[Congressional Record (Bound Edition), Volume 151 (2005), Part 16]
[Senate]
[Pages 21629-21648]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDENT pro tempore. Under the previous order, the Senate will 
proceed to executive session to resume consideration of Calendar No. 
317, which the clerk will report.
  The legislative clerk read the nomination of John G. Roberts, Jr., of 
Maryland to be Chief Justice of the United States.
  The PRESIDENT pro tempore. Under the previous order, the time until 
10:30 a.m. will be equally divided between the two leaders or their 
designees.


                   RECOGNITION OF THE MAJORITY LEADER

  The PRESIDENT pro tempore. The majority leader is recognized.


                                SCHEDULE

  Mr. FRIST. Mr. President, in a few minutes, we will begin the final 
remarks regarding the nomination of Judge John Roberts to serve as 
Chief Justice of the United States. Beginning at 10:30 this morning, 
the time until the vote has been allocated for closing comments by the 
chairman and ranking member of the Judiciary Committee. The vote on the 
confirmation of Judge Roberts will begin at 11:30.
  I remind all Senators to be at their desks at the outset of this 
historic vote. Senators should come to the Chamber around 11:20 for the 
11:30 vote.
  Following the confirmation vote on Judge Roberts, the Senate will 
take up the Defense appropriations bill. Senators should expect 
additional votes on the Defense bill, as well as votes on Friday.
  The vote we cast today is one of the most consequential of our 
careers. With the confirmation of John Roberts, the Supreme Court will 
embark upon a new era in its history--the Roberts era. For many years 
to come, long after many of us will have left public service, the 
Roberts Court will be deliberating on some of the most difficult and 
fundamental questions of U.S. law. As all Supreme Courts that have come 
before, their decisions will affect the lives of all Americans.
  When the President announced his nomination of Judge Roberts in July, 
we pledged to conduct a full, thorough, and fair review of Judge 
Roberts' credentials and qualifications. We also pledged we would 
conduct those deliberations in a timely and expeditious manner so the 
Supreme Court could begin its term on October 3 at full strength. We 
have delivered on both promises.
  I thank Chairman Arlen Specter for his leadership and handling of the 
hearings process, and I also want to thank my colleagues for moving 
forward so the Supreme Court can do its important work for the American 
people.
  I expect a strong bipartisan vote in support for Judge Roberts later 
this morning. As has been said by Members on both sides of the aisle, 
Judge Roberts is an exceptional candidate who possesses the keen 
intelligence, the exemplary character, and sterling credentials to 
serve as Chief Justice of the highest Court in the land. I look forward 
to confirming him to lead the Supreme Court of the United States.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Massachusetts is 
recognized.
  Mr. KENNEDY. Mr. President, my friend and colleague, the Senator from 
New York, is here. He wants to speak briefly. I know the time is 
divided for the next hour. I ask unanimous consent that he follow my 
remarks.
  The PRESIDENT pro tempore. The time is equally divided.
  Mr. FRIST. Mr. President, for the information of my colleagues, 
Senator Lott has been scheduled to speak. When he comes, we will be 
alternating back and forth.
  The PRESIDENT pro tempore. Does the Senator seek recognition now?
  The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I will probably speak 8 or 9 minutes. My 
colleague wanted to speak for about 4 or 5 minutes. That would not 
interfere with the previous agreement. I ask unanimous consent that he 
be recognized following me.
  The PRESIDENT pro tempore. That would take an amendment to the 
previously agreed-to order.
  Without objection, it is so ordered.
  Mr. KENNEDY. I thank the Chair.
  Mr. President, the Supreme Court of the United States is the ultimate 
arbiter of our Constitution and, as such, it is the final protector of 
individual rights and liberties in this great Nation. So when we vote 
to confirm a justice for a lifetime appointment to the Supreme Court, 
we have an awesome responsibility to get it right. And when we vote to 
confirm the Chief Justice of the United States, we have an even greater 
responsibility, because the stakes are even higher.
  The Chief Justice sets the tone for the Court and, through 
leadership, influences Court decisions in ways both subtle and direct. 
Indeed, during the course of his confirmation hearings, Judge Roberts 
expressly acknowledged the important role that a Chief Justice can play 
in persuading his fellow justices to come along to his way of thinking 
about a particular case. During my discussion with him of the Supreme 
Court's landmark decision in Brown v. Board of Education, I mentioned 
that the decision was a unanimous one. Judge Roberts responded:

       Yes. That represented a lot of work by Chief Justice Earl 
     Warren because my understanding of the history is that it 
     initially was not. And he spent--it was re-argued. He spent a 
     considerable amount of time talking to his colleagues and 
     bringing around to the point where they ended up with 
     unanimous court. . .

  On another day, when I again mentioned Brown and the indispensable 
role played by Chief Justice Warren, Judge Roberts said:

       Well, Senator, my point with respect to Chief Justice 
     Warren was that he appreciated the impact that the decision 
     in Brown

[[Page 21630]]

     would have. And he appreciated that the impact would be far 
     more beneficial and favorable and far more effectively 
     implemented with the unanimous court, the court speaking with 
     one voice, than a splintered court.
       The issue was significant enough that he spent the extra 
     time in the reargument of the case to devote his energies to 
     convincing the other justices--and, obviously, there's no 
     arm-twisting or anything of that; it's the type of collegial 
     discussion that judges and justices have to engage in--of the 
     importance of what the court was doing and an appreciation of 
     its impact on real people and real lives.

  I have thought long and hard about the exchanges I had with Judge 
Roberts, and I have read and re-read the transcript and the record. And 
try as I might, I cannot find the evidence to conclude that John 
Roberts understands the real world impact of court decisions on civil 
rights and equal rights in this country. And I cannot find the evidence 
to conclude that a Chief Justice John Roberts would be the kind of 
inspirational leader who would use his powers of persuasion to bring 
all the Court along on America's continued march toward progress.
  Therefore, I do not believe that John Roberts has met the burden of 
proof necessary to be confirmed by the Senate as Chief Justice of the 
United States. Sadly, there is ample evidence in John Roberts' record 
to indicate that he would turn the clock back on this country's great 
march of progress toward equal opportunity for all. The White House has 
refused to release documents and information from his years in the 
Reagan administration and in the first Bush administration that might 
indicate otherwise, but without those records we have no way of 
knowing.
  Both in committee and on the floor, some have argued that those of us 
who oppose John Roberts' nomination are trying to force a nominee to 
adopt our ``partisan'' positions, to support our ``causes,'' to yield 
to our ``special interest'' agendas.
  But progress toward a freer, fairer Nation where ``justice for all'' 
is a reality--not just a pledge in the Constitution--is not a personal 
``cause'' or a ``special interest'' or a ``partisan'' philosophy or 
ideology or agenda.
  For more than half a century, our Nation's progress toward a just 
society has been a shared goal of both Democrats and Republicans. Since 
Republican Senate Leader Everett Dirksen led his party in supporting 
the Civil Rights Act of 1964, equal rights for all has been a consensus 
cause, not a ``partisan cause.'' Since Congress adopted the Voting 
Rights Act of 1965 and began the process of spreading true democracy to 
all Americans, it has been a national goal, not a ``special interest'' 
goal. Fulfilling the Founders' ideals of equality and justice for all 
is not just a personal ideology, it is America's ideology. Surely, in 
the 21st century, anyone who leaves the slightest doubt as to whether 
he shares it fully, openly and enthusiastically should not be confirmed 
to any office, let alone the highest judicial office in the land.
  Our doubts about John Roberts' commitment to continuing our national 
progress toward justice was, quite appropriately, a major issue in the 
committee hearings. The fundamental question was whether his record and 
his answers suggested that he would be an obstacle to that progress, by 
treating cases before the Supreme Court in a narrow legalistic way that 
resists and undermines the extraordinary gains of the past.
  For all his brilliance and polish, he gave us insufficient evidence 
to demonstrate that the John Roberts of today is not the ideological 
activist he clearly was before. The strong evidence from his own hand 
and mind, the crucial 3-year gap in evidence because of the 
Administration's refusal to release his papers as Deputy Solicitor 
General, and his grudging and ambiguous answers at the hearing left too 
many fundamental doubts, and could put the entire Nation at risk for 
decades to come.
  Some argue that John Roberts was just doing his job and carrying out 
the policies of the Reagan administration in the early 1980s. But his 
own writings refute that argument--these were clearly his own views, 
and were enthusiastically offered as his views. If he didn't agree with 
those policies as a lawyer in the Justice Department in 1981 and 1982, 
he would not have applied for the more political and more sensitive job 
in the White House Counsel's office when he left the Justice 
Department. He knowingly chose to be a voice for their policies, and 
often advocated even more extreme versions of those policies.
  He certainly knew what was expected of him when he chose to become 
Deputy Solicitor General in 1989. That position was explicitly created 
to be the political monitor over all Department of Justice litigation. 
He was eager to advance the ideological views that his earlier 
memoranda show he personally supported. He obviously wasn't just 
``following orders''--he was an eager recruit for those causes. That 
was the evidence he needed to overcome in the hearings, and his effort 
to do so is unconvincing.
  I hope I am proven wrong about John Roberts. I have been proven wrong 
before on my confirmation votes. I regret my vote to confirm Justice 
Scalia even though he, too, like John Roberts, was a nice person and a 
very smart Harvard lawyer. I regret my vote against Justice Souter, 
although at the time, his record did not persuade me he was in tune 
with the Nation's goals and progress.
  But as the example of Justice Scalia shows, and contrary to the 
assertions of my colleagues across the aisle, I have never hesitated to 
vote for a Republican President's nominee to the Supreme Court whose 
commitment to core national goals and values appeared clear at the 
time. In fact, I have voted for seven of them, more than the number of 
nominees of Democratic Presidents I have voted for.
  Our Senate responsibility to provide advice and consent on the 
Supreme Court Justices and other nominations is one of our most 
important functions. The future and the quality of life in this Nation 
may literally depend on how we exercise it. If we are merely a 
rubberstamp for the President's nominees, if we put party over 
principle, then we have failed in this vital responsibility. Even more 
important, if we go along to get along with the White House, we will be 
undermining the trust the Founders placed in us, and we will diminish 
the great institution entrusted to our care. Every thoughtful and 
reasonable ``no'' vote is a vote for the balance of powers and for the 
Constitution, so we must never hesitate to cast it when our independent 
consciences tell us to do so.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from New York is recognized.
  Mr. SCHUMER. Mr. President, I thank the Senator from Massachusetts 
for his leadership on these issues through the decades.
  Mr. President, today John Roberts will be confirmed as the 17th Chief 
Justice of the United States, so it is a historic day. Not everyone in 
this Senate will vote for him, and our opinions differ on many things: 
How much we were consulted, how many documents we received, how fair 
John Roberts will be, how ideological he will be.
  In the end, I decided that while there was a very good chance that 
Judge Roberts would be a very conservative but mainstream Justice 
without an ideological agenda, he was not convincing enough. And the 
down side, even a minority downside that he would be a Justice in the 
mold of Scalia and Thomas, was too great to risk, so I will vote no.
  But no matter how we vote, today we all share a fervent hope that 
Justice Roberts becomes a great jurist and serves our Nation well. In 
the end, I cannot vote for Judge Roberts, but I hope he proves me wrong 
in my vote and that he takes the goodwill of this body and the American 
people with him onto the bench; that he rules fairly; that he looks out 
for the little guy if the law is on the little guy's side; that he will 
be the lawyer's lawyer, without an ideological agenda; that he sees 
justice done in the many areas of the law that he will profoundly 
affect over the next several decades.
  However, as the curtain falls on this vote, the curtain is about to 
rise on the nomination of a replacement for Justice Sandra Day 
O'Connor. If ever there

[[Page 21631]]

was a time that cried out for consensus, the time is now. If the 
President nominates a consensus nominee, he will be embraced, the 
President will be embraced, and the nominee will be embraced with open 
arms by people on this side of the aisle. Not only we on this side of 
the aisle, but the American people hope and pray in these difficult 
times for a consensus nominee. The ball is in your court, Mr. 
President.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Murkowski). The Senator from Mississippi 
is recognized.
  Mr. LOTT. Madam President, I am delighted this morning to rise to 
speak on the nomination of Judge John Roberts to become Chief Justice 
of the U.S. Supreme Court. Before I proceed on my discussion of Judge 
Roberts, I want to take a moment to commend the President of the United 
States for his brilliant selection of this outstanding human being, 
lawyer, judge, and public servant. I had thought there would be 
pressures to move in some other direction, that some other person might 
be selected for a variety of reasons--good reasons. But the most 
important thing was for him to select the best man or woman for the 
job, regardless of anything else. That is what the President did.
  When I had an opportunity to comment to White House representatives 
when they asked my recommendations, I said, frankly, I didn't have a 
particular person I recommend. I have faith in this President and I 
believe he will make the right choice. But second, I urged that he pick 
the best person, regardless of sex, religion, race, religious 
background, region of the country, or philosophy. And then I had one or 
two that I thought, well, maybe you do not want to suggest these 
people.
  I was, frankly, delightfully surprised when the President selected 
Judge Roberts. I am very pleased with this selection.
  I also want to thank Senator Specter of Pennsylvania for conducting 
these confirmation hearings in such a fair, dignified, and respectful 
manner. We can only hope that the nature of these hearings will carry 
over to the next Supreme Court nomination. Every Senator had ample 
opportunity to make statements and ask what were supposed to be 
questions that quite often became just another speech, but I thought 
that the overall tenor and tone of the committee hearings was very 
good.
  Maybe this nomination and the conduct of these hearings in the 
Judiciary Committee and the vote today in the Senate will be 
overwhelming and will bring to a final close a dark and ugly chapter in 
the history of Federal judicial nominations and confirmations. What we 
have done to men, women, and minorities over the past 4 years, until 
May of this year, was one of the nastiest things I have ever witnessed. 
Good people's remarks were misinterpreted. I will not even describe how 
strongly I feel about some of the things that were said and done.
  We found a way to change the atmosphere, to move some of these 
nominees, and now to vote on this nomination. Thank goodness. This is a 
good opportunity. Let's continue these future hearings and these 
nomination considerations in this vein.
  We are set to vote later this morning on the nomination of Judge 
Roberts to be the 17th Chief Justice of the U.S. Supreme Court, the 
youngest nominee in probably over 150 years. The vote will place Judge 
Roberts at the head of the judiciary branch, a job that comes with an 
immense amount of responsibility and a position for which Judge Roberts 
is eminently qualified.
  Before I met Judge Roberts, I knew him by his reputation. I had some 
mutual friends who had worked with him at the Supreme Court, who had 
served with him in previous administrations, who had known him in a 
variety of roles, and to a man or woman they gave glowing reports on 
his quality and his credentials.
  By Supreme Court standards he is still a young man, just 50 years 
old, but he has compiled an outstanding resume, graduating sum cum 
laude from Harvard, taking only 3 years. He graduated magna cum laude 
from Harvard Law School and served as managing editor of the Harvard 
Law Review, with clerkships for Judge Henry Friendly and then Associate 
Justice William Rehnquist.
  When I met with him I said, You have an outstanding resume and we 
will overlook the Harvard thing--which always gets a laugh. And I am 
only jesting--in half.
  Judge Roberts embarked upon a distinguished career in public service 
and served as Associate White House Counsel in the Reagan 
administration and the Principal Deputy Solicitor General in the George 
H.W. Bush administration. In all, Judge Roberts argued 39 cases before 
the U.S. Supreme Court, winning more than half. That is a pretty 
sterling record of appearances, let alone the victories. The American 
Bar Association gave him its highest rating, a unanimous ``well-
qualified,'' both for the Supreme Court and DC Circuit nominations.
  After visiting with Judge Roberts and watching how he has conducted 
himself during his nomination process, I continue to be extremely 
impressed. He is brilliant, eminently qualified, and fair man who 
clearly has a passion for the law. If confirmed, I believe he will 
serve the United States with honor and distinction for a long time.
  Before Hurricane Katrina hit my home area and shifted the focus of us 
all, as we try to do all we can in a responsible way to help the people 
who have been so devastated by this natural disaster, I consistently 
heard concerns from Mississippians about the direction of our judicial 
system. My constituents realized that judicial activism is a serious 
problem that threatens their rights and ignores the constitutional 
obligations of the judiciary. With recent decisions such as Kelo v. 
City of New London that allows local governments to take private 
property and give it to someone else for private development, and the 
Pledge of Allegiance cases out of the Ninth Circuit, it should be clear 
to everyone what the dangers of judicial activism are and how it causes 
serious concerns.
  I have a friend who serves in the Federal Judiciary, a very close 
friend. Recently, we were together in my home and after breakfast on 
Sunday morning we were talking about things in general. He said: I am 
concerned about the attitude toward the Federal judiciary. We actually 
have to worry about security in our courthouses. Why is this?
  And I said: Your Honor, my friend, look at your decisions. You 
Federal judicial members are out of control. And until you get back in 
the box and stay as judges, not as legislators, and quit rendering 
these ridiculous decisions, there will be no respect.
  However, I have learned, also, in so many ways in recent years, that 
one of the sayings of the Jaycees when I was a young man in a young 
businessman's organization was that this is a government of laws, not 
of men. It is just not so. You can have the best laws in the world, you 
can have the best system in the world, which we do, but if you have the 
wrong men and women in place, it does not work.
  So we have a little changing of the judiciary that is called for. And 
these recent decisions I refer to just magnify why this is needed. 
Judicial activism is a threat to all Americans, regardless of political 
alliances. The use of judicial activism to advance conservative or 
liberal political goals is simply wrong.
  Judge Roberts' own testimony illustrates his understanding of the 
constitutional role of the judiciary and shows his understanding of the 
issue. He said:

       Judges are like umpires. Umpires don't make the rules, they 
     apply them. . . . They make sure everybody plays by the 
     rules, but it is a limited role.

  While Judge Roberts acknowledged this analysis might be an 
oversimplification, but it shows a welcome respect for the 
constitutional role of the Judiciary.
  When he was asked what type of judge he would like to be known as, 
Judge Roberts responded ``a modest judge,'' meaning he has an 
``appreciation that the role of the judge is limited, that a judge is 
to decide the cases before them, they are not to legislate, they are 
not to execute the laws.''
  Judge Roberts vowed to decide each case in a fair-minded, 
independent, and

[[Page 21632]]

unbiased fashion and has stated repeatedly that personal ideology has 
no place in the decision making process of a judge.
  Simply put, this is a rock solid judicial philosophy. This is what 
separates judges from legislators. We as legislators are free to use 
our personal ideology and make decisions, and boy do we. We are elected 
and accountable to our constituents for those decisions if we go too 
far, in their opinion, one way or the other.
  Judge Roberts addressed the role of personal ideology in the 
judiciary during his hearings by saying:

       [Judges] are not individuals promoting their own particular 
     views, but they are supposed to be doing their best to 
     interpret the law, to interpret the Constitution, according 
     to the rule of law, not their own preferences, not their own 
     personal beliefs.

  During his hearings, Judge Roberts was asked to answer several 
questions on issues that potentially could come before him if confirmed 
to the Supreme Court. He handled those questions exactly as he should 
have. It is a well-established standard that nominees should not answer 
questions that might bias them on future cases. I commend Judge Roberts 
for his handling of that sometimes difficult situation with 
steadfastness, with intelligent responses, and even sometimes with a 
sense of humor.
  This nomination has served as a fantastic example of how the Ginsburg 
standard should be applied. Judicial nominees should have a fair and 
respectful hearing. They should not be expected to prejudge issues or 
cases. Judges must remain impartial and should not be asked to commit 
to rule a certain way in order to win confirmation votes. Judge 
Roberts, like Justice Ginsburg and all the other sitting judges, 
rightly refused to prejudge cases or issues likely to come before the 
Supreme Court.
  During this process, Judge Roberts' record was scrutinized more 
closely than any other person in the history of judicial nominees. 
Senators had access to unprecedented 76,000 pages of documents from his 
time spent in public service and 327 cases decided by him on the DC 
Circuit. In addition, he was questioned for nearly 20 hours by the 
Judiciary Committee before receiving bipartisan support and a vote of 
13 to 5. Through all of this intense scrutiny Judge Roberts and his 
record remain consistent and impressive.
  Being placed under the microscope like this is not for the 
fainthearted. I admire how he handled this entire process with grace 
and poise.
  Nobody should be surprised that when faced with a Supreme Court 
vacancy President Bush nominated a judicial conservative for that 
position. He said he would, I expected him to, and so he did. I expect 
him to do it again. In fact, you are talking about a consensus nominee. 
There won't be a consensus if he nominates somebody like Justice 
Ginsburg.
  But I voted for her. I knew she was going to be way out of the 
mainstream, extremely liberal, but President Clinton won the election. 
He selected her. She was qualified by education, by experience, by 
demeanor. I voted for her. I did not expect her then to go on the 
Supreme Court and vote the way I would vote. She was a liberal. She is 
today. And probably--I have every reason to believe--a wonderful lady 
and a very thoughtful judge. She just comes to wrong conclusions, in my 
opinion.
  The President was elected twice to the Presidency, telling anyone who 
would listen he would fill a vacancy in the Supreme Court with a 
judicial conservative. So why are we surprised? Why would you expect 
anything else? That is the way it is going to be; and that is the way 
it should be. He has followed through on that promise with John 
Roberts. He will likely do so again in the next nomination. And the 
next nominee, whoever it might be, deserves to be treated with the same 
fairness, respect, and dignity given to Judge Roberts.
  There is clear and convincing evidence here that Judge Roberts is the 
right choice to be Chief Justice of the U.S. Supreme Court. I look 
forward to voting in favor of his confirmation.
  I yield the floor.
  Mr. AKAKA. Mr. President, I rise today in reluctant opposition to the 
confirmation of John Roberts as Chief Justice of the United States. 
While Judge Roberts is a talented lawyer and Constitutional scholar, I 
do not believe that these qualities alone are sufficient for leading 
the highest court in the land.
  I approached this nomination as I do any nomination: with an open 
mind. I take my role of advice and consent on nominations seriously. 
That is why I joined a group of my colleagues in the Senate to 
respectfully ask the President to make available documents from 
Roberts' time in the Solicitor General's office. These documents could 
have provided valuable insight into how Roberts views important 
Constitutional questions, and I am disappointed that the White House 
did not fulfill this request. The White House owes not only the Senate, 
but also the American people, access to this information.
  And so I am left to wonder about Judge Roberts' positions on critical 
questions regarding our Constitution and our way of life. I continue to 
hope that Judge Roberts shares my understanding that the Constitution 
provides robust protections guaranteeing the equality of all Americans. 
I hope that Judge Roberts' view of the Constitution is not as narrow as 
I have been led to believe.
  However, neither the White House nor Judge Roberts has convinced me. 
On the contrary, they have given me reasons for alarm. Because the 
White House failed to respond to requests for Roberts' more recent work 
at the Solicitor General's office, the memoranda Judge Roberts wrote as 
a young lawyer in government service are all I have to go on. These 
memos raise serious concerns for me about Judge Roberts' commitment to 
protecting fundamental rights. Judge Roberts expressed views on civil 
rights, the Voting Rights Act, and the right to privacy convey a view 
of the Constitution that I simply do not agree with.
  I recognize that these memos were written a long time ago, which is 
why I reserved judgement until Judge Roberts had the opportunity to 
clarify his position on these issues at the hearings. I listened 
carefully for Judge Roberts to dispel concerns about these memoranda, 
hoping that Judge Roberts would clarify the values that would guide his 
deliberations as Chief Justice. While Judge Roberts would occasionally 
distance himself from his old memos, stating that he was simply an 
employee doing what his boss had asked of him, he never fully explained 
where he stands on these important issues now.
  Consequently, I am left with the memos to piece together Judge 
Roberts' judicial philosophy. These memos concerned me not only for the 
ideas they conveyed, but also the language that Judge Roberts chose to 
express his ideas. To me, phrases such as ``illegal amigo,'' ``Indian 
giveaway,'' and ``supposed right to privacy'' convey an unacceptable 
lack of respect for the people whose rights and freedoms Judge Roberts 
would be entrusted to protect. It disappointed me that, when asked 
whether he regretted his flippant tone, Judge Roberts not only 
deflected responsibility but also failed to articulate any semblance of 
regret for these hostile words.
  For these reasons, I cannot vote for this nominee. This was not an 
easy decision for me. I have great respect for my many friends--both 
inside and outside this body--who have come to a different conclusion. 
I hope the President will use his next nomination to appoint a justice 
whom all Senators can agree upon, and if doubts arise the White House 
will choose to resolve rather than exacerbate them.
  Mr. BOND. Mr. President, among the great responsibilities and 
privileges of being a Member of the U.S. Senate is assessing the 
qualifications and voting on the confirmation of members of the U.S. 
Supreme Court. Reflecting upon this vote, one gets a sense of the 
weight of the responsibility--we will be voting on a replacement for 
only the 17th Chief Justice in the history of our great country.
  But this vote is not unique because of its infrequency but because of 
its place in our system of government. The Supreme Court is the final 
voice in the

[[Page 21633]]

land on the meaning of the words of the Constitution as they apply to 
the extent of the rights guaranteed to individuals by the document. It 
is the final word on the demarcation of power between the legislative 
and executive branch of government and it is the voice on defining the 
power reserved for the Federal Government and the governments of the 
individual States.
  As a member of the legislative branch of our national government who 
was in a former life a State Governor, I am acutely aware of the 
importance of these lines and the consequences when they are breached. 
As a Member of the Senate, I do not welcome decisions overturning 
legislative acts that I support but I frequently work with my 
colleagues to reject efforts to meddle in state affairs. As a Governor 
attempting to guide my State, I had to labor through the burdens placed 
in my way by an intrusive Federal Government.
  The judicial branch of our government, most notably the Supreme 
Court, has been designated by the Constitution as the branch to 
maintain these divisions of power and law making.
  So it is a great privilege and responsibility to have a role in 
confirming people who will occupy a place on the court. In this case, 
confirming the person that will lead that court.
  After observing Judge Roberts during 3 days of hearing before the 
Committee on the Judiciary, I am convinced the power that comes with 
the vote of a Supreme Court Justice will be in wise and capable hands. 
First, throughout this strenuous session, Judge Roberts' intelligence, 
patience and temperament were on full display and were nothing short of 
extraordinary.
  But it was that which he had to say that satisfies me and secures my 
vote for his confirmation.
  He made a convincing case through his words and his demeanor that he 
will approach his responsibility with modesty and humility, which means 
approaching cases with an open mind and carefully studying the words of 
Congress or the precedents of the Court on constitutional questions. As 
Judge Roberts said and I agree, ``a certain humility should 
characterize the judicial role. Judges . . . are servants of the law, 
not the other way around.''
  Also, as Judge Roberts repeatedly reminded his inquisitors, he is not 
a politician. In that statement, I am comforted. I commend him on his 
willingness to remind my colleagues that he was not before Congress to 
compromise or give hints on how he might vote on a hypothetical case in 
exchange for confirmation votes. Rather, he confirmed repeatedly that 
the constitution and the rule of law will be his guide.
  Judge Roberts made the case that he recognizes that the authority on 
the division of power between the branches of government and the 
authority on the division of power in our federalist system of 
government are contained in the Constitution.
  It is a positive thing that we are going to confirm a decent person 
for the Court, but that should not be our guiding principle. Our vote 
should not rest on whether a future judge will approach cases as a 
father or a son, on the side of the weak or the strong or with the 
intent to expand rights or protections. That subjects judicial decision 
making to subjective standards, compromises impartiality and removes 
the blinders from justice. Some have argued that this is to dodge a 
question. Rather, it is an indication that one recognizes that the 
obligation of the judge is to follow the Constitution rather than his 
own interests.
  At one point during the proceedings, the Judge was prodded to comment 
on a case in which he participated to decide the extent of benefits 
available under a health plan. To limit or expand the benefits provided 
under a statute is the job of a legislature, not a judge. Judge Roberts 
agrees with this important principal. As he stated. ``As far as a Judge 
is concerned, they have to decide questions according to the rule of 
law, not their own social preferences, not their policy views, not 
their personal preferences, but according to the rule of law.''
  If the support of a majority of a State or national legislature can 
be won, a statute can be changed and this concern addressed. I suspect 
that many of my colleagues, particularly those who will vote against 
this nomination, have come to rely on the judiciary to advance changes 
that have no support in legislatures. Hence, their frustration with 
Judge Roberts. He has clearly defined views of the role of the 
judiciary and the role of the legislature and they do not appear to be 
blurred. He has not shown a willingness to approach case guided by a 
point of view or a subjective standard--that is what is to motivate 
legislators as they debate on the campaign trail and the floors of 
congress and statehouses across the country.
  But as Judge Roberts again put it so well, ``If the people who framed 
our Constitution were jealous of their freedom and liberty, they would 
not have sat around and said, `Let's take all the hard issues and give 
them over to the judges.' That would have been the farthest thing from 
their mind.''
  As did the Founders, I do not believe State and national legislative 
bodies are incapable of settling tough and contious issues. I do not 
believe it is benevolent or admirable for judges to remove questions 
from the public realm because they are divisive. Roberts has shown the 
modesty and respect for the role of the court and an legislature to 
refrain from that path.
  Judge Roberts has also made it clear that he finds no place for 
reflection on the public attitudes and legal documents of foreign lands 
in the consideration of constitutional questions. They do not offer any 
guidance as to the words of our constitution.
  During his testimony, Judge Roberts displayed a respect for 
Constitution and the rule of law as the principles that should guide 
him when ruling on a case. His view of the role of the judiciary is 
very consistent with that of my own.
  Finally, I believe President Bush has executed his duties in a 
responsible manner that will serve our Nation well. He interviewed many 
distinguished and qualified attorneys an judges in the country to serve 
on our Nation's highest court. After responsible consultation with 
members of the Senate and careful and thoughtful deliberation, 
President Bush returned to the Senate the name of John Roberts. As we 
have learned, his qualifications to lead the Supreme Court and Federal 
judiciary are as unquestioned as they are impressive.
  President Bush was reelected with over 62 million votes, the highest 
received by a presidential candidate. He is the first candidate in 16 
years to win a majority of the popular vote, something not achieved by 
his predecessor, who incidentally won easy confirmation of both of his 
appointments to the high court.
  President Bush resoundingly won the right to nominate someone who he 
views as fit to serve on the Supreme Court and he won the right to have 
that nominee considered fairly and impartially. The President also 
asked for the thoughts and advice of Members of this body as to the 
pending nomination. When it came time to exercise his responsibility as 
President, he did so by nominating someone with an impeccable record 
and extraordinary qualifications. In the execution of his duties, 
President Bush exceeded any standard to which he should be held.
  Nonetheless, I suspect that this nomination and the subsequent 
nomination will not be treated in the manner that President Clinton's 
nominees were treated, when they received 96 votes. But it should as 
should the next nominee.
  Judge Roberts is an outstanding nomination. He will get my support 
and he deserves the overwhelming support of this body.
  Mr. ENSIGN. Mr. President, I rise to speak in support of John 
Roberts' nomination for Chief Justice of the Supreme Court. The debate 
that the Senate will have this week is truly historic. In our Nation's 
history there have only been 16 previous Chief Justices. The 
opportunity to vote on a nomination for Chief Justice is a once-in-a-
lifetime opportunity and should be undertaken with recognition of its 
importance. The importance of this vote simply cannot be overstated.

[[Page 21634]]

  I believe that our Nation is best served when we confirm individuals 
who appreciate that the role of a judge is not to make laws but to 
uphold the Constitution. We need judges who understand that their oath 
requires them to follow the Constitution and to apply the law in a 
modest fashion. Judges do not serve in the legislative branch. They 
should not make the law. As Senators, that is our job.
  Under our Constitution, judges are appointed to interpret the law. 
They should apply the law without prejudice. Judges must be open to the 
legal arguments presented by each of the parties before them. They must 
fully and fairly analyze the facts and faithfully apply the law.
  I have carefully considered John Roberts' record and his 
qualifications. I believe that his record reflects a proper 
understanding of the role of judges. I met with him and discussed face-
to-face his views on the role of Supreme Court Justices. Judge Roberts 
possesses the highest intellect and integrity. He has also demonstrated 
that he is fair-minded. He possesses the necessary experience, as an 
attorney for the government, in private practice and as a judge, to 
serve on the high court. By any objective measure, John Roberts is 
qualified to sit on the bench, and he deserves to be confirmed.
  Judge Roberts, in his testimony before the Judiciary Committee and in 
his writings throughout his career, has presented himself as a man with 
a clear view of the role of a Supreme Court Justice: to interpret the 
law and to uphold the Constitution. His answers to specific questions 
have been necessarily and appropriately limited so we must trust, as we 
have with past nominees to the Court, that Judge Roberts is presenting 
himself and his views honestly. I believe he has, and for the sake of 
our country, I hope so.
  Today, throughout the judicial branch, judicial activism is impeding 
and restricting freedoms the American people should expect to enjoy as 
envisioned by our Nation's founders. Recent and significant rulings 
have established standards created not by elected Members of Congress 
but by activist judges. These rulings have infringed on Americans' 
rights to exercise their religious beliefs; to recite the Pledge of 
Allegiance; and to own property without fear that the Government might 
seize that property for economic gain.
  Now more than ever we need justices who will stand against this type 
of judicial activism, adhere to the proper role of upholding the 
Constitution, and leave the task of creating laws to the Congress. John 
Roberts is representing himself as someone who believes in a return to 
what our founders intended and we hope his portrayal of his views is 
honest and true.
  Historically, the Senate has confirmed a nominee when the nominee is 
found to be well qualified. John Roberts certainly meets this 
criterion. Historically, the Senate has based confirmation on a 
nominee's record, writings, and prior decisions. There is ample 
documentation on which my colleagues can make a decision with respect 
to John Roberts' nomination. And the documentation supports 
confirmation.
  John Roberts deserves to be confirmed, and America deserves a Chief 
Justice like John Roberts.
  I yield the floor.
  Mr. FEINGOLD. Mr. President, I will vote in favor of the nomination 
of Judge John Roberts to be the Chief Justice of the United States. 
This has not been an easy decision, but I believe it is the correct 
one. Judge Roberts' impeccable legal credentials, his reputation and 
record as a fair-minded person, and his commitment to modesty and 
respect for precedent have persuaded me that he will not bring an 
ideological agenda to the position of Chief Justice of the United 
States and that he should be confirmed.
  I have often noted that the scrutiny that I will apply to a 
President's nominee to the Supreme Court is the highest of any 
nomination and that the scrutiny to be applied to the position of Chief 
Justice must be the very highest. I have voted for executive branch 
appointments, and even for court of appeals nominees, whom I would not 
necessarily vote to put on the Supreme Court.
  Furthermore, because the Supreme Court, alone among our courts, has 
the power to revisit and reverse its precedents, I believe that anyone 
who sits on that Court must not have a pre-set agenda to reverse 
precedents with which he or she disagrees and must recognize and 
appreciate the awesome power and responsibility of the Court to do 
justice when other branches of Government infringe on or ignore the 
freedoms and rights of all citizens.
  Judge Roberts came to his hearing with a record that few can top. His 
long record of excellence as a lawyer practicing before the Supreme 
Court, and his reputation as a lawyer's lawyer who has no ideological 
agenda, carry substantial weight. I wanted to see, however, how that 
record and reputation would stand up against a searching inquiry into 
his past statements and current views. As a member of the Judiciary 
Committee, I was proud to play a role in that inquiry. I believe the 
hearing was fair and thorough and I congratulate the chairman and 
ranking member, and all of the members of the committee, for the 
seriousness with which they undertook this task.
  One important question I had was about Judge Roberts' views on the 
role of precedent and stare decisis in our legal system. A lot of the 
concern about this nomination stems from the fact that many important 
precedents seem to be hanging by a thread. In both our private meeting 
and in his hearing, Judge Roberts demonstrated a great respect for 
precedent and for the importance of stability and settled expectations. 
His themes of modesty and humility showed appropriate respect for the 
work of the Justices who have come before him. He convinced me that he 
will take these issues very seriously, with respect to both the 
constitutional right to privacy and many other issues of settled law.
  As I am sure every Member of the Senate noticed and expected, Judge 
Roberts did not expressly say how he would rule if asked to overturn 
Roe v. Wade. But if Judge Roberts abides by what he said about how he 
would approach the question of stare decisis, I think he should vote to 
uphold Roe. He certainly left some wiggle room, and he said he would 
approach the possibility of overturning a case differently if the 
underlying precedents themselves came into question. But it will be 
difficult to overrule Roe or other important precedents while remaining 
true to his testimony about stability and settled law, including his 
statement that he agrees with the outcome in Griswold v. Connecticut. I 
know the American people will be watching him very closely on that 
question, and I personally will consider it a reversal of huge 
proportions, and a grave disappointment, if he ultimately does attempt 
to go down that road.
  I was also impressed that Judge Roberts does not seem inclined to try 
to rein in Congress's power under the commerce clause. He repeatedly 
called attention to the Court's recent decision in Gonzales v. Raich as 
indicating that the Court is not headed inexorably in the direction it 
turned in the Lopez and Morrison cases limiting Congress's power. His 
approving references to Raich suggests to me that he will take a more 
moderate stance on these issues than his mentor, Chief Justice 
Rehnquist. His attitude seems to be if Congress does its job right, he 
will not stand in the way as a judge. That is, of course, cold comfort 
if the Court creates new hoops for Congress to jump through and applies 
them retroactively. I hope that Judge Roberts will recognize that 
Congress can pay attention to what the Court says is needed to justify 
legislation only if the Court gives clear advance notice of those 
requirements.
  Judge Roberts also seemed to reject a return to the Lochner era, when 
a majority of the Court invoked the due process and contracts clauses 
of the Constitution to strike down child labor and other laws it 
disagreed with, and the courts openly acted as a superlegislature, 
rejecting congressional enactments based on their own political and 
economic judgments. Judge Roberts disparaged the Lochner decision, 
saying, ``[y]ou can read that opinion

[[Page 21635]]

today and it's quite clear that they're not interpreting the law, 
they're making the law.'' That is a marked contrast to many in the so-
called ``Constitution in Exile'' movement, including recently confirmed 
DC Circuit Judge Janice Rogers Brown.
  Judge Roberts' determination to be a humble and modest judge should 
lead him to reject efforts to undermine Congress's power to address 
social and economic problems through national legislation. I view that 
as a significant commitment he has made to the Congress and to the 
country.
  Another important issue involves not so much respect for settled 
precedent, but rather questions that will arise in the future with 
respect to the application of the Bill of Rights in a time of war. The 
Supreme Court has already dealt with a series of cases arising from the 
Bush administration's conduct of the fight against terrorism, and will 
undoubtedly face many more during the next Chief Justice's term. 
Indeed, how the new Justices address these issues may well define them 
and the Court in history.
  For me, Judge Roberts' discussion of the Foreign Intelligence 
Surveillance Court, which has been such an issue in the Patriot Act 
debate, was a defining moment in the hearing. His answers showed a gut-
level understanding of the potential dangers of a court that operates 
entirely in secret, with no adversary process. His instincts as a 
lawyer, one who trusts our judicial system and its protections to yield 
the correct result under the rule of law, seemed to take over, and he 
seemed genuinely disturbed by the idea of a court without the usual 
protections of an open, adversary process. Here is what he said about 
the FISA Court to Senator DeWine:

       I'll be very candid. When I first learned about the FISA 
     Court, I was surprised. It's not what we usually think of 
     when we think of a court. We think of a place where we can 
     go, we can watch the lawyers argue and it's subject to the 
     glare of publicity and the judges explain their decision to 
     the public and they can examine them. That's what we think of 
     as a court.
       This is a very different and unusual institution. That was 
     my first reaction. I appreciate the reasons that it operates 
     the way it does, but it does seem to me that the departures 
     from the normal judicial model that are involved there put a 
     premium on the individuals involved.

  Judge Roberts' comments, and that he went out of his way to express 
surprise at the fact that this secret court even exists, suggests to me 
that he would address issues related to FISA, such as government 
secrecy and challenges to civil liberties, with an appropriately 
skeptical mindset.
  I was troubled when Judge Roberts refused to give a fuller answer 
about his view of the Supreme Court's decision in the Hamdi case, and I 
have concerns about his decision as an appeals court judge in the 
Hamdan case regarding military commissions. But Judge Roberts did tell 
me that he believes: ``The Bill of Rights doesn't change during times 
of war. The Bill of Rights doesn't change in times of crisis.'' I was 
pleased to hear him recognize this fundamental principle.
  I do not want to minimize the concerns that have been expressed by 
those who oppose the nomination. I share some of them. Many of my 
misgivings about this nomination stem from Judge Roberts' refusal to 
answer many of our reasonable questions. Not only that, he refused to 
acknowledge that many of the positions he took as a member of the 
Reagan administration team were misguided or in some cases even flat-
out wrong.
  I do not understand why the one person who cannot express an opinion 
on virtually anything the Supreme Court has done is the person whom the 
American public most needs to hear from. No one on the committee asked 
him for a commitment on a given case or set of issues. We certainly 
recognize that it is possible his views might change once he is on the 
Court and hears the arguments and discusses the issues with his 
colleagues. All of those caveats would have been perfectly appropriate. 
But why shouldn't the committee and the public have some idea of where 
he stands, or at least what his instincts are, on recent controversial 
decisions?
  Although in some areas he was more forthcoming than others, Judge 
Roberts did not answer questions that he could and should have--
unfortunately with the full support of committee members who want to 
smooth his confirmation--and I think that is disrespectful of the 
Senate's constitutional role. In addition, the administration's refusal 
to respond to a reasonable, limited request for documents from the time 
Judge Roberts served in the Solicitor General's office did a real 
disservice to the country and to the nominee. My voting in favor of 
Judge Roberts does not endorse this refusal. In fact, if not for Judge 
Roberts' singular qualifications, I may have felt compelled to oppose 
his nomination on these grounds alone. Future nominees who refuse to 
answer reasonable questions or whose documents the administration--any 
administration--refuses to provide should not count on my approval.
  Also troubling was Judge Roberts' approach to the memos he wrote as a 
young Reagan administration lawyer. His writings from his early service 
in government were those of a very smart man who was at times a little 
too sure of himself and too dismissive of other viewpoints. I wanted to 
see if the Judge Roberts of 2005 had grown from the John Roberts of 
1985, whose strong views often suggested a rigid ideological agenda. I 
wanted to see the possibility of a seasoned, wise, and just John 
Roberts on the Supreme Court, not just a more polished, shrewder 
version of his younger self.
  Unfortunately, he refused to disavow any of those memos, many of 
which laid out disturbing opinions on a variety of issues, from voting 
rights, to habeas corpus, to affirmative action. He refused to 
acknowledge that some of his tone and word choice in that era 
demonstrated a lack of sensitivity to minorities and women, and to the 
challenges they face. Instead, he took refuge in the argument that he 
was simply doing his job, so we are not now supposed to infer anything 
about his beliefs or motivations based on the memos he wrote in the 
1980s.
  I found these arguments unpersua-
sive, particularly since several of these memos indicate that those 
were, in fact, his own personal views. And I do not understand why he 
felt he had to defend these 20-year-old memos. Maybe it was pride. 
Maybe it was a political strategy dictated by a White House that so 
rarely admits error. But take voting rights--it should have been easy 
for Judge Roberts to say that in retrospect he was wrong about the 
dangers of the effects test, and that the 1982 amendments to the Voting 
Rights Act that he opposed have been good for the country. Instead, he 
said he wasn't an expert on the Voting Rights Act and insisted on the 
correctness of his position. That troubles me.
  The John Roberts of 2005 did not have to embrace the John Roberts of 
1985, but in some cases he did, all too readily. On the other hand, I 
am not sure that the John Roberts of 1985 would have told Senator 
Feinstein with respect to affirmative action that: ``A measured effort 
that can withstand strict scrutiny is . . . a very positive approach.'' 
His answers to questions on affirmative action, seemed to me, on 
balance, to be an encouraging sign that he will not undo the Court's 
current approach.
  Finally, I was unhappy with Judge Roberts' failure to recuse himself 
in the Hamdan v. Rumsfeld case, once he realized he was being seriously 
considered for a Supreme Court nomination. It is also hard to believe, 
as Judge Roberts testified, that he does not remember precisely when 
the possibility of an ethics violation first came to his attention. 
Judge Roberts sat on a court of appeals panel that heard the appeal of 
a district court ruling that, if upheld, would have been a huge setback 
for the administration's position on military commissions and the 
detainees at Guantanamo Bay. And he heard oral argument just 6 days 
after interviewing for a Supreme Court appointment with the Attorney 
General of the United States, who also was a major participant in the 
underlying legal judgment of the administration that was challenged in 
the case. I am troubled that Judge Roberts apparently

[[Page 21636]]

didn't recognize at the time that there was an ethical issue.
  I give great weight to ethical considerations in judicial 
nominations. For example, when Judge Charles Pickering solicited 
letters of recommendation for his court of appeals nomination from 
lawyers practicing before him in the district court, I found that very 
significant, especially in combination with his actions in a cross 
burning case where improper ex parte contacts were alleged. But while 
the issue raised about Judge Roberts is serious, I do not see such a 
pattern with Judge Roberts, who has a long record and reputation for 
ethical behavior. Nor is there evidence of the egregious, almost 
aggressive unethical behavior that was present in the nomination of 
Judge Pickering.
  I hope that Judge Roberts now understands the concerns that I and a 
number of respected legal ethicists have about his participation in the 
Hamdan case. It is not too late for him to recuse himself and allow a 
new panel to hear the case.
  At the end of the day, I had to ask myself: What kind of Justice does 
this man aspire to be? An ideologue? A lawyer's lawyer? A great Supreme 
Court Justice like Justice Jackson, who moved comfortably from the top 
legal positions in the Department of Justice to a judicial position in 
which he was more than willing to challenge executive power? A Chief 
Justice who will go down in history as the leader of a sharp 
ideological turn to the right, or a consensus builder who is committed 
to the Court and its role as guarantor of basic freedoms?
  I have talked to a number of people who know John Roberts or to 
people who know people who know John Roberts. Those I have heard from 
directly or indirectly have seen him develop since 1985 into one of the 
foremost Supreme Court advocates in the Nation, whose skills and 
judgment are respected by lawyers from across the ideological spectrum. 
They don't see him as a champion of one cause, as a narrow ideologue 
who wants to impose his views on the country. They see him as 
openminded, respectful, thoughtful, devoted to the law, and truly one 
of the great legal minds of his time. That carries a great deal of 
weight with me. And it helps to overcome my frustration with Judge 
Roberts for not distancing himself from what he wrote in his Reagan-era 
memos and with the White House for refusing to release relevant 
documents to the committee.
  History has shown that control of the White House, and with it the 
power to shape the courts, never stays for too long with one party. 
When my party retakes the White House, there may very well be a 
Democratic John Roberts nominated to the Court, a man or woman with 
outstanding qualifications, highly respected by virtually everyone in 
the legal community, and perhaps with a paper trail of political 
experience or service on the progressive side of the ideological 
spectrum. When that day comes, and it will, that will be the test for 
the Senate. And, in the end, it is one of the central reasons I will 
vote to confirm Judge John Roberts to be perhaps the last Chief Justice 
of the United States in my lifetime. This is not a matter of deference 
to the President's choice. It is instead a recognition that the Supreme 
Court should be open to the very brightest of legal minds on either 
side of the political spectrum.
  The position of Chief Justice demands the very highest scrutiny from 
the Senate, and the qualifications and abilities of the nominee for 
this position must shine through. Judge Roberts has the legal skills, 
the intellect, and the character to be a good Chief Justice, and I hope 
he fulfills that promise. I wish him well. May his service be a credit 
not only to the rule of law, but also to the principles of equality and 
freedom and justice that make this country so great.
  Mr. CORZINE. Mr. President, I believe that the U.S. Constitution is 
about protecting the rights of Americans, not about restricting those 
rights. And that is why I will vote against Judge John Roberts' 
nomination to be Chief Justice of the United States.
  Judge Roberts and I appear to hold different views of the role that 
the Federal Government should play in our country. I believe that 
Government is here to preserve rights, to protect and support our 
citizens, and to offer opportunity to those less fortunate. Based on 
the limited record before us, I am not convinced that John Roberts 
shares these views.
  Though he is clearly intelligent, articulate, and accomplished, I am 
deeply concerned that Judge Roberts' narrow and cramped view of the 
Constitution will lead inevitably to the restriction of our most scared 
rights and protections. I fear that Judge Roberts will interpret the 
Constitution so narrowly that he will reach results that are 
inconsistent with decades of well-established Supreme Court precedent.
  From civil liberties to the ability of courts to protect minorities, 
from voting rights to school desegregation, from privacy to 
environmental protections, Judge Roberts has consistently adopted 
positions intended to limit the role of Government in a way that would 
harm all Americans.
  I simply cannot vote to confirm a nominee who may vote to roll back 
decades of progress and protections for our most fundamental rights. 
Our most basic rights hang in the balance and I am not prepared to 
gamble with these rights.
  Before the hearings on Judge Roberts began, I stated that we needed 
to learn his positions on all of the important issues that face 
Americans today, including the right to privacy, a woman's right to 
choose, civil rights, the rights of consumers, federalism, the scope of 
executive power, and the Government's ability to help those who need it 
most. I asserted that it was essential to learn Judge Roberts' position 
on first amendment protections and the authority of Congress to enact 
laws protecting the environment.
  I also requested that the White House and Judge Roberts release 
documents relating to 16 cases in which he was involved from 1989 to 
1993 as the Principal Deputy Solicitor General in the Justice 
Department. I wanted to review these documents to learn all we needed 
to know about a man selected for a lifetime appointment to the highest 
Court in the Nation.
  I sought this information and asked for these documents because I 
strongly believe that Senators have both a right and a duty to evaluate 
thoroughly Supreme Court nominees. We have a right to request that the 
nominee answer relevant questions about legal philosophy and we have a 
corresponding duty to look carefully into all aspects of the nominee's 
record, including his or her prior statements, memoranda, and judicial 
opinions. When faced with a nominee who has an extremely sparse record, 
as Judge Roberts does, the level of scrutiny required in evaluating 
answers and reviewing documents must necessarily be higher.
  Unfortunately, during 3 days of testimony before the Senate Judiciary 
Committee, Judge Roberts raised more questions than he answered. And we 
have never been given the opportunity to review the documents requested 
from the Solicitor General's Office. This lack of information, when 
coupled with Judge Roberts' early writings in which he advanced an 
exceedingly restrictive view of the civil rights laws as a lawyer in 
the administrations of Presidents Ronald Reagan and George H.W. Bush, 
raises serious concerns.
  During his testimony, Judge Roberts failed to answer the most basic 
questions about his constitutional and legal philosophy--in total, he 
refused to answer almost 100 questions during the hearings. Judge 
Roberts also refused to distance himself from the vast majority of his 
prior, controversial writings. In failing to state his position on many 
critical issues, Judge Roberts left us with little to go on beyond his 
prior writings and limited judicial record.
  I have been struck, in listening to the statements of many of my 
colleagues who have struggled with how to vote on this nomination, by 
the simple fact that we are all guessing--guessing if Judge Roberts 
will uphold the right to privacy, guessing if he will restrict the 
right of a woman to choose, guessing if he will uphold Federal laws 
regulating the environment,

[[Page 21637]]

guessing if he will greatly expand Executive power, and guessing if he 
will support the gains we have made in the area of civil rights during 
the past 40 years. I cannot in good conscience cast a vote for the 
position of Chief Justice of the Supreme Court based on conjecture.
  My concerns about Judge Roberts' legal philosophy run deepest in the 
areas of privacy, civil rights, and federalism.
  One of our most important liberties is the right of individuals to 
privacy, which includes a woman's right to choose. During his hearings, 
Judge Roberts acknowledged that the due process clause of the 
Constitution encompasses the right to privacy. He also stated that he 
believed that the right to privacy encompasses the right of married 
couples to access contraception as established by the Court in Griswold 
v. Connecticut, 381 U.S. 479 (1965). However, beyond these broad, 
generalized statements supporting the constitutional underpinnings of 
the right to privacy and the holding in Griswold, Judge Roberts failed 
to explain his views on the right to privacy.
  When pressed with questions on the landmark 1973 decision, Roe v. 
Wade, 410 U.S. 113, which extended the right to privacy recognized in 
Griswold to encompass a woman's right to choose, Judge Roberts either 
refused to answer the questions or responded with generalizations about 
precedent. Judge Roberts made it clear that his analysis on this issue 
starts with the holding in the 1992 Supreme Court case, Planned 
Parenthood of Connecticut v. Casey, 505 U.S. 833, which held that the 
right to choose may be restricted so long as State statutes do not have 
the purpose or effect of imposing an ``undue burden'' on a woman's 
right. In using this as his starting point, Judge Roberts leaves open 
the strong possibility that he may vote, perhaps as early as the 
upcoming Supreme Court term, to further restrict a woman's right to 
choose.
  I cannot overlook the similarity between Judge Roberts' responses to 
questions about a woman's right to choose and the answers given by 
Justice Clarence Thomas during his confirmation hearings. Like Judge 
Roberts, Justice Thomas acknowledged a right to privacy in the 
Constitution. Justice Thomas also expressed support for the decision in 
Griswold. However, once he was confirmed to the Supreme Court, Justice 
Thomas argued vehemently against the existence of a general right to 
privacy and even called for the reversal of Roe v. Wade, describing the 
decision as ``grievously wrong.''
  We simply cannot allow this to happen again. And we should not have 
to. We should not be in a position today where we have to guess if 
Judge Roberts will attempt to overrule Roe v. Wade or to further 
restrict the constitutional right of all women to choose.
  In addition to my concerns about the right to privacy, I have serious 
concerns about Judge Roberts' views on civil rights. His record is 
extremely limited, but what little evidence we have reveals Judge 
Roberts' repeated attempts to roll back legal protections afforded to 
minorities and to those less fortunate.
  In the area of affirmative action, Roberts urged the Reagan and the 
first Bush administrations to oppose affirmative action programs. 
Roberts sought to overturn established precedent supporting affirmative 
action programs and, in 1981, he fought to abolish race-and gender-
conscious remedies for discrimination. This position was contrary to 
the Supreme Court's ruling in United Steelworkers of America v. Weber, 
443 U.S. 193 (1979), which upheld affirmative action in employment. 
During his confirmation hearings, Judge Roberts refused to state his 
present position on this issue.
  Judge Roberts also has a detailed record of opposing a broad 
interpretation of the Voting Rights Act, which is considered one of the 
most powerful and effective civil rights laws ever enacted. While 
working in the Justice Department during the Reagan administration, 
Judge Roberts urged the administration to oppose a bill that allowed 
discrimination under section 2 of the act to be proven through a 
showing of the discriminatory effects, and not just the discriminatory 
intent, of State voting restrictions. Congress enacted the bill over 
the administration's objections. Judge Roberts' approach, had it been 
adopted, would have made it tremendously difficult to overturn 
discriminatory voting laws. Again, during his confirmation hearings, 
Judge Roberts refused to state his present position on this issue.
  Judge Roberts' record in the area of access to education is also 
troubling. In prior writings, Judge Roberts expressed opposition to the 
Supreme Court decision in Plyler v. Doe, 457 U.S. 202 (1982), wherein 
the Court ruled that the Constitution mandates that all children, 
including the children of undocumented immigrants, have the same access 
to education. Again, during his confirmation hearings, Judge Roberts 
refused to state his present position on this issue.
  Additionally, memoranda written by Judge Roberts during his tenure at 
the Department of Justice raise concerns about his eagerness to deny 
the Supreme Court the power to decide questions of constitutional 
interpretation and subsequent remedies. In one writing, Judge Roberts 
argued that Congress had the power to strip courts of the power to 
desegregate schools through busing in the wake of Brown v. Board of 
Education, 347 U.S. 483 (1954). During his hearings, Judge Roberts 
neither stated his present view on this issue nor distanced himself 
from his prior writings.
  Had Judge Roberts' views prevailed on these civil rights issues or on 
other similar issues during his tenure in the Reagan and George H.W. 
Bush administrations, we would today live in a far different world. It 
would be a world with fewer protections for minorities, women, and 
people with disabilities.
  I am also concerned about Judge Roberts' views on the power of the 
Federal Government to pass legislation under the commerce clause of the 
Constitution. Although Judge Roberts' record is sparse, his dissent 
from a full court opinion denying a rehearing en banc in Rancho Viejo, 
LLC v. Norton, 334 F.3d 1158 (2003), causes concern. Judge Roberts was 
one of only two judges on the entire U.S. Court of Appeals for the DC 
Circuit to challenge the decision of the panel to uphold the 
constitutionality of the Endangered Species Act. Although Judge Roberts 
allowed in a footnote that there could be alternative grounds on which 
the full DC Circuit might uphold the constitutionality of the Act, his 
opinion demonstrates a narrow view of Congress's power to legislate 
under the commerce clause.
  I am concerned that, based upon this critical view of Federal power, 
Judge Roberts may vote to limit Congress's authority to enact laws that 
help all American citizens. In the wake of Hurricanes Katrina and Rita, 
the role of the Federal Government in protecting all Americans, and 
particularly those less fortunate, has never been clearer. Congress 
must have the power to assist those in need, and to help citizens 
during times of natural and manmade disasters.
  I am mindful of Judge Roberts' frequent statements that he would 
approach the law with modesty and restraint. However, we have never 
learned the reference point for this modesty and restraint. The 
starting point in this inquiry is as important as the ending point, for 
either can dictate the result. It is difficult to tell from Judge 
Roberts' testimony and writings whether, in exercising restraint, Judge 
Roberts would be deferring to the original intent of the Founders, 
Supreme Court precedent, the contemporary understanding of the 
Constitution, or something else entirely. Without this information, we 
are unable to meaningfully understand Judge Roberts' judicial 
philosophy.
  If he begins at the point where Justices Scalia and Thomas do, Judge 
Roberts would view judicial restraint and modesty as adherence to a 
static, narrow, antiquated, and inaccurate originalist view of the 
Constitution that fails to acknowledge the realities of modern America. 
This form of ``modesty'' and ``restraint'', followed by Justices Scalia 
and Thomas, quite openly

[[Page 21638]]

seeks to overrule the accomplishments of much of our Supreme Court 
jurisprudence during the past 200 years. Justices Scalia and Thomas 
believe that they exercise judicial restraint when they attempt to 
overturn Supreme Court precedent such as Roe v. Wade on the ground that 
it is inconsistent with their own originalist understanding of the 
Constitution. Although they may call this modesty and restraint, this 
view of the Constitution is neither modest nor restrained; rather, it 
is a form of judicial activism as aggressive as any the Court has ever 
seen.
  I have carefully weighed my concerns in light of my constitutional 
duty as a U.S. Senator. And I have concluded that, fundamentally, I 
cannot vote yes without being confident that Judge Roberts will not 
vote to roll back the protections and rights our Nation fought so hard 
to attain.
  I am deeply mindful that we must never become so cynical or political 
that we fail to do what is best for the citizens of our Nation. And 
that means that we must place the value of an independent judiciary 
above the partisan politics of the day. That also means that we must 
not be afraid to stand up to the President and vote against a nominee 
who puts us in a position of guessing about his constitutional and 
legal philosophy.
  We must never forget that our Supreme Court depends, first and 
foremost, on the Justices who hear arguments and issue rulings each and 
every day. As all Americans know, the Supreme Court is the highest 
Court in the United States. This is the Court that issues final rulings 
on many of the most important issues of our time, ones that touch the 
lives of all Americans. Therefore, it is essential that we know the 
views of each and every person whom we approve for a lifetime 
appointment to the Supreme Court.
  There is no question that Judge John Roberts will get an up-or-down 
vote in the full Senate. However, that does not mean that he will get 
my vote. I will only vote to confirm Justices who will uphold 
established precedent and understand that the Constitution is about 
protecting rights, not about restricting them.
  The stakes are simply too high to guess about the future of our 
fundamental rights and protections.
  Mr. SHELBY. Mr. President, I rise today to support the nomination of 
Judge John Roberts to be Chief Justice of the U.S. Supreme Court.
  Judge Roberts is a man of integrity whose reputation is irrefutable. 
He has been widely praised for his affable and humble personality as 
well as his integrity and intellect. Judge Roberts is already greatly 
respected by his colleagues and current Supreme Court Justices who know 
him as a leading advocate before that Court.
  I believe that Judge Roberts is eminently qualified for this 
position. He earned both his bachelor's degree and his law degree from 
Harvard University. In fact, after earning his bachelor's degree summa 
cum laude, he managed to earn his law degree magna cum laude while 
serving as the editor of the Harvard Law Review. Following graduation, 
Judge Roberts earned a clerkship on the Supreme Court for the late 
Chief Justice William Rehnquist.
  Since that time, Judge Roberts has had a long and distinguished 
career of service to this country, including serving as an attorney in 
the Office of the Solicitor General. Most recently, he served as a 
judge on the DC Circuit Court of Appeals, widely considered the second 
most powerful court in the Nation. During his service on the court, he 
has been consistent and fair.
  Judge Roberts has also been a private practice attorney representing 
the full range of clients before the Supreme Court. He has argued 
before the Supreme Court 39 times, an impressive record even if you do 
not consider the fact that his client prevailed in 25 of those cases. 
In fact, Judge Roberts is widely considered by his colleagues to be one 
of the most accomplished attorneys to argue before the Supreme Court.
  For some time I have been concerned that our judiciary was being 
overwhelmed by activist judges who attempt to legislate from the bench. 
They appear to make decisions based upon political philosophy and twist 
the words of our Forefathers and of Congress to serve their ideological 
goals.
  We do not need judges who will make their own laws and interpret the 
Constitution based on one political philosophy or another. Rather, we 
must insist on judges who maintain a fair and judicious tone--judges 
who rule without the influence of ideology or personal opinion.
  After 20 hours of testimony before the Senate Judiciary Committee, I 
believe the Nation learned a great deal about how Judge Roberts views 
the judicial role and what kind of service he will provide the Nation 
as Chief Justice. Judge Roberts is a skilled lawyer who understands and 
respects the Constitution. I believe he understands that the role of 
the judiciary is to interpret the law--not make law. It is clear from 
his testimony that his goal will be to fairly and effectively interpret 
the Constitution and the law without prejudice and with the utmost 
respect for the rule of law.
  I commend President Bush for his continued efforts to put judges in 
place who respect the rule of law. I believe that Judge Roberts is a 
shining example of this type of jurist, and there is no doubt in my 
mind that he should be confirmed as our country's 17th Chief Justice, 
and I am proud to support his nomination.
  Ms. STABENOW. Mr. President, this is a critical time in our Nation's 
history. For the first time in more than a decade, we have not just one 
but two vacancies on the United States Supreme Court. Sandra Day 
O'Conner, the first woman justice and often the critical deciding vote, 
is retiring, and Chief Justice Rehnquist, who served on the Court for 
more than 33 years, passed away after a courageous battle with cancer.
  The two nominees who will receive these lifetime appointments will 
dramatically impact the direction of the Court for decades to come and 
will shape decisions that will affect the rights and freedoms of all 
Americans.
  Furthermore, the new Chief Justice will play a unique and critical 
role. He will lead the Court. The new Chief Justice will set the 
initial agenda of what cases should be considered, and assign the 
justice who will write the majority opinion when he or she is a part of 
the majority. He will be the most powerful judge in the country.
  We all understand that the U.S. Senate has a constitutional 
obligation to ``advise and consent'' on all Federal judicial nominees. 
Unlike other nominations that come before the Senate, judicial 
nominations are lifetime appointments. These are not decisions that 
will affect our courts for 3 or 4 years but for 30 or 40 years, making 
it even more important for the Senate to act carefully and responsibly.
  I am one of the newer Members of this chamber. In fact, I rank 74th 
in seniority. I don't have the 20 year voting history on Supreme Court 
nominees that many of my colleagues do. I didn't vote on the 
nominations of Justices Scalia, Ginsburg, O'Connor or Thomas.
  But I bring a different kind of history to this Chamber. I am the 
first woman U.S. Senator in history from the State of Michigan. My 
office is next door to the Sewell Belmont house, where Alice Paul and 
Lucy Burns planned their suffrage marches and fought to get women the 
right to vote.
  I can see it from my window and every day I am reminded of what the 
women before me went through so that I could speak on the Senate floor 
today. I feel the same responsibility to fight against discrimination 
and for equal rights, for the women that will come after me.
  I take this responsibility very seriously and have closely studied 
Judge Roberts' writings and testimony at the Judiciary Committee 
hearings. I commend Senators Specter and Leahy for conducting the 
hearings in a civil and bipartisan manner.
  The Judiciary Committee hearings were the only opportunity for 
Americans to hear directly from Judge Roberts on issues and concerns 
that impact their daily lives, and to find out what a ``Roberts Court'' 
might look like. Unfortunately, Judge Roberts refused to

[[Page 21639]]

answer many of the questions that are on the minds of most Americans.
  However, the American people are being asked to hire Judge Roberts 
for this lifetime job without knowing the answers to most of the 
interview questions. This problem has been exacerbated by the White 
House's refusal to share even a limited number of documents from Judge 
Roberts' time as Deputy Solicitor General.
  The Constitution grants all Americans the same rights, liberties and 
freedoms under the law. These are the sacred, bedrock values upon which 
the United States of America was founded. And we count on the Supreme 
Court to protect these constitutional rights at all times, whether they 
are popular or not.
  Unfortunately, Judge Roberts refused to answer most substantive 
questions about how he would protect our fundamental constitutional 
rights. Because of his failure to answer questions on the major legal 
issues of our time in a forthright manner, I feel compelled to base my 
decision on his writings and opinions.
  When you closely examine these documents, you see a forceful and 
instinctive opposition toward protecting the fundamental rights of all 
Americans. In case after case, Judge Roberts argued that the 
Constitution did not protect workers, voters, women, minorities and 
people with disabilities from discrimination. He also argued that the 
Constitution does not firmly establish the right of privacy for all 
Americans.
  In all of his memos, writings and briefs, Judge Roberts took the view 
that the Constitution only protects Americans in the most narrow and 
technical ways, and does not convey to us fundamental rights, liberties 
and freedoms. Because of these views, after much deliberation, I have 
concluded that Judge Roberts is the wrong choice for a lifetime 
appointment as Chief Justice of the U.S. Supreme Court.
  Judge Roberts is certainly an intelligent man with a record of public 
service. However, that alone does not qualify him to lead the entire 
third branch of our government. I believe that his writings reveal a 
philosophy that undermines our most cherished and fundamental rights, 
liberties and freedoms as Americans, and for that reason, I will be 
voting no on his nomination.
  The Supreme Court decides cases that have a broad impact on American 
jobs and the economy. Manufacturing is the backbone of Michigan's 
economy, and these court decisions will affect the livelihood of the 
families, workers and businesses I represent. We in Michigan need to 
know whether Judge Roberts will stand with us and with our families or 
be on the side of major special interests who were his clients in the 
private sector.
  Right now, we are feeling the full impact of price-gouging and oil 
company monopolies at the gas pumps. But Americans don't know what 
Judge Roberts' views are of antitrust and consumer protection laws that 
punish these illegal corporate practices. How will he rule on cases 
dealing with insider-trading, anti-competitive business behavior and 
other kinds of corporate fraud to prevent another Enron?
  We don't know if he supports basic consumer protections like 
patients' rights to receive a second doctor's opinion if their HMO 
tries to deny them treatment. Judge Roberts fought against these 
patients' right when he represented HMOs in private practice and 
Americans are entitled to know where he stands on this issue.
  Americans need to know where Judge Roberts stands on worker 
protections under the Family and Medical Leave Act. And will Judge 
Roberts rule to protect their pensions and retirement benefits? We 
don't have the answers to these basic questions.
  The foundation of our democracy is the belief that all people are 
created equal and that every American deserves an equal opportunity for 
a good education, good job, and a good life. The Supreme Court will be 
deciding cases that have an enormous impact on our civil rights 
protections and this fundamental American notion of equality.
  As a lawyer in the Reagan administration, Judge Roberts argued 
against some of the most basic civil rights protections such as 
workplace discrimination laws and strengthening the Voting Rights Act. 
When he was asked if he disagreed with any of those positions today, 
Judge Roberts said he was just reflecting the administration's views, 
and refused to provide any clarity on his own personal views.
  However these memos expressed more than just the administration's 
position; they included Judge Roberts' own extreme views on everything 
from school desegregation to title IX.
  When urging the Attorney General to step up efforts to oppose 
legislation to strengthen the Voting Rights Act, Judge Roberts wrote, 
``My own view is that something must be done to educate the Senators on 
the seriousness of this problem.'' This legislation ultimately passed 
with overwhelming bipartisan support.
  In memos, he referred to the ``purported gender gap'' and ``the 
canard that women are discriminated against because they receive $0.59 
to every $1.00 earned by men. . . .'' In response to an equal pay 
letter from three Republican congresswomen, Roberts wrote, ``I honestly 
find it troubling that three Republican representatives are so quick to 
embrace such a radical redistributive concept. Their slogan may as well 
be `from each according to his ability, to each according to her 
gender.'''
  As special assistant, Roberts criticized the Labor Department's 
affirmative action program and referred to the policies which required 
``employers who contract with the government to engage in race and sex 
conscious affirmative action as a condition of doing business with the 
government'' as ``offensive.'' Roberts wrote: ``Under our view of the 
law it is not enough to say that blacks and women have been 
historically discriminated against as groups and are therefore entitled 
to special preferences.''
  What is particularly troublesome is not just the content of these 
writings but his tone toward these issues--one that is disrespectful. 
And one which Judge Roberts refused to disavow during the hearings.
  As Senator Feinstein, the only woman on the Senate Judiciary 
Committee said, ``If Judge Roberts had provided different answers to 
these questions, he could have easily demonstrated to us that wisdom 
comes with age, and a sense of his own autonomy. But he did neither.''
  These are opinions and attitudes that will have an impact on real 
people's lives. And Judge Roberts' opinion matters.
  They will affect whether or not we have admissions policies that 
promote diversity at our Nation's universities and policies that help 
minority-owned and women-owned businesses compete for government 
contracts.
  They will determine how well our antidiscrimination laws are enforced 
to protect all Americans from housing discrimination, abusive work 
environments, sexual harassment, discriminatory hiring policies, and 
sexism in education and collegiate sports under title IX.
  And they will determine whether our most fundamental democratic 
right--the right to vote--is protected.
  As Chief Justice, Judge Roberts would decide in case after case, 
whether these principals of equal opportunity and equal protection 
should be upheld and whether these laws should be enforced.
  The constitutional right to privacy is one of the most fundamental 
rights we have as Americans. At its core, it is about the role of 
government in the most personal of family decisions. It is about a 
woman's right to make her own reproductive choices and a couple's right 
to use contraception.
  But it is also about keeping medical records private to prevent them 
from being used against Americans in their jobs or when they are trying 
to get health insurance. It is about a parent's right to send their 
child to the school of their choice. And it is about the role of 
government in right-to-die cases, as the nation witnessed in the Terry 
Schiavo case.
  Our constitutional right to privacy is a complicated and often 
politically charged area of the law. It is extremely important that a 
Supreme Court nominee approach this issue as a fair and

[[Page 21640]]

independent-minded jurist who will uphold settled law, and not approach 
it with a politically motivated agenda.
  While Judge Roberts acknowledged that a right to privacy exists, he 
refused to explain what he believes that right actually encompasses. 
Like Justice Thomas in his testimony before the committee, Judge 
Roberts refused to say whether he believed the right to privacy 
extended beyond a married couple's right to contraception. Senator 
Schumer asked Judge Roberts whether he agreed that there is a 
``general'' right to privacy provided in the Constitution. Roberts' 
response was, ``I wouldn't use the phrase `general,' because I don't 
know what that means.''
  He repeatedly refused to answer whether the right to privacy protects 
a woman's right to make her own reproductive choices, and like many 
women across the country, I was very disappointed that he was evasive 
in answering this important privacy question.
  How Judge Roberts will approach and decide these questions of law 
will have a profound impact on not just our lives but on the lives of 
our children and grandchildren.
  I had hoped that the hearings would give us insight into his legal 
reasoning and judicial philosophy on all of these important issues. And 
I strongly believe that the American people deserve these answers. This 
isn't a decision that should be based on guesswork or a leap of faith.
  So all we have to go on are Judge Roberts' own writings over the past 
25 years. Based on this record, I cannot in good conscience cast my 
vote for John Roberts to be Chief Justice of the United States Supreme 
Court.
  Mr. KOHL. Mr. President, Judge Roberts came before the Senate 
Judiciary Committee earlier this month as a very well respected judge 
with a sterling academic record and a remarkable legal career. He left 
the Judiciary Committee with that reputation intact, if not enhanced. I 
have enormous respect for Judge Roberts' legal talents. They are 
undeniable. As a result, I supported his nomination last week in the 
Senate Judiciary Committee.
  It is for this reason, his distinguished career and his sterling 
reputation as a lawyer and a judge, that I will vote my hopes today and 
not my fears and support Judge Roberts' nomination for Chief Justice of 
the United States.
  During a private meeting with him, as well as through four impressive 
days of testimony, Judge Roberts made clear that he will be a modest 
judge. He assures us that he will address each case on its merits and 
approach each argument with an open mind. He recognized that judges 
should not substitute their policy preferences for those of Congress, 
and I agree.
  Judge Roberts sees a clear boundary to the judge's role. He told us 
repeatedly that his personal views about issues did not matter. He 
assured us that he will not be an activist; and that he will rarely, if 
ever, look to overturn precedent. Rather, precedent, not his version of 
how the law should be, will mark the beginning of his constitutional 
analysis.
  Judge Roberts recognizes a right to privacy in the Constitution, and 
he understands that people have come to rely on it. He made clear his 
agreement with the cases on the right to privacy that led to the 
Court's decisions in Roe and Casey.
  Judge Roberts rejected ``originalist'' or a ``literalist'' 
philosophies. He does not bind the Constitution to narrow 
interpretations of the past. Too many judicial activists have used this 
philosophy to limit our rights and freedoms. Judge Roberts believes 
that as society evolves, our interpretation of the Constitution must 
evolve with it.
  We choose to take Judge Roberts at his word, and believe that those 
words will bind him throughout his tenure on the Court. Ultimately, 
Judge Roberts persuaded us that he will be the Chief Justice we saw 
during his hearing, not the Chief Justice that his critics see in his 
past.
  Nonetheless, the decision was not an easy one. While I support 
moderation in judicial temperament, I do not support inaction in the 
face of injustice. I worry that a Court full of neutral umpires would 
not have decided Brown v. Board of Education or other cases in which 
the Court moved America forward. Modesty is to be respected to a point, 
but not when it stands in the way of progress. Historically, the courts 
have often succeeded when our democratically-elected branches could 
not.
  However, Judge Roberts testified, and I do not disagree, that his 
confirmation to replace Chief Justice Rehnquist will not radically 
shift the balance of the Court. If he had been nominated, as he was 
originally, to replace Justice O'Connor then his confirmation would 
have moved the Court to the right. That would have been a much more 
difficult decision. It is my hope that the White House recognizes this 
concern when they choose their next nominee.
  In considering my decision, I was troubled by parts of Judge Roberts' 
record, but I was impressed by the man himself. I will support him as a 
Chief Justice who will keep an open mind and reject ideological 
extremism and simplistic approaches to interpreting the Constitution. I 
will vote my hopes and not my fears.
  Mr. ROCKEFELLER. Mr. President, I rise today in support of the 
nomination of Judge John G. Roberts, Jr., to be Chief Justice of the 
United States Supreme Court.
  In Judge Roberts the Nation is presented with a nominee who possesses 
an extraordinary intellect, a modest temperament, and a steady hand. I 
see in him the will and the ability to seek common ground among the 
Justices of the Court on important national issues. And I believe he 
possesses sufficient humility, as a man and as a judge, to be mindful 
of the powerful impact of his actions on the lives of average 
Americans.
  Four days of intensive hearings allowed all of us, and much of 
America, to come to know something of John Roberts and to observe and 
assess what we don't know.
  None of us can fully fathom the matters that will be determined, and 
the people who will be affected, by a judge with lifetime tenure on the 
highest Court of the land. John Roberts today very likely becomes the 
Chief Justice of a generation.
  It is not surprising that this President would select a nominee with 
whom I disagree on some important issues, particularly as articulated 
in his early policy work. But it is reassuring, and ultimately 
determinative, that the President has selected a nominee who asserts 
with conviction, supported by the record, that he is not an ideologue, 
that he takes precedent as established law and people and cases as they 
come before him. I take him at his word, and trust that in interpreting 
and applying the law he will be his own man.
  Yet once a nominee's high credentials and unimpeachable integrity 
have been established, the selection of a Supreme Court justice further 
demands of us a leap of faith. And it is in that leap of faith that we 
must attempt to know more: Who is he as a person? What is his 
understanding of the human condition? Does he take seriously our 
fundamental responsibility to people as well as to legal concepts?
  Judge Roberts and I had the opportunity to meet in recent days to 
discuss his nomination. We had a good, long talk about West Virginia 
and our country and the people who make America great.
  In talking with Judge Roberts I looked for assurance that when he 
tackles the grave questions that will come before his Court, he will 
consider fully the lives of average people, the lives of those in need 
and those whose voices often are not heard, the lives of working men 
and women, children, the elderly, our veterans.
  Judge Roberts listened. He is a careful and attentive listener. And, 
I want my fellow West Virginians to know, Judge Roberts shared that his 
grandfather was a coal miner and his father worked in the steel mills, 
and that he is, in fact, mindful of the awesome responsibility he faces 
toward all Americans, from all walks of life, equally and unequivocally 
deserving of the rights and protections of our Nation.
  I yield the floor.

[[Page 21641]]


  Mr. LAUTENBERG. Mr. President, the Constitution grants the Senate the 
power and responsibility to advise and consent on the President's 
judicial nominations. And there is no more important judicial 
nomination than Chief Justice of the United States.
  The President and Congress share responsibility for the makeup of the 
third branch. The President nominates a candidate to be a Federal 
judge, and the Senate is required to give its advice and consent for 
that nominee to be placed on the bench. It is a shared function; the 
Senate is not merely a rubber stamp for a President's nominee.
  To evaluate a nominee, Congress must be informed about that nominee. 
We are not supposed to consent first and be informed later.
  In the case of Judge Roberts, we cannot make an informed judgment 
because he was so evasive at his hearing. During his confirmation 
hearing, Judge Roberts declined to answer questions more than 90 times. 
The Senate and the American people deserve to know more about an 
individual who will lead our Nation's judiciary for decades to come.
  Despite numerous efforts by members of the Senate Judiciary 
Committee, the Bush administration was not forthcoming. Not a single 
document from the years when Roberts was deputy Solicitor General was 
made available.
  To be deprived of important information left me unable to give 
informed consent. The Constitution requires the Senate to advise and 
consent on these lifetime appointments, not to consent first and advise 
later.
  However, there are some things we do know about John Roberts. We know 
that as an attorney for the Reagan and first Bush administrations, his 
writings on many issues relating to women's rights were disturbing for 
those concerned about such matters. In an official memo to the Attorney 
General, Roberts wrote about the ``so-called right to privacy.'' In the 
Supreme Court case Rust v. Sullivan, Roberts co-authored a brief that 
declared Roe v. Wade was ``wrongly decided'' and should be overturned. 
At his hearings, Mr. Roberts refused to clarify whether he still would 
vote to overturn Roe.
  Roberts also wrote of a ``perceived'' gender bias in the workplace. A 
``perceived'' bias?
  I know that Roberts admitted in his confirmation hearings that there 
has been discrimination against women in the past. He had to say that. 
But did he really once believe such a bias was merely ``perceived,'' 
and could he still believe that today?
  Let me tell my colleague, about gender bias that was not perceived. 
When my father died at an early age, my mother was left a young widow. 
I watched her struggle to make her way in the workplace. She never got 
the same opportunities for advancement as men. She was very successful 
as an insurance sales person, but she was told that after the war, the 
company she worked for would be unable to continue her employment. Her 
manager told her, ``You know, we don't hire women for these jobs,'' and 
thus she was terminated.
  The views of John Roberts portray a judge who could also undermine 
important protections for the environment and minorities. In his 2 
years as a judge on the U.S. Court of Appeals for the DC Circuit, for 
instance, Mr. Roberts did not support congressional powers to use the 
commerce clause of our Constitution to pass clean air and clean water 
regulations.
  While working for President Reagan, Roberts opposed a bill in 
Congress that would have strengthened the protections of the Voting 
Rights Act. Memos from the 1980s also show that Roberts supported the 
Reagan administration's opposition to measures initiated to redress 
past racial discrimination.
  John Roberts has said that when writing many of these memos in 
Republican administrations, he was merely a staff attorney, just doing 
his job, advocating the position of his client. He claims that these 
memos do not necessarily reflect his views.
  Yet, when the Judiciary Committee gave him ample opportunities to 
clarify exactly which memos expressed his views and which ones did not, 
he declined to answer.
  So, even though Mr. Roberts had ample opportunity to answer the 
questions of the Judiciary Committee, we are still uncertain what he 
really believes.
  I believe the risk is too great to support the confirmation of a 
Chief Justice to the United States Supreme Court, the highest-ranking 
leader in the judicial branch of our Government.
  The fact that he is an intelligent and experienced fellow isn't 
enough. That is not enough for me to be able to reassure the people of 
New Jersey that he would preserve and protect their rights. I don't 
know some things that I need to know and some of the things that I do 
know are disconcerting. I will therefore oppose his confirmation.
  Mrs. DOLE. Mr. President, Judge John Roberts is indeed an outstanding 
choice to be the 17th Chief Justice of the United States. He is one of 
our Nation's top legal minds, and as the American public has learned, 
he is a man of great intelligence and skill who will serve our country 
with the same integrity that has been the hallmark of his professional 
career.
  In fact, it is hard to think of anyone who is more qualified to lead 
this Nation's High Court. Soon after graduating magna cum laude from 
Harvard Law, where he was managing editor of the Harvard Law Review, 
Roberts clerked for then-Associate Justice Rehnquist--a man he learned 
much from and deeply admired for 25 years. He went on to work in 
various legal capacities in the Reagan administration and later went 
into private practice. Just 2 ago, the Senate confirmed Roberts for a 
seat on the DC Circuit Court of Appeals.
  In his distinguished career, including his tenure as a government 
lawyer, Roberts has argued a remarkable 39 cases before the Supreme 
Court. The issues at the heart of these cases have spanned the legal 
spectrum--from healthcare law to Indian law, environmental law to labor 
law, and many, many other areas of the law as well.
  In his Senate confirmation hearings last week, John Roberts 
reinforced that he will be the kind of Chief Justice America needs and 
deserves. Undergoing hours upon hours of questioning, Judge Roberts 
maintained a steady, even temperament. He politely and respectfully 
answered more than 500 questions--and amazingly without much of a 
glance at notes. Most importantly, Judge Roberts revealed a great deal 
about how he views the judicial role. He emphasized that he is 
committed to the rule of law, not to his personal preferences or views. 
He emphasized his belief that judges are not politicians or legislators 
and that the role of a judge is limited. I wholeheartedly agree with 
Judge Roberts' assessment of the appropriate role of judges, and I am 
confident that he will strictly uphold the law and not attempt to 
legislate his own personal views from the bench.
  I can think of no vote more important, save a declaration of war, 
than giving advice and consent to a nominee for Chief Justice of the 
United States. This has been a fair process, and the Judiciary 
Committee held extensive and meaningful hearings. Over the course of 
the last week, the Senate has conducted a spirited debate on the 
qualifications of John Roberts to be the next Chief Justice. And today, 
we will give him an up or down vote.
  I am very pleased that my colleagues have proceeded expeditiously on 
the nomination of Judge Roberts, as it is of utmost importance that 
this nation's High Court have a new Chief Justice before the start of 
the Court's fall term.
  For many in this Chamber, today's vote will be the only time in their 
entire Senate careers that they provide advice and consent on a nominee 
to be Chief Justice. I commend my colleagues who have risen above the 
normal day-to-day politics of this institution. But still, there are 
some of you who question how Judge Roberts will vote on specific cases 
in the future. Others of you may also be swayed by the passions of 
partisans.
  But none have questioned Judge Robert's integrity. None have 
questioned

[[Page 21642]]

his temperament. None have questioned his intellectual ability. And 
none have questioned his qualifications. These are the traditional 
measures the Senate has looked to when evaluating a judicial nomination 
of this importance. I would ask that my fellow Senators look to these 
time-tested standards and vote to confirm John Roberts as Chief Justice 
of the United States.
  Ms. LANDRIEU. Mr. President, I will vote for the nomination of John 
Roberts to be the next Chief Justice of the United States. He is 
intelligent with an impressive educational background; extensive 
experience arguing before the Supreme Court; and distinguished public 
service experience at the highest levels of government. Based on his 
resume, he has the qualifications to be Chief Justice.
  But a nominee's resume alone is not automatic grounds for 
confirmation to any office. The Senate has a duty to delve more deeply 
beyond a nominee's paper record. So while Judge Roberts's credentials 
are clearly impressive, I still had concerns about his original 
nomination to the Court.
  My concern lay in the fact that Judge Roberts was originally 
nominated to replace Justice Sandra Day O'Connor who in her 24 years on 
the court brought a voice of moderation and balance to an increasingly 
polarized body. She wrote opinions that surprised and outraged both the 
right and the left; proof positive that she was not grinding a 
particular political ax or was beholden to one unbending judicial 
philosophy. She judged and considered both sides of a case and the law 
carefully and was more interested in getting the case right than 
pushing a particular agenda.
  Justice O'Connor understood, just as Potter Stewart did before her, 
that power on the Court lay in the center, not at the extremes. Judge 
Roberts was about to replace that all-important center. I was not sure 
which way he would go. In the wake of William Rehnquist's death, my 
concerns for this nominee deepened.
  We had seen far right wing conservative ideologues nominated for 
these life-long positions on the Federal bench. Democrats fought for 
greater consultation with the President about them, only to be met with 
the ``nuclear option.'' Fortunately, a group of my colleagues and I 
were able to reach agreement to avoid this outcome; we were called the 
Gang of 14. Judge Roberts's nomination was going to be the first major 
test of this agreement.
  When I had the opportunity to meet with Judge Roberts, he was able to 
relieve some of my concerns, enough that I knew we would not have to 
consider a filibuster. He struck me in two ways. First, he described 
his judicial philosophy as modest. Modesty is not a word that gets used 
to describe public figures in Washington, DC, that often. He saw the 
role of a judge as being limited. As he said in his opening remarks 
before his hearing: ``I come before the committee with no agenda. I 
have no platform. Judges are not politicians who can promise to do 
certain things in exchange for votes. I have no agenda, but I do have a 
commitment. If I am confirmed, I will confront every case with an open 
mind.'' He further said that the legitimacy of a judge's role is 
confined to interpreting the law and not making it.
  The second thing that impressed me in our meeting was his 
appreciation that for many in this country the Supreme Court is seen as 
the last hope they have to ensure that their rights are not taken away. 
Earlier this year, as my colleagues will remember the Senate finally 
went on record apologizing for lynching. James Allen's book ``Without 
Sanctuary'' described in vivid black and white photos and prose the 
acts of barbarism that were used to terrorize African Americans in our 
Nation's not too distant past.
  I showed this book to Judge Roberts and he was visibly moved. He told 
me that he never wanted to forget that the courts were there to protect 
the powerless. Lynching victims did not get due process of law, even 
though many of the mobs had law enforcement officers in their midst, 
and often acted to avenge some perceived crime. Those victims did not 
get a jury trial with the right to face their accusers as called for 
under the Constitution.
  I came away from this meeting believing he will treat all people who 
come before the Court with respect. That every argument would receive 
fair consideration because for the party making that argument a 
tremendous amount could be at stake.
  I am well aware of the criticism of Judge Roberts's earlier writings 
both those we have seen and several we have not. Some of the things he 
wrote while a young lawyer in the Reagan White House and Justice 
Departments indicate that he was hostile to civil rights, women's 
rights, the Voting Rights Act, and the right of privacy. While he was 
in the Solicitor General's office he wrote a brief suggesting that Roe 
v. Wade be overruled.
  In thinking about these writings and what they mean for who he is 
now, I was reminded of something that Justice Oliver Wendell Holmes 
once said: ``The character of every act depends upon the circumstances 
in which it is done.'' I chose to look at Judge Roberts's earlier 
writings in the same light. When Judge Roberts wrote those things he 
was a young lawyer who came to the Reagan Administration fresh from a 
prestigious clerkship with then Associate Justice William Rehnquist. He 
was a young conservative working at the highest levels of power in our 
country for a conservative icon, President Reagan. In those positions 
he was an advocate for the administration and the President's agenda at 
the time.
  His most recent experience in private practice has changed his views 
on the role of the court, the law, and the needs of individuals. He 
pointed out to me that he has represented a wide range of clients in 
his private practice: large and small businesses, indigent defendants, 
and State governments. Each one, he said, deserved a careful analysis 
of their position and how the law would apply to their case. He took 
that approach to his current work on the Court of appeals.
  I believe that Judge Roberts has taken to heart another observation 
by Oliver Wendell Holmes and that is, ``to have doubted one's own first 
principles is the mark of a civilized man.'' Judge Roberts, I am sure 
would look back on his earlier writings and understand that he must 
revisit them in light of the new responsibilities he is about to 
undertake.
  In the weeks leading up to the confirmation hearings, there was a 
great deal of discussion and criticism of the administration for not 
turning over memoranda Judge Roberts wrote while he was Deputy 
Solicitor General at the Department of Justice. I was disappointed that 
the administration was not more forthcoming with these documents. I 
hope in the future we can reach an accommodation of some kind so that 
Senators will have complete information on a nominee. But the fact that 
we do not have these memos is not enough to keep this highly qualified 
nominee from becoming our next Chief Justice.
  I want to congratulate Chairman Specter and Ranking Member Leahy for 
the quality of the hearings they held for this nominee. The questioning 
was tough, but fair, and the committee performed its work with dignity. 
The hearing record gave us plenty of information to go on in making our 
decisions about this nominee. The qualities that every member of the 
Judiciary Committee saw in Judge Roberts, I saw firsthand in our 
meeting.
  John Roberts is an excellent nominee who will be a fine Chief 
Justice. I encourage President Bush to send us a similarly qualified, 
modest, fair nominee to replace Justice O'Connor. The White House 
reached out to many Senators before naming Judge Roberts and I hope the 
administration will continue to build on that approach for this next 
nominee. I fully expect the President to nominate a conservative to 
fill Justice O'Connor's seat, but I also expect that nominee to be 
fair. Judge Roberts has set a very high bar. I hope the next nominee 
meets that standard.
  The PRESIDING OFFICER. The majority whip.
  Mr. McCONNELL. Madam President, Senators cast many important votes--

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votes to strengthen our highway system, or to implement a comprehensive 
energy strategy, for example--but it is not often we cast a vote that 
is both important and truly historic. We do so, however, when we vote 
on whether to confirm a nominee to be Chief Justice of the United 
States.
  There have been 9,869 Members of the House of Representatives, 1,884 
Senators, and 43 Presidents of the United States, but only 16 Chief 
Justices. On average, each Chief Justice serves for well over a decade. 
Our last Chief Justice served for 19 years, a little short of two 
decades. The occupant of the ``center seat'' on the Court often has had 
a profound impact on the shape and substance of our legal system. But 
despite such profound effects, the position of Chief Justice actually 
got off to a rather inauspicious start.
  The Constitution of the United States mentions the position of Chief 
Justice only once. Interestingly, it does not do so in Article III, 
which establishes the judicial branch of our Government. Rather, the 
Constitution refers to the position of Chief Justice, almost in 
passing, only in Article I, which sets forth the powers of the 
legislative branch.
  There, in section 3, clause 6, it discusses the Senate's procedures 
for a trial of an impeached President, stating that ``When the 
President of the United States is tried, the Chief Justice shall 
preside.'' That is the sum and substance of his constitutional 
authority.
  The Judiciary Act of 1789, which established the Federal court 
system, did not add much to the Chief Justice's responsibilities. It 
specified merely that ``the supreme court of the United States shall 
consist of a chief justice and five associate justices.''
  It is not surprising, then, that the position of Chief Justice 
initially was not viewed as particularly important. Indeed, the first 
Chief Justice, John Jay, left completely disillusioned, believing that 
neither the Court nor the post would ever amount to very much.
  It took George Washington four tries to find Jay's successor, as 
prominent people repeatedly turned him down. They were turning down 
George Washington's offers to make them the Chief Justice of the United 
States.
  With such humble constitutional roots for the office, the power, 
prestige, and independence of the Supreme Court and the Federal court 
system in general often has been tied to the particular personal 
qualities of those who have served as Chief Justice.
  John Marshall was our first great Chief Justice. His twin legacies 
were to increase respect for the Court and, relatedly, its power as 
well. He worked to establish clear, unanimous opinions for the Court, 
and his opinion in Marbury v. Madison forever cemented the Court as a 
coequal branch of Government.
  Marshall's successes were viewed, then as now, as a function of his 
formidable personal qualities. He is said to have had a ``first-class 
mind and a thoroughly engaging personality.'' Thomas Jefferson, for 
example, tried, in vain, to break his influence on the Court. In 
writing to James Madison, his successor, about Supreme Court 
appointments, Jefferson said:

       [I]t will be difficult to find a character of firmness to 
     preserve his independence on the same bench with Marshall.

  That is Thomas Jefferson speaking about Chief Justice Marshall.
  I find myself agreeing with the columnist George Will, who wrote 
recently in one of his columns:

       Marshall is the most important American never to have been 
     President.

  William Howard Taft and Charles Evans Hughes also used their 
individual talents to become great Chief Justices. Taft, the only Chief 
Justice to serve also as President, which was prior to that, had a 
singular determination to modernize the Federal courts. He used his 
energy and his political acumen to convince Congress to establish what 
is now the Judicial Conference of the United States to administer the 
Federal courts; enact the Judiciary Act of 1925, which allowed the 
Court to decide the cases it would hear; and, before he left office, to 
give the Court its first, and current, permanent home--a stone's throw 
from where we stand today, across the East Lawn of the Capitol.
  A fellow Justice called Charles Evans Hughes ``the greatest in a 
great line of Chief Justices.'' He was known for his leadership in 
running the Court and for constantly working to enhance the public's 
confidence in the Court. His successes were at least partly due to his 
keen appreciation of the limits of that office. This is what Charles 
Evans Hughes had to say:

       The Chief Justice as the head of the Court has an 
     outstanding position, but in a small body of able men with 
     equal authority in the making of decisions, it is evident 
     that his actual influence will depend on the strength of his 
     character and the demonstration of his ability in the 
     intimate relations of the judges.

  Hughes was famous for the efficient, skillful, and courteous way in 
which he presided at oral argument, ran the Court's conferences, and 
assigned opinions, calling the latter his ``most delicate task.'' But 
his greatest service may have been in spearheading public opposition to 
FDR's court-packing plan.
  Our last great Chief Justice, William Rehnquist, may be said to have 
possessed the best qualities of Marshall, Taft, and Hughes. He had an 
exceptional mind, an engaging personality, boundless energy, and a 
courteous and professional manner. These qualities helped him 
revolutionize Federal jurisprudence, administer the Supreme Court and 
the court system very efficiently, and interact constructively with 
those of us here in Congress.
  Of course, we will soon vote on the nomination of his successor, 
Judge John Roberts, who, in one of life's bittersweet turns, served as 
a young and able law clerk to then-Associate Justice Rehnquist. In 
meeting with him, and watching his confirmation hearings, I believe 
Judge Roberts possesses many of the qualities of our great Chief 
Justices: an impressive legal acumen, a sterling reputation for 
integrity, and an outstanding judicial temperament. But I want to focus 
on one quality in particular; and that is, his devotion to the rule of 
law.
  We use that term all the time, but the question is, what does it 
mean? I focus on the rule of law because of the positions my colleagues 
have taken during his nomination. One distinguished Member of this body 
said on the floor that he needed to find out ``whose side'' John 
Roberts ``is on.'' Another asked Judge Roberts whether, as a general 
proposition, he will be on the side of the ``big guy'' or the ``little 
guy.'' Still another insisted that the position to which Judge Roberts 
is nominated is akin to an elected official; in other words, an elected 
politician. Comments such as these are based on a fundamental 
misunderstanding of the role of a judge.
  Many of the Founders were politicians, and they, of course, 
recognized that politics may favor certain constituencies. Judges, 
however, are not supposed to be on any group's ``side.'' They are not 
supposed to favor one party's ``little guy'' at the expense of another 
political party's ``big guy.'' In short, judges are anti-politicians; 
at least they are supposed to be.
  In giving life tenure to Federal judges, the Founders did not want 
them--did not want them--to exercise the powers of politicians, to whom 
they had denied life tenure. None of us are given life tenure here, for 
good reason. As Alexander Hamilton wrote in Federalist No. 78:

       It can be of no weight to say that the courts . . . may 
     substitute their own pleasure to the constitutional 
     intentions of the legislature. . . . The Courts must declare 
     the sense of the law; and if they should be disposed to 
     exercise will instead of judgment--

  ``Will instead of judgment''--

     the consequence would equally be the substitution of their 
     pleasure to that of the legislative body.

  In other words, judges must only interpret the law, not write it in 
order to favor one group over another. Judge Roberts understands the 
role of a judge is that, and he is committed to adhering to it. Here is 
what he had to say. This was Judge Roberts at his hearing:

       Judges are not politicians who can promise to do certain 
     things in exchange for votes. I have no agenda, but I do have 
     a commitment. If I am confirmed, I will confront

[[Page 21644]]

     every case with an open mind. . . . and I will decide every 
     case . . . according to the rule of law, without fear or 
     favor, to the best of my ability.

  ``Without fear or favor, to the best of my ability.''
  To put it more simply, he knows if the law favors the ``little guy,'' 
then the ``little guy'' will win. If the law favors the ``big guy,'' 
then the ``big guy'' will win. It is as simple and principled as that.
  I do not know--none of us do--the mark a Chief Justice Roberts will 
leave on the Court. With his many fine qualities, he may be a great 
administrator. He may lead some great reform of our court system. He 
may revolutionize some area of law. But he will be a successful leader. 
And I suspect that whatever else, with his total devotion to the rule 
of law, he will instill in our legal system a renewed appreciation for 
the role of judges in our Republic and, thereby, keep the Court on the 
path the Founders intended.
  So today, I, like my colleagues, am mindful of the gravity and the 
privilege of this vote to confirm our 17th Chief Justice. I do so with 
the absolute conviction that Judge John Roberts meets the measure of 
his great predecessors, and will lead the Court with judgment, skill, 
and integrity as befits the third branch of Government--the branch that 
protects our liberties by insisting that ours is a country of laws and 
not of men.
  I yield the floor.
  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. LEAHY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the time from 10:30 a.m. to 10:45 a.m. will 
be under the control of the Senator from Vermont.
  Mr. LEAHY. Madam President, as we come to the conclusion of these 
confirmation proceedings, I commend Senators on both sides of the aisle 
for taking the time and making the effort to actively participate in 
this process. Few duties and few votes are as enduring and as 
consequential as deciding on a nomination for the premier jurist of the 
United States in our Federal court system. We have had 43 Presidents in 
our Nation's history. We have only had 16 Chief Justices of the United 
States. In fact, only slightly under two dozen Members of the Senate 
have ever voted on the question of a Chief Justice.
  We have had full and fair hearings. We have had a constructive 
debate. This process has been a credit to the Senate and to the 
Judiciary Committee. I commend especially Senator Specter of 
Pennsylvania, our chairman, and all of the members of the committee on 
both sides and their staffs for the detailed, sometimes grueling, 
preparation that evaluating a Supreme Court nomination requires.
  I am sure people understand when I refer to the committee's 
Democratic staff. They worked for 2 months. They labored dutifully. 
They gave up their weekends and their evenings, and with 
professionalism they helped Senators in our review of this important 
nomination. I particularly thank Bruce Cohen, Edward Pagano, Andrew 
Mason, Chris Matthias, Daniel Fine, Daniel Triggs, David Carle, Ed 
Barron, Elizabeth Martin, Erica Chabot, Erica Santo Pietro, Helaine 
Greenfeld, Jennie Pasquarella, Jeremy Paris, Jessica Bashford, Joe 
Sexton, Joshu Harris, Julia Franklin, Julie Katzman, Kathryn Neal, Katy 
Hutchison, Kristine Lucius, Kyra Harris, Lisa Anderson, Margaret Gage, 
Marit DeLozier, Mary Kate Meyer, Matt Nelson, Matt Oresman, Matt 
Virkstis, Nate Burris, Noah Bookbinder, Sam Schneider, Sripriya 
Narasimhan, Susan Davies, Tara Magner, Tracy Schmaler, Valerie Frias 
and William Bittinger. And their experience was duplicated by the hard-
working Republican staff.
  As a member of the minority party, I speak about our vital role in 
our system that is often less visible, but is crucial just the same. 
The minority sharpens the Senate's and the public's focus on issues 
that come before the Senate or sometimes on unattended issues that 
deserve the Senate's attention.
  In these proceedings, we have helped sharpen the Senate's focus on 
issues that matter most in the decision before us, that of confirming a 
new Chief Justice of the United States.
  I especially commend my fellow Democrats for taking this 
responsibility so dutifully. They waited to hear the evidence and to 
learn the particulars about this nomination. They did not rush to 
judgment. They did not speak out until after the hearings. Individual 
Senators now have weighed the evidence, and they have come to their 
individual conclusions.
  On this side of the aisle, there will not be a lockstep vote. I 
appreciate the thoughtful remarks by those who decided to vote in favor 
of confirmation and by those who decide to vote against the nomination. 
I respect the decisions of Senators who have come to different 
conclusions on this nomination. I know for many, including myself, it 
was a difficult decision. I have said that each Senator must carefully 
weigh this matter and decide for herself or himself.
  We are, each of us, 1 vote out of 100, but those 100 votes are 
entrusted with protecting the rights of 280 million of our fellow 
citizens. We stand in the shoes of 280 million Americans in this 
Chamber. What a somber and humbling responsibility we have in casting 
this vote.
  I was glad to hear the Republican leader say earlier this week that a 
judge must jettison politics in order to be a fair jurist. He is right. 
I thought the remarks of the senior Senator from Maine were especially 
meaningful, and I appreciated that she was careful to include judicial 
philosophy among the criteria she considered on this nomination. And of 
course she is right.
  As the Senate considers the nomination, it is important to have more 
information, rather than less, about a nominee's approach to the law 
and about his or her judicial philosophy.
  For the American people whose lives will be directly and indirectly 
affected by the decisions of a nominee, it is equally important that 
the Senate's review process be fair, that it be transparent, and that 
it be thorough. The hearings we conduct and the debates we hold are the 
best and only opportunity for the American people to hear from and 
learn about the persons who could have significant influence over their 
constitutional protections and freedoms. We owe the people we represent 
a vigorous and open review, including forthright answers to questions.
  My Vermont roots, which go back three centuries, have always told me 
to go with my conscience, and that is what I have done in this 
decision. Judge Roberts is a man of integrity. For me, a vote to 
confirm requires faith that the words he spoke to the Judiciary 
Committee in the hearings and to me in our meetings have meaning. I 
have taken him at his word that he does not have an ideological agenda, 
that he will be his own man as Chief Justice. I take him at his word 
that he will steer the Court so it will serve as an appropriate check 
on potential abuses of Presidential power, not just today but tomorrow. 
I hope that he will, and I trust that he will.
  As we close the debate on this nomination and move to a vote, we do 
so knowing we will soon be considering another Supreme Court nominee in 
the Senate. Last week, Chairman Specter and I, along with the 
Republican and Democratic leaders of the Senate, met with the 
President. I urged him to follow through with meaningful consultation. 
I urged him to share with us his intentions and seek our advice on the 
next nomination before he acts.
  There could and should have been consultation with the Senate on the 
nomination of someone to serve as the 17th Chief Justice of the United 
States. I am sorry there was not, but there could and should be 
meaningful consultation on the person to be named to succeed Justice 
O'Connor, who has so often been the decisive vote of the Supreme Court.
  The stakes for all Americans and for the Nation's well-being are high 
as the

[[Page 21645]]

President contemplates his second pick for a Justice on the Nation's 
highest Court, a choice that will fill a swing vote and could steer the 
Court's direction long after the President is gone and long after most 
of us are gone.
  The President does have this opportunity to work with us to unite the 
country, to be a uniter, to unite us around a nominee to succeed 
Justice O'Connor. Now more than ever, with Americans fighting and dying 
in Iraq every day, with hundreds of thousands of Americans displaced by 
disasters at home, it is a time to unite rather than divide. The 
Supreme Court belongs to all Americans, not to any faction. So for the 
sake of the Nation, I urge the President to live up to his original 
promise, to be a uniter and not a divider.
  If I might speak just personally to Judge John Roberts who will soon 
be Chief Justice John Roberts: Be there for all Americans. And whoever 
comes before you as Chief Justice, it should make no difference if 
their name is Patrick Leahy or Patrick Jones, George Bush or George 
Smith. No matter what their issue is, be there for all of us because 
what you do will affect our children and our grandchildren. And, Judge 
Roberts, it will affect your two lovely children. It will affect all 
Americans.
  We are a great and a good country, but we are a diverse country. Any 
nation the size of ours, a nation built on immigrants--such as my 
Italian grandparents or my Irish great grandparents--has to be diverse. 
But we are diverse in all ways. Protect that diversity. Protect that 
diversity because it is that diversity that makes us strong as a 
nation, far more than our military might if we protect our diversity--a 
diversity of thought, a diversity of religion, a diversity of race, a 
diversity of politics.
  Judge Roberts, soon to be Chief Justice Roberts, be there for all 280 
million Americans. That is what I have tried to do in putting myself in 
the shoes of those 280 million Americans. I will cast my vote with hope 
and faith, but you, Judge Roberts, show the same hope and faith for 
this great country that you love and I love and all the other 99 
Members of the Senate love.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the time from 10:45 
a.m. to 11 a.m. will be under the control of the Senator from 
Pennsylvania.
  The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, at the outset, I compliment and salute 
my distinguished colleague, Senator Leahy, for his appropriate, really 
elegant, remarks in support of the nomination of Judge Roberts to be 
Chief Justice. I compliment him on his leadership in taking a difficult 
stand, being the first Democrat to announce support for Judge Roberts' 
confirmation. It is difficult to step out against party leadership, 
against what may be a party position, but I believe it is precisely 
that kind of leadership which is so important for the Senate to 
discharge its constitutional responsibility in the confirmation 
process. I compliment as well the other committee members--Senator Kohl 
and Senator Feingold for stepping out in support of Judge Roberts. And 
at last count, I know that some 18 Democrats have stated their 
intention to vote for Judge Roberts.
  As yet, there are some who are undeclared, so that number will grow 
beyond. I believe it is a matter of real urgency that when we come to 
the designation of the Chief Justice of the United States, or any 
Supreme Court nominee, that politics stop. We say in foreign policy 
that partisanship should stop at the water's edge, and I extend that 
metaphor on the recognition that the pillars of the Senate immediately 
outside the Chamber are lined up directly with the pillars of the 
Supreme Court of the United States.
  In that intervening few blocks on the green, on the Capitol complex, 
that partisanship should stop at the Senate pillars as they extend 
across the way to the Supreme Court pillars.
  In the confirmation of a Supreme Court nominee, there is a unique 
confluence of the three branches of Government on our separation of 
powers, with the President exercising the executive authority to 
nominate, the Senate on the confirmation process, and then the seating 
of the new Justice in the Supreme Court. It is a matter of vital 
concern that it be nonpartisan.
  Twelve days ago, on September 17, at the Constitution Center in 
Philadelphia, the 218th anniversary of the signing of the Constitution 
was celebrated. Today is an historic day, with Judge Roberts, by all 
conventional wisdom, slated to become the 17th Chief Justice of the 
United States. On only 16 occasions in the past have we had a new Chief 
Justice of our Nation.
  I believe Judge Roberts comes to this position uniquely qualified, 
with an academic record of superior standing, magna cum laude, summa 
cum laude, Harvard College and Harvard Law School, a distinguished 
career clerking first with Circuit Judge Henry Friendly, a very 
distinguished judge in the Court of Appeals; then clerked for then 
Associate Justice Rehnquist; then as an assistant to Attorney General 
William French Smith; later as associate White House counsel in the 
Reagan administration; a distinguished practice in the law firm of 
Hogan & Hartson; then 39 cases argued before the Supreme Court of the 
United States. So he has a phenomenal record.
  His answers to the questioning before the committee, which I think 
was very intense, very directed, appropriately tough, was that he saw 
the Constitution as a document for the ages responding to societal 
changes; that he saw the phrases ``equal protection of the law'' and 
``due process of law'' as expansive phrases which can accommodate 
societal changes.
  As he approaches the job of Chief Justice, he has a remarkable 
running start. He described his arguments before the Court as a dialog 
among equals, a phrase that I think is unique and in a sense 
remarkable; that as an advocate he had the confidence to consider 
himself talking to equals when he addressed the nine members of the 
Supreme Court.
  There have already been indications from the members of the Court 
about their liking the fact that Judge Roberts is going to be the new 
Chief Justice. It is not easy to come into a court at the age of 50, 
where Justice Stevens, the senior Justice, is 85 and others, Justice 
Scalia, 68, the next youngest member, Justice Thomas, 57. When he has 
the self-confidence to consider as an advocate a dialog among equals, 
that is a good sign that he has the potential to bring consensus to the 
Court.
  There was an extended discussion during his confirmation proceeding 
about what Chief Justice Earl Warren did in bringing the Court together 
for a unanimous decision in Brown v. Board of Education and how 
important it was. In a case involving deep-seated patterns of 
segregation and the difficulty of implementing that decision and the 
years it has taken--it is still a work in process to give quality to 
African Americans, to Blacks in our society--let us make no mistake 
about it, it has been, since 1954 when the decision came down, 51 
years, and there is still more work to be done, but it was an 
outstanding job by Chief Justice Warren to bring the Court together 
with a unanimous decision to put desegregation on the best possible 
plane with unanimity among the nine Justices who decided the case.
  As I emphasized during my questioning of Judge Roberts, there is much 
to be done to move away from the 5-to-4 decisions of the Court, some 
inexplicable this year. The Court upheld the displaying of the Ten 
Commandments on a tower in Texas 5 to 4, and rejected displaying the 
Ten Commandments in Kentucky; within the past 5 years, inconsistent 
decisions on the interpretation of the Americans with Disabilities Act, 
5 to 4 upholding the access provisions, 5 to 4 rejecting the 
constitutionality on the provisions relating to discrimination in 
employment.
  Judge Roberts as Chief Justice has the capacity to fully understand 
the balance of power between the Congress and the Court and to move 
away from the denigrating comments that the Court made in Alabama v. 
Garrett that in declaring an act unconstitutional they had a superior 
``method of reasoning,'' or that in establishing the

[[Page 21646]]

flabby test, flabby being the words of Justice Scalia, on invoking the 
test of proportionality and congruence in the 1997 case of Boerne, 
where Justice Scalia accurately noted in his dissent in Tennessee v. 
Lane that it was a flabby test that allowed judicial legislation and 
that the Court was setting itself up as the taskmaster of the Congress 
to see that the Congress had done its homework.
  So the new Chief Justice will have his work cut out in trying to 
bring a consensus on the reduction of the proliferation of opinions 
with so many concurrences coming out of the Court.
  Yesterday's Washington Post had a headline about a filibuster 
showdown looms in the Senate and a recitation of frustration among so-
called Democratic political activists who do not think their elected 
leaders put up a serious enough fight as to Judge Roberts.
  Having been there for every minute of the Roberts proceeding in my 
capacity as chairman to preside, it was a searching, probing inquiry 
into Judge Roberts' background and his approach to the issue 
confronting the Court. When they say there was not a sufficient fight, 
there were very senior Senators, very experienced, leading the 
opposition. Who can challenge the tenacity of Senator Kennedy, Senator 
Biden, Senator Feinstein, Senator Schumer, and Senator Durbin putting 
up that battle?
  In the final analysis, we have had many experienced Senators who have 
come forward to join Senators Leahy, Kohl, and Feingold on the 
committee, and Senators of standing and distinction--Senator Byrd, who 
has been in this body since his election in 1958, Senator Levin, 27 
years in this body, Senator Dodd, 25 years, Senator Lieberman, and so 
many among the 18 Senators--where there is the showing of that kind of 
bipartisanship.
  It is my hope we will carry forward the spirit of bipartisanship 
which was demonstrated in the last two confirmation proceedings. 
Justice Breyer was confirmed in 1994 with an 87-to-9 vote, with 31 
Republicans joining 56 Democrats, so it did not make any difference to 
31 Republicans that Justice Breyer was nominated by President Clinton, 
who was a Democrat.
  The year before, Justice Ginsburg was confirmed 96 to 3, with 41 
Republicans voting for her nomination. Before that, Justice Souter was 
confirmed 90 to 9, with 45 Democrats joining 45 Republicans. Nine 
Democrats did vote ``no'' against Justice Souter, perhaps influenced by 
the posters that he would wreck Roe v. Wade. We know he was in the 
joint opinion in Casey v. Planned Parenthood.
  Before that, the votes were unanimous as to Justice John Paul Stevens 
and Justice Scalia, 98 to 0, and Justice O'Connor was confirmed 99 to 
0.
  While the votes among the Democrats will not be as strong as the 41 
Republicans who voted for President Clinton's nomination of Justice 
Ginsburg, we have a sufficient indication of a strong bipartisan vote 
so that I think it is not unduly optimistic to look for a future where 
we will have partisanship stopping at the Senate columns.
  We face another nomination imminently. There have been discussions as 
to what our sequence and timing will be. We have shown, with the 
cooperation of Senator Leahy and the Senate Democratic leader, Senator 
Reid, as we negotiated this timetable--and we had some angst in the 
negotiations but we worked in a cooperative way so that on September 29 
we have met the timetable which we anticipated, although nobody was 
bound to it. There could have been objections and there could have been 
delaying tactics, but Senator Reid, Senator Leahy, and the Judiciary 
Committee, with Democrats as well as Republicans, supported that 
timetable.
  It is my hope we will have a nominee who will come forward to replace 
Justice O'Connor who will be in the mold of Judge Roberts. In a sense, 
Judge Roberts replaces Chief Justice Rehnquist. Perhaps the ideology is 
not so important with that replacement, but it is my hope we will have 
someone who in the mold of Judge Roberts will stand up to the job, 
looking for the interpretations of due process and equal protection as 
Judge Roberts did in an expansive way, and looking for societal 
interests in that broad interpretation.
  I am pleased to be a participant in this historic occasion, and again 
I salute my colleagues on both sides of the aisle for the dignified 
proceeding and meeting our timetable, in coming forward to this 
confirmation vote at 11:30 this morning.
  The PRESIDING OFFICER (Mr. Ensign). Under the previous order, the 
time from 11 a.m. to 11:15 a.m. will be under the control of the 
Democratic leader.
  Mr. REID. Mr. President, as I announced on this floor last week, I 
intend to vote against the nomination of Judge John Roberts to be Chief 
Justice of the United States. In my meetings with John Roberts, I found 
him to be a very nice person. I like him. I respect his legal skills. I 
respect much of the work he has done in his career. For example, his 
advocacy on the environmental side of the Lake Tahoe takings case 
several years ago was remarkably good. He decided the law did not look 
too good to him, so he figured the way to win the case was to argue to 
the Court the facts, and he did that and he won the case. So I admire 
his legal skills, as I think everyone in this body does. But at the end 
of the day, I have had many unanswered questions about the nominee, and 
because of that, I cannot justify a vote confirming him to this 
lifetime position.
  Each one of the 100 Senators applies his or her own standard in 
carrying out the advice and consent clause of the Constitution. That is 
a constitutional role that we have. I know that elections have 
consequences, and I agree that Presidents are entitled to a measure of 
deference in appointing judicial nominees. After all, the Senate has 
confirmed well over 200 of President Bush's nominees, some of whom 
possess a judicial philosophy with which I disagree. But deference to 
the President can only go so far. Our Founding Fathers gave the Senate 
the central role in the nominations process, and that role is 
especially important in placing someone on the Supreme Court.
  If confirmed by the Senate, John Roberts will serve as Chief Justice 
of the United States and leader of the third branch of the Federal 
Government for decades to come. He will possess enormous legal 
authority. In my view, we should only vote to confirm this nominee if 
he has persuaded us he will protect the freedoms that all Americans 
hold dear. This is a close question for me, but I will resolve my 
doubts in favor of the American people, whose rights would be in 
jeopardy if John Roberts turns out to be the wrong person for the job.
  As I have indicated, I was impressed with Judge Roberts the first 
time I met him. This was a day or two after he was nominated. I knew 
that he had been a thoughtful member of the DC Circuit Court of Appeals 
for the last 2 years. But several factors caused me to reassess my 
initial view. Most notably, I was disturbed by memos that surfaced from 
John Roberts' years of service in the Reagan administration. These 
documents raised serious questions about the nominee's approach to the 
rights of women and civil rights.
  In the statement that I gave last week, I gave some specific examples 
of the memos that concerned me. I also explained that I was prepared to 
look past these memos if the nominee distanced himself from these views 
at his Judiciary Committee hearings. He did not. I was so disappointed 
when he took the disingenuous stance that the views expressed in these 
memos were merely the views of his client, the Reagan administration. 
Anyone who has read the memos can see that their author was expressing 
his own personal views.
  When I saw Senator Schumer throw him the proverbial softball in these 
hearings, I waited with anticipation for the answer that I knew would 
come. This brilliant man, John Roberts, certainly could see what 
Senator Schumer was attempting to do. He was attempting to have John 
Roberts say: Well, I was younger then. It was a poor choice of words. 
If I offended anyone, I am sorry. I know it was insensitive. I could 
have made the same point in a different manner.
  But he didn't say that. For example, the softball that was thrown to 
him by

[[Page 21647]]

Senator Schumer was words to the effect: In a memo you wrote that 
President Reagan was going to have a meeting in just a short period of 
time with some illegal amigos, Hispanics--that was insensitive. It was 
unwise. And it was wrong. And he should have acknowledged that and he 
did not.
  That affected me. It gave me an insight into who John Roberts is.
  My concerns about these Reagan-era memos were heightened when the 
White House rejected a reasonable request by the committee Democrats 
for documents written by the nominee when he served as Deputy Solicitor 
General in the first Bush administration. The claim of attorney-client 
privilege to shield these documents was unpersuasive. This was 
stonewalling, plain and simple.
  In the absence of these documents, it was equally important for the 
nominee to answer fully questions from the committee members at his 
hearing. He didn't do that. Of course a judicial nominee should decline 
to answer questions regarding specific cases that will come before the 
Court to which the witness has been nominated. We all know that. But 
Judge Roberts refused to answer many questions certainly more remote 
than that, including questions seeking his views of long-settled 
precedents.
  Finally, I was swayed by the testimony of civil rights and women's 
rights leaders against this confirmation. As we proceed through our 
public life, we have an opportunity to meet lots of people. That is one 
of the pluses of this wonderful job, the great honor that the people of 
the State of Nevada have bestowed upon me. During my public service, I 
have had the opportunity to serve in Congress with some people whom I 
consider heroes. One of those is a man by the name of John Lewis. John 
Lewis was part of the civil rights movement, and he has scars to show 
his involvement in the civil rights movement. Any time they show films 
of the beatings that took place in the Southern part of the United 
States of people trying to change America, John Lewis is one of those 
people you will see on the ground being kicked and stomped on while 
punches are thrown. He still has those scars.
  But those scars are on the outside, not the inside. This man is one 
of the most kind, gentle people I have ever met, someone who is very 
sensitive to the civil rights we all enjoy. Congressman John Lewis is 
an icon and, as I have said, a personal hero of mine. When John Lewis 
says that John Roberts was on the wrong side of history and should not 
be confirmed, his view carries great weight with me.
  So I weigh John Roberts' fine resume and his 2 years of mainstream 
judicial service against the Reagan-era memos, the nominee's 
unsatisfactory testimony, and the administrations's failure to produce 
relevant documents. I have to reluctantly conclude the scales tipped 
against confirmation.
  Some have accused Democrats of treating this nominee unfairly. 
Nothing could be further from the truth. There are volumes written 
about the uncivil atmosphere in Washington, about how things could be 
better in the Senate. All those people who write that, let them take a 
look at how this proceeding transpired in the Senate and I hope on the 
face of America. It was not easy to get to this point. In 20 minutes, 
we will have a vote on the Chief Justice of the United States. But 
people should understand that the Judiciary Committee conducted itself 
in an exemplary fashion, led by Arlen Specter and Pat Leahy. No better 
example in Government could be shown than to look at how they conducted 
the hearings and the full breadth of everything that took place with 
this confirmation process. It is exemplary.
  People have strong feelings, not only in that committee but in the 
Senate, and there were many opportunities for mischief. But because of 
the strong leadership of two distinguished Senators--one from the tiny 
State of Vermont and one from the very heavily populated State of 
Pennsylvania--it all worked out. They trusted each other and the 
members of the Judiciary Committee trusted them, and after a few weeks 
of this process, which went on for months, by the way, every Member of 
the Senate saw that this was going to be a civil proceeding, and it 
was. It has been. I commend and applaud the dignity of these hearings.
  Each Democrat considered the nomination on the merits and approached 
the vote as a matter of conscience. Democrats were not told how to 
vote, not by me, not by the chairman of the Judiciary Committee, not by 
the senior Member of the Senate, Senator Byrd. They will vote their 
conscience.
  Democrats have not employed any procedural tactics that we might have 
otherwise considered. As Senator Specter and Senator Leahy have said to 
the President himself--I have been there when they said it--we want the 
next nominee not to be extreme.
  The fact that some Democrats will vote no on this nomination is 
hardly unfair. We are simply doing our duty under the Constitution that 
we hold so dearly. The Constitution--that is what this is all about, 
this little document. We have a role, a constitutional role, of giving 
advice and consent to the President. The consent will come in a few 
minutes. The advice has been long in coming.
  In the fullness of time, John Roberts may well prove to be a fine 
Supreme Court Justice. I hope that he is. If so, I will happily admit 
that I was wrong in voting against his confirmation. But I have 
reluctantly concluded that this nominee has not satisfied the high 
burden that would justify my voting for his confirmation based on the 
current record.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. I wonder if the senior Senator from Nevada will yield to 
me. I wish to make a comment. I know he still has a couple of minutes 
left.
  Mr. REID. The time is yours.
  Mr. LEAHY. Mr. President, I want to compliment the senior Senator 
from Nevada, the Democratic leader. I supported him for assistant 
leader, and I supported him for leader, and I have never regretted, nor 
doubted, that support.
  I have been here 31 years. He is a fine leader. I have been here for 
12 nominations to the Supreme Court, 2 of them for Chief Justice. I am 
one of only a handful of Senators who can say that. I know, throughout 
all this process, the Senator from Nevada, Senator Reid, dealt with us 
evenhandedly and fairly. Never at any time did he try to twist any arms 
on this side of the aisle. Throughout it all he said: Keep your powder 
dry--his expression which I picked up--until the hearings were over. 
That is the sort of thing we should do. Hear the evidence first. Hear 
the evidence, and then reach a verdict. I am extremely proud of him.
  We have reached different conclusions on this, but we remain friends 
and respectful to each other throughout. His praise of Senator Specter 
and of myself means so much to me. But I think, more importantly, what 
he has done means so much to the Senate. Senator Reid has worked with 
both sides of the aisle to make sure that we were going to have a 
hearing for the Chief Justice of the United States that reflected what 
was best in this country.
  When I finished my speech, I spoke directly to Judge John Roberts, 
and I will do so again: Please, remember there are 280 million 
Americans. Be a Chief Justice for all of us.
  I yield the floor. 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. FRIST. Mr. President, I ask unanimous consent that the order for 
the quorum call be dispensed with.
  The PRESIDENT pro tempore. Without objection, it is so ordered.
  The majority leader is recognized.
  Mr. FRIST. Mr. President, the duty before us today to provide advice 
and consent on John Roberts' nomination as Chief Justice of the United 
States is perhaps the most significant responsibility we will undertake 
as elected leaders. It is a duty decreed to us by the Constitution and 
an obligation the American people have entrusted us to fulfill.
  In this Chamber today, we are seated at the drafting table of 
history. We are

[[Page 21648]]

prepared to write a new chapter in the history of our Nation. Our words 
and our actions will be judged not only by the American people today 
but by the eyes of history forever.
  As we prepare to pick up the pen to write these words that will shape 
the course of our highest Court, I ask that we think hard about the 
words we will write. I ask that we think hard about the question we 
must answer: Is Judge Roberts qualified to lead the highest Court in 
the land? I believe the answer to this question is yes.
  Judge Roberts possesses the qualities Americans expect in the Chief 
Justice of its highest Court and the qualifications that America 
deserves. Without a doubt, he is the brightest of the bright. His 
understanding of constitutional law is unquestionable. Judge Roberts 
has proven through his tenure on the District of Columbia Circuit Court 
of Appeals and in his testimony before the Judiciary Committee that he 
is committed to upholding the rule of law and the Constitution. He has 
demonstrated that he won't let personal opinions sway his fairminded 
approach. He will check political views at the door to the Court, for 
he respects the role of the judiciary and recognizes the importance of 
separation of powers.
  As he so eloquently stated before the committee: ``Judges are like 
umpires. Umpires don't make the rules, they apply them . . . They make 
sure everybody plays by the rules, but it is a limited role.''
  Judge Roberts will be a great umpire on the High Court. He will be 
fair and openminded. He will stand on principle and lead by example. He 
will be respectful of the judicial colleagues and litigants who come 
before the Court. And above all, he will be a faithful steward of the 
Constitution.
  This is what we know about John Roberts: In the last few weeks, he 
has provided us information and answered our questions. John Roberts 
has fulfilled his obligation to the Senate.
  Now it is time to fulfill our obligation to the American people. It 
is time for each Member to answer, Is John Roberts the right person for 
the job of Chief Justice of the United States? It is my belief that the 
answer is yes. It is my belief that the chapter we write should begin 
with his name. It is my hope that today Members will join me in writing 
the words; that Members will join me in writing ``yes'' for John 
Roberts' nomination as our Nation's 17th Chief Justice.
  I ask for the yeas and nays.
  The PRESIDENT pro tempore. Is there a sufficient second?
  There is a sufficient second.
  The question is, Will the Senate advise and consent to the nomination 
of John G. Roberts, Jr., of Maryland, to be the Chief Justice of the 
United States?
  Under Resolution 480, the standing orders of the Senate, during the 
yea and nay votes of the Senate, each Senator shall vote from the 
assigned desk of the Senator.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The result was announced--yeas 78, nays 22, as follows:

                      [Rollcall Vote No. 245 Ex.]

                                YEAS--78

     Alexander
     Allard
     Allen
     Baucus
     Bennett
     Bingaman
     Bond
     Brownback
     Bunning
     Burns
     Burr
     Byrd
     Carper
     Chafee
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Cornyn
     Craig
     Crapo
     DeMint
     DeWine
     Dodd
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Feingold
     Frist
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Jeffords
     Johnson
     Kohl
     Kyl
     Landrieu
     Leahy
     Levin
     Lieberman
     Lincoln
     Lott
     Lugar
     Martinez
     McCain
     McConnell
     Murkowski
     Murray
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Salazar
     Santorum
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Talent
     Thomas
     Thune
     Vitter
     Voinovich
     Warner
     Wyden

                                NAYS--22

     Akaka
     Bayh
     Biden
     Boxer
     Cantwell
     Clinton
     Corzine
     Dayton
     Durbin
     Feinstein
     Harkin
     Inouye
     Kennedy
     Kerry
     Lautenberg
     Mikulski
     Obama
     Reed
     Reid
     Sarbanes
     Schumer
     Stabenow
  The nomination was confirmed.
  Mr. FRIST. I move to reconsider the vote.
  Mr. REID. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. FRIST. I ask that the President be immediately notified of the 
Senate's action.
  The PRESIDENT pro tempore. Without objection, it is so ordered.

                          ____________________