(Senate - July 20, 2005)

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[Pages S8504-S8510]
From the Congressional Record Online through the Government Publishing Office []


  Mr. REID. Mr. President, as we all know now, last night the President 
announced he will nominate John G. Roberts of the District of Columbia 
Court of Appeals to the U.S. Supreme Court. I congratulate Judge 
Roberts on this most high honor.
  Now the Senate begins the process of deciding whether to confirm 
Judge Roberts to a lifetime seat on the Supreme Court. The Supreme 
Court is the final guardian of the rights and liberties of all 
Americans. Serving on the Court is an awesome responsibility, and the 
Constitution gives the Senate the final say in whether a nominee 
deserves that trust. We should perform our constitutional role with 
great care.
  Under the leadership of Chairman Specter and Ranking Member Leahy, I 
am convinced the Judiciary Committee is in good hands. Two of our most 
respected, experienced lawyers in the Senate are going to operate this 
hearing process. They are exemplary of how we should work on a 
bipartisan basis. Since they have taken over the responsibilities of 
the Judiciary Committee, there has been real congeniality. Members of 
the committee seem to be more productive. I am very happy with both 
Senator Specter and Senator Leahy.
  It goes without saying, as we have heard from the distinguished 
majority leader, that John Roberts has a distinguished legal career. It 
is very impressive. Both in Government and in private practice, he has 
been a zealous and often successful advocate for his clients. As we 
have learned, he has argued 39 cases before the Supreme Court. For 
those of us who are lawyers, that is what we would say is a big deal. 
By all accounts, he is a very nice man. I have not met him. I look 
forward to doing that this afternoon.
  While these are important qualities, they do not automatically 
qualify John Roberts to serve on the highest court in the land. Nor 
does the fact that he was confirmed to serve on the Court of Appeals 
mean he is entitled to be automatically promoted.
  The standard for confirmation to the Supreme Court is very high. A 
nominee must demonstrate a commitment to the core American values of 
freedom, equality, and fairness. Senators must be convinced that the 
nominee, John G. Roberts, will respect constitutional principles and 
protect the constitutional rights of all Americans.
  So the expectations for Judge Roberts are especially high because he 
has such large shoes to fill, and I do not mean that literally--large 
judicial shoes.
  Justice Sandra Day O'Connor has been a voice of reason and moderation 
on the Court for 24 years. She has been the deciding vote in some of 
the most important questions in our society: Questions of civil rights, 
civil liberties, the right to privacy, and the first amendment freedoms 
of speech and religion.
  I don't know very much about John Roberts. But one of the things I am 
going to look for as a lawyer, as someone who has practiced in the 
trial bar and, to a more limited extent, the appellate level--I argued 
cases before the

[[Page S8505]]

Nevada Supreme Court and the Ninth Circuit, but I certainly don't hold 
myself out to be an expert in appellate law; I consider myself to be an 
expert on the trial bar--I believe it is important that we have a 
person on the Court who believes in precedent, stare decisis, something 
we learned about in law school. I am hopeful that John Roberts will 
follow along the same line he took up when he appeared before the 
Judiciary Committee last time, indicating that he believed in 
precedent. Justice O'Connor, therefore, should be replaced by someone 
like her in the constitutional mainstream.
  To gather the information it needs to make this decision, the Senate 
turns, first and ultimately for our ability to get information, to the 
Judiciary Committee. As I have indicated, I have confidence that the 
Judiciary Committee will garner information that is important to the 
American people and allow us to have a better picture of this man with 
his impressive legal resume. Clearly, a judicial nominee should not 
comment on pending cases--we all understand that--but there are many 
other questions a nominee must answer. I encourage Judge Roberts to be 
forthcoming in responding to the committee's questions and providing 
written materials requested by the Senate.
  In the end, Judge Roberts must demonstrate to the Senate that he is a 
worthy successor to Justice O'Connor. To do that, he must win the 
confidence of the American people that he will be a reliable defender 
of their constitutional rights. Judge Roberts has argued many cases in 
his career, but this is his most important by far.
  Since Justice O'Connor announced her retirement, I have called on the 
President to choose a nominee who can unite the country, not divide it. 
It remains to be seen whether John Roberts fits that description. I 
hope that he does. I look forward to giving him the opportunity to make 
his case to the American people.
  I yield the floor.
  The PRESIDENT pro tempore. The majority whip is recognized.
  Mr. McCONNELL. Mr. President, I rise to address the Senate on the 
issue brought to the fore last night by the nomination of John Roberts 
to be Associate Justice of the U.S. Supreme Court.
  Judge Roberts, as we are all beginning to learn, has an impressive 
record. He has keen intellect, sterling integrity, and a judicious 
temperament. Most importantly, Judge Roberts will faithfully interpret 
the Constitution, not legislate from the bench. He has earned the 
respect of his colleagues, and I am confident he will make a fine 
addition to the U.S. Supreme Court.
  He was raised in middle America in Indiana, a neighboring State to my 
own State of Kentucky. Judge Roberts is a son of the Midwest who went 
on to argue a remarkable 39 cases before the Supreme Court, more than 
virtually any other member of the Supreme Court bar. He graduated summa 
cum laude from Harvard and then graduated with high honors from Harvard 
Law School where he served as an editor of the Harvard Law Review. If 
that were not enough, he then went on to clerk for Chief Justice 
William Rehnquist, actually during the Chief Justice's period as 
Associate Justice, and served in various positions in the Justice 
Department. Now he serves with distinction on the DC Circuit Court of 
Appeals, often referred to as the second highest court in the land, 
and, of course, the Senate unanimously confirmed him to that position 
in 2003.
  The President of the United States has discharged his constitutional 
obligation under article II, section 2 to nominate justices of the 
Supreme Court. He has chosen a truly outstanding nominee. It is now our 
job to provide advice and consent. In doing so, we should follow 
basically three principles. No. 1, we should treat Judge Roberts with 
dignity and with respect. No. 2, we should have a fair process. And No. 
3, we should complete that process with either an up-or-down vote in 
time for the Court to be at full strength for its new term beginning 
October 3 of this year. These principles are simple and they are sound. 
Unfortunately, the Senate has not always followed them.
  As to the first principle, the Senate has not always treated judicial 
nominees of Republican Presidents with respect. Last Friday, for 
example, I recounted how some of our colleagues spoke harshly about 
Justice Souter's fitness for office. Our colleagues' harsh criticism of 
Justice Souter was hardly unique. President George Herbert Walker 
Bush's other Supreme Court nominee, Justice Clarence Thomas, suffered 
far worse attacks. By engaging in an unprecedented level of 
consultation, the President has respected the views of Senators. Now 
Senators ought to reciprocate and treat Judge Roberts with the same 
dignity and respect that we afforded President Clinton's Supreme Court 
nominees over the last 10 years.
  The Senate did not defeat Justice Ginsburg's nomination, even though 
she had argued in her capacity as a private lawyer for such provocative 
positions as abolishing Mother's Day and Father's Day in favor of a 
unisex parents day, and for other even more colorful positions. Those 
arguably unusual positions were not held against her during her 
confirmation process. I can recall voting for Justice Ginsburg myself. 
Similarly, we should not caricature Judge Roberts' beliefs or views. We 
should not attribute to him the actions of clients he has represented. 
We certainly should not criticize Judge Roberts because his position in 
a particular case did not mirror a Senator's personal policy 
preferences, nor when it comes to a fair process should we require 
Judge Roberts to prejudge cases or to precommit to deciding certain 
issues in a certain way. We should respect the fact that he may place 
himself in a compromising position by doing so, just as we did with 
Justice O'Connor, Justice Ginsburg, and other nominees who have come 
before us in the past. The inquiry should be thorough but at the same 
time fair.

  Slow walking the process beyond historical norms and engaging in a 
paper chase simply to delay a timely up-or-down vote are not hallmarks 
of a fair process. The Supreme Court begins its new term on October 3. 
As Senator Frist has pointed out, the average time for a nomination to 
confirmation for the current justices was 62 days. The average time 
from nomination to confirmation for President Clinton was 58 days. 
Justice Ginsburg was confirmed in only 42 days. The Senate has 72 days 
to complete action on Judge Roberts' nomination, in time for him to 
join the Court by the start of its new term, October 3. By any 
standard, that is a fair goal. What is not fair and what is, quite 
frankly, a little curious is for some of our colleagues who, before 
even having heard a single word of testimony, have already come up with 
excuses as to why we should depart from this historical standard. It is 
disturbing that they seek to justify so far in advance why the Court 
should begin its proceedings at less than full strength.
  We, on this side of the aisle, are not asking the Senate to change 
its practices or standards. We are not asking that this President be 
treated better than his immediate predecessor. We are asking for equal 
treatment. Let's treat President Bush's nominees as we treated 
President Clinton's nominees. I am hopeful that the respect the 
President has shown the Senate will be reciprocated and that our 
handling of Judge Roberts' nomination will bring credit to the Senate.
  I yield the floor.
  The PRESIDENT pro tempore. The Senator from Kansas.
  Mr. BROWNBACK. Mr. President, I join my colleagues in making brief 
comments about the selection of Judge John Roberts from the DC Circuit 
Court of Appeals to serve as Associate Justice of the U.S. Supreme 
Court, and I follow my colleague from Kentucky in noting how Ruth Bader 
Ginsburg was treated--appropriately, properly, with due diligence, and 
speed so that the nomination went through in an orderly process. She 
took the seat of Justice Byron White who was one of the dissenters in 
Roe. A number of my colleagues are saying we need to have somebody in 
this position that is exactly the same as Sandra Day O'Connor in her 
position. Yet that wasn't the standard that was applied in the most 
recent case with Ruth Bader Ginsburg, the replacement for Justice Byron 
  The process is as it is. The President nominates. The President 
campaigned vigorously about the role of the Supreme Court and the role 
of the courts in society today. He has made a noteworthy choice, a 
person of outstanding

[[Page S8506]]

academic credentials. I have heard a colleague of mine say: I don't 
know yet how I will vote, but I would certainly hate to argue a case 
against him. Somebody who has argued 39 cases in front of the Supreme 
Court is very impressive indeed. But I also would like to note that the 
process is for the President to nominate and us to vote by a majority. 
That has been the historical setting, and that is what we should 
continued to do in this case.
  My colleagues have already outlined some of Judge Roberts' excellent 
legal credentials. He graduated magna cum laude from Harvard Law 
School. He clerked for then-Associate Justice Rehnquist.
  He served as Principal Deputy Solicitor General at the Department of 
Justice. He amassed a strong record as a Supreme Court advocate in 
private practice and has distinguished himself as a judge on the court 
of appeals. As one of my colleagues said last night, Senator Schumer, 
Judge Roberts has the ``appropriate legal temperament and demeanor.'' 
We would call that, from my part of the country, ``midwestern calm.'' 
He has a great deal of calm demeanor about him that is quite good for 
judicial temperament.
  I was particularly struck by Judge Roberts' statement at the White 
House yesterday evening, speaking extemporaneously and with all the 
skill of a practiced lawyer and as a person of not only a well-trained 
mind but a deep heart. He said he had a ``profound appreciation for the 
role of the Court in our constitutional democracy.'' The role of the 
Court in American life and Government is of great concern to the 
country today. That statement means a lot--rule of law rather than the 
rule of man. We are a country of laws, ruled by laws and not by the 
whim of any person or any five people. It is a set of laws. It is a 
Constitution. That is what rules in this country.
  It is my hope that Judge Roberts and any nominee to the Supreme Court 
would be faithful to the role originally intended for the courts by the 
Framers of the Constitution. In our system of government, the 
Constitution contemplates that Federal courts will exercise--this is 
very clear within the Founders--limited jurisdiction. The Federal court 
is to be a limited jurisdiction court. They should neither write nor 
execute the laws but simply ``say what the law is,'' as former Chief 
Justice Marshall stated in Marbury v. Madison.
  As Alexander Hamilton explained, this limitation on judicial powers 
is what would make the Federal judiciary the ``least dangerous 
branch.'' In his view, judges could be trusted with power because they 
would not resolve divisive social issues, short circuit the political 
process, or invent rights which have no basis in the text of the 
Constitution. That was simply not the role of the courts. They were 
simply to say what the law is, not to write it, not to execute it.
  The expanded role assumed by the Supreme Court in recent years--and 
in Federal courts generally--makes it all the more important that Judge 
Roberts exhibit proper respect for the restrained role of the Federal 
courts in American Government. I hope the confirmation process 
demonstrates that he will live up to the President's ideal of 
nominating individuals who will refrain from making law on the bench.
  This is a big issue in society today. People want to have 
legislatures to make laws. That is what we do. They want to have 
executive branch to execute. That is what they do. And the Court simply 
says what the law is. It does not write it.

  Speaking of the confirmation process, I will say a few words about 
what to expect in the days ahead. Judge Roberts hardly had a chance to 
step before the cameras last night before interest groups had attacked 
him. MoveOn.Org attacked Roberts as a ``right-wing corporate lawyer and 
ideologue.'' NARAL Pro-Choice America blasted Roberts immediately as an 
``anti choice extremist,'' urging him to ``help save the Supreme Court 
from President Bush.''
  Even though Judge Roberts was approved as a DC Circuit Court judge in 
2003, 2 years ago, without objection, and received the vote of Ranking 
Member Leahy in the Judiciary Committee at that time as well, the 
interest groups immediately came out, before a word was said, even 
before the President presented him to the public, and made these sorts 
of characterizations of Judge Roberts. It is not right. It is not the 
process we should follow. We should look to the record of the 
individual and we should hold open and in-depth hearings. But there 
should not be these sorts of characterizations. These statements smack 
of personal attacks and litmus tests and are not becoming of a serious, 
openminded debate on the nominee.
  I hope my colleagues resist the demands from these outside groups for 
knee-jerk opposition to Judge Roberts. We should instead live up to the 
tradition of careful, considered debate, which is the heritage of this 
great institution. Our deliberation on this nomination should be 
respectful and it should focus on substance.
  It would be a tragedy for this body, and for the Republic, if the 
confirmation process for Judge Roberts reflects the treatment some of 
President Bush's nominees to this point, including Roberts himself in 
looking to be a circuit court nominee, have received. Judge Roberts' 
pleasant demeanor should be matched by civil treatment in the Judiciary 
Committee and on the Senate floor.
  Finally, neither filibusters nor supermajority requirements have any 
place in the confirmation process. Those tactics of obstruction should 
become the historical relics they deserve to be. The country deserves, 
and the Constitution demands, a prompt, thorough debate, and a fair up-
or-down vote on Judge Roberts' nomination to the Supreme Court. I look 
forward to being an active participant in that process and also to 
having this debate about the role of the courts in American society and 
American Government today. I think it is important that we have those 
debates. This is an eminently qualified nominee. He deserves fair 
treatment and a fair up-or-down vote.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Talent). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. COLEMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COLEMAN. Mr. President, the nomination of a Justice to the 
Supreme Court of the United States is a solemn and momentous occasion. 
Our Constitution is the rarest of political documents in human history. 
Those individuals who are appointed for life to be its stewards and 
interpreters are extremely important to our future.
  Each Court is made up of nominees from different political eras, 
shaped by unique forces and ideas. It is the dialog among the senior 
Justices and the new ones, those nominated by Democrats and 
Republicans, and all the backgrounds represented, that gives the Court 
its legitimacy and dynamism.
  The PRESIDING OFFICER. The time designated for the majority has 
expired, unless the Senator gets unanimous consent for additional time.
  Mr. LEAHY. Mr. President, reserving the right to object, how much 
time would the Senator be seeking? The only reason I ask is we are 
having a major hearing in Judiciary right now and we are trying to work 
it out based on the time that had been allotted.
  Mr. COLEMAN. No more than 7 minutes. I can probably do it in 5.
  Mr. LEAHY. Mr. President, I am worried about that hearing. Let's do 
this. I want to accommodate my colleague. I ask unanimous consent that 
he be allowed to continue for 5 minutes, but that the time not come 
from the time reserved for the Democratic side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COLEMAN. Mr. President, I thank the Senator for that opportunity.
  When the Court begins its term in October, we will include nominees 
spanning seven administrations and people shaped by events from 
Watergate to September 11 and beyond.
  The Founders invested the President with the power to make 
nominations to the Federal judiciary and gave the Senate the role of 
providing advice and consent with respect to any nominee.
  I am pleased that after extensive and unprecedented consultation with 
the Senate, President Bush announced Judge John Roberts as his nominee 

[[Page S8507]]

be the next Associate Justice of the Supreme Court, filling the vacancy 
left by Justice O'Connor.
  Judge Roberts has a distinguished record and extensive experience. 
Judge Roberts graduated summa cum laude from Harvard University and 
Harvard Law School.

       Judge Roberts clerked for Judge Henry Friendly on the 
     Second Circuit and later for Justice William Rehnquist at the 
     Supreme Court. After his clerkships, he served in the 
     Department of Justice as associate counsel to President 
     Ronald Reagan before going into private practice.

  After 3 years in private practice, Judge Roberts returned to the 
Department of Justice as Principal Deputy Solicitor General, a position 
in which he briefed and argued a variety of cases before the Supreme 

  Judge Roberts reported favorably out of the Senate Judiciary 
Committee by a vote of 16 to 3, and he was confirmed by the Senate for 
the DC Circuit Court of Appeals by a voice vote. The Presiding Officer 
and myself were there at that time. By unanimous consent this judge was 
  I look forward to learning more about the nominee's views on the 
proper role of the judiciary at his confirmation hearings, as well as a 
thorough floor debate in which all are heard.
  Again, and above all, Judge Roberts' nomination should be handled 
with the utmost dignity and respect, which the position he has been 
nominated to deserves. The fact that the nominee is a person of 
character and integrity will add to the tenor of the proceedings.
  The nominations process needs to be fair, including a fair hearing, a 
floor debate in which all views are heard, and then an up-or-down vote 
on confirmation, so he can be sitting on the Supreme Court when the 
term begins in October of this year.
  Judges are like umpires. They should be neutral. We trust them not to 
pick sides before the game begins but to fairly apply the rules. We 
should measure our nominees on whether they will give all parties a 
fair shake and consider the merits of every dispute, not based on 
whether we like particular results.
  In carrying out my part in the Senate's role, I have always believed 
our Founding Fathers intended judges to interpret the Constitution 
rather than make law from the bench. The law needs to be stable and 
dependable, for the good of the whole society. I will continue to 
evaluate nominees based on whether they demonstrate competence, 
appropriate judicial temperament, and a commitment to the fair 
construction of our Constitution and our laws.
  It is important that the Senate act promptly so we have a nine-member 
Supreme Court in October when the new term begins. There is no reason 
why that should not happen.
  I commend the President for both his selection and the process he 
went through to make it. Sandra Day O'Connor has been a historic and 
wise figure on the Court. I hope her legacy of grace and class will 
extend to the process by which her seat on the Court will be filled. 
When Ronald Reagan appointed her, it changed our Nation for the better, 
and she has been a remarkably strong and influential figure even 
outside the confines of the Court.
  I am honored by the opportunity the people of Minnesota have given me 
to examine the President's nominee. I will render a judgment on the 
President's choice with the values and expectations of Minnesotans in 
mind. It is an exciting time for this country to reexamine our 
constitutional processes and democratic institutions and come together. 
I think that is important. We have a unique opportunity to come 
together and have a dignified process, not to be pulled by special 
interest groups that will try to dictate what we should do based on 
their beliefs rather than what is good for the country. What is good 
for the country is to have a process in which we examine the character 
and integrity and judicial temperament of a candidate, not their 
position on a particular case. If you look at the history of Judge 
Roberts, who was in the Solicitor General's Office, he argued cases 
there; he did his job. Folks will say he argued that the Supreme Court 
doesn't require taxpayers to pay for abortions. They will point to a 
case where he defended U.S. law to protect the American flag. He was 
doing his job and he did it well. We should be looking at whether he 
did it well.
  I commend the President on his choice and look forward to a 
confirmation process of dignity, respect, and commitment to the best 
interests of our Nation a generation into the future.
  We pride ourselves on being the greatest deliberative body in the 
world. This is our moment to show that to the country and the world. 
Let us do it right.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont is recognized.
  Mr. LEAHY. Mr. President, I ask unanimous consent that, in light of 
the additional 5 minutes on the other side, 5 minutes also be added to 
the time on this side.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I thank the distinguished Presiding Officer.
  Mr. President, capping days of public speculation that maybe the 
President would appoint Judge Edith Clement or Attorney General Alberto 
Gonzalez or any number of other people, the President made a dramatic 
evening announcement of his intention to nominate Judge John Roberts to 
succeed Justice Sandra Day O'Connor on the U.S. Supreme Court.
  The President called Senator Frist, Senator Reid, Senator Specter, 
and myself last night before this announcement to discuss it. I 
appreciated his call and the reasons he gave for the nomination. As I 
said to him last night, he has done his part of the equation, a very 
important part as President. He nominates the Justice. It is 
interesting that, in a nation of 280 million Americans, only 101 of us 
get a chance to actually have a say in who is going to serve on the 
Supreme Court, a person who is there to protect the rights of all 
Americans on the one body that is to be the ultimate check and balance 
in our Government. Of the 101, first, of course, is the President 
making the nomination. But then the 100 men and women in the Senate 
have an awesome responsibility to the rest of the Nation in how we 
vote. That is our job. The Senate has to fulfill its constitutionally 
mandated duty to ensure those who receive lifetime appointments to our 
highest Court will protect the rights and liberties of all Americans--
not those of just one political party or the other but of all 
Americans--that they will uphold our Constitution and our laws and that 
they will be impartial in their judicial approach.
  As I said, the President has announced his choice. Now we in the 
Senate have to rise to the challenge and get to work. To fulfill our 
constitutional duties, we need to consider this nomination as 
thoroughly and carefully as the American people expect and deserve. 
That is going to take time. It will take the cooperation of the nominee 
and the administration. It will require Republicans, as well as 
Democrats, to take seriously our constitutional obligations on behalf 
of all the American people, not just a select few. I will say similar 
things to Judge Roberts when I meet with him later today.
  Justice O'Connor serves as a model Justice. She is widely respected 
by America as a jurist with common sense and practical values who 
brought no agenda from the far left or the far right. She did not 
prejudge cases. She cast the critical deciding vote in a number of 
significant cases. Her legacy of fairness is one that all Americans 
should want to see preserved. For 24 years on the Supreme Court, she 
has tried to decide cases fairly and with an open mind. I thank her for 
her service to the country and her graciousness in agreeing to serve 
until her successor is considered and confirmed by the Senate and 
appointed by the President.
  I regret that some on the extreme right have been so critical of her 
and so adamantly opposed to a successor who shares her judicial 
philosophy and qualities. Their criticism reflects their own 
narrowmindedness and biased agenda. I regret that they have taken out 
ads and gone on the news trying to tarnish her record. Frankly, the 
American people know better, and nothing will tarnish the record of the 
first woman Justice of the U.S. Supreme Court.
  I have noted that our neighbor to the north, Canada, a country that 
is only an hour's drive from my home in

[[Page S8508]]

Vermont, also has a supreme court with nine members, but four of them 
are women, including the Canadian chief justice. I look forward to the 
time when the membership of the U.S. Supreme Court is more reflective 
of America as Canada's supreme court is more reflective of that 
  I know Hispanics across the country are disappointed the President 
has missed this extraordinary historic opportunity to pick a candidate 
who will make the Court more diverse. I hope he will consider that in 
future nominations.
  There was no dearth of highly qualified individuals who could have 
served as unifying nominees while adding to the diversity of the 
Supreme Court. Reports last week mentioned Judge Sonia Sotomayor of the 
Second Circuit and Judge Edward Prado of the Fifth Circuit. Certainly 
these are the kind of candidates worthy of consideration.
  Judge Sotomayor was first appointed to the Federal court by President 
George H.W. Bush, the President's father. Judge Prado was first 
appointed by President Reagan and elevated to the circuit by the 
current President Bush. They are among the people who should be 
considered. There are many outstanding Hispanic judges and African-
American judges who could have added to the diversity of the Supreme 
Court and made it more representative of all Americans.
  Last week, Chairman Specter and I spoke about our interests in having 
the President consider nominees from outside what I call the ``judicial 
monastery.'' I believe their life experience is important and that the 
Supreme Court could have benefited from someone with experiences that 
were not limited to those of a circuit judge. Certainly, this is a 
consideration the President should make if he has further nominees. I 
wish he had done so with this nomination.
  So now, however, the nomination has been made. The President has 
spent several weeks in determining who he wants. He has made his 
selection. Now it is the Senate's turn to decide what we will do. Above 
all, we in the Senate need to ensure that the Supreme Court remains 
protective of all Americans' rights and liberties from government 
intrusion and that the Supreme Court understands the role of Congress 
in passing legislation to protect ordinary Americans from abuse by 
powerful special interests.
  No one is entitled to a free pass to a lifetime appointment to the 
Supreme Court, whether nominated by a Democrat or by a Republican. And 
there are far different considerations for the Supreme Court than there 
are for circuit courts. How the nominee views precedent, what the 
nominee regards as settled law, how the nominee will exercise the 
incredible power of a Supreme Court Justice to be the final arbiter of 
the meaning of the Constitution--all of these raise very different 
considerations than those for a lower court nominee. In addition, a 
nominee coming from the appellate bench will have a record there in 
votes and opinions and performance that will provide important 
additional insights into his likely tenure as a Supreme Court Justice.

  We have to take the time to evaluate this nominee for a lifetime 
position on the Supreme Court. After all, if confirmed, Judge Roberts 
could be expected to serve to the year 2030 or 2040. So we have to have 
time to perform due diligence on Judge Roberts' record and judicial 
philosophy. The Senators on the committee have to have time to prepare 
for fair and thorough hearings. I ask all Senators to be mindful of the 
Senate's fundamental role in this process. The Americans put us all 
here to do an important job, and it is critical that we treat that 
responsibility with the seriousness and respect it deserves.
  I start, as I always have, from the premise that the Supreme Court 
should not be a wing of the Republican Party or a wing of the 
Democratic Party. It has that responsibility not only to all 280 
million Americans but also to millions and millions of future 
Americans. The independence of the Federal judiciary is critical to our 
American concept of justice for all. The Supreme Court provides a 
fundamental check in our system of government. We have to ensure that 
it serves as a bulwark of individual liberty against incursions or 
expansions of power by the executive branch. We also have to ensure 
that the Supreme Court respects the role of Congress when it acts to 
protect Americans from those with great power, to improve their lives 
with environmental laws, and by reining in powerful special interests.
  We know that the current Supreme Court is the most activist Supreme 
Court in my lifetime. Time and time again, they have set aside 
congressional laws, some of long standing, and basically written new 
laws of their own. There was a time when my friends on the other side 
of the aisle were very opposed to the idea of an activist Supreme 
Court. Now we find that two of the heroes of the right are the most 
activist members of the current Supreme Court, Justice Thomas and 
Justice Scalia.
  Ours is a nation based on the rule of law. The test of a good judge 
is his or her ability to apply the law fairly. As I evaluate candidates 
for lifetime appointments that often span not merely years but decades, 
I want to make sure that everybody who comes before the Court can look 
at that Justice and say: I can be treated fairly no matter who I am, no 
matter what political party I belong to, no matter what my station in 
  They are going to be there a long time. Justice O'Connor served for 
24 years. Chief Justice Rehnquist has served for 34 years. Since 1970, 
the average term has been 25 years. So we are considering a nomination 
not just for the period remaining in the Bush administration, which is 
going to end in 2008, but for our children's and grandchildren's 
futures, 2030 and beyond.
  This nomination fills the seat that Justice O'Connor occupied while 
serving as the ``swing'' or decisive vote in so many cases, and if her 
successor does not share her judicial philosophy, that replacement 
could radically change the Court in the way our Constitution is 
  It is critical we not prejudge a nominee and that the Judiciary 
Committee be accorded the time to develop a full record on which 
Senators can base an informed judgment. I was disappointed to hear 
somebody say last night: Why can't we move immediately to the hearings? 
Come on, the American people would justly feel on something such as 
this that their rights have been shortchanged.
  I look forward to working out agreements with Chairman Specter on 
procedures to allow the kind of thorough consideration that a nominee 
to a lifetime appointment to the Supreme Court deserves, and I know 
Chairman Specter feels the same way.
  A preliminary review of Judge Roberts' record suggests areas of 
significant concern that need exploration. We have to consider his 
service on the circuit court, even though that is quite limited. We 
need to understand how he will exercise judicial power.
  An independent study--and I referred to this earlier--demonstrated 
that the Rehnquist Court has been the most activist Court in my 
lifetime in overturning congressional enactments and restricting 
legislative authority--actually the most activist since before the New 
Deal. The most activist members, of course, as I said earlier, are 
Judge Thomas and Judge Scalia. We need to know what kind of Supreme 
Court Justice John Roberts would be.
  When I talked with the President, I said I hoped that they would 
cooperate so that all relevant matters can be constructively explored 
as we begin this important process. When I meet with Judge Roberts 
today, I will ask for his cooperation. After all, the Constitution 
speaks of advise and consent. It does not speak about nominate and 
rubberstamp. That, incidentally, is a position I have taken whether it 
has been a Democrat or a Republican on the Supreme Court.
  I look forward to hearings that will inform the Senate and the 
American people in making the Senate's confirmation decision. I have 
been here for hearings and to vote on all nine members of the Supreme 
Court and for one other who did not make it. Presidents come and go. 
Senators come and go. The Supreme Court Justices tend to be there a lot 
longer than all of us. I want to make sure we do our job the right way.
  Mr. President, I know there are other members of the Senate Judiciary 
Committee who wish to speak. In fact, I see the member of the committee 
who has either presided over or been present for

[[Page S8509]]

more Supreme Court nominations than any Member now serving in the 
Senate. I yield to the distinguished senior Senator from Massachusetts.
  The PRESIDING OFFICER. The Senator from Massachusetts is recognized.
  Mr. KENNEDY. Mr. President, I thank my friend and colleague from 
Vermont. Listening to Senator Leahy reminded us that the Judiciary 
Committee is in good hands, with Senator Specter and Senator Leahy 
ensuring we are going to have a fair, open, transparent, and timely 
hearing, the way the American people deserve. We thank him for his 
continued service on the Judiciary Committee and for how he is 
developing this whole process. It is going to be done with great 
dignity. I thank Senator Leahy.
  Mr. President, the nomination of John Roberts to the Supreme Court 
comes at a time of heated debate and great division in America--a 
debate that is reflected in the deliberations of a Supreme Court in 
which his vote--just like Justice O'Connor's--will affect the freedoms 
and liberties of Americans on vital questions before the country.
  I will not prejudge the President's nominee. And I will not decide 
whether to support or oppose him based on any single issue.
  What all Americans deserve to know is whether Judge Roberts respects 
the core values of the Constitution and falls within the conservative 
mainstream of America, along the lines of Justice Sandra Day O'Connor.
  That is the issue, and I look forward to asking the important 
questions that are on the minds of Americans as they consider his 
nomination to our Nation's highest court.
  Supreme Court nominations involve far more than the hotly-debated 
social issues so often discussed in the media. Presidents have 4-year 
term. Senators serve for 6 years. But Supreme Court Justices serve for 
life, without ever having to face the electorate. Our decision whether 
to confirm a Supreme Court nominee affects the rights and freedoms not 
only of our generation, but those of our children and grandchildren as 
  The Court's decisions affect whether employees' rights will be 
protected in the workplace. They affect whether families will be able 
to obtain needed medical care under their health insurance policies. 
They affect whether people will actually receive the retirement 
benefits that they were promised. They affect whether people will be 
free from discrimination in their daily lives. They affect whether 
students will be given fair consideration when they apply to college. 
They affect whether persons with disabilities will have access to 
public facilities and programs. They affect whether we will have 
reasonable environmental laws that keep our air and water clean. And 
they affect whether large corporations are held accountable when they 
injure workers and consumers.
  Each of these issues--and many others--has been addressed by the 
Supreme Court in recent years. In many of these cases, the Court was 
narrowly divided, and these issues are likely to be the subject of 
future Court decisions in the years to come.
  Because so much hangs in the balance, Supreme Court nominees have a 
heavy burden to show that they will uphold justice for all. They must 
demonstrate a core commitment to preserving equal protection of the 
laws, free speech, workers' rights, and other individual rights. 
Americans deserve to know if nominees will be on the side of justice 
and individual liberties, or if they will side with powerful special 
  The Senate's role will be to establish clearly whose side John 
Roberts would be on if confirmed to the most powerful court in the 
land. Because Judge Roberts has written relatively few opinions in his 
brief tenure as a judge, his views on a wide variety of vital issues 
are still unknown. What little we know about his views and values lends 
even greater importance and urgency to his responsibility to provide 
the Senate and the American people with clear answers.
  The key question is whether he will uphold core constitutional and 
statutory principles.
  For instance, in a case involving the ability of Congress to protect 
the environment, he issued an opinion with sweeping implications not 
just for the environment, but for a host of other important 
protections. In it, Judge Roberts questioned the settled interpretation 
of the commerce clause--the constitutional provision that is the 
foundation for not only the environmental laws that protect our natural 
heritage and ensure that we have clean air and clean water in our 
communities, but also for Social Security, Medicare, the minimum wage, 
and many other important national protections. I can imagine few things 
worse for our seniors, for the disabled, for workers, and for families 
than to place someone on the highest court in the land who would put 
these protections at risk.
  If applied in other cases, Judge Roberts' view could severely 
undercut the ability of Congress to respond to real challenges facing 
our nation. His decision raises questions about whether he would roll 
back a host of other laws protecting civil rights, workers' rights, 
civil rights, and even many of our federal criminal statutes.
  I believe that most Americans would agree that we should not re-fight 
the civil rights battles of the past. The spirit of America is to move 
forward to greater opportunity--not return to the days of second class 
citizenship for many. Too many of our fellow citizens over many 
generations have sacrificed everything--including their lives--so that 
others can fully enjoy the fruits of our liberties and freedoms. They 
have given their all for the rights of people of color, of women, of 
the disabled, of immigrants, of workers, of senior citizens, and so 
many who make up the vibrant American fabric that makes our nation the 
envy of the world.
  So it is important to know where Judge Roberts stands on this great 
question of opportunity and justice for all.
  The significance of the constitutional principles at issue is clear 
from the comments of other judges who serve in the same court as Judge 
Roberts. They noted that the constitutional provision he questioned not 
only is the basis of many of our civil rights laws, but also underlies 
important product safety laws and environmental legislation.
  Judge Roberts urged the full court to review the panel decision to 
reconsider the established interpretation of the commerce clause in the 
Rancho Viejo v. Norton case.
  Let me be clear. I do not prejudge Judge Roberts's nomination based 
on his decision in this case or any other. Nor should anyone else. But 
we must not fail in our duty to the American people to responsibly 
examine Judge Roberts' legal views.
  Other aspects of Judge Roberts's record also raise important 
questions about his commitment to individual rights. He has opposed 
programs to guarantee equal opportunity. He opposed the right to 
privacy and argued to overturn Roe v. Wade, saying the case is 
``wrongly decided'' and ``finds no support in the text, structure or 
history of the Constitution.'' As a private attorney, he represented 
coal companies against workers' rights. He sought to limit every 
American's right to a lawyer by arguing to narrow the Supreme Court's 
core precedent in Miranda v. Arizona.
  Judge Roberts represented clients in each of these cases, but we have 
a duty to ask where he stands on these issues. I don't prejudge them, 
but the American people deserve to know more.
  I join my colleagues in the hope that the process will proceed with 
dignity. But the nominee will be expected to answer fully, so that the 
American people will know whether Judge Roberts will uphold their 
rights. Anything less would make the Senate a mere rubberstamp in 
Supreme Court nominations.
  In recent days, some have suggested that the Senate should not ask 
full questions about the nominee's legal views and judicial philosophy. 
The President made clear that he would consider judicial philosophy in 
choosing a nominee, and the Senate should not turn a blind eye to that 
  When Justice Thurgood Marshall was nominated to the Supreme Court in 
1967, I said that Senators should not vote against him just because 
they don't agree with him on every issue. But that is different from 
saying we should not consider judicial philosophy at all. Particularly 
today, when philosophy is important to the White House in choosing 
nominees, Senators should consider it as well.

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  To be clear, here is what I said in 1967:

       I believe it's recognized by most Senators that we are not 
     charged with the responsibility of approving [justices] if 
     [their] views always coincide with our own . . . We are 
     really interested in knowing whether the nominee has the 
     background, experience, qualifications, temperament, and 
     integrity to handle this most sensitive, important, and 
     responsible job.

  But if someone would clearly fail to uphold basic rights, that should 
be considered and the Senate is entitled to know.
  There are few debates more important than this one, and I look 
forward to considering this important nomination.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Isakson). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.