Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005 12:00 AM
U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE SUPREME COURT SEPTEMBER 12, 2005
SPECTER: Good afternoon, ladies and gentlemen.
We begin these hearings on the confirmation of Judge John Roberts to be chief justice of the United States with first the introduction by Judge Roberts of his beautiful family, and then a few administrative housekeeping details before we begin the opening statements, which will be 10 minutes in length, by each senator.
At the conclusion of the opening statements, we will then turn to the introductions by Judge Lugar, Judge Warner -- actually, Senator Lugar, Senator Warner and Senator Bayh, and then the administration of the oath to Judge Roberts and his opening statement.
So, Judge Roberts, if you would at this time introduce your family we would appreciate it.
ROBERTS: (OFF-MIKE) Peggy Roberts and Barbara Burke. Barbara's husband Tim Burke is also here.
ROBERTS: My uncle, Richard Podrasky (ph). Representing the cousins, my cousin, Jeannie Podrasky (ph).
My wife, Jane is right here, front and center, with our daughter, Josephine and our son, Jack. You'll see she has a very tight grasp on Jack.
SPECTER: Thank you very much, Judge Roberts.
Judge Roberts had expressed his appreciation to have the introductions early. He said the maximum time of the children's staying power was five minutes. And that is certainly understandable.
Thank you for doing that, Judge Roberts.
And now before beginning the opening statements, let me yield to my distinguished ranking member, Senator Leahy.
LEAHY: Well, Mr. Chairman, I want to thank you for all the consultations. I think we have had each other's home phones on speed dial, we've talked to each other so often. And I have every confidence our chairman will conduct a fair and thorough hearing. You know, less than a quarter of those of us currently serving in the Senate have exercised the Senate's advice-and-consent responsibility in connection with a nomination to be chief justice of the United States. I think only 23 senators have actually been involved in that.
We're fortunate a veteran of these proceedings is chairing this.
LEAHY: We're at a time of great stress in our nation because of what has happened in New Orleans, throughout much of the Gulf Coast regions. I think the hearts and prayers of certainly my state of Vermont, but all Americans, are for those people. And I would hope that they understand while we're having these hearings, they're first and foremost in our thoughts and prayers.
And I'm sure they are with you, Judge.
This is the only time we're going to find out what he is, and so all the more important that we have a good hearing.
Again, Mr. Chairman, I appreciate our meetings on this. Appreciate the meeting earlier this morning with you and Judge Roberts. I think that you have set exactly the perfect tone for a hearing of this nature.
SPECTER: Thank you very much, Senator Leahy.
And now we'll begin the opening statements, as I said, of 10 minutes' duration.
This hearing, Judge Roberts, is being held in the Senate Caucus Room, which has been the site of many historic hearings going back to 1912 with the sinking of the Titanic; 1923, Teapot Dome; 1954, Army McCarthy; 1973, Watergate; 1987, Iran-Contra.
And this chamber still reverberate with the testimony of Judge Bork in 1987 and it still reverberates with the testimony of Justice Clarence Thomas and Professor Anita Hill in 1991.
SPECTER: This is a very unique hearing, the first one in 11 years in the Senate for a Supreme Court justice, and the first one in 19 years for a chief justice.
And you would be, if confirmed, the 17th chief justice in the history of the country and the second youngest since Chief Justice Marshall was sworn in in 1800.
Your prospective stewardship of the court, which could last until the year 2040 or longer -- the senior justice now is Justice Stevens, who is 85, and, projecting ahead 35 years, that would take us to the year 2040 and would present a very unique opportunity for a new chief justice to rebuild the image of the court away from what many believe it has become as super legislature and to bring consensus to the court with the hallmark of the court being 5-4 decisions: a 5-4 decision this year allowing Texas to display the 10 Commandments; a 5-4 decision, turning Kentucky down from displaying the 10 Commandments; a 5-4 decision four years ago striking down a section of the Americans with Disabilities Act; and last year a 5-4 decision upholding the Americans for Disabilities Act on the same congressional record.
SPECTER: Beyond your potential voice for change and consensus, your vote will be critical on many, many key issues, such as congressional power, presidential authority, civil rights, including voting rights and affirmative action, defendants' rights, prayer, many decisions for the future and perhaps institutional changes in the court looking for the day when the court may be televised.
This hearing comes at a time of turbulent partisanship in the United States Senate -- turbulent partisanship. Earlier this year, the Senate faced the possibility of a virtual meltdown with filibusters on one side of the aisle and on the other side of the aisle the threat of the constitutional or nuclear confrontation.
This committee, with the leadership of Senator Leahy, has moved to a bipartisan approach.
SPECTER: We had a prompt confirmation of the attorney general. We reported out bills which have become legislation after being stalled for many years on bankruptcy reform and class action. We have confirmed contentious circuit court nominees. We have reported out unanimously the Patriot Act, and after very deliberate and complex hearings reported out asbestos reform. So it has been quite a period for this committee.
And now we face the biggest challenge of the year, perhaps the biggest challenge of the decade, in this confirmation proceeding. I have reserved my own judgment on your nomination until the hearings are concluded, and it is my firm view that there are ought not to be a political tilt to the confirmation of a Supreme Court justice, thought to be Republican or Democrat. We all have a responsibility to ask probing questions to determine qualification beyond academic and professional standing.
These hearings, in my judgment, ought to be in substantive fact and in perception for all Americans, that all Americans can feel confident that the committee and the full Senate has done its job.
SPECTER: There are no firmly established rules for questions and answers. I have expressed my personal view that it is not appropriate to ask a question about how the nominee would vote on a specific case. And I take that position because of the key importance of independence, that there ought not to be commitments or promises made by a nominee to secure confirmation.
But senators have the right to ask whatever question they choose. And you, Judge Roberts, have the prerogative to answer the questions as you see fit, or not to answer them as you see fit.
It has been my judgment, after participating in nine -- this will be the tenth for me, personally -- that nominees answer about as many questions as they think they have to in order to be confirmed.
It's a subtle minuet. And it will be always a matter of great interest as to how we proceed.
I do not intend to ask you whether you will overrule Roe v. Wade. I will ask you whether you think the Constitution has a right of privacy. And I will ask questions about precedents, as they bear on Roe v. Wade.
I'm very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the court. I am concerned about what I bluntly say is the denigration by the court of congressional authority.
When the Supreme Court of the United States struck down a portion of the legislation to protect women against violence, the court did so because of our, quote, "method of reasoning," close quote. And the dissent noted that that had carried the implication -- the implication of judicial competence. And the inverse of that is congressional incompetence.
SPECTER: And after 25 years in this body and on fact-finding, and there was an extensive record made in the case in the legislation to protect women against violence, the court simply disregarded that.
And then the issue of states' rights, the Supreme Court of the United States has elevated states' rights but in a context that it's impossible to figure out what the law is.
The Americans with Disabilities Act had a very extensive record. But when the case came up in 2001, Garrett, a woman who had breast cancer, the Supreme Court said that the section of the act was unconstitutional.
Four years later in Lane v. Tennessee, you had a paraplegic crawling up the steps, access to a courtroom. The court said that that was constitutional. Again, 5-4 on what really turned out to be on inexplicable decisions.
You have a very extensive paper trail and there will obviously be questions on that subject, and we'll be concerned about what your views are today contrasted with what your views may have been in the future.
Phyllis Schlafly, the president of the Eagles Forum, said that they were smart-alec comments by a bachelor who didn't have a whole lot of experience so she's putting on an understandable gloss on that subject. But I know that will be a matter of considerable interest.
In one of your early memoranda, you came forward with an intriguing thought, one of many in those early memorandas as your conceptualization power was evident that justices ought to be limited to a 15-year term.
SPECTER: And with that idea in play, if time permits, it's something I'd like to explore: voluntary action on the part of a justice, or perhaps the president can make that a condition.
Between now and the year 2040, or in the intervening years, technology will present many, many novel issues. And there again, if time permits, I'd like to explore that.
I'm down to ten seconds and I intend to stop precisely on time and this committee has a record for maintaining that time. That's it.
ROBERTS: Thank you, Mr. Chairman.
SPECTER: I now yield to my distinguished colleague, Senator Leahy.
LEAHY: Well, thank you, Mr. Chairman. Again, thank you for the way you conducted this whole run-up to this hearing.
A few days ago, William Rehnquist passed away. He'd had 33 years of service on the Supreme Court. And last week many of us paid our respects for his service at the monumental building across the street in which he devoted himself to defending the independence of the federal judiciary.
I know, Judge Roberts, that was a particularly difficult time for you because of your close relationship with him. I thought of the facade of that court, with its marble from Vermont, and I think of how much our state served as a refuge for the chief justice, especially in the summer months.
Today, the devastation, despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have a federal government, why it's critical that our government be responsive.
We need the federal government for our protection and security, to cast a lifeline to those in distress, to mobilize better resources beyond the ability of any state and local government -- all of this for the common good.
The full dimensions of the disaster are not yet known. Bodies of loved ones need to be recovered. Families need to be reunited. The survivors need to be assisted. Long-term health risks and environmental damage have to be assessed.
LEAHY: But if anyone needed a reminder of the need and role of a government, the last two days have provided it. If anyone needed a reminder of the growing poverty and despair among too many Americans, we now have it.
And if anyone needed a reminder of the racial divide that remains in our nation, no one can now doubt we still have miles to go.
I believe that the American people still want and expect and demand the government to help ensure justice and equal opportunity for all and especially for those who, through no fault of their own, were born into poverty.
The American people deserve a government as good as they are, with a heart as big as theirs. We are all Americans and all Americans should have the opportunity to earn a fair share of the bounty and blessings that America has.
And, Judge, we've been given a great Constitution.
As you know as well as anybody here, it begins, "We the people of the United States, in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity, do ordain establish this Constitution for the United States of America."
It's a framework for our government, the foundation of all our rights and liberties.
In fact, Vermont joined the union the same year the Bill of Rights was ratified. Those of us from the Green Mountain State, the nation's 14th state, we've historically been very protective of our fundamental rights and liberties.
Many feel we didn't join the union until we were sure the Bill of Rights is going to go through. We understand the importance of the Constitution and the Bill of Rights.
In these hearings, we're going to be discussing constitutional issues that may seem legalistic, but they're vital issues. They affect every one of us every day.
When we discuss the Constitution's commerce clause or spending power, for example, we're asking about congressional authority to pass laws to ensure clean air and water and children's and seniors' health, and safe good, drugs, safe workplaces, even wetland protection, levees that should protect our communities from natural disasters.
LEAHY: Our constitutional values remain constant. We want to realize the American promise of fairness and equality and justice. Constitution: "We the people."
When the Constitution was written, though, "We the people" did not include Native Americans, or African-American slaves, but only free people.
It took more than fourscore years and a civil war before the Constitution was amended to include all citizens, all persons born and naturalized in the United States. Even then, half of the people didn't have one of democracy's defining rights: Women were not yet guaranteed the right to vote. That didn't happen until 1920.
And decades later, still it took a historic ruling, a unanimous ruling by the United States Supreme Court in the case of Brown v. Board of Education, and then landmark legislation by the federal government, for America to begin to provide a measure of equality to many who were held back for so long because, and only because, of the color of their skin.
I've long been a proponent of First Amendment freedoms and open government, because the public's right to know what our government is doing promotes accountability.
Federal judges aren't elected, they serve for life if they're confirmed. The people never have the opportunity for effective oversight of their work.
The judiciary is the most isolated branch of our government from public accountability, so this is the only opportunity to examine what kind of justice John Roberts will dispense if promoted to the Supreme Court, the direction he'd lead the federal judiciary.
This hearing is the only chance that we, the people, have to hear from and reflect on the suitability of the nominee to be a final arbiter of the meaning of the Constitution.
An open and honest public conversation with a nominee in these hearing rooms is an important part of this process.
LEAHY: This hearing is about the fundamental right of all Americans.
And you're the first nominee of the 21st century: If you're confirmed, you serve not just for the remaining three years of the Bush administration, but you could serve through the administrations of the next seven or eight presidents.
Judge Roberts would be deciding matters that affect not only all Americans today, but also our children and our grandchildren.
At one of these hearings nearly 20 years ago, I noted how critical it is for the Senate to engage in a public exploration of the judicial philosophy of Supreme Court nominees. I said, "There can hardly be an issue closer to the heart of the Senate's role than a full and public exposition of the nominee's approach to the Constitution and to the role of the courts in discerning and enforcing its command."
That's what I mean by judicial philosophy. The truth has not changed.
What's more difficult to see, though, is the arc of the law in the years ahead as justices will vote on which cases to accept and then how to decide them.
Ours is a government of laws. When we are faced with a vacancy on the Supreme Court, we're reminded that it's our fellow citizens, nine out of our 280 million Americans, who interpret and apply those laws.
The balance and the direction of the Supreme Court now at issue with two vacancies, both Chief Justice Rehnquist and Justice Sandra Day O'Connor. Chief among emerging concerns are whether the Supreme Court will continue its recent effort to restrict the authority of Congress to pass legislation to protect the people's interests in the environment, in safety, in civil rights, and whether the Supreme Court will effectively check the greatly enhanced presidential power that's been amassed in the last few years.
LEAHY: In other words, Judge, whether you will be the protector of the rights of all Americans -- not just Republicans, not just Democrats, not just independents, but all Americans -- and whether you can serve as the check and balance that all Americans expect.
Now, the light of the nominations process is intense. It's intense because it's the only time that light's going to shine. But the afterglow lasts for the rest of a justice's career.
We the people have just this one chance to inquire whether this person should be entrusted with the privilege and the responsibility of interpreting our Constitution and dispensing justice from the nation's highest court.
Two hundred and eighty million Americans -- the president's made his choice. Now there's only 100 Americans standing in the shoes of all other Americans. And on behalf of the American people, it's the job of the 100 of us in the Senate to do all we can to make sure we get it right.
Mr. Chairman, there's time left over, but I've said all I intend to say.
SPECTER: Thank you very much, Senator Leahy, for your statement. Thank you for your leadership, and your leadership on observing the time so meticulously.
HATCH: Well, thank you, Mr. Chairman.
I want to begin by saying that my thoughts and prayers are with the family of Chief Justice William Rehnquist. He concluded his life on Earth just the way he lived it: independently and with dignity.
And I'm glad that his family was with him when he passed away.
HATCH: He was a good man and a great judge.
Judge Roberts, I know that you and Chief Justice Rehnquist remained close friends. He would have been proud to have a former clerk serve with him as a colleague on the court. And now you've been nominated to succeed him as chief justice.
When President Bush nominated you two years ago to your current post on the U.S. Court of Appeals, you had two hearings before this committee and additionally answered approximately 100 written questions from various senators.
The American Bar Association twice unanimously gave you its highest, well-qualified, rating.
That process covered a lot of ground, including many of the same issues which are sure to be raised here. You acquitted yourself so well that the Senate confirmed you without dissent.
Do not be surprised now, however, if it seems like none of that scrutiny and evaluation had ever happened.
Let me mention one example relating to my home state of Utah to show how the confirmation process has changed.
President Warren G. Harding nominated former Utah Senator George Sutherland to the Supreme Court on September 5, 1922. That same day, the Judiciary Committee chairman went straight to the Senate floor and, after a few remarks, made a motion to confirm the nomination. The Senate promptly and unanimously agreed. There was no inquisition, no fishing expedition, no scurrilous and false attack ads.
The judicial selection process, of course, has changed because what some political forces want judges to do has changed from what America's founders established.
America's founders believed that separating the branches of government, with the legislatures making the law and the judiciary interpreting and applying the law, is the linchpin of limited government and liberty. James Madison said that no political truth has greater intrinsic value.
Quoting the philosopher Montesquieu, Alexander Hamilton wrote in the Federalist, number 78, that, quote, "There is no liberty if the power of judging be not separated from the legislative and executive powers," unquote.
HATCH: Well, times have changed. Today, some see the separation of powers not as a condition for liberty but as an obstacle to their own political agenda.
When they lose in the legislature, they want the judiciary to give them another bite at the political apple. Politicizing the judiciary leads to politicizing judicial selection.
The confirmation process has sometimes been -- it seems to me -- unbecoming of the Senate and disrespectful of nominees. I applaud President Bush for resisting this trend and for nominating qualified men and women who, as judges, will not legislate from the bench.
You're a perfect example of that.
The conviction that judges interpret and apply but do not make the law helps us sort out the information we need, the questions we ask, the standards we apply and the decisions we make.
With that in mind, I believe that there are three facts that should guide us in this hearing.
First, what judges do limits what judicial nominees may discuss. Judges must be impartial and independent. Their very oath of office requires impartiality and the canons of judicial ethics prohibit judges and judicial nominees from making commitments regarding issues that may come before them.
I'll be the first to admit that senators want answers to a great many questions. But I also have to admit that a senator's desire to know something is not the only consideration on the table.
Some have said the nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people. Some compare a nominee's refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment.
HATCH: These might be catchy sound bytes, but they are patently false.
That notion misleads the American people about what judges do and slanders good and honorable nominees who want to be both responsive to senators and protect their impartiality and independence.
Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues.
Some senators consult with law professors to ask these questions a dozen different ways. But we all know that is what they seek.
In 1993, President Clinton's Supreme Court nominee, Judge Ruth Bader Ginsburg, explained better than I can why nominees cannot answer such questions no matter how they're framed.
She said, quote, "A judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process," unquote.
Nominees may not be able to answer questions asking them to opine or speculate about hypotheticals outside of an actual case with concrete issues and real facts.
Since 1792, as long as the judiciary itself has existed, the Supreme Court has held that judges do not have the authority to render such advisory opinions.
We should not be surprised, then, when nominees decline to provide what judges themselves may not provide.
So the first fact that should guide us here is that, no matter how badly senators want to know things, judicial nominees are limited in what they may discuss.
That limitation is real. And it comes from the very nature of what judges do. The second fact is that nominees themselves must determine where to draw the line.
HATCH: Judges, not senators, take the oath of judicial office. Judges, not senators, are bound by the canons of judicial ethics.
Judge Roberts will be a federal judge for many years to come. This process will only determine which courtroom he will occupy.
He must determine how best to honor his judicial obligations.
Different nominees may draw this line a little differently, but they draw the same kind of line protecting their judicial impartiality and independence.
Justice Stephen Breyer drew that line in 1994. As he put it, clients and lawyers must understand that judges are really open- minded.
Justice Anthony Kennedy drew that line in 1987. He said that the public expects that a judge will be confirmed because of his temperament and character, not his position on the issues.
Recently, one of our colleagues on this committee dismissed as a myth the idea that Justice Ginsburg refused to discuss things related to how she would rule.
Anyone watching C-SPAN's recent replays of Justice Ginsburg's hearing knows that this is not a myth; it is a reality.
I was on this committee in 1993. Justice Ginsburg was not telling mythological tales when she refused nearly 60 times to answer questions, including mine, that she believed would violate what she said was her rule of, quote, "no hints, no forecasts, no previews," unquote. Those were her words, not mine.
Justice Ginsburg did what every Supreme Court nominee has done: She drew the line she believed was necessary to protect her impartiality and independence.
Finally, the third fact that should guide us is that the Senate traditionally has respected the nominee's judgment about where to draw the line.
HATCH: In response to some of my questions, Justice Ginsburg said, quote, "I must draw the line at that point and hope you will respect what I have tried to tell you," unquote.
Did I wish she had drawn the line differently? Of course. But I respected her decision.
This is the historical standard.
In 1967, our colleague, Senator Kennedy, a former chairman of this committee, made the same point at a press conference supporting the Supreme Court nomination of Thurgood Marshall.
Senator Kennedy said, quote, "We have to respect that any nominee to the Supreme Court would have to defer any comments on any matters which are either before the court or very likely to appear before the court."
This has been a procedure which has been followed in the past and is one which I think is based upon sound legal precedent.
Justice Marshall drew his line, yet we confirmed him by a vote of 69-11.
Justice Sandra Day O'Connor drew her line, yet we confirmed her by a vote of 99-0.
Justice Kennedy drew his line, yet we confirmed him by a vote of 97-0.
Justice Ginsburg drew her line, yet we confirmed her by a vote of 96-3.
Justice Breyer drew his line, yet we confirmed him by a vote of 87-9.
We must use the judicial rather than a political standard to evaluate Judge Roberts' fitness for the Supreme Court. That standard must be based upon the fundamental principle that judges interpret and apply, but do not make the law.
Judge Roberts, as every Supreme Court nominee has done in the past, you must decide how best to honor your commitment to judicial impartiality and independence.
HATCH: You must decide when that obligation is more important than what senators, including this one, might want to know.
As the Senate has done in the past, I believe we should honor your decision and make our own.
Judge Roberts, you have a tremendously complex and important and honorable record, from law school to the various positions in government that you held, to the judge on the U.S. Circuit Court of Appeals for the District of Columbia, to now.
We have a great deal of respect for you. We expect you to make a great justice. And I just want to congratulate you on your nomination.
SPECTER: Thank you. Thank you very much, Senator Hatch.
I know Senator Warner is with us, one of the introducers. And of course he's welcome to stay, but the timing will move to him at about 3:20, approximately.
KENNEDY: Thank you very much, Mr. Chairman.
Judge Roberts, I join in welcoming you and your family to this committee and to this famous room, the site of so many historic hearings.
Today our nation's flags are at half mast to honor the memory of Chief Justice Rehnquist and his deep dedication to his beloved Supreme Court.
And we know that Judge Roberts was especially close to him. And our thoughts and prayers go to the Rehnquist family and all who knew him.
As we are all aware, the Senate's actions on this nomination is profoundly important. It's a defining opportunity to consider the values that make our nation strong and just and how to implement them more effectively, especially the guiding principle of more than two centuries of our history that we are all created equal.
KENNEDY: Our commitment to this founding principle is especially relevant today. Americans are united, as rarely before, in compassion and generosity for our fellow citizens whose lives have been devastated by Hurricane Katrina.
That massive tragedy also taught us another lesson.
The powerful winds and flood waters of Katrina tore away the mask that has hidden from public view the many Americans who are left out and left behind. As one nation under God, we cannot continue to ignore the injustice, the inequality and the gross disparities that exist in our society.
Across the years, we've experienced times of great turmoil and great triumph as each succeeding generation struggled to live up to our founding principle and give it meaning for everyone.
Americans have shed blood, campaigned and marched. They have worked in countless quiet ways as well to see that every one of our citizens is part of our democracy and has an equal opportunity for a good education, a good job and a good life.
Today, grandparents who were denied the right to vote expect their grandsons and granddaughters to be able to cast a ballot without discrimination or intimidation.
And our society is better because of that progress.
KENNEDY: Today, parents expect their disabled children to live in hope, to receive an education that draws out their talent, enables them to reach for their dreams like all other Americans.
And our society is better because of that progress.
Too many have sacrificed too much, worked too hard, come too far to turn back the clock on that progress. Americans today expect their elected representatives to carry on the great unfinished business of making America the land of opportunity for all. And we expect our courts to defend our progress as their constitutional responsibility.
The challenge today is especially difficult because of the vast global economic changes and major new threats to our national security. We need the ingenuity and innovation and commitment of every American.
Our military leaders are the first to say that highly qualified, racially diverse armed forces are essential to defend our country and the course of freedom at home and abroad.
Every citizen counts. And we must continue to remove barriers that hold back millions of our people. And we must draw strength from our diversity as we compete in a new world of promise and peril.
So the central issue before us in these hearings is whether the Supreme Court will preserve the gains of the past and protect the rights that are indispensable to a modern, more competitive, more equal America.
KENNEDY: Commitment to equality for all is not only a matter of fairness and conscience; it's also our path to sustained national strength and purpose.
We also are a government of the people in which citizens have a strong voice in the great issues that shape our lives.
Our systems of checks and balances was drawn up in full awareness of the principle that absolute power corrupts absolutely and was designed to make sure that no branch of government becomes so powerful that it can avoid accountability.
The people have a right to know that their government is promoting their interests, not the special interests.
When it comes to the price of gasoline and the safety of prescription drugs, the air we breathe and the water we drink and the food and other products we buy, the people have a right to keep government from intruding into their private lives and most personal decisions.
But the tragedy of Katrina shows in the starkest terms why every American needs an effective national government that will step in to meet urgent needs that individual states and communities cannot meet on their own.
Above all, the people and their Congress must have a voice in decisions that determine the safety of our country and the integrity of our individual rights.
We expect Supreme Court justices to uphold those rights and the rule of times in both war and peace.
KENNEDY: All this and more will be before the Supreme Court in the years ahead, and its judgments will affect the direction and character of our country for generations to come.
Judge Roberts, you are an intelligent, well-educated and serious man. You have vast legal experience, and you're considered to be one of the finest legal advocates in America.
These qualities are surely important qualifications for a potential Supreme Court justice, but they do not end the inquiry of our responsibility. This committee and the full Senate must also determine whether you have demonstrated a commitment to the constitutional principles that have been so vital in advancing fairness, decency and equal opportunity in our society.
We have only one chance to get it right and a solemn obligation to do so. If you're confirmed ,you could serve on the court for a generation or more and the decisions you make as a justice will have a direct impact on the lives of our children and our grandchildren and our great-grandchildren.
Because of this special importance of an appointment like yours, the founders called for a shared power between the president and the Senate. The Senate was not intended to be a rubber stamp for a president's nominees to the Supreme Court. And, as George Washington himself found out, it has not been.
Judges are appointed by and with the advice and consent of the Senate. And it is our duty to ask questions on great issues that matter to the American people and speak for them.
Judge Roberts, I hope you will respond fully and candidly to such questions, not just to earn our approval, but to prove to the American people that you have earned the right to a lifetime appointment to the highest court in the land.
KENNEDY: Unfortunately, Mr. Chairman, there are real and serious reasons to be deeply concerned about Judge Roberts' records. Many of his past statements and writings raise questions about his commitment to equal opportunity and to the bipartisan remedies we've adopted in the past.
This hearing is John Roberts' job interview with the American people.
He will have a fair chance to express his values, state his views and defend his record.
The burden on him is especially heavy because the administration, at least so far, has chosen not to allow the Senate to have access to his full record. We can only wonder what they don't want us to know.
In particular, we need to know his views on civil rights, voting rights and the right to privacy, especially the removal of existing barriers to full and fair lives for women, minorities and the disabled.
From the start, America was summoned to be a shining city on a hill. But each generation must keep building that city.
Even in this new century, some Americans are still denied a voice at the ballot box because of their color, denied a promotion because of their gender, denied a job because of their age, denied hope because they are gay or denied an appropriate education because they are disabled.
KENNEDY: Long-established rights to privacy are under heavy siege. We need a chief justice who believes in the promise of America and the guarantees of our Constitution, a person who will enter that majestic building near here and genuinely believe the four inspiring words inscribed in marble above the entrance: "Equal justice under law."
I look forward to hearing from Judge Roberts about whether, if he joins the Supreme Court, he will uphold the progress we have made and will guarantee that all Americans have their rightful place in the nation's future.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Kennedy.
GRASSLEY: Judge Roberts, I welcome you and congratulate you on your nomination.
I think it's fitting that you have been nominated to replace a mentor of yours, Chief Justice Rehnquist. You obviously have a tough act to follow. And that's because Chief Justice Rehnquist was a great Supreme Court justice. He believed in strict application of the law and the Constitution and was a consistent voice for judicial restraint. And we will all miss his leadership.
Judge Roberts, we had a good personal meeting in my office a little over a month ago. And based on our discussions and what I've reviewed, you appear to be extremely well-qualified.
At our meeting I was encouraged by your respect for the limited role of the courts as an institution in our democratic society.
And I look forward to asking more questions about your record and qualifications, as well as your judicial approach.
GRASSLEY: I also look forward to asking you about what you think are priorities for the federal judiciary as you now lead that branch.
Of course, as we reflect on the enormous buildup to this day and the packed hearing room filled with media lights and cameras, it's worth recalling the fact that judicial nominees never appeared before the Senate until 1925. Ever since then, for the most part, the hearings were not public spectacles.
In 1962, for example, when Byron White was nominated to the Supreme Court by President Kennedy, the hearing before the Judiciary Committee lasted all of 15 minutes and eight questions. And it seems to me that the Senate sure got it right with Justice White, and Justice White went on to serve, then, for a generation.
Of course, all this was before we had televised hearings, which has encouraged ratcheting up the rhetoric to play to various constituencies.
Furthermore, Judge Roberts, you are the first nominee of the Internet age, with millions of eyes scrutinizing thousands of downloaded pages of writing, not to mention the hundreds of Web site blogs characterizing the documents that have been produced in an accurate -- or, more likely, inaccurate -- way and opining on every record that you have been involved with, and doing it by the minute.
So to some extent, there is no turning back from what we've created here, and you just happen to be the latest victim of such scrutiny.
GRASSLEY: During the Ginsburg nomination, Senator Biden, then chairman of the Judiciary Committee, urged that we not treat these hearings, in Senator Biden's words, "as make-or-break trials of dramatic importance." And I sure agree with what he said then.
Rather, the hearing provides us a unique opportunity for us to ensure that each person appointed to the federal bench will be a true judge and not some sort of super-legislator.
The court should not be made up of seats designated conservative, liberal, moderate. Rather, we have responsibilities to fill the federal bench with individuals who will faithfully interpret the laws and the Constitution, individuals who will withhold any personal, political or ideological tendencies from their decision-making process.
And this is even more important, then, when we're confirming you now to the Supreme Court as opposed to when we confirmed you to the Circuit Court.
There are a number of qualities that I look for in a Supreme Court nominee. I believe that the nominee should be someone who knows he or she is not appointed to impose his or her views of what's right or wrong. As Chief Justice Marshall said over 200 years ago, the duty of the judge is to say what the law is, not what it ought to be.
Moreover, the nominee should be someone who not only understands but truly respects the equal roles and responsibilities of the different branches of government and the role of our states in the federal system.
If we confirm a nominee who is all of this, none of us on the political right or the political left will be disappointed because it will mean in the end that the people, through their elected representatives, will be in charge.
GRASSLEY: On the other hand, if we confirm individuals who are bent on assigning to themselves the power to fix society's problems as they see fit, a bare majority of these nine unelected and unaccountable men and women will usurp the power of the people, hijacking democracy to serve their own political prejudices.
We do not want to go down that road and we should not go down that road.
Why is it, then, so important to have Supreme Court justices practice judicial restraint? Because that means the policy choices of the democratically elected branches of government will only be overturned if and when there is a clear warrant to do so in the Constitution itself.
We want Supreme Court justices to exercise judicial restraint so that cases will be decided solely on the law and the principles set forth in the Constitution, and not upon an individual justice's personal philosophical views or preferences.
Felix Frankfurter identified this as the highest example of judicial duty.
A fundamental principle of our country is that the majority has the legitimate right to govern.
This approach hardly means that courts are less energetic in protecting individual rights. But the words of the Constitution constrain judges every bit as much as they control legislators, executives and citizens.
GRASSLEY: Otherwise we're no longer a nation of law but a nation of politicians dressed in judges' robes.
During my tenure in the Senate, I participated in a number of these Supreme Court nomination hearings, and I believe it's nine to date. I'm hopeful that we will see a dignified confirmation process that will not degenerate into what we saw during the Bork and Thomas hearings. Rather, we need to see the same level of civility as we saw during the O'Connor, Ginsburg and Breyer hearings.
Moreover, I'm hoping that we won't see a badgering of the nominee about how he'll rule on specific cases and possible issues that will or may come before the Supreme Court. That has been the practice, as you know, in the past.
And let me remind my colleagues that Justices Ginsburg and Breyer refused to answer questions on how they would rule on cases during their confirmation hearings.
The fact is that no senator has a right to insist on his or her own issue-by-issue philosophy or seek commitments from nominees on specific litmus-test questions likely to come before that court. To do so is to give in to the liberal interest groups that only want judges who will do their political bidding from the bench regardless of what is required by the law and the Constitution.
The result is, then, loss of independence for the Supreme Court and a lessening of our government's checks and balances.
Some have suggested that since you've been nominated now to be chief justice, you deserve even more scrutiny than before when you were just nominated for associate. Some are saying that we should prolong the hearings and turn over even more stones than we've already turned over thus far.
Well, the chief justice has been described as "first among equals."
GRASSLEY: The plain truth is that there really isn't anything substantively different, and your role and your vote will count just the same as other justices of the Court. So my own questioning and analysis of your qualifications will not really be much different from your previous appointment.
But it is true that the chief justice has additional duties as the head of the federal judiciary. The chief justice has to be someone who has a good management style, who can run the trains on time and who can foster collegiality on the court.
So, Judge Roberts, I think that since you've appeared before the court 39 times to argue cases on appeal, and that the current justices know and respect you, that bodes very well in terms of your smoothly transitioning into the court into the new role now of chief justice.
I congratulate you.
SPECTER: Thank you very much, Senator Grassley.
BIDEN: Thank you, Mr. Chairman.
Judge Roberts, welcome.
Mrs. Roberts, welcome to you.
I might note at the outset, I have never heard of or seen a federal judge who was an independent. It's amazing what that life tenure does. So I don't think you have any worry, Judge, about having to cash in your independence. It's never occurred in my memory or in my study.
And, Judge, I want to point out to my friends that it is true judges didn't come before the committee in the past. But it used to be required in the past you needed unanimous consent of the entire Senate to get before the Senate. So, you know, there's some good things and some bad things that have changed.
BIDEN: Judge, as you know, there's a genuine intellectual debate going on in our country today over whether the Constitution is going to continue to expand the protections of the right to privacy, continue to empower the federal government to protect the powerless.
And it's a big debate. All you got to do is turn to any Web site: American Enterprise Institute, left, right, center. It's a gigantic debate. Hadn't occurred, as you and I both know, and my colleagues know, in the last 70 years. It has not been this contentious; not just the politics but the debate, the intellectual debate.
For 70 years, there's been a consensus, Judge, on our Supreme Court on these issues of privacy and protecting the powerless. And this consensus has been fully, fully embraced, in my view, by the American people.
But there are those who strongly disagree with the consensus, as is their right. And they seek to unravel the consensus.
And, Judge, you are in the unenviable position, as we talked about in my office, of being right in the middle of this fundamentally important debate.
And quite frankly, Judge, we need to know on which side of that divide you stand, for whoever replaces Justice Rehnquist, as well as Justice O'Connor, will play a pivotal role in this debate and for tens of millions of the American people, this is no academic exercise.
For the position you will take in this debate will affect their lives in very real and personal ways for at least, God willing, the next three decades. And there is nothing they can do about it after this moment.
Judge, I believe in a Constitution -- as our Supreme Court's first great chief who has been mentioned today, Justice Marshall, said in 1819, and I quote, "a Constitution intended to endure for ages to come and consequently to be adapted to the various crises of human affairs."
That's the Constitution I believe in. That's the way I think we should look at the Constitution.
At its core, the Constitution envisions ever-increasing protections for human liberty and dignity for all its citizens and a national government empowered -- empowered -- to deal with these unanticipated crises.
Judge, herein lies, in my view, the crux or the intellectual debate I referred to at the outset: whether we will have an ever- increasing protection for human dignity and human liberty or whether those protections will be diminished, as suggested by many in their reading of the Constitution that says there are no unenumerated rights -- there is a very narrow reading of the Constitution.
BIDEN: In 1925 the Constitution preserved the rights of parents to determine how to educate their kids, striking down a law that required children to attend public school.
In 1965 the Constitution told the state to get out of married couples' bedrooms by striking down a state law prohibiting married couples from using contraceptions.
In 1967 the Constitution defended the right of a black woman to marry a white man.
In 1977 the Constitution stopped a city from making it a crime for a grandmother to live with her grandchildren.
And, fortunately, even when the Supreme Court at first took the Constitution away from the promise of hope of our Constitution's ennobling phrases, in the end it has kept the faith.
In 1873, for example, the court said states could forbid women from being lawyers. It took 100 years to undo this terrible mistake, but the court eventually got it right.
In 1896 the Supreme Court said separate but equal is unlawful. It took 58 years for the Supreme Court to outlaw racial segregation, throwing the doctrine into the dustbin of history, but it got it right.
In the early 1900s the court rendered the federal government powerless to outlaw child labor, to protect workers. It took until 1937 for the Supreme Court to see the error of its ways, but it finally got it right.
In every step we've had to struggle against those who saw the Constitution as frozen in time, Judge, but time and again we've overcome and the Constitution has remained relevant and dynamic, thanks to the proper interpretation, in my view, of the ennobling phrases purposely placed in what I refer to as our civic bible, the Constitution.
BIDEN: And once again, when it should be even more obvious to all Americans we need increased protections for liberty as we look around the world and we see thousands of people persecuted because of their faith, women unable to show their faces in public, children maimed and killed for no other reason than they were born the wrong tribe; and once again, when it should be obvious we need a more energetic national government to deal with the challenges of the new millennium -- terrorism, the spread of weapons of mass destruction, pandemic disease, religious intolerance -- once again our journey of progress is under attack.
And it's coming from, in my view, the right. There are judges, scholars and opinion leaders who belong to this group of people, who are good, honorable and patriotic Americans. They believe the Constitution provides no protection against government intrusion into highly personal decisions like the Schiavo case, decisions about birth, about marriage, about family, about religion.
There are those who would slash the power of our national government, fragmenting it among the states in a new reading of the 10th and 11th amendment.
Incredibly, some even argue, as you well know -- people won't believe this -- but some are arguing today, in this constitutional exile group, who argue that the national government has no power to deal with what's going on in the Gulf at this moment.
Judge, I don't believe the Constitution -- I don't believe in a constitution where individuals could, for very long, have accomplished what we did had we read it in such a narrow way.
Like the founders, I believe our Constitution is as big and as grand and as great as its people. Our constitutional journey did not stop with women being barred from being lawyers, with 10-year-olds working in coal mines or black kids forced in different schools than white kids just because the Constitution -- in the Constitution, nowhere does it mention sex discrimination, child labor, segregation. It doesn't mention it.
Our constitutional journey did not stop then and it must not stop now, Judge.
BIDEN: And we'll be faced with equally consequential decisions in the 21st century.
Can a microscopic tag be implanted in a person's body to track his every movement? There's actual discussion about that.
You will rule on that -- mark my words -- before your tenure is over.
Can brain scans be used to determine whether a person's inclined toward criminality or violent behavior?
You will rule on that.
And, Judge, I need to know whether you will be a justice who believes that the constitutional journey must continue to speak to these consequential decisions or that we've gone far enough in protecting against government intrusion into our autonomy into the most personal decisions we make.
Judge, that's why this is a critical moment. There are elected officials in this government, such as Mr. DeLay -- a fine, honorable, patriotic man -- and others who have been unsuccessful at implementing their agenda in the elected branches. So they have now poured their energy -- as the left would, if it were different -- and now poured their energies and resources into trying to change the court's view of the Constitution.
And now they have a once in a lifetime opportunity, the filling of two Supreme Court vacancies, one of which is the chief and the other is for associate justice -- the first time in 75 years.
Judge, I believe with every fiber in my being that their view of the Constitution and where the country should be taken would be disaster for our people.
Like most Americans, I believe the Constitution recognizes a general right to privacy.
I believe a woman's right to be nationally and vigorously protected exists.
I believe that the federal government must act as a shield to protect the powerless against the economic interests of this country.
And I believe the federal government should stamp out discrimination wherever -- wherever -- it occurs.
And I believe the Constitution inspires and empowers us to achieve these great goals.
Judge, if I look only at what you've said and written -- as used to happen in the past -- I would have to vote no. You dismissed the constitutional protection of privacy as, quote, "a so-called right." You derided agencies like the Securities and Exchange Commission that combat corporate misconduct as "constitutional anomalies," quote.
And you dismissed gender discrimination as, quote -- and I quote -- "merely a perceived problem."
This is your chance, Judge, to explain what you meant by what you have said and what you have written.
BIDEN: That's what I said when I was chairman. That's what this is about.
The Constitution provides for one democratic moment, Judge -- one democratic moment -- before a lifetime of judicial independence.
This is that moment.
And when the people of the United States are entitled to know as much as they can about the person we are entrusting with and safeguarding our future, and the future of our children and our grandchildren, Judge, as you know and we talked about, this is that moment and this is what this hearing is about.
I thank you.
SPECTER: Thank you, Senator Biden.
KYL: Thank you, Mr. Chairman.
Before discussing Judge Roberts' nomination, I would like to take a moment to express my respect and admiration for the justice whom he will be replacing on the Supreme Court, William Rehnquist, who began his career as a lawyer in Phoenix.
From 1994 until last year, he made an annual return to Arizona to teach a course on Supreme Court history at my alma matter, the University of Arizona.
Chief Justice Rehnquist provided steady leadership at the Supreme Court through several turbulent decades, showing in the process how much of a difference one person with great integrity can make.
We mourn his loss.
Now, in spite of the fact that he is not from Arizona, Judge Roberts clearly is eminently qualified to serve as chief justice of the United States Supreme Court. Enough has already been said about his credentials that I will not catalog them here.
Rather, the principal matter that I would like to address today is the proper scope of this committee's questioning of the nominee.
With all due respect to my colleagues, the seat on the Supreme Court is not a political -- let alone a legislative -- office, and not every question that a senator might think of is legitimate.
This committee's precedents, the rules of judicial ethics and a sound respect for the unique role of the federal judiciary in our society all counsel in favor of some basic limits on the types of questions that a senator should ask of a judicial nominee.
KYL: One is not qualified for the court by virtue of his position on issues, but rather by his ability to judge fairly.
Most importantly, it is not appropriate for a senator to demand a nominee's view on issues that are likely to come before the court. This standard was reiterated four years ago by the late Lloyd Cutler, White House counsel to former Democratic Presidents Carter and Clinton.
In a hearing before this committee on the subject of the Senate's role in evaluating judicial nominees, Mr. Cutler stated quite clearly what the proper limits are.
And I quote: "Reviewers must refrain from asking candidates for particular pre-commitments about unresolved cases or issues that may come before them as judges."
And he continued: "The ultimate question is simply whether or not potential candidates have the qualities of integrity, good judgment and experience to become judicial officers of the United States. It would be a tragic development if ideology became an increasingly important consideration in the future. To make ideology an issue in the confirmation process is to suggest that the legal process is and should be a political one. That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts."
Just imagine, Mr. Chairman, expecting litigants to appear before a court knowing in advance what the ruling will be.
Limits on the questioning of judicial nominees are reflected even in the questionnaire that this committee submits to nominees. Question 27-B of the committee's questionnaire makes clear that it is unacceptable for anyone involved in the process of selecting the nominee to seek assurances about his positions on cases, questions or issues that might come before him as a judge.
Let me quote the rule: "Has anyone" -- or the question, rather: "Has anyone involved in the process of selecting you as a judicial nominee, including, but not limited to any member of the White House staff, the Justice Department or the Senate or its staff, discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any expressed or implied assurances concerning your position on such case, issue or question?"
KYL: Now, Judge Roberts answered in the negative to that question, and I think it would be ironic indeed if the committee were now to demand that the nominee take stands on questions that may come before him as a member of the court.
As Senator Hatch noted earlier, the confirmation hearings of the two most recent nominees, Justices Ginsburg and Breyer, confirmed this same principle. Those hearings were held under the chairmanship of our colleague Senator Biden, who presided at the time. And one of the comments that he made at the time of Justice Ginsburg's hearing is, and I quote, "You not only have a right to choose what you will answer and not answer but, in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court."
Now, not only would it violate this committee's standards and procedures for a nominee to answer questions about issues that may come before him as a judge, it would also be unethical for the nominee to answer such questions.
Some have argued that nominees cannot talk about cases, but that they can still talk about issues. Well, the code of judicial ethics draws no such distinctions.
The American Bar Association Model Code of Judicial Conduct dictates, and I quote, "that a judge or candidate for election or appointment to judicial office shall not with respect to cases, controversies or issues that are likely to come before the court make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."
The import of this ethical rule is unambiguous. If a nominee is asked to commit himself to a particular stance on an issue that is likely to come him as a judge, that nominee is obligated to decline to answer the question.
KYL: Any other approach would violate the code of judicial conduct.
And, Judge Roberts, I expect you to adhere to the code of judicial ethics, and I want you to know that I will defend your refusal to answer any question that you believe is improper under those circumstances.
I'd also like to emphasize that the standards for questioning that apply in this committee are not simply quaint relics of the past to be abandoned at no cost to the future. Rather, these rules are fundamental to preserving the nature and role of an independent judiciary.
A judicial nomination's process that required candidates to make a series of specific commitments in order to navigate the maze of Senate confirmation would undermine the very concept of a fair and independent judiciary.
Constitutional law would become a mere extension of politics, but in a less accountable and less democratic arena.
If the Supreme Court operated this way, if it simply enforced political commitments made during the confirmation process, why would we give it the power of judicial review, the power to strike down laws made by other more accountable and democratic branches of the government?
Granting this kind of power to the Supreme Court, the power to override democratic majorities, makes sense only if what the court is deciding is applying and upholding the rule of law and our Constitution.
When the court adheres to that neutral and unbiased role, rather than making policy, like the other branches, it is enforcing principles that the people themselves have deemed so important that they should be installed in the constitutional firmament and placed above the reach of transient majorities or the political compromises reached by elected representatives.
The court's legitimate authority derives not from commitments made during confirmation, but from its obligations embodied in the Constitution.
I raise this matter not to suggest that all questions about a nominee's understanding of the law are improper. Indeed, I think that an examination of the court's role and the source of legitimacy of its authority reinforces the importance of inquiring into a nominee's judicial philosophy; of determining whether he is devoted to upholding and enforcing the laws and the Constitution as they were adopted by the people.
Our proper role this week is to determine whether Judge Roberts has the character, the legal ability and the judicial philosophy to fulfill that responsibility.
SPECTER: Thank you very much, Senator Kyl.
Now, Senator Kohl.
KOHL: Thank you, Mr. Chairman.
Judge Roberts, let me also extend my welcome to you this afternoon and to your family.
Judge Roberts, if confirmed, you will succeed Justice Rehnquist and serve as only the 17th chief justice in the history of the United States, and the youngest in 200 years.
You are nominated to a position of awesome power and responsibility. The decisions you and the other justices make will shape the lives of every person in America for generations.
Yet for only a few days this week will the people, through their senators, be able to question and to judge you. That means that we on this committee who will be questioning you have an awesome power and responsibility as well.
Judge Roberts, our democracy, our rights and everything we hold dear about America are built on the foundation of our Constitution.
KOHL: That remarkable document has endured throughout our history.
In the hands of the Supreme Court, the Constitution has established a right to equal education regardless of race. It's guaranteed an attorney and a fair trial to all Americans, rich and poor alike. It has allowed women to keep private medical decisions private. It has allowed Americans to speak, vote and worship without interference from their government.
You will lead the court in its most solemn duty to interpret the Constitution and the rights it grants to all Americans.
The court has the last say in what will be the scope of our rights and the breadth of our freedoms. The court even has power over which constitutional questions it will hear and which cases the court will decide.
That is why the Supreme Court is so vital to our lives. And who decides these issues, Judge Roberts, is therefore of unsurpassed importance.
Moreover, you will enjoy even greater authority as chief justice of the United States than your fellow associate justices.
You will not only lead an entire branch of our government, if you are confirmed, but also you will have a less evident but an even more important power because it will be your sole responsibility to determine which justices write which opinions when you are in the majority.
Who writes the opinion governs the principle the case stands for and whether the precedent it sets is broad and important or narrow and less consequential.
If you are confirmed for this lifetime position, your decisions and those of your colleagues will be the final word on the rights and freedoms of all Americans for decades to come. You will have no constraints on the decisions you reach other than your understanding of the Constitution in your heart.
That is why it is so essential that we, the democratic representatives in a democratic country, take this week to probe that understanding and that heart.
This process of lifetime tenure is unique in our system of government.
The president, senators and governors make decisions every day. Our choices and our opinions are transparent to the public. And every few years we are accountable for the decisions we make and the votes we cast.
KOHL: If the people do not like our votes or disagree with our record, then they vote for someone else, and we are gone.
Just as we want and need to know much more about you, we presume that you want the country to know a lot more about what is in your mind and in your heart.
People in high places of public trust in this country have a responsibility to share their thoughts about important issues like civil rights, privacy, property rights, separation of church and state, civil liberties and much more.
We hope you understand the need to be totally forthcoming in your answers to questions on these issues. Evasions, avoidance and hiding behind legal jargon simply will not suffice.
So the panel will ask you about some of the most important issues that you will face, should you be confirmed. For example, the right to privacy: In early writings, you questioned this freedom, calling it a, quote, "so-called right to privacy." So we expect you to discuss with us your current thinking on this basic question.
This past term, the court decided a groundbreaking case concerning the government's power of eminent domain. The Supreme Court held that the government may take private land not only for public use, but also for private development.
Public opinion is opposed to this outcome, and so we look forward to hearing your views on this important issue.
The Supreme Court's decisions may be most important when they address the breadth of our civil rights. Some people think that your early writings were cavalier in dismissing many civil rights protections.
For example, you were active in efforts to narrowly define voting rights protections. And your narrow interpretation of congressional powers to address civil rights and other important issues while a judge on the D.C. Circuit does give us some pause.
The American people deserve to know how you will approach cases involving voting rights, gender discrimination, violence against women and affirmative action, among many others.
Finally, some speculate that, if confirmed, you will seek to weaken the separation between church and state. Your critics point to positions you took as a government attorney critical of Supreme Court decisions on prayer in schools. And so we need to hear your views about the establishment clause of the Constitution as well.
Judge Roberts, if confirmed, we can expect that you will serve 25 to 30 years as chief justice of the United States. You will likely become the most influential justice of your generation.
KOHL: During these decades, you will help shape the nature of our country and our democracy. It will be your job to give life and meaning to the broad and lofty promises of the Constitution -- such essential principles as due process, equal protection and free speech -- and to stand up for the civil rights and the liberties of under- represented people and the unpopular.
Before we decide whether to entrust you with this power, we ask you to stand before the public and explain your views, express our hopes, and expound on your approach to the bedrock principles that guide us as a nation.
We have an obligation to find out where you will take us before we decide whether we want you to lead us there. And, most importantly, you have an obligation to tell us.
This would be an appropriate time to share my perspective on how I will judge a nominee. In judging this and other Supreme Court nominations my test has been judicial excellence.
To me, judicial excellence involves four elements.
First, a nominee must possess the competence, character and temperament to serve on the Supreme Court. He or she must have a keen understanding of the law and the ability to explain it in ways that the American people will understand.
Second, judicial excellence means that a Supreme Court justice must have a sense of the values which form the core of our political and economic system. We have a right to require the nominee to understand and respect our constitutional values.
Third, judicial excellence requires a sense of compassion. The law is more than an intellectual game and more than a mental exercise. As Justice Black said, quote, "The courts stand against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement," unquote.
A Supreme Court justice must understand this. He or she must recognize that real people with real problems are affected by the decisions rendered by the comfort. They must have a connection with and an understanding of the problems that people struggle with on a daily basis. Justice, after all, may be blind, but it should not be deaf.
And, finally, judicial excellence involves candor before confirmation.
KOHL: We are being asked to give the nominee enormous power, so we want to know how he or she will exercise this power and how they see the world, and we need and deserve to know what is in your mind and in your heart.
Judge Roberts, I'm convinced that you satisfy the requirements of competence, character and temperament.
I enjoyed meeting you a few weeks ago and appreciated our discussion. Your legal talents are undeniably impressive.
Yet, while we are now familiar with your abilities, we still know precious little about your philosophies and views on crucial issues that you will face on the Supreme Court in the years ahead.
And so we look forward to these hearings as an opportunity to learn more and measure whether you meet our test of judicial excellence.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Kohl.
DEWINE: Mr. Chairman, thank you very much.
Judge Roberts, congratulate you on your nomination, applaud you on your extraordinary legal career and welcome you and your wife, Jane, and your children, Jack and Josie, to our hearing.
Over the next several days, we will be spending a lot of time together, you and the 18 members of this committee and the American people.
This is the time really for a national conversation, a conversation about the document that binds us all together as a nation and as a people. That document, of course, is our Constitution.
For more than 215 years, we have been having an extended conversation about the meaning of our Constitution. Sometimes the conversation has been civil, sometimes it's been passionate and sometimes, tragically, it's been violent.
The New Deal and the court battles that were fought about the scope of the federal government's power to combat the Great Depression was really a debate about the meaning of the Constitution.
The civil rights movement and the vigorous and often violent resistance to the efforts to bring about equality for all Americans was and remains a debate about the meaning of our Constitution.
DEWINE: The Civil War, the most violent and bloodiest time in our history, was really a war about the meaning of our Constitution.
We've seen a president resign, elections decided and popular laws overturned all because of our Constitution.
But our Constitution is more than just a symbol of our nation's history. It is also a light for the rest of the world.
As a nation, we were among the first to sit down and draft the document that, quite literally, constitutes our government.
But we were not the last.
Since our founders embraced the idea of a written constitution, others have followed suit. In fact, after the fall of the Soviet regime, we witnessed an explosion of constitution-writing in Eastern Europe.
There are now more than 170 written constitutions in the world, more than half of which have been drafted just in the last 30 years.
And to paraphrase Thomas Payne: The cause of America truly is, indeed, the cause of all mankind.
That's why our gathering today is so significant. We are charged with providing our advice and consent on the president's nominee to the Supreme Court. Our job is important.
But if confirmed, Judge Roberts, your job will be even more important. It would be your job as the 17th chief justice of the United States to correctly construe that Constitution, to preserve the balance of power sown into it and to protect those rights and values that are so much a part of our history and our tradition.
Former Chief Justice John Marshall once warned that, and I quote, "People made the Constitution and people can unmake it." It will be your job, in other words, to ensure that our Constitution is never unmade.
As of late, however, many Americans believe that the Supreme Court is unmaking the very Constitution that our founders drafted.
Many Americans are concerned when they see the court strike down laws protecting the aged, the disabled and women who are the victims of violence.
Many Americans worry when they see the court permit the taking of private property for economic development.
Many are troubled when they see the courts cite international law in its decisions.
And many fear our court is making policy when it repeatedly strikes down laws passed by elected members of Congress and elected members of the state legislatures.
DEWINE: I must tell you, Judge, I, too, am concerned. Judges are not members of Congress. They are not elected. They are not members of state legislatures. They are not governors. They are not presidents. Their job is not to pass laws, implement regulations, nor to make policy.
Perhaps no one said this better than Justice Byron White. During his confirmation hearing in 1962, White was asked to explain the role of the Supreme Court in our constitutional form of government.
Nowadays, in response to this type question, we probably would hear some grand theories about the meaning of the Constitution and its history. Justice White, however, said nothing of the kind. When he was asked about the role of the Supreme Court in our system of government, he gave a simple answer. Justice White said the role of the United States Supreme Court was simply to decide cases -- to decide cases. So simple.
It sounds too obvious to be true, but, you know, I think that's the right answer. Judges need to restrict themselves to the proper resolution of the case before them. They need to avoid the temptation to set broad policy, and they need to pay proper deference to the role of the executive, the Congress and the states, while closely guarding the language of the Constitution.
We would do well to keep this example in mind. The Constitution does not give us all the answers. It does, however, create the perfect process for solving our problems. The Congress and the president have a role in this process. The states have theirs. And when there are disputes, the courts are there to decide cases.
There is a reason that judges need to take on this limited role. As my esteemed colleague from Iowa, Senator Grassley, explained during Justice Souter's confirmation hearing, a judge should not be, and I quote, "pro this and anti that. He should, rather, be a judge of cases, not causes," end of quote.
Judge Roberts, causes come and go, but cases do not. In years or decades, one cause may fade and another will emerge. But judges will remain deciding cases and interpreting our Constitution.
DEWINE: Our next chief justice is not merely for today, he is a chief justice for the future, a future that will present constitutional issues that are now simply unknown.
The career of Chief Justice Rehnquist certainly proves this point. When he joined the court in 1972, there was no Internet, no need to protect our children from the proliferation of online pornography. And at the time, there was no war on terror, no presidential order to detain terrorists as enemy combatants and no terrorist prison at Guantanamo Bay.
But, yet, Chief Justice Rehnquist dealt with all of these issues while on the court.
When faced with new and unexpected issues, a justice is left only with the tools that every good judge must use: the facts of the case, the language of the Constitution, and the weight of precedent.
This is a simple and limited approach to deciding cases, the kind of approach that Justice White would have understood and I believe that our founders would have admired.
While preparing for this hearing, I came across a statement from a sitting federal judge that I think neatly sums up this philosophy.
Deciding cases, this judge said, and I quote, "requires an essential humility, grounded in the properly limited role of an undemocratic judiciary in a democratic republic, a humility reflected in doctrines of deference to legislative policy judgments and embodied in the often misunderstood term 'judicial restraint.'"
Judge Roberts, as you know, those words are yours. In my opinion, they are very wise words indeed. You, sir, have the talent, experience, and humility to be an outstanding member of the United States Supreme Court. And I expect that these hearings will show that you have the appropriate philosophy to lead our nation into the future as the 17th chief justice of the United States.
I thank the chair.
Thank you very much, Senator DeWine.
SPECTER: Senator Feinstein?
FEINSTEIN: Thank you very much, Mr. Chairman.
Good afternoon, Judge Roberts and Mrs. Roberts and the Roberts family.
This must be a moment of enormous pride for you. And I hope that despite the toughness of this hearing, you really realize that this family member of yours is taking over not just the position of an associate justice, but the chief justice of the United States at a time of unique division and polarization in this country.
And so many of us are going to be pressing him to see if he has got what we think it takes to do this.
Fred Thompson, welcome back. I hope you miss us just a little bit from time to time. Somehow I'm not quite sure that's the case.
Judge Roberts, thank you very much.
We spent a very interesting hour together. I came away from it feeling that you're certainly brilliant, talented and well qualified, and I don't think there's a question about that.
But as we take a look at you, 50 years old, to be chief justice of the United States, I think it's really essential for us to try to determine whether you can be the kind of leader that can generate consensus, find compromise and, above all, really embody the mainstream of American legal thinking.
For me, the most important thing is to see that the chief justice really cares about the fact that justice is provided to all Americans. It's been said here before, but it's really important -- young and old, rich and poor, powerful and unpowerful, all races, creeds, colors, et cetera.
This is going to be a big session.
The court's going to consider some very critical cases: the standard of review for abortion cases; the health of the mother; the constitutionality of an Oregon law which permits physician-assisted suicide for terminally ill but legally competent individuals; whether two oil industry leaders and competitors can be allowed to work together to fix the price of gas once they've entered into a joint venture; in addition, the rights of enemy combatants; the so-called partial birth abortion law; whether Congress has the authority to protect our nation's environment through legislation.
FEINSTEIN: The Endangered Species Act is winding its way through the appellate courts. It looks like they differ. And if the courts keep going the way they're going, many of us feel that they will take away from the Congress the grounds on which we base legislation in the environment.
This is an enormous macro question that you're going to be right in the middle of as a pivotal force.
Chief Justice Rehnquist, I believe, will be remembered not only for this distinguished tenure, which it certainly was, but also for applying a much more restrictive interpretation of the Constitution which has limited the role of Congress.
In recent years, the court has adopted a politically conservative states' rights view of several constitutional provisions.
As a result, congressional authority to enact important legislation has been significantly curtailed.
This has occurred through it's restrictive interpretation of the spending clause, the commerce clause, the 14th Amendment, the 11th Amendment -- all of which Congress uses to enact certain laws.
Based on these federalism grounds, the court has wiped out all or key parts of legislation addressing issues such as gun-free schools -- should schools not have guns within 1,00 feet; religious freedom; overtime protection; age discrimination; violence against women; and discrimination against people with disabilities.
In fact, over the past decade, the Rehnquist court has weakened or invalidated more than three dozen federal statutes. Almost a third of these decisions were based on the commerce clause and the Fourteenth Amendment.
FEINSTEIN: If you, Judge Roberts, subscribe the Rehnquist court's restrictive interpretation of Congress's ability to legislate, the impact could be enormous. It would severely restrict the ability of a Congress to tackle nationwide issues that the American people have actually elected us to address.
Now, as the only woman on this committee, I believe I have an additional role in evaluating nominees for the Supreme Court, and that is to see if the hard-earned autonomy of women is protected.
Like any population, women enjoy diverse opinions, beliefs, political affiliations, priorities and values. And we share a history of having to fight for many of the rights and opportunities that young American women now take so much for granted. I think they don't really recall that during the early years of the United States, women actually had very few rights and privileges. In most states, women were not allowed to enter into contracts, to act as executor of an estate. They had limited inheritance and child custody rights.
It actually wasn't until 1839 that a woman could own property separate from her husband, when Mississippi passed the Married Women's Property Act.
It wasn't until the 19th century that women began working outside their homes in large numbers. Most often, women were employed as teachers or nurses, and in textile mills and garment shops.
As women entered into the workforce, we had to fight our way into nontraditional fields: medicine, law, business, and yes, even politics.
The American Medical Association was founded in 1846. But it barred women for 69 years from membership, until 1915.
FEINSTEIN: The American Bar Association was founded in 1876, but it barred women and did not admit them until 1918. That's 42 years later. And it wasn't until 1920 when, after a very hard fight, women won the right to vote -- not even 100 years ago.
By virtue of our accomplishments and our history, women have a perspective, I think, that's been recognized as unique and valuable. With the retirement of Justice Sandra Day O'Connor, the court loses the important perspective she brought as a woman and the deciding vote in a number of critical cases.
For me -- and I said this to you privately, and I'll say more about it in my time on questions -- one of the most important issues that needs to be addressed by you is the constitutional right to privacy.
I'm concerned by a trend on the court to limit this right and thereby to curtail the autonomy that we have fought for and achieved; in this case, over just simply controlling our own reproductive system rather than having some politicians do it for us.
It would be very difficult -- and I said this to you privately and I said it publicly -- for me to vote to confirm someone whom I knew would overturn Roe v. Wade, because I remember -- and many of the young women here don't -- what it was like when abortion was illegal in America.
As a college student at Stanford, I watched the passing of the plate to collect money so a young woman could go to Tijuana for a back-alley abortion. I knew a young woman who killed herself because she was pregnant.
And in the 1960s then, as a member of the California Women's Board of Terms and Parole, when California had what was called the indeterminant sentence law, I actually sentenced women who committed abortions to prison terms.
FEINSTEIN: I saw the morbidity. I saw the injuries they caused. And I don't want to go back to those days.
How the court decides future cases could determine whether both the beginning of life and the end of life decisions remain private, or whether individuals could be subject to government intrusion or perhaps the risk of prison.
And I will be looking to understand your views on the constitutional provision for providing for the separation of church and state -- once again, history.
For centuries, individuals have been persecuted for their religious beliefs.
During the Roman Empire, the Middle Ages, the Reformation, and even today, millions of innocent people have been killed or tortured because of their religion.
A week ago, I was walking up the Danube River in Budapest when I saw on the shore 60 pair of shoes covered in copper -- women's shoes, men's shoes, small tiny children's shoes. They lined the bank of the river.
My time is already up? May I just finish this one paragraph?
FEINSTEIN: During World War II, it turned out that Hungarian fascists and Nazi soldiers forced thousands of Jews, including men, women and children, to remove their shoes before shooting them and letting their bodies float down the Danube.
These shoes represent a powerful symbol of how religion has been used in catastrophic ways historically.
The rest of my comments we'll have to wait for.
Thank you very much, Mr. Chairman.
SPECTER: Thank you very much, Senator Feinstein.
SESSIONS: Thank you, Mr. Chairman.
SESSIONS: And, Judge Roberts, recalling the words of former Senator Alan Simpson when Justice Scalia was here, "Welcome to the pit."
Congratulations on your nomination to be our nation's 17th chief justice.
You're one of our nation's premier lawyers. Some have called you the finest appellate lawyer of your generation. You have won the respect of your colleagues, adversaries and judges for your integrity, professionalism and legal skill. And I salute President Bush for choosing you for this important position.
But as you have already seen, our confirmation process is not a pretty site. Time and again, you will have your legal positions, your predecisional memoranda -- even as a young lawyer -- distorted or taken out of context.
These attacks are driven most often by outside groups. They will dig through the many complex cases that you have dealt with in an effort to criticize your record. They will produce on cue the most dire warnings that civil liberties in America will be lost forever if you're confirmed as a federal judge.
It's really a form attack sheet. All they have to do is place your name in the blank space.
These tactics, I think, are unfair and sometimes have been dishonest. My advice to you is this: Keep your famous good humor, take your time, and explain the procedural posture of the cases and exactly how you ruled as a judge or the position you took as a lawyer.
Americans know these matters are complex, and they will appreciate your answers.
The American commitment to the rule of law is one of our most exceptional characteristics as a people. It is the foundation of our liberties and our productive economic system. It is a product of centuries of development.
In his magnificent speech in March of 1775 in the House of Commons, urging King George not to go to war against the colonies, Edmund Burke described America's commitment to the rule of law by saying, "In no country perhaps in the world is the law so general a study," adding, "I hear they may have sold as many of Blackstone's commentaries on the law in America as in England."
SESSIONS: Frankly -- but activism by a growing number of judges threatens our judiciary. And frankly, that's what I'm hearing, as I talk to my constituents and hear from the American people.
Activism is when a judge allows his personal views on a policy issue to infect his judgment. Activist rulings not based on statutes or the Constitution, but reflect whatever a judge may think is decent or public policy.
This should not be. But even some members of our body have encouraged this thinking. Indeed, Judge Roberts, one senator in recent weeks, demanded to know whose side you're on before he voted. His statement provides a direct glance, I think, into the philosophy of activism.
When we have an activist judiciary, the personal views of a judge become everything. Who the judge is and whose side the judge is on, not the law and the facts, will determine the outcome of a case.
Since judges hold their offices for as long as they live or choose to serve and are unaccountable to the citizenry, activist rulings strike at the heart of democracy. Five members of the court may effectively become a continuing constitutional convention on important questions such as taking of private property, the definition of marriage, the pledge of allegiance or a moment of silence before a school day.
If a Congress acts wrongly, new members may be elected and the result changed by simple majority. A Supreme Court decision founded on the Constitution can be changed by the people only by constitutional amendment, which requires two-thirds vote of both houses and three-fourths of the state legislatures.
This result-driven philosophy of activism does not respect law. It is a post-modern philosophy that elevates outcomes over law.
Today, many believe the law does not have an inherent moral power and that words do not have and cannot have fixed meaning. Judges are thus encouraged to liberally interpret the words to reach the results a judge believes is correct.
SESSIONS: Activist Supreme Court judges have done this in recent years by saying they are interpreting the plain words of the Constitution in light of evolving standards of decency. This phrase has actually formed the legal basis for a number of recent decisions. But as a legal test, it utterly fails because the words can mean whatever a judge wants them to mean. It is not objective, cannot be consistently followed, and is thus by definition not law but a license.
Such vague standards provide the court a license to legislate, a power the Constitution did not provide judges. Indeed, recently, this license has led some judges to conclude they may look beyond American standards of decency to the standards of foreign nations in an attempt to justify their decisions.
The arrogant nature of this concept is further revealed by a Supreme Court ruling in 2003 when the Supreme Court explicitly declared that the Constitution prohibits the elected representatives of the people -- us -- from relying on established morality as a basis for the laws they pass.
The court thus declared itself free to, in effect, amend the Constitution by redefining its words to impose whatever it decides is evolving standards of decency. Yet, at the same time, it prohibits legislatures from enacting laws based on objective standards of morality.
While these unprincipled decisions are becoming too frequent, I do not want to suggest that such is the common practice in courts in America. Having practiced full time in federal court for 14 years, I witnessed this firsthand. Day after day, if the law in fact were on my side, I would win consistently. If they were not, I would lose. This was true regardless of whether a judge was a Democrat, a Republican, a liberal, or a conservative.
Certainly our founders were so adamant that judges be unbiased and committed to the law that they drafted a Constitution that gave them a lifetime appointment and provided that Congress could not even reduce their pay.
My fear today is that many have come to believe that to expect objectivity in judges is hopelessly naive.
SESSIONS: Liberals and conservatives openly make this point.
On one committee -- on one that Senator Kyl quoted Lloyd Cutler as testifying at -- we focused on the question of whether or not ideology should be a factor in a judge's ruling and that we should, in effect, admit that people have political views and if those political views will infect their rulings, and therefore we should openly talk about that.
A writer in the conservative National Review complained that Republicans are hurting the conservative cause by insisting on, quote, "abiding by those outdated norms," in effect suggesting conservatives should get their guys in there to promote their ideas.
While many advocates on the left and the right would like a court that promotes their agenda, I do not want that. And neither do the American people.
What we must have -- what our legal system demands -- is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day.
This is the American ideal of law. Ideals are important because they form the goals to which we all strive.
We must never abandon our ideal of unbiased judges, judges who rule fairly without regard to politics.
Two important bipartisan commissions, the Miller Center of Public Affairs at the University of Virginia and the Citizens for Independent Courts, have issued reports that deplore any policies that would tend to politicize the court.
These hearings, therefore, provide this nation an excellent opportunity to discuss these important concepts.
Our nation cries out for judges who love the law and who work every day to uphold its moral authority. The people rightly demand judges who follow, not make law.
And from everything I have seen and from what I have read, Judge Roberts, you are just the man to fill that need -- straight from central casting.
We unanimously confirmed you two years ago to the Court of Appeals. I am confident that, after this exhaustive process, you will be confirmed to the august position of chief justice of the United States Supreme Court.
I look forward to participating in the hearing with you and congratulate you on being nominated to the position.
SPECTER: Thank you very much, Senator Sessions.
SPECTER: Senator Feingold?
FEINGOLD: Mr. Chairman, thank you.
And, Judge Roberts, welcome. Welcome to you and your entire family.
First I want to say, Mr. Chairman, how much I appreciate the even-handed way that you and Senator Leahy have approached the preparations for the hearing.
Judge Roberts, I also want to thank you in advance for the long hours you will put in with us this week. I wish you well, and I truly do admire your record and your impressive career.
This is a confirmation proceeding, however, not a coronation. It is a Senate Judiciary Committee's job to ask tough questions. We are tasked by the Senate with getting a complete picture of your qualifications, your temperament and how you will carry out your duties.
Obviously, nominees to the Supreme Court must be subject to the highest level of scrutiny. So as the nominee to be the chief justice of the United States, you will be subject to the ultimate level of scrutiny.
Our colleagues in the Senate and the citizens of this country are entitled to a hearing that will actually help them decide whether you should be confirmed.
And I'm sure you understand that.
This is a lifetime appointment to preside over the Supreme Court and leave the entire federal judiciary.
You are obviously very talented and you also look healthy.
So I'm sure -- I'm sure -- you appreciate the importance of this hearing for the future of our country.
Some have called for a dignified process. So have I.
But at times it sounds like what some really want for the nominee is an easy process. That is not what the Constitution or the traditions of the Senate call for.
If by dignified they mean that tough and probing questions are out-of-bounds, I must strongly disagree.
FEINGOLD: It is not undignified to ask questions that press the nominee for his views on the important areas of the law that the Supreme Court confronts.
It is not undignified to review and explore the nominee's writings, his past statements, the briefs he has filed, the memos he has written.
It is not undignified to ask the nominee questions he would rather not answer, should he prefer to remain inscrutable or, worse yet, all things to all people.
This process is not a game. It is not a political contest. It is one of the most important things that the Senate does: confirm or reject nominees to the highest court in the land. And we as senators must take that responsibility very seriously.
The most recent nine justices of the Supreme Court served together almost as long as any other court in history, more than 11 years. Because the court has been so stable for so long and Chief Justice Rehnquist presided over it for 19 years, members of Congress and lawyers and the public have come to know the views of the justices pretty well. Many court-watchers have become pretty good at predicting the outcome of cases.
That predictability is about to be tested, because we will now have a new chief justice and because a member of the court who was the deciding vote in many cases has also announced her retirement.
I don't think, however, that the public is required to wait until a new chief justice is seated on the court to get some idea of how that new chief justice thinks, how that new chief justice will approach controversial issues that might come before the court and how that new chief justice also might run the court.
This hearing is our only opportunity to hear from this nominee how he would approach the important issues facing the court.
In fact, I was struck, as I was preparing for this hearing, by remarks years ago written by my friend and colleague, Senator Grassley from Iowa and a senior member of this committee, in the committee report on the nomination of Justice O'Connor. The current nomination for chief justice makes his remarks even more apt.
Senator Grassley said the following: "I do not agree that commenting on past Supreme Court decisions is a commitment to hold a certain way on future cases. And I feel that in order that we as senators fulfill our duty, it is incumbent on us to discover a nominee's judicial philosophy.
"In that we had a very limited number of judicial opinions rendered by Judge O'Connor on constitutional questions, it was my hope," Senator Grassley said, "by asking specific questions regarding past Supreme Court decisions that the committee might obtain a clear understanding of her philosophy.
"My purpose was to satisfy my questions regarding Judge O'Connor's record in that I felt it was less than complete than many other Supreme Court nominees who have had extensive experience either on the federal bench or in leadership positions in the profession of law."
FEINGOLD: In some ways, Mr. Chairman, the record of our current nominee to the court raises similar questions. He has a long record as a lawyer but he has been on the federal bench for only two years and we have little in the way of his own writings on the issues before the court to evaluate.
So, like Senator Grassley, I am interested in this nominee's views on a number of cases. I don't think that getting his reaction to those decisions will commit him to vote in a certain way in a future case. After all, it is not that past case he will be deciding, but a different one.
Even the current justices, whose views on specific cases are well-known, since they either wrote or joined one opinion or another, do not have to recuse themselves from a future case just because we know what they think of a crucial precedent in that case.
So I am looking for Judge Roberts to be forthcoming with this committee about his views. So to show the Senate's role in this process the respect it deserves, he should make every effort to be responsive.
Chief Justice Rehnquist himself acknowledged the importance of the Senate's role when he wrote the following in his last annual report on the federal judiciary: "Our Constitution has struck a balance between judicial independence and accountability, giving individual judges secure tenure, but making the federal judiciary subject ultimately to the popular will, because judges are appointed and confirmed by elected officials."
Now, that suggests to me that it is not only permissible, but critical that the Senate seek to learn as much as it can about the views of nominees and that nominees be as forthcoming as they possibly can be without compromising their independence.
FEINGOLD: Now, we do have a mountain of material for the nominees' early years as a lawyer in the justice Department and White House Counsel's Office of the Reagan administration.
In memo after memo, his writing were highly ideological and sometimes dismissive of the views of others.
I do, however, recognize that this is a different time and he has been nominated to play a different kind of role than he played in those early Reagan years.
So, frankly, I will be looking for a somewhat different John Roberts than the John Roberts of 1985.
As I have a chance to ask questions about topics such as executive power, civil liberties, voting rights, the death penalty and other important issues, I hope to see how his views have developed and changed over the years.
Of course, the best evidence of this would be some more recent writings of the nominee.
But the administration has steadfastly refused a reasonable request for documents pertaining to a small fraction of the cases in which he participated as deputy solicitor general during the administration of President George H.W. Bush.
I find this refusal very troubling in light of the ample precedent for releasing such documents in this kind of proceeding and the weakness of any claim that the release would damage the litigating position of the United States over 12 years later.
I also must say candidly, the refusal gives rise to a reasonable inference that the administration has something to hide here.
The administration has done this nominee no service by maintaining its intransigent position.
Mr. Chairman, it goes without saying that the Supreme Court is one of the most important institutions in our constitutional system and that the position of chief justice of the United States is one of the most important positions in our government.
The impact of this nominee in our country, should he be confirmed, will be enormous. That means our scrutiny of this nominee must be intense and thorough.
In my view, we must evaluate not only his qualifications, but also his ability to keep an open mind, his sensitivity to the concerns of all Americans and their right to equal protection under the laws; not only his intellectual capacity, but his judgment and wisdom; not only his achievements, but his fairness and his courage to stand up to the other branches of government when they infringe on the rights and liberties of our citizens.
But, Judge Roberts, I look forward to the opportunity to question you.
And I thank you, Mr. Chairman, again for the opportunity to speak today.
SPECTER: Thank you very much, Senator Feingold.
We will take a 15-minute break and Senator Graham will be recognized for his opening statement at 2:15.
SPECTER: It's 2:15 and we will resume our opening statements.
Senator Graham, you are recognized for your opening statement.
GRAHAM: Thank you, Mr. Chairman. Thanks for the seventh inning stretch, too. We all very much appreciate it.
Judge Roberts, playing a little bit off of what my colleague Senator Feingold said, I don't think you expect it to be easy. And having to listen to 18 senators proves the fact that it's not going to be easy.
But I hope that we will live up to our end of the bargain to make it fair. And fair is something that comes around in September in South Carolina or it can be an idea. The idea of treating you fairly is very important to me because not only are you on display, but the Senate's on display.
And Senator Kennedy said something that I disagree with, but he's very passionate in his statement. He said the central issue is whether or not you will embrace policies, a certain set of policies, or whether or not you will roll back certain policy decisions.
I respectfully disagree with Senator Kennedy. To me, the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well- qualified, strict constructionist to the Supreme Court and, in this case, to appoint a chief justice to the Supreme Court in the mold of Justice Rehnquist.
He's been elected president twice.
GRAHAM: He has not hidden from the public what his view of a Supreme Court justice should be and the philosophy that they should embrace.
In my opinion, by picking you, he has lived up to his end of the bargain with the American people by choosing a well-qualified, strict constructionist.
You have been described as brilliant, talented and well- qualified, and that's by Democrats.
The question is, is that enough in 2005 to get confirmed? Maybe not.
Professor Michael Gerhardt has written an article in 2000 called "The Federal Appointments Process," and I think he has given some advice to our Democratic friends in the past and, maybe recently, about the confirmation process that we're engaged in today.
And he has written, "The Constitution establishes a presumption of confirmation that works to the advantage of the president and his nominee."
I agree with that. Elections matter.
We're not here to debate how to solve all the nation's problems. We're not here to talk about liberal philosophy versus conservative philosophy and what's best for the country. We're here to talk about you and whether or not you are qualified to sit on the Supreme Court, whether or not you have the intellect, the integrity and the character.
GRAHAM: And it has been said in the past by members of this committee -- Senator Kennedy -- I believe it's recognized by most senators that we're not charged with a responsibility of approving justices if their views always coincide with our own. We're really interested in knowing whether a nominee has the background, experience, qualifications, temperament, integrity to handle the most sensitive, important and responsible job. And that's being on the Supreme Court.
If you're looking for consistency, you've probably come to the wrong place, because the truth of the matter is that we're all involved in the electoral process ourselves and we have different agendas.
Your memos are going to be talked about. The memos you wrote while you were working for President Reagan and Bush 1, in my opinion, reflect a conservative lawyer advising a conservative president about conservative policies.
And to some, those policies make no sense; those policies are out of the mainstream.
GRAHAM: But this hearing is about whether or not you're qualified and whether or not Reagan conservatism in the mainstream.
Does affirmative action require quotas? From a conservative point of view, no. From a conservative point of view, we don't want federal judges setting the value of someone's wages from the bench. And you wrote about that. Now, some people want that, but conservatives don't.
Environmental policies: We want a clean environment, but we don't want to ruin the economy in the process. We want to be able to build levees to protect cities.
Conservatives have a different view of a lot of issues versus our friends on the other side. The election determines how that shakes out. We're here to determine whether or not you and all you've done in your life makes you a fitting candidate to be on the Supreme Court.
Before we got here, the Senate was in disarray. May 23rd of this year, I engaged in a compromise agreement with seven Democrats and seven Republicans to keep the Senate from blowing itself up. You're the first nomination that we've dealt with in any significant manner after that agreement.
There's plenty of blame to go around, Judge Roberts. On our watch, I'm sure we did things in committee that were very unfair to Democrat nominees, particularly by President Clinton. And at the time of that agreement, there were 10 people being filibustered, for the first time in the history of the Senate, in a partisan manner, that were going to be on the court of appeals.
We were in chaos. We were at each other's throats. And since May 23rd, we've done better.
The Senate has gotten back to a more traditional role when it comes to judges. And as Senator Specter described the committee, we've done some good things here on this committee and in the Senate as a whole.
GRAHAM: I hope we will take the chance to start over because the public approval of the Senate now is in the 30s. And that's not your fault, Judge Roberts; it's our fault.
We have an opportunity as senators to show that we can disagree based on philosophy but give you a fair shake. The question is whether we'll rise to the occasion. I'm hopeful we will based on the statements being made.
What is the standard for a senator to confirm a Supreme Court nominee? Whatever the senator wants it to be. And, really, that's the way it should be.
But there should be some goals, in my opinion. The way we conduct ourselves, one of the goals we should have, is to make sure we don't run good people away from wanting to be a judge.
I don't know what it's like to sit at home and turn on the television and watch a commercial about you in the presence of your wife and your kids that say some pretty unflattering things about you. That's just not a problem you've faced; I'm sure Democratic nominees have faced the same type problem.
We shouldn't, in our standard, trying to come up with a standard, invalidate elections. The president won. The president told us what he's going to do and he did it. He picked a strict constructionist to be on the Supreme Court. If anybody is surprised, they weren't listening to the last campaign.
Roe v. Wade: It divides America. If you believe in polling, most Americans would like to see the decision stand, even though we're divided 50/50 on the idea of abortion on demand.
My good friend from California has expressed a view about Roe v. Wade which I completely understand and respect. I can just tell you, Judge Roberts, there are plenty of women in South Carolina who have an opposite view about abortion.
If we were to make our votes, base our votes on that one principle, Justice Ginsburg would not be Justice Ginsburg. In her writing, she embraced the idea of federal funding for abortion. She indicated that an abortion right was based on the equal protection clause of the Constitution.
I dare say that 90 percent of the Republican Caucus is pro-life. I dare say that 90 percent of the Democratic Caucus is pro-choice. Justice Ginsburg got 96 votes even though she expressed a view of the federal government's role in abortion that I completely disagree with and I think most conservatives disagree with.
GRAHAM: There was a time not too long ago, Judge Roberts, where it was about the way you lived your life, how you conducted yourself, what kind of lawyer you were, what kind of man or woman you were, not whether you had an allegiance to a specific case or a particular cause.
Let's get back to those days.
Let's get back to the days where the Ginsburgs and the Scalias can be pushed and pressed, but they can be honored for their commitment to the law and the way they live their life.
Let's get back to the good old days where we understood that what we were looking for was well-qualified people to sit on the highest court of the land, not political clones of our own philosophy.
The reason I signed the agreement more than anything else was that I love the law.
The role of the law in our society is so important.
You take out the rule of law and you don't have a democracy.
The law, Judge Roberts, to me, represents a quiet place in American discourse.
Politics is a loud, noisy and destructive place. But the courtroom is a quiet place where the weak can challenge the strong and the unpopular can be heard.
I know you will honor the rule of law in our country and that you will be a judge that we all can be proud of.
God bless you and your family.
SPECTER: Thank you very much, Senator Graham.
Senator Schumer ?
SCHUMER: Thank you, Mr. Chairman.
And, Judge Roberts, welcome to you and Mrs. Roberts, your parents, your family, your two beautiful children.
I join my colleagues in congratulating you on your nomination to the position of chief justice of the United States.
Now, this is indisputably the rarest opportunity in American government.
In the entire history of the republic, we have had but 16 chief justices.
But the responsibility is as great as the opportunity is rare.
SCHUMER: The decisions of the Supreme Court have a fundamental impact on people's lives, and the influence of a chief justice far outlasts that of a president.
As the youngest nominee to the high court's top seat in 204 years, you have the potential to wield more influence over the lives of the citizens of this country than any jurist in history.
I cannot think of a more awesome responsibility; awesome not in the way my teenage daughter would use the word, but in the biblical sense of the angels trembling in the presence of God.
But before you can assume that responsibility, we senators, on behalf of the people, have to exercise our own responsibility. Fundamental to that responsibility is our obligation to ascertain your legal philosophy and judicial ideology.
To me, the pivotal question which will determine my vote is this: Are you within the mainstream -- albeit the conservative mainstream -- or are you an ideologue who will seek to use the court to impose your views upon us as certain judges, past and present on the left and on the right, have attempted to do?
The American people need to learn a lot more about you before they and we can answer that question.
You are, without question, an impressive, accomplished and brilliant lawyer. You're a decent and honorable man. You have a remarkable resume. There are those who say your outstanding and accomplished resume should be enough, that you should simply promise to be fair and that we should confirm.
I disagree. To me, the most important function of these hearings -- because it's the most important qualification for a nominee to the Supreme Court -- is to understand your legal philosophy and judicial ideology.
This is especially true now that judges are largely nominated through an ideological prism by a president who has admitted he wants to appoint justices in the mold of Scalia and Thomas.
To those who say ideology doesn't matter, they should take their quarrels to President Bush. I began to argue that a nominee's judicial ideology was crucial four years ago. Then, I was almost alone.
< SCHUMER >: Today, there is a growing and gathering consensus on the left and on the right that these questions are legitimate, important and awful crucial.
Therefore, I and others on both sides of the aisle will ask you about your views.
Here is what the American people need to know beyond your resume:
They need to know who you are and how you think;
They need to assess not only the sharpness of your mind but the fullness of your heart;
They need to believe that an overachiever can identify with an underdog who has nothing but the Constitution on his side;
They need to understand that your first class education and your advantaged life will not blind you to the plight of those who need help and who rely on the protections of the Constitution, which is every one of us at one point or another;
They need to be confident that your claim of judicial modesty is more than easy rhetoric, that your praise of legal stability is more than lip service;
They need to know above all that, if you take the stewardship of the high court, you will not steer it so far out of the mainstream that it founders in the shallow waters of extremist ideology.
As far as your own views go, however, we only have scratched the surface. In a sense, we have seen maybe 10 percent of you -- just the visible tip of the iceberg, not the 90 percent that is still submerged. And we all know that it is the ice beneath the surface that can sink the ship.
For this reason, it is our obligation to ask and your obligation to answer questions about your judicial philosophy and legal ideology.
If you can't answer these questions, how are we to determine whether you're in the mainstream? A simple resume, no matter how distinguished, cannot answer that question.
So for me, the first criterion upon which I will base my vote is whether you will answer questions fully and forthrightly. We do not want to trick you, badger you, or play a game of gotcha. That is why I met with you privately three times, and that's why I gave you a list of questions in advance of these hearings.
It's not enough to say you will be fair.
SCHUMER: If that were enough, we'd have no need for a hearing.
I have no doubt you believe you'll be a fair judge.
I have no doubt that Justice Scalia thinks he is a fair judge and that Justice Ginsburg thinks she is a fair judge.
But in case after case, they rule differently. They approach the Constitution differently. And they affect the lives of 280 million Americans differently.
That is so, even though both Scalia and Ginsburg believe that they are fair.
You should be prepared to explain your views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers' rights, women's rights and a host of other issues relevant to the most powerful lifetime post in the nation.
Now, having established that ideology and judicial philosophy are important, what's the best way to go about questioning on these subjects?
The best way I believe is through understanding your views about particular past cases, not future cases that haven't been decided, but past, already-decided cases. It's not the only way, but it's the best and most straightforward way.
Some have argued that questioning a nominee about his or her personal views of the Constitution or about decided cases indicates prejudgment about a future case.
It does nothing of the sort.
Most nominees who have come before us, including Justice Ginsburg, whose precedents you often cite, have answered such questions.
Contrary to popular mythology, when she was a nominee, Justice Ginsburg gave lengthy answers to scores of questions about constitutional law and decided cases, including individual autonomy, the First Amendment, criminal law, choice, discrimination and gender equality.
Although there were places she said she did not want to answer, she spoke about dozens of Supreme Court cases and often gave her unvarnished impressions, suggesting that some were problematic in their reasoning while others were eloquent in their vindication of important constitutional principles.
SCHUMER: And nominee after nominee, from Powell to Thomas to Breyer, answered numerous questions about decided cases, and no one every questioned their fitness to hear cases on issues raised during confirmation hearings.
So I hope you'll decide to answer questions about decided cases, which so many other nominees have done.
If you refuse to talk about already decided cases, the burden, sir, is on you, one of the most preeminent litigators in America, to figure out a way, in plain English, to help us determine whether you'll be a conservative but mainstream conservative chief justice or an ideologue.
Let me be clear: I know you're a conservative. I don't expect your views to mirror mine. After all, President Bush won the election and everyone understands that he will nominate conservatives to the court.
But while we certainly do not expect the court to move to the left under the president, it should not move radically to the right.
You told me when we met that you were not an ideologue and you share my aversion to ideologues. Yet, you've been embraced by some of the most extreme ideologues in America, like the leader of Operation Rescue.
That gives rise to a question many are asking: What do they know that we don't?
Judge Roberts, if you want my vote, you need to meet two criteria.
First, you need to answer questions fully so we can ascertain your judicial philosophy.
And, second, once we have ascertained your philosophy, it must be clear that it is in the broad mainstream.
Judge Roberts, if you answer important questions forthrightly and convince me you're a jurist in the broad mainstream, I'll be able to vote for you. And I would like to be able to vote for you.
But if you do not, I will not be able to vote for you.
Mr. Chairman, I have high hopes for these hearings. I want, and the American people want, a dignified, respectful hearing process, open, fair, thorough, above board; one that not only brings dignity but, even more importantly, information about Judge Roberts' views and ideology to the American people.
SCHUMER : I, along with all of America, look forward to hearing your testimony.
SPECTER: Thank you, Senator Schumer.
CORNYN: Thank you, Mr. Chairman.
Judge Roberts, let me also join in extending a warm welcome to you and your family of these hearings. As the 15th speaker in the order of seniority here, I recall the adage I learned when I first came to Washington that everything's been said, but not everyone has said it yet.
And perhaps by the time this hearing is over this week, you will have a fuller appreciation than you do now for that.
But, of course, you are a known quantity, so to speak, to this committee and to this Senate, having been confirmed by unanimous consent just two short years ago. And I want to extend a compliment to you on your judicial service. You have served with distinction in your current capacity.
While the importance of your nomination as chief justice of the United States cannot be overstated, it seems as it each new nomination to the court brings an element of drama somewhat akin to an election.
Indeed, we've seen special interest groups raising money, running television advertisements and even trying to coerce you into stating your opinion on hot-button issues that are likely to come before you as a judge, as if this were an election.
But, of course, this is not an election. And no reasonable person expects you to make promises to politicians about how you're likely to rule on the issues when they come before the court as a condition of confirmation.
Still, some in our country have lost sight of the proper of an unelected judge where the people are sovereign and where government enjoys no legitimacy except by consent of the governed.
They see unelected judges primarily as policymakers and arbiters of every pressing social issue that might arise, with the authority to dictate to the people what they think is good for us.
Well, this ideal of the Supreme Court as a super-legislature to which we might turn to give us everything that is good and stop everything that is bad is not a view that I share, nor for that matter did those who wrote and ratified the Constitution.
CORNYN: The Constitution does not guarantee everything that is good and prohibit everything that is bad or it could have been written in two sentences. Rather, it guarantees some specific things, it prohibits some specific things and leaves the rest to be sorted out through the democratic process.
Alexander Hamilton, as you know, wrote in the Federalist Papers, which argued for ratification of the Constitution, that the judicial branch, he predicted, would be known as the least dangerous branch.
He believed that there is no liberty if the power of judging is not separated from the legislative and executive powers. Its sole purpose was to interpret and apply the laws of the land. It's role would be limited.
Regrettably, justices have not always been faithful to this constitutional design. All we need to do is to look at the Supreme Court's track record to see why abdicating our right of self- government to nine judges isolated behind a monumental marble edifice far removed from the life experiences of the average American is a bad idea.
For example, the Constitution says in part that the federal government shall not prohibit the free exercise of religion or abridge freedom of speech. Many Americans, including me, are concerned that the Supreme Court, by erecting extra-constitutional and contradictory judge-made standards in this area of the law, has effectively banned voluntary religious expression from much of our public life turning what should be official neutrality into a policy of official hostility.
To be sure, the court has been zealous in protecting the rights of those who express themselves or promote their products using violence or sex.
But voluntary expression of one's faith? Never.
Likewise, many Americans including me are baffled that the Supreme Court recently saw fit to strike down the display of the Ten Commandments in Kentucky but upheld the constitutionality of a display in Texas, even while the Ten Commandments itself is prominently displayed in the chambers of the United States Supreme Court on its ceiling.
CORNYN: Many Americans, including me, wondered what to read into the court's recent dismissal of a suit seeking to deny schoolchildren the right to recite the Pledge of Allegiance because it contains the words, "One nation, under God."
A majority of the court refused to agree that the pledge was constitutional, leaving this time-honored tradition of schoolchildren across our nation in legal limbo.
And recently the court expanded the awesome power of government to condemn private property beyond all previous bounds by reading the public use limitation on eminent domain right out of the Constitution.
Justice O'Connor warned, "The specter of condemnation now hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."
On what legitimate basis can the Supreme Court uphold state laws on the death penalty in 1989, then strike them down in 2005, relying not on the written Constitution -- which, of course, had not changed -- but on foreign laws that no American has voted on, consented to or may even be aware of?
When in 2003 the court decided Lawrence v. Texas, the court overruled a 1986 decision on the constitutionality of state laws based on the collective moral judgment of those states about permissible sexual activity.
What changed in that intervening time?
CORNYN: Did the Constitution change? Well, no.
Did the justices change? Yes.
But should that determine a different meaning of the Constitution? Are some judges merely imposing their personal preferences under the guise of constitutional interpretation?
Indeed, this was the same case, as you know, Judge Roberts, that served as the cornerstone of the Massachusetts Supreme Court's decision, holding that state laws limiting marriage to a man and a woman amounted to illegal discrimination.
Let me close on an issue that several senators have already mentioned today, and that is your obligation to answer our questions.
Of course, I share with all of my colleagues a desire -- and a curiosity, really -- to know what you think about all sorts of issues. All of us are curious.
But just because we're curious doesn't mean that our curiosity should be satisfied. You have no obligation to tell us how you will rule on any issue that might come before you if you're confirmed to the Supreme Court.
It boils down to a question of impartiality and fairness. One characteristic of a good judge is that they keep an open mind until they hear the facts and hear the lawyers argue the case before them. If you pledge today to rule a certain way on an issue, how can parties to future cases possibly feel that they would ever have a fair day in court?
Justice Ginsburg, as we've heard already, one of the last Supreme Court justices confirmed by the Senate, noted not too long ago, "In accord with long-standing norm, every member of the current Supreme Court declined to furnish such information. The line each justice drew in response to pre-confirmation questioning is crucial to the health of the federal judiciary."
This has come to be known as the Ginsburg standard, although it has been the norm for all nominees who come before the committee and before the Senate for confirmation.
Now, I know some of the members of the committee will ask you questions that you can't answer. They'll try to entice you to abandon the rules of ethics and the long tradition described by Justice Ginsburg.
But that should not concern you, Judge Roberts. Don't take the bait. Do not head down that road, but do exactly what every nominee of every Republican president and every Democrat president has done: Decline to answer any question that you feel would compromise your ability to do your job.
CORNYN: The vast majority of the Senate, I am convinced, will not punish you for doing so. Rather, I'm convinced that the vast majority of the Senate will respect you for this decision because it will show you are a person of deep integrity and independence, unwilling to trade your ethics for a confirmation vote.
Again, let me say welcome to you, again, before the committee, and thank you for your continued willingness to serve this great nation.
SPECTER: Thank you, Senator Cornyn.
DURBIN: Thank you, Mr. Chairman.
Judge Roberts, welcome to you, your family. Congratulations on your nomination.
The committee hearing began with the chairman telling us that you had shared the wisdom of 47 individual senators by visiting their office, some of them on several different occasions.
And many people believe that that fact alone should earn you confirmation before the United States Senate.
Twelve years ago, at the nomination hearing of Justice Ruth Bader Ginsburg, my friend Illinois Senator Paul Simon said something worth repeating. He said to the nominee, and I quote, "You face a much harsher judge than this committee. That's the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you expand it?"
I think Senator Simon put his finger on how the United States Senate should evaluate a nominee for a lifetime appointment to the federal bench.
Judge Roberts, if you're confirmed, you will be the first Supreme Court justice in the 21st century. The basic question is this: Will you restrict the personal freedoms we enjoy as Americans or will you expand them?
When we met in my office many weeks ago, I gave you a biography of a judge I admire greatly. His name was Frank Johnson, a federal district judge from Alabama and a life-long Republican.
Fifty years ago, following the arrest of Rosa Parks, Judge Johnson ruled that African-Americans of Montgomery, Alabama, were acting within their constitutional rights when they organized a boycott of the buses and that Martin Luther King Jr. and others could march from Selma to Montgomery.
DURBIN: As a result of those decisions, the Ku Klux Klan branded Johnson the most hated man in America. Wooden crosses were burned on his lawn. He received so many death threats that his family was under constant federal protection from 1961 to 1975.
Judge Frank Johnson was denounced as a judicial activist and threatened with impeachment.
He had the courage to expand freedom in America.
Judge Roberts, I hope that you agree America must never return to those days of discrimination and limitations on our freedom.
Now, some of the memos you wrote that I talked to you about in my office many, many years ago in the Reagan administration have raised some serious concerns about where you stand on civil rights, on women's rights, concerns that have led some of the most respected civil rights groups in America to openly oppose your nomination.
So it's important for you at this hearing to answer the questions and to tell us your views on civil rights and equality and the role of courts in protecting these basic freedoms.
This hearing is your opportunity to clarify the record, to explain your views.
We can't assume that time or maturity has changed your thinking from those Reagan-era memos.
The refusal of the White House to disclose documents on 16 specific cases you wrote as deputy solicitor general denied this committee more contemporary expressions of your values.
Only your testimony before this committee can convince us that John Roberts of 2005 will be a truly impartial and open-minded chief justice.
Concerns have also been raised about some of the things you wrote relative to the right of privacy.
We've gone through Griswold. We know what that Supreme Court decision meant in 1965, 40 years ago, when the court struck down the Connecticut statute which made it a crime for married couples to buy and use birth control. They said there was a fundamental right of privacy in that Constitution, though you can search every word of it, and not find the word privacy. But it's far from settled law in the minds of many.
DURBIN: Forty years later, there have been new efforts to restrict the right of privacy, attempts to impose gag rules on doctors when they speak to their patients about family planning.
You saw it in the sad debate over the tragedy of Terri Schiavo, a debate that led some members of Congress to threaten judges who disagree with their point of view with impeachment.
And you can find it in the eagerness to authorize the government to pry into our financial records, medical records and library records.
Whether the court continues to recognize and protect America's right to privacy will have a profound impact on every American from birth to death.
In your early writings that we have to rely on here, you referred to this right of privacy as an abstraction. We need to know if that's what you believe.
We also need to hear your views on another basic issue and that is the view on executive power. They don't teach this subject much in law school. It's not tested on any bar exam. It's not been a major focus in many Supreme Court hearings, yet it is very important today.
Some aspects of your record, your early record, when you were an attorney for a president, suggest you might be overly deferential to the executive branch. We need to know where you stand.
Throughout history, during times of war, presidents have tried to restrict liberty in the name of security. The Supreme Court has always been the guardian of our Constitution. It's usually been up to the task but sometimes it's failed such as in the notorious Korematsu decision.
We're being tested again. Will we stand by our Constitution in this age of terrorism? That challenge will fall especially on our Supreme Court and on you, Judge Roberts, if you're confirmed.
We also need to know what you think about religious liberty. Over the past few decades, the Supreme Court has maintained a delicate yet what I believe proper balance between church and state. Justice Sandra Day O'Connor said it so well in the recent Ten Commandments decision.
And I quote, "At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Our regard for constitutional boundaries has protected us from similar travails while allowing private religious exercise to flourish."
Those who would renegotiate the boundaries between church and state must answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?
DURBIN: I asked you a question when you came by to see me, which I'm not sure either one of us could answer at that moment.
I asked you: Who has the burden of proof at this hearing? Do you have the burden to prove that you are a person worthy thing of a lifetime appointment before the Supreme Court or do we have the burden to prove that President Bush was wrong in selecting you?
Your position as Supreme Court justice, chief justice, gives you extraordinary power: to appoint 11 judges on the FISA court, which has the authority to issue warrants for searches and wiretaps of American citizens, all the way to the establishment of rules of criminal and civil procedure.
No one has the right to sit on that court. No one has the right to be chief justice. But they can earn it through a hearing such as the one which we have today.
I'd like to say that I spoke earlier about the courage of Frank Johnson. A few months ago another judge of rare courage testified before this committee. Her name is Joan Lefkow. She's a federal judge in Chicago and I was honored to nominate her.
Last February, her husband and mother were murdered in her home by a deranged man who was angry that she had dismissed his lawsuit.
In her remarks to the committee, Judge Lefkow said that the murders of her family members were, quote, "a direct result of a decision made in the course of fulfilling our duty to do justice without fear or favor."
In my view, that is the only proper test for a Supreme Court justice: Will he do justice without fear or favor? Will he expand freedom for all Americans as Judge Frank Johnson, the condemned judicial activist, once did.
I congratulate you, Judge Roberts, on your nomination, your accomplished career, and I look forward to these hearings to give you your chance in the next several days, not to rely on 20-year-old memos or innuendoes and statements by those who are not part of the hearing, but in your own words a chance to tell us and to tell the American people what you truly believe.
If you believe that you have the burden at this hearing to establish why you are worthy of this, the highest ranking position of a judge in America, I hope that you will be forthcoming.
DURBIN: If you do not answer the questions, if you hold back, if you believe, as some on the other side have suggested, that you have no responsibility to answer these questions, I'm afraid the results will not be as positive. I certainly hope that they will be positive.
SPECTER: Thank you, Senator Durbin.
I recognize now Senator Brownback and also recognize today is his birthday.
BROWNBACK: Thank you very much. And this is certainly a long way to spend it. It's seeming like a long birthday.
Judge Roberts, as one of my colleagues was just saying, I hope we're done before my birthday ends. I welcome you to the court. Delighted to have you here, you and your family. I want to congratulate you on your lifetime of service thus far and looking forward to future service that you'll have for this great land.
I recall the meeting that you and I had in my office, as many of the members have here have as well, and enjoyed them. You said two things in there that I particularly took away and hung on as an indicator of yourself and how you would look at the courts and also what America needed from our courts.
One of the statements was that we need a more modest court. And I looked at that and I thought that's exactly, I think, the way the American people would look at the situation today.
We need a more modest court, a court that's a court but not a super-legislature, as you've heard others refer to, or is in a different role, but is a court.
And that's what it needs to be and that's what we need to have: one that looks at the constitution as it is, not as we wish it might be, but as it is, so that we can be a nation that is a rule-of-law nation.
You had a second point that was very apt, I thought, when you talked about the courts and baseball. You drew the analogy of those two together, which was apt, I thought. And you said it's a bad thing when the umpire is the most watched person on the field.
And I guess that appealed to me as well from the standpoint of where we are today's American governance, where the legislature can pass the bill, the executive can sign it, but everybody waits and holds their breath until how the court is going to look at this and how it's going to interpret it, because it seems as if the court is the real mover of what the actual law is.
BROWNBACK: And that's a bad thing. The umpire should call the ball fair or foul -- it's in or it's out -- but not get actively involved as a player on the field.
And, unfortunately, we've gotten to a point today where in many respects the judiciary is the most active policy player on the field.
I was struck by your nomination and what you said when you were nominated that you, quote, "had a profound appreciation for the role of the court in our constitutional democracy."
And that's something I think we all respect and we look for in what we need to do.
Democracy I believe loses its luster when justices on the high court who are unelected and not directly accountable invent constitutional rights and alter the balance of governmental powers in ways that find no support in the text, the structure or the history of the Constitution.
Unfortunately, the court in recent years I believe has gone into that terrain.
In our system of government, the Constitution contemplates that federal courts will exercise limited jurisdiction. They should neither write nor execute the laws, but simply say what the law is, in quoting Marbury v. Madison.
The narrow scope of judicial power was the reason the people accepted the idea that the federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.
The people believe that the courts would maintain their independence and at the same time would recognize their role by deferring to the political branches on policy choices.
Legitimacy based on judicial restraint was a concept perhaps best expressed by Justice Felix Frankfurter, appointed by Franklin Delano Roosevelt.
BROWNBACK: And he said this: "Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed and therefore most dependable within narrow limits. Their essential quality is detachment, founded on independence. And history teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primarily responsibility in choosing between competing political, economic and social pressures."
Primary responsibility for adjusting the interests which compete of necessity belongs to the Congress. Yet courts today have strayed far beyond this limited role. Constitutionalists from Hamilton to Frankfurter surely would be shocked at the broad sweep of judicial activity today.
Just listen to some of them.
Federal courts are redefining the meaning of marriage, deciding when a human life is worthy of protection, running prisons and schools by decree, removing expressions of faith in the public square, permitting the government under the takings clause to confiscate property from one person and give it to another in the name of private economic development and then interpreting our American Constitution on the basis of foreign and international law.
Perhaps the Supreme Court's most notorious exercise of raw political power came in Roe v. Wade and Doe v. Bolton, two 1973 cases based on false statements which invented a Constitutional right to abortion. The issue had been handled by the people through their elected representatives prior to that time.
Since that time, nearly 40 million children have been aborted in America, 40 million lives that could be amongst us but are not, beautiful, innocent faces that could bless our existence and our families and our nation, creating and expanding a culture of life.
If you're confirmed, your court will decide if there is a constitutional right to partially deliver a late-term child and then destroy it.
BROWNBACK: Partial-birth abortion is making its way to the Supreme Court. The federal courts have thus far found laws limiting partial-birth abortion unconstitutional.
Now, it should be noted again, if Roe is overturned, it does not ban abortion in America. It merely returns the issue to the states so states like Kansas or California can set the standards they see right and just.
The principle of stare decisis will be involved. The Supreme Court frequently has overruled prior precedents, I would note. A case founded in my state, Brown v. the Board of Education, which overruled Plessy v. Ferguson, fits within a broad pattern -- evidenced since the founding of the Supreme Court, revising previous decisions.
I would note for you that, by some measure, the Supreme Court has overruled itself in 174 cases, with a substantial majority of those cases involving constitutional, not statutory, issues.
One final thought. In a just and healthy society, both righteousness and justice travel together. Righteousness, the knowledge of right and wrong, good and evil, that's something that's that's written within our hearts. Justice is the application of that knowledge.
Everybody in our representative form of government tries to do both of these -- righteousness and justice -- within the boundaries set for each of us. No one branch has unlimited control. The Supreme Court has boundaries, too. There are checks and balances on what it can deal with and what it can do.
For instance, the court cannot appropriate money. That power's specifically left to the Congress in the Constitution, no matter how right or just the court may view the cause.
We all are constitutional officers, sworn to uphold the Constitution. Yet each branch has separate functions which the other branch can check and balance.
The total system functions best when each branch does its job but not the others.
We arrived at an important moment with your nomination to serve as chief justice of the United States. Quite a title.
Will you serve, as Hamilton assured the people, by exercising judgment rather than will?
By review of your many legal writings over the past quarter century, it leads me to believe that this is the case. I hope that this instinct will be proven correct during the days to come; that, you, Judge Roberts, will be confirmed to serve as the first justice among equals; and that the noble legacy of the justice that you once served will be honored.
BROWNBACK: God bless you and your family.
SPECTER: Thank you, Senator Brownback.
COBURN: Thank you, Senator.
First of all, I'd like to thank you and your staff, as well as all the staff of this committee. While we were traveling in August, they were laboring diligently to help prepare us for these hearings.
I also think everybody should know that Senator Brownback's entering his fifth decade, so he can catch up with the rest of us.
And, finally, I'm somewhat amused at the propensity for us to project your life expectancy. I met with you twice. And as the only physician on this panel, and one of the few nonlawyers on this panel, I find it somewhat amusing that we can predict that without a history of physical exam or a family history. But we'll let that pass.
I am a physician. And up until the end of this month, and hopefully after that, I'll continue to practice. This weekend I had the great fortunate of delivering two little girls.
And I've had the opportunity to talk with people from all walks of life as a physician, those that have nothing and those that have everything. And I believe the people in our country and in my state in particular are interested and concerned with two main issues.
And one is this word of judicial activism that means such a different thing to so many different people. And the second is the polarization that has resulted from it and the division that has occurred in our country that separates us and divides us at a time when we need to be together.
We each have our own definition of judicial activism. Essentially the court will not become an activist court if it adheres to its appropriate role and does not attempt to legislate or create policy.
There always will be and should always be checks on each of the different branches of government.
COBURN: Yet look where we are today. Decades of judicial activism have created these huge rifts in the social fabric of our country.
Whether we're on one side or the other, it's a tension pulling us apart rather than a tension pulling us together.
I believe we've seen federal and state legislators' responsibility usurped by the court, especially to make important decisions. And I think that is what has created a lot of the division within our country.
And I believe it's time that that stopped and a limited role for the Supreme Court -- and I think we're willing to debate as a country what judicial activism is. But we're also wanting someone who will listen to both sides of that and, in a measured and balanced way, knowing what the Constitution says and the restraint that our forefathers have written about, will take that into consideration.
I'm deeply heartened in that I've read many statements that you've made. I believe you indicate a more proper role for that of the judiciary.
And I believe, in our discussions, super-legislation -- a super- legislator body -- is not what the court was intended to be.
When I ponder our country and its greatness, its weaknesses, its potential, my heart aches for less divisiveness, less polarization, less finger-pointing, less bitterness, less mindless partisanship which, at times, sounds almost hateful to the ear of Americans.
The problems before our country are enormous. Our family structures have declined. Our dependency on government has grown. The very heritage of our country, which was borne out of sacrifice by those who preceded us, is at risk.
We are all Americans. We all want the greatest future for the generations to come, protection for the innocent and the frail, support for those less fortunate. But, most of all, we want an America that will live on as a beacon of hope, freedom, kindness and opportunity.
America is an idea; it's not competing ideologies. It's an idea that has proven tremendously successful and, when we reduce it to that of competing ideologies, we make it less than what it is.
I believe the genius of our founders is that they recognized that individual rights were derived from a creator, not a king, not a court, not a legislature or a state.
Our founders were concerned that, if our rights derived from the state or a court, they can be taken away by a state or a court.
Our Constitution enshrines this idea and gives its meaning in the rule of law. That's why it's important for us to respect the words of that Constitution.
COBURN: I would hope as we conduct these hearings over the next few days our tendency as politicians to be insensitive, bitter, discourteous and political will surrender to the higher values that define us as a nation.
We have an opportunity to lead by example, to restore the values and principles that bind us together.
How we conduct ourselves and how we treat you, Judge Roberts, can be a great start toward reconciliation in our country.
I want one America.
An America that continues to be divided is an America that is at risk.
Our country waits for its leaders at all levels to rise to the occasion of rebuilding our future by placing our political fortunes last and constitutional principles first and working diligently to reconcile each and every American to the freedom and responsibility that our republic demands.
May God bless our efforts.
SPECTER: Thank you very much, Senator Coburn.
We now move to the presenters -- Senator Lugar, Senator Bayh and Senator Warner -- and then the administration of the oath to Judge Roberts, and then Judge Roberts' opening statement.
Welcome, Senator Lugar, as the senior presenter, elected in 1976, Indiana's senior senator.
We have allotted five minutes each to the presenters.
And, Senator Lugar, you are now recognized.
LUGAR: Mr. Chairman, let me first ask that a copy of my full statement appear in the committee record.
SPECTER: Without objection, your full statement will be made a part of the record.
LUGAR: Thank you, Mr. Chairman.
It's a genuine privilege and pleasure to appear before you, Senator Leahy and my other distinguished colleagues who serve on this important committee.
I'm pleased to introduce the president's nominee to serve as the 109th justice of the Supreme Court and the 17th chief justice of the United States, John D. Roberts Jr.
Judge Roberts was born in Buffalo, New York, but moved at age 8 to Indiana. The Roberts family settled in Long Beach, a small Hoosier community, on the shores of Lake Michigan.
John attended local schools there in nearby LaPorte and, in 1973, graduated first in his high school class of 22, having also excelled in numerous extracurricular activities, including co-captaining the football team despite his self-described status as a slow-footed halfback.
LUGAR: I know committee members will understand my observing that our state takes a certain pride of its own nomination by the president to lead the nation's highest court.
Simply put, John Roberts is a brilliant lawyer, a jurist with an extraordinary record of accomplishments in public service. This exceptional blend of professional and personal qualifications is especially important now, given the further responsibilities Judge Roberts has been called upon to assume on the passing of the chief justice.
I know Judge Roberts is keenly and humbly aware of the large shoes he has now been asked to fill, the more so since the late chief justice was his own initial boss when he arrived in Washington a quarter century ago.
All Americans can be grateful that Judge Roberts not only learned, but has lived, the lessons taught by his mentor and his role model. In my judgment, he is supremely qualified to carry forward the tradition of fair, principled and collegial leadership that so distinguished the man for whom he once worked and has now been nominated to replace.
Under the judicial confirmation standards that prevailed throughout most of our history, my remarks could appropriately end at this point, and the committee and the Senate as a whole should proceed to consider Judge Roberts' nomination in light of his outstanding qualifications.
Indeed, nominees almost never testified in such hearings before 1955, and the last Supreme Court justice from Indiana, Sherman Minton, was confirmed without controversy, despite declining even to appear before the committee following his nomination by President Truman.
I am not troubled by the fact that the committee hearings, including testimony by Supreme Court nominees, now seems firmly established as a part of the confirmation process. These proceedings serve a vital role in our deliberations and are a vivid course in living history for all Americans.
But it's important we write that history well. Today's Supreme Court regularly faces issues of enormous public import and attendant controversy. Many are deeply decisive, with well-funded, well- organized advocacy groups passionately committed to one or the other side and for whom the central, well-nigh exclusive focus is who wins.
LUGAR: Media coverage in the Information Age, whether on talk radio or countless cable outlets featuring talking heads for each side, fuels both the controversy and the resultant tendency to see the Supreme Court as a kind of political branch of last resort.
When a court vacancy occurs, the confirmation process takes on the trappings of a political campaign, replete with interest group television ads that often reflect the same oversimplifications and distortions that are disturbing even in campaign for offices that are in fact political.
All of this may be understandable. It remains in my view a fundamental departure from the vision of the courts and their proper role that animated those who crafted our Constitution.
The founders were at pains to emphasize the difference between the political branches, the executive and the legislative, and the judiciary. They were concerned about the potential dangers if passionate interest-driven political divisions, which Madison famously called the mischiefs of faction, influenced their design of our entire governmental structure.
But they were especially concerned that such mischiefs not permeate those who would sit on the bench. Otherwise, they warned, the pestilential breath of faction may poison the fountains of justice and would stifle the voice both of law and of equity.
I believe that each of us in the Senate bears a special responsibility to prevent that from occurring. The primary focus of these hearings and our substantive debate and vote on the floor will be Judge Roberts and his qualifications.
But another focus will be whether the Senate, in discharging the solemn advice-and-consent duty conferred by the Constitution, is faithful to the trust the founders placed in us.
I thank you, Mr. Chairman, and all members of the committee for your courtesy in allowing me to introduce Judge John G. Roberts Jr., a distinguished son of Indiana, whom I believe will prove to be an outstanding chief justice of the United States Supreme Court.
I thank you very much.
SPECTER: Thank you very much, Senator Lugar.
We now turn to Senator Bayh, elected in 1998, previously governor of Indiana.
BAYH: Thank you very much, Chairman Specter, Senator Leahy, members of the Judiciary Committee.
There isn't nearly enough civility in Washington today.
BAYH: And so when I was asked to uphold long-standing and bipartisan traditions to introduce someone from my state, I did not hesitate to accept.
I am pleased to join with my friends and our colleagues, Dick Lugar and John Warner, to introduce to you John Roberts.
John Roberts grew up in northwest Indiana and still has family living in our state. He is the proud father of two lovely children, Jack and Josie, and the husband of Jane.
At only 50, Judge Roberts has had a distinguished legal career that would make most lawyers envious. He has argued 39 cases before our Supreme Court and won 25 of them. Most lawyers are lucky to argue and win one case before our nation's highest court.
There is no question that Judge Roberts has achieved much through hard work and great ability to reach the pinnacle of the legal profession.
If confirmed as chief justice of the Supreme Court, Judge Roberts could serve for 30 or more years. During that time, the court will likely hear cases that affect every aspect of the law and American life, from civil rights to women's rights, to property rights, to states rights.
I look forward to a full and clarifying discussion of his views on these important topics and others because, for this nominee and for anyone who aspires to our nation's highest court, it is ultimately their beliefs, even more than their biography, which should determine the result of the confirmation process.
As a fellow Hoosier, I'm proud that someone from our state would be so talented and so successful to be considered for a position on the highest court of our land.
Mr. Chairman, Senator Leahy, my colleagues, I am pleased to introduce to you a fellow Hoosier, Judge John Roberts.
SPECTER: Thank you very much, Senator Bayh.
Senator Warner, welcome back.
When you were here earlier this morning, I said you'd be recognized at about 3:20. I want to apologize for being two minutes off.
WARNER: It's all right, Mr. Chairman. I'll take till (inaudible) to finish my statement and you yield back your time to me.
SPECTER: Your full statement will be made a part of the record, Senator Warner.
WARNER: Members of the committee and Judge Roberts and his family, I find this a singular privilege in my now 27 years in this institution.
Speaking of the institution, in 218 years since the Constitution was ratified, we've had 43 presidents, and this is the 17th chief justice.
Seems to me that underscores the importance of this hearing.
Further, the Senate deliberations in this hearing, followed by subsequent floor debate, provide a unique opportunity for generations of Americans, particularly the younger Americans, to acquaint themselves with how our government operates.
And I'm absolutely confident that this distinguished committee, before whom I've appeared many, many times in these years, will comport yourself in a manner in the finest traditions of the Senate and will impart in our audience across America, particularly the younger ones, a respect for and an understanding for the institution of the United States Senate and its responsibilities.
WARNER: The Constitution, together with the Bill of Rights, is an amazing document, for it is the reason that our nation's government stands today as the oldest continuous, democratic republic form of government in the world today.
Indeed, most all of the other bold experiments in government have gone into the dustbin of history. Little wonder that why so many other nations are forming their governments today, patterning their government on ours.
But only if the president and the Senate fairly, objectively and in a timely manner exercise these respective constitutional powers, can the judicial branch have the numbers of qualified judges to properly serve the needs of our citizens.
For this reason, in my view, a senator has no higher duty than his or her responsibilities under Article II, Section 2.
Recently, 14 senators, of which I was one, committed ourselves in writing to support the Senate leadership in facilitating the Senate's responsibility of providing advice and consent.
In our memorandum of understanding, Senator Byrd and I incorporated language that spoke directly to the founding fathers' explicit use of the word "advice."
Without question, our framers put the word "advice" in the Constitution for a reason: to ensure consultation between a president and the Senate prior to the forwarding of a nominee to the Senate for consideration.
I commend President Bush for the exemplary manner in which he conducted the advice-and-consent responsibility.
Now, with the beginning of these hearings, the Senate commences the next phase -- the consent phase of this constitutional process -- after the committee consideration and nomination move to the full Senate for debate, followed by a vote.
Throughout this process, the ultimate question will remain the same: whether the Senate should grant or deny consent.
Now to this distinguished jurist.
I judge his credentials to be chief justice in the same manner as I've applied to all others. Since I've been privileged to serve in this institution, I recounted there are about over 2,000 nominations that have come in this quarter of a century plus.
I can say without equivocation I have never seen the credentials of any nominee with stronger qualifications than Judge Roberts.
Some two years ago, when nominated to serve in the Court of Appeals for the District of Columbia, I was privileged at his request to introduce him. At the time, he was relatively unknown; today, the world knows him.
We were brought together because we were both fortunate to have been partners at different times in our careers at the law firm of Hogan & Hartson, a venerable firm known for its integrity and rigid adherence to ethics.
WARNER: Among the firm's many salutary credentials, it has been long known for its pro bono work. In fact, I'll share a personal story.
In 1960, I was an assistant U.S. attorney. Been there about four years. A knock came on my door and in walked a very tall, erect man, introducing himself as having just been appointed to represent an indigent defendant charged with first-degree murder.
We had a brief consultation. The trial followed. Midway in the trial the defendant pleaded guilty to a lesser defense.
That man was Nelson T. Hartson, senior partner and founder of this firm.
I firmly believe that John Roberts shares in the belief that lawyers have an ethical duty to give back to the community by providing free legal services, particularly to those in need. The hundreds and hundreds of hours he spent working on pro bono cases are a testament to that. He didn't have to do any of it, the bar doesn't require it, but he did it out of the graciousness of his heart and an obligation.
Those who know him best can also attest to the kind of person he is. Throughout his legal career, both in public and private practice, his pro bono work, Roberts has worked with and against hundreds of lawyers. Those attorneys who know him well typically speak with one voice when they tell that you that dignity, humility and a sense of fairness are the hallmarks of this nominee.
In conclusion, Mr. Chairman, I take a moment to remind all present and those listening and following that this exact week 218 years ago our founding fathers finished the final draft of the U.S. Constitution, after a long, hot summer of drafting and debating.
And when Ben Franklin ultimately emerged from Independence Hall upon the conclusion of the convention, a reporter asked him, "Mr. Franklin, what have you wrought?" And he said, "A republic, if you can keep it." And that is ultimately what this advice and consent process is all about.
WARNER: But while the Constitution sets the course of our nation, it is without question the chief justice of the Supreme Court who must have his hand firmly on the tiler to keep our great ship of state on a course consistent with the Constitution.
I shall follow carefully the deliberations of this committee. I will participate in the floor debate. I look forward to the privilege of voting for this fine, outstanding public servant.
Judge Roberts, I'm the last. You're on your own.
SPECTER: Thank you, Senator Warner.
Thank you, Senator Lugar.
Thank you, Senator Bayh.
Judge Roberts, if you'd now resume your position at center stage.
Judge Roberts, if you would now stand, please. The protocol calls for your swearing in at this point. We have 23 photographers -- well, five more waiting. We may revise our procedures to swear you in at the start of the proceeding, if you should come back.
If you would raise your right hand, and they've asked me to do this slowly, because this is their one photo op.
Do you solemnly swear that the testimony you will give before this Committee on the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God?
ROBERTS: I do.
SPECTER: Thank you. And you may be seated.
Now, Judge Roberts, we compliment you on your patience of listening to 21 speeches. And the floor is now yours.
ROBERTS: Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.
Let me begin by thank Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me.
ROBERTS: I'm humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me.
Let me also thank you, Mr. Chairman, and the members of the committee for the many courtesies you've extended to me and my family over the past eight weeks.
I'm particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent.
I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues -- many of whom are here today.
Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year, and I was glad to hear from them that he was not a particularly good patient.
He chafed at the limitations they tried to impose.
His dedication to duty over the past year was an inspiration to me and, I know, to many others.
I will miss him.
My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.
Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.
The role of an umpire and a judge is critical. They make sure everybody plays by the rules.
But it is a limited role. Nobody ever went to a ball game to see the umpire.
Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.
ROBERTS: And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.
Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court.
I always found it very moving to stand before the justices and say, I speak for my country.
But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.
Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.
That is a remarkable thing.
It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.
President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.
Mr. Chairman, 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.
ROBERTS: I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench. And I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.
Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain, from the days of our youth, certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land.
Growing up, I never imagined that I would be here, in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.
If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.
Thank you, Mr. Chairman.
Thank you, members of the committee.
I look forward to your questions.
SPECTER: Thank you very much, Judge Roberts, for that very profound statement.
We will stand in recess until 9:30 tomorrow morning, when we will reconvene in the Hart Senate Office Building, Room 216.
That concludes our hearing.
Sep 12, 2005 15:51 ET .EOF