Reagan and the first President Bush and 
his very brief 2\1/2\ years as a judge on the DC Circuit Court of 
Appeals reveal his persistent opposition to laws enforcing 
desegregation, protecting minority voting rights, guaranteeing public 
education to a student with disabilities, and providing damages to a 
student who had been sexually abused by a teacher.
  He, regrettably, declined repeated invitations by Senators during the 
recent Judiciary Committee hearings to recant or modify some of his 
most extreme and disturbing statements and positions. For example, in 
the 1981 memo to White House Counsel Fred Fielding, Judge Roberts 
referred to Mexican immigrants as ``illegal amigos.'' Before the 
Judiciary Committee he claimed ``it was a play on the standard practice 
of many politicians, including President Reagan, when he was talking to 
a Hispanic audience, he would throw in some language in Spanish.''
  Pressed again, he replied:

       The tone was, I think, generally appropriate for a memo 
     from me to Mr. Fielding.

  I strongly disagree.
  Also, during the Reagan administration, Judge Roberts was one of the 
lawyers in the Justice Department fighting against any improvements to 
the Voting Rights Act, according to William L. Taylor in the New York 
Review of Books.
  Mr. President, I highly commend this article to my colleagues.
  Judge Roberts reportedly drafted a letter sent to Senator Strom 
Thurmond urging him to oppose the bill extending the Voting Rights Act, 
which the House had passed by a vote of 389 to 24. Despite Judge 
Roberts' opposition and the opposition of President Reagan, the Senate 
passed the bill 85 to 8, with Senator Thurmond voting with the 
majority. President Reagan signed it into law 10 days later.
  In the recent judiciary hearings Judge Roberts claimed his respect 
for precedent, but he clearly showed no respect for the 1965 Voting 
Rights Act when he opposed it 16 years later.
  In 1982, Judge Roberts opposed the claims of a deaf student that she 
should have the classroom services of a sign language interpreter under 
the Federal Education for All Handicapped Children Act. He went so far 
as to write the Attorney General disagreeing with the Solicitor 
General's support for the student when her case went before the Supreme 
Court. In Judge Roberts' letter to the Attorney General, he reportedly 
referred to Supreme Court Justices William Brennan and Thurgood 
Marshall as ``the activist duo'' who used the Solicitor General to 
support ``an activist role for the courts.''
  That he would write the Attorney General criticizing the Solicitor 
General does not support his claim that he was then merely a staff 
attorney reflecting the views of his superiors.
  Judge Roberts did not fair so well 10 years later when, as Deputy 
Solicitor

[[Page 21297]]

General, he argued that another student, a 10th-grade girl, had no 
right to damages after having been sexually harassed by a teacher. This 
time the Rehnquist Supreme Court, which included Justices Scalia and 
Thomas, rejected Judge Roberts' position and ruled in the girl's favor.
  Given these and other indications of Judge Roberts' legal views and 
judicial philosophy, it is especially troubling that he and President 
Bush refused Senators' requests for other documents he wrote while he 
was the Deputy Solicitor General. And given his unwillingness before 
the Senate Judiciary committee to disavow any of his earlier known 
writings, I can only assume that later hidden documents contained views 
as bad or worse.
  What Judge Roberts' available writings do show is a man born into 
wealth and privilege and thereby given all of the advantages to assure 
his success in life, who consistently opposed even lesser opportunities 
for Americans born into less fortunate circumstances. He called school 
desegregation ``a failed experiment.'' He claimed that Federal law 
entitled the deaf student only to a ``free, appropriate education,'' 
and denounced the ``effort by activist lower court judges'' to give her 
more. He opposed compensatory damages for the student sexually harassed 
by her teacher even though the Federal Government was not a party in 
the case, writing that it had ``an investment in assuring that private 
remedies do not interfere with programs funded by title IX.''
  My principal concerns are not about Judge Roberts' mind but about his 
heart.
  Of even greater concern, because it was so recent, was Judge Roberts' 
failure to recuse himself from a case before the court of appeals which 
involved President Bush as a principal defendant while he was being 
considered for nomination to the Supreme Court. Reportedly, Judge 
Roberts' first interview with the U.S. Attorney General regarding his 
possible nomination to the Supreme Court occurred last April 1, before 
the case was argued before the appeals court panel on which Judge 
Roberts was one of the three judges. On May 3, Judge Roberts evidently 
met with Vice President Cheney, White House Chief of Staff Andrew Card, 
Attorney General Gonzales, and senior White House adviser Karl Rove 
regarding his possible nomination. On May 23, White House Counsel 
Harriet Miers interviewed Judge Roberts again.
  On July 15, Judge Roberts and another judge on the appeals court 
panel ruled entirely in President Bush's favor and against the 
plaintiff. Four days later, the President nominated him to the Supreme 
Court. The plaintiff and his attorney were reportedly unaware of Judge 
Roberts' job interviews with the President's legal counsel and closest 
associates until his August response to the Senate Judiciary 
Committee's questionnaire.
  Holding those job interviews, not disclosing them to the plaintiff's 
counsel, and not recusing himself from the case after the interviews 
began all violated Federal law under disqualification of judges 
according to a Slate magazine article, which continued:

       Federal law deems public trust in the courts so critical 
     that it requires judges to step aside if their impartiality 
     might be reasonably questioned even if the judge is 
     completely impartial as a matter of fact.

  As Justice John Paul Stevens wrote in a 1988 Supreme Court opinion:

       The very purpose of this law is to promote confidence in 
     the judiciary by avoiding the appearance of partiality 
     whenever possible.

  Mr. President, I ask unanimous consent that the Slate magazine 
article entitled ``Improper Advances: Talking Dream Jobs with the Judge 
Out of Court'' be printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. DAYTON. It seems clear to this Senator that the only way to avoid 
the appearance of impropriety deciding a case directly involving the 
President of the United States while being considered by him for 
nomination to the Supreme Court was for Judge Roberts to remove himself 
from the appeals court panel. At a minimum he should have disclosed 
those interviews to the plaintiff and his attorney.
  When asked about this case during the Judiciary Committee's hearings, 
Judge Roberts declined to acknowledge any regret for his actions even 
with the benefit of hindsight. I find his lack of self-awareness to be 
shocking. Can an impartial observer not wonder whether Judge Roberts 
would have been nominated by the President to the Supreme Court if he 
ruled against the President 4 days earlier?
  Obviously, the instances I have cited do not comprise the complete 
public record of Judge Roberts. Regrettably, as I said earlier, we will 
not have the complete record because important documents from his 
tenure as Deputy Solicitor General in the first Bush administration are 
being withheld from us. These and other similar incidents do, however, 
raise sufficient doubts and concerns so that I cannot vote to confirm 
Judge Roberts as the next Chief Justice of the U.S. Supreme Court. My 
doubts and concerns are magnified by the enormity of his influence over 
the Court and the country during, given his age and life expectancy, 
probably the next 30 to 40 years.
  I disagree with my colleagues and fellow citizens who view the 
current Supreme Court as some liberal bastion.
  In fact, seven of the nine Justices were nominated by Republican 
Presidents. During the past decade, the Rehnquist Court rejected 
congressional actions on affirmative action, violence against women, 
Americans with disabilities, age discrimination in employment, and 
enforcement of environmental laws. Many crucial cases were decided by 
5-to-4 votes. I view the current Supreme Court as closely divided 
between this country's conservative center and its far-right extreme. I 
fear this nominee and the President's next nominee will shift the Court 
drastically and destructively toward that far-right extreme. That may 
form the President's political base, but it does not constitute the 
country's citizen base.
  The Supreme Court belongs to all Americans, not just a politically 
favored minority. Its Justices should be exactly what many right-wing 
activists don't want--men and women of moderate, independent views who 
will decide cases from mainstream judicial and social perspectives 
rather than extreme ideological prisms. How much do the Court's 
opinions matter to the lives of all Americans? Enormously, more than we 
realize and much more than we take for granted.
  I ask unanimous consent that an article from Harper's magazine by 
University of Chicago law professor Cass R. Sunstein be printed in the 
Record following my remarks.
  The PRESIDING OFFICER (Mr. Alexander.) Without objection, it is so 
ordered.
  (See exhibit 2.)
  Mr. DAYTON. He pointed out that in 1920, minimum wage and maximum 
hour laws were unconstitutional in this country. In 1945, he wrote, the 
Supreme Court permitted racial segregation, did not protect the right 
to vote, and gave little protection to political dissent. Fortunately, 
subsequent Supreme Courts reversed those decisions. Unfortunately, 
subsequent Supreme Courts can reverse them again.
  Millions and millions of Americans depend upon the rights and 
protections secured by those and other longstanding laws, and they 
assume those rights and protections are guaranteed, not provisional, 
and not contingent upon who is sitting on the Supreme Court. Those 
millions of Americans, most of whom do not share the extreme views of 
the Republican Party's radical right wing, deserve to continue their 
lives with the rights and protections established by previous Supreme 
Courts. Those citizens and this Senate are entitled to know whether a 
Chief Justice Roberts and a Roberts Supreme Court would respect and 
uphold those long-established precedents and principles or reject them. 
Instead, we are being asked to wonder now and wait to find out later. 
That is too risky a gamble with the future of America and why I will 
vote against Judge Roberts' nomination.

[[Page 21298]]



                               Exhibit 1


   Improper Advances--Talking dream jobs with the judge out of court

         (By Stephen Gillers, David J. Luban, and Steven Lubet)

       Four days before President Bush nominated John G. Roberts 
     to the Supreme Court on July 19, an appeals court panel of 
     three judges, including Judge Roberts, handed the Bush 
     administration a big victory in a hotly, contested challenge 
     to the president's military commissions. The challenge was 
     brought by Salim Ahmed Hamdan, a Guantanamo detainee. 
     President Bush was a defendant in the case because he had 
     personally, in writing, found ``reason to believe'' that 
     Hamdan was a terrorist subject to military tribunals. The 
     appeals court upheld the rules the president had authorized 
     for these military commissions, and it rejected Hamdan's 
     human rights claims--including claims for protection under 
     the Geneva Conventions.
       At the time, the close proximity of the court's decision 
     and the Roberts nomination suggested no appearance of 
     impropriety. Roberts had been assigned to hear the appeal 
     back in December, and it was argued on April 7. Surely he had 
     decided the case long before the administration first 
     approached him about replacing Supreme Court Justice Sandra 
     Day O'Connor, who had announced her retirement on July 1. As 
     it turns out, however, the timing was not so simple.
       The nominee's Aug. 2 answers to a Senate questionnaire 
     reveal that Roberts had several interviews with 
     administration officials contemporaneous with the progress of 
     the Hamdan appeal. One occurred even before the appeal was 
     argued. Attorney General Alberto Gonzales interviewed the 
     judge on April 1. Back then, it was an ailing Chief Justice 
     William H. Rehnquist, not Justice O'Connor, who was expected 
     to retire. The attorney general, of course, heads the Justice 
     Department, which represents the defendants in Hamdan's case. 
     And as White House counsel, Gonzales had advised the 
     president on the requirements of the Geneva Conventions, 
     which were an issue in the case.
       The April interview must have gone quite well because 
     Roberts next enjoyed what can only be labeled callback 
     heaven. On May 3, he met with Vice President Dick Cheney; 
     Andrew H. Card Jr., the White House chief of staff; Karl 
     Rove, Bush's chief political strategist; Harriet Miers, the 
     White House legal counsel; Gonzales; and I. Lewis Libby, the 
     vice president's chief of staff. On May 23, Miers interviewed 
     Judge Roberts again.
       Hamdan's lawyer was completely in the dark about these 
     interviews until Roberts revealed them to the Senate. (Full 
     disclosure: Professor Luban is a faculty colleague of 
     Hamdan's principal lawyer.) Did administration officials or 
     Roberts ask whether it was proper to conduct interviews for a 
     possible Supreme Court nomination while the judge was 
     adjudicating the government's much-disputed claims of 
     expansive presidential powers? Did they ask whether it was 
     appropriate to do so without informing opposing counsel?
       If they had asked, they would have discovered that the 
     interviews violated federal law on the disqualification of 
     judges. Federal law deems public trust in the courts so 
     critical that it requires judges to step aside if their 
     ``impartiality might reasonably be questioned,'' even if the 
     judge is completely impartial as a matter of fact. As Justice 
     John Paul Stevens wrote in a 1988 Supreme Court opinion, 
     ``the very purpose of [this law] is to promote confidence in 
     the judiciary by avoiding even the appearance of impropriety 
     whenever possible.'' The requirement of an appearance of 
     impartiality has been cited in situations like the one here, 
     leading to the disqualification of a judge or the reversal of 
     a verdict.
       In 1985, a federal appeals court in Chicago cited the 
     requirement of the appearance of impartiality when it ordered 
     the recusal of a federal judge who, planning to leave the 
     bench, had hired a ``headhunter'' to approach law firms in 
     the city. By mistake--and, in fact, contrary to the judge's 
     instructions--the headhunter contacted two opposing firms in 
     a case then pending before the judge. One firm rejected the 
     overture outright. The other was negative but not quite as 
     definitive. Writing for the Court of Appeals, Judge Richard 
     A. Posner emphasized that the trial judge ``is a judge of 
     unblemished honor and sterling character,'' and that he ``is 
     accused of, and has committed, no impropriety.'' 
     Nevertheless, the court ordered the judge to recuse himself 
     because of the appearance of partiality. ``The dignity and 
     independence of the judiciary are diminished when the judge 
     comes before lawyers in the case in the role of a suppliant 
     for employment. The public cannot be confident that a case 
     tried under such conditions will be decided in accordance 
     with the highest traditions of the judiciary.'' Although both 
     law firms had refused to offer him employment, the court held 
     that ``an objective observer might wonder whether [the judge] 
     might not at some unconscious level favor the firm . . . that 
     had not as definitively rejected him.''
       In the fall and winter of 1984, a criminal-trial judge in 
     the District of Columbia was discussing a managerial position 
     with the Department of Justice while the local U.S. 
     attorney's office--which is part of the department--was 
     prosecuting an intent-to-kill case before him.
       Following the conviction and sentence, the judge was 
     offered the department job and accepted. On appeal, the 
     United States conceded that the judge had acted improperly by 
     presiding at the trial during the employment negotiations. It 
     argued, however, that the conviction should not be 
     overturned. The appeals court disagreed. Relying on Judge 
     Posner's opinion in the Chicago case, as well as the rules of 
     judicial ethics, the court vacated the conviction even though 
     the defendant did not ``claim that his trial was unfair or 
     that the [the judge] was actually biased against him.'' The 
     court was ``persuaded that an objective observer might have 
     difficulty understanding that [the judge] did not . . . 
     realize . . . that others might question his impartiality.''
       So, the problem in Hamdan is not that Roberts may have cast 
     his vote to improve his chances of promotion. We believe he 
     is a man of integrity who voted as he thought the law 
     required. The problem is that if one side that very much 
     wants to win a certain case can secretly approach the judge 
     about a dream job while the case is still under active 
     consideration, and especially if the judge shows interest in 
     the job, the public's trust in the judiciary (not to mention 
     the opposing party's) suffers because the public can never 
     know how the approach may have affected the judge's thinking. 
     Perhaps, as Judge Posner wrote, the judge may have been 
     influenced even in ways that he may not consciously 
     recognize.
       A further complication here is that Roberts' vote was not a 
     mere add on. His vote was decisive on a key question of 
     presidential power that now confronts the nation. Although 
     all three judges reached the same bottom line in the case, 
     they were divided on whether the Geneva Conventions grant 
     basic human rights to prisoners like Hamdan who don't qualify 
     for other Geneva protections. The lower court had held that 
     some provisions do. Judge Roberts and a second judge rejected 
     that view. The third judge said Geneva did apply, but found 
     it premature to resolve the issues it raised. Hamdan has 
     since asked the Supreme Court to hear the case.
       Roberts did not have to sit out every case involving the 
     government, no matter how routine, while he was being 
     interviewed for the Supreme Court position. The government 
     litigates too many cases for that to make any sense. But 
     Hamdan was not merely suing the government. He was suing the 
     president, who had authorized the military commissions and 
     who had personally designated Hamdan for a commission trial, 
     explaining that ``there is reason to believe that [Hamdan] 
     was ... involved in terrorism.''
       Moreover, the Hamdan appeal is the polar opposite of 
     routine for at least two reasons. First, its issues are 
     central to the much-disputed claims of broad presidential 
     power in the war on terror. Second, the court's decision on 
     the Geneva Conventions has a spillover effect on the legality 
     of controversial interrogation techniques used by the 
     government at Guantanamo and elsewhere. That is because the 
     same provision of the Geneva Conventions that would protect 
     Hamdan from unfair trials also protects detainees from cruel, 
     humiliating, or degrading treatment. The D.C. Circuit's 
     decision rejecting the Geneva Conventions' trial 
     protections--a decision that hinged on Roberts' vote--also 
     strips away an important legal safeguard against cruel and 
     humiliating treatment that may fall just short of torture.
       Given the case's importance, then, when Gonzales 
     interviewed Roberts for a possible Supreme Court seat on 
     April 1, the judge should have withdrawn from the Hamdan 
     appeal. Or he and Gonzales, as the opposing lawyer, should 
     have revealed the interview to Hamdan's lawyer, who could 
     then have decided whether to make a formal recusal motion. 
     The need to do one or the other became acute--indeed 
     incontrovertible--when arrangements were made for the May 3 
     interview with six high government officials. (We don't know 
     how long before May 3 the arrangements were made.)
       We do not cite these events to raise questions about 
     Roberts' fitness for the Supreme Court. In the rush of 
     business, his oversight may be understandable. What is 
     immediately at stake, however, is the appearance of justice 
     in the Hamdan and the proper resolution of an important legal 
     question about the limits on presidential power. Although the 
     procedural rules are murky, it may yet be possible for Judge 
     Roberts to withdraw his vote retroactively. That would at 
     least eliminate the precedential effect of the opinion on 
     whether the Geneva Conventions grant minimum human rights to 
     Hamdan and others in his position. Better yet, the Supreme 
     Court can remove the opinion's precedential effect by taking 
     the Hamdan case and reversing it.
                                  ____


                               Exhibit 2


FIGHTING FOR THE SUPREME COURT--How right-wing judges are transforming 
                            the Constitution

                         (By Cass R. Sunstein)

       In current political theater surrounding George W. Bush's 
     judicial nominations, and the anxiety over the nomination of 
     John G. Roberts as swing Justice Sandra Day O'Connor's 
     successor, there is surprisingly little discussion of what is 
     actually at stake. For,

[[Page 21299]]

     in truth, the battle over the judiciary is part of a much 
     larger political campaign to determine not only the 
     constitutionality of abortion and the role of religion in 
     public life but also the very character of our Constitution, 
     and thus our national government. Many people assume (no 
     doubt because this is what they are told) that the meaning of 
     the Constitution is set in stone, and that the disputes 
     raging in the Senate and on the Sunday talk shows are between 
     liberal judicial activists and conservative ``strict 
     constructionists'' who adhere to the letter of the text. In 
     fact, the contest is much more complicated and interesting--
     and, in most important respects, this conventional view of 
     the subject is badly wrong.
       Historically, our political disagreements have produced 
     fundamental changes in our founding document. When one 
     president succeeds another, for example, and the makeup of 
     the federal judiciary and the Supreme Court changes, the 
     Constitution's meaning often shifts dramatically. As a 
     result, our most basic rights and institutions can be 
     altered. Participants in the current battle over the 
     judiciary are entirely aware of this point; they know that 
     the meaning of the Constitution will be determined by the 
     battle's outcome, and that significant rights that Americans 
     now take for granted--such as the right to privacy and the 
     power of ordinary citizens to have access to the federal 
     courts--are very much at stake.
       In 1920 minimum-wage and maximum-hour laws were 
     unconstitutional. As the Supreme Court interpreted the 
     Constitution at that time, it could not possibly have 
     permitted a Social Security Act or a National Labor Relations 
     Act. In the 1930s, President Franklin Delano Roosevelt sought 
     to legitimate the New Deal, whose centerpieces included 
     minimum-wage and maximum hour laws, the Social Security Act, 
     and the National Labor Relations Act. Roosevelt didn't try to 
     change a word of the Constitution, but by 1937 a 
     reconstituted Supreme Court upheld nearly everything that 
     Roosevelt wanted. In 1945 the Constitution permitted racial 
     segregation, did not protect the right to vote, permitted 
     official prayers in the public schools, and gave little 
     protection to political dissent. By 1970 the same 
     Constitution prohibited racial segregation, safeguarded the 
     right to vote, banned official prayers in the public schools, 
     and offered broad protection not only to political dissent 
     but also to speech of all kinds. If American citizens in 1945 
     were placed in a time machine, they would have a hard time 
     recognizing their Constitution merely twenty-five years 
     later.
       In recent years a new form of judicial activism has emerged 
     from private organizations, law schools, and the nation's 
     courtrooms. Purporting to revere history, the new activists 
     claim that they are returning to the original Constitution--
     which they sometimes call the Lost Constitution or the 
     Constitution in Exile. The reformers include a number of 
     federal judges, such as Supreme Court Justices Clarence 
     Thomas and Antonin Scalia (though Scalia is more 
     circumspect). Appointed by Ronald Reagan, George H.W. Bush, 
     or George W. Bush, these judges do not hesitate to depart 
     radically from longstanding understandings of constitutional 
     meaning. They would like to interpret the Constitution to 
     strike down affirmative-action programs, gun-control 
     legislation, and restrictions on commercial advertising; they 
     also seek to impose severe restrictions on Congress's powers 
     and to invalidate campaign-finance regulations, environmental 
     regulations, and much else. Justice Thomas would allow states 
     to establish official religions. The logic of the new 
     approach would even permit the federal government to 
     discriminate on the basis of race and sex.
       It is tempting to think that what we are seeing today is 
     merely a periodic swing of some hypothetical judicial 
     pendulum, that the courts are returning to a period of 
     restraint after the liberal activism of the past sixty years. 
     And, in fact, some principled conservatives have favored 
     exactly that. But they increasingly find themselves on the 
     defensive. Today, many people are seeking a kind of 
     constitutional revolution--one that involves activism rather 
     than restraint. Many right-wing activists are willing to undo 
     what they readily acknowledge to be the will of the people. 
     Their intentions are no secret; they are publicly proclaimed 
     in articles, judicial opinions, and speeches. There is no 
     question, moreover, that some of these extremists seek to 
     curtail or abolish rights that most citizens regard as 
     essential parts of our national identity. Indeed, it is 
     difficult to escape the conclusion that it is precisely 
     because their ideological goals are politically unachievable 
     that they have turned to the courts.
       This ambitious program is the culmination of a significant 
     shift in conservative thought. In the 1960s and 1970s, many 
     conservatives were committed to a restrained and cautious 
     federal judiciary. Their major targets included Roe v. Wade, 
     which protected the right to abortion, and Miranda v. 
     Arizona, which protected accused criminals; conservatives saw 
     these rulings as unsupportable judicial interference with 
     political choices. Democracy was their watchword; they wanted 
     the courts to back off. They asked judges to respect the 
     decisions of Congress, the president, and state legislatures; 
     they spoke insistently of the people's right to rule 
     themselves. This is no longer true. Increasingly, the goal 
     has been to promote ``movement judges,'' judges with no 
     interest in judicial restraint and with a demonstrated 
     willingness to strike down the acts of Congress and state 
     government. Movement judges have an agenda, which overlaps, 
     as it happens, with that of the most extreme wing of the 
     Republican Party.
       In many areas, the new activists have enjoyed important 
     victories. Consider the fact that the Rehnquist Court has 
     overturned more than three dozen federal enactments since 
     1995, a record of aggression against the national legislature 
     that is unequaled in the nation's history. In terms of sheer 
     numbers of invalidations of acts of Congress, the Rehnquist 
     Court qualifies as the all-time champion. A few 
     illustrations:
       The Rehnquist Court has thrown most affirmative-action 
     programs into extremely serious doubt, suggesting that public 
     employers will rarely be able to operate such programs and 
     that affirmative action will be acceptable only in narrow 
     circumstances.
       The Rehnquist Court has used the First Amendment to 
     invalidate many forms of campaign-finance legislation, with 
     Justices Scalia and Thomas suggesting that they would strike 
     down almost all legislation limiting campaign contributions 
     and expenditures.
       For the first time since the New Deal, the Rehnquist Court 
     has struck down congressional enactments under the Commerce 
     Clause. As a result of the Court's invalidation of the 
     Violence Against Women Act, a large number of federal laws 
     have been thrown into constitutional doubt. Several 
     environmental statutes, including the Endangered Species Act, 
     are in trouble.
       Departing from its own precedents, the Rehnquist Court has 
     sharply limited congressional authority to enforce the 
     Fourteenth Amendment. In the process, the Court has struck 
     down key provisions of the Americans with Disabilities Act, 
     the Religious Freedom Restoration Act, and the Violence 
     Against Women Act--all of which received overwhelming 
     bipartisan support in Congress.
       The Rehnquist Court has used the idea of state sovereign 
     immunity to strike down a number of congressional enactments, 
     including parts of the Age Discrimination in Employment Act 
     and the Americans with Disabilities Act.
       For the first time in the nation's history, the Rehnquist 
     Court has ruled that Congress lacks the power to give 
     citizens and taxpayers the right to sue to ensure enforcement 
     of environmental laws.
       Even so, the Rehnquist Court has not been a truly radical 
     court, in large part because Justice O'Connor resisted large-
     scale change. The Court has hardly returned to the 1920s. It 
     has not overruled Roe v. Wade. It has rejected President 
     Bush's boldest claims of authority to detain suspected 
     terrorists. It has struck down laws that criminalize same-sex 
     relationships. It has not entirely eliminated affirmative-
     action programs. In especially controversial decisions, it 
     has invalidated the death penalty for mentally retarded 
     people and for juveniles. But even if those who seek to 
     reorient the Supreme Court have not received all that they 
     wanted, they have succeeded in producing a body of 
     constitutional law that is fundamentally different from what 
     it was twenty years ago. To a degree that has been 
     insufficiently appreciated, the contemporary federal courts 
     are fundamentally different from the federal courts of two 
     decades ago. The center has become the left. The right is now 
     the center. The left no longer exists.
       Consider a few examples. Justices William Brennan and 
     Thurgood Marshall were the prominent liberals on the Court in 
     1980; they did not hesitate to use the Constitution to 
     protect the most disadvantaged members of society, including 
     criminal defendants, African Americans, and the poor. Brennan 
     and Marshall have no successors on the current Court; their 
     approach to the Constitution has entirely disappeared from 
     the bench. For many years, William Rehnquist was the most 
     conservative member of the Court. He was far to the right of 
     Chief Justice Warren Burger, also a prominent conservative. 
     But Justices Antonin Scalia and Clarence Thomas are far to 
     Rehnquist's right, converting him into a relative moderate.
       In 1980 the Scalia/Thomas brand of conservative had no 
     defenders within the federal judiciary; their distinctive 
     approach was restricted to a few professors at a few law 
     schools. But it is extremely prominent on the federal bench 
     today. Justice John Paul Stevens is a Republican moderate, 
     appointed to the Court by President Gerald Ford. For a long 
     period, Justice Stevens was well known as a maverick and a 
     centrist--independent-minded; hardly liberal, and someone 
     whose views could not be put into any predictable category. 
     He is now considered part of the Court's ``liberal wing.'' In 
     most areas, Justice Stevens has changed little if at all; 
     what has changed is the Court's center of gravity.
       Of the more cautious decisions in recent years, almost all 
     were issued by a bare majority of 5-4 or a close vote of 6-3. 
     With looming changes in the Court's composition, the moderate 
     decisions might well shift in immoderate directions. We can 
     easily foresee a

[[Page 21300]]

     situation in which federal judges move far more abruptly in 
     the directions they have been heading. They might not only 
     invalidate all affirmative-action programs but also elevate 
     commercial advertising to the same status as political 
     speech, thus preventing controls on commercials by tobacco 
     companies (among others). They might strike down almost all 
     campaign-finance reform; reduce the power of Congress and the 
     states to enact gun-control legislation; and significantly 
     extend the reach of the Fifth Amendment's Takings Clause, 
     thus limiting environmental and other regulatory legislation.
       I have said that the new activists believe the Constitution 
     should be understood to mean what it originally meant. 
     Because of their commitment to following the original 
     understanding, we may call them judicial fundamentalists. 
     When President Bush speaks of ``strict construction,'' he is 
     widely understood to be endorsing fundamentalism in 
     constitutional law. Fundamentalists insist that 
     constitutional interpretation requires an act of rediscovery. 
     Their goal is to return to what they see as the essential 
     source of constitutional meaning: the views of those who 
     ratified the document. The key constitutional questions thus 
     become historical ones. Suppose that the Constitution was not 
     originally understood to ban sex discrimination, protect 
     privacy, outlaw racial segregation, or forbid censorship of 
     blasphemy. If so, that's that. Judges have no authority to 
     depart from the understanding of 1789, when the original 
     Constitution was ratified, or 1791, when the Bill of Rights 
     was ratified, or 1868, when the Fourteenth Amendment was 
     ratified.
       Fundamentalists are entirely aware that current 
     constitutional law does not reflect their own approach. They 
     know that for many decades, the Court has not been willing to 
     freeze the Constitution in the mold of the eighteenth and 
     nineteenth centuries. For this reason fundamentalists have 
     radical inclinations; they seek to make large-scale changes 
     in constitutional law. Some fundamentalists, like Justice 
     Scalia, believe in respecting precedent and hence do not want 
     to make these changes all at once; but they hope to make them 
     sooner rather than later. Other fundamentalists, including 
     Justice Clarence Thomas, are entirely willing to abandon 
     precedent in order to return to the original understanding. 
     Many conservative activists agree with Thomas rather than 
     Scalia.
       Suppose the Supreme Court of the United States suddenly 
     adopted fundamentalism and began to understand the 
     Constitution in accordance with the specific views of those 
     who ratified its provisions. What would happen? The 
     consequences would be extremely dramatic. For example:
       Discrimination on the basis of sex would be entirely 
     acceptable. If a state chose to forbid women to be lawyers or 
     doctors or engineers, the Constitution would not stand in the 
     way. The national government could certainly discriminate 
     against women. If it wanted to ban women from the U.S. Civil 
     Service, or to restrict them to clerical positions, the 
     Constitution would not be offended.
       The national government would be permitted to discriminate 
     on the basis of race. The Equal Protection Clause of the 
     Fourteenth Amendment is the Constitution's prohibition on 
     racial discrimination--and by its clear language, it applies 
     only to state governments, not to the national one. Honest 
     fundamentalists have to admit that according to their method, 
     the national government can segregate the armed forces, the 
     Washington, D.C., public schools, or anything it chooses. In 
     fact, the national government could exclude African 
     Americans, Hispanics, Asian Americans, whenever it liked.
       State governments would probably be permitted to impose 
     racial segregation. As a matter of history, the Fourteenth 
     Amendment was not understood to ban segregation on the basis 
     of race. Of course, the Supreme Court struck down racial 
     segregation in its 1954 decision in Brown v. Board of 
     Education. But this decision was probably wrong on 
     fundamentalist grounds.
       State governments would be permitted to impose poll taxes 
     on state and local elections; they could also violate the 
     one-person, one-vote principle. On fundamentalist grounds, 
     these interferences with the right to vote, and many more, 
     would be entirely acceptable. In fact, state governments 
     could do a great deal to give some people more political 
     power than others. According to most fundamentalists, there 
     simply is no ``right to vote.''
       The entire Bill of Rights might apply only to the national 
     government, not to the states. Very possibly, states could 
     censor speech of which they disapproved, impose cruel and 
     unusual punishment, or search people's homes without a 
     warrant. There is a reasonable argument that on 
     fundamentalist grounds, the Court has been wrong to read the 
     Fourteenth Amendment as applying the Bill of Rights to state 
     governments.
       States might well be permitted to establish official 
     churches. Justice Clarence Thomas has specifically argued 
     that they can.
       The Constitution would provide much less protection to free 
     speech than it now does. Some historians have suggested that 
     on the original understanding, the federal government could 
     punish speech that it deemed dangerous or unacceptable, so 
     long as it did not ban such speech in advance.
       Compulsory sterilization of criminals would not offend the 
     Constitution. The government could ban contraceptives or 
     sodomy. There would be no right of privacy.
       This is an extraordinary agenda for constitutional law, and 
     it provides only a glimpse of what fundamentalism, taken 
     seriously; would seem to require. Should we really adopt it? 
     During the controversy over the 1987 nomination of Judge 
     Robert Bork to the Supreme Court, Judge Richard Posner, a 
     Reagan appointee, produced an ingenious little paper called 
     ``Bork and Beethoven.'' Posner noticed that Commentary 
     magazine had published an essay celebrating Bork's 
     fundamentalism in the same issue in which another essay 
     sharply criticized the ``authentic-performance movement'' in 
     music, in which musicians play the works of great composers 
     on the original instruments. Posner observes that the two 
     articles ``take opposite positions on the issue of 
     `originalism'--that is, interpretive fidelity to a text's 
     understanding by its authors.'' While one essay endorses 
     Bork's fidelity to the views of people in 1787, the other 
     despises the authentic-performance movement on the grounds 
     that the music sounds awful. If originalism makes bad music 
     (or bad law), Posner asks, ``why should the people listen to 
     it?''
       Fundamentalists get a lot of rhetorical mileage out of 
     insisting that their approach is neutral while other 
     approaches are simply a matter of ``politics.'' But there is 
     nothing neutral in fundamentalism. It is a political choice, 
     which must be defended on political grounds. The Constitution 
     doesn't set out a theory of interpretation; it doesn't 
     announce that judges must follow the original understanding. 
     Liberals and conservatives disagree on many things, but most 
     would agree that the Constitution forbids racial segregation 
     by the federal government and protects a robust free-speech 
     principle. If fundamentalism produces a far worse system of 
     constitutional law, one that abandons safeguards that are 
     important to the fabric of American life, that must count as 
     a strong point against it.
       Fundamentalists often defend their approach through the 
     claim that it is highly democratic--far more so than allowing 
     unelected judges to give meaning to the constitutional text. 
     But there is a big gap in their argument. Why should living 
     people be governed by the particular views of those who died 
     many generations ago? Most of the relevant understandings 
     come from 1789, when the Constitution was ratified, or 1791, 
     when the Bill of Rights was ratified. If democracy is our 
     lodestar, it is hardly clear that we should be controlled by 
     those eighteenth-century judgments today. Why should we be 
     governed by people long dead? In any case, the group that 
     ratified the Constitution included just a small subset of the 
     society; it excluded all women, most African Americans, many 
     of those without property, and numerous others who were not 
     permitted to vote. Does the ideal of democracy really mean 
     that current generations must follow the understandings of a 
     small portion of the population from centuries ago? Yet 
     fundamentalists want to strike down many laws enacted by the 
     people's representatives. What's democratic about that?
       I am not arguing that the Constitution itself should not be 
     taken as binding. Of course it should be. The Constitution is 
     binding because it is an exceedingly good constitution, all 
     things considered, and because many bad things, including 
     relative chaos, would ensue if we abandoned it. We're much 
     better off with it than without it. But no abstract concept, 
     like ``democracy,'' is enough to explain why we must follow 
     the Constitution; and invoking that concept is a hopelessly 
     inadequate way to justify fundamentalism.
       Fundamentalists have other problems. It is a disputed 
     historical question whether those who ratified the 
     Constitution wanted judges to be bound by the original 
     understanding. The Constitution uses broad phrases, such as 
     ``freedom of speech'' and ``equal protection of the laws'' 
     and ``due process of law''; it does not include the 
     particular views of those who ratified it. Maybe the original 
     understanding was that the original understanding was not 
     binding. Maybe the ratifiers believed that the Constitution 
     set out general principles that might change over time. If 
     so, fundamentalism turns out to be self-defeating.
       In any case, it isn't so easy to make sense of the idea of 
     ``following'' specific understandings when facts and 
     circumstances have radically changed. Does the free-speech 
     principle apply to the Internet? Does the ban on unreasonable 
     searches and seizures apply to wiretapping? To answer such 
     questions, we cannot simply imagine that we have gone into a 
     time machine and posed these questions to James Madison and 
     Alexander Hamilton. For one thing, Madison and Hamilton would 
     have no idea what we were talking about; for another, they 
     probably wouldn't believe us if we explained it to them. 
     Changed circumstances are pervasive in constitutional 
     interpretation. To say the least, they complicate the 
     fundamentalist project; they might even make it incoherent.

[[Page 21301]]

       Many fundamentalists appeal to the idea of consent as a 
     basis for legitimacy. In their view, we are bound by the 
     Constitution because we agreed to it; we are not bound by the 
     constitution of France or any model constitution that might 
     be drafted by today's best and brightest. Although it's true 
     that we're not bound by those constitutions, it is false to 
     say that we're bound by the Constitution because ``we'' 
     agreed to it. None of us did. Of course we benefit greatly 
     from its existence, and most of us do not try to change it; 
     but it is fanciful to say that we've agreed to it. The 
     legitimacy of the Constitution does not lie in consent. It is 
     legitimate because it provides an excellent framework for 
     freedom and democratic self-government and promotes many 
     other goals as well, including economic prosperity. The 
     fundamentalists' arguments about legitimacy beg all the 
     important questions. Ancient ratification is not enough to 
     make the Constitution legitimate. We follow the Constitution 
     because it is good for us to follow the Constitution. Is it 
     good for us to follow the original understanding? Actually, 
     it would be terrible.
       Justice Antonin Scalia emphasizes the stability that comes 
     from fundantalism, which, in his view, can produce a ``rock-
     hard'' Constitution. True, fundamentalism might lead to 
     greater stability in our constitutional understandings than 
     we have now. Unless readings of history change, the 
     Constitution would mean the same thing fifty years from now 
     as it means today. But fundamentalism would produce stability 
     only by radically destabilizing the system of rights that we 
     have come to know. At least as bad, fundamentalism would 
     destabilize not only our rights but our institutions as well; 
     many fundamentalists would like to throw the Federal Reserve 
     Board, the Securities and Exchange Commission, and the 
     Federal Communications Commission into constitutional doubt. 
     In a way, fundamentalism would promote the rule of law--but 
     only after defeating established expectations and upsetting 
     longstanding practices on which Americans have come to rely.
       Stability is only one value, and for good societies it is 
     not the most import one. If an approach to the Constitution 
     would lead to a little less stability but a lot more 
     democracy, there is good reason to adopt it. Since 1950 our 
     constitutional system has not been entirely stable; the 
     document has been reinterpreted to ban racial segregation, to 
     protect the right to vote, to forbid sex discrimination, and 
     to contain a robust principle of free speech. Should we 
     really have sought more stability?
       Unfortunately, many fundamentalists are not faithful to 
     their own creed. When their political commitments are 
     intense, their interest in history often falters. Here's a 
     leading example: Fundamentalists on the bench, including 
     Justices Scalia and Thomas, enthusiastically vote to strike 
     down affirmative-action programs. In their view, the Equal 
     Protection Clause of the Fourteenth Amendment requires color 
     blindness. History strongly suggests otherwise. In the 
     aftermath of the Civil War, Congress enacted several programs 
     that provided particular assistance to African Americans. The 
     Reconstruction Congress that approved the Fourteenth 
     Amendment simultaneously enacted a number of race-specific 
     programs for African Americans. The most important examples 
     involve the Freedmen's Bureau, created in 1865 as a means of 
     providing special benefits and assistance for African 
     Americans. The opponents of the Freedmen's Bureau Acts 
     attacked the bureau on, the ground that it would apply to 
     members of only one race. The response was that 
     discrimination was justified in the interest of equality: 
     ``We need a freedmen's bureau,'' said one supporter, ``not 
     because these people are negroes, but because they are men 
     who have been for generations despoiled their rights.''
       Curiously, fundamentalists don't investigate the pertinent 
     history, but one of the explicit goals of the Fourteenth 
     Amendment was to provide secure constitutional grounding for 
     the Freedmen's Bureau Acts. It is peculiar at best to think 
     that the Fourteenth Amendment prohibited the very types of 
     legislation it was designed to legitimate. Voting to strike 
     down affirmative-action programs, fundamentalists haven't 
     offered a hint of a reason to think that such programs are 
     inconsistent with the original understanding.
       And this is just the beginning. Fundamentalists would very 
     much like to strengthen the constitutional protection of 
     property, especially by striking down ``regulatory 
     takings''--reductions in the value of property that occur as 
     a result of regulation, including environmental protection. 
     But the historical evidence, which fundamentalists ignore, 
     shows that as originally understood, the Constitution did not 
     protect against regulatory takings. The most careful survey, 
     by legal historian John Hart, concludes that ``the Takings 
     Clause was originally intended and understood to refer only 
     to the appropriation of property''-and that it did not apply 
     to regulation.
       Hart demonstrates that regulation was extensive in the 
     founding period and that it was not thought to raise a 
     constitutional question. Buildings were regulated on purely 
     aesthetic grounds, and no one argued that compensation was 
     required. States asked farmers who owned wetlands to drain 
     their lands and to contribute to the costs of drainage--all 
     without any complaints about ``taking.'' Some landowners were 
     forbidden to sell their interests in land, and compensation 
     was not required. In numerous cases, the public interest took 
     precedence over property rights. Of course, government was 
     not permitted literally to ``take'' land. But regulation was 
     pervasive, and it was not considered troublesome from the 
     constitutional point of view.
       Fundamentalists usually don't even try to muster historical 
     support for their view that the Constitution protects 
     commercial advertising and bans campaign-finance legislation. 
     Fundamentalists, including Justices Scalia and Thomas, vote 
     to ban Congress from authorizing taxpayers to bring suit in 
     federal court to enforce environmental laws. But they don't 
     even investigate the historical evidence, which strongly 
     suggests that they're wrong. In England and in early America, 
     it was perfectly conventional for government to-give 
     taxpayers the right to sue to enforce the law. No one 
     suggested that such suits were unconstitutional.
       In the same vein, many fundamentalists, including Justice 
     Thomas, believe that the Constitution grants broad ``war 
     power,'' or authority ``to protect the national security,'' 
     to the president. But the text and history of the 
     Constitution strongly suggest a careful effort to divide 
     power between Congress and the president. If we favor 
     ``strict construction,'' we will not believe that the 
     president has a general ``war power.'' Perhaps most notably, 
     Congress, not the president, has the power to ``declare 
     War.'' The Constitution also grants Congress, not the 
     president, the power to ``raise and support Armies.'' It 
     authorizes Congress to ``provide and maintain a Navy.'' The 
     founding document permits Congress to ``make Rules for the 
     Government and Regulation of the land and naval Forces.'' It 
     is Congress that is authorized to raise funds to ``provide 
     for the common Defense and general Welfare of the United 
     States.'' Congress, not the president, is empowered to 
     ``regulate Commerce with foreign Nations.'' Congress is also 
     authorized to ``define and punish Piracies and Felonies 
     committed on the high Seas, and Offenses against the Law of 
     Nations,'' as well as to ``make Rules concerning Captures on 
     Land and Water.''
       In this light the Constitution does not repose in the 
     president anything like a general authority ``to protect the 
     national security.'' Fundamentalists neglect the most natural 
     reading of the document, which is that protection of national 
     security is divided between Congress and the president-and 
     that if either has the dominant role, it is the national 
     lawmaker. To be sure, the Commander in Chief Clause does give 
     the president direction of the armed forces, an expansive 
     authority; but even that authority is subject to legislative 
     constraints, because Congress controls the budget and because 
     Congress can choose not to declare war. And if Congress 
     refuses either to authorize the use of force or to declare 
     war, the president is usually not entitled to commence 
     hostilities on his own. In arguing that the Constitution 
     gives the president ``the war power,'' fundamentalists ignore 
     the document itself.
       Much of the time, the emphasis on ``original 
     understanding'' turns out to be a sham--a rhetorical smoke 
     screen for an aggressive political agenda that would never 
     survive the scrutiny of the political process. Writing in the 
     midst of World War II, Learned Hand, the great court of 
     appeals judge, wrote that the ``spirit of liberty is the 
     spirit which is not too sure that it is right.'' Claiming 
     their own neutrality, fundamentalists are all too willing to 
     engage in partisan politics under the guise of constitutional 
     law; in so doing, they defy liberty's spirit.

  Mr. DAYTON. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill 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.
  Mr. NELSON of Florida. Mr. President, I rise to announce that I will 
vote to confirm Judge Roberts to serve as Chief Justice of the United 
States. As I see it, we must ensure that a nominee will serve the 
interests of the people and interpret the Constitution without any 
preconceived notions or agendas. On the highest Court in our Nation, 
the nominee will decide cases with the potential to move our country 
forward and to strengthen our democracy. This Court, under the 
leadership of Judge Roberts, if he is confirmed as the next chief 
justice, likely will hear cases addressing important issues, such as 
the right to privacy and the role of religion in public life; decisions 
that will impact all of our lives, as well as the direction of our 
country, for years to

[[Page 21302]]

come. We must therefore be deliberative in our decision and, to the 
extent possible, make sure the President's nominee will not allow any 
personal bias or political beliefs to color the administration of 
justice or the interpretation of the Constitution.
  On August 10, I met with Judge Roberts in my office. I came back to 
Washington during the August recess, where I was conducting town hall 
meetings in Florida, so that I could look Judge Roberts in the eye and 
get his response to questions that were important to Floridians, and 
would allow me to assess his fitness to serve. Following that meeting, 
and in the weeks leading up to today, I have listened to the testimony 
during his confirmation hearing in the Judiciary Committee. I have 
reviewed the decisions he wrote as a judge on the D.C. Circuit Court of 
Appeals, and I have looked at his writings from the time when he was an 
attorney in the Reagan administration. I also considered the views of 
my constituents who have called my office and written letters.
  In our meeting last August, I could clearly see that he is a man who 
possesses a certain amount of humility. I found this very attractive. 
Despite his impressive academic and professional record and legal 
credentials, he did not appear arrogant, nor did he appear to be 
inflexible. I specifically talked to him about one of the things that 
is missing today in America. As we get so divided, we get increasingly 
highly partisan and ideologically rigid. It makes it difficult to 
govern a nation as large and as broad and as diverse and as complicated 
as this Nation is unless we can be tolerant toward one another, unless 
we can reach out and bring people together. As the Good Book says: 
Come, let us reason together.
  Judge Roberts expressed to me reverence for both the Court and the 
rule of law. He said he was honored to be a nominee to serve on the 
same Court on which he used to work as a clerk. And, I told him what a 
great honor it was for me as a Senator to participate in this 
constitutional process. His responses to several of the questions I 
posed to him during our meeting form the basis for my decision to 
support his nomination. I wish to share some of those responses now.
  I asked Judge Roberts whether he believed he could put aside his 
personal beliefs and be fair. He assured me that any personal beliefs 
he has, be they based on religion or other issues, personal beliefs 
that all of us carry, would not factor into any of his decisions. He 
said that they had not while he served on the D.C. Circuit Court of 
Appeals, and they would not if he is confirmed to the Supreme Court.
  The oath of a judge, he noted, is to faithfully follow the rule of 
law and set aside personal beliefs. To ensure the fair and objective 
application of the law so that each litigant appearing before the court 
receives a fair chance with the same rules applied to each regardless 
of personal views, with justice meted out to both poor and rich, black 
and white, equally and based on the law.
  Decisions of the Court must be reached with sound explanations, and 
the facts and the law alone determining the outcome.
  I take Judge Roberts at his word.
  I also asked Judge Roberts about two issues important to the citizens 
of Florida: the right to privacy and the Court's respect for 
congressional authority, the separation of powers doctrine. When I 
asked Judge Roberts whether he recognized a right to privacy, either 
express or implied in the U.S. Constitution, he informed me that he 
does. He noted several amendments to the U.S. Constitution in which he 
believed this right was recognized. This response to me on August 10 
was consistent with his testimony before the Judiciary Committee. It 
was during his testimony before that committee that he stated that he 
believed a right to privacy exists in the 14th amendment, the 4th 
amendment, the 3rd amendment, and the 1st amendment. This recognition 
was vital in reassuring me that he would not interpret the Constitution 
to limit individual freedoms and allow the Government broad powers to 
intrude into the lives of its citizens--something that makes our 
society unique compared to other societies in the world. The rule of 
law protects our citizens from the intrusion of the Government.
  Then we had a discussion of Kelo v. New London, CT. It is the Court's 
recent ruling regarding eminent domain. Judge Roberts refused to relay 
his own personal opinion as to whether he believed the opinion reached 
by the Court was correct, the split 5-to-4 decision, of which Justice 
O'Connor was one of the vigorous dissenting Justices.
  In our discussion of the opinion he used the words ``a person's home 
is their castle.'' He noted that the majority decision in Kelo provided 
that it was not for the Court to draw the line between what is 
permissible public use in the taking of private property, and that it 
was up to the legislative branch of Government to establish limits and 
to set constraints.
  I appreciated that answer.
  Now it is important for me to also address the concerns raised by 
some Floridians who urged me to vote against Judge Roberts' 
confirmation. They are worried that we are taking a big gamble with 
Judge Roberts, as we know very little about what he believes, and I 
share some of those same concerns, particularly with the administration 
not willing to come forth with some of the documentation that was asked 
for.
  And, if not for his strong legal credentials and his repeated public 
and private statements and assurances that he would act independently 
on the bench, not allowing any personal beliefs to color his decisions, 
then I am not certain that I would have reached the decision to support 
his confirmation.
  It is impossible to predict how Judge Roberts, if confirmed, will 
vote on any particular case that comes before the Supreme Court. All we 
can do, as Senators, is look at the nominee's judicial philosophy to 
determine whether the nominee will be faithful to the rule of law and 
to the U.S. Constitution and set aside personal or political beliefs 
and ideologies to ensure that the law and the facts govern judicial 
decisions; that all citizens of this country can go before the courts 
of this land and be treated equally and fairly under the law. Judge 
Roberts has pledged to be that type of Chief Justice, and that is why I 
have concluded that I will vote for the confirmation of his nomination.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, this will be the 10th Supreme Court 
nomination on which I will have voted. With every nomination, I have 
used the same basic test. If the nominee satisfies fundamental 
requirements of qualification and temperament, there are two traits 
that I believe should still disqualify a nominee: If a nominee 
possesses a rigid ideology that distorts his or her judgment and brings 
into question his or her fairness and openmindedness; or if any of the 
nominee's policy values are inconsistent with fundamental principles of 
American law.
  Judge Roberts possesses extraordinary credentials suitable for this 
revered position. That he is highly qualified is not in doubt, and to 
say that he is highly capable is an understatement. Judge Roberts has 
an unusually fine legal mind. His ability to cite and to synthesize 
case law has impressed us all. He has great respect for the law and 
extensive experience arguing cases before the Supreme Court.
  Judge Roberts is articulate and unflappable, with both a judicial 
temperament and a personal demeanor worthy of our highest Court. It is 
easy to understand why he is so liked and respected by those who know 
him.
  While nearly everyone agrees he is qualified, concerns have been 
raised about Judge Roberts' earlier writings, and I share some of those 
concerns. More important, though, are the views he holds today. Is he 
an ideologue or is he capable of revising his views as he receives new 
evidence or hears new arguments?
  During the confirmation hearings, Judge Roberts was pressed on many 
significant issues raised by his prior writings. He did not answer as 
an ideologue would. For the most part, he gave reassuring responses 
showing welcomed shifts--some subtle and some

[[Page 21303]]

not so subtle--away from ideology and toward moderation. Here are a few 
examples.
  As a young White House lawyer, Judge Roberts wrote several times on 
the question of Executive power, and he was supportive of broadly 
expanding the power of the President. Yet, relative to the power of the 
Executive to act in violation of an act of Congress, he said in his 
confirmation hearing:

       If it's an area in which Congress has legitimate authority 
     to act, that would restrict the executive authority.

  In 1981, while working in the Attorney General's Office, Judge 
Roberts wrote:

       Affirmative action program(s) required the recruiting of 
     inadequately prepared candidates.

  During his confirmation hearings, however, Judge Roberts told the 
Judiciary Committee something that sounded quite different with respect 
to affirmative action. He stated:

       The court permits consideration of race or ethnic 
     background, so long as it's not sort of a make-or-break test.

  He also stated:

       If a measured effort that can withstand scrutiny is 
     affirmative action of that sort, I think it's a very positive 
     approach.

  In 1991, during his work as the Principal Deputy Solicitor General, 
Mr. Roberts was a signatory to a Government brief that stated in part:

       We continue to believe that Roe v. Wade was wrongfully 
     decided and should be overruled.

  However, Judge Roberts was asked during the recent hearings:

       Do you think there's a liberty right of privacy that 
     extends to women in the Constitution?

  He replied:

       Certainly.

  Judge Roberts also stated regarding Roe v. Wade that ``it's settled 
as a precedent of the court, entitled to respect under the principles 
of stare decisis.''
  There have also been questions about positions he took while in 
private practice. As a private lawyer, Judge Roberts argued a number of 
times against the power of Congress to legislate in several areas--
attempting to limit the scope of the Americans with Disabilities Act, 
the Clean Water Act, and against the ability of Congress to withhold 
Federal funds from States with a drinking age lower than 21.
  While I disagree with the positions he took, he was advocating the 
position of his clients, not necessarily his own positions. And during 
his confirmation hearings, Judge Roberts said with respect to 
congressional power under the commerce clause:

       It would seem to me that Congress can make a determination 
     that this is an activity, if allowed to be pursued, that is 
     going to have effects on interstate commerce.

  There were times in the past when it appears he went beyond the 
position of his client to advocate for his own more restrictive views. 
For example--although I do not believe it was the position of the 
Reagan administration regarding Federal habeas corpus--Judge Roberts 
suggested that the Supreme Court could lessen its workload if habeas 
corpus petitions were taken off its docket.
  On this issue, too, though, his thinking appears to have evolved. 
Judge Roberts said to the Judiciary Committee and reiterated to me his 
belief that habeas corpus is an important and legitimate tool in the 
search for due process and justice. Judge Roberts said that in those 
early memos he was opposing the repetitious habeas corpus petitions 
that appeared to be gaming the system, not the core right of access to 
Federal courts for a habeas corpus petition.
  An observer of the legal scene for whom I have great respect, Cass 
Sunstein, professor at the University of Chicago Law School, said the 
following recently about the Federal judiciary and this nomination:

       At this point in our history, the most serious danger lies 
     in the rise of conservative judicial activism, by which the 
     interpretation of the Constitution by some Federal judges has 
     come to overlap with the ideology of right wing politicians. 
     For those who are concerned about that kind of activism on 
     the Supreme Court, opposition to the apparently cautious 
     Judge Roberts seems especially odd at this stage.

  Professor Sunstein also wrote:

       In [Judge Roberts'] two years on the Federal bench, he has 
     shown none of the bravado and ambition that characterize the 
     fundamentalists. His opinions are meticulous and circumspect. 
     He avoids sweeping pronouncements and bold strokes, and 
     instead pays close attention to the legal material at hand.

  That is not what I consider to be the description of an ideologue.
  One troubling aspect of the confirmation hearings was Judge Roberts' 
excessive reluctance at times to share his own views. While caution is 
understandable from a nominee, I wish Judge Roberts had been more 
willing to answer appropriate questions from Senators on a number of 
issues.
  The administration has also made this process more difficult than it 
should be. Reasonable requests for relevant requests were denied. 
Although we have memos from his early service as a young lawyer in the 
Reagan administration, we still do not have his writings from the 
period when he was Deputy Solicitor General during the first Bush 
administration. The papers that were sought and denied were perhaps 
more significant than the ones that we received. The administration's 
refusal to provide those documents inevitably raises questions about 
what they might contain.
  Frankly, I believe the administration has too often treated the 
confirmation process as something to escape from rather than an 
opportunity to assure the American people that a nominee shares their 
basic values. The nominations of John Bolton and Alice Fisher are 
recent examples of where relevant documents and information were denied 
the Senate. This is not helpful to the confirmation process nor to the 
Senate's ability to make an informed decision.
  In an attempt to glean more information about the views of Judge 
Roberts, I asked him to meet with me, and he agreed to do so, although 
my request came late. Judge Roberts' responses gave me further 
confidence that he has an open mind and is not driven by ideology.
  At our meeting, I reviewed his approach to the interpretation of the 
Constitution. I asked him whether he agreed with the Chief Justice in 
the Dred Scott case who wrote that the Constitution ``must be construed 
now as it was understood at the time of its adoption, [and] it speaks 
not only in the same words, but with the same meaning and intent with 
which it spoke when it came from the hands of its framers.''
  Judge Roberts assured me that he meant what he said to the Judiciary 
Committee relative to interpreting the Constitution. In response to a 
question at his hearing about constitutional intent, Judge Roberts had 
answered:

       Just to take the example that you gave of the equal 
     protection clause, the framers chose broad terms, a broad 
     applicability, and they state a broad principle. And the fact 
     that it may have been inconsistent with their practice may 
     have meant that . . . their practices would have to change--
     as they did--with respect to segregation in the Senate 
     galleries, with respect to segregation in other areas. But 
     when they adopted broad terms and broad principles, we should 
     hold them to their word and [apply] them consistent with 
     those terms and those principles.

  Judge Roberts continued, and this was to the Judiciary Committee:

       And that means, when they've adopted principles like 
     liberty, that doesn't get a crabbed or narrow construction. 
     It is a broad principle that should be applied consistent 
     with their intent, which was to adopt a broad principle.

  And then he said the following:

       I depart from some views of original intent in the sense 
     that those folks, some people view it as meaning just the 
     conditions at that time, just the particular problem. I think 
     you need to look at the words they use, and if the words 
     adopt a broader principle, it applies more broadly.

  I also asked Judge Roberts about his 1982 memo which argued that 
``Congress has the constitutional authority to divest the Supreme Court 
of appellate jurisdiction in school prayer cases.''
  He assured me he was assigned to argue that position internally for 
discussion purposes in the Attorney General's office as a young lawyer 
and that, as he said at the Judiciary Committee hearing:


[[Page 21304]]

       If I were to look at the question today, to be honest with 
     you, I don't know where I would come out.

  At our meeting, I told Judge Roberts his answer to the question I had 
submitted for the Judiciary Committee's record as part of his 
confirmation hearing was counterintuitive and difficult to accept. This 
was my question to him, whether between January 2005 and the 
President's announcement of his nomination:

       Did you discuss with [Vice President Cheney, Andrew Card, 
     Karl Rove, Alberto Gonzales, Scooter Libby, and Harriet 
     Miers] or others your views on the following: a, whether or 
     not abortion related rights are covered by the right of 
     privacy in the Constitution; b, powers of the President; c, 
     constitutionality of allowing prayer in public places; d, the 
     scope of the right of habeas corpus for prisoners; e, the 
     extent of congressional authority under the Commerce Clause 
     of the Constitution; f, affirmative action; and g, the 
     constitutionality of court stripping legislation aimed at 
     denying Federal courts the power to rule on the 
     constitutionality of specific activities or subject matter.

  Judge Roberts' answer to the Judiciary Committee was:

       I do not recall discussing my views on any of these issues 
     with anyone during the relevant period of time in connection 
     with my nomination.

  When I met with Judge Roberts, I asked him:

       Wouldn't you surely remember if discussions on these 
     subjects had taken place?

  He looked me square in the eye and said they did not take place, nor 
did such discussions occur when the White House was considering him for 
his present job on the Court of Appeals.
  I must take Judge Roberts at his word. The Senate is being asked to 
confirm John Roberts to the highest position on the highest Court of 
the land. I believe he is qualified to assume that awesome 
responsibility. To vote against Judge Roberts, I would need to believe 
either that he was an ideolog whose ideology distorts his judgment and 
brings into question his fairness and openmindedness or that his policy 
values are inconsistent with fundamental principles of American law. I 
do not believe either to be the case.
  Judge Roberts has modified some of his views over time, which I take 
as evidence that he is not an ideolog and has not only a keen mind but 
a mind open to argument and consideration of our Nation's experience. I 
will vote to confirm John Roberts to be Chief Justice of the United 
States.
  I yield the floor and 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. 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.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent, since 
we are in executive session, to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                          Energy Independence

  Mr. NELSON of Florida. Mr. President, I am going to continue to speak 
out on the vulnerable position our country finds itself in with regard 
to our dependence on foreign oil. Somewhere between 58 percent and 60 
percent of our daily consumption of oil comes from foreign shores. If 
that in and of itself is not enough to alarm us--and I think the 
collective Nation has put its head in the sand to ignore the 
ramifications of that fact--certainly the two hurricanes, Katrina and 
Rita, hitting the gulf coast at a very vulnerable position of our oil 
supply as well as our oil refining capacity has reminded us.
  So now with several of the refineries shut down first from Katrina in 
the New Orleans region and the gulf coast region of Mississippi, but 
now with some additional refineries that will be shut down in the Lake 
Charles, LA, region as a result of Hurricane Rita, it all the more 
underscores how vulnerable we are on this thin thread of oil supply and 
oil distribution.
  I think we need an Apollo project or a Manhattan project for energy 
independence. I do not think we ought to make decisions for the 
governing of our country and the comfort and protection of our people 
based on a system of supply and distribution of energy that makes us so 
subject to the whims of things that can happen beyond our control. I 
think we are likely to see this play out in the concern that we are not 
going to have enough home heating fuel for this winter because of the 
disruption that has already occurred. We clearly know what the 
disruption has done already to the prices, but I want to remind the 
Senate that the prices were very high before Hurricane Katrina 
happened.
  In the townhall meetings I was conducting throughout the month of 
August in Florida, continuously people were telling me: Senator Bill, 
we cannot afford to drive to work or, Senator, we cannot afford to 
drive to the doctor.
  That is when the price was at $2.70. After Katrina, of course, it 
went to $3. Who knows what the effect is going to be now as a result of 
Rita. We are living on a thin little margin of error in our supply, in 
our distribution of oil products.
  Is this not enough to wake us up to the fact that this Nation 
collectively ought to come together and say we are going to reduce and 
ultimately eliminate our dependence on foreign oil? We can do that in 
so many different ways.
  Yesterday, I spoke about the coal gasification process for which we 
have put incentives in the energy bill that was signed into law, a 
process that cooks coal, emitting the gas that is a clean-burning gas. 
But that is just one process. Remember, we have 300 years of reserves 
of coal in this country. We do not have to worry about going elsewhere 
in the world to get oil if we are able, through technology development, 
to convert that coal so that it is a clean-burning fuel. That is what I 
spoke about yesterday.
  Today, I tell my colleagues about a process that was actually 
developed back in the first part of the last century by the Germans, 
that is the making of synthetic fuel from coal that is clean burning. 
The South Africans did it, and a lot of the transportation vehicles in 
South Africa run on this synthetic fuel--I think it is a kind of 
diesel--that powers almost all of their vehicles and some of their 
airplanes. Well, we certainly have the resource. We have the coal. Do 
we have the will? The technology is certainly here. It has been here 
since the early part of the last century and one country has already 
employed it and employed it very successfully.
  Tomorrow I am going to come to the Senate floor again and I am going 
to talk about another technology that will help us move toward energy 
independence and to stop this dependence that has put us in such a 
vulnerable position with regard to the defense interests of our country 
and certainly our economic interests. Look what has happened to Delta 
Airlines already. They were in trouble economically long before the 
price of fuel started shooting up, but that is just one consequence. 
Look at the ripple effects of the thousands of people who are going to 
be laid off. Look at the ripple effects of what this Congress is going 
to have to do as we consider the protection of those employees' 
pensions.
  So here it goes. It all comes back to one thing, and that is our 
dependence on an economy that runs on oil when we have known for years 
that we were going to reach the crisis point. It happened with Katrina, 
but it happened back in the early 1970s when there was an oil embargo 
out of the Middle East. It happened again in the late 1970s when there 
was another embargo. When is America going to wake up?
  Each of us has our own ideas, but whenever we try one little thing, 
we cannot get a consensus in the Senate. For the last 4 years, we have 
brought an amendment to the floor, a simple little amendment on doing 
nothing more than raising miles-per-gallon on SUVs, phased in over a 
10-year period so it would not hurt anybody, and we cannot get the 
votes on this floor to pass that.
  Are we beginning to wake up because of what we are facing with 
Katrina? I hope so. This Senator is going to continue to speak out. My 
State, Florida, is in a vulnerable position because we

[[Page 21305]]

are a peninsula that sticks down into these wonderful seas that 
surround us. But that energy has to be brought in. We are a State that 
does not have a natural resource such as oil or coal. We are a State 
that has to import that, and we have to bring it usually from long 
distances.
  I will continue my dialog with the Senate of the United States 
tomorrow, bringing forth another technology that we can develop if we 
but have the will to change our dependence on foreign oil.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the time from 5:45 
to 6:45 p.m. will be under the control of the majority.
  The Senator from Alaska is recognized.
  Ms. MURKOWSKI. Mr. President, I rise this afternoon to join many of 
my colleagues speaking in strong support of the nomination of Judge 
John Roberts to the position of Chief Justice to the United States. It 
is unquestionable that Judge Roberts is eminently qualified to take on 
the position of Chief Justice. He has an impeccable resume. You can 
look at that and say: There is a person who has given his life to the 
law. An encyclopedic recitation of the law and a solid record as both a 
lawyer and a judge void of an ideological agenda indicate that he will 
be a thoughtful and impartial Justice.
  I had an opportunity to speak with Judge Roberts. There are some 
individuals whose knowledge of the law is so overwhelming and so 
impressive that, quite honestly, they are leaps and bounds above the 
rest of us and it is difficult to follow the conversation. The 
conversation I had with John Roberts was one where you are carrying on 
a conversation, he is able to bring in and impart his legal knowledge 
and continue a conversation that both flows and is comfortable. That is 
a unique talent.
  Of interest to me and my State of Alaska is that John Roberts has 
litigated on behalf of Alaskan clients. When the Mayor of Juneau, who 
was Bruce Botelho, testified on behalf of Judge Roberts before the 
Judiciary Committee, he did so as a former attorney general for the 
State of Alaska and as a Democrat. He had this to say in his testimony 
about Judge John Roberts. He said:

       Working with Judge Roberts, I was fortunate to get to know 
     the most remarkable and inspiring lawyer I have ever met. He 
     will lead the Court in a way that will instill public 
     confidence in the fairness, justice and wisdom of the 
     judiciary.

  When he was attorney general, Mayor Botelho retained John Roberts to 
represent Alaska in cases to defend Alaska's sex offender registry, 
Alaska's right to submerged lands, and most notably a case involving 
Indian country, an Alaska Native Claims Settlement Act.
  While he was retained by the State of Alaska, John Roberts, I think 
very eagerly, traveled up to the State to learn firsthand those things 
that he was going to be speaking to. He toured the waters of Glacier 
Bay in a Fish and Game boat, went out on a little riverboat, a skiff by 
most people's standards, in the Yukon-Kuskokwim Delta for a couple of 
days just traveling around. He traveled around and not only talked with 
the other lawyers who might be with the group, but he spoke with the 
people. He talked to the crews on the fishing boats. He engaged the 
people where they were. He talked with them about their local concerns. 
He practiced the pronunciation of the native village names. He was 
engaged. He was a real person to those Alaskans he met.
  So often when we have kind of your east coast lawyers coming back to 
visit us up North, they are viewed with a little bit of suspicion. But 
I think it is fair to say that John Roberts made a very serious and a 
very genuine effort to know and appreciate firsthand the facts that 
were going to be presented to him, the facts he was going to be 
arguing. He was not just going to read some brief in the comfort of his 
study, he was going to come and learn for himself.
  As Alaskans, we are fortunate to have a nominee who understands 
Alaska's unique landscape, our people, and its laws. We have some 
Federal laws and acts that are unique to where we are and our people 
and our land up there, so much so that it is very difficult to become 
well versed in the law. Sometimes I think it is fair to say we think 
those on the outside, those in the lower 48, just don't get what 
happens up North and how it applies with us. But I think we have 
learned with Judge John Roberts that he will take the time to know and 
understand not only Alaska's people but the facts and circumstances all 
over.
  As Americans, we have yet to imagine some of the legal questions John 
Roberts will consider in his tenure. But with his breadth of experience 
and his desire to wholly understand the legal matters before him, I 
believe Judge John Roberts will serve the court with integrity, 
thoughtfulness, and dedication to the law.
  John Roberts has made it clear as a judge that it is not his place to 
use the law to further politics or to seek to question settled law. The 
role of justice is one of great restraint, of strict application of the 
law and not judicial activism. I believe John Roberts when he 
unequivocally pledged to uphold impartiality in the law.
  Judge Roberts has explicitly assured us that his respect for the law 
and legal principle vastly outweigh his personal values, his views, or 
loyalty to anyone or anything other than the rule of law. This is the 
basis, the fundamental standard from which we should consider Judge 
Roberts' nomination. In my mind, there is simply no clear cause for 
opposing his nomination.
  If in his testimony Judge Roberts did not communicate his views on 
legal matters which may come before the Court during his tenure, he was 
entirely forthcoming on his judicial philosophy. Judge Roberts stated 
repeatedly that he would bring no agenda to his work as Chief Justice. 
He stated he would judge each issue on its merits and approach each 
case with an open mind, that legal precedent and not his personal views 
would be his guide.
  Perhaps more so than any other recent nominee, Judge Roberts has 
demonstrated a sound understanding and appreciation of the role of a 
Justice and the necessary constraints within which the third branch of 
government should operate. So today, I call on my Senate colleagues to 
take a step back from our politically charged setting to consider 
fairly a man who is incredibly qualified to become our Chief Justice.
  I will quote from Roberts' testimony as I end here. He said:

       The rule of law--that's the only client I have as a judge. 
     The Constitution is the only interest I have as a judge. The 
     notion I would compromise my commitment to that principle . . 
     . because of views toward a particular administration is one 
     that I reject entirely. That would be inconsistent with the 
     judicial oath.

  John Roberts has what it takes to be the Chief Justice of the United 
States, which is complete love for the law, an erudite legal mind, and 
judicial modesty. I lend my support to the nominee and look forward to 
this body confirming him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I rise in support of Judge Roberts to be 
the next Chief Justice of the U.S. Supreme Court. That probably comes 
as no great surprise to anyone who has followed my career, but I think 
my reasoning hopefully will illuminate a little bit as to the 
difference between my passions as a Member of the Senate and as a 
legislator and my duty as a Senator to confirm nominees to the courts 
of this country because I do see them as different.
  My job as a Senator is to be a passionate advocate for the things I 
believe are best for my State, for the constituents I represent, and 
best for the country and ultimately the world. I come here, as my 
colleagues have noted on occasions, with a fair degree of energy and 
passion and commitment to those causes.
  When I approach the issue of nominations, particularly to a position 
of this import, judicial nominations, I come with a different agenda. A 
court is not a place for zealous advocates to impose their will upon 
the American public. It is not a place for people who believe

[[Page 21306]]

their views as judges are superior to the views of the democratically 
elected officials in this country--better put, that their views are 
better than the people's views because we are, in fact, accountable to 
the people we represent. When I look at the confirmation process for 
judges, I try to step back and use a different criteria--not whether I 
agree with the judge's points of view on a variety of different issues 
but whether I believe the judge can carry out the role of a judge.
  It is interesting in this debate that we have heard here in the 
Chamber and we have been hearing across this country now for the better 
part of 3 or 4 years since we have been locked up in the judicial 
confirmation battle that it has been a battle about ideology. It has 
been a battle about interpretations of the Constitution and rights 
derived from that Constitution and whether they will be upheld or 
whether they will be struck down or whether they will be modified. I 
believe that is an unfortunate debate. It is unfortunate that those who 
are applying or have been nominated for judicial positions are put in 
the positions of now being questioned as if they are running for 
political office, under the scrutiny of someone who is running for 
political office and make judgments about public policy as opposed to 
what the traditional role of the Court has been up until the last 40 or 
50 years, just to decide the case before them in a narrowly tailored 
fashion, to do justice to the parties, in concert with the Constitution 
of this country--applying the law in this narrowly tailored fashion to 
come up with a just result for the parties in the case.
  In the last 40 or 50 years, that type of justice has been rarer and 
rarer to find in our decisions, particularly on the Supreme Court.
  As I come here, I again don't come here as a conservative. A lot of 
my supporters have said I am not sure Judge Roberts is a conservative. 
My response is, I am not sure either. Further, I am not sure it 
matters. What I am sure of is Judge Roberts will be a good judge, will 
be someone who sits and judges the case on the merits of the arguments 
as they apply to the Constitution of this country, and will do so in a 
way that comports with the great tradition in the last 40 or 50 years 
of the American judiciary. I am confident of that.
  I think if there is anything that those on both sides of the aisle 
would say it is that Judge Roberts understands the limited role of the 
courts.
  When Judge Roberts came into my office shortly after he was 
nominated, he stunned me. I have met with a lot of nominees who wanted 
to be judges from Pennsylvania, from the circuit courts as well as 
district courts. This was my first opportunity to meet a nominee for 
the Supreme Court. I have been here 11 years, and this is the first 
nomination for the Supreme Court in my 11 years here in the Senate. But 
having met many people who wanted to aspire to be judge, he was the 
first nominee I met with who used terms such as ``humility'' and 
``modesty'' when describing the role of a judge in his role in the 
judicial process. Words such as ``judicial restraint'' again are not 
hallmarks of this judicial debate we have been engaged in now for the 
last few years. That may give some pause to conservatives who would 
like to see an activist conservative reversing lots of decisions 
conservatives are concerned about which the Court has passed down in 
the last few decades.
  But to me, it gives me comfort to know this is a judge who will apply 
the law, who will not seek to replace the role of the legislature, or 
the President, State legislatures, and the Governors, township 
supervisors, county councils, but that he will do justice with the 
facts before him in the case in solving the dispute that has been 
presented to him.
  As I said, we have had far too little of that kind of justice over 
the last few years.
  As a result, I have written and spoken about the concern I have in 
this country that the judiciary is taking an ever increasing and 
dominant role in our society and in our Government. We are supposed to 
be a government that has checks and balances. When you talk about 
checks and balances, most people think about Republicans and Democrats. 
Of course, checks and balances were written long before there were such 
things as Republicans and Democrats. Checks and balances are the 
remainder of power between the branches of Government, one to check the 
other to make sure this finely tuned and crafted document, the 
Constitution, that establishes these three branches would stay in 
equilibrium.
  There were concerns at the time about a strong President running 
roughshod over the Congress and the judiciary and a strong Congress 
doing the same. Very few had concerns about the judiciary, particularly 
Hamilton in the Federalist Papers. He showed very little concern about 
a judiciary getting out of control. One exception to that was Thomas 
Jefferson. It was not at the time of the writing of the Constitution 
but years later, after a few court decisions had been handed down which 
gave power to the courts, which I am not sure many of the writers of 
the Constitution envisioned.
  But having given them power as a result of earlier court decisions, 
Jefferson wrote in 1821, ``The germ of destruction of our Nation is in 
the power of the judiciary, an irresponsible body working like gravity 
by night, and by day gaining a little today and a little tomorrow and 
advancing its noiseless step like a thief over the field of 
jurisdiction until all shall render powerless the checks over one 
branch over the other, and will become as venal and oppressive as the 
government from which we were separated.''
  That was Jefferson's concern about our judiciary, this 
``irresponsible'' body, in his terms--irresponsible in the sense that 
it owes no responsibility or duty, has no real ability over the 
executive or legislative branches to be checked.
  Why do I go off on this discussion about the courts? It is because of 
this penchant of the judiciary to grab more authority, to act as a 
superlegislature and lord itself over the rest of society that we need 
men such as John Roberts on this Court who understand as Chief Justice 
the danger a judiciary of this kind is to the United States of America 
and to our democracy.
  While I am not sure John Roberts is a conservative, I am not sure he 
will overturn cases which I believe should be overturned, I am sure he 
will do justice. He will execute his duties with restraint, modesty, 
and humility as the Founders who had no concern about the judiciary 
believed those in positions on the Court would do. He is someone whom 
our Founders would be proud of to serve in that position. He is someone 
we desperately need to speak in the Court, to speak to the Court, and 
lead the Court in a direction that usurps less the powers reserved for 
the people in our Constitution.
  I strongly support John Roberts. I hope the President in his next 
nomination will nominate someone very much in the vein of John Roberts. 
This Court and this country need people such as John Roberts.
  I yield the floor.
  Mr. President, 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. MARTINEZ. 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. MARTINEZ. Mr. President, today I rise for the first time as a 
U.S. Senator to exercise my constitutional obligation to provide advice 
and consent to a presidential nominee for Chief Justice to the United 
States Supreme Court. It is a high privilege that carries with it great 
responsibility. The responsibility to ensure, in so much as is 
possible, that the nominee is not only of the highest intellect, 
integrity and character, but that he or she comes to the process with 
no personal ideological agenda. That the nominee recognizes there is no 
room in the business of judging for the personal policy ideals of 
individual judges and that the symbolism of the judge's black robe to 
shield both the litigants

[[Page 21307]]

and the country from the personal idiosyncrasy must be carried out in 
the discharge of the heavy responsibilities of the Court.
  Today I add my voice to that of my colleagues speaking in support of 
the nomination of John Roberts to become the 17th Chief Justice of the 
United States of America.
  Before the confirmation hearings began, we knew that John Roberts had 
impeccable academic qualifications to serve as the chief judicial and 
administrative officer of the highest court in the land.
  Before the hearings began we knew that John Roberts had the 
wholehearted support of prior Solicitors General, in both Democrat and 
Republican administrations.
  We knew that he had the overwhelming support of a majority of members 
of the District of Columbia bar where he practiced and we knew that he 
received the highest possible rating from the American Bar Association.
  In short, we knew that his qualifications to serve were impeccable 
and unassailable.
  And what we now know after the confirmation hearings, after extensive 
interaction with Members of the Senate, 20 hours of testimony and the 
give and take of responding to over 500 questions, is that Judge 
Roberts is possessed of: a quiet humility; a deep understanding and 
modest view of his own significance; a healthy appreciation of the role 
of the Court in the governance of our nation; respect for the 
limitation of precedent; an awareness of the dangers of looking to 
foreign jurisdictions for guidance in shaping the laws of our land; and 
a commitment to respecting the proper role of the courts in 
interpretation of the law.
  I am persuaded that Judge Roberts will look to established precedent, 
be respectful of the doctrine of stare decisis and will use the 
constitution and the law as his guideposts as opposed to any personal 
whim or political agenda.
  In my private meeting with Judge Roberts we discussed his view of the 
role of the Chief Justice. From his thoughtful response, it was clear 
that he had well considered ideas about providing effective and 
constructive leadership to his colleagues on the Court. In every 
institution or endeavor, great leadership finds a way to unite rather 
than to divide. I am confident that Judge Roberts will provide that 
leadership.
  I want to mention that while a nominee's views issues such as the 
``right to privacy'' are unquestionably significant and have occupied a 
great deal of the time dedicated to the confirmation process, our 
entire judiciary looks to the Supreme Court for guidance on many other 
issues other than the ``great constitutional questions of our day.''
  I'm hopeful that as we go forward with our next nominee, we can find 
some time to also discuss issues that are vital to the day-to-day 
administration of justice.
  What are the nominee's views on the cost of litigation in our country 
or the length of time required for litigants to have their claims 
adjudicated? Is there a fair mechanism to address legitimate concerns 
about nonmeritorious cases?
  What has the effect of the speedy trial rule been on the ability of 
litigants in civil case to have a fair and prompt resolution of their 
claims?
  What are the nominee's views on the argument that complex cases 
involving scientific evidence are beyond the ken of average jurors?
  Where does the nominee stand on the difficult issue of sentencing 
guidelines and the current tension existing between the Congress and 
the Courts on the appropriateness of giving federal judges discretion 
in the imposition of sentences?
  Where does the nominee stand on the problems of electronic discovery 
in civil and criminal cases?
  What are the nominee's views on the importance of 12 member juries in 
civil cases? Could juries of 6 serve justice just as well? Why are 
unanimous verdicts required in civil cases could another method lead to 
a better quality of justice?
  These questions may not make for good headlines, but they surround 
issues that are vital to the administration of justice in our great 
country.
  It is my hope we will take the time to discuss them in the coming 
weeks as we go forward with the confirmation process of a nominee to 
replace Sandra Day O'Connor. These are the questions we should consider 
as we depoliticize the confirmation process and return our attention to 
working together to advance the cause of justice in our Nation.
  My colleagues should take note that the American Bar Association gave 
Judge Roberts the rating of ``Well Qualified'' for Chief Justice of the 
United States.
  To earn that rating, the ABA which is viewed as the solo standard, 
says, ``the nominee must be at the top of the legal profession, have 
outstanding legal ability and exceptional breadth of experience and 
meet the highest standards of integrity, professional competence and 
judicial temperament.
  The evaluation of ``Well Qualified'' is reserved for only those found 
to merit the Standing Committee's strongest affirmative endorsement.'' 
In conducting its investigation, the ABA reached out to a wide spectrum 
of people across political, racial and gender lines, including lawyers, 
judges and community leaders--people with personal knowledge of Judge 
Roberts.
  The ABA interviewed Federal and state court judges, including all 
members of the Supreme Court of the United States, members of the 
United States Courts of Appeals, members of the United States District 
Courts, United States Magistrate Judges, United States Bankruptcy 
Judges, and numerous state judges. The results were as follows:
  On integrity: ``He is probably the most honorable guy I know and he 
is a man of his word.'' ``I would be amazed if anyone had any greater 
integrity on either a personal or professional level.'' ``He's a man of 
extraordinary integrity and character.''
  On judicial temperament: ``He has the kind of temperament and 
demeanor you would want in a judge.'' ``He was extremely even-tempered 
and was so good that he could give classes on it.'' ``John Roberts is 
respectful, polite and understated. He has no bluster and is a fabulous 
lawyer. He has no need to impress anyone.
  On professional competence: ``He is brilliant and he understands the 
importance of the independence of the judiciary and the role of the 
rule of law.'' ``His opinions are clear, succinct and very well-
written.'' ``His opinions are in the mainstream of American 
jurisprudence.''
  In my own meeting with Judge Roberts, I was particularly impressed 
with his discussion of the dangers associated with looking beyond the 
borders for guidance or the support of precedent.
  His response reflected a deep and comprehensive understanding not 
only of the importance of judicial precedent in setting boundaries for 
the Court, but also the role of the people, the legislative process and 
our representational form of government. Judge Roberts noted in our 
meeting and again in his testimony before the committee that our judges 
are appointed by our elected President and their appointment requires 
the consent of the duly elected members of the Senate.
  This provides a measure of accountability consistent with the 
intention of the Founding Fathers.
  Looking to a foreign source for legal principles deprives the 
American people of that accountability. To use Judge Roberts words, and 
I paraphrase, it's a bit like looking out over a large crowd to 
identify your friends. If you look hard enough, you can find something 
you like.
  To my colleagues who are poised to cast a vote in opposition to the 
nominee, I would ask them to take a close look at Judge Robert's 
testimony at the commencement of the hearing:

       I have no agenda, but I do have a commitment. 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, and I will remember it's

[[Page 21308]]

     my job to call balls and strikes, and not to pitch or bat.

  I must ultimately arrive at my decision based on a considered 
judgment as to whether this nominee has the qualifications, temperament 
and experience required of such high appointment. Does he have the 
requisite personal ethics and moral code to serve as our nation's 
highest judicial officer?
  I have measured this nominee against this high bar for confirmation 
and find him qualified in every respect.
  I accept Judge Roberts' word as his bond, consistent with his history 
as a man of unquestioned integrity and commitment to the highest ideals 
demanded of our judicial officers. I look forward to casting a historic 
vote in support of this most highly qualified nominee.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oklahoma is recognized.
  Mr. COBURN. Mr. President, first, I have the distinct privilege of 
being on the Judiciary Committee. I also have the distinct privilege of 
serving with three other members on that committee who are nonlawyers 
so I bring to that committee not a legal background but a citizen 
background. One of the things I found very refreshing during the 
hearings was the fact that we have a person in the name of John Roberts 
who recognizes the role of the judiciary as outlined by our Founders. I 
will go into that in a minute.
  I will address, first, some issues that are important.
  We heard today some criticisms of Judge Roberts in sitting and 
hearing the Hamdan case while he was under consideration for this 
position. For the record, I show that Justice Ginsburg, during her 
consideration, decided 24 cases. Justice Breyer decided 15 cases during 
the period of time he was under consideration. I have the attestation 
of ethicists who have made statements in support of the fact that Judge 
Roberts violated no ethical creed and did nothing but his job as an 
appellate justice while hearing this, and I ask unanimous consent to 
have them printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 George Washington


                                        University Law School,

                                  Washington, DC, August 18, 2005.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: A recent story in the Washington Post 
     suggested that it might have been improper for Judge John 
     Roberts to participate on the D.C. Circuit panel that decided 
     the recent case of Hamdan v. Rumsfeld. The Post story relied 
     heavily on a short article written by three professors, 
     Stephen Gillers, David Luban and Steven Lubet, and published 
     on the internet in slate.com.
       I write to provide perspective on the issues raised by 
     these articles and to make clear that Judge Roberts' 
     participation on the panel was proper. To briefly suggest my 
     background to draw such a conclusion, I have taught and 
     written in the field of legal and judicial ethics for over 
     thirty years. The law school text that I co-author has long 
     been the most widely used in the country, and it covers 
     judicial ethics in considerable detail.
       There are several points on which all observers would 
     agree. First, 28 U.S.C. Sec. 455 requires Judge Roberts or 
     any other federal judge to disqualify himself ``in any 
     proceeding in which his impartiality might reasonably be 
     questioned.'' The key term, of course, is ``reasonably.'' 
     Anyone could assert that a given judge was not impartial. 
     Indeed, a litigant might be expected to do so whenever he or 
     she preferred to have someone else hear their case. Thus, the 
     statute does not allow litigants (or reporters or professors) 
     to draw a personal conclusion about the judge's impartiality; 
     the conclusion must be ``reasonable'' to a hypothetical 
     outside observer.
       Second, saying as some cases do, that judges must avoid 
     even ``the appearance of impropriety'' adds nothing to the 
     analysis. Unless the ``appearance'' is required to be found 
     reasonable by the same hypothetical outside observer, the 
     system would become one of peremptory challenges of judges. 
     That is not the system we have, nor would it be one that 
     guarantees the judicial authority and independence on which 
     justice ultimately depends.
       Third, there is no dispute that judges may not hear cases 
     in which they would receive a personal financial benefit if 
     they were to decide for one party over another. The first 
     case cited (albeit not by name) by Professors Gillers, Luban 
     & Lubet was Liljeberg v. Health Services Acquisition Corp., 
     486 U.S. 847 (1988). It simply decided that a judge had a 
     personal interest conflict and could not decide a case that 
     would financially benefit a university on whose Board of 
     Trustees the judge sat. In short, the case says nothing 
     relevant to Judge Roberts' conduct.
       Fourth, a judge may not hear a case argued by a private 
     firm or government office with which the judge is negotiating 
     for employment. The reason again is obvious. That was the 
     fact situation in the remaining two cases cited by Professors 
     Gillers, Luban & Lubet in their slate.com article. The cases 
     break no new ground and provide no new insights relevant to 
     this discussion.
       Critics of Judge Roberts suggest, however, that his 
     ``interviews'' with the Attorney General and with members of 
     the White House staff were analogous to private job 
     interviews. That is simply not the case. A judge's promotion 
     within the federal system has not been--and should not be--
     seen as analogous to exploration of job prospects outside of 
     the judiciary.
       Except for the Chief Justice, every federal judge is at 
     least in principle a potential candidate for promotion to a 
     higher status in the judiciary. One might argue that no 
     district judge should ever be promoted to a court of appeals, 
     and no court of appeals judge should be elevated to the 
     Supreme Court, but long ago, we recognized that such an 
     approach would deny the nation's highest courts the talents 
     of some of our most experienced and able judges. One need 
     only imagine the chaos it would cause if we were to say that 
     no federal judge could hear a case involving the federal 
     government because he or she might be tempted to try to 
     please the people thinking about the judge's next role in the 
     federal judiciary. Nothing in Sec. 455 requires us to say 
     that it would be ``reasonable'' to assume such temptation. We 
     properly assume that judges decide cases on their merits and 
     see their reputation for so doing as their basis for 
     promotion, if any.
       To be fair to the critics, they argue that a judge's 
     situation might be different once actual ``interviews'' begin 
     for the new position. The problem with that, of course, is 
     that interviews are only a step beyond reading the judge's 
     decisions in a file, interviewing observers of the judge's 
     work, and the like. That kind of thing goes on all the time, 
     including in the media. Further, all accounts suggest that 
     several judges were being ``interviewed'' and that for most 
     of the period of the interviews, there was not even a Supreme 
     Court opening to fill. Assuming, as even Professors Gillers, 
     Luban & Lubet do, that no improper pressure or discussion 
     took place in the interviews themselves, it is hard to see 
     that physically meeting with White House staff transforms 
     what is inevitable and proper in the judicial selection 
     process into something more suspect.
       Again, even Professors Gillers, Luban & Lubet ultimately 
     concede that Judge Roberts should not have had to withdraw 
     from all cases brought by the government as the logic of 
     their criticism would seem to suggest. They argue instead 
     that the Hamdan was special. It was ``important'' to the 
     Administration and therefore required special caution.
       I respectfully suggest that an ``importance'' standard for 
     disqualification could not provide sufficient guidance for 
     the administration of the federal courts. Every case is 
     important, at least to the parties. Furthermore, while some 
     cases have greater media interest than others, and some are 
     watched more closely by one interest group or another, every 
     case before the D.C. Circuit that involves the federal 
     government is there because high level Justice Department 
     officials have concluded that the appeal is worth filing or 
     resisting.
       Saying that some cases are important and others are not 
     ultimately reveals more about the speaker's priorities than 
     it does about the intrinsic significance of the case. Indeed, 
     earlier this year, the Supreme Court decided United States v. 
     Booker and United States v. Fanfan involving the Sentencing 
     Guidelines. Few decisions have had more impact on the 
     operation of federal courts in recent years, yet it was 
     widely reported that Professor Gillers opined to Justice 
     Breyer--correctly in my view--that he need not recuse himself 
     even though his own work product as a former member of the 
     Sentencing Commission arguably was indirectly at issue. 
     Importance of the case was not the controlling issue for 
     Professor Gillers then, and it is simply not a standard now 
     that can clearly guide a judge as to which cases require 
     disqualification and which do not.
       Indeed, the critics of Judge Roberts' remaining a part of 
     the Hamdan panel overlook the fact that judges of the D.C. 
     Circuit are assigned to the cases that they hear on a random 
     basis. That randomness is part of the integrity of the 
     court's process and it guarantees that no panel can be 
     ``stacked'' with judges favorable to one litigant or another. 
     Weakening the standard for a reasonable appearance of 
     impropriety, and making recusal turn on which litigants can 
     place news stories accusing judges with of a lack of ethics 
     would adversely affect the just outcomes of cases more than 
     almost any other thing that might come out of the hearings on 
     Judge Roberts' confirmation.
       In short, in my opinion, no reasonable observer can 
     ``reasonably question'' the propriety of Judge Roberts' 
     conduct in hearing

[[Page 21309]]

     the Hamdan case. He clearly did not violate 28 U.S.C. 
     Sec. 455. Indeed, he did what we should hope judges will do; 
     he did his job. He participated in the decision of a case 
     randomly'assigned to him. We should honor him, not criticize 
     him, for doing so.
           Respectfully,
                                                 Thomas D. Morgan,
     George Washington University Law School.
                                  ____



     Statement by Professor Geoffrey C. Hazard, Jr., University of 
                        Pennsylvania Law School

       In my opinion, Judge Roberts could have decided to recuse 
     himself in the Hamdan case but was not obliged to. Hence, it 
     was a matter of professional judgment. These situations, 
     where a judge is being considered for some other or 
     additional possibility, are fairly common these days, hence 
     part of the environment. Also, recusing would require some 
     kind of explanation, which could lead to leaks, which could 
     embarrass other government procedures, such as background 
     checks. I believe that it is reasonable to say that he 
     should, have recused himself, but also reasonable for him to 
     have concluded that it was not obligatory.

  Mr. COBURN. I thought it would be important for the American people 
to hear what our Constitution says about our judges. I also thought it 
would be important for the American people to hear the oath sworn by a 
judge.
  I have been a Senator for less than a year. When I was campaigning--I 
also will readily admit I am a pro-life conservative from Oklahoma--but 
when I was asked during that campaign if I had a litmus test on a 
Supreme Court nominee, every time I said ``no,'' except one: Integrity. 
It doesn't matter what position a judge holds. It doesn't matter what 
their background is. It doesn't matter what their thoughts on any issue 
are. If they lack integrity, none of the rest of it matters. No one can 
claim that John Roberts lacks integrity.
  During that campaign, I very well explained to the people of Oklahoma 
that I didn't want a Justice that sided with me. I didn't want a 
Justice that sided with anybody, except the law and the Constitution.
  Here is what article III says about judges:

       The judicial Power of the United States, shall be vested in 
     one supreme Court, and in such inferior Courts as the 
     Congress may from time to time ordain and establish. The 
     Judges, both of the supreme and in inferior Courts, shall 
     hold their offices during good Behavior, [we heard some 
     conversation about foreign law; Judge Roberts passes the bar 
     on his refusal to use foreign law] and shall at stated Times, 
     receive for their Services a Compensation which shall not be 
     diminished during their Continuance in Office.
       [Their power] shall extend to all Cases, in Law and Equity, 
     arising under this Constitution, and the Laws of the United 
     States, and Treaties made, or which shall be made, under 
     their Authority;

  It reads in article 6 that:

       This Constitution and the Laws of the United States which 
     shall be made in Pursuance thereof, and all Treaties made, or 
     which shall be made, under Authority of the United States, 
     shall be the supreme Law of the Land, and the Judges in every 
     State shall be bound thereby, any Thing in the Constitution 
     or Laws of any State to the Contrary notwithstanding.
       The Senators and Representatives before mentioned, and the 
     Members of the several State Legislatures, and all executive 
     and judicial Officers, both of the United States and the 
     several States, shall be bound by Oath or Affirmation, to 
     support this constitution; but no religious Test shall ever 
     be required as a Qualification to any Office or public Trust 
     under the United States.

  The oath John Roberts will take and each Justice before him is as 
follows:

       I do solemnly swear that I will administer justice without 
     respect to persons and do equal right to the poor and to the 
     rich, and that I will faithfully and impartially discharge 
     and perform all the duties incumbent upon me under the 
     Constitution and the laws of these United States, so help me 
     God.

  There are going to be several of my colleagues who will vote against 
John Roberts. The real reason they will be voting against John Roberts 
is because he would not give a definite answer on two or three of the 
social issues today that face us. He is absolutely right not to give a 
definite answer because that says he prejudges, that he has made up his 
mind ahead of time. The religious test I spoke about is one of if you 
don't agree with me and what I believe and if you don't believe there 
are certain rights to privacy or certain rights that are there that are 
not spelled out in the Constitution that have become rights, you have 
set up a religion. The religious test is going to be that if he won't 
give an answer on those controversial social issues such as abortion 
today, he will never qualify. Under that religious test, no nominee 
President Bush will nominate to the Supreme Court will ever get their 
vote, regardless of whether they are pro-Roe v. Wade or against Roe v. 
Wade. The fact is, they will not commit.
  Therefore, if you can't know or you are suspicious that somebody 
might take one position or the other ahead of time and you have that as 
a test, you yourself are violating one of the tests of the 
Constitution.
  I believe John Roberts is a man of quality. Most importantly, he is a 
man of integrity. I don't want him to rule my way. I want him to rule 
the right way. The right way is equal justice under the law for all of 
us. If he does that and if the rest of the Supreme Court starts 
following him, we will reestablish the confidence that is sometimes 
lacking in the Court today, and we will also reestablish the balance 
between the judiciary, executive, and legislative branches.
  It is my hope this body will give a vote to John Roberts that he 
deserves based on his interpretation, knowledge, and honesty with the 
committee and, fundamentally, with his integrity that is endorsed by 
the American Bar Association. Everyone who knows him knows he will do 
just that, equal justice under the law for every American.
  I yield the floor.
  Mr. ENZI. I rise today to share my thoughts on the nomination of 
Judge John Roberts to be the Chief Justice of the U.S. Supreme Court. 
Like most Americans, I watched the Judiciary Committee hearings with 
great interest and curiosity. Judge Roberts could potentially be the 
17th Supreme Court Chief Justice in the history of the United States. 
It is amazing to consider that only 16 other people have shared that 
honor. It is a much shorter line than the number of Presidents back to 
George Washington--42.
  Considering this tie with history, I was thrilled to be watching the 
proceedings. However, I am also aware of my serious responsibility as a 
U.S. Senator at this time. The Senate has the duty to give its advice 
and consent to the President's nomination. Given the comparative youth 
of Judge Roberts, the vote this week could affect the dispensation of 
constitutional questions for many decades.
  During over 20 hours of questions, I had ample opportunity to 
consider the qualities and character of Judge Roberts. I observed Judge 
Roberts' keen intelligence and modesty regarding his accomplishments. I 
also enjoyed his sense of humor in the midst of intense and repetitive 
questioning. He convinced me that he is qualified to serve on the 
highest Federal bench.
  During the hearings, I was reminded of a common fallacy where people 
think judges are politicians. Judges are not politicians. It has been 
easy to slip into the thinking that we need to know their political 
allegiance so that we can know what their decisions will be. We also 
begin thinking that judges should make decisions based on good policy. 
Finally, we believe that judges have to make us promises on the future 
decisions so they can win our votes. Judges are not politicians. We 
need to know their qualifications, not their political allegiances. We 
need to know that their decisions will be made on the rule of law, not 
on good policy. We need to know that judges will not make promises to 
prejudge future cases in order to win votes. Judges are not 
politicians. A judge's only constituent should be the U.S. 
Constitution. If the people were the constituents of judges, our 
confidence in an impartial hearing and ruling on our case would 
collapse.
  A judge should be an intelligent, impartial, open, and unbiased 
executor of the law. I believe that Judge Roberts meets these 
qualifications and is fit to serve as the Chief Justice of the Supreme 
Court. I am pleased that a bipartisan majority of the Judiciary 
Committee passed him through the committee. I go home to Wyoming most 
weekends. It lets me personally poll my constituents. That is an 
advantage of being from the least populated State. I can assure you 
they are impressed with Judge Roberts. That is

[[Page 21310]]

probably not a surprise. However, during the week when I am in DC, I 
visit with the janitors, electricians, picture hangers, and others 
around the offices. To a person they had comments like ``this man 
really knows his stuff.'' ``He answers their questions without a single 
note or staff person whispering in his ear. I bet he could take the bar 
exam tomorrow and still pass it. This guy is good'' and I think that is 
the opinion of mainstream America. I look forward to voting on his 
nomination later this week.
  Even after the vote, the Senate's work to fill the Supreme Court will 
not be complete. We are waiting for another nomination from President 
Bush to replace retiring Justice O'Connor. I am pleased with the recent 
precedent set by the Judiciary Committee.
  In a bipartisan and timely manner, they voted out a nominee based on 
his qualifications. They voted him out based on his stated devotion to 
applying the rule of law. As the Senate prepares to consider the next 
Supreme Court nomination, it is my hope that the same process will be 
followed--a timely consideration based upon the qualifications of the 
nominee and not on scoring political points.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. COBURN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________