and consent' must mean more than ascertaining collegiality and strength
of resume. Those things are essential, but not enough. More
important are a nominee's beliefs. On this score, in too many important
areas, we can only speculate.
-Sen. Evan Bayh
Judge Roberts did not answer my questions or, I would argue, any of your
questions fully, and he does not appear to share the same expansive view
of fundamental rights of previous nominees I've supported, I'm unwilling
to take the constitutional risk at this moment in the court's history.
-Sen. Joe Biden
an obligation to my constituents to make sure that I cast my vote for Chief
Justice of the United States for someone I am convinced will be steadfast
in protecting fundamental women’s rights, civil rights, privacy rights,
and who will respect the appropriate separation of powers among the three
branches. After the Judiciary Hearings, I believe the record on these
matters has been left unclear. That uncertainly means as a matter
of conscience, I cannot vote to confirm despite Judge Roberts’s long history
of public service.
-Sen. Hillary Rodham Clinton
impeccable legal credentials, his reputation and record as a fair-minded
person, and his commitment to modesty and respect for precedent have persuaded
me that he will not bring an ideological agenda to the position of Chief
Justice of the United States and that he should be confirmed.
-Sen. Russ Feingold
it’s voting rights, Title IX, affirmative action, the Geneva Conventions
or choice, Judge Roberts has consistently worked to put such high legal
hurdles in place that they are virtually impossible for even the most worthy
cases to overcome. America deserves a Chief Justice who will ensure that
every single one of us – man or woman, rich or poor, black or white – will
be treated with dignity, respect and fairness under the law.”
-Sen. John Kerry
he has presented himself as a supporter of judicial restraint, I do not
see enough evidence that Judge Roberts would show restraint when his own
political commitments are at stake. In light of his past positions,
I believe he had an affirmative obligation to make the case to those who
might confirm him that he repudiates the positions that he had previously
advocated in his professional career. He made a choice and refused to meet
-Fmr. Sen. John Edwards
Sen. Evan Bayh
Statement On the Chief Justice Nomination of Judge John Roberts
September 23, 2005
The outcome of John Roberts' confirmation process is not in doubt. He will be the next Chief Justice of the United States Supreme Court. Like all Americans regardless of party, I hope and pray that he will be a great Chief Justice. Time will tell.
But I am troubled that I must hope and pray for that result and cannot conclude it with greater certainty. I cannot because so much essential to reaching a considered judgment about this nominee remains unknown. And that is not enough for a lifetime appointment to our nation's highest court, a court from which there is no appeal, a court that is the ultimate arbiter of our most basic rights and freedoms.
It did not need to be this way. When I introduced Judge Roberts at his confirmation hearing, I said that I looked forward to a full and clarifying discussion of his views. Regrettably, that did not happen.
A more forthcoming process - one in which the White House released all important, relevant documents and one in which questions were answered forthrightly - could have filled in the empty spaces, resolved doubts and warranted my support. The nominee was not well-served by a process designed to maintain ambiguity rather than resolve it. Voting to confirm a nominee to the Supreme Court must be more than an act of faith.
Much of my thinking involves what it means for the Senate to "advise and consent," who bears the burden of proof and how to resolve ambiguity and address the unknown.
'Advise and consent' must mean more than ascertaining collegiality and strength of resume. Those things are essential, but not enough. More important are a nominee's beliefs. On this score, in too many important areas, we can only speculate.
John Roberts had less than two years on the Court of Appeals and issued very few opinions to shed light on his approach as a judge to significant constitutional issues.
Prior to that, he was a lawyer in private practice. A successful lawyer, but according to his own testimony, the beliefs he represented were his clients, not his own. So there's little to be learned from that time in his career beyond what we already know - he's an effective advocate for others' beliefs. The question is, what are his own?
And then we get to his public service.
His statements on equal rights and discrimination against woman while serving in the executive branch are extremely troubling. For example, he argued that a high school student who was sexually harassed by a teacher had no remedy under Title IX-the Supreme Court disagreed with him in a unanimous decision.
Unlike some, I don't believe that Judge Roberts' statements as a young lawyer must reflect his views today. My views have certainly evolved since my twenties, and I assume that Judge Roberts' have as well. However, all we can do is assume, because when presented with the opportunity to disavow the positions in his memos, Roberts refused. His answer, that he was a lawyer arguing the position of the Administration, doesn't address these concerns. For a lifetime appointment to the nation's highest court, assumption alone does not meet the burden of proof.
Nor has this burden been met by someone who seeks to resolve doubt by generalities such as, 'I will follow the rule of law.' Surely, more is needed. But in too many instances, this is all we have.
So, as an American and fellow Hoosier, I wish soon-to-be Chief Justice Roberts well. I hope he will strike the right balance between the role of the judiciary and the other branches of government, between the role of the executive branch and the legislative branch, between the role of the federal government and the states, and between individual rights enshrined in our Constitution and the rights of the majority as determined by election, between the need for dynamic change in the law and the importance of stability. I hope. I hope, because based on the record before us, it is impossible to know.
Regrettably, therefore, I cannot vote to confirm, not because I oppose John Roberts, but because we simply do not know enough about his views on critical issues to make a considered judgment. And that is the standard that must be met for a lifetime appointment to our nation's highest court."
Sen. Joe Biden
STATEMENT BY SENATOR JOE BIDEN VOTING AGAINST THE CONFIRMATION OF JUDGE ROBERTS
September 22, 2005
Since the Scalia nomination in 1986 -- as my colleagues who have served with me during that period know -- I have focused very intently on each nominee's commitment to defending fundamental rights recognized as being protected by the Constitution and, I might add, fully embraced by the American people: the right to educate your child in the manner you desire; the right to choose whether or not to procreate; the right to live with your grandchildren; the right to marry whomever you wish, even if they're of a different color; the right to disconnect the machine that is keeping you alive, if you are fully capable of making that decision. The line used by several of our Justices is the right to be let alone and the right to make basic decisions about one's life's course.
To me, these are the central, most fundamental, consequential decisions that any person in the court will make for their entire tenure.
As I said in my opening statement of this hearing, "Judge, as you know, there is a genuine intellectual dispute going on in our country today over whether the Constitution is going to continue to expand the protections of the right of privacy."
Every one of my colleagues on this committee is bright, well- informed, honest and decent, and they all know there is a fundamental -- no pun intended -- debate going on among legal scholars and the intellectual community today about the protections -- whether they should be extended or diminished as they relate to what we generically call the right to privacy.
As its core, the Constitution, in my view, envisions an ever-increasing protection -- not diminishing, not static -- ever-increasing protection of human liberty and dignity for its citizens and the national government empowered to face unanticipated crises.
I went on to say, "Judge, herein lies the crux of the intellectual debate, whether we will have an 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," some of whom serve on the court.
Now, I say to my colleagues, I believe this is a very close call -- a very close call.
I respect those of you who will vote for him, and I respect those of you who are voting no, because it is so close.
I got a little bit of heat for saying these hearings have become sort of a Kabuki dance, and by that I mean a stylized dance that goes on. We all sit down and we reread everything that the person has ever said. They sit down in the White House or wherever and they look at tapes of all of the hearings that went before. Everybody figures out it's kind of a "gotcha" game when, in fact, it shouldn't be that at all.
I might note, parenthetically, I'm moving to the view that I'm not sure these hearings are the proper way to determine how to vote for a judge. Maybe we should go back to the pre-1925 rule and just look at what they wrote and said and make our judgments based on that. Because it's very, very difficult.
I understand why nominees don't want to let us know what they think, even though the American people, in my view, are entitled to know what they think.
But I have serious doubts that Judge Roberts will fall into the category of the justices from Chief Justice Marshall to Souter, Kennedy, Ginsburg, O'Connor, who look at the Constitution, quoting Marshall, as "a Constitution... intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." That's an expanding document.
It's a close call, and I hope he will prove me wrong, but I believe he will not. I plan on voting no.
I intend to vote no because I don't believe he will fall within the line of those justices, Republican and Democrat, who view this as an expanding journey of human dignity, areas within which the state has no right to trespass.
For the past 20 years or so, where I've been convinced that a nominee would protect fundamental constitutional rights, I voted to confirm them, including O'Connor, Kennedy and Souter. Democratic nominees as well -- Ginsburg and Breyer.
Where I've had doubts about the nominees' commitments to fundamental constitutional rights as I've explained them, I voted against their confirmation, including Rehnquist and Thomas.
Even though Justice Scalia did not provide answers to his testimony before the Judiciary Committee, I nonetheless gave him the benefit of the doubt and voted for him; the last time I ever did that. And I acknowledged after that vote that it was the last time I would do that. His rulings on the Court to restrict or repeal fundamental rights convinced me that all future nominees would have to answer those questions about their judicial philosophy concerning these rights before I voted.
And I would note, even though it's not the general perception, a nominee, because he has been nominated or she has been nominated, is not entitled to the job. And the judge pointed out he's not standing for election. In truth, he is standing for election, through the representatives of the American people, the United States Senate. That's how it was intended.
The idea that the Founders thought that they should know something about how those who serve in the executive and legislative branch thought about the issues of the day but would say, "I don't care about the third branch, the co-equal branch, as long as they're honest, decent, smart and can recite the case law and common law, it's OK" -- that is a preposterous notion that history does not sustain and the constitutional record does not sustain.
And so, as I said during the Ginsburg hearing, "if a nominee, although it is their right, does not answer questions that go not to what they would decide but how they would decide, I will vote against that nominee regardless of who it is."
I've closely reviewed Judge Roberts's past writings as a political appointee and a government lawyer, his personal statements and commentaries during his tenure in private practice, and his testimony before this committee. Though I and other committee members gave Judge Roberts ample opportunity, in my view he did not provide to the American people any assurances that he embraced fully the Constitution's enduring values when it comes to fundamental constitutional rights.
And I will speak to this issue at length on the floor of the United States Senate, doing side-by-side comparisons of the very same questions I asked Kennedy, Souter, Roberts, every one of the justices.
During the confirmation hearing of Justice Kennedy, I and others questioned him about his commitment to fundamental rights. In response to the question -- just to give you one example about what factors he would use in considering the scope of the right to privacy, Justice Kennedy stated, and I quote:
"[T]he essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of a person to manifest his or her personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her potential."
That's the scope of the right to privacy he saw.
But in contrast, Justice Roberts declined to associate himself with anything approaching the broad sweep of Justice Kennedy's vision, instead casting his formulation in a very narrow and crabbed way.
Not only would Judge Roberts not tell this Committee how broadly the right to privacy extends; he declined even to endorse the general right to privacy. Senator Schumer said, "I assume that you disagree with Justice Thomas' views that there is no general right to privacy?" Answer -- listen to his answer, as opposed to Kennedy's answer -- he said, "Well, I think that question depends, obviously, on the modifier and what you mean by 'general.'"
Now, as they say in the South, y'all can tell me on the Floor what he means by that.
Most disturbing, he repeatedly said he believed in the right to privacy as does, quote, "every member of the court to some extent or another."
He's right. I want to know to what extent. Because if it's the extent to which Thomas and Scalia believe in the right to privacy, I cannot support, in good conscience, this man. While my colleagues and I may disagree on a lot, I think we could all agree that the right to privacy is viewed very differently by different justices. To say that every court member agrees with a formulation of the right to privacy is to shed absolutely no light on how that nominee will view that right of privacy.
You need only look at the language used by Justice Rehnquist and Justice Kennedy in the case of Moore v. the City of East Cleveland, where a grandmother asserted that she had a fundamental constitutional right to live with her orphaned grandchildren. Look at their respective answers and see how fundamentally, no pun intended, differently they viewed the right to privacy. And it's consequential.
To be consistent with the statements I've used after 1986, I must regretfully vote no, as I have in the past when I've doubted the nominee's commitment to these fundamental rights.
Mr. Chairman, Judge Roberts' nomination presents a close call. I acknowledge Judge Roberts may surprise me and serve in the mold of traditional conservatives like Justice John Marshall Harlan, who deferred to the elective branches and was respectful of precedent.
But because Judge Roberts did not answer my questions or, I would argue, any of your questions fully, and he does not appear to share the same expansive view of fundamental rights of previous nominees I've supported, I'm unwilling to take the constitutional risk at this moment in the court's history.
One thing is for certain: God willing, Justice Roberts will serve for three decades or more. And it is certain he will have more impact on our lives, and the future of our children's lives, than any of us and all of us combined. That fact alone, I believe, justifies the desire of the American people to know more about what he thinks.
I did not learn any more. Therefore, I find myself reluctantly voting no because I believe, as I said, the right to be let alone, the right to make basic decisions about one's life's course, is not the business of any legislative body. A Justice Roberts will determine those issues for 30 years.
# # #
Sen. Hillary Rodham Clinton
September 22, 2005
Statement of Senator Hillary Rodham Clinton on the Nomination of John Roberts to be Chief Justice of the United States
"The nomination of Judge John Roberts to be Chief Justice of the United States is a matter of tremendous consequence for future generations of Americans. It requires thoughtful inquiry and debate, and I commend my colleagues on the Senate Judiciary Committee for their dedication to making sure that all questions were presented and that those outside of the Senate had the opportunity to make their voices heard. After serious and careful consideration of the Committee proceedings and Judge Roberts’s writings, I believe I must vote against his confirmation. I do not believe that the Judge has presented his views with enough clarity and specificity for me to in good conscience cast a vote on his behalf.
The Constitution commands that the Senate provide meaningful advice and consent to the President on judicial nominations, and I have an obligation to my constituents to make sure that I cast my vote for Chief Justice of the United States for someone I am convinced will be steadfast in protecting fundamental women’s rights, civil rights, privacy rights, and who will respect the appropriate separation of powers among the three branches. After the Judiciary Hearings, I believe the record on these matters has been left unclear. That uncertainly means as a matter of conscience, I cannot vote to confirm despite Judge Roberts’s long history of public service.
In one memo, for example, Judge Roberts argued that Congress has the power to deny the Supreme Court the right to hear appeals from lower courts of constitutional claims involving flag burning, abortion, and other matters. He wrote that the United States would be far better off with fifty different interpretations on the right to choose than with what he called the “judicial excesses embodied in Roe v. Wade.” The idea that the Supreme Court could be denied the right to rule on constitutional claims had been so long decided that even the most conservative of Judge Roberts’s Justice Department colleagues strongly disagreed with him.
When questioned about his legal memoranda, Judge Roberts claimed they did not necessarily reflect his views and that he was merely making the best possible case for his clients or responding to a superior’s request that he make a particular argument. But he did not clearly disavow the strong and clear views he expressed, but only shrouded them in further mystery. Was he just being an advocate for a client or was he using his position to advocate for positions he believed in? The record is unclear.
It is hard to believe he has no opinion on so many critical issues after years as a Justice Department and White House lawyer, appellate advocate and judge. His supporters remind us that Chief Justice Rehnquist supported the constitutionality of legal segregation before his elevation to the high court, but never sought to bring it back while serving the court system as its Chief Justice. But I would also remind them of Justice Thomas’s assertion in his confirmation hearing that he had never even discussed Roe v. Wade, much less formed an opinion on it. Shortly after he ascended to the Court, Justice Thomas made it clear that he wanted to repeal Roe.
Adding to testimony that clouded more than clarified is that we in the Senate have been denied the full record of Judge Roberts’s writings despite our repeated requests. Combined, these two events have left a question mark on what Judge Roberts’s views are and how he might rule on critical questions of the day. It is telling that President Bush has said the Justices he most admires are the two most conservative justices, Justices Thomas and Scalia. It is not unreasonable to believe that the President has picked someone in Judge Roberts whom he believes holds a similarly conservative philosophy, and that voting as a bloc they could further limit the power of the Congress, expand the purview of the Executive, and overturn key rulings like Roe v. Wade.
Since I expect Judge Roberts to be confirmed, I hope that my concerns are unfounded and that he will be the kind of judge he said he would be during his confirmation hearing. If so, I will be the first to acknowledge it. However, because I think he is far more likely to vote the views he expressed in his legal writings, I cannot give my consent to his confirmation and will, therefore, vote against his confirmation. My desire to maintain the already fragile Supreme Court majority for civil rights, voting rights and women’s rights outweigh the respect I have for Judge Roberts’s intellect, character, and legal skills."
Sen. Russ Feingold
Statement of U.S. Senator Russ Feingold On the Nomination of Judge John G. Roberts To be Chief Justice of the United States
September 22, 2005
Mr. Chairman, I will vote in favor of the nomination of Judge John Roberts to be the Chief Justice of the United States. This has not been an easy decision, but I believe it is the correct one. Judge Roberts's impeccable legal credentials, his reputation and record as a fair-minded person, and his commitment to modesty and respect for precedent have persuaded me that he will not bring an ideological agenda to the position of Chief Justice of the United States and that he should be confirmed.
I have often noted that the scrutiny that I will apply to a President's nominee to the Supreme Court is the highest of any nomination and that the scrutiny to be applied to the position of Chief Justice must be the very highest. I have voted for executive branch appointments, and even for Court of Appeals nominees, whom I would not necessarily vote to put on the Supreme Court.
Furthermore, because the Supreme Court, alone among our courts, has the power to revisit and reverse its precedents, I believe that anyone who sits on that Court must not have a pre-set agenda to reverse precedents with which he or she disagrees and must recognize and appreciate the awesome power and responsibility of the Court to do justice when other branches of government infringe on or ignore the freedoms and rights of all citizens.
Judge Roberts came to his hearing with a record that few can top. His long record of excellence as a lawyer practicing before the Supreme Court, and his reputation as a lawyer's lawyer who has no ideological agenda, carry substantial weight. I wanted to see, however, how that record and reputation would stand up against a searching inquiry into his past statements and current views.
One important question I had was about Judge Roberts's views on the role of precedent and stare decisis in our legal system. A lot of the concern about this nomination stems from the fact that many important precedents seem to be hanging by a thread. In both our private meeting and in his hearing, Judge Roberts demonstrated a great respect for precedent, and for the importance of stability and settled expectations. His themes of modesty and humility showed appropriate respect for the work of the Justices who have come before him. He convinced me that he will take these issues very seriously, with respect to both the constitutional right to privacy and many other issues of settled law.
As I'm sure every single one of us on this Committee noticed and expected, Judge Roberts did not expressly say how he would rule if asked to overturn Roe v. Wade. But if Judge Roberts abides by what he said about how he would approach the question of stare decisis, I think he should vote to uphold Roe. He certainly left some wiggle room, and he said he would approach the possibility of overturning a case differently if the underlying precedents themselves came into question. But it will be difficult to overrule Roe or other important precedents while remaining true to his testimony about stability and settled law, including his statement that he agrees with the outcome in Griswold v. Connecticut. I know the American people will be watching him very closely on that question, and I personally will consider it a reversal of huge proportions, and a grave disappointment, if he ultimately does attempt to go down that road.
I was also impressed that Judge Roberts does not seem inclined to try to rein in Congress's power under the commerce clause. He repeatedly called attention to the Court's recent decision in Gonzales v. Raich as indicating that the Court is not headed inexorably in the direction it turned in the Lopez and Morrison cases limiting Congress's power. His approving references to Raich suggests to me that he will take a more moderate stance on these issues than his mentor Chief Justice Rehnquist. His attitude seems to be if Congress does its job right, he will not stand in the way as a judge. That is, of course, cold comfort if the Court creates new hoops for Congress to jump through and applies them retroactively. I hope that Judge Roberts will recognize that Congress can pay attention to what the Court says is needed to justify legislation only if the Court gives clear advance notice of those requirements.
Judge Roberts also seemed to reject a return to the Lochner era, when a majority of the Court invoked the due process and contracts clauses of the Constitution to strike down child labor and other laws it disagreed with, and the courts openly acted as a super-legislature, rejecting congressional enactments based on their own political and economic judgments. Judge Roberts disparaged the Lochner decision, saying, "[y]ou can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law." That's a marked contrast to many in the so-called "Constitution in Exile" movement, including recently confirmed D.C. Circuit Judge Janice Rogers Brown.
Judge Roberts's determination to be a humble and modest judge should lead him to reject efforts to undermine Congress's power to address social and economic problems through national legislation. I view that as a significant commitment he has made to the Congress and to the country.
Another important issue involves not so much respect for settled precedent, but rather questions that will arise in the future with respect to the application of the Bill of Rights in a time of war. The Supreme Court has already dealt with a series of cases arising from the Bush Administration's conduct of the fight against terrorism, and will undoubtedly face many more during the next Chief Justice's term. Indeed, how the new Justices address these issues may well define them and the Court in history.
For me, Judge Roberts's discussion of the Foreign Intelligence Surveillance Court, which has been such an issue in the Patriot Act debate, was a defining moment in the hearing. His answers showed a gut-level understanding of the potential dangers of a court that operates entirely in secret, with no adversary process. His instincts as a lawyer, one who trusts our judicial system and its protections to yield the correct result under the rule of law, seemed to take over, and he seemed genuinely disturbed by the idea of a court without the usual protections of an open, adversary process. Here is what he said about the FISA court to Senator DeWine:
I'll be very candid. When I first learned about the FISA Court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch the lawyers argue and it's subject to the glare of publicity and the judges explain their decision to the public and they can examine them. That's what we think of as a court.
This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does, but it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.
Judge Roberts's comments, and that he went out of his way to express surprise at the fact that this secret court even exists, suggests to me that he would address issues related to FISA, such as government secrecy and challenges to civil liberties, with an appropriately skeptical mindset.
I was troubled when Judge Roberts refused to give a fuller answer about his view of the Supreme Court's decision in the Hamdi case, and I have concerns about his decision as an appeals court judge in the Hamdan case regarding military commissions. But Judge Roberts did tell me that he believes: "The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis." I was pleased to hear him recognize this fundamental principle.
Mr. Chairman, I do not want to minimize the concerns that have been expressed by those who oppose the nomination. I share some of them. Many of my misgivings about this nomination stem from Judge Roberts's refusal to answer many of our reasonable questions. Not only that, he refused to acknowledge that many of the positions he took as a member of the Reagan Administration team were misguided or in some cases even flat-out wrong.
I do not understand why the one person who cannot express an opinion on virtually anything the Supreme Court has done is the person whom the American public most needs to hear from. No one on the Committee asked him for a commitment on a given case or set of issues. We certainly recognize that it is possible his views might change once he is on the Court and hears the arguments and discusses the issues with his colleagues. All of those caveats would have been perfectly appropriate. But why shouldn't the Committee and the public have some idea of where he stands, or at least what his instincts are, on recent controversial decisions?
Although in some areas he was more forthcoming than others, Judge Roberts did not answer questions that he could and should have -- unfortunately with the full support of Committee members who want to smooth his confirmation -- and I think that is disrespectful of the Senate's constitutional role. In addition, the Administration's refusal to respond to a reasonable, limited request for documents from the time Judge Roberts served in the Solicitor General's office did a real disservice to the country and to the nominee. My voting in favor of Judge Roberts does not endorse this refusal. In fact, if not for Judge Roberts's singular qualifications, I may have felt compelled to oppose his nomination on these grounds alone. Future nominees who refuse to answer reasonable questions or whose documents the Administration -- any administration -- refuses to provide should not count on my approval.
Also troubling was Judge Roberts's approach to the memos he wrote as a young Reagan Administration lawyer. His writings from his early service in government were those of a very smart man who was at times a little too sure of himself and too dismissive of other viewpoints. I wanted to see if the Judge Roberts of 2005 had grown from the John Roberts of 1985, whose strong views often suggested a rigid ideological agenda. I wanted to see the possibility of a seasoned, wise and just John Roberts on the Supreme Court, not just a more polished, shrewder version of his younger self.
Unfortunately, he refused to disavow any of those memos, many of which laid out disturbing opinions on a variety of issues, from voting rights, to habeas corpus, to affirmative action. He refused to acknowledge that some of his tone and word choice in that era demonstrated a lack of sensitivity to minorities and women, and to the challenges they face. Instead, he took refuge in the argument that he was simply doing his job, so we are not now supposed to infer anything about his beliefs or motivations based on the memos he wrote in the 1980s.
I found these arguments unpersuasive, particularly since several of these memos indicate that those were, in fact, his own personal views. And I do not understand why he felt he had to defend these 20-year-old memos. Maybe it was pride. Maybe it was a political strategy dictated by a White House that so rarely admits error. But take voting rights -- it should have been easy for Judge Roberts to say that in retrospect he was wrong about the dangers of the effects test, and that the 1982 amendments to the Voting Rights Act that he opposed have been good for the country. Instead, he said he wasn't an expert on the Voting Rights Act and insisted on the correctness of his position. That troubles me. The John Roberts of 2005 did not have to embrace the John Roberts of 1985, but in some cases he did, all too readily. On the other hand, I'm not sure that the John Roberts of 1985 would have told Senator Feinstein with respect to affirmative action that: "A measured effort that can withstand strict scrutiny is … a very positive approach." His answers to questions on affirmative action, seemed to me, on balance, to be an encouraging sign that he will not undo the Court's current approach.
Finally, I was unhappy with Judge Roberts's failure to recuse himself in the Hamdan v. Rumsfeld case, once he realized he was being seriously considered for a Supreme Court nomination. It is also hard to believe, as Judge Roberts testified, that he does not remember precisely when the possibility of an ethics violation first came to his attention. Judge Roberts sat on a court of appeals panel that heard the appeal of a District Court ruling that, if upheld, would have been a huge setback for the Administration's position on military commissions and the detainees at Guantanamo Bay. And he heard oral argument just six days after interviewing for a Supreme Court appointment with the Attorney General of the United States, who also was a major participant in the underlying legal judgment of the Administration that was challenged in the case. I am troubled that Judge Roberts apparently didn't recognize at the time that there was an ethical issue.
I give great weight to ethical considerations in judicial nominations. For example, when Judge Charles Pickering solicited letters of recommendation for his Court of Appeals nomination from lawyers practicing before him in the District Court, I found that very significant, especially in combination with his actions in a cross burning case where improper ex parte contacts were alleged. But while the issue raised about Judge Roberts is serious, I do not see such a pattern with Judge Roberts, who has a long record and reputation for ethical behavior. Nor is there evidence of the egregious, almost aggressive unethical behavior that was present in the nomination of Judge Pickering.
I hope that Judge Roberts now understands the concerns that I and a number of respected legal ethicists have about his participation in the Hamdan case. It is not too late for him to recuse himself and allow a new panel to hear the case.
At the end of the day, I had to ask myself: What kind of Justice does this man aspire to be? An ideologue? A lawyers' lawyer? A great Supreme Court Justice like Justice Jackson, who moved comfortably from the top legal positions in the Department of Justice to a judicial position in which he was more than willing to challenge executive power? A Chief Justice who will go down in history as the leader of a sharp ideological turn to the right, or a consensus builder who is committed to the Court and its role as guarantor of basic freedoms?
I have talked to a number people who know John Roberts or to people who know people who know John Roberts. Those I have heard from directly or indirectly have seen him develop since 1985 into one of the foremost Supreme Court advocates in the nation, whose skills and judgment are respected by lawyers from across the ideological spectrum. They don't see him as a champion of one cause, as a narrow ideologue who wants to impose his views on the country. They see him as openminded, respectful, thoughtful, devoted to the law, and truly one of the great legal minds of his time. That carries a great deal of weight with me. And it helps to overcome my frustration with Judge Roberts for not distancing himself from what he wrote in his Reagan-era memos and with the White House for refusing to release relevant documents to the Committee.
History has shown that control of the White House, and with it the power to shape the courts, never stays for too long with one party. When my party retakes the White House, there may very well be a Democratic John Roberts nominated to the Court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience or service on the progressive side of the ideological spectrum. When that day comes, and it will, that will be the test for this Committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last Chief Justice of the United States in my lifetime.
The position of Chief Justice demands the very highest scrutiny from the Senate, and the qualifications and abilities of the nominee for this position must shine through. Judge Roberts has the legal skills, the intellect and the character to be a good Chief Justice, and I hope he fulfills that promise. I wish him well. May his service be a credit not only to the rule of law, but also to the principles of equality and freedom and justice that make this country so great.
Thank you Mr. Chairman.
# # #
Sen. John Kerry
September 21, 2005
John Kerry Opposes Roberts’ Nomination for Chief Justice
Below is a statement by Senator John Kerry on the upcoming vote on Judge John Roberts to be Chief Justice of the United States:
“I can’t in good conscience vote to confirm Judge Roberts to a lifetime leading our third and co-equal branch of government when his confirmation hearings contained no genuine legal engagement, no real exchange of information, and no substantive discussion. The confirmation exercise has become little more than an empty shell. I cannot vote to confirm someone to lead the very branch of government responsible for ensuring equal opportunity and justice when he refuses to say where he stands on things as fundamental as how he would interpret our Constitution.
“The White House’s refusal to release documents presented a significant obstacle to getting the facts, but the biggest roadblock has been Judge Roberts himself. He has evaded serious and legitimate questions and forced the Senate to exercise its Constitutional responsibility of advice and consent virtually in the dark.
“What little we do know about Judge Roberts’ record gives me real concern. We need a Chief Justice who respects our Constitution and also considers the real-life implications of his decisions. Whether it’s voting rights, Title IX, affirmative action, the Geneva Conventions or choice, Judge Roberts has consistently worked to put such high legal hurdles in place that they are virtually impossible for even the most worthy cases to overcome. America deserves a Chief Justice who will ensure that every single one of us – man or woman, rich or poor, black or white – will be treated with dignity, respect and fairness under the law.”
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Fmr Sen. John Edwards (Sept. 21, 2005 e-mail)
The Chief Justice of the Supreme Court is the most important judge on the most important court in our country, responsible for protecting and upholding the rights and freedoms outlined in our Constitution. I have carefully reviewed Judge John Roberts' testimony and listened to him give unsubstantial, boilerplate answers and avoid answering even the most basic questions about his own views today.
Based on everything I have seen and read from Judge Roberts' work in the Reagan Administration, his past opinions, and his most recent testimony, I wanted you to be the first to know that I must oppose his nomination to be our country's Chief Justice.
I do so because we do know the views and positions he took prior to the recent hearings. Judge Roberts opposed efforts to remedy discrimination on the basis of sex and race. He opposed measures to protect voting rights. He denigrated the right to privacy and a woman's right to choose. He wanted to allow Congress to strip away courts' jurisdiction over controversial subjects.
Although he has presented himself as a supporter of judicial restraint, I do not see enough evidence that Judge Roberts would show restraint when his own political commitments are at stake. In light of his past positions, I believe he had an affirmative obligation to make the case to those who might confirm him that he repudiates the positions that he had previously advocated in his professional career. He made a choice and refused to meet that obligation. I cannot support someone who I am not convinced will preserve the liberties and freedoms that are enshrined in our Constitution and our laws.
Please join me in fighting for the principles and values that each of us cherish. Contact your Senators and tell them to vote no on Judge Roberts' nomination.