EXECUTIVE SESSION; Congressional Record Vol. 151, No. 123
(Senate - September 28, 2005)

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[Pages S10529-S10578]
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                           EXECUTIVE SESSION



  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to executive session and resume consideration of 
Calendar No. 317, which the clerk will report.
  The assistant legislative clerk read the nomination of John G. 
Roberts, Jr., of Maryland, to be Chief Justice of the United States.
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
from 10 a.m. until 11 a.m. will be under the control of the majority 
leader, or his designee.


  The ACTING PRESIDENT pro tempore. The majority leader is recognized.


  Mr. FRIST. Mr. President, today the Senate resumes consideration of 
the nomination of John Roberts to be Chief Justice of the United 
States. Tomorrow at 11:30 we will vote on this nomination. Again, I 
remind all Senators to be at their desks for that vote. This is among 
the most significant votes that most of us will cast in our Senate 
careers, the approval of the nomination of Chief Justice of the United 
States. We ask Senators to come to the Chamber around 11:20 to be 
seated for the 11:30 vote.
  Following the confirmation on Judge Roberts, the Senate will take up 
the Defense appropriations bill. Senators should expect votes on 
Thursday, and we will be voting on Friday on the appropriations bill or 
any other legislative or executive items that are cleared for action.
  I was talking to the Democratic leader to make sure that we are 
voting on Friday of this week.
  We also have a continuing resolution that we must act on this week 
before the end of the fiscal year. Therefore, I ask that Senators 
adjust whatever plans they have for the weekend or for Friday to 
recognize that we will be voting. We will not be voting on Monday or 
Tuesday in observance of the Jewish holiday. But the Senate will be in 
session to conduct business and discussing amendments. Those amendments 
will be stacked for votes on Wednesday. We will notify Senators as to 
what time that will be. I encourage Senators to come forward and offer 
their amendments as early as possible so we can vote on Wednesday.

                         Pandemic Preparedness

  Mr. President, on another issue, an important issue--we have so much 
going on in this body with the appropriations bills, and the nomination 
coming forward, and that is going very well in terms of the discussion 
on both sides of the aisle. But there are many other issues as well.
  I want to focus for a few minutes on an issue I do not believe is 
receiving the attention it deserves given the risk that is before us.
  Yesterday, I sent a letter to Health and Human Services Secretary 

[[Page S10530]]

Leavitt regarding our Nation's pandemic preparedness. The H5-N1 avian 
influenza--the name of this particular strain of virus--has spread from 
Southeast Asia to Russia. It is spreading across the world.
  If you look at a map and look at that spread, it gives you real 
pause--and it should. It threatens to land in Europe. Although you 
can't say with certainty as you look at that picture of the globe and 
you see that spread, it will next be in Europe and America, although we 
don't know what that order will be.
  It has infected more people and more poultry than any previous 
strain. If you look at the animal population--it is called the avian or 
bird influenza--it has caused the death or destruction of not just a 
few million but 160 million birds. That includes what is called the 
``culling'' that goes on. But 160 million birds have died as a result 
of this influenza.
  It has jumped from animals, the birds and other animals, actually, 
with a genetic shift to humans. People ask, How many humans have been 
infected? We do not know exactly, but we have documented 115 confirmed 
human cases of this particular H5-N1 influenza.
  How fatal is it? It is fatal. The mortality rate is very high. Fifty-
nine people out of the 115 confirmed cases died from this particular 
virus. It has a very high mortality rate.
  Just this week, Indonesian health officials reported that yet another 
person--a young woman age 30--has died from the virus. This follows 
last week's deaths of two young girls and a boy with very similar 
symptoms in Jakarta and Samarinda. Since last Monday, Indonesia has put 
itself on an ``extraordinary incident'' status.
  Experts warn that a global cataclysmic pandemic is not a question of 
if but when. Like an earthquake, or like a hurricane, it can hit any 
time. When it does, it could take the lives of tens of millions of 
  People ask, Is that an overstatement? I don't believe it is. You only 
have to go back and look at the history. This August, I spent a great 
deal of time talking to experts around the country on the H5-N1 
influenza virus. In Tennessee, over in Memphis, there is St. Jude's 
Children's Research Hospital. There is a group of researchers there who 
probably know more about this particular strain than anybody in the 
world, led by Dr. Robert Webster at the St. Jude's Children's Research 
Hospital. He is one of the leading experts of the H5-N1 strain.
  He explained in very clear terms that there are 16 families of the 
avian influenza. Billions of mutations of the virus are occurring every 
day. It is constantly changing, constantly adapting. With each of these 
little mutations, the virus multiplies its odds of becoming 
transmissible from human to human. It is changing up, to be spread 
throughout the bird population to the human population. And with just 
one little, tiny change, it can be transmitted person to person to 
person. It is a little bit like pulling the lever on a Vegas slot 
machine over and over again. If you pull it enough times, the reels 
will align and hit the jackpot. In this case the jackpot is a deadly 
virus to which humans have no natural immunity.
  It is very important right now. Nobody listening to me has a natural 
immunity to this particular virus. Infected hosts are contagious before 
they are symptomatic. In other words, anyone walking around who is 
infectious can spread the disease. They may not have any symptoms. The 
virus would thus have ample opportunity to spread rapidly throughout 
the population before it could be detected or appropriately contained--
but not symptomatic. You don't know whether it can be contained or know 
to stay away from people.
  To make matters worse, we lack our best defense. People say, If it 
does happen, surely in America or in the world today we have a vaccine, 
and we have a robust antiviral stockpile. If you think you are 
disposed, or if you are a physician or health personnel and go into a 
community to treat it, do we have enough of the antiviral pill which 
you can take that will protect you? The answer is no.
  This particular antiviral pill is Tamifly. I will mention that 
  We don't have enough today for first responders, or doctors and 
nurses who would be taking care of you. The United States of America--
the richest country in the world, and the most advanced country in the 
world--is unprepared in terms of the number of vaccines to treat, as 
well as the initial antiviral pill or therapy to treat. We do not have 
enough doses of the antiviral Tamifly. It is a drug which is effective 
today in the treatment of this particular strain. We have enough to 
treat about 2 million people--a little over that, 2.3 million people. 
We have 295 million people in this country and we can treat about 2 
million people--and then that is it.
  There is only one company located in the United States that produces 
the influenza vaccine--not the Tamifly, but the vaccine itself. In 
contrast, Britain, France, and Canada have tens of millions of doses on 
order--that is the Tamifly, the antiviral agent. We have 2 million. 
They have tens of millions in Britain, France and Canada.
  Where does the Tamifly come from? It comes from Switzerland. That is 
where the manufacturing facility is located.
  With our weakened domestic manufacturing capacity in this country for 
both something like Tamifly but especially vaccines--we do not have 
manufacturing plants to do it--it makes us dangerously dependent on 
other countries and foreign sources.
  If there is an outbreak in that country and the manufacturing plant 
is there, it is very unlikely they will send doses to the United States 
of America.
  The vaccine testing today indicates that an H5-N1 vaccine is safe and 
able to generate a robust immune response in healthy adults. That is 
good. That shows real progress. This data is preliminary, but it 
represents a very positive step that progress is being made. That is an 
important first step, however, and this is the key: It would take 6 to 
9 months to produce 180 million of what are called monovalent vaccines. 
If this virus did have that transmission ability, it would be traveling 
and ravaging our population with no vaccine available. Two doses are 
required. We could make 180 million. That is enough to treat 90 million 
people in 9 months. It would take at least a full year to produce 
enough vaccine for the entire country. By that time, because this virus 
can be transmitted or could be transmitted so easily, the risk is that 
tens of thousands could die.
  Some ask, why do I use such high figures? We do have a historical 
precedent. Look back to 1917 and 1918 and the Spanish flu. That 
pandemic killed not just tens of thousands but 40 million people 
worldwide. The Spanish flu virus killed 40 million people worldwide, 
the majority of whom were kids, children, and young adults between the 
ages of 10 and 35.
  Vaccines were available for the 1957 and 1968 flu pandemics, but they 
arrived too late and 104,000 people died in the United States alone.
  Dr. Hitoshi Ashitani at the World Health Organization warns this time 
around the avian flu virus may be impossible to contain. The geographic 
spread is historically unprecedented.
  So people ask: Well, why are you giving us, Senator Frist, all this 
bad news? What can and should be done? In my letter sent to Secretary 
Leavitt--and I had the opportunity to discuss it with him a little bit 
last night--I did ask him to finalize the agency's Pandemic Influenza 
Response and Preparedness Plan. We need a coordinated, comprehensive, 
aggressive plan which draws on public health and homeland security, 
foreign policy and defense expertise.
  The plan should serve a dual purpose: First, to detect, identify, 
contain, and respond to threats abroad; and, No. 2, to bolster domestic 
preparedness and response capacity. I also urged the Secretary to 
purchase enough additional Tamifly to treat a large portion of the U.S. 
  These are critical first steps, but we have to do a lot more. We need 
to develop a bold vision of how to address this in future threats--
whether they are biological weapons or infectious disease, whether they 
are natural, whether they are accidental, or whether they are 
  That is why earlier this year I called for a Manhattan Project for 
the 21st Century to launch an unprecedented collaboration among the 
Federal Government and industry and academia. We must encourage and 
support advanced support and development into

[[Page S10531]]

prevention and treatment. We must enable the detection, the 
identification, and containment of any emerging or newly emerging 
threat. And we must ensure our domestic ability to manufacture, 
distribute, and administer the treatments needed to protect the 
American people. This should be a central focus of our national 
  As I mentioned in opening, there is a lot going on in our response to 
natural disaster today. But we need to keep the focus, as well, on the 
potential for this pandemic. Failing to do so risks the public health 
and our national security.
  In May 2004, the Senate passed Project BioShield and shortly 
thereafter President Bush signed it into law. Project Bioshield builds 
on the Bioterrorism Preparedness Act of 2002 and strengthens our 
Nation's defenses against the threat of anthrax, botulism, smallpox, 
Ebola, or plague, as well as a radiological fallout from a potential 
terrorist attack.
  Building on the goals of Project BioShield, the leadership has 
introduced the Protecting America in the War on Terror Act of 2005 
earlier this year. I applaud my colleague for the steps we have taken 
thus far, and I applaud them for their continued leadership. But we 
have much more to do. More work remains to be done. We are in a race 
against time, and unlike the flu pandemics of the 20th century, we have 
been warned.
  I urge my colleagues to join me in this effort to protect the health, 
well-being, and security of the American people.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Vitter). The Senator from the great State 
of Florida.
  Mr. NELSON of Florida. Mr. President, I ask unanimous consent I be 
allowed to speak as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                              Coal Energy

  Mr. NELSON of Florida. Mr. President, I have stated that each day we 
are in session I am going to try to rise in the Senate to speak about 
the dependent condition we find ourselves in on foreign oil. Some 58 to 
60 percent of our daily consumption of oil comes from foreign shores. 
This is not a good position for the United States. No matter how much 
we sounded the alarm bells over the past several years, it is hard to 
shake the powers that be out of our collective lethargy, to break this 
stranglehold that oil has running through our economy. And it has led 
us to our dependence on oil for well over a majority of our daily 
  That is not a good position to be in for the defense of our country's 
interests where we have to protect the free flow of oil to all of the 
very oil-thirsty world. A lot of those sealanes coming out of the 
Persian Gulf region look to the United States for the military 
protection to keep those lanes open so oil can flow.
  Clearly, we ought to, after the reminder of Hurricanes Katrina and 
Rita, be on the journey quickly to weaning ourselves from the 
dependence on this oil. That means the collective will of this Nation 
to come together in a major project, like a Manhattan Project or an 
Apollo Project. In other words, the moonshot of this decade ought to be 
weaning ourselves from dependence on foreign oil, as going to the Moon 
as a result of the Apollo Project was to the decade of the 1960s.
  Each day I am going to try to chronicle a new technology so that we 
can do that. Today I will talk about coal gasification, specifically 
coal-based integrated gasification. It is otherwise called combined 
cycle technology.
  Our Nation has an abundance of coal. The United States has the 
largest proven coal reserves of any Nation in the world. At the current 
production levels, U.S. coal reserves should last over the next 250 
years. That is the good news; the bad news is coal's high carbon 
content relative to other fossil fuels so that in the burning of it, it 
releases significant quantities of carbon.
  Right now, coal combustion, the burning of coal, accounts for more 
than one-third of the world's carbon emissions. Those emissions in the 
air is what we do not want.
  I will never forget being in Beijing, China, in the year 1981 in the 
dead of winter, January of that year. The city of Beijing was shrouded 
in black smog that was a result of the coal dust settling over that 
city because the primary source of heat was the burning of coal, with 
no attention to the emissions that allowed all of those particulates to 
go into the air. The last time I visited Beijing, about 2 years ago, 
after the dead of winter, I must say they have cleaned up their 
environment quite a bit, but they still have a ways to go.
  We know the negatives with regard to burning coal. Now let's look on 
the positives; that is, coal gasification or coal-based integrated 
gasification combined cycle technology has much lower pollutant 
emissions, and it holds great promise. Only two such plants exist in 
the United States today. One of them is in my State of Florida. It is 
run by Tampa Electric Company. I commend TECO for being one of the 
leaders in this country. My State of Florida is going to have another 
IGCC plant--that is coal gasification--by 2011, through the Orlando 
commission and the Southern Company. I thank those two companies for 
being leaders.
  This is the technology: First, the coal is gasified using a chemical 
process rather than just the burning of coal to generate a synthetic 
gas--or what we call a syngas, synthetic fuels--that is mostly composed 
of hydrogen and carbon monoxide. Then that synthetic gas is used to 
fuel a combustion engine, a turbine, and the exhaust heat is employed 
to produce steam for power generation and for gasification. The process 
has the potential to be both cleaner and more efficient than just the 
burning of coal in a steam boiler which is done to make electricity, 
and it generates considerable waste heat in the traditional burning of 
coal that then leads to the release of a myriad of undesirable 
  In contrast, coal gasification isolates and collects nearly all of 
the impurities, including mercury and a large portion of the carbon, 
before the combustion. So those things are not going to be emitted into 
the atmosphere. The coal is gasified with either oxygen or air, and the 
resulting synthetic gas or syngas is cooled, cleaned, and fired in a 
gas turbine, and the hot exhaust from the gas turbine passes through a 
heat recovery steam generator where it produces steam that drives a 
steam turbine.
  Theoretically, the steam gasification process can be applied to any 
low-quality carbonaceous feedstock. The progress in developing this 
technology also raises interesting possibilities with respect to the 
future of biomass--either alone or in combination with coal--for 
electricity production. This has a lot of promise.
  This whole process, called IGCC, could also be utilized for something 
called polygeneration. That is co-producing other high-valued products 
in addition to electricity using gasification.
  Gasification could be used to produce ultraclean synthetic fuels from 
coal, and biomass. Carbon dioxide capture and storage would have to be 
developed to address the climate change issues coal-based synthetic 
fuels pose.
  But the long and short of it is, these synthetic fuels are inherently 
superior to crude-oil-driven hydrocarbon fuels. This would help us in 
the transition to more energy-efficient technologies, such as 
compression-ignition-engine hybrid electric vehicles.
  We could exploit our country's huge coal reserves in an 
environmentally responsible way. The economic and reliability 
challenges certainly still exist before these kinds of plants become 
more readily abundant. And the CO2 carbon capture and 
storage must be perfected.
  Those are all challenges we must meet. But it is a promising 
technology that would provide the United States with an alternative to 
electricity produced from natural gas and a way to set us on a course 
to wean ourselves from dependence on foreign oil.
  Mr. President, I will continue to speak out on all of the 
alternatives in which we can try to sever our dependence on foreign 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas is recognized.
  Mr. BROWNBACK. Mr. President, I rise to speak on the nomination of 
John Roberts to be Chief Justice of the United States. I speak about 
this at an exciting time for this country. This will be the 17th person 
to occupy this position. It is a rarity for this position to become 
available. I love this Nation.

[[Page S10532]]

I love the institutions of this Nation. More, I love the people of this 
  I know, as well, that John Roberts does too. I know from the time I 
have spent talking with him and hearing his comments, that he too loves 
this Nation. He loves the people of this Nation and he looks forward to 
its greater greatness into the future. I am looking forward to his 
  When the Frenchman, Alexis de Tocqueville, whom many of us quote 
often, visited the United States in the 1830s, he wondered how 
Americans could maintain a genuine representative government when the 
liberty they enjoyed would suggest that the average citizen would be a 
purely self-interested individual. If we were to give them pure 
liberty, they would, he believed, just pursue self-interests. So how 
could you have a government that would govern when everybody is focused 
on their self-interest?
  He was amazed to find what kept Americans joined together and with 
their government was what he called ``habits of the heart.'' By this, 
he meant that citizens often were concerned about the greater public 
good, along with their own narrow self-interests. So, while they had 
their own self-interests, their hearts pulled them to a greater public 
good and these ``habits of the heart.'' That led to their participation 
in political discourse, to be involved in their communities, and take 
care of their fellow citizens.
  Throughout our history, our ``habits of the heart'' have informed and 
driven America's conscience. The people knew the colonial system 
stifled freedom, so they rejected the British monarchy and ultimately 
ratified the U.S. Constitution. The people knew in their hearts that 
slavery was wrong, and that terrible institution was rightly brought to 
an end. It was difficult, and it was at a terrible cost. And the people 
knew that the legal promise of equal protection was empty without 
racial justice.
  Throughout the consideration of Judge Roberts' nomination, many of my 
colleagues have spoken about a particular issue that I want to discuss, 
and its impact and relationship to that habit of the heart. This 
particular issue, which is at the center of the debate for Judge 
Roberts, is the right to privacy. They also have demanded that Judge 
Roberts adhere in a few cherished cases to stare decisis, that is, the 
practice of letting a precedent stand for the sake of stability in the 
law, regardless of whether the precedent reflects the correct 
interpretation of the law.
  What is striking about this discussion is that it has not been 
illuminated by what Tocqueville saw in us long ago--those ``habits of 
the heart'' that make Americans aware of the greater good and of the 
justice due their fellows citizens.
  To explain what I mean, consider Judge Roberts' confirmation hearing. 
During the hearing, Judiciary Committee members spent a lot of time 
discussing section 2 of the Voting Rights Act. It was often mentioned 
that it was critical for Congress to enact a so-called effects test in 
order to eradicate discrimination in voting practices. Under this test, 
a neutrally worded law was to be struck down if it diluted the 
political preferences of minority voters, even if that effect was 
intentional. If there was an effect where it had a negative impact on 
voting for minority groups, it was to be thrown out, it was to be 
declared unconstitutional, it was a bad effect.
  It seems to me there is a broader lesson to be learned by discussion 
of an effects test. And I agree with that effects test in the Voting 
Rights Act; it is absolutely right. It seems to me there is a broader 
lesson to be learned about the effects test.
  During the debate on Judge Roberts, some have argued about whether he 
will vote to affirm or reject abstract legal principles, without really 
considering what the real effects of these principles have been. And 
when it comes to the right to privacy and stare decisis, the discussion 
of effects has been obscured, if not ignored altogether.
  The standard argument we have heard is that cases such as Roe v. Wade 
and Planned Parenthood v. Casey have established the right to privacy, 
and that such cases should be maintained for the sake of ``stability'' 
and ``settled expectations.'' Yet both our heads and our hearts tell us 
that these decisions deserve much more searching scrutiny. This is in 
part because we rightly resist insulated courts short-circuiting 
political debates. But it is also because we rightly believe that these 
decisions and doctrines have all-too-real effects.

  And so it is with the right to privacy. Some of my colleagues have 
argued that this right, which has been interpreted to guarantee a right 
to abortion, has been beneficial to women. They argue the right to 
abortion has ``freed'' them to pursue such goals as full participation 
in the workforce. But there are certain other effects of this right 
which should be identified, if we are to have an honest appraisal of 
what this right has accomplished, and what it has wrought.
  I have pointed out repeatedly that in the wake of Roe, 40 million 
children have been aborted in America--40 million souls who could have 
brightened our existence and made their contribution to the habits of 
the American heart. But even this general result of abortion's cold 
reality masks the specific costs of the Supreme Court's constitutional 
misadventure in Roe. For it has become clear in recent years that it is 
the so-called least among us, the disabled, who have paid a 
disproportionate price as a result of the right established in Roe and 
other cases.
  Let me give you some examples. According to recent numbers released 
in November of 2004 by the American College of Obstetricians and 
Gynecologists, over 80 percent of pregnancies involving a child with 
Down Syndrome were terminated ``by choice'' in the 1980s and 1990s--80 
percent. Again, that is ``by choice.'' According to the Centers for 
Disease Control and Prevention, out of over 55,000 pregnant women 
screened, 83 percent of unborn children are terminated after testing 
positive for cystic fibrosis. Finally, the CDC noted that for spina 
bifida and similar neural tube defects, at least 80 percent of 
pregnancies ``were electively terminated.''
  These particular numbers are astonishing, and not just because they 
represent the wholesale destruction of generations of unborn disabled 
children. What makes them painfully ironic is that this trend persists 
even in a society that has extended significant protections to the 
disabled once they are born.
  A prime example, of course, is the Americans with Disabilities Act of 
1990, which was an historic achievement. I applaud my colleagues, 
Senators Kennedy and Harkin, and my predecessor, Senator Bob Dole, for 
their important role in passing this milestone legislation.
  Deeming the protection of the disabled a ``human rights issue,'' the 
first President Bush called the ADA ``the world's first comprehensive 
declaration of equality for people with disabilities.'' His successor, 
President Clinton, stated on the ninth anniversary of the passage of 
the ADA that ``For too long, we have encumbered disabled Americans with 
paternalistic policies that prevent them from reaching their potential. 
But now, we endeavor to empower individuals with the tools they need to 
achieve their dreams.'' I would note that to dream, they have to be 
  In enacting the ADA, the Congress explicitly made the following 
finding, upon which one of the protections of the ADA was based:

       People with disabilities, as a group, occupy an inferior 
     status in our society, and are severely disadvantaged 
     socially, vocationally, economically, and educationally.

  In worthy fulfillment of the promise of the Declaration of 
Independence that ``all Men are created equal,'' the Congress issued in 
the ADA a ``clear and comprehensive national mandate for the 
elimination of discrimination against individuals with disabilities.'' 
There were not qualifiers for it. They did not say at certain places or 
points of time in life. They said this is a ``clear and comprehensive 
national mandate for the elimination of discrimination against 
individuals with disabilities,'' period.
  To enforce this mandate, Congress explicitly ``invoke[d] the sweep of 
congressional authority, including the power to enforce the Fourteenth 
Amendment and to regulate commerce, in order to address the major areas 
of discrimination faced day-to-day by people with disabilities.''
  The ADA establishes extensive protections for persons with 
disabilities. It

[[Page S10533]]

protects them when they seek employment; it protects them when they 
attempt to use government services; it protects them when they wish to 
use public transportation; it protects them even when they want to book 
a hotel room or seek access to a restaurant; it even protects the 
hearing-impaired and speech-impaired who want to share in the benefits 
of the revolution in telecommunications.
  Similarly, 30 years ago, Congress passed the Individuals with 
Disabilities Education Act, IDEA. In the act, Congress found, among 
other things, that ``[d]isability is a natural part of the human 
experience and in no way diminishes the right of individuals to 
participate in or contribute to society.''
  These are worthy and grand statements of inclusion and support to 
people with disabilities.
  The ADA and the IDEA demonstrate that the disabled need and deserve 
the protection of the law in order to fulfill their potential.
  Yet ironically, it is when the disabled are most vulnerable--indeed, 
completely voiceless--that our society leaves them completely 
unprotected. The laws offer no shelter to them before they are born. In 
this dangerous legal vacuum has stepped the Supreme Court. In 1973, 
just 2 years before enactment of the IDEA, the Court invented a right 
to abortion--a right which has proven lethal to legions of disabled 
Americans. And in a cruel jurisprudential twist, it was none other than 
the 14th Amendment, which Congress invoked in enacting the ADA, upon 
which the Supreme Court based the right to abortion.
  What does it say about our society that we refuse to acknowledge the 
damaging effects of Roe on the disabled? Where does the path lead when 
we ignore the habits of our hearts, which demand that we extend our 
compassion to these Americans? What have we become when we have 
jettisoned the unalienable right to life Thomas Jefferson found self-
evident in favor of the moral and legal quicksand of Roe?
  The sad experiences of other countries suggest a few unsettling 
answers to these questions. For example, China recently criminalized 
abortion for the purpose of sex selection. The reason for this is 
revealed by figures--an effects test, if you will--showing that 119 
boys are born in China for every 100 girls--119 boys for every 100 
girls. This gender gap can be attributed to the combination of the 
Communist government's one-child policy with a culture that often 
values sons more than daughters. So millions of parents have aborted 
baby girls hoping to have a boy next time. If current trends continue, 
some experts say that China could have as many as 40 million men who 
can't find spouses by the year 2020.

  India faces a similar problem. Sex determination has been a serious 
problem there since the 1970s, when amniocentesis began to be widely 
used to determine the sex of the unborn child. A 1985 survey revealed 
that 90 percent of amniocentesis centers were involved in sex 
determination, with nearly 96 percent of female fetuses aborted. In 
response, India outlawed fetal sex determination for sex selection 8 
years ago, but prenatal sex determination through ultrasonography 
  Indeed, the situation has become so dire that the Indian Medical 
Association has appealed to the conscience of that country--the habit 
of the heart of that nation--and the world to save baby girls from 
abortion. The association says that up to 2 million baby girls still 
are killed by abortion every year. A former President of the Indian 
Medical Association told the BBC that the situation has led to a 
demographic imbalance of up to 50 million fewer women in the country 
than would be expected.
  This selective destruction of the unborn in other countries has a 
grim predecessor in American history: the eugenics movement. As Edwin 
Black has noted in a book called ``War on the Weak'':

       [T]he eugenics movement slowly constructed a national 
     bureaucratic and juridical infrastructure to cleanse America 
     of its ``unfit.'' Specious intelligence tests, colloquially 
     known as IQ tests, were invented to justify incarceration of 
     a group labeled ``feebleminded.'' Often the so-called 
     feebleminded were just shy, too good-natured to be taken 
     seriously, or simply spoke the wrong language or were the 
     wrong color. Mandatory sterilization laws were enacted in 
     some twenty-seven states to prevent targeted individuals from 
     reproducing more of their kind. Marriage prohibition laws 
     proliferated throughout the country to stop race mixing. 
     Collusive litigation was taken to the U.S. Supreme Court, 
     which sanctified eugenics and its tactics. The goal was to 
     immediately sterilize fourteen million people in the United 
     States and millions more worldwide--the ``lower tenth''--and 
     then continuously eradicate the remaining lowest tenth until 
     only a pure Nordic super race remained. Ultimately, some 
     60,000 Americans were coercively sterilized and the total is 
     probably much higher.

  The source of the word ``eugenics'' is very interesting. The very 
word was coined by Francis Galton, the nephew of Charles Darwin. Galton 
believed that ``what nature does blindly, slowly, and ruthlessly, man 
may do providently, quickly, and kindly.'' In 1883, Galton created a 
new term for this manmade ordering of life. As Black describes it, 
Galton ``scrawled Greek letters on a hand-sized scrap of paper, and 
next to them put two English fragments he would join into one. The 
Greek word for `well' was abutted to the Greek word for `born' . . . 
and the word he wrote on that small piece of paper was `eugenics'.'' 
Well born.
  Among the strongest proponents of eugenics was Margaret Sanger. 
Sanger advocated for the mass sterilization of so-called ``defectives'' 
and the wholesale incarceration of the so-called ``unfit.'' She 
particularly supported the sterilization plan of those people she 
deemed unfit; she believed this plan would lead to the ``salvation of 
American civilization.'' She also argued for sterilization of those who 
were ``irresponsible and reckless,'' including those ``whose religious 
scruples prevent their exercising control over their numbers.'' For 
these people, she contended that ``there is no doubt in the minds of 
all thinking people that the procreation of this group should be 
stopped.'' She repeatedly referred to the lower classes as human waste 
not worthy of assistance, proudly promoting the views that these 
``weeds'' should be ``exterminated.''
  Sanger went on to found a group that came to be known as Planned 
Parenthood, the very same organization which successfully prevailed 
upon the Supreme Court to reaffirm Roe v. Wade in the 1992 case of 
Planned Parenthood v. Casey. Sanger's legacy still resonates today.
  Dr. John Harris of Manchester University in England has offered a 
slightly milder formulation than that of Sanger. He has stated that:

       Eugenics is the attempt to create fine healthy children, 
     and that's everyone's ambition. . . . We're not trying to do 
     this through killing people or eliminating individuals, we're 
     trying to do this by making choices about which people will 
     exist in the future.

  Given the experience of other countries with abortion; given our own 
experience with abortion of the disabled; and given the natural 
repugnance most people have with the eugenics movement, I would suggest 
to my colleagues that Roe and other related cases simply flunk the 
``effects test'' we have long applied in the context of voting and 
other rights. These cases have carved millions of voices out of our 
civic core and cannot withstand moral scrutiny, much less an honest 
legal examination.
  The right to privacy as it has been extended has not only weakened 
our legal culture; it has made us poorer as a people. It is impossible 
not to recognize the significant contributions made by those with 
disabilities who do survive; they help to bring out the humanity in 
each of us, and we are better for it. Every time I see one of these 
beautiful children, I am reminded of what joy they bring, and what joy 
their counterparts might have brought.
  How can we, as a nation, stand for the principle of equality, that we 
are all blessed to be alive, that we are all capable of great success 
regardless of disability, and that we are a compassionate society, when 
our laws blithely allow the elective termination of more than 80 
percent of a vulnerable population. It is incomprehensible.
  Numerous men, women, and children with disabilities have overcome 
adversity and achieved great successes in their lives. I would like to 
take a few minutes to share a few of their stories.
  Here is a picture of Abby Loy. I met her last week when she visited 
my office. She is a beautiful young girl and

[[Page S10534]]

she has Down Syndrome. She does modeling and was recently featured in a 
book called ``Common Threads,'' which illustrates the numerous 
accomplishments achieved by people with Down Syndrome. Abby and her 
mother came to Capitol Hill from Michigan last week to promote 
awareness of disability issues and to illustrate Abby's wonderful life 
  Look at this beautiful child. This note is from her parents:

       When Abby was born, physicians and social workers informed 
     our family of all of her potential limitations, 
     developmentally and physically. When we asked what Abby's 
     education path might look like, we were told that she would 
     attend special classrooms. Abby has been successfully 
     educated with support in all regular education classes and 
     continues to grow. We felt Abby would prove herself to be 
     much more capable than others believed . . . It continues 

  Again, that note is from her parents.
  It is a tough choice when a mother or a spouse gets a diagnosis in 
utero that a child has Down Syndrome; it is agonizing. I know from my 
own thoughts when we were having our children. Yet I ask people to look 
at the beauty of the child and embrace her. If they can't, there are 
other groups and individuals that will. It is a tough choice, but it is 
a child, a beautiful child, a child that can accomplish much.
  I want to show another example. This one is Samuel. I have had Samuel 
in to testify before a subcommittee I chaired last year. I am rather 
partial to the name Samuel myself. In this picture he is catching fish. 
It doesn't look like a very big fish and the fish doesn't look too 
happy, but Samuel is sure happy. He has spina bifida, which most 
medical professionals call a devastating birth defect. These are his 
parents' words:

       Though we were devastated by learning that our unborn son 
     had spina bifida, we wanted to do all we could to improve the 
     quality of his life. Ending it was never an option. Let's see 
     what we can do to improve it. At 21 weeks gestation, Samuel 
     had fetal repair of his spina bifida lesion. Today he is a 5-
     year old kindergartner. He is imaginative, funny, and 
     compassionate. He can read, swim, and catch even the 
     fastest lizard. He has touched many lives. We are so 
     thankful for him and are eager to see what great things he 
     will accomplish.

  Normally, about 80 percent of children diagnosed with spina bifida 
are terminated and killed in utero.
  I have a final example. This is a lady who looks at her Down Syndrome 
as an ``up syndrome'' and has started ``Up with Down Syndrome''. She 
has served on President Clinton's Committee on Mental Retardation. She 
served three terms from 1994 to 2000, one of the first two members with 
a disability to be appointed to this committee. Her name is Ann M. 
Forts. She goes around the country and talks with individuals about 
what she can do. The second paragraph of a letter she sent to me is 
particularly striking:

       As I think about my active and happy life on the upside of 
     my Down Syndrome dis``ability'', I find it extremely 
     frightening to think of how vastly different my life would 
     have been if my parents had taken that ill-conceived 
     professional advice when I was born.

  In other words, to put her in some form of an institution rather than 
bringing her home.
  These are inspirations to all of us. And if you need further 
inspiration, just go talk to Jimmy, the elevator operator right outside 
the door of the Senate Chamber, who brightens all of our lives.
  They will not be defeated by their disabilities, and we celebrate 
them for that. But think about the many more like them, think about the 
more than 80 percent of the beautiful capable children, similar to 
Abby, Ann, Jimmy, and Samuel, who are never given a chance because 
their lives are terminated before they are born.
  We should not use bland phrases such as ``right to privacy'' or 
``stare decisis'' to disguise the issue at stake with Judge Roberts' 
nomination to be Chief Justice of the United States. We must be 
truthful with the American people, as well as ourselves, and admit that 
this confirmation is, at its root, about the most fundamental and basic 
right of all: the right to life.
  As Americans, it is our duty to protect and defend the weakest among 
us. The duty is not only mandated by our laws but nurtured by our 
conscience and our habits of the heart.
  With the recent enactment of the bipartisan partial-birth abortion 
ban and bills like the Pre-Natally Diagnosed Awareness Act, which I 
sponsored with Senator Kennedy, we have begun heading in the right 
direction. However there is still significant work to be done.
  There is still a glaring inconsistency between the life that we deem 
to be worthy of protection under the Constitution, and the life which 
we do not. The value placed on certain persons and stages of life seems 
to be arbitrarily assigned. The Constitution clearly states in the 5th 
and 14th Amendments that ``no person'' shall be deprived of ``life, 
liberty, or property without due process of law.''
  ``No person.'' What does that mean? Does it extend to an unborn 
child? Is an unborn child a person or merely a piece of property? A 
person is entitled to inalienable rights established under the 
Constitution and laws of the United States. Property can be done with 
as its master chooses. I posed this question to Judge Roberts during 
his confirmation hearing. Because this issue may come before the Court 
at some point in the near future, he declined to answer directly. But 
the persistence of this issue simply underlines the importance of each 
Supreme Court vacancy.
  I will support the nomination of John Roberts to be Chief Justice of 
the United States. I will do so based in part on his stellar 
credentials for the position, but also on my hope and my prayer that he 
understands what is at stake when the Supreme Court interprets the 
people's Constitution--not a sterile debate over arcane legal 
principles and Latin doctrines but the very habits of our hearts.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Kansas.
  Mr. ROBERTS. Mr. President, I pay tribute to my colleague and friend, 
Senator Brownback, for his eloquent speech on behalf of those who are 
disadvantaged and deserve protection from the law. He made an 
outstanding speech.
  I rise to express my support of Judge John Roberts in regard to his 
nomination as Chief Justice of the U.S. Supreme Court. I know what the 
committee has done, and I know what the majority of Senators will 
likely do, and that is to vote in favor of Judge Roberts. But I also 
believe that an openminded individual, applying Kansas common sense, 
would reach the same conclusion that I have come to hold.

  It is no small event for a Senator to have the opportunity to 
participate in the confirmation of a candidate for the position of 
Chief Justice of the Supreme Court. Over the course of our Nation's 
history, the Senate has come together 155 times to vote on a Supreme 
Court Justice. This occasion marks the 17th time to confirm a Chief 
Justice. So I am humbled and honored to be part of this moment of 
  The consultation efforts on behalf of the administration with my 
fellow Senate colleagues in regard to this nomination have been 
extensive. That is probably an understatement. The President has made 
great efforts to open dialog and to invite input and to reach out to 
Members of the Senate. His nomination of Judge John Roberts is a solid 
choice and not one made in isolation.
  Kansans understand that the words inscribed on our Founding Fathers' 
documents are not as delicate and fragile as the paper on which they 
are written. They know that the power behind these ideas is what serves 
as the foundation of our Nation's democratic government.
  My sense from Judge Roberts is that he, too, rigorously believes in 
the power of the ideals set forth in the Constitution. As illustrated 
by his record as a judge on the U.S. Court of Appeals for the DC 
Circuit, he adheres to the guidelines outlined in the Constitution. 
Simply put, he walks the talk.
  After watching Judge Roberts endure--I guess that is the best word 
for it--over 20 hours of questioning during the nomination hearings, I 
find myself not only more familiar with his many qualifications, his 
impressive experiences, but deeply impressed with his character. Judge 
Roberts' respectful demeanor and his personal humility in the face of 
periodic abrasive questioning from some are exactly the type of 
qualities that a Chief Justice should

[[Page S10535]]

possess. During the question-and-answer portion of the nomination 
hearing, testimonies of his colleagues, former clients, and others who 
attested to his character, Judge Roberts has shown to be a man of high 
integrity, wisdom, and fairness. This assessment was echoed from those 
representing a broad range of ideologies.
  Judge Roberts does possess a brilliant legal mind and a thorough 
understanding of the law. He performs his duties with a vigor and a 
meticulous attention to detail that has been noted by all who have 
spoken about him. As a judge, he approaches a case to understand the 
legal facts involved and the laws that are affected, while avoiding the 
temptation to fulfill a specific judicial philosophy. His decisions are 
based on the merits of the law. His record has earned him the highest 
rating from the American Bar Association, the ABA. It is worth 
mentioning that the ABA has often been referred to by my colleagues on 
the other side of the aisle and those on this side as well as the 
``gold standard'' for evaluating judges.
  Most notably, in his opening statement before the Senate committee, 
Judge Roberts stated:

       Judges and Justices are servants of the law, not the other 
     way around.

  And concerning the rule of law, he went on to say:

       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 the liberties of all Americans. It is the envy of 
     the world. Because without the rule of law, any rights are 
     really meaningless.

  Clearly, Judge Roberts understands that the role of a judge is not to 
rule based on his personal judgments but to adhere to the laws as they 
are written.
  The role of the third branch under our Constitution is paramount, as 
the Supreme Court is often referred to as the ``gatekeeper of 
democracy.'' The duty to ensure that legislation passed and executed is 
in line with the Constitution is an important check within our 
Government. The lifetime appointment provided for in the Constitution 
is an important protection for our Justices to guard against any 
pressure in regard to politics. The forward thinking by the authors of 
our Constitution actually provided for the preservation of our 
democracy by including these checks and balances between these three 
  Some have expressed concern about Judge Roberts' relatively young age 
to be nominated to such a powerful position. On the contrary, I believe 
that age will allow for a term of growth and stability for the Court. 
In my view, his age is of less importance when compared to his style of 
judging. In his response to my colleague, Senator Hatch, he explains 
that his style is that of a modest judge. He went on to explain that:

       It means an appreciation that the role of the judge is 
     limited, that a judge is to decide the cases before them, 
     they're not to legislate, they're not to execute the laws.

  However, at the same time, we have witnessed judges acting beyond the 
scope of their duties in making decisions that in a representative 
democracy are legislative in their jurisdiction. We have seen that all 
across the country. This what I consider to be abuse of power is a 
source of tremendous contention, not only with folks from the great 
State of Kansas but with Americans nationwide on too many issues. In 
too many cases, we have seen decisions that are contrary to the will of 
the people. Americans have questioned the rulings on cases ranging from 
the Boy Scouts of America to the most publicized recent attack on 
private property rights. In Kansas, land is gold. And if land is gold, 
farmland is platinum. We have a healthy respect for property rights in 
middle America. Based on his comments, I believe Judge Roberts holds a 
similar opinion.
  Finally, let us not forget that Judge Roberts is currently a judge. 
He has already experienced the confirmation process for his judgeship 
on the U.S. Court of Appeals for the DC Circuit. Let us also remember 
that the same accolades that led to Senate approval of his nomination 
by unanimous consent--no disagreement, every Senator--are certainly 
applicable as of today.
  I am hopeful that through the course of debate on this nomination and 
the next Supreme Court nomination--the next Supreme Court nomination--
we can avoid the destructive partisanship that approached the brink of 
absolutism and ideology, a different criteria in regard to how we 
select judges. We have a duty to respectfully reflect the great 
traditions of this Chamber and rise above partisan bickering. We must 
raise the level of civility in our political discourse more so than 
ever in regard to considering the nomination of judges.

  Our democracy is only as strong as our governmental institutions. 
Judge Roberts will provide a strong pillar of support in the third 
branch of our Government. That, and for the reasons I have just 
enumerated, is why I will vote in favor of Judge Roberts' nomination to 
be the 17th Chief Justice of the United States.
  I yield back the remainder of my time. I thank the Chair.
  The PRESIDING OFFICER (Mr. Isakson). The Senator from South Carolina.
  Mr. DeMINT. Mr. President, I rise today in support of the nomination 
of Judge John Roberts for Chief Justice of the Supreme Court of the 
United States. Just 1 year ago, I was in the middle of a heated Senate 
campaign, and one of the most important issues to the voters of South 
Carolina, an issue that came up again and again, was the topic of 
judges. At that time, I promised the people of South Carolina that I 
would fight for fair judges who would judge based on the facts and the 
law, not on their personal political opinions.
  Americans simply cannot understand how certain judges arrive at 
decisions such as banning the Pledge of Allegiance or allowing local 
governments to take a person's home and give it to a business simply to 
generate more taxes.
  Judge Roberts clearly understands and demonstrated in his hearings 
that he is the kind of Justice America needs. He is brilliant, fair, 
and independent. He has proven himself to be a person of integrity who 
is committed to equal justice for all Americans.
  Judge Roberts is eminently qualified. He has earned the American Bar 
Association's highest rating of ``well qualified.'' Before being 
unanimously confirmed by the Senate in 2003 to the DC Court of Appeals, 
Judge Roberts had already established an unmatched resume in the legal 
world. After graduating in the top of his class from Harvard Law 
School, he went on to clerk for Justice William Rehnquist and then 
worked as a top aide in President Reagan's Justice Department. In 
private and public practice, he argued an amazing 39 cases before the 
Supreme Court, establishing his reputation as one of the Nation's top 
  During his hearing, Judge Roberts displayed his humble expertise, and 
I believe Americans warmly welcome his approach to the law. Despite 
what some Democrats are saying, Judge Roberts was very forthcoming at 
his hearing in discussing his judicial philosophy, his legal thinking, 
and his views on a judge's proper role within our constitutional 
  The Senate was also allowed to review an unprecedented number of 
documents from Judge Roberts' service in the Federal Government 
illustrating his judicial philosophy and legal ability. In question 
after question, Judge Roberts showed an extraordinary knowledge of the 
law and its history. Without the use of notes or staff, Judge Roberts 
easily recalled facts from hundreds of years of case law.
  I was pleased to see during the hearings that Judge Roberts stuck 
strictly to the Ginsburg rule, choosing not to comment on cases or 
issues that are likely to appear before the Court. In her hearings, 
Justice Ginsburg emphatically declared that she could give ``no hints, 
no forecasts, no previews'' as to how she would decide on future cases. 
She was right to do so. Judges are expected to be impartial and fair, 
looking at each case without prejudice. Senators who expected Judge 
Roberts to answer questions that required him to prejudge cases were 
ignoring the Code of Judicial Ethics and, I suspect, playing politics 
with the confirmation process for partisan reasons.
  Nominees should never compromise their judicial independence and 
ability to rule fairly by advocating positions on issues that could 
come before them. Judges are not politicians. In fact, Judge Roberts 
himself put it best during the hearings when he said:

       Judges wear black robes because it doesn't matter who they 
     are as individuals. That's

[[Page S10536]]

     not going to shape their decision. It's their understanding 
     of the law that will shape their decision.

  Judge Roberts has earned praise for his conduct during the 
confirmation hearings, and he has solidified broad, bipartisan support.
  I believe Judge Roberts deserves a fair up-or-down vote before the 
Supreme Court starts its next session in October. It is important to 
have a Chief Justice on the bench for the start of the session and to 
have the Court at full strength.
  Based on my July meeting with Judge Roberts, based on his 
qualifications and his exemplary performance before the Judiciary 
Committee, I am confident he will strictly interpret the law and not 
legislate from the bench.
  Judge Roberts has all the qualities Americans want in their Chief 
Justice. It is critical that the Chief Justice have the ability to 
listen to all sides of a debate and work well with each Associate 
Justice. Judge Roberts has clearly displayed his patience, fairness, 
and respect.
  The votes tomorrow for Judge Roberts will show that an overwhelming 
majority of Senators agree. The votes tomorrow against Judge Roberts 
will reveal the Senators who would not support any of President Bush's 
nominees, no matter how qualified they are.
  I fully support the nomination of Judge Roberts. I will cast my vote 
in his favor for confirmation, and I urge all of my colleagues to 
support Judge Roberts as the next Chief Justice of the Supreme Court.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina.
  Mr. BURR. Mr. President, I rise today, like my colleague who spoke 
just before me, to support the nomination of John Roberts to be the 
Chief Justice of the U.S. Supreme Court. To those who know me, to those 
who have heard me talk on this subject, this is no great surprise. But 
voting on a Supreme Court nomination is a very rare task. It is more 
historic now, as the Senate will consider a nominee for the top job of 
the Court.
  The question I ask today is, Why should America care about this 
debate? This debate is more significant than a lifetime appointment of 
Chief Justice of the Supreme Court.
  This debate is more significant than the influence that one single 
individual brings who is chosen. This debate is about future decisions 
that will affect the lives of every American, that will affect our 
children and our children's children. From our civil liberties, to 
property rights, to questions of life and death, to safety in 
communities, to the very basic freedoms, there is no area in our daily 
lives that is not somehow affected by the judicial decisions of the 
U.S. Supreme Court. The decisions made by the Court today will have a 
lasting effect long after we have gone from this institution. It is 
essential, absolutely essential, that we confirm not only competent, 
impartial judges, but those who are the very brightest and those who 
are good citizens and understand the task for which they have been 
nominated and confirmed.
  Over the course of the last several weeks we have all had the 
opportunity to hear from legal experts, from political analysts, about 
Judge Roberts and the chances of the success of his nomination and his 
confirmation. We have had a process of very detailed hearings where our 
colleagues, many of whom are lawyers, have asked the most appropriate 
questions, with a lot of thought, a lot of time to deliver the 
questions, and we have seen the response of a brilliant lawyer, with no 
notes, quote case law from years past that appropriately answered the 
questions that did not affect future cases the Court might hear.
  Now, I am not a lawyer and perhaps I do not judge Judge Roberts' 
legal background the same way lawyers might judge it, but I do 
understand people. I understand when I meet somebody who is a good 
person. I have met Judge Roberts. This is a good person. This is an 
individual in whom America can be proud when they refer to him as Chief 
  A couple weeks ago I had the opportunity to have Judge Roberts in my 
office. We talked about his background, his life experiences, we talked 
about our families. I did not quiz him about legal precedent or court 
rulings. I did not present him with hypothetical cases or his position 
on hot topics of the day. That, quite frankly, was not the ground I was 
focused to go on. Personally, as a husband and a father, I wanted to 
know where Judge Roberts truly stood and if he understood the job he 
has been asked to do. I wanted to know if he understood the 
responsibilities not just as a lawyer, not just as a Justice, but as a 
husband and as a father, and the implications of the decisions he would 
rule on and how they would affect not just his family but in a real way 
the people of North Carolina.
  As Senators, we are all responsible for constituencies. I am 
responsible for more than 8\1/2\ million individuals in North Carolina, 
and I wanted to know, quite frankly, if Judge Roberts intends to 
preserve our Nation's constitutional principles by interpreting law, 
not by making law. I am proud today to tell you, based upon the answers 
he gave to me in his testimony in front of the Judiciary Committee, I 
am confident he will do just that--interpret the law, not write the 
law. Judge Roberts, as every person has heard, has the academic and the 
professional credentials to serve not only as a Supreme Court Justice 
but as Chief Justice.
  There is something that concerns me today. It concerns me, and it 
should concern the American people: This vote will not be unanimous. 
This vote will be far from unanimous based upon the reports from 
Senators. Why? Politics. I am not sure it has ever permeated the 
process to the degree it has in this. As we stand here today, with one 
of the brightest nominees, ready to confirm, some in this institution 
are already suggesting the next nominee has no chance. There is not a 
person who has been nominated. There is a group of names that has been 
talked about. I might remind Senators that Judge Roberts was never 
talked about in the group that was purported to come up in the 
President's first nomination. Yet some suggest we are going to move the 
bar even farther for the next nominee who comes through.
  The divisiveness has to stop in this institution. We choose the best 
and the brightest to serve this country. If we consistently move that 
bar, if we consistently dig to find things that no other Congress has 
looked for, if we are not careful, no one will want that job. If we are 
not careful, the best and the brightest legal minds in this country who 
would serve on the bench and serve with distinction, regardless of the 
party they are from, when they get that call, will say, Mr. President, 
I want to pass. I can't put my family through it. I can't put myself 
through it. The risk of doing it is too great to everything around me, 
to make a commitment to serve my country.
  I ask all of us, what message are we sending to our children when the 
best and the brightest pass, when they elect not to go through the 
process we in this body have control of?
  This is a defining time for the Senate. This will determine who is 
willing in the future to actually serve their country and to serve in 
one of the single most important areas, the U.S. Supreme Court.
  I am confident Judge Roberts holds the academic credentials, he holds 
the professional credentials but, more importantly, I am confident 
today that Judge Roberts is a good man. He deserves the support of 
every Member of the Senate to become the Chief Justice of the U.S. 
Supreme Court.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from North Carolina yields. The 
Senator from Oregon.
  Mr. SMITH. Mr. President, I thank you for the time. It is for me a 
privilege to speak on behalf of Judge Roberts, but especially because 
while I have voted on hundreds of nominations for President Clinton and 
now at the present time President Bush, this is the first time I will 
cast a vote, an affirmative vote, for a member of the U.S. Supreme 
Court, and, perhaps, if Judge Roberts lives long enough, the only time 
I will cast one on behalf of the Chief Justice of the U.S. Supreme 
  It is for that reason that I asked Judge Roberts to come see me. I 
enjoyed a delightful visit with him prior to announcing my affirmative 
decision to vote for him without qualification, without reservation, or 
any reluctance. He is, in short, a brilliant nominee and I believe he 
will be a brilliant judge

[[Page S10537]]

who will make us proud for years and years to come.
  When I ran for the Senate, I ran as someone with a hat in the 
political arena. It is an experience where you state your position, you 
ask for votes. That is a fundamentally different exercise than being a 
judge. A judge is not someone who comes as a candidate asking for a 
vote, posturing in any fashion, and playing politics. The nature of the 
judicial branch, even the executive branch, is fundamentally different 
from the judicial branch. Ours is to make law. The president is to 
execute the law. The judge is to interpret that law.
  When I was running for an election certificate, I was asked 
repeatedly about how I would judge nominees to the Court. The 
underlying question was always, what is your litmus test? Do you have a 
single issue litmus test? I promised Oregonians that I would have no 
litmus test and would vote for qualified Democrats and Republicans from 
the administration that put them forward because I truly believe we 
have to remember the characteristic distinctions between the roles of 
these different branches of Government. What I did tell them is that I 
would judge them by their intelligence, their integrity, and their 
temperament. By that standard, I am not sure we will ever have the 
privilege of voting for a nominee who is more intelligent than Judge 
John Roberts. His academic credentials are without equal. He is clearly 
qualified by his schooling and by his service in the legal community. 
His integrity is beyond reproach as well. He has conducted himself 
honorably. There has been no hint of any kind of scandal that would 
disqualify him from holding high public office. I like especially the 
fact that he and his wife late in life decided to adopt two beautiful 
children. Every parent in America, I think, squirmed when they watched 
the concerns the Robertses had when President Bush announced his 
nomination--the little boy Jack was fidgeting on a public occasion, and 
all chuckled and recognized the humanity of Judge and Mrs. Roberts, and 
also related to that experience.
  When it comes to temperament, I think there are many qualifications 
Judge Roberts has that are evident in his entire life. He is 
overwhelmingly qualified. He has promised fidelity to the law. He has 

       My obligation is to the Constitution, that's the oath.

  The quality in his temperament, I think, that was particularly 
meaningful was the humility he demonstrated in the give and take with 
our colleagues on the Judiciary Committee. The Judiciary Committee is 
composed of many very bright men and women, and the back and forth was 
thrilling to watch for someone who loves constitutional law. He went 
into a heavyweight ring and he came out the champ. I was impressed and 
expressed that to him.
  The quality of humility is one that I think bears mentioning. Judge 
Roberts said, in fact, to that committee:

       A certain humility should characterize the judicial role. 
     Judges and justices are servants of the law, not the other 
     way around.

  What he is saying is that judges and justices are bound by the law, 
as we are as individual citizens, and as Members of the Senate we are 
bound by the law, and so are judges. That humility is important in the 
life of a judge.
  I remember a great public servant once said:

       Pride is concerned with who is right, humility is concerned 
     with what is right.

  I believe Judge Roberts will be focused on what is right, not who is 
right. The greatest threat Judge Roberts identified to the law is that 
of a judicial branch beginning to act more like a political branch.
  That is something many of my colleagues have spoken to. It is 
something I learned about in law school in a constitutional law class. 
It is called the political question doctrine. What that doctrine refers 
to is the wisdom that judges need to have, the humility they have to 
not intersect questions that are in the political arena, part of the 
discussion, the debate between we the people about where we want to go. 
So, instead of reaching over the people and deciding it when the issue 
is ripe for settlement at the ballot box, judges should be restrained 
in overreaching and doing things from on high that, frankly, disturb 
the body politic here in our country. I believe Judge Roberts will have 
that kind of restraint, that kind of humility.
  Judge Roberts made a quote in his opening statement, again without 
notes; something he feels obviously in his bones and knows in his heart 
and mind. He said:

       The one threat to the rule of law is the tendency on behalf 
     of some judges to take that legitimacy--the legitimacy of the 
     law, and that authority--the authority of the law, and to 
     extend it into areas where they are going beyond the 
     interpretation of the Constitution into where they are making 
     the law. Judges have to recognize that their role is a 
     limited one.

  An aside, Mr. President, I like his metaphor to an umpire.

       Judges have to recognize that their role is a limited one. 
     That is the basis of their legitimacy. Judges have to have 
     the courage to make the unpopular decisions when they have 
     to. That sometimes involves striking down acts of Congress. 
     That sometimes involves ruling that acts of the executive are 
     unconstitutional. That is a requirement of the judicial oath. 
     You have to have that courage.

  What I find in that statement is an understanding of the political 
question doctrine. He is saying we have to be humble in most all 
instances; to respect the rights of the people. But he is also saying 
you have to have courage to interpret the Constitution in a way that is 
faithful to it.
  As Cicero once said:

       We are in bondage to the law so that we might be free.

  I know my time is up, so I yield the floor and urge my colleagues to 
vote in support of Judge Roberts. If you can't vote for him, it is hard 
to know for whom one could vote.
  I yield the floor.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Under the previous order, the time from 11 a.m. to 12 p.m. shall be 
under the control of the Democratic leader or his designee. The Chair 
recognizes the Senator from Iowa.
  Mr. HARKIN. Mr. President, tomorrow the Senate will vote on the 
nomination of John Roberts to be the 17th individual to serve as Chief 
Justice of the United States. I have put an enormous amount of 
contemplation and consideration into my vote on this nomination. Some 
may wonder why this has been such a difficult decision for me. Clearly 
Judge Roberts is an individual of great accomplishment. He has an 
outstanding educational background and keen legal skills. He is a 
thoughtful, decent, modest person, impressively knowledgeable about 
constitutional law and the Court.
  I watched much of the judiciary hearings. I have reviewed briefs and 
court decisions written by Judge Roberts. And, thanks to his 
generosity, I met with Judge Roberts for more than an hour in my office 
last week, talking one on one.
  What I did not find in the hearings or in Judge Roberts' writings or 
in our meeting was a clear indication that Judge Roberts understands 
the critical role the courts play in protecting the civil rights of 
Americans and in allowing those who have suffered discrimination to be 
able to seek recourse and affirm their rights in Federal court. I was 
seeking some indication that Judge Roberts understands that the issues 
that come before the high Court cannot always be viewed with a cool, 
legal dispassion and detachment, but that the Court and its members 
play a critical role in protecting the powerless in our country.
  This is of grave concern to me because the individual who fills this 
Supreme Court vacancy will have the ability to enhance and strengthen 
or undermine and weaken the Americans With Disabilities Act.
  Judge Roberts' nomination comes at a time when there is a very 
significant clash occurring between the Supreme Court and Congress over 
whether Congress has the authority to require the States to comply with 
antidiscrimination laws. Unfortunately, the law caught at the center of 
this clash is the Americans With Disabilities Act.
  As I have deliberated on this nomination, the first and foremost 
question in my mind has been this: What kind of Court would the Roberts 
Court be? Would it be a Court that serves as a refuge of last resort 
for the powerless in our society? Or, would it be a Court that will 
continue down a disturbing path seen in the later years of the 
Rehnquist Court, a path that limits the

[[Page S10538]]

ability of Congress to pass legislation that provides meaningful 
protections to individuals, including the 54 million Americans with 
  Unfortunately, after carefully reviewing the record and talking with 
Judge Roberts, I am unable to conclude that a Roberts Court would 
guarantee the rights of the powerless and those with disabilities.
  Earlier this year we celebrated the 15th anniversary of passage of 
the Americans With Disabilities Act. The ADA, as it is known, prohibits 
discrimination in employment against people with disabilities. It 
requires that the services and programs of local and State governments 
be accessible and usable by individuals with disabilities. Since its 
enactment, the ADA has provided opportunity and access for 54 million 
Americans with disabilities who, prior to the law's enactment, 
routinely faced prejudice, discrimination, and exclusion in their 
everyday lives.
  As Members of this body know very well, I was the lead sponsor of the 
ADA. I championed it because I had seen discrimination against the 
disabled firsthand, growing up with my brother Frank, who was deaf. 
During his childhood, my brother was sent halfway across the State to a 
school for the ``deaf and dumb.'' He was told his career path would be 
limited because surely someone who is deaf cannot contribute to 
society. Throughout his life, Frank experienced active discrimination 
at the hands of both private individuals and government, and 
this served to limit the choices before him. Frank's experience was by 
no means unusual, as Congress documented extensively prior to enactment 
of the ADA. As part of the writing of that bill, we gathered a massive 
record of blatant discrimination against those with disabilities. We 
had 25 years of testimony and reports on disability discrimination, 14 
congressional hearings, and 63 field hearings by a special 
congressional task force that were held in the 3 years prior to the 
passage of the Americans With Disabilities Act. We received boxes 
loaded with thousands of letters and pieces of testimony gathered in 
hearings and townhall meetings across the country from people whose 
lives had been damaged or destroyed by discrimination. We had markups 
in 5 different committees, had over 300 examples of discrimination by 
States. I know; I was there. I was the chairman of the Disability 
Policy Subcommittee.

  Yet since enactment of the ADA the Court has repeatedly questioned 
whether Congress had the constitutional authority to require States to 
comply with the ADA. Amazingly, it questioned whether Congress 
adequately documented discrimination. In 2000, the Supreme Court held 
in a 5-to-4 decision that an experienced nurse at a university 
hospital--who was demoted after being diagnosed with breast cancer 
because her supervisor did not like being around sick people--was not 
covered by the ADA. Why? Because she had the misfortune to work for a 
State hospital.
  In contrast, last year, by a 5-to-4 decision, the Court held that 
Congress did have the authority to require States to make courthouses 
  This year, the Court will look at whether a State is required to make 
a prison accessible. There is no guarantee that the Court will come to 
the same result. Instead, we could end up with a crazy patchwork where 
courthouses are accessible, but maybe libraries are not, perhaps 
prisons are accessible, but employment offices are not.
  When we passed the ADA, we in Congress did not forbid employment 
discrimination against the disabled unless they worked for the State. 
We didn't say some services must be accessible. But that is what the 
Court has been saying. Talk about judicial activism.
  I would point out here, in those years when we were developing the 
Americans With Disabilities Act, my friend Senator Hatch was ranking 
member on the Judiciary Committee. They had their staffs look to make 
sure we passed the constitutional tests. Attorney General Dick 
Thornburgh, a great supporter of the Americans With Disabilities Act, 
had the Department of Justice look and make sure we were passing 
constitutional muster. Boyden Gray, in the White House Counsel's 
Office, looked at it to make sure we passed constitutional muster. 
Fifteen Ronald Reagan appointees to the National Council on Disability, 
working with constitutional law experts, looked at the bill to make 
sure it passed constitutional muster. Yet the Court, by 5-to-4 
decisions, is undermining all we did.
  As a result, 15 years after passage of the ADA, the rights of those 
with disabilities still hang in the balance. Those rights will be 
determined in a very significant way by a potential Roberts Court. As 
Chief Justice, Mr. Roberts personally will have a major role in 
determining whether the balance swings for or against people with 
disabilities. If Judge Roberts lends his voice to those on the Court 
who believe in the rights of States over the rights of people, 
individuals with disabilities in this country will face enormous 
  Judge Roberts was asked many questions at his hearing about 
congressional power, the ADA, and the rights of the disabled. I posed 
similar questions in our meeting. Judge Roberts chose not to answer 
those questions in any significant or revealing detail. Without some 
greater assurance that he would give deference to the policies passed 
by Congress, without solid assurance that he would be a defender of the 
ability of the less powerful to go to court and have their rights 
vindicated, without those assurances, I am left guessing and 
speculating, and that is not good enough.
  Without clear assurances from him personally, I am left only with 
Judge Roberts' paper record and, quite frankly, it is a record that 
does not bode well for people seeking to vindicate their rights. In the 
interests of brevity, let me cite one example from Judge Roberts' 
tenure with the Department of Justice, the 1982 case of Board of 
Education v. Rowley. In the Rowley case, a trial court ruled that 
Federal law required the State to provide a sign language interpreter 
for an 8-year-old student who was deaf. The Second Circuit Court of 
Appeals affirmed that decision. The case then went to the Supreme Court 
and the Department of Justice had to decide whether to support the 
student and argue in favor of an interpreter, or support the local 
school board and the State and argue against an interpreter.
  In a memo to the Attorney General, Judge Roberts said the lower court 
decisions amounted to an exercise of judicial activism and the lower 
courts had inappropriately ``substituted their own judgment of 
appropriate educational policy.''
  This was not the language of a lawyer merely representing the views 
of a client. This was the language of an attorney in a policymaking 
position at the Department of Justice, suggesting that the Government 
should have weighed in against the right of a deaf student to have 
access to an interpreter under the Education of the Handicapped Act, a 
predecessor of today's Individuals With Disabilities Education Act. In 
other words, Judge Roberts thought that this law, the primary Federal 
law to ensure that students with disabilities have access to the same 
educational opportunities as all other students, should be interpreted 
narrowly rather than broadly.
  That is not the quality I am looking for in a Chief Justice. I want a 
Chief Justice who brings a passion for justice to the law; who does not 
lose sight of the real people whose lives and livelihoods are at stake 
in the Court's decisions. Some supporters of Judge Roberts have argued 
that the Rowley case was more than two decades ago and Judge Roberts' 
views on statutory interpretation and on the ability of individuals to 
protect their rights through the courts may have evolved since then. 
But how are we in this body to know that, particularly when the White 
House has failed to provide us with all requested and directly relevant 
  Of greatest interest to me are the decisionmaking memoranda written 
by Judge Roberts during his tenure as Principal Deputy Solicitor 
General. Again, in his role as Principal Deputy Solicitor General--a 
position sometimes referred to as a ``political deputy'' because it is 
a political appointment--Judge Roberts was not merely representing a 
client but was involved in crafting the Department's legal positions in 
some of the most important cases in recent years.
  During his tenure as Principal Deputy, Judge Roberts argued before 

[[Page S10539]]

court that individuals shouldn't be allowed to go to court to enforce 
their rights under the Medicaid statute, that children shouldn't have 
access to courts to enforce their rights under the Adoption Assistance 
and Child Welfare Act, and that courts should take a restrictive view 
of remedies available under title IX and other civil rights laws.
  Given the decision of the White House to withhold these documents 
from the Senate, I am forced to draw my conclusions on what I do know.
  Before I conclude my remarks, I would like to describe an example of 
one of the ``real people'' I referred to earlier, a woman by the name 
of Beverly Jones. Ms. Jones, who testified before the Senate Judiciary 
Committee on Judge Roberts' nomination, has been using a wheelchair 
since a 1984 traffic accident in 1990, the year we passed ADA. She 
completed court reporting school and set out to work as a courtroom 
stenographer in order to support her family. But what she found as she 
traveled throughout the State of Tennessee was she couldn't get the 
jobs in a great majority of Tennessee's courthouses. She was forced to 
choose between asking complete strangers to carry her into the 
courthouse or into inaccessible rest rooms or simply turn down 
employment opportunities. That is an unacceptable choice for a single 
mother supporting two kids.
  Ms. Jones testified to the committee that she spoke to Federal, 
State, and local officials about the problem of inaccessible 
courtrooms, but her entreaties were met with indifference, until she 
filed suit. I would like to quote from Ms. Jones' testimony about her 
experience because I think it vividly illustrates what is at stake.
  She said:

       The door that I thought had been opened [with passage of 
     the ADA] was still closed and my freedom to live my dream was 
     still a dream, and turning into a nightmare. Nobody took 
     either me or the law seriously until I and others brought a 

  That is what is at stake today--the right of 64 million Americans 
with disabilities to live their dreams, the right of the powerless in 
our society, the disenfranchised, to turn to the courts to take them 
  Unfortunately, I am not yet persuaded that a Roberts Court would 
protect these rights.
  For this reason, I will be voting no on this nomination.
  Certainly, I bear no personal animosity whatsoever toward Judge 
Roberts. Within this body, there are many people on the other side of 
the aisle whom I respect, admire, and value as friends. But I don't 
often vote with them because I have a different viewpoint on many 
issues. As I said, in our personal meeting, I found Judge Roberts to be 
a very decent, modest individual.
  I hope the future will prove me wrong about Judge Roberts. I hope he 
proves to be a Justice who recognizes that discrimination in this 
country occurs in many areas and that Congress has both the authority 
and the duty to remedy it.
  Judge Roberts will have an immediate opportunity to do just that. In 
this upcoming term, the Supreme Court will hear arguments in a case 
that will once again examine the question of whether Congress had the 
authority to order States to make public facilities accessible to 
people with disabilities. Knowing this, during our meeting I tried to 
convey to Judge Roberts how discrimination against people with 
disabilities was deeply ingrained across the decades and across the 
centuries prior to passage of the Americans with Disabilities Act. I 
talked with him in detail about how prior to passage of ADA people were 
institutionalized, segregated, taken from their families, taken from 
their communities, excluded from schools, excluded from educational 
opportunities, excluded from employment opportunities, excluded from 
all aspects of daily life, shopping, going to the movies, playing golf, 
on and on, simply because of a disability. I explained how people with 
disabilities were excluded in the same way African Americans were 
excluded prior to the passage of the Civil Rights Act.
  In closing, let me quote from Thurgood Marshall in the Cleburne case, 
City of Cleburne v. Texas. Here is what Justice Thurgood Marshall had 
to say. Here is a sense of real injustice and that something needs to 
be done about it. This is what Justice Marshall said:

       The mentally retarded have been subject to a ``lengthy and 
     tragic history,'' of segregation and discrimination that can 
     only be called grotesque. . . . A regime of state-mandated 
     segregation and degradation soon emerged that in its 
     virulence and bigotry rivaled, and indeed paralleled, the 
     worse excesses of Jim Crow. Massive custodial institutions 
     were built to warehouse the retarded for life; the aim was to 
     halt reproduction of the retarded and ``nearly extinguish 
     their race.'' Retarded children were categorically excluded 
     from public schools, based on the false stereotype that all 
     were ineducable and on the purposed need to protected 
     nonretarded children from them. State laws deemed the 
     retarded ``unfit for citizenship.''

  That has been the experience for the last 200 years or more in this 
country. We stepped in to remedy that with the Americans with 
Disabilities Act.
  I hope Judge Roberts keeps these things uppermost in his mind and in 
his heart. Only time will tell.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Graham). The Senator from New York.
  Mr. SCHUMER. Mr. President, I rise to speak on the nomination of 
Judge John Roberts to be Chief Justice of the United States.
  I thank my colleague from Iowa for his heartfelt and outstanding 
  Votes like this come about so rarely that many Senators have spent 
their entire careers in this body without ever having had the 
opportunity to vote on a Chief Justice.
  And most of us in the Senate today will likely never again vote on a 
nominee to that incalculably important position.
  That is why I have been troubled about how some have characterized 
the votes of conscientious Senators in this case--Senators from my 
party who have struggled with, and deliberated over, Judge Roberts's 
record in arriving at their decisions.
  As will be borne out tomorrow, Democratic Senators have given this 
vote the profound and serious consideration that it deserves.
  We are not voting monolothically, but rather each according to his or 
her own conscience.
  And that is what this vote is.
  It is a question of principle--not of politics, partisanship, or 
positioning, as some have cynically suggested.
  Democrats have truly struggled with this vote. I know I have. Like 
some others, I did not make up my mind until late on the night before 
the committee vote.
  We are not marching in lockstep, with nary a dissent like my 
colleagues across the aisle.
  But while this vote was a close call for many, (Like myself) the next 
one may not be.
  While this nomination did not warrant an attempt to block the nominee 
on the floor of the Senate, the next one might.
  If the President sends us a nominee who, like Janice Rogers Brown, 
believes that the New Deal was the triumph of a ``socialist 
revolution,'' there will be a fight.
  If the President sends us a nominee who, like Priscilla Owen, was 
criticized by her conservative colleague--Alberto Gonzalez--for an 
``unconscionable act of judicial activism,'' there will be a fight.
  If the President sends us a nominee who, like Miguel Estrada, refuses 
to answer any real questions and whose record is not made fully 
available, there will be a fight.
  If the President sends us a nominee who is committed to an agenda of 
turning the clock back on civil rights, workers' rights, individual 
autonomy, or other vital Constitutional protections, there will likely 
be a fight.
  And it will be a fight without any winners.
  So, Mr. President, on the eve not only of the confirmation vote on 
John Roberts, but also the President's nomination of a replacement for 
the seat of Justice O'Connor--for more than two decades a pivotal swing 
vote on the High Court--I hope and pray that the President chooses to 
unite rather than divide; that he chooses consensus over confrontation.
  Now let me return to the vote at hand.
  This vote should be viewed against a unique--and troubling--
historical backdrop.
  Many are saying the Senate should not bring ``politics'' into this. 

[[Page S10540]]

quarrel should be with the President of the United States if they feel 
that ``politics'' means figuring out a judge's ideological, judicial 
philosophy. Politics, if you define it as that, was introduced by a 
President who vowed that, if given the opportunity, he would name to 
the Supreme Court Justices in the ``mold'' of Clarence Thomas and 
Anthony Scalia.
  Given the President's campaign promise and repeated declarations, 
there is a presumption that any nominee the President sends to the 
Senate is in that ``mold.''
  The presumption is especially strong--and is particularly hard to 
overcome--with a nominee who was carefully vetted, researched, and 
interviewed at sufficient length by a President who professed a desire 
to nominate people in the mold of Thomas and Scalia; and, with a 
nominee who is eagerly embraced by those groups who support the views 
of Thomas and Scalia and who want to change America through the Courts;
  The presumption can be rebutted, of course. And the way it can be 
rebutted is through the answering of questions and through the 
production of relevant documents. And here, regrettably, there was much 
  To be fair, Judge Roberts did partially rebut the presumption. He 
made some inroads.
  Judge Roberts has a keen and impressive intellect. We all know that. 
His encyclopedic knowledge of the law and eloquent presentation 
certainly confirmed what his colleagues have said about him--that he is 
one of the best advocates, if not the best advocate in the Nation.
  But being brilliant and accomplished is not the number one criterion 
for elevation to the Supreme Court--there are many who would use their 
considerable talents and legal acumen to set America back. So, while 
legal brilliance is to be considered, it is never dispositive.
  In addition, very good lawyers know how to avoid tough questions. 
People have said that one of the reasons the nominee was so effective 
arguing in the Supreme Court is that he mastered the trick of making 
the point he wanted to make, rather than answer the question asked.
  When I reviewed the transcript in the week after the hearings 
concluded but before we were called on to vote, there was often less 
than met the ear.
  There is an obligation of nominees to answer questions fully and 
forthrightly, because they are essential to figuring out a nominee's 
judicial philosophy and ideology--to me, the most important criteria in 
choosing a Justice.
  Many of us were disappointed in his failure to answer so many 
questions and is one of the contributing factors to the no votes that 
will be cast against Judge Roberts.
  Add to that the refusal of the administration to allow the Senate to 
examine important and relevant documents, and we are voting on a hunch. 
Senators voting on the position of Chief Justice should not be 
relegated to voting on a ``hunch.''
  We should not be left to guesswork, impressions, and hunches.
  There was a bit of a game of hide and seek going on--as much as 
Senators tried to seek out his views, many remained hidden away.
  That is why that I so badly hope that the next nominee will be more 
forthcoming and will answer more questions about his or her legal 
views, and that all relevant documents will be provided.
  But, the answering of questions is only a means to an end--it is a 
means of finding out what kind of judge, or Justice, a nominee will 
  In this case, because there were not enough questions answered or 
documents provided, we are still unsure of the answer to the central 
question: Who is Judge Roberts?
  Particularly troubling to me are the eerie parallels between Judge 
Roberts's testimony and then-Judge Thomas's, especially given President 
Bush's declaration that he would nominate Justices in the mold of 
Justice Thomas.
  The echoes of then-Judge Thomas's empty reassurances that he was a 
mainstream jurist are ringing in the ears of every Senator who listened 
to many nearly identical statements from Judge Roberts last week.
  I was particularly troubled by his answers in two areas--the 
constitutional right to privacy and the Congress Commerce Clause power 
to protect the rights and improve the lives of the American people.
  At his hearing, for example, Judge Roberts said that he believes 
``there is a right to privacy protected as part of the liberty 
guarantee in the due process clause.'' At his hearing, then-Judge 
Thomas made almost the identical statement. As a Supreme Court Justice, 
however, Justice Thomas has repeatedly urged the most narrow 
interpretation of a privacy interest possible, in Casey, in Lawrence, 
and at every other opportunity.
  At his hearing, Judge Roberts repeatedly assured the Committee that 
he had ``no quarrel'' with various Supreme Court decisions on issues of 
privacy, women's rights, civil rights, education, and other important 
issues. The same assurance in nearly identical words were made by 
Justice Thomas at his hearings, but when given the opportunity to 
consider those cases with which he had ``no quarrel'' from the bench, 
Justice Thomas voted to overrule.
  At his hearing, Judge Roberts repeatedly assured the Committee that 
he had ``no agenda.'' The same assurance was made by Justices Thomas 
and Scalia at their hearings.
  Besides these concerns about Judge Roberts's views on the right to 
privacy and on the Establishment Clause, I also was troubled by his 
answers on the Commerce Clause. I asked him if he would disagree with 
Justice Thomas's extremely narrow, 19th-century, and widely-discredited 
view that Congress may not regulate activities occurring within a State 
even if they have substantial effects on interstate commerce. He 
  There is therefore too serious a chance that Judge Roberts believes 
that Congress is without power to protect workers' rights, women's 
rights, and the environment on this widely-accepted constitutional 
  We simply did not get definitive answers to these questions at the 
  At the hearings, I gave Judge Roberts every opportunity to distance 
himself from Justice Thomas's most extreme views. He refused.
  Now, Senator Cornyn, my good friend from Texas, and others from 
across the aisle have said that if we can't vote for this nominee who 
could we vote for? Here is your answer: someone who answers questions 
fully and who makes his or her record fully available; someone who 
gives us a significant level of assurance with some answers and a 
record that he or she is not an ideologue;
  Judge Roberts is clearly brilliant and his demeanor suggests he well 
might not be an ideologue.
  But he simply did not make the case strongly enough to bet the farm.
  There is a good chance--perhaps even a majority chance--that Judge 
Roberts will be like Justice Rehnquist on the bench. We know he will be 
brilliant, and he could well be--while very conservative--not an 
ideologue. That is why I struggled with this decision so long and so 
  If he is a Rehnquist, that would not be cause for exultation; nor 
would it be cause for alarm. The Court's balance will not be altered.
  But there is a reasonable danger that he will be like Justice Thomas, 
the most radical Justice on the Supreme Court.
  It is not that I am certain that he will be a Thomas. It's not even 
that the chance that he will a Thomas is greater than fifty percent. 
But the risk that he might be a Thomas and the lack of reassurance that 
he won't--particuarly in light of this President's professed desire to 
nominate people in that mold--is just not good enough.
  Because if he is a Justice Thomas, he could turn back the clock 
decades for all Americans. The Court's balance may be tipped radically 
in one direction and stay that way for too long.
  I hope he is not a Thomas. But the risk is too great to bear, and it 
exceeds the upside benefit.
  Because of that risk and its enormous consequences for generations of 
Americans, I cannot vote yes. I must reluctantly cast my vote against 
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, 5 years have passed since the Presidential 
election of 2000, and legitimate questions

[[Page S10541]]

about the outcome of that campaign have left too much of America too 
divided. Legitimate questions about the outcome of that election have 
given rise to an ever-growing polarization between so-called red and 
blue States, between liberals and conservatives, and between 
Republicans and Democrats in the Congress.
  Despite a somewhat more convincing outcome in the 2004 Presidential 
election, the divisions caused by the events of 2000 show little sign 
of abating. Having closely observed this widening divide, I now wonder 
whether Judge Roberts' confirmation will add to the bitterness and 
distrust of the Federal Government or whether it may serve to remind 
the people and the lawmakers they elect that we cannot move forward as 
a nation if we remain dedicated to tearing each other down.
  This is my first vote on a nominee to the Supreme Court of the United 
States, and my obligation as articulated in the Constitution is to 
either consent or not consent to a choice specifically entrusted to the 
elected President of the United States. Some of the policy watchdogs 
that I respect the most and agree with on so many issues have asked 
whether I oppose Judge Roberts because he is not one of us, because he 
is too conservative, because he is too young, because he may prove 
effective. He is not whom we would choose, they say. And on that point, 
I am in full agreement.
  Should the test to confirm a Chief Justice be, he is not one we would 
choose? I ask my friends to imagine the mess we will have left for our 
country if the Senate uses this test and votes solely on the basis of a 
nominee's political beliefs. Friends who a year ago said, We don't want 
ideologues appointed to the Supreme Court, now want John Roberts and 
the next nominee to show up at the witness table to submit to an 
ideological litmus test.
  Here is my message to those friends: A sword forged in ideology in 
2005 can be used against a progressive nominee in 2009 with an equal 
disregard for the Constitution and the individual.
  In 2008, I fully intend to work harder than ever before to elect a 
President who rejects the dangerous priorities that have led us to war 
in Iraq and an energy policy that is folly, that assures our continued 
dependence on foreign oil. Should this new Democratic President have to 
contend with a Republican Senate majority, he or she better hope that 
the judicial nominations in 2005 did not become purely ideology- driven 
contests. If these debates are purely partisan, our future will include 
constitutional bedlam whenever a Supreme Court opening occurs while the 
Senate is controlled by the opposition party.
  I reject the suggestion that a Republican nominee is, per se, 
objectionable. A number of certainly moderate justices nominated by 
Republican Presidents certainly belie this claim. The decision each 
Senator must make should be based on the judicial nominee that is 
before the Senate, not the one that we wish was before the Senate.
  To put this into historial perspective under the advice and consent 
responsibility assigned to the President, the President's judicial 
nominees to the Court have traditionally been given a large degree of 
deference. For example, in spite of the divisive national debate 
surrounding gays in the military, universal health care, Travelgate, 
Filegate, and the Whitewater investigation, this deference translated 
into 96 votes for Justice Ginsburg and 87 votes for Justice Breyer when 
their nominations came to a vote before the Senate. Yet these are two 
of the most progressive voices in the over 200-year history of the 
  When I had the opportunity to meet with John Roberts in my office 
this past August, I pressed him to tell me how he viewed some of the 
issues that have most divided our country. The answers Judge Roberts 
gave me during the hour we spent together left me with the impression 
that he will be his own man on the Court.
  Here are my judgments about the individual before the Senate now: 
One, on the basis of his public testimony, it is hard to see Judge 
Roberts as a man who will walk into the white pillard building across 
the street and set about tearing apart the fabric of our society; two, 
on the basis of his public testimony, it is hard to see Judge Roberts 
as a judicial activist who would place ideological purity or a 
particular agenda above or ahead of the need for thoughtful reason; 
three, on the basis of his public testimony, it is hard to see Judge 
Roberts as a divisive, confrontational extremist who would try to 
further exploit the divisions in our country.
  What I saw in his public testimony and in our private meeting is an 
intelligent, thoughtful man, certainly a deeply conservative man with a 
tempered view of the role of Government.
  At his Judiciary Committee hearings, nothing he said in public 
conflicted with what he had told me in private.
  In addition to meeting with him, I have scrutinized Judge Roberts and 
his record closely, considering his Reagan-era documents, reading the 
news analysis printed in papers across our country and listened to the 
hearings and reviewed the transcripts of them as well. No one disputes 
that Judge Roberts has a brilliant legal mind. My analysis of his 
record leads me to conclude that he is not cut from the same 
originalist cloth as Justice Thomas and Justice Scalia. He does not 
seem to believe that the words of the Constitution are fossilized, 
leaving only a one-size-fits-all, 18th century remedy for every problem 
that our society confronts. It is hard not to get the sense that he 
believes in limited government.
  Back in March, I led the effort in the Senate to block attempts to 
dictate a specific medical treatment in Terri Schiavo's tragic case 
because I believed the Constitution affords families the right to 
decide these matters privately. This is an area, in my view, in which 
the Federal Government has no business intruding. Involving itself in 
the Schiavo case, Congress was inappropriately meddling and blatantly 
ignoring the limits of its constitutional authority.
  I believe that the Terri Schiavo case is the first of many such end-
of-life cases that will arrive at the Supreme Court's doorstep. In my 
view, most of these cases will involve one individual and passionately 
held views. Demographic trends and improvements in medical technology 
assure that there will be many of these cases.
  Given what is ahead, I felt I had an obligation to examine how Judge 
Roberts saw end-of-life issues in the context of the Constitution and 
whether he would be willing to manipulate its meaning to authorize 
Government intrusion in private family matters. When I met with Judge 
Roberts in August, we discussed end-of-life issues at length, not 
because this was a litmus test for me, and I certainly don't believe in 
litmus tests, but because I thought it was important to carefully 
consider Judge Roberts' judicial temperament on this critical issue.
  Judge Roberts did not say how he would have handled the Schiavo case 
or any case before the Court. However, Judge Roberts did say quite a 
bit that made a lot of sense to me and I think would make sense to the 
vast majority of Americans. Judge Roberts agreed that there is a 
constitutionally based privacy right and that while the scope of the 
privacy right is still being defined in the context of end-of-life 
care, he said that when he approached the issue, he starts with the 
proposition that each person has the right to be left alone and that 
their liberty interests should be factored in as well.
  At his hearing, Judge Roberts reiterated his position, stating that a 
right to privacy exists in the Constitution. He stated that privacy is 
a component of the liberty protected by the due process clauses of the 
5th and 14th amendments, and he stated this liberty interest is 
protected substantively as well as procedurally.
  While discussing the Schiavo tragedy during our August meeting, I 
also asked him about Congress's authority to legislate a particular 
remedy in a particular case, and Judge Roberts expressed his concern 
about judicial independence. It was apparent to me Judge Roberts 
understands there are constitutional limits to the recent enthusiasm of 
Congress to prescribe particular remedies in a particular end-of-life 
  Concerning States rights to regulate medical practice and the scope 
of the 10th amendment, Judge Roberts stated he believed the Framers 
expected States to do most of the regulating and that they expected 
most regulation to

[[Page S10542]]

be State-based. In his view, the basic genius of the Federal system is 
that it affords different States the ability to approach problems in a 
way that is best suited to meet their different needs, and that 
imposing uniformity across the country would stifle the genius of our 
Founding Fathers.
  Judge Roberts also told me he attaches great importance to 
legislative history in interpreting law. He repeated this point several 
times during his public hearings. Those who have closely studied former 
Attorney General Ashcroft's challenge to the Oregon physician-assisted 
suicide law know there is not one word in the Controlled Substances 
Act, the law used to launch the case, indicating the Controlled 
Substances Act is aimed at or should be used to overturn or undermine 
the right of States to regulate medical practices within their borders.
  On the extremely important matter of a woman's right to choose, I 
asked Judge Roberts about Roe. He did not offer specific comments, but 
his response indicated he would not enter the Court with an ``agenda'' 
and he would respect the Court's precedents. In the public hearings, he 
also said he personally agreed with the conclusion of the Griswold and 
Eisenstat decisions, which held that the privacy right protects the 
right of individuals to use birth control.
  His opinions on the issues that matter indicate he is intelligent, 
thoughtful, and that he has a tempered view of the role of the Federal 
  Judge Roberts' combination of temperament and intelligence give him 
the potential to be a conciliatory voice at a divisive time in American 
history. He has the skills to reach across the divisions in America to 
show that justice can be a healing force for the wounds that cut our 
society so deeply. He can help to unify the country by building a 
record of well-reasoned opinions grounded in the rule of law, not 
  He will receive my vote tomorrow to be the next Chief Justice of the 
United States.
  I want to make one final point, Mr. President, a point that is 
important to me. There is another vacancy on the Court, and the 
President is expected to send forth his nominee soon. My intention to 
vote for Judge Roberts tomorrow should in no way be construed as a 
``weathervane'' for how I might vote on the next nominee. In the past, 
I have not hesitated to vote against several of the President's 
nominees to the courts of appeals when they carried the ideological and 
activist baggage I believed would be disruptive to our society. If the 
President puts forward a nominee to replace Justice O'Connor who is 
unlikely to ably and respectfully fill her shoes, I will vigorously 
oppose that nomination.
  I began by voicing my question about the impact of this nomination on 
the body politic of our country. Among the many awesome duties of the 
Chief Justice, no duty is of greater importance than the duty to unify 
our Nation when Americans find themselves in disagreement. Different 
Chief Justices have shouldered this burden with varying degrees of 
success. This ability to unify is what is most sorely needed at this 
moment in our Nation's history, and I am of the opinion that Judge 
Roberts possesses the nature and the desire to unify the Court and, 
with it, our Nation. I wish him wisdom, diplomacy, and moderation as he 
prepares to assume this critical role.
  Mr. President, I yield the floor.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. GRAHAM. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Murkowski). Without objection, it is so 
  The PRESIDING OFFICER. Under the previous order, the time from 12 
p.m. to 1 p.m. will be under the control of the majority.
  The Senator from South Carolina.
  Mr. GRAHAM. Madam President, I would like to comment a bit on the 
nomination of Judge Roberts. I wish to make a political observation. 
This is certainly a political body, and the nomination process has 
politics to it. That is not a bad thing. That is to be expected.
  From a Republican point of view, this is an easy vote. We are 
inclined to support a President when he is in power making a 
nomination. But that is not always the case, that every Republican 
votes for every nominee. I expect that will be the case here. Most of 
us on our side of the aisle are pleased with the nominee, someone of 
extraordinary intelligence and legal abilities and seems to be an all 
around good guy who has served his country well in every capacity that 
he has been called upon to serve. We will all vote en masse. It is an 
easy vote for us.
  To our Democratic colleagues, it is not so easy. Any time you are in 
the minority, and the Court being an important part of American life 
and politics, there is a lot of pressure on my Democratic colleagues to 
say no for different reasons by special interest groups on the left. We 
certainly have them on the right. Our day will come. If there is ever a 
Democratic nominee, we will face the same pressure.
  I would like to compliment my Democratic colleagues. Every one has 
taken the process seriously. There will be a healthy number of 
Democratic votes for Judge Roberts. To those who have decided to vote 
for him, history will judge you well. You have based your votes on the 
qualifications test. You have seen in Judge Roberts someone who loves 
the law more than politics. Over time, history will judge you well. One 
of the highlights of the Bush administration will be the selection of 
Judge Roberts to be the Chief Justice of the United States.
  For those who vote no, to a person everyone has struggled with it, 
thought about it, cast your vote. Generally speaking, the debate in 
committee and in the Chamber has lived up to the best traditions of the 
Senate. A few months ago, we were at each other's throats, about to 
blow up the place. There is plenty of blame to go around, but we have 
sort of broken that cycle. We have had a confirmation process that is 
in the best tradition of the Senate. We will go forward, and I hope he 
gets a healthy number of votes. It looks as if he will.
  One thing I wanted to take some time to discuss is some of the 
reasoning given to vote no and make a cautionary tale about some of the 
suggestions why a ``no'' vote would be appropriate. There seems to be 
some suggestion that if he does not have an allegiance to a particular 
line of cases, particularly the right of privacy cases centering around 
Roe v. Wade, that you can't vote for him. That one case or that line of 
legal reasoning is so important that without some commitment on his 
part to uphold Roe v. Wade or the concept of Roe v. Wade, a ``no'' vote 
would be in order. I would argue that could be applied on our side. 
Most of us are pro-life. I would say 90 percent of the Republican 
caucus is pro-life. Probably 90 percent of the Democratic caucus is 
pro-choice. The country is pretty evenly divided. If we have a litmus 
test about Roe v. Wade or any other case, that is not doing the 
judiciary a good service because you are putting a judge in a bad spot.
  Senator Harkin mentioned the Americans with Disabilities Act, 
something he should be very proud of. He fought hard to make it part of 
law, and we are a better Nation for it. There are some cases involving 
the Americans with Disabilities Act that will come before the Court. 
Senator Harkin did not think that he could vote yes because he wasn't 
assured that Judge Roberts would uphold the Americans with Disabilities 
Act in a way that he felt comfortable with in that States have been 
exempted from the act. We are all dealing with that issue.

  The only thing I can say about a guarantee with Judge Roberts, if you 
are a conservative and would like to see certain Court decisions 
reversed, if you are a liberal and would like to see certain decisions 
sustained, the one thing I can promise you about Judge Roberts is he is 
going to make his decision based on the facts, the briefs, the record 
in the particular case, and the arguments made by litigants. If he 
overturns a precedent of the Court, he will apply the four-part test 
that has been the historical analysis of how to overturn a standing 
precedent. He is going to do it in a businesslike fashion. He is going 
to apply the rule of law. If you are looking for an outcome-
determinative judge, someone who is going

[[Page S10543]]

to see things your way before they get your vote, you are going to be 
disappointed. To be honest, the law is better off for those answers. He 
is not the only one to refuse to bargain his way on the Court.
  Justice Marshall was asked by Senator McClellan: Do you subscribe to 
the philosophy expressed by a majority of the Court in Miranda?
  That is a major league constitutional case in our Nation's history 
where police officers have to inform a criminal defendant of certain 
rights they possess under the Constitution. That was a big deal. When 
Justice Marshall was coming along, that case had not been long decided. 
He said: I cannot answer your question because there are many cases 
pending that are variations on Miranda that I will have to pass on if I 
were confirmed.
  Senator McClellan: Do you disagree with the Miranda philosophy?
  Justice Marshall: I am not saying whether I disagree or not, because 
I am going to be called to pass on it.
  Senator McClellan: You cannot make any comment on any decision that 
has been made in the past?
  Justice Marshall answered: I would say that on decisions that are 
certain to be reexamined in the Court, it would be improper for me to 
comment on them in advance.
  I couldn't say it better. This idea that Judge Roberts has been 
evasive, that he will not give you a detailed answer of how he will 
decide the concept of the right of privacy or how he might rule on 
interstate commerce clause cases that will certainly come before the 
Court, he is doing exactly what Justice Marshall did when he was in the 
confirmation process. He was not going to bargain his way on the Court.
  Justice Ginsburg gave a very famous quote: I am not going to give you 
hints, any previews, no advisory opinions about matters that I believe 
will be coming before the Court.
  If that is your test, that you have to have a guarantee in your mind 
that a certain line of cases or a legal concept will be upheld or 
stricken down, Judge Roberts is never going to satisfy you. It is good 
for the country that he not try to do that, just as Justice Marshall 
avoided that dilemma.
  This is a question by Senator Kohl to Justice Souter: What was your 
opinion in 1973 on Roe v. Wade?
  Justice Souter: Well, with respect, Senator, I am going to ask you to 
let me draw the line there, because I do not think I could get into 
opinions of 1973.
  Senator Leahy: You do not have the same sense, to whatever degree you 
consider privacy in Griswold settled--which is the ability to engage in 
birth control practices--to whatever extent that is, you do not have in 
your own mind the same sense of settlement on Roe v. Wade; is that 
  Justice Souter: Well, with respect, sir, I think that is a question 
that I should not answer. Because I think to get into that kind of 
comparison is to start down the road on an analysis of one of the 
strands of thought upon which the Roe v. Wade decision either would or 
would not stand. So with respect, I will ask not to be asked to answer 
that question.
  He said it better than I read it. Bottom line is, he is telling 
Senator Leahy and Senator Kohl that if you start asking me to compare 
one case with another that has viable legal concepts, that could be a 
foreshadowing of how I might rule on matters before the Court, and you 
are putting me in a bad spot and I like not to do that. I can talk 
about Griswold, but if you ask me to say am I settled about Roe v. Wade 
as I am Griswold, then you are basically getting a preview how I might 
rule on a Roe v. Wade-type scenario.
  So the idea that Judge Roberts did not want to make such comparisons 
with the interstate commerce clause is not unknown to the confirmation 
process. Justice Souter did not want to go down that road with the 
right of privacy.
  Judge Roberts was asked probing, hard, clever questions to try to get 
him to tip his hand. I think what he said was the right answer: I will 
follow the rule of law. There is a process of how to overturn a case. 
There is a process of how to decide a case. That process is, you look 
at the facts, you look at the record, you listen to the arguments of 
the litigants, and you don't prejudge. I think that will serve the 
country well.
  The other concept that is coming into play is what burden does the 
nominee have, what deference should the Senate give to the President, 
what is the standard for confirmation. I have always believed that the 
idea that the President's nominee should be given deference by the 
Senate is a longstanding concept in our country. I am not the only one 
who believes that.
  There is a lot of information out there from our Democratic friends 
who have gone down that same road and have come to the same conclusion. 
There are prominent law professors out there who have suggested that 
there is a presumption of a nomination by the President that the Senate 
should give great deference to the Presidential nominee and that our 
advise-and-consent role does not replace the judgment of the President 
but simply to see if the person is qualified, has the character and 
integrity and will wear the robe in the way that is consistent with 
being a judge and not turn it into power grab.
  Professor Michael Gerhardt, who has advised our Democratic friends 
about the confirmation process established now and in the past, says:

       The Constitution establishes a presumption of confirmation 
     that works to the advantage of the President and his nominee.

  He also said:

       The presumption of confirmation embodied in the 
     Constitution generally puts the onus on those interested in 
     impeding a nomination to mobilize opposition to it.

  So the general idea that the President should be given deference, in 
Professor Gerhardt's opinion, is accepted in terms of the practice of 
the Senate.
  Senator Biden, on past nominations, has said: First, as a Member of 
the Senate, I am not choosing a nominee for the Court. That is the 
prerogative of the President of the United States and we, Members of 
the Senate, are simply reviewing the decision he has made. Second: Our 
review, I believe, must operate within certain limits. We are 
attempting to answer some of the following questions: First, does the 
nominee have the intellectual capacity, confidence, and temperament to 
be a Supreme Court Justice? Second, is the nominee of good moral 
character and free of conflict of interest that would compromise her 
ability--in this case it was Justice Ginsburg--to faithfully and 
objectively perform her role as a member of the Supreme Court? Third, 
will the nominee faithfully uphold the laws and Constitution of the 
United States of America? We are not attempting to determine whether 
the nominee will address with all of us--being the Senate--every 
pressing social or legal issue of the day. Indeed, if that were the 
test, no one would pass this committee, much less the full Senate.
  I could not agree with Senator Biden more. If that is the test, we 
are OK. If it becomes some subjective test where you have to adopt our 
view of a particular line of legal reasoning, then I think you have 
undermined the role of the President, I think you put the Judiciary at 
a great disadvantage, and I think you will be starting down a road that 
will not pay great dividends for the Senate.
  I argue that whatever votes you cast, let's not create standards that 
will come back to haunt the judiciary. Let's not put people in a bind, 
in trying to get on the Court, by making decisions or answering 
questions that will compromise their integrity and violate their 
judicial ethics to get votes.
  I do not think anybody is intentionally trying to do that, but there 
are some disturbing comments about what the standard should be. There 
have been a couple of occasions on the Judiciary Committee where people 
have looked at Judge Roberts and said: Convince me, the burden is on 
you to convince me you will not do the following or you will do the 
following. I don't think that is helpful.
  There have been some occasions in the committee where people have 
acknowledged the great intellect of Judge Roberts. His preparation for 
the job is not in question. I said in committee: If you question his 
intellect, people are going to question yours. He is a genius. There is 
no way of getting around that. He is one of the greatest legal minds in 
the history of the country, and I think he will be a historic choice by 
the President.
  People have suggested: I don't know if he has the real-world 
experience; I know about your brain, but I don't

[[Page S10544]]

know about your heart. I suggest it is dangerous for us in the Senate 
to begin judging other people's hearts. That gets to be a slippery 
  Senator Wyden's statement, I thought, was dead on point. He 
understands the deference the body gives to the President. He pointed 
out, in fact, that Justice Ginsburg and Justice Breyer, two Clinton 
nominees, received 87 votes and 96 votes, respectively. If you start 
applying heart tests, I can tell you that gets to be so subjective and 
so political, and I think it is dangerous for the judiciary and not 
healthy for the Senate.
  One of the issues Justice Ginsburg wrote about was the idea that 
prostitution should be a legal activity because to restrict women from 
engaging in prostitution is basically restricting a woman's right to 
engage in commerce.
  You can agree or disagree, but from my point of view, looking at the 
world as I know it to be as a former prosecutor and former defense 
attorney who has had some experience in criminal law, if I am using the 
heart test or the real-world experience test, I would argue that from 
the experiences I have seen as a criminal defense lawyer and as a 
criminal prosecutor, that prostitution is hell for women; that if you 
really understood the life of a prostitute, it would not be a good 
business endeavor to uphold. It would be something we would want to 

  That is my view based on life as I know it, having been involved in 
the criminal law business for 20-something years.
  She said she supported the idea of Federal funding for abortion. If 
you wanted to try to question someone's heart from a pro-life 
perspective, I think it would be pretty tough to take taxpayers' 
dollars and use them for a procedure that millions of Americans find 
morally wrong.
  So if we start going down the road of whether we believe a person 
before us has the right heart or the right real-world experiences, then 
you are taking the objective qualification, intellect, and character 
test, not an ideologue--which I think is an appropriate thing--and you 
are beginning to put subjective elements in it that will not be good 
for the judiciary and will not be good for the Senate. I can assure 
you, if we started looking at those type of tests for Justice Ginsburg 
or Justice Breyer, who was a Democratic staffer, if we started looking 
at their philosophy or trying to judge their heart or having their 
value system equate with ours to the point we feel comfortable, then 
they would not have gotten nearly the votes they did because it is 
clear to me that not too long ago Republicans, during the Clinton 
administration, overlooked all the differences they had with Ginsburg 
and voted for her 96 to 3 and overlooked all the differences they had 
with Justice Breyer and gave him 87 votes. It is clear to me that 
Democrats and President Bush 1's administration overlooked all the 
differences they had with Justice Scalia, and he got 98 votes.
  It has been mentioned that the President has politicized this 
process, and there have been all kinds of veiled and direct threats 
about the next nominee: If you pick so and so, you are going to get a 
fight. If you pick Priscilla Owen, if you pick Janice Rogers Brown, you 
are going to get a fight, bringing back the specter of the filibuster.
  What did the President do when he ran in his campaign? He talked 
about the Supreme Court and how important it was to him. He said, 
basically: If I am the President of the United States, on my watch, I 
am going to nominate well-qualified, strict constructionists to the 
Court with no litmus test, who will interpret the law and not become 
legislators themselves. He showed praise and admiration for Scalia and 
  I would argue that something is wrong with the Senate if they can 
vote for someone 98 to 0 and say, If you pick someone like him, they 
are out of the mainstream and desiring a filibuster. How can you go 
from 98 to 0, someone similar to the person a decade later, and you 
filibuster? I would argue that if you do that, it is more about 
politics than it is about qualifications.
  I hope we don't do that because the one thing I can assure you, 
knowing the President reasonably well, is that he is going to fulfill 
his campaign promise. He is going to send over to this body a well-
qualified, strict constructionist, and to expect anything else, you 
ignored the last two elections. We are not going to sit on the 
sidelines and watch the election be overturned because of political 
pressure from the left. That is not going to happen.
  I do expect the President to listen, as he did before he nominated 
Judge Roberts. I expect him to consult, as he did before he nominated 
Judge Roberts. I was very pleased and proud of his pick. I am 
encouraging the President to listen to our Democratic colleagues, 
listen to us all. But the most encouragement I could give the President 
is: Fulfill your campaign promise. Do what you said you would do when 
you ran for President. Send us over a well-qualified, strict 
constructionist conservative with no litmus test attached. If you do 
that, then you will have done a good service for the American people 
because you got elected twice telling them what you are going to do.

  I have about 5 minutes, and I will let my other colleagues speak.
  There were a couple of other comments about concerns with this 
nominee. It goes back to the memos. This nominee worked for the Reagan 
administration. He was in his midtwenties, and that has gotten to be a 
bad thing. Working for Ronald Reagan, I think, is a good thing. Justice 
Breyer was a Democratic staffer. No one held that against him. He 
worked for the Democratic side of the aisle in the Senate, and I don't 
remember anyone suggesting that was a bad thing.
  Presidents pick people they know and with whom they are comfortable. 
Clinton was comfortable with Ginsburg, the executive general council 
for the ACLU, someone we would not have picked. He was comfortable with 
Justice Breyer, a former Democratic staffer, someone this President 
would not pick. This President picked someone who worked for his dad, 
President Bush 1, and Ronald Reagan.
  There is an argument out there that adopting the Reagan position on 
extending the Civil Rights Act in toto, without a change, that would 
lead to a reverse discrimination test called ``proportionality'' and is 
out of the mainstream. Ronald Reagan won 49 States. If you can win 49 
States and be out of the mainstream, I would argue the person saying 
you are out of the mainstream is out of the mainstream. If you picked 
someone similar to Scalia and that would justify a filibuster and the 
guy got 98 votes, there is a disconnect going on here.
  One of the memos that is in question is a memo that Judge Roberts 
wrote about the Reagan administration's decision to grant amnesty, for 
lack of a better word, to illegal aliens in this country. He was 
writing a memo to suggest how the President should respond to an 
inquiry by Spanish Today, a Latino, Hispanic newspaper. He talked about 
the idea that it would be well received in the Hispanic community to 
grant amnesty. And he said to the effect that Spanish Today would be 
pleased that we are trying to grant legal status to their illegal 
  Somehow that one phrase has been suggested that this young man, 
working for the Reagan administration, committed some kind of a wrong 
that would deny him the ability to be fairly considered for the Supreme 
Court 20-something years later. I argue, No. 1, that if you read his 
writings in terms of what he was talking about, it was not meant to be 
slanderous, it was not meant to be a derogatory remark--he answered the 
question fully--that it was not meant to be that way at all. That was a 
commonly used term in the White House, the term ``amigos,'' and he made 
a correct observation: that certain Hispanic groups did welcome 
President Reagan's decision.
  Bottom line is, if we are going to take a phrase that a person wrote 
when they were 26, and that is going to be a reason to vote no, woe be 
to anybody else coming before this committee. I would not want that to 
be the standard for me.
  He never apologized because he did not think he had anything to 
apologize about. So this is much ado, in my opinion, about nothing. You 
have read his writings. He used Latin, French, and Spanish terms all 
over the place. He is kind of a witty guy. You may not like his sense 
of humor, but I think it is given sometimes in that vein. The idea 
about, you know, more homemakers becoming lawyers, who said we need 
more homemakers than lawyers--and I

[[Page S10545]]

think a lot of people agree with that, and his wife happens to be an 
attorney, by the way--taking these phrases out of context and not 
looking at life in total is not fair. Not one person came before this 
body or the committee to say Judge Roberts has lived his life in any 
way, shape, or form to demean any group in America or individual. It is 
quite the opposite. He has received praise from everybody he has worked 
with on both sides of the aisle because he is basically a very good 
man. So I hope we will not make that the standard in the future.
  Final thoughts. The vote is not in question in terms of confirmation. 
The process is in question. And that to me is as important as the vote 
total. The President is going to get another pick. That is the way it 
has happened. He has had a lot of things happen on his watch historic 
in nature. Whatever you think about President Bush, whether you like 
him or not, he has had to deal with some major league events. Let me 
tell you, some will go down good and not so good in history. That is 
the life of a President. But one thing I can say for certain is that 
his decision to make John Roberts Chief Justice of the U.S. Supreme 
Court will go down well in history. It will be one of the greatest 
things he has done as President of the United States because he has 
picked one of the most uniquely qualified men in American history to 
serve on a Court that needs all the unity it can find, and this guy 
will be a consensus builder. The next one is coming and it is coming 
soon. There is all kind of jockeying already about what the President 
should do and what he should not do. I hope and pray we will remember 
the best traditions of the Senate, that we will listen to the Joe 
Bidens of the past, when he informed us that our role is to give 
deference to the Presidential nominee, look at their character, 
intelligence, and qualifications; that we will remember what Senator 
Kennedy said about Justice Marshall: it is not your job, we shouldn't 
hold someone's political philosophy against them. We should look at who 
they are and what kind of judge they would be, would they be fair.
  So as the next pick is about to be made, the Senate can fight if we 
want to or we can recognize that elections matter, we can judge the 
nominees based on their qualifications, integrity, and character, 
whether they are going to wear the robe in some improper fashion, or we 
can start putting political tests on the Presidency that will come back 
to haunt everybody and every party. If you want someone such as 
O'Connor--President Clinton did not think 1 minute about replacing 
Justice White with Justice Ginsburg. No one asked him to think about 
that. This idea that you have to have an ideological match is something 
new. What is old and stood the test of time is that Presidents get to 
pick once they win, and our job is to make sure they pick wisely in 
terms of character, integrity, and qualification. And if we will stick 
to that test and not substitute our political philosophy for that of 
the President and not require a political allegiance of the nominee to 
our way of thinking about a particular line of cases or a particular 
concept in law, but judge the entire person, we will have served the 
country well. If we get into the mud and start fighting each other over 
the second pick, because some people don't like how the election turned 
out, then we will set a trend that will come back to haunt this body, 
haunt all future Presidents, and we will be worse off as a nation.
  With that, I am going to end with the idea I am optimistic that we 
will not go down that road, we will give the next nominee the respect 
and deference this nominee has, and we will vote our conscience, and 
the vote will come and the vote will go. And the worst thing we could 
do is politicize the judiciary any more than it has been politicized. 
If you are selected to be on the Supreme Court, there will be millions 
of dollars to run you down and destroy your life, and that is going to 
happen on both sides of the aisle if we do not watch it. The best thing 
the Senate can do is use this opportunity to stand up to those people 
who want to run down somebody and ruin their life unfairly, because our 
day will come as Republicans. If we can unite around the idea we are 
not going to let special interest groups take over the Senate, the 
country will be stronger.
  With that, I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. ALLARD. I congratulate my colleague and good friend from South 
Carolina for a fine statement.
  I also rise today in support of President Bush's nomination of Judge 
John Roberts to serve as Chief Justice of the United States.
  President Bush could not have nominated an individual more qualified 
to be confirmed as the next Chief Justice of the United States. If one 
were to prescribe the ideal training regimen for a future Chief 
Justice, Judge Roberts' career may well serve as the model.
  Judge Roberts has interacted with the Supreme Court in nearly every 
conceivable capacity. After law school, he held a prestigious position 
at the Supreme Court as a clerk to Justice William Rehnquist. He then 
went on to argue 39 cases before the Supreme Court, representing both 
public and private litigants. He currently serves as a judge on the 
U.S. Court of Appeals for the DC Circuit often referred to as the 
second highest court in the land.
  In short, he has worked at the Supreme Court, represented dozens of 
clients before the Supreme Court, and served as a judge on the court 
that many consider a stepping-stone to the Supreme Court. I cannot 
imagine someone more qualified to now serve as Chief Justice of the 
Supreme Court.
  After spending considerable time with Judge Roberts the nominee, I 
came to be equally impressed with John Roberts the man. He is humble, 
unassuming, polite, and respectful. In that respect, he shares the 
values of many of my fellow Coloradans.
  The humility he exudes is reflected in his view on the role of judges 
and the courts. Judge Roberts says:

       [A] certain humility should characterize the judicial role. 
     Judges and Justices are servants of the law, not the other 
     way around.

  He describes himself as a ``modest judge,'' which is evidenced in his 
``appreciation that the role of the judge is limited, that judges are 
to decide the cases before them, they're not to legislate, they're not 
to execute the laws.''
  This judicial philosophy is imperative to preserving the sanctity of 
the Constitution that is under attack by a handful of activist judges 
activist judges who proclaim the Pledge of Allegiance unconstitutional 
and attempt to redefine the institution of marriage. Unlike these 
activist judges, Judge Roberts will be on the side of Constitution.
  As a Senator representing Colorado, I also appreciate the uniqueness 
of the issues important to Colorado and the West. The departure of 
Justice O'Connor, and now Chief Justice Rehnquist, marks the loss of a 
Western presence on the Supreme Court.
  Earlier this year, I asked President Bush to nominate a judge with an 
understanding of issues important to Colorado and the West, such as 
water and resource law.
  I asked Judge Roberts about his understanding of Western resource and 
water law. Judge Roberts acknowledged the loss of the Western presence 
on the Court and assured me that he understands the uniqueness to the 
West of such issues as water, the environment, and public lands.
  He shared his experience working on several cases in the State of 
Alaska, encompassing issues on rivers, Indian law, and natural 
resources. He also described his practice of traveling to the site of 
cases when he believes it is beneficial to his understanding of the 
facts. This practice is demonstrative of his commitment to fully 
understanding cases from the perspective of both sides.
  I was pleasantly surprised to learn that he currently has a law clerk 
from New Mexico. Law clerks sit at a judge's right hand and are 
integral in the judge's decisionmaking process. I am hopeful that Judge 
Roberts will continue to surround himself with individuals who have a 
Western perspective.
  The Senate Judiciary Committee has reviewed Judge Roberts' record 
more extensively than any previous Supreme Court nominee. The 
Administration produced more than 76,000 pages of documents related to 
Judge Roberts' distinguished career in public service. Judge Roberts 
testified for more than 20 hours before the Senate Judiciary Committee.
  During the extensive review process, the country learned a great deal 

[[Page S10546]]

Judge Roberts' fitness to serve on the Supreme Court.
  We learned about his judicial philosophy, one which is firmly rooted 
in the rule of law and unwavering in its reverence for the 
Constitution. I believe his most telling statement was this:

       I come before the Committee with no agenda. I have no 
     platform. Judges are not politicians who can promise to 
     do certain things in exchange for votes. I have no agenda, 
     but I do have a commitment. If I am confirmed, I will 
     confront every case with an open mind. 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 

  We learned that Judge Roberts subscribes to ``the bedrock principle 
of treating people on the basis of merit without regard to race or 
sex.'' His belief in these principles is echoed in praise from several 
women's and minority groups.
  The Minority Business Round Table says ``his appointment to the U.S. 
Supreme Court would certainly uphold our core American values of 
freedom, equality and fairness.''
  The Independent Women's Forum applauds Judge Roberts as a ``very well 
qualified candidate with a reputation of being a strict interpreter of 
the law rather than someone who legislates from the bench.''
  We learned that Judge Roberts recognizes the limitations on the 
government's taking of private property and the role of the legislature 
in drawing lines that the Court should not. The Court in Kelo permitted 
the transfer of property from one private party to another private 
party to satisfy the Constitution's ``public use'' requirement, 
essentially erasing this fundamental protection from its text. Judge 
Roberts says the Kelo decision ``leaves the ball in the court of the 
legislature. . . . [Congress] and legislative bodies in the States are 
protectors of the people's rights as well. . . . [Y]ou can protect them 
in situations where the Court has determined, as it did 5-4 in Kelo, 
that they are not going to draw that line.''
  We learned that Judge Roberts will rely on domestic precedent to 
interpret the U.S. Constitution, not foreign law. Judge Roberts said, 
``as a general matter . . . a couple of things . . . cause concern on 
my part about the use of foreign law as precedent . . . . The first has 
to do with democratic theory. . . If we're relying on a decision from a 
German judge about what our Constitution means, no President 
accountable to the people appointed that judge, and no Senate 
accountable to the people confirmed that judge, and yet he's playing a 
role in shaping a law that binds the people in this country.''
  Given his keen intellect, impartiality, temperament, sound legal 
judgment, and integrity, it is not surprising that Judge Roberts 
enjoyed bipartisan support by the Senate Judiciary Committee. I expect 
that he will enjoy similar bipartisan support in his confirmation vote 
tomorrow morning.
  I want to commend President Bush on the unprecedented level of 
bipartisan consultation he engaged in with the Senate prior to this 
nomination. The Constitution grants the power to the President to 
nominate and the Senate to provide advice and consent. Although 
Senators can provide input, the Senate does not co-nominate. When the 
President sends forth highly qualified candidates, this body has an 
obligation to the American people to provide a timely up-or-down vote.
  I commend my colleagues on the respectful hearings and expeditious 
process. The Ginsburg Standard was applied to Judge Roberts fair, 
respectful hearings; no prejudging of cases likely to come before the 
court; and a timely, up-or-down vote.
  With consultations on the next nominee already well under way, and an 
announcement imminent, I am hopeful that my colleagues will apply the 
same standards.
  Judges are not politicians. The Senate debate should reflect that the 
job of a judge is to review cases impartially, not to advocate issues. 
Judges should be evaluated on their qualifications, judicial 
philosophy, and respect for the rule of law.
  I am confident that President Bush will send forth a highly qualified 
nominee to replace Justice O'Connor, and I am hopeful that my 
colleagues will continue to build on the spirit of bipartisanship 
witnessed during this confirmation process.
  In conclusion, I cannot imagine a better qualified candidate than 
Judge Roberts to lead this nation's highest Court into the 21st 
century. I believe his rhetoric matches his actions.
  On behalf of the citizens of Colorado, I thank Judge Roberts for his 
willingness to serve our country. I am hopeful that the fair and 
respectful hearings accorded to him by this body will serve to inspire 
the best and the brightest of future generations to make similar 
sacrifices in the name of public service.
  I strongly urge my colleagues to cast a vote in favor of Judge John 
G. Roberts' confirmation as the 17th Chief Justice of the United 
  The PRESIDING OFFICER. The Senator from Montana.
  Mr. BURNS. Madam President, after listening to my friend from 
Colorado and my good friend from South Carolina, and then to look at 
the statement that I have, it appears we are all saying about the same 
thing, but we just all haven't had the opportunity to say it yet. I 
will try to put a little different slant on it.
  We know the qualifications of this man, Judge Roberts. He has 
consistently shown me excellence in all aspects of his previous 
academic and his professional career. He is widely thought of as one of 
the best legal minds in the country, is highly respected by his 
colleagues as a fairminded, brilliant, and temperate jurist. He 
graduated from Harvard College summa cum laude. He did it in only 3 
years. He then graduated from Harvard Law School at the top of his 
  Less than 3 years ago, Judge Roberts was confirmed by a unanimous 
vote to the DC Court of Appeals, which is often referred to, as my 
friend from Colorado says, as the second highest court in the land. He 
was also a partner in the prestigious law firm of Hogan & Hartson. He 
specialized in U.S. Supreme Court litigation, arguing numerous cases 
before the very Court to which we seek to confirm him today. Further, 
he had an active practice in appellate law.
  I guess what we look for in the men and women we like to see on the 
country's highest Court is pretty much found in all the qualifications 
of Judge Roberts. He had worked in the private sector. He also worked 
in the White House under President Ronald Reagan as Associate Counsel. 
In addition, he earned a highly prestigious clerkship on the Supreme 
Court for Chief Justice William Rehnquist--that in 1980 and 1981. Then 
he was nominated by this President and went before the Judiciary 
  We watched those hearings with a great deal of interest. I speak not 
as a member of that committee or even as an attorney, but what we heard 
more than anything else--and this is important to my State of Montana--
is that we will have a qualified, fair, and competent Supreme Court 
Justice. That is important. When questioned on all of those 
qualifications, fairness, and competence, no one challenged any part of 
those elements. In this respect, Judge Roberts earned the ``well 
qualified'' rating from the American Bar Association, which is the 
highest rating that association offers. There was no challenge there.
  He continually impressed my colleagues in the Senate by showing his 
immense knowledge of the law while reflecting his vast understanding of 
the rule of law and the importance of precedent. There was no challenge 
  What becomes important is that we know that our Supreme Court 
Justices understand their duty is to interpret the law as it is 
reflected in the cases that come before them and refrain from personal 
biases and from legislating or putting their biases into those cases.
  He impressed me when he said that he wanted to be the umpire. He 
didn't want to be the pitcher or the batter; he just wants to call the 
balls and the strikes. I appreciate that. I spent a lot of years on a 
football field, and I was one of those who wore the striped shirt. When 
I look back on that game, maybe our judiciary should be a little bit 
like this great American sports feature of football. When you think 
about it, 4 old referees--some of them overweight

[[Page S10547]]

whom I could talk about--go out on a field of 22 young men who are 
hostile, mobile, and bent on hurting each other, and we have very few 
problems because those striped shirts are the arresting officers, the 
judges, and the penal officers. They do it in 30 seconds, and they do 
it without very many complaints. Thus the discipline of the game: 22 
young men in armor and dead set on winning the contest.
  Throughout his hearings before the Judiciary Committee, Judge Roberts 
proved over and over that he understands the role of the judiciary as 
an interpreter and not a legislator and why it is important to our 
governmental system that our judges across America refrain from 
overstepping their duties. The law is the law. Yes, it can be a subject 
of interpretation, but look how simple our Constitution is. It doesn't 
use very many big words. They are very simple. There is a lot of 
difference between the word ``may'' and the word ``shall,'' and you can 
interpret them.
  He explained his judicial style during his hearings by saying:

       I prefer to be known as a modest judge . . . It means an 
     appreciation that the role of the judge is limited, that a 
     judge is to decide the cases before them. . . .

  They are not to change it or use their biases to execute a judgment. 
That is pretty important.
  When you look at his private life, the values of how he has 
progressed in his professional life, how he has carried himself and 
what is personally important to him--family, being a good husband, a 
provider--we see all of those values that we Americans hold in very 
high esteem.
  Then we move it over into now what kind of a judge will he be. He was 
questioned on a lot of social issues that the courts have no business 
even considering. That falls on us, the elected representatives of 
America, and our constituency. What their values are should be 
reflected here. Yet what I heard was questions on human rights.

  It is a wonderful thing, this Constitution we have. The Constitution 
was not written for groups, it was written for you as the individual. 
It is your personal Bill of Rights and how we structure our Government 
and the role of each one of those equal entities and how they relate 
and interact with each other--the executive, the judicial, and the 
  It is important to me and the people I represent that we have judges 
on the bench who will not prejudge cases. He may have a bias one way or 
the other, but what does the law say as it pertains to me as an 
individual citizen? This judge made his own commitment to listening, to 
hearing both sides of the case, and is committed to a fair and 
reasonable outcome, whether the judge personally likes or dislikes the 
eventual results. His approach to the law, simply put, is one of 
restraint. He is shown not to be an ideologue with an intent of 
imposing his views or his biases on the law.
  Will he always rule in a way that would be consistent with my 
philosophy? I would say no. I have a feeling, though, however he rules 
will be fair, and he will not compromise any of the principles of the 
law as written. He explained:

       As a judge I have no agenda, I have a guide in the 
     Constitution and the laws that are precedents to the court, 
     and those are what I apply with an open mind after fully and 
     fairly considering the arguments and assessing the considered 
     views of my colleagues on the bench.

  I am not sure if it is the job to really draw a consensus when you 
have nine men and women who have strong views of the law and the 
Constitution and maybe would interpret them in many different ways, but 
what this man has shown us is strong character, integrity, and his 
immense knowledge of the law.
  Uphold the Constitution, which protects us all--and we have heard a 
lot about that lately. People who are maybe short of patience would 
come up to us and ask, What is taking Iraq so long to get a 
constitution? I said, You know, it took almost 3 years to put ours 
  I still question: If we had had television and news channels, spin 
meisters, commentators, and reporters who seemed to inject their bias 
every now and again into the news, I am not real sure we would have a 
Constitution yet.
  This man has shown us he has all the qualifications to be a judge, 
especially a judge on the highest Court in the Nation.
  On behalf of my constituents in Montana, and from all that I can read 
and all the information I can gather, I strongly urge my colleagues to 
join me in voting aye on Judge Roberts as Chief Justice of the United 
  When the premise was wrong, he wasn't afraid to challenge the 
premise. That is unique when coming before any kind of a committee in a 
legislative body. That is what impressed me. The premise is assumed 
instead of factual. That is the importance to all of us when making 
judgments that affect so many of us in our daily lives.
  I thank the Chair. I yield the floor, and I suggest the absence of a 
  The PRESIDING OFFICER (Mr. Coburn). The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. WARNER. 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. WARNER. Mr. President, it is, indeed, a privilege for me to----
  The PRESIDING OFFICER. Will the Senator abstain for a moment.
  Under the previous order, the time from 1 to 2 p.m. is under the 
control of the Democratic side.
  Mr. WARNER. That is correct. I see one of my distinguished colleagues 
rising to be the floor manager of this period of time, but he very 
courteously said I could open up, if that is approved by the Chair.
  Mr. President, as I said, it is a great honor for me to first and 
foremost stand on this floor at this great moment in contemporary 
history. Tomorrow, this Chamber will, I anticipate, with a strong 
bipartisan vote, exercise its constitutional right of giving consent to 
the nomination of John Roberts to serve as the next Chief Justice of 
the United States.
  I am privileged to know the nominee by virtue of the fact that we 
both, at different times in our careers, served in a very prestigious 
and revered law firm in our Nation's Capital, the law firm of Hogan & 
Hartson. When I joined the firm approximately forty-five years ago, 
Nelson T. Hartson was very active in Hogan & Hartson. I had the good 
fortune of being one of his aides-de-camp. Mr. Hartson's philosophy and 
his standard of ethics permeated that law firm then, as they still do 
  As a consequence of our mutual affiliation with Hogan & Hartson, I 
was privileged to be asked by Judge Roberts to introduce him when he 
was nominated by the President to serve on the United States Court of 
Appeals for the District of Columbia Circuit. In the 2 years he served 
on that court, he established an extraordinarily fine record.
  I was privileged to once again introduce Judge Roberts to the 
Judiciary Committee some two weeks ago at the start of his confirmation 
hearing to serve in this highest of positions in our land.
  I would simply say this: As I have come to know this magnificent 
individual, he is, in my judgment, an unpretentious legal intellectual. 
I say that because he is a man of simplicity in habits. He has a lovely 
family. He has a marvelous reputation among colleagues in the legal 
profession who are both Democrats and Republicans and conservatives and 
liberals. He is admired by all. In that capacity, as an unpretentious 
legal intellectual, he is, in my judgment, a rare if not an endangered 
species here in America for his personal habits and extraordinary 
intellect and for the manner he conducts himself every day of his life.
  In fact, in the 27 years I have been privileged to serve in the 
Senate, slightly more than 2,000 judicial nominations have been 
submitted by a series of Presidents to the Senate for ``advice and 
consent.'' John Roberts stands at the top, among the finest.
  I commend our President on making such an outstanding nomination--a 
nomination which will receive strong bipartisan support in the Senate.
  Just 4 months ago, with the judicial confirmation process stalled in 
the Senate, and with the Senate on the brink of considering the so-
called nuclear or constitutional option, there was an aura of doubt, at 
the time, that any Supreme Court nominee would receive a vote 
reflecting bipartisan support.

[[Page S10548]]

  But on May 23, 2005, 14 U.S. Senators, of which I was one, committed 
themselves, in writing, to support our Senate leadership in 
facilitating the Senate's constitutional responsibility of providing 
``advice and consent'' in accordance with article II, section 2.
  In crafting our Memorandum of Understanding, the Gang of 14 started 
and ended every discussion with the Constitution. We discussed how, 
without question, our Framers put the word ``advice'' in our 
Constitution for a reason: to ensure consultation between a President 
and the Senate prior to the forwarding of a nominee to the Senate for 
  Accordingly, in the Gang of 14's Memorandum of Understanding, Senator 
Byrd and I incorporated language that spoke directly to the Founding 
Fathers' explicit use of the word ``advice.'' That bipartisan accord 
reads as follows:

       We believe that, under Article II, Section 2, of the United 
     States Constitution, the word ``Advice'' speaks to 
     consultation between the Senate and the President with regard 
     to the use of the President's power to make nominations. We 
     encourage the Executive branch of government to consult with 
     members of the Senate, both Democratic and Republican, prior 
     to submitting a judicial nomination to the Senate for 
       Such a return to the early practices of our government may 
     well serve to reduce the rancor that unfortunately 
     accompanies the advice and consent process in the Senate.

  With respect to the nomination before us today, I believe that the 
President has met his constitutional obligations in an exemplary way.
  In my view, that consultation between the President and individual 
Senators laid a foundation for the confirmation of John Roberts with 
bipartisan support.
  The Gang of 14's Memorandum of Understanding provided a framework 
that has helped the Senate's judicial confirmation process. It has 
enabled the Senate to have six up-or-down votes on judicial nominations 
and now the Senate is about to confirm Judge John Roberts.
  While I thoroughly understand that President Bush didn't choose a 
nominee that some in the Senate might have chosen if they were 
President, that is not what the Constitution requires. Indeed, in 
Federalist Paper No. 66, Alexander Hamilton makes it clear that it is 
not the Senate's job to select a nominee. It is the Senate's 
responsibility to provide advice to a President on who to nominate and 
then to grant or withhold consent on that nomination. On the other 
hand, it is the President's responsibility, and solely the President's 
responsibility, to nominate individuals to serve on our courts. As 
Hamilton so clearly wrote:

       It will be the office of the President to nominate, and, 
     with the advice and consent of the Senate, to appoint. There 
     will, of course, be no exertion of choice on the part of the 
     Senate. They may defeat one choice of the Executive, and 
     oblige him to make another; but they cannot themselves 
     choose--they can only ratify or reject the choice of the 

  In my view, the Senate was given a meaningful opportunity to provide 
its advice to the President, and the President respected the Senate's 
views when he nominated John Roberts. Soon, the Senate will provide its 
consent to that nomination.
  John Roberts' credentials are well-known and of the highest quality.
  He earned a B.A., summa cum laude, from Harvard College and his law 
degree, magna cum laude, from Harvard Law School. At Harvard Law 
School, he served as managing editor of the Harvard Law Review. 
Subsequent to graduation, Mr. Roberts worked as a Federal law clerk for 
Judge Friendly on the U.S. Court of Appeals for the second Circuit, and 
later as a law clerk for Justice William Rehnquist on the Supreme 
Court. He has worked in the Department of Justice, the Reagan 
administration, the George H.W. Bush administration, and he practiced 
law for many years in private practice.
  But while John Roberts' legal credentials are unquestionably 
impressive, equally important is the type of person that he is. 
Throughout his legal career, both in public service, private practice, 
and through his pro bono work, John Roberts has worked with and against 
hundreds of attorneys. Those attorneys who know him well typically 
speak with one voice when they tell you that dignity, humility, and a 
sense of fairness are hallmarks of John Roberts.
  In my view, all of these traits came across to those of us who 
watched the hearings before the Senate Judiciary Committee. John 
Roberts unquestionably demonstrated a mastery of the law and a 
commitment to decide cases based upon the Constitution and the law of 
the land, with appropriate respect and deference to prior Supreme Court 
precedents. He views his role as one of impartial umpire, rather than 
as one of ideologue with an agenda. He testified to all of this under 
  To me, all of these qualities--John Roberts' legal credentials and 
his temperament--represent the embodiment of a Federal judge, 
particularly a Chief Justice of the United States. And, I am confident 
that the vast majority of the millions and millions of Americans who 
watched his confirmation hearings agree.
  Indeed, the American Bar Association has given John Roberts its 
highest rating, unanimously finding him ``well qualified'' for this 
position. And just slightly more than 2 years ago, the Senate 
unanimously confirmed him for a Federal appeals court judgeship by 
voice vote.
  Before I conclude my statement in support of this outstanding 
nominee, I would like to highlight a few key facts of Senate history 
and tradition with respect to Supreme Court nominees. I find these 
facts particularly illustrative.
  Over the last 50 years, America has seen a total of 27 Supreme Court 
nominees. Six of those nominees received the unanimous consent of the 
Senate by voice vote. Another 15 of those nominees, including seven 
current members of the U.S. Supreme Court, received the consent of the 
Senate by more than 60 votes. In fact, only three nominees to the 
Supreme Court over the course of the last 50 years have failed to 
receive the consent of the Senate.
  Chief Justice Rehnquist was confirmed to the Court as an Associate 
Justice in 1971 with 68 votes in support, and later confirmed as Chief 
Justice with 65 votes. John Paul Stevens received the consent of the 
Senate 98 to 0. Justice O'Connor, Justice Scalia, and Justice Kennedy 
were all confirmed by the Senate unanimously. Justice Souter was 
confirmed via a vote of 90 to 9. Justice Ginsburg was confirmed by a 
vote of 96 to 3. And Justice Breyer received the Senate's consent by a 
vote of 87 to 9.
  Like all of these highly qualified Americans who came before him 
seeking Senate confirmation to the Supreme Court, John Roberts has 
earned, over a lifetime, the strong vote of bipartisan support he is 
about to receive.
  Mr. President, I will yield the floor to my distinguished colleague 
at this time who will be the manager of this period. I say to my 
colleague, thank you for participating in the Gang of 14, as we have 
become known. Perhaps in the course of our remarks today we can talk 
about the mission, the challenge of that group, and how, in my humble 
judgment, we did succeed in enabling our leadership to once again put 
in motion the Senate's role in the confirmation of those nominated by 
our President for the Federal judiciary.
  I think back when there was a great uncertainty about that process, 
and even some thought of invoking certain rules of the Senate by way of 
change, and how my distinguished colleague from Nebraska and I stood, 
with others in that group, and were able to lay a foundation which, I 
say with a deep sense of humility, may well have contributed to our 
being here today and casting that historic vote tomorrow.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. NELSON of Nebraska. Mr. President, I first thank you for the 
opportunity to speak today. And I say to my distinguished colleague 
from Virginia, it was a pleasure to get to know you better through the 
Gang of 14 in our efforts to bring about advice and consent with the 
White House in the nomination process for the Supreme Court.
  It is always difficult to take either less or more credit than you 
deserve, but I think in this situation, by working together, we were 
able to bring the Senate into fulfilling its obligation to deal with 
the confirmation of judicial nominees. It made it possible for us to be 
able to have a nomination and a process that works so well that it will 
now result in an up-or-down vote on Judge Roberts.
  The Senator from Virginia is right. There were suggestions that we 

[[Page S10549]]

to change the rules because of certain practices on the part of certain 
Members of the Senate that raised doubts about the process, whether we 
could get up-or-down votes on judicial nominees, particularly appellate 
court nominations and perhaps Supreme Court nominees. But by working 
together, we found a solution that I believe in very many ways held on 
to the traditions of the Senate that are good but also invoked a 
process that has resulted now in what we are going to be able to 
accomplish tomorrow. We were able to refuse to engage in extreme 
partisanship but worked together in partnership to develop a 
compromise. We paved the way. We preserved the traditions. And I 
believe in some respects we have also assisted in leading to the 
historic outreach by the White House to an overwhelming number of our 
colleagues for their input under the advice and consent portion of our 
agreement that we shared with the White House.
  I personally thank the White House for reaching out. The 
administration has reached out to many of our Members on several 
occasions. Most recently, I had the pleasure and the privilege of being 
contacted for my thoughts about the next nominee and the process that 
would be used there.
  I think we have also learned not to believe everything we hear about 
the Senate not being able to accomplish much, the criticism that 
Senators are lost in partisanship and deadlock through the 
unwillingness of people to compromise or be able to work together. I 
believe we disproved that theory with this Gang of 14.
  We have gone through divisive elections. We know America needs to be 
brought together. We do not seek to further divide ourselves. We need 
to work together. It gave us an opportunity to, in many ways, reduce 
the partisan tension that was ripping this body to the extent that it 
was difficult to get anything done, particularly as it might have been 
difficult to get through the nomination process for the Supreme Court.
  So it is a pleasure for me to be here on the floor and a real 
privilege to be associated with my colleague from Virginia. We have 
been joined by other members of the Gang of 14 who I know have some 
similar thoughts they would like to express.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia is recognized.
  Mr. WARNER. Mr. President, if I might say, the distinguished Senator 
from Nebraska was a leader among the Gang of 14. I say to the Senator, 
I guess you might say you were one of the ``Founding Fathers'' of that 
group, and modesty prevents you from acknowledging that leadership. We 
are joined on the floor by two of our colleagues. I purposely scheduled 
my appearance to coincide with members of the Gang of 14 whom I am 
privileged to be with today.
  But I think, as the Senator pointed out about the advice and consent 
clause, we, the Gang of 14, want to acknowledge the important 
contribution of Senator Byrd of West Virginia. He and I sort of 
partnered together to draw up that short paragraph which recognizes and 
points out the Founding Fathers put the word ``advice'' in the 
Constitution for a specific purpose. As the distinguished Senator from 
Nebraska said, indeed, our President fulfilled that. But I wanted to 
acknowledge Senator Byrd's very major participation in our group.
  The PRESIDING OFFICER. The Senator from Colorado is recognized.
  Mr. SALAZAR. Mr. President, I rise today to comment with respect to 
the Gang of 14. I join my good friend from Nebraska and my good friend 
from Virginia and my good friend from Arkansas here today in again 
reminding ourselves as a Chamber that the 14 Members of the U.S. Senate 
who came together came here to do good. What they decided to do and we 
decided to do in the formation of that agreement was to transcend 
partisan politics to try to find a common purpose for the benefit of 
this great institution, the U.S. Senate, and for the benefit of our 
  I commend the leadership, particularly of our senior members of that 
group of 14 Senators, including the great Senator from West Virginia, 
Robert Byrd, who worked closely with the Senator from Virginia, 
especially on the advice and consent portions.
  All of the members of the group were very instrumental in putting the 
compromise together.
  I would offer two observations with respect to that process and that 
agreement. The first is, it is my hope, as the newest Member of the 
U.S. Senate, the Senator who still ranks No. 100, that this is a kind 
of template that can be used as our Nation faces difficult issues in 
the future. We were able to put aside partisan politics to get beyond 
the gridlock that had existed in this body for some period of time.
  We must be able, as a Chamber to do the same thing with respect to 
other very difficult issues, such as the Federal deficit or how we 
engage in the recovery of the gulf coast or how we deal with the issues 
of health care, because my involvement in this group was based on the 
fact that I believe it is our responsibility as leaders in our country 
to get about doing the people's business. What was happening was we had 
gotten too involved in this impasse that had been going on for a very 
long time.

  The second point I wish to make is to underscore the importance of 
the advice and consent provision of our Constitution. It was Senator 
Byrd and Senator Warner who believed it was important to include that 
provision as part of the agreement. It was in recognition there is a 
joint responsibility between the President of the United States and the 
Senate in the appointment and confirmation of persons to the bench that 
that advice and consent provision really needed to be part of that 
  From my point of view, it is very important that advice and consent 
provision of the Constitution be honored because of the fact that, as 
we make our decisions, it is very important that these decisions, which 
will have a long-lasting impact on the history of America, be based on 
the most informed consent possible. The way you get the most informed 
consent possible is that there be a communication and a free flow of 
information between the President and the White House and the members 
of the Judiciary Committee and this body.
  So I again commend the Senators from Virginia and West Virginia for 
having worked so hard on that long weekend to craft language that 
became a keystone of this document.
  Finally, I would say that through this process I also became 
comfortable with Judge Roberts, recognizing that he is in the 
mainstream of political and, more importantly, legal thought of 
America. I think the Members who were part of this group, led by the 
Senator from Nebraska and the Senator from West Virginia, are also part 
of that mainstream of America.
  Mr. President, I thank my colleagues from Virginia and Arkansas and 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. PRYOR. Mr. President, one of the things that was surprising to my 
constituents in Arkansas is that I would actually come to Washington, 
DC, and join a gang. They sometimes wonder what we do up here and why 
we do it. I am very proud to be part of this gang, with my 13 
colleagues who stood tall and exercised some of the best traditions and 
best judgment that Senators can. One of the lessons we learned through 
the Gang of 14 process and trying to take the nuclear option off the 
table--and also trying to get some up-or-down votes on some more 
nominees--is that good things happen when Senators talk to each other.
  I have learned since I have been in Washington that we spend a lot of 
time talking about each other and not enough time talking to each 
other. I hope this serves as an object lesson. It shows we can work 
together in this political environment. The truth is, we talk about how 
bad things are, and sometimes they do get bad. But basically, we are 
all sent here by our States. Each State gets two Senators. Even the two 
Senators from the same State don't always agree. We don't have to 
agree. But certainly all 100 of us should, as the Book of Isaiah says, 
reason together. We should come together and put the country first and 
put others' interests ahead of our own. We should try to continue to 
work together and build on not just a bipartisan approach but in many 
ways a nonpartisan approach where we look at

[[Page S10550]]

the challenges facing our country and try to approach those as best we 
possibly can.
  I know a lot of people around the country and in this Chamber and 
this city are focused on the next nomination. We haven't even had a 
vote on John Roberts. Nonetheless, a lot of people are concerned about 
the next nomination. I understand that. In some ways, and rightfully 
so, we should be focused on that. My colleagues have touched on it 
already. But part of the language Senator Warner and Senator Byrd 
crafted during this agreement--we all helped in different ways on this 
language and had our thoughts incorporated in the language, but Senator 
Byrd and Senator Warner took the lead on the language--is the advice 
and consent portion of the agreement. Basically all we do is encourage 
the President to take the Constitution literally. When the Constitution 
says that it shall be with the advice and consent of the Senate, we 
take that literally. We hope the President will seek our advice.
  Supposedly either the President or the White House reached out to 
about 70 of us when we received the John Roberts nomination. That 
works, and that is very positive. I hope we see that again.
  Some of my constituents in Arkansas have asked me: Don't you have 
some anxiety about John Roberts? Gosh, he used to work for the Reagan 
administration. There are things in his background that various people 
don't agree with.
  My response is: Certainly, I have anxiety about John Roberts. I have 
anxiety about any nominee that any President will nominate to the 
Supreme Court. It is a lifetime appointment. There is no question about 
the influence and the impact that one Supreme Court Justice can have on 
the American system of justice and on American society. I have anxiety 
about anybody. I certainly have some about John Roberts. But 
nonetheless, he has the right stuff to be on the Court.
  I am proud of the courage my colleagues showed in the time when it 
mattered and we came together and worked it out, the Gang of 14.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, today I am announcing my support for Judge 
John Roberts to be Chief Justice of the United States.
  From the beginning, I told the White House I would like to see a 
nominee that the vast majority of the American people would say, yes, 
that is the quality of person who ought to be on the Supreme Court. 
When the nomination of Judge Roberts was first announced, my initial 
impression was that he met that test. I had a chance to visit with him 
personally at some length in my office, and I concluded from that visit 
that Judge Roberts is exceptional. Not only is he of high intelligence 
and strong character, he also is someone of midwestern values of 
honesty and decency.
  I have looked at his record. I find that he is in the judicial 
mainstream. Yes, he is a conservative, but my own belief is that the 
Court is strengthened by a range of views. I don't think we should have 
all progressives or all conservatives. We need to have people of 
differing views and differing backgrounds to make the Supreme Court 
function appropriately.
  When Judge Roberts came to my office, I asked him about his 
association with Judge Friendly. He clerked for Judge Friendly. He is 
reported to be very impressed by Judge Friendly's service. I asked him 
what impressed him about Judge Friendly. He told me one of the things 
that most impressed him is that Judge Friendly did much of his own 
work. He didn't just rely on clerks to do the work. I also asked him 
what else impressed him about Judge Friendly.
  He said: You know, you could not tell whether he was a liberal or a 
conservative, a Democrat or Republican. All you could tell from his 
rulings was that he had profound respect for the law.

  I thought that was a pretty good answer. I went on to ask him: Judge, 
at the end of your service, how would you want to be remembered?
  He said: I would want to be remembered as a good judge, not as a 
powerful judge but as a good judge.
  I said to him: What does that mean to you, being a good judge?
  He said to me: Listening to both sides, putting aside one's personal 
prejudices to rule based on the law. He said: I have a profound respect 
for the law.
  In the confirmation hearings, we saw Judge Roberts perform 
brilliantly. His mastery of the law, his judgment, his demeanor 
confirmed for me that he is someone who deserves my support.
  Beyond that, I had a chance to talk to Judge Roberts again on the 
phone last week. I said: Judge, I saw in your confirmation hearings 
that you said you are not an ideologue.
  He said: Senator, I can tell you, I do not bring an ideological 
agenda to the court. What I bring is a profound respect for the law.
  I told him I believed him. I think he is absolutely conservative. 
That is not disqualifying. I also think he is somebody of extraordinary 
talent and somebody who will listen to both sides and rule based on the 
law. He has a healthy conservatism, believing that the job of a Justice 
is not to make the law but to interpret the law. That is the 
appropriate role for a judge in our system. He has it right with 
respect to that issue.
  I believe Judge Roberts has the potential for greatness on the Court. 
Rarely have I interviewed anyone in my 19 years who so impressed me 
with the way their mind works and their basic demeanor. I have 
interviewed others who struck me as arrogant and pompous and filled 
with themselves, somebody I would never want to have in a position of 
power over the people I represent. I do not feel that way in the least 
bit about Judge Roberts. He is someone who is steady and even. He is 
somebody who is thoughtful and quite exceptional.
  I know there are groups who feel very strongly on one side or 
another. There are colleagues who have made different judgments. I 
respect that. But I believe Judge Roberts is the kind of nominee who 
deserves our support, and he will have mine.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank our distinguished colleague from 
North Dakota. That was truly a beautiful set of remarks. It is not just 
that you indicated that you will cast your vote in support; it was a 
very thoughtful reflection on a very important responsibility we as 
Senators have.
  I thank again the Senator from Nebraska, the Senator from Arkansas, 
the Senator from Colorado. We have been a team together for some time. 
I am delighted to have had the privilege to be here on the floor with 
each of them.
  In conclusion, I reflect back on, once again, the Federalist Paper 
No. 66 in which Alexander Hamilton said: It will be the office of the 
President to nominate and, with the advice and consent of the Senate, 
to appoint. There will, of course, be no exertion of choice on the part 
of the Senate. They may defeat one choice of the executive and oblige 
him to make another, but they cannot themselves choose. They can only 
ratify or reject the choice of the President.
  We are on the eve of accepting that choice, giving our consent. 
Again, in my 27 years in this institution, I cannot recall a more 
humble and yet enjoyable group I have worked with than these 14 
Senators. It had been my hope that our distinguished colleague from 
West Virginia could join us today. I asked him and he said he would if 
he possibly could. But were he here, we would all stand again and thank 
him for his guidance as we worked through this situation.
  I thank my colleague from Nebraska and yield the floor.
  The PRESIDING OFFICER. The Senator from Nebraska.
  Mr. NELSON of Nebraska. Mr. President, I thank my colleague from 
Virginia for his wise counsel through the process of bringing together 
13 other colleagues to bring about a confirmation process and 
nomination process that has worked. Now we are on the eve of this 
confirmation vote on the 17th Chief Justice of the United States. The 
question is, what is next? We also have another Supreme Court vacancy 
to fill. I hope the President and the White House will continue to 
reach out and seek the advice of our colleagues so we

[[Page S10551]]

can face that nomination with the same kind of input we did in the case 
of Judge Roberts.
  Let me say that the late Senator from Nebraska Ed Zorinsky said on so 
many occasions that in Washington there are too many Republican 
Senators and too many Democratic Senators and not enough United States 
Senators. I can say as the gang of 14 got together, there were less 
Republicans and less Democrats than there were United States Senators, 
anxious to work and bring about a resolution to the judicial impasse, 
but also to pave the way for where we are today and where we are going 
to be tomorrow and where we are going to be in the next confirmation 
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the time from 2 to 3 
p.m. will be under the control of the majority.
  Mr. SUNUNU. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. TALENT. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Sununu). Without objection, it is so 
  Mr. TALENT. Mr. President, I ask unanimous consent that the next hour 
under majority control be allocated as follows: 15 minutes for Senator 
Talent, 10 minutes for Senator Vitter, 15 minutes for Senator Thune, 
and 20 minutes for Senator Bunning.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. TALENT. Mr. President, it is really a privilege for me to spend a 
few minutes visiting with the Senate about Judge Roberts. He is 
probably the most analyzed and evaluated Supreme Court nominee ever. 
Based on my study of his record and my discussions with him--which have 
certainly not been extensive but have been enough to help me get a feel 
for the man--I believe that he will turn out to be one of the best 
Chief Justices ever.
  We have learned a great deal about who he is. We know about his 
extraordinary professional accomplishments. We have seen the 
overwhelming bipartisan support that he has earned from his colleagues 
in the legal profession. We heard from John Roberts himself on the rule 
of law, on the judicial role, and the kind of service he intends to 
provide to the Nation as Chief Justice should the Senate confirm him.
  I said before he is one of the most analyzed and evaluated Supreme 
Court nominees. He spent almost 20 hours before the Judiciary Committee 
while Senators asked him 673 questions. Senators then asked him 243 
more questions in writing. And I am sure he thought the bar exam was a 
struggle. Judge Roberts provided nearly 3,000 pages to the Judiciary 
Committee, including his published articles, congressional testimony, 
transcripts from interviews, speeches, and panel discussions, and 
material related to the dozens of cases he argued before the U.S. 
Supreme Court.
  The Judiciary Committee obtained more than 14,000 pages of material 
in the public domain. And as if all of that were not enough, the 
committee obtained a staggering 82,943 pages of additional material 
from the National Archives and both the Reagan and Bush Libraries 
regarding Judge Roberts' service in those administrations.
  If you total that up, there was more than 100,000 pages of material 
on a 50-year-old nominee, which amounts to 2,000 pages for every year 
of his life.
  What did all that material reveal? Simply put, that Judge Roberts is 
one of the finest nominees ever to come before the Senate. His 
professional record speaks for itself, but I am going to speak about it 
for a minute.
  He was an excellent student. He graduated from Harvard--I can forgive 
him that--in only 3 years as an undergrad. I am a University of Chicago 
lawyer myself. He became the top graduate in law school and became 
editor in chief of the Harvard Law Review. He served as clerk for Judge 
Friendly, who was, by consensus, one of the greatest circuit court 
judges ever. He served as clerk for Chief Justice Rehnquist. He went on 
to become Deputy Solicitor General of the United States. He became one 
of the top partners in one of the top law firms in the country and 
argued 39 cases before the Supreme Court. In 2003, he was confirmed 
unanimously by this Senate to be a judge on the Court of Appeals for 
the District of Columbia Circuit.
  We learned a lot about him as a person as well. He embodies the idea 
of being fair, being thoughtful, and being capable. He is certainly 
hard working. He is certainly brilliant. He managed his testimony 
before the Judiciary Committee without a note. He is a man of 
integrity, he is honest, and he is devoted to his family.
  Those are the qualities we want in the men and women who serve our 
Nation on the High Court. They are the kind of qualities that will move 
America forward and move the judicial branch forward, and more on that 
in a minute or two.
  He has proven beyond any doubt that he has the qualifications, the 
temperament, the knowledge, and the understanding to serve as America's 
next Chief Justice. I was particularly impressed by the humility he 
showed through the process. I think it is very important that judges 
have a judicial temperament and, for me, that begins with the idea of 
  When you are a judge, the people who come before you have to treat 
you with respect because of your position. You should conduct yourself 
in that position so they want to treat you with respect, they feel that 
is owing to you, not just because of your office but because of how you 
conduct yourself in office.
  I would hazard to say even those who will oppose his nomination for 
other reasons would agree that he has that kind of a temperament. He 
wants to be on the Court because he loves the law, and he wants to be a 
judge because he wants to serve the United States of America. Those are 
the right reasons to want to be on the Supreme Court of the United 
  We have had this opinion ratified by the individuals who know him the 
best--by his colleagues on the bar, Democrats and Republicans alike, 
who have overwhelmingly supported his elevation to the Supreme Court. I 
think it is very important when you look at judicial nominees to make 
certain they have support from people from all parts of the political 
spectrum and all parts of the jurisprudential spectrum.
  A point I made on other occasions on this floor about judicial 
nominations is that it is misleading in a way to talk about a judicial 
nominee being in or out of the mainstream of American jurisprudence 
because the truth is, there is more than one mainstream. Lawyers are 
divided over which jurisprudential theory ought to guide judges in 
interpreting statutes and interpreting the Constitution. They may 
differ as to theories or constructs, if you will, as they approach 
different parts of the Constitution.
  There is not one mainstream, and often there is not any one 
completely correct answer when you are interpreting a vague provision 
of the Constitution. But that does not mean there are no incorrect 
answers. Just because reasonable people looking at the history and the 
text of the document might disagree as to what is exactly the right 
answer does not mean there are no wrong answers.
  The wrong answer, as Judge Roberts said so eloquently and so often in 
his testimony, is one that does not respect the rule of law. A wrong 
answer is one that is based on an idea of the judicial role that allows 
the judge to do whatever he or she thinks they would want to do if they 
were in control of the policy in issue. Whatever their theory 
of interpreting the Constitution is, they should be consistent in 
applying it. They should be circumscribed by their own jurisprudence. 
They should have a standard against which they measure their decisions, 
and that standard has to be other than their own predilections on the 
underlying issue.

  It is one thing to be ruled, to some extent, by judges. We are 
talking about officers of the Government. So the decisions have the 
power of law, and we have always, to some extent and in appropriate 
ways, been ruled by judges. It is another point to be ruled by judicial 
whim. This is the distinction Judge Roberts made over and over again, 
for which I think we should all be grateful.
  Because of his attitude in that respect, more than 150 Democratic and 
Republican members of the DC Bar, including well-known Democrats such 

[[Page S10552]]

Lloyd Cutler and Seth Waxman, wrote to the Senate calling Judge Roberts 
one of the very best and most highly respected appellate lawyers in the 
  The American Bar Association has given Judge Roberts a rating of 
``unanimously well-qualified,'' its highest possible rating. As Steve 
Tober, the chairman of the ABA Standing Committee on the Federal 
Judiciary, explained: Judge Roberts has the admiration and respect of 
his colleagues on and off the bench, and he is, as we have found, the 
very definition of collegial. This is another quality that I hope and 
believe Judge Roberts will bring to the role of Chief Justice. I think 
he can operate in that Court in a way that pulls the Justices together 
where their convictions honestly allow them to be pulled together. It 
is one thing to disagree when you have strongly different opinions on 
the jurisprudential matters before the Court; it is another to disagree 
because over time you have become part of one faction or you have 
become alienated or estranged on some other grounds from some of the 
other Justices.
  That is not good, and I believe, just my gut opinion after talking 
with him and watching him is that this is a person who can lower the 
temperature on the Court, who can shed light rather than just heat on 
many of the issues that are before the Court.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 6 minutes remaining of the 15 
minutes allocated.
  Mr. TALENT. I did not want my eloquence to outstrip the time I had 
available, Mr. President, so thank you for that.
  We have heard a lot from Judge Roberts himself, and maybe it is good 
for me to close by quoting some of what he has said about the judicial 
function. I thought he did an excellent job of explaining to people 
what the judicial role is. Of course, to explain something clearly you 
have to, to some extent, oversimplify it, and he admitted the times he 
was doing that.
  He talked about the judge being the umpire, and somebody else 
basically writes the rules. The judge is the umpire. Believe me, that 
gives plenty of discretion and authority to the judge to develop the 
law in one direction or another but to develop it within the 
constraints of an objective rule of law.
  Judge Roberts said about this:

       If the people who framed our Constitution were jealous of 
     their freedom and liberty, they would not have sat around and 
     said, ``Let's take all the hard issues and give them over to 
     the judges.'' That would have been the farthest thing from 
     their mind. Now judges have to decide hard questions when 
     they come up in the context of a particular case. That is 
     their obligation. But they have to decide those questions 
     according to the rule of law, not their own social 
     preferences, not their policy views, not their personal 
     preferences, but according to the rule of law.

  That leaves room for Supreme Court Justices, for the rule of law, to 
include their views developed over time carefully with respect to 
colleagues and arguments from litigants about how particular provisions 
of the Constitution ought best to be interpreted in a range of cases so 
as to reflect the purposes of the document and the impulses of the 
  There is room there for that, but always according to the rule of 
law, not according to a desire to make the case or make the result be a 
particular thing, or to make Americans live the way the judge wants 
them to live, rather than the way they have chosen to live in the 
decisions they make about their own lives or the decisions they make 
through their representatives. I think Judge Roberts understands that. 
He understands that is a judicial role with which we can all live.
  He clerked for Judge Henry Friendly. Another great court of appeals 
judge--he had an interesting name--was Learned Hand. If I had met his 
parents, I would have asked them why they called him Learned Hand, but 
they did. Judge Hand said one time, and he was referring to the same 
thing Judge Roberts was referring to about the rule of law: I would not 
choose to be governed by a bevy of platonic guardians even if I knew 
how to choose them, which I most assuredly do not.
  The first right, the first birthright of every American, is to 
participate through the representative process in their own governance. 
The first and most basic right is the right to govern yourself through 
the processes set up in our Constitution. And it is not out of a desire 
to avoid difficult decisions but out of a respect for that right that 
Judge Roberts talked about the rule of law. He manifested in those 
hearings a confidence that I think we should all reflect on in the 
judgment and the decency of the American people. It is OK, whether your 
views about social policy are on the rightwing or whether they are on 
the leftwing, whether they are someplace in the middle, it is OK 
basically to leave the development of our culture and our society to 
the wisdom and the decency of the American people. The center will 
hold. The people will move us in an orderly and decent direction as 
they have for 200 years. We don't need to be ruled by platonic 
guardians or dictators, whether they are in the form of judges or 
anybody else. There is plenty of scope, in the Senate, on the other end 
of Pennsylvania Avenue, and in the Supreme Court building as well, for 
the exercise of individual leadership and appropriate discretion to try 
to move the people in a direction that we think is appropriate, with 
their consent. But there is no reason to feel out of some fit of 
desperation or panic that courts or anybody else have to make the 
American people do something they have not chosen the orderly processes 
to do. That is what Judge Roberts meant when he was talking about the 
rule of law.
  That is why I believe, because of that and also his professional 
qualifications, he is going to do an outstanding job as Chief Justice 
of the United States, and that is why I think he will be confirmed by 
an overwhelming majority of this body.
  I thank the Chair, and I yield back whatever remains of my time.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
South Dakota is recognized for 15 minutes.
  Mr. THUNE. Mr. President, I rise today to voice my strong support for 
the nomination of Judge John G. Roberts to be Chief Justice of the 
United States. This is a historic moment, Mr. President, as many of my 
colleagues have already noted. This moment marks only the 17th time in 
the history of our Republic that the U.S. Senate has considered a 
nominee to be Chief Just1ce.
  As one of the Senate's newest Members, it is a great privilege for me 
to participate in this process. To have had only 16 individuals lead 
the judicial branch of government in our history illustrates the most 
important characteristic of the judicial branch, and that 
characteristic is lifetime tenure.
  I believe the guiding question for each of us in determining a 
nominee's fitness for this post should be whether the person is 
dedicated to applying the Constitution to every case considered by the 
Court, and not adding to or changing the Constitution's text to suit 
his or her own personal policy preferences.
  I was pleased to have met privately with Judge Roberts just 
yesterday. I came away from that meeting even more convinced that this 
man has the ability and temperament necessary to lead the Supreme 
Court. I believe Judge Roberts is dedicated to the rule of law and the 
principle of judicial restraint, and most importantly, will not 
substitute his own policy preferences for those of the elected 
representatives in the executive and legislative branches of our 
  The Supreme Court gets the last word on some of the most challenging 
and divisive issues of our day. Because Federal judges and justices 
have lifetime tenure, we must ensure that those who populate Federal 
bench are people of strong character and high intellect, with a 
passionate commitment to applying the law as it is written, rather than 
legislating from the bench.
  Judges and justices must say what the law is, not what they believe 
it should be. That is the job of the Congress. That is what the authors 
of the Constitution intended.
  I believe Judge Roberts' career embodies these principles. As Judge 
Roberts stated during his hearing, judges are like umpires, and umpires 
don't make the rules, they apply them. I do not believe Judge Roberts 
will engage in the judicial activism that we have witnessed on the 
Supreme Court and the lower Federal courts in the past few decades.

[[Page S10553]]

  Even in the recent past, we have witnessed several instances of 
judicial activism. Judicial activism manifests itself when justices 
detect ``penumbras, formed by emanations'' in the Constitution, as 
Justice Douglas did in the case of Griswold v. Connecticut--in other 
words, judges who rely on their personal views rather than the 
Constitution when deciding matters of great importance.
  We have seen what damage the Supreme Court is able to do when it is 
composed of individuals who are not committed to judicial restraint. 
Instead of acting as umpires and applying the law, some on the Supreme 
Court and the Federal bench are pitching and batting.
  The most recent example came in the case of Kelo v. City of New 
London, decided just this past June. As you know, Mr. President, the 
Constitution says the government cannot take private property for 
public use without just compensation. However, in the Kelo case, the 
Supreme Court emptied any meaning from the phrase ``for public use'' in 
the fifth amendment.
  In Kelo, the Supreme Court held that a city government's decision to 
take private homes for the purpose of economic development satisfies 
the ``public use'' requirement of the fifth amendment. This case makes 
private property vulnerable to being taken and transferred to another 
private owner, so long as the government's purpose for the taking is 
deemed ``economic development.''
  While I understand that many of the principles reflected in the 
Constitution are written broadly, and sometimes can be subjected to 
conflicting interpretations, I think we can all agree that the Supreme 
Court cannot be adding or deleting text from the Constitution. Yet that 
is what happened in the Kelo case. The majority effectively deleted an 
inconvenient clause in the fifth amendment.
  The Supreme Court is also engaging in a troubling pattern of relying 
upon international authorities to support its interpretations of the 
laws of the United States. In Atkins v. Virginia, the Court cited the 
disapproval of the ``world community'' as authority for its decision. 
In Lawrence v. Texas, the Court cited a decision by the European Court 
of Human Rights as authority for that decision. Most recently, in Roper 
v. Simmons, the Court cited the U.N. Convention on the Rights of the 
Child--a treaty never ratified by the United States--as authority for 
that decision.
  Article II, section 2 of the Constitution requires two-thirds of the 
Senate to ratify a treaty. Democratically elected Members of the 
Senate, accountable to the people, have refused to ratify the U.N. 
Convention on the Rights of the Child.
  Unfortunately the Supreme Court chose to ignore this fact and based 
their judgment in part on a treaty never ratified by the United States. 
Clearly, some on the Supreme Court are substituting the policy 
preferences of democratically elected representatives with their own. 
This is judicial activism at its worst.
  As we near the completion and expected confirmation of Judge Roberts, 
I want to take a moment and look ahead as the President will soon make 
another nomination to the Supreme Court. It is important that the 
nominee to replace Justice O'Connor share Judge Roberts' commitment to 
judicial restraint and dedication to the rule of law. It is important 
because the Supreme Court will be considering several cases in the near 
future that may have far-reaching consequences.
  The Supreme Court will probably consider the Pledge of Allegiance 
case that was recently decided in the Ninth Circuit at the district 
court level. In that case, the district court held that the words 
``under God'' in the Pledge of Allegiance violate the establishment 
clause of the first amendment. However, in the Fourth Circuit, the 
appellate court came to the opposite holding--that the Pledge of 
Allegiance did not violate the establishment clause. Where there are 
conflicting holdings in the lower courts, the Supreme Court must become 
the final authority on the matter, and it is important that Judge 
Roberts and individuals who share his approach are on the court to 
confront this issue.
  During the next term, the Supreme Court will also consider a case 
about a State's parental notification law and possibly a case about 
partial-birth abortion. Again, these are instances where the Supreme 
Court will have the last word on one of the most divisive moral issues 
of our time. It is critical that those who confront these cases are 
deferential to the elected branches of our government, exercise 
restraint, and follow the law.
  After our confirmation vote tomorrow on Judge Roberts, the President 
will forward his nominee to fill the seat vacated by Justice O'Connor. 
It will then become our duty in the Senate to provide our advice and 
consent on that nomination. It is a responsibility that we should all 
take very seriously. The manner in which we handle that nomination will 
say a lot about the Senate as an institution.
  I read in today's edition of the Washington Post that several of our 
Democratic colleagues, as well as the Democratic National Committee 
chairman, are already threatening to filibuster the next nominee to the 
Supreme Court. It is shocking to me that they are threatening a 
filibuster of the next nominee before they even know who the nominee is 
going to be. They are even threatening to filibuster possible nominees 
who were just confirmed to the appellate courts and explicitly included 
in the Memorandum of Understanding that seven Democrats and seven 
Republicans signed onto last May.
  That is wrong and the American people will see it for the blind 
partisanship that it is. I would remind my colleagues on the other side 
of the aisle that they have sworn to uphold the Constitution through 
their representation in this body, not to thwart its intent or reshape 
its application to suit the nattering liberal elite and their special 
interest groups. I implore my Democratic colleagues not to blindly 
abuse the filibuster. These threats are symptomatic of the breakdown of 
the nomination process, and they must stop.
  The process by which justices and judges are nominated and confined 
has degenerated to a point where ideological litmus tests are too often 
applied and nominees are torn apart by personal attacks.
  The nomination process should not be brought down to the level of 
personal attacks on the nominee or fishing expeditions into the 
nominee's political allegiances. I believe there is a lot of room for 
improvement in the process, and I hope to see such improvement as we 
consider the next nominee.
  One ideological litmus test I am hearing about a lot these days is 
that the Supreme Court must somehow maintain its ``balance.'' Where in 
the Constitution does it say that a certain balance must be maintained 
on the Supreme Court? According to the Constitution, the President is 
entitled to nominate the individuals he desires to have on the courts, 
and we in the Senate must determine whether the nominee is fit and 
qualified. There should be no ideological litmus test for nominees. If 
a nominee is fit and qualified, he or she should be confirmed.
  I believe Judge Roberts is eminently fit and qualified to serve as 
the next Chief Justice. I will proudly cast my vote for him, and I urge 
my colleagues to do the same.
  Thank you, Mr. President. I yield the remainder of my time.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Louisiana is recognized for 10 minutes.
  Mr. VITTER. I thank the Chair.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Louisiana is recognized for 10 minutes.
  Mr. VITTER. I thank the Chair.
  I, too, rise in strong support of the nomination of John Roberts to 
be Chief Justice of the U.S. Supreme Court. I do that for two reasons, 
two equally important reasons. One is the strong qualification and 
background of Judge Roberts. But the second and perhaps just as 
important or even more important is the fact that this nomination and 
this confirmation process I believe has gotten us back as a Senate, as 
a country to the process that the Founders intended and the sort of 
values and the sort of qualifications, the sort of judgment by the 
Senate that the Founders intended.
  We are finally remembering that it is the President's prerogative to 
nominate qualified persons to fill judicial vacancies, and in the past 
the Senate

[[Page S10554]]

has accorded great deference to the President's selection. Justice 
Ginsburg was overwhelmingly confirmed 42 days after her nomination. 
Justice O'Connor was overwhelmingly confirmed 33 days after her 
nomination. So we are returning to that determination of the 
President's prerogative.
  The White House is to be commended for engaging in unprecedented 
consultation with respect to this nominee. So we are also returning to 
a very robust and full and healthy consultation process. I understand 
that the Bush administration consulted with more than 70 Senators on 
the Roberts nomination, countless conversations and phone calls and 
meetings and now is a strong part of our tradition which we are 
certainly returning to.
  Moreover, few would disagree that President Bush could not have 
nominated a more qualified person for this position. John Roberts has 
an impressive academic background, a distinguished career in Government 
service, private practice, and as a Federal judge.
  So we are also returning to that fine tradition that actual 
qualifications matter. It is not all about ideology and political 
positions but qualifications, judicial temperament, those sorts of 
important considerations matter, first and foremost.
  Certainly, Judge Roberts has those. He graduated summa cum laude from 
Harvard college, my alma mater. He also graduated from Harvard Law 
school, magna cum laude. I guess he couldn't get into Tulane Law 
School, as I did, but I congratulate him on his accomplishments at 
Harvard. After graduation, he law clerked for Judge Henry Friendly on 
the U.S. Court of Appeals for the Second Circuit and then for William 
Rehnquist on the U.S. Supreme Court.
  Judge Roberts enjoyed a distinguished career as a public servant in 
many different positions during the Reagan administration and became a 
partner at a major and highly respected law firm in Washington, DC, 
where he acquired the reputation as one of the finest Supreme Court 
advocates in the country. In fact, he argued an impressive 39 cases 
before the Supreme Court. Of course, as we all know, Judge Roberts was 
appointed in 2002 by President Bush for the U.S. Court of Appeals for 
the District of Columbia Circuit--those sort of mainstream 
  Academic, practice, smarts, judicial temperament--all are certainly 
very important. But I think the single most important factor which 
qualifies Judge Roberts for this esteemed position is his appropriate 
view of what it means to be a judge, his appropriate view of the 
limited role of the judiciary and what that means in our system of 
  He has said, frankly and refreshingly, in a straightforward way, that 
judges should not place ideology above thoughtful legal reasoning. He 
is not the sort who will legislate from the bench. His judicial 
philosophy is based on the rule of law and on respect for the 
  Let's think about what he said in his own words. This is what he said 
on September 12 at his confirmation hearing:

       [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 the ball game to see 
     the umpire.''

  He also said on the same occasion:

        . . . I come before the committee with no agenda, I have 
     no platform. Judges are not politicians who can promise to do 
     certain things in exchange for votes. I have no agenda. But I 
     do have a commitment. If I am confirmed, I will confront 
     every case with an open mind. I will fully and fairly analyze 
     the legal arguments that are presented. I will be open to the 
     considered views of my colleagues on the bench, and I will 
     decide every case based on the record, according to the rule 
     of law, without fear or favor, to the best of my ability, and 
     I will remember it is my job to call balls and strikes, and 
     not to pitch or bat.

  That, first and foremost, is the tradition we are getting back to 
with this confirmation. I sincerely hope that it is a tradition in 
which we remain grounded. Let's remember again the lessons of this 
nomination and this confirmation. Let's remember that it is the 
President's prerogative to nominate qualified persons to the bench. 
Let's remember that the Senate does have an important consultative role 
and let's all encourage the President to perform that consultation in a 
full and robust fashion, as he did with Judge Roberts. Let's remember 
that qualifications--smarts, academic credentials, practice history--
are very important when you are talking about a judicial nominee. And 
let's all remember, first and foremost, that judges are umpires, they 
are not the players in the baseball game. That is the crucial 
distinction that I think we have lost over the past several decades and 
that we are finally trying to pull back to.
  It is very important for us as a body to remember that lesson of this 
nomination of this confirmation as we move on. As we move on, I do 
think that is the most important open question. As the previous speaker 
mentioned, already certain Democrats in this body are threatening a 
filibuster without having the foggiest notion who the next nominee to 
the U.S. Supreme Court may be. Already they are threatening a 
filibuster of circuit court nominees who have basically been agreed to 
in terms of no filibuster in the Senate.
  That would move us dramatically in the opposite direction from the 
one I have spoken about. That would turn the clock back. That would 
move us 180 degrees and point us again in that wrong direction.
  I will be proud to join with other Members of this body tomorrow for 
this historic confirmation vote. I will be proud to vote yes for Judge 
John Roberts to be the next Chief Justice of the U.S. Supreme Court.
  Just as proudly, just as fervently, I will argue and fight to make 
sure that where we are today is where we remain in terms of future 
nominations and future confirmations; that we all remember that we are 
talking about an umpire to enforce the rules of the game, not a 
player--not a batter we like or a fielder we prefer but the umpire to 
enforce the rules as written.
  I yield the floor.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Kentucky is recognized for 20 minutes.
  Mr. BUNNING. Mr. President, I rise in strong support of John Roberts 
to be the next Chief Justice of the U.S. Supreme Court. Confirmation of 
a Supreme Court Justice, particularly the Chief Justice, is one of the 
most important duties we have in the Senate. I hope we can put politics 
and partisanship aside and swiftly confirm him.
  Earlier this year, we found ourselves in an unprecedented position. 
The Democratic minority decided to use Senate rules to block judicial 
nominees. The minority tried to take away the power of nomination that 
the Constitution gives the President. But President Bush was solidly 
reelected last fall, and during the campaign he stressed the type of 
judges he would nominate--those who respect the law and the 
Constitution and who will not legislate from the bench.
  The American people knew what they were getting when they reelected 
President Bush. President Bush kept his word. His judicial nominees 
have been highly qualified and worthy of confirmation. The minority's 
obstructionism ended earlier this year, or at least for now. Many on 
the left want to see a filibuster against John Roberts, but I have no 
doubt that John Roberts will be confirmed soon. Our job is to determine 
the qualifications of the nominees. Then we should vote to approve or 
oppose them. Anything else is to disregard the oath we took when we 
joined the Senate.
  Our job is not to oppose nominees because we think their views are 
different from ours. We should not oppose nominees to keep our 
political base happy. Regardless of all the excuses, nominees deserve a 
vote. That is it.
  John Roberts is extremely qualified to serve on the Supreme Court, 
and he is as qualified to be Chief Justice. He is, no doubt, one of the 
most qualified nominees to come before the Senate since I have been 
here. He is a brilliant legal scholar, an accomplished attorney, and a 
fine judge. I will strongly support him.
  I do not need to spend too much time restating John Roberts' 
qualifications. They have been stated. He graduated with honors from 
Harvard college and its law school. He clerked in the Second Circuit 
Court of Appeals and for Chief Justice Rehnquist when he was an 
Associate Supreme Court Justice.

[[Page S10555]]

John Roberts also worked for the Attorney General, the White House 
counsel and Solicitor General in previous administrations.
  In private practice, he was one of the best appellate and Supreme 
Court litigator's in the Nation. He argued an unprecedented 39 cases 
before the Supreme Court. Now he is a judge on the DC Circuit Court of 
Appeals, where he has been since we confirmed him unanimously in 2003.
  His resume is not what convinces me that he will be a fine Chief 
Justice. What is clear is that John Roberts respects the law and 
Constitution and will be faithful to the proper role of a judge. In his 
confirmation hearings, Judge Roberts used an example to explain the 
proper role of a judge. It has been stated before. He said a judge is 
like an umpire, not a player or a coach. And similar to an umpire, a 
judge applies the rules to the situation at hand. An umpire doesn't 
rewrite the rules or enforce what he thinks the rules ought to be.
  I know a little bit about umpires. I have dealt with them, and all 
types of them, for years. Some are liberal and some conservative with 
the strike zone. Some were unpredictable and made the strike zone up as 
the game went along. The worst umpires decided the outcome of the game 
by playing favorites or enforcing their own version of the rules. The 
best umpires applied the rules as written in the rule book and let the 
rules and the players dictate the outcome of the game.
  As Judge Roberts said, that is how judges should act. The law, and 
not judges, should decide the outcome of the cases. The rules of the 
game, the writing of the laws is done by Congress. The President 
implements and enforces the laws, the judiciary settles disputes by 
applying laws and the Constitution. Judges are not lawmakers as umpires 
are not players. If umpires want to be players, that umpire should quit 
and join a team. If a judge wants to write laws, he should run for 
  We have seen courts try to replace Congress and legislatures. Social 
issues have been taken out of the political process and decided by 
unelected judges. The voice of the people has too often been ignored. 
Activism of a few judges threatens our judicial system.
  If judges keep exercising powers not granted to them, the public and 
its servants may tune out the courts and ignore them altogether. That 
would be bad and we would all suffer. I think Judge Roberts sees that 
danger. As Chief Justice, he will protect the Constitution and 
reputation of the courts.
  At his confirmation hearing, Judge Roberts recognized the damage of 
an activist judiciary. Their activism undermines the authority and 
respect needed to overturn truly unconstitutional actions. Courts must 
not be activists and settle public policy disputes. Judge Roberts also 
sees that danger, and I trust he will work hard to keep the Court 
within its boundaries and implore judges to exercise restraint in 
decisionmaking. A key part of that restraint is to not wade into public 
policy disputes. I imagine it is tempting for judges to impose their 
personal views when making decisions.
  But I believe Judge Roberts will exercise restraint and encourage the 
Federal court system to do the same.
  Many of my colleagues are frustrated over Judge Roberts not revealing 
his views on public policy.
  As Chief Justice, Judge Roberts is not going to act like a Senator. 
He will not let his personal views influence his decision and rulings.
  The complaints of some of my colleagues led me to believe that they 
did not understand the role our Founding Fathers intended for the 
courts. Congress is the policymaking branch of government. The 
President and the administration enforce the laws. And the courts act 
as neutral decisionmakers when disputes arise.
  But my colleagues know this.
  And so I fear they see the courts as a political arm to implement 
their liberal policy agenda.
  To them--the Supreme Court is a super legislature. But that is not 
what our Framers envisioned. And that is not how Judge Roberts will use 
his position as Chief Justice.
  The left turns to the courts to impose their agenda because they 
cannot advance it through elections. They cannot pass their laws 
through Congress or legislatures. They cannot even get elected by 
running on their liberal policies. So they must use the courts to 
impose their agenda.
  What is that agenda?
  Unlimited abortion on-demand; banning schoolchildren from saying the 
Pledge of Allegiance; banishing the Ten Commandments from public 
places; rewriting the definition of marriage; and banning arms for 
  That agenda does not sell with America or in Congress.
  So the last great hope for liberals is the judicial bench. And that 
is why they oppose nominees who do not agree to their liberal activist 
  The only thing stopping the rewriting of our Constitution are judges 
that will support the rule of law.
  John Roberts is one such judge. He will not write new laws from the 
  As Chief Justice, he will set an example for the court system to 
follow the same principles.
  Many Senators have expressed frustration at not knowing Judge 
Roberts' political views. I do not know his views either.
  I have not asked him. And I will not ask him.
  They do not matter. I trust him not to let his political beliefs 
influence his decisions.
  During his hearing, Judge Roberts rightly declined to answer how he 
would rule in specific cases.
  The current Supreme Court Justices also declined to answer similar 
  Answering those kind of questions would corrupt and politicize the 
  Judicial nominees would turn into politicians campaigning for office 
to get confirmed--pledging to vote a certain way in order to gain 
  They would also have to make promises to the President in order to 
get nominated.
  Judges must be selected based on their qualifications.
  I have not asked Judge Roberts about his personal political views. I 
have not asked him about his legal views. I do not need to know how he 
will rule in a certain particular case--because I know his approach to 
the law--and that is all I need to know.
  John Roberts will lead by example and earn the respect of the other 
Justices and the American public. He will also be joined on the Court 
by another new Justice.
  I trust President Bush will choose another highly qualified nominee 
to replace retiring Justice Sandra Day O'Connor.
  If the new nominee is in a similar mold and has the same respect for 
the rule of law, then I will be glad to support the next nominee.
  I have seen comments from some of my Democrat colleagues that they 
will filibuster certain nominees. That is most unfortunate. And it 
could bring us back to the point where we were earlier this year.
  I hope and pray the minority does not do this.
  But make no mistake about it. We will ensure that the next nominee 
receives fair treatment in the Senate and gets a vote.
  I thank President Bush for keeping his promise to nominate 
outstanding individuals to our courts.
  I thank Chairman Specter for ushering this nomination swiftly through 
his Judiciary Committee.
  And I thank John Roberts for his service to our country.
  I vow very strongly to vote for him when his vote comes up tomorrow.
  I yield the floor.
  Mr. SESSIONS. Mr. President, I would like to express my agreement 
with the Senator from Kentucky. He stated the case very clearly for the 
proper role for a judge. I know he faced many an umpire in his Hall of 
Fame baseball career. But he knows when they make the call, they are 
stuck with it, and he has every right to expect that that umpire is 
going to make the call not based on whether they favor one team or 
another or one side or another but what the rules of the game are.
  I think that metaphor Judge Roberts utilized as he talked about the 
role of a judge is an apt one.
  I saw Senator Burns here. He used to be a football referee. I wanted 
to ask him: Senator Burns, if you thought that the holding call was a 
little bit inadvertent and it wasn't too a bad a holding call but the 
penalty called for

[[Page S10556]]

15 yards, should the referee be free to impose 10 yards because they 
think that might be more fair? No. Of course, not. Those are the basic 
principles of rules.
  I am pleased that we have a nominee who I think understands it.
  Activism is a concern of the American people. It is something that 
should concern all of us because it represents a movement by unelected, 
lifetime-appointed judges to impose policy decisions and values on the 
American people. If it is required by the Constitution, that is their 
job. If it is not required and not a part of the Constitution, they 
should not be engaged in those kinds of issues.
  The high point I think of activism was when two Supreme Court 
Justices in every death penalty case declared that they dissented and 
they would oppose all death penalty cases in the United States because 
they believed the Constitutional prohibition on cruel and unusual 
punishment prohibited the death penalty. That might sound plausible. 
But the Constitution itself has half a dozen references to capital 
crimes. That means crimes for which you may take somebody's life. It 
has references to not being able to take life without due process of 
law. Obviously, you could take life with due process of law. And when 
the Constitution was written, every single State, every single Colony, 
members of the Confederacy, had the death penalty, and they did when 
the Constitution was written.
  So it is obviously the judges' decision that they didn't like the 
death penalty. They declared it was unenlightened public policy 
involving a standard of decency and all of that, and that justified 
their opinion. But that wasn't so, was it? Because State after State 
has maintained the death penalty. Many have enacted death penalties 
after they eliminated the death penalty.
  It is not what the American people rejected, in fact, and would never 
have been rejected by the members of the legislatures of all the 
  They tried to say the Constitution prohibited any State from having a 
death penalty.
  That is an extreme abrogation of power, and it is something we should 
be concerned about.
  What did Judge Roberts say?
  I see my chairman, Senator Specter, who has done such a great job in 
moving this nomination forward. I want to speak long and will yield the 
floor to him. I had my opportunity to make a few remarks earlier.
  But I think it is important for us to listen to the eloquent, 
beautifully repeated--I am going to touch on a few of his statements--
but the repeated statements of Judge Roberts in different ways that 
affirm so clearly that he knows what the role of the judge is in the 
American legal system. I picked out a few.

       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.
       Mr. Chairman, I come before this committee with no agenda. 
     I have no platform.

  Neither the President nor Members of our side of the aisle are asking 
any nominee to impose our political agenda on this country. I would 
never do that. That is not the role of a judge. But neither do I think 
the judge ought to be opposing any agenda. And I certainly am offended 
when they oppose the agenda which I don't agree with, which I think is 
the province of the legislative branches. Judge Roberts understands 
  Then he goes on:

       That's a paraphrase, but the phrase, calmly poise the 
     scales of Justice if, if anything, the motto of the court on 
     which I now sit. That would be the guiding principle for me 
     whether I am back on that court or a different one, because 
     some factors may be different, the issues may be different, 
     the demands may be different, but the Bill of Rights remains 
     the same. And the obligation of a court to protect those 
     basis liberties in times of peace and in times of war, in 
     times of stress and in times of calm, that doesn't change.

  What a beautiful statement.

       Like most people, I resist the labels. I have told people 
     when pressed that I prefer to be known as a modest judge, and 
     to me that means some of the things that you talked about in 
     those other labels. It means an appreciation that the role of 
     the judge is limited, that a judge is to decide the cases 
     before them, they're not to legislate, they're not to execute 
     the laws.


       I don't think the courts should have a dominant role in 
     society and stressing society's problems. It is their job to 
     say what the law is.

  Isn't that correct?

       But the Court has to appreciate that the reason they have 
     that authority is because they're interpreting the law, 
     they're not making policy, and to the extent they go beyond 
     their confined limits and make policy or execute the law, 
     they lose their legitimacy, and I think that calls into 
     question the authority they will need when it's necessary to 
     act in the face of unconstitutional action.

  That is a brilliant statement.
  If a court consistently abuses its power, does not remain faithful to 
the Constitution, at some point it may have to take a very unpopular 
stand to truly and rightfully defend the Constitution against 
congressional Presidential overreaching.
  Will they have the credibility to do so? Not so, perhaps, if they 
have squandered it by improper legislation for many years that has 
undermined public confidence in the Court.
  That is exactly what he is saying--a beautiful statement.
  If you believe in our Constitution, if you believe in the laws to 
protect our liberties and that laid the foundations for our prosperity, 
one must believe that we have to enforce the Constitution, even if you 
might not agree with some part of it.
  He was asked, ``Are you an originalist? Are you a strict 
constructionist? What label do you put on yourself, Judge?''
  He said this:

       I do not have an overarching judicial philosophy that I 
     bring to every case, and I think that's true. I tend to look 
     at the cases from the bottom up rather than the top down. And 
     like I think all good judges focus a lot on the FACTS. We 
     talk about the law, and that's a great interest for all of 
     us, but I think most cases turn on the facts, so you do have 
     to know those, you have to know the record.

  In other words, we were asking him to blithely make his views known 
on how he would rule on this case or that case. By the time it gets to 
the Supreme Court of the United States there has been a full trial and 
maybe hundreds, maybe thousands of pages of transcript and records. 
There are facts that underlie the dispute, and it is only after the 
facts are asserted that a judge needs to be making a decision about the 
outcome of a case.
  Judges apply the facts to the legal requirements of the situation, 
and only then make a decision. He refused to make opinions on cases 
that may come before him. Of course, he should not make opinions on 
that. He has not studied the record, the transcript, talked with the 
other judges, read the briefs, or heard the oral arguments of counsel. 
He should not be up there making opinions on the cases. That is so 
obvious. He was pushed, pushed, and pushed to do that and criticized 
for not doing so. That is the rule of the law: Do not make a decision 
until you know the facts and the law.
  I will say this: We have had a tutorial on the rule of law under the 
American system. We have had a classroom exercise beyond anything any 
Member could ask for on the role of a judge in the American system. It 
was a beautiful thing. I am pleased to see many of my colleagues on the 
other side of the aisle have seen fit now to announce they intend to 
support Judge Roberts. That is the right thing. I am confident, also, 
the President will submit another nominee, just like he promised, who 
will be consistent with the same philosophy of Judge Roberts--one who 
does not seek to impose any political agenda, liberal or conservative, 
on the American people, but will simply consider the facts, consider 
the arguments of counsel, and decide the case before them.
  That is what we have a right to ask and to insist on to preserve the 
rule of law in this country, which, more than any other country in the 
world, reveres and respects and venerates law and order.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, before the distinguished Senator from 
Alabama yields the floor, I thank and compliment him for his comments 
and for his work on the Judiciary Committee. He has been steadfast in 
his participation in all matters but especially with the nomination 
proceedings as to Judge Roberts. It ought to be noted for the record.

[[Page S10557]]

  Mr. President, Senator Domenici was here seeking an opportunity to 
speak. I ask unanimous consent he be sequenced following my speech.
  The PRESIDING OFFICER (Mr. Martinez). Without objection, it is so 
  Mr. SPECTER. Mr. President, I have sought recognition today to 
comment on a story which is in the Washington Post today captioned 
``Filibuster Showdown Looms in the Senate: Democrats Prepare For Next 
Court Pick.''
  I suggest it is in the national interest that there be a lowering of 
the decibel level of the partisan rhetoric. There is no doubt that the 
process for the nomination, hearings, and confirmation of a Supreme 
Court nominee is part of the political process. I further suggest 
partisanship has its limits.
  The partisanship which is demonstrated in this report by the 
Washington Post today seems to me to be flagrant, extreme partisanship, 
flagrantly excessive partisanship, really out of bounds and out of the 
  The core objection raised by certain Democratic political activists 
as outlined in the Washington Post story is frustration among party 
activists who think their elected leaders did not put up a serious 
fight against Judge Roberts.
  I was present as chairman of the committee during the entire 
proceeding. I can state it was a very vigorous fight. It is not 
necessary to have Arlen Specter's characterization of it. The record 
speaks for itself. We had experienced Senators on the Democrat side of 
the aisle who questioned Judge Roberts very closely and who came to the 
conclusion they would vote no, which they did in the committee 
proceedings. Senator Kennedy, who can doubt his tenacity? Senator 
Biden, who can doubt his sincerity? And Senator Feinstein questioned 
eloquently in many directions. Senator Schumer was on top of all of the 
issues not only in three rounds of questioning which we had, 30 minutes 
and then 20 minutes and then 30 more minutes, but in the submission of 
written questions. And Senator Durbin, the assistant minority leader, 
spoke and all voted against Judge Roberts because that was their 
  But who can say they didn't put up a strong and tough fight? That is 
an insult to those dedicated Senators tending to their business to say 
they did not put up a professional fight.
  There are at this moment some 18 announced or reported Senators on 
the Democrat side who are going to vote in favor of the Roberts 
nomination: Senator Baucus, Senator Bingaman, Senator Byrd, Senator 
Conrad, Senator Dodd, Senator Dorgan, Senator Feingold, Senator 
Johnson, Senator Kohl, Senator Landrieu, Senator Leahy, Senator Levin, 
Senator Lieberman, Senator Nelson of Nebraska, Senator Nelson of 
Florida, Senator Pryor, Senator Salazar, and Senator Wyden.
  Among those 18 Senators are some veterans of the Senate whose 
credentials cannot be challenged as progressive, as liberal, as 
forward-thinking Senators.
  I will quote from just a few of the comments which they have made. 
Senator Leahy was the first among the Democrats to speak out in favor 
of the nomination of Judge Roberts to be Chief Justice. As the ranking 
member, I sat next to him during the entire proceeding. I can attest 
firsthand the conscientious way Senator Leahy approached this 
nomination. It was not a matter of our discussing the merits. It was 
not a matter of my trying to persuade him.
  I have served with Senator Leahy for 25 years, and many years before 
that, back in 1969 when I was the host at the National District 
Attorney's Association Convention in Philadelphia, I was Philadelphia's 
D.A., and Pat Leahy, a young prosecutor from Burlington, VT, was the 
prosecuting attorney in his jurisdiction. I could see him struggle with 
the nomination as a matter of conscience. He came to the conclusion 
that was where his conscience led.

  I identified with his courageous move in the committee. It is not 
easy to go against the party line, and Senator Leahy was prepared to do 
  His statement was a very thoughtful statement, as Senator Leahy is 
accustomed to be: He commented extensively on Judge Roberts' reliance 
on the Raich decision, moving away from Lopez and Morris on the 
commerce clause. He comments extensively on the precedence of Roe and 
Planned Parenthood v. Casey and forcefully on a number of occasions 
regarding the recognition to the right to privacy embodied in Griswold 
v. Connecticut.
  Senator Leahy commented about the assurances which he accepted from 
Judge Roberts about taking the mold of Justice Jackson, moving away 
from being a partisan in the administration as Attorney General to 
being an impartial judge.
  There is much more, but the record of what Senator Leahy has said 
speaks for itself.
  In addition to Senator Leahy, there are other very well established 
Senators on the other side of the aisle, impeccable standing in the 
liberal community. Senator Levin spoke in favor of Judge Roberts; 
Senator Dodd spoke in favor of Judge Roberts for Chief Justice; Senator 
Feingold in the committee; Senator Lieberman. I have already enumerated 
the Senators.
  So when there are some so-called Democrat political activists who 
speak up and are critical, as they were of Senator Leahy after he made 
the opening declaration, first of the Democrats to speak--we are all 
subject to comment and we are all subject to criticism, but I was taken 
a little aback by the criticism which came to Senator Leahy after he 
made his declaration. I have been the object of such substantial 
criticism myself, so I know what it was like. But I think it goes a 
little too far when the so-called political activists are raising these 
objections out of purely partisan motivations. One activist was quoted 
in this story as saying that Democrats must vote against Judge Roberts, 
otherwise ``we will not win an election.''
  The political process, I submit, goes only so far. And as foreign 
policy debate stops at the water's edge, at least it used to 
traditionally, I think that extreme partisanship stops at the 
consideration of a nominee for the Supreme Court of the United States. 
That is a line at which party loyalties ought to end and there ought to 
be independence. That is the confluence of the three branches of 
Government where, as we all know under our Constitution, the President 
nominates, where the Senate conducts proceedings and confirms or 
rejects, and where the nominee, if confirmed, if approved, then takes a 
seat on the Supreme Court. That is a line in the administration of 
justice in the United States where partisanship, rank, extreme 
partisanship ought to end.
  The so-called political activists are blunt in what they had to say. 
Their concern is ``restoring enthusiasm among the rank and file on the 
  I suggest there is a higher calling on selecting a nominee for the 
Supreme Court, and especially for a Chief Justice, which transcends 
appeal to extremes at one end of the political spectrum or the other.
  This kind of comment, I believe, is only going to inspire corollary 
comment from the other end of the political spectrum. We simply do not 
need it. I sensed, and have commented publicly on, a lot of frustration 
bubbling just below the surface in the Roberts nomination hearings. I 
am concerned about the next nomination. We are looking at a replacement 
for Justice O'Connor, who was a swing vote. I have stated both publicly 
and privately my hope we will find someone in the mold of Judge 
  The statements which were made by Senator Leahy, by Senator Levin, by 
Senator Dodd, by Senator Feingold, and others all focused on the 
approach of Judge Roberts to modesty and stability. And it was more 
than the words he uttered, it was the way he conducted himself. It was 
the way he spoke about the cases when he answered the questions and 
when he did not answer questions. I spoke at length earlier, on Monday, 
about questions which I thought he should have answered but he did not 
answer. But that is the nominee's prerogative. And then the Senator's 
prerogative is to make a decision on how the Senator is going to vote. 
But when you talk about a filibuster, this body was at the risk of a 
virtual civil war, with the Democrats filibustering and with 
Republicans threatening to exercise the constitutional or nuclear 
option. I took the floor earlier this year on several occasions to urge 
an independent stand. I

[[Page S10558]]

heard so many Democrats say they did not like the idea of a filibuster 
and I heard so many Republicans say they did not like the idea of the 
constitutional or nuclear option, but Democrats felt constrained to the 
filibuster and Republicans felt constrained to the nuclear or 
constitutional option.
  I urged my colleagues to take an independent stand, that when you 
talked about the long-range composition and the long-range approach of 
the institution of the Senate, it was more important than the passions 
of the moment. I went into some detail and quoted how the Senate saved 
judicial independence in the impeachment proceedings of Supreme Court 
Justice Chase in 1805 and 1806 and how the U.S. Senate saved the 
independence of Presidential prerogatives in the impeachment proceeding 
of President Andrew Johnson. The Congress had passed a law saying there 
had to be consent by the Senate for the President to remove a Cabinet 
officer. Secretary of War Stanton bolted himself in his office. He 
would not leave. Because President Johnson would not tolerate that kind 
of usurpation of Presidential power, he was impeached. In this Chamber, 
he was saved. The Senate saved him.
  When you talk about the institutions of the Senate, we do not need 
outsiders telling us when to filibuster. We do not need outsiders and 
political activists on either side telling us when to filibuster or 
when to exercise the constitutional option. We were elected. They were 
  When you have men of the stature of Senator Leahy and Senator Dodd 
and Senator Lieberman taking a position, those positions ought to be 
respected. When you have hard-fighting Senators such as Kennedy and 
Biden and Schumer fighting a nomination and voting no, their positions 
ought to be respected.
  So I hope as to this headline in the Post about ``Filibuster Showdown 
Looms in Senate,'' it is the last time we will hear the word 
``filibuster'' and that we will have a nominee who will command 
respect, that we will have an orderly, dignified proceeding in the 
Judiciary Committee in another round of hearings, and that we will 
acquit ourselves with distinction.
  At a time when the Congress is under a very heavy fire on all sides 
for so many items--or the response to the hurricane and for the highway 
bill and for spending and for a lack of offsets--I have heard many 
comments that the Senate has acquitted itself very well throughout the 
entire confirmation process, not just what was done in the Judiciary 
Committee, but what has been done on the floor of the Senate, and what 
will be concluded tomorrow when the full body votes.
  So we do not need outsiders telling us how to conduct our business. 
They can make their suggestions. They have freedom of speech. But it 
ought to be within bounds. This sort of extreme, excessive partisanship 
has no place in the selection of the next Supreme Court Justice.
  In the absence of any Senator seeking recognition, Mr. President, I 
suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. STEVENS. 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. STEVENS. Mr. President, is it proper now to speak on the 
nomination of Judge Roberts?
  The PRESIDING OFFICER. Yes, it is in order.
  The President pro tempore is recognized.
  Mr. STEVENS. Mr. President, having lived and studied alongside one of 
the greatest legal minds of my generation, I believe Judge Roberts' 
capability and knowledge of the law is superior to any of his 
generation. When I was at Harvard Law School, my roommate was H. Reed 
Baldwin. He had abilities quite similar to those of John Roberts. He 
was the top of our class, No. 1, and on the Harvard Law Review. He was 
what I call a Renaissance man. He could handle almost any subject. 
Unfortunately, he suffered an untimely death; otherwise, he might have 
once been in the same place John Roberts is today.
  During the Judiciary Committee's hearings, Juneau Mayor Bruce Botelho 
testified in support of Judge Roberts' nomination. Bruce, whom I know 
well, was Attorney General for the State of Alaska from 1994 through 
2002. He employed John Roberts to represent our State before the 
Supreme Court on a wide range of issues, including the Venetie case 
involving Indian country claims and cases related to submerged lands 
issues, natural resource matters, and the Alaska Statehood Act. As a 
matter of fact, I met with Judge Roberts then and have met with him 
since. He has a brilliant legal mind.
  I am not alone in that opinion. Judge Roberts has been to our State 
many times, and he has won the respect of Alaskans who hold a wide 
range of political beliefs and opinions.
  Judge Roberts also won the respect of the bar association of the 
District of Columbia, of which I am a member. In 2002, when Judge 
Roberts was nominated to serve as a Federal court of appeals judge on 
the U.S. Court of Appeals for the District of Columbia Circuit, more 
than 150 Members of the DC bar sent a letter to the Judiciary Committee 
of the Senate supporting his nomination. I know many of the bar members 
who signed this letter. They are a distinguished and bipartisan group 
of lawyers, law professors, and public servants. I think they said it 

       John Roberts represents the best of the bar.

  I agree with their opinion and the opinion of many Alaskans who have 
worked with him. I shall vote to confirm Judge Roberts as the 17th 
Chief Justice of the U.S. Supreme Court. I urge all of my colleagues in 
the Senate to do the same.
  I ask unanimous consent that the letter I mentioned be printed in the 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                                                December 18, 2002.
     Re Judicial Nomination of John G. Roberts, Jr. to the United 
         States Court of Appeals for the District of Columbia 

     Hon. Tom Daschle,
     Hon. Orrin Hatch,
     Hon. Patrick Leahy,
     Hon. Trent Lott,
     U.S. Senate, Washington, DC.
       Dear Senators Daschle, Hatch, Leahy, and Lott: The 
     undersigned are all members of the Bar of the District of 
     Columbia and are writing in support of the nomination of John 
     G. Roberts, Jr., to serve as a federal court of appeals judge 
     on the United States Court of Appeals for the District of 
     Columbia Circuit. Although, as individuals, we reflect a wide 
     spectrum of political party affiliation and ideology, we are 
     united in our belief that John Roberts will be an outstanding 
     federal court of appeals judge and should be confirmed by the 
     United States Senate. He is one of the very best and most 
     highly respected appellate lawyers in the nation, with a 
     deserved reputation as a brilliant writer and oral advocate. 
     He is also a wonderful professional colleague both because of 
     his enormous skills and because of his unquestioned integrity 
     and fair-mindedness. In short, John Roberts represents the 
     best of the bar and, we have no doubt, would be a superb 
     federal court of appeals judge.
       Thank you.
         Donald B. Ayer, Jones, Day, Reavis & Pogue; Louis R. 
           Cohen, Wilmer, Cutler & Pickering; Lloyd N. Cutler, 
           Wilmer, Cutler & Pickering; C. Boyden Gray, Wilmer, 
           Cutler & Pickering; Maureen Mahoney, Latham & Watkins; 
           Carter Phillips, Sidley, Austin, Brown & Wood; E. 
           Barrett Prettyman, Jr., Hogan & Hartson; George J. 
           Terwilliger III, White and Case; E. Edward Bruce, 
           Covington & Burling; William Coleman, O'Melveny & 
           Myers; Kenneth Geller, Mayer, Brown, Rowe & Mawt; Mark 
           Levy, Howrey, Simon, Arnold & White; John E. Nolan, 
           Steptoe & Johnson; John H. Pickering, Wilmer, Cutler & 
           Pickering; Allen R. Snyder, Hogan & Hartson; Seth 
           Waxman, Wilmer, Cutler & Pickering; Jeanne S. 
           Archibald, Hogan & Hartson; Jeannette L. Austin, Mayer, 
           Brown, Rowe & Mawt; James C. Bailey, Steptoe & Johnson; 
           Stewart Baker, Steptoe & Johnson.
         James T. Banks, Hogan & Hartson; Amy Coney Barrett, Notre 
           Dame Law School; Michael J. Barta, Baker, Botts; 
           Kenneth C. Bass, III, Sterne, Kessler, Goldstein & Fox; 
           Richard K. A. Becker, Hogan & Hartson; Joseph C. Bell, 
           Hogan & Hartson; Brigida Benitez, Wilmer, Cutler & 
           Pickering; Douglas L. Beresford, Hogan & Hartson; 
           Edward Berlin, Swidler, Berlin, Shereff, Friedman; 
           Elizabeth Beske (Member, Bar of the State of 
           California); Patricia A. Brannan, Hogan & Hartson; Don 
           O. Burley, Finnegan, Henderson, Farabow, Garrett & 
           Dunner; Raymond S. Calamaro, Hogan & Hartson; George U. 
           Carneal, Hogan & Hartson; Michael Carvin, Jones, Day, 
           Reavis & Pogue;

[[Page S10559]]

           Richard W. Cass, Wilmer, Cutler & Pickering; Geogory A. 
           Castanias, Jones, Day, Reavis & Pogue; Ty Cobb, Hogan & 
           Hartson; Charles G. Cole, Steptoe & Johnson; Robert 
           Corn-Revere, Hogan & Hartson.
         Charles Davidow, Wilmer, Cutler & Pickering; Grant Dixon, 
           Kirkland & Ellis; Edward C. DuMont, Wilmer, Cutler & 
           Pickering; Donald R. Dunner, Finnegan Henderson Farabow 
           Garrett & Dunner; Thomas J. Eastment, Baker Botts; 
           Claude S. Eley, Hogan & Hartson; E. Tazewell Ellett, 
           Hogan & Hartson; Roy T. Englert, Jr., Robbins, Russell, 
           Englert, Orseck & Untereiner; Mark L. Evans, Kellogg, 
           Huber, Hansen, Todd & Evans; Frank Fahrenkopf, Hogan & 
           Hartson; Michele C. Farquhar, Hogan & Hartson; H. 
           Bartow Farr, Farr & Taranto; Jonathan J. Frankel, 
           Wilmer, Cutler & Pickering; Johnathan S. Franklin, 
           Hogan & Hartson; David Frederick, Kellogg, Huber, 
           Hansen, Todd & Evans; Richard W. Garnett, Notre Dame 
           Law School; H.P. Goldfield, Vice Chairman, Stonebridge 
           International; Tom Goldstein, Goldstein & Howe; 
           Griffith L. Green, Sidley, Austin, Brown & Wood; 
           Jonathan Hacker, O'Melveny & Myers.
         Martin J. Hahn, Hogan & Hartson; Joseph M. Hassett, Hogan 
           & Hartson; Kenneth J. Hautman, Hogan & Hartson; David 
           J. Hensler, Hogan & Hartson; Patrick F. Hofer, Hogan & 
           Hartson; William Michael House, Hogan and Hartson; 
           Janet Holt, Hogan & Hartson; Robert Hoyt, Wilmer, 
           Cutler & Pickering; A. Stephen Hut, Jr., Wilmer, Cutler 
           & Pickering; Lester S. Hyman, Swidler & Berlin; Sten A. 
           Jensen, Hogan & Hartson; Erika Z. Jones, Mayer, Brown, 
           Rowe & Maw; Jay T. Jorgensen, Sidley Austin Brown & 
           Wood; John C. Keeney, Jr., Hogan & Hartson; Michael K. 
           Kellogg, Kellogg, Huber, Hansen, Todd & Evans; Nevin J. 
           Kelly, Hogan & Hartson; J. Hovey Kemp, Hogan & Hartson; 
           David A. Kikel, Hogan & Hartson; R. Scott Kilgore, 
           Wilmer, Cutler & Pickering; Michael L. Kidney, Hogan & 
           Hartson; Duncan S. Klinedinst, Hogan & Hartson; Robert 
           Klonoff, Jones, Day Reavis & Pogue.
         Jody Manier Kris, Wilmer, Cutler & Pickering; Chris 
           Landau, Kirkland & Ellis; Philip C. Larson, Hogan & 
           Hartson; Richard J. Lazarus, Georgetown University Law 
           Center; Thomas B. Leary, Commissioner, Federal Trade 
           Commission; Darryl S. Lew, White & Case; Lewis E. 
           Leibowitz, Hogan & Hartson; Kevin J. Lipson. Hogan & 
           Hartson; Robert A. Long, Covington & Burling; C. Kevin 
           Marshall, Sidley Austin Brown & Wood; Stephanie A. 
           Martz, Mayer, Brown, Rowe & Maw; Warren Maruyama, Hogan 
           & Hartson; George W. Mayo, Jr., Hogan & Hartson; Mark 
           E. Maze, Hogan & Hartson; Mark S. McConnell, Hogan & 
           Hartson; Janet L. McDavid, Hogan & Hartson; Thomas L. 
           McGovern III, Hogan & Hartson; A. Douglas Melamed, 
           Wilmer, Cutler & Pickering; Martin Michaelson, Hogan & 
           Hartson; Evan Miller, Hogan & Hartson.
         George W. Miller, Hogan & Hartson; William L. Monts III, 
           Hogan & Hartson; Stanley J. Brown, Hogan & Hartson; 
           Jeff Munk, Hogan & Hartson; Glen D. Nager, Jones Day 
           Reavis & Pogue; William L. Neff, Hogan & Hartson; J. 
           Patrick Nevins, Hogan & Hartson; David Newmann, Hogan & 
           Hartson; Karol Lyn Newman, Hogan & Hartson; Keith A. 
           Noreika, Covington & Burling; William D. Nussbaum, 
           Hogan & Hartson; Bob Glen Odle, Hogan & Hartson; 
           Jeffrey Pariser, Hogan & Hartson; Bruce Parmly, Hogan & 
           Hartson; George T. Patton, Jr., Bose, McKinney & Evans; 
           Robert B. Pender, Hogan & Hartson; John Edward Porter, 
           Hogan and Hartson (former Member of Congress); Philip 
           D. Porter, Hogan & Hartson; Patrick M. Raher, Hogan & 
           Hartson; Laurence Robbins, Robbins, Russell, Englert, 
           Orseck & Untereiner; Peter A. Rohrbach, Hogan & 
           Hartson; James J. Rosenhauer, Hogan & Hartson.
         Richard T. Rossier, McLeod, Watkinson & Miller; Charles 
           Rothfeld, Mayer, Brown, Rowe & Maw; David J. Saylor, 
           Hogan & Hartson; Patrick J. Schiltz, Associate Dean and 
           St. Thomas More Chair in Law, University of St. Thomas 
           School of Law; Jay Alan Sekulow, Chief Counsel, 
           American Center for Law & Justice; Kannon K. Shanmugam, 
           Kirkland & Ellis; Jeffrey K. Shapiro, Hogan & Hartson; 
           Richard S. Silverman, Hogan & Hartson; Samuel M. Sipe, 
           Jr., Steptoe & Johnson; Luke Sobota, Wilmer, Cutler & 
           Pickering; Peter Spivak, Hogan & Hartson; Jolanta 
           Sterbenz, Hogan & Hartson; Kara F. Stoll, Finnegan, 
           Henderson, Farabow, Garrett & Dunner; Silvija A. 
           Strikis, Kellogg, Huber, Hansen, Todd & Evans; Clifford 
           D. Stromberg, Hogan & Hartson.
         Mary Anne Sullivan, Hogan & Hartson; Richard G. Taranto, 
           Farr & Taranto; John Thorne, Deputy General Counsel, 
           Verizon Communications Inc. & Lecturer, Columbia Law 
           School; Helen Trilling, Hogan & Hartson; Rebecca K. 
           Troth, Washington College of Law, American University; 
           Eric Von Salzen, Hogan & Hartson; Christine Varney, 
           Hogan & Hartson; Ann Morgan Vickery, Hogan & Hartson; 
           Donald B. Verrilli, Jr., Jenner & Block; J. Warren 
           Gorrell, Jr., Chairman, Hogan & Hartson; John B. 
           Watkins, Wilmer, Cutler & Pickering; Robert N. Weiner, 
           Arnold & Porter; Robert A. Welp, Hogan & Hartson; 
           Douglas P. Wheeler, Duke University School of Law; 
           Christopher J. Wright, Harris, Wiltshire & Grannis; 
           Clayton Yeutter, Hogan & Hartson (former Secretary of 
           Agriculture); Paul J. Zidlicky, Sidley Austin Brown & 

  Mr. STEVENS. I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. DOMENICI. Is it appropriate now for the Senator from New Mexico 
to speak?
  The PRESIDING OFFICER. It is appropriate.
  Mr. DOMENICI. Is there a time limit?
  The PRESIDING OFFICER. There is none.
  Mr. DOMENICI. I thank the Chair.
  Mr. President, it is, indeed, a privilege to come to the Senate 
Chamber to speak on behalf of such a distinguished nominee for Chief 
Justice of the Supreme Court. I have a unique perspective on Judge 
Roberts because I practiced law for 16 years before I came to the 
Senate, during which time I got to meet and try cases, and read 
opinions by many judges. I have also been here for 33 years, during 
which time I have had the luxury and privilege of hearing from, reading 
transcripts of, and voting for 10 Supreme Court nominees. So everyone 
sitting on the Supreme Court now I have had the luxury of considering 
through the confirmation process, which means I have heard what each of 
those eight justices said, and I have seen what qualifications they 
came before the Senate with.
  Based upon my previous experiences, it is almost as if Judge Roberts 
were destined to be a Supreme Court Justice. As I have listened to him, 
read what he has written, reviewed his background, and watched his 
conduct before the Judiciary Committee, it has become clear to me that 
he exemplifies many great qualities. When I look at him in comparison 
with nominees of the past, considering those men and women that I have 
previously voted for, it has become clear to me that he was born to 
serve his nation on our highest court.
  Frankly, in all deference to the judges I have voted for heretofore, 
I have never been more confident that the President picked the right 
person for the right job at the right time as I am today.
  If there is a perfect judge that can be visualized based upon all of 
the judges I have seen, listened to, read about, and voted for, this 
man seems to me to be extremely close to such a picture. He will be a 
judge for whom I will be extremely proud to have voted for.
  Many people have described the message I am trying to convey about 
Judge Roberts in different ways, and there have been some excellent 
analyses of his qualifications. The largest newspaper in my home state 
of New Mexico wrote: ``In addition to his encyclopedic fluency in 
constitutional law and the flesh and blood history behind it, Roberts 
exhibited a fine quality for a Chief Justice: collegiality. Justices, 
like Senators, disagree. Roberts showed he can disagree without 
disrespect, leaving open the door to work toward consensus. If 
Democrats cannot accept Roberts, is there any suitable Republican 
  I appreciate those words from the Albuquerque Journal, and I agree 
with the question they raise. Democrats who want a Democratic nominee 
who fits their mold and agrees with their positions will have to wait 
until there is another Democratic President for such a nominee to come 
before the Senate. That is the way it has always been, and my friends 
from the other side of the aisle cannot expect a Republican President 
to nominate an individual who will carry their beliefs onto the court. 
Such a belief is not consistent with history or with tradition.
  I will close by saying that I have great confidence that in 5 years, 
God willing, in 10 years, God willing, I can look back at Judge 
Roberts' performance as our Chief Justice and say: I was right in how I 
analyzed what he has been, what he is today, and what he will be as a 
Supreme Court Justice. I don't think I will be surprised or let down.

[[Page S10560]]

  And I know, looking back at nominees for whom I voted, that such is 
not an ordinary expectation. Some judges for whom I voted did not turn 
out to be what I expected. But I am quite confident that Judge Roberts 
will not be anything but the great judge I expect as I look back on his 
tenure in the ensuing years.
  I congratulate the Judge on his nomination. I hope he will remain 
loyal to what he has said and the way he has said it when he pledged 
what he wanted to be and what he would be. I wish him the very best 
because if he is successful, it will be good for America. His success 
in this job is correlated with good relationships under our 
Constitution between the great powers of the executive, legislative, 
and judicial branches.
  I yield the floor and thank the Senate for listening.
  The PRESIDING OFFICER. The Senator from Wyoming is recognized.
  Mr. THOMAS. Mr. President, I appreciate the opportunity to comment on 
the issue before us, which of course is Judge John Roberts. Certainly 
we have been hearing all about him for the last several days and nearly 
everything that is to be said has been said at least once. But I do 
want to take the opportunity to say I am very impressed with this 
candidate for Supreme Court Chief Justice. I am convinced that he will 
be a strong defender of the Constitution, that he has an exceptional 
ability to interpret the Constitution with respect to the law, and that 
certainly he has the background and qualifications to do that.
  I am not an expert in law, but I do feel strongly that the Court is 
there to measure what is done in other places, what is done in the 
executive branch, and what is done in the legislative branch with 
respect to how it fits into the Constitution.
  I have met with Judge Roberts, and I appreciated the opportunity to 
get better acquainted with him. I am very impressed with his demeanor 
and his character. It is comforting to see someone you think is 
extremely qualified for such an exceptional job and, at the same time, 
seems to see the world pretty much from the standpoint we all do, just 
as a human being, a person who wants to live in a country with freedom, 
in a country with constitutional law, in a country that does the best 
for everyone, and I have that impression. So I feel very good about 
  He has great respect for the rule of law and that, it seems to me, is 
one of the most important aspects of our country. I have had a chance 
to visit other places. I have had a chance to talk with kids about 
other countries. As I have gone about, one of the big differences is we 
have a rule of law, not a rule of people who happen to be in a strong 
position at the time, but a rule of law that exists and continues in 
the Constitution to be interpreted by the Supreme Court.
  Of course, Judge Roberts has credentials that are outstanding. His 
educational background is great. He has been a White House Counsel, so 
he knows how that works. He has been a Deputy Solicitor General, so he 
knows how that aspect of it works, too. And he is a circuit judge, so 
he has a background as a judge. I believe that is very important.
  I am very impressed, I am very pleased, and I am very proud to be a 
part of voting for him. I think the vote will be strong.
  I shared with Judge Roberts a few areas about which I am concerned. I 
did not ask his opinion on them, but rather in the State I am from, 
Wyoming, we are very concerned about venue shopping. We are very 
concerned about the idea of people filing suit or going to the proper 
district court or area to get one that is sympathetic. That is not the 
way it ought to be. The Federal court that deals with the issue from an 
event in our history has to be in that history, and I wanted to share 
that with Judge Roberts.
  I am very concerned about emminent domain, with regard to people's 
rights and property, gun rights, endangered species. Again, I did not 
ask him for his opinion on those issues because that is not the issue. 
The issue is, as legislation is passed, are they consistent with the 
Constitution, and that is, indeed, the role of judges--to listen to the 
facts and see how they apply to the rule of law.

  I was very impressed, as most of us were as we watched some of the 
interrogation in the committee, with his conduct. Of course, he was 
pressed many times with different kinds of questions and tried to be 
pushed into making specific stands on his own opinion on issues, which 
really is not what it is all about. That is for him to decide when 
those issues come up with respect to the law, with respect to the 
Constitution. He handled that situation very well.
  We have the opportunity--and a very pleasant opportunity--to support 
a man who has the qualifications, who has not politicized his 
background, a learned lawyer, a well-trained lawyer. I am persuaded he 
will be a strong defender of the Constitution.
  I must confess that is the strongest point I support and seek to see 
the Court do. I think that will happen.
  Mr. President, if I may, during this time, I wish to divert from this 
subject for a minute or two.

 Government Reorganization and Program Performance Improvement Act of 

  Mr. President, I wish to talk about a condition that is very much 
important to us, where we have unusual events happening in our country. 
We have the situation in Iraq. We are defending ourselves there and the 
freedoms of this country there. I just came from a hearing. I am very 
proud of what is happening in Iraq, and I think we are making some 
progress towards getting people to take care of their own country. 
That, of course, is the goal, and I am sure we will be there until that 
goal is achieved.
  Then comes along the problems with the disasters on the gulf coast. 
Both of those events, of course, have given us special needs for 
spending, and we have had to spend. It is right to spend when we have 
emergencies that arise of that nature, but then we find ourselves in 
the position of, what do we do about this excessive spending and how do 
we handle it?
  I see it as the same thing we undertake in our families. If an 
emergency happens in the family, you have to handle it. You have to 
find some way to deal with that emergency. At the same time, your 
family activities go on and you have to take care of those. Then you 
have to decide: How can I make some changes in my economic situation to 
deal with this excessive spending because of an emergency.
  That is where we are now. We are talking about all kinds of ways. I 
hope we take enough time to deal with these situations on the gulf 
coast and give the help those people need. That is the responsibility 
of the Federal Government. I hope we make sure there is accountability 
with those moneys spent, that we can be sure they are spent the way for 
which they are defined to be spent. I hope we make sure the Federal 
Government does what it is supposed to do and that the other units of 
government--State, local, and private sector--do what they are supposed 
to do. But we still will spend a great deal of money and, indeed, we 
  We also have to consider that over the past year, because of Iraq and 
other events, we have also had an increase in our deficit. Our deficit 
has gone up. So we need to find some ways to do something about it. 
Obviously, we will take a look at spending and see what areas we can 
reduce. I hope we do that as we finish our budget for this year. We 
need to.
  We should take a look at some of the ways we raise money, in the case 
of some taxes, that probably we might otherwise change. Perhaps they 
will have to be left as they are for a while and continue to offset 
some of these costs.
  I wish to specifically mention a bill I am currently sponsoring that 
requires the regular review of Federal programs. This should be done 
anyway, but it makes it particularly important as we look toward this 
business of spending. It is called the Government Reorganization and 
Program Performance Improvement Act. It creates the necessary 
mechanism, I believe, to set up some commissions to take a look, No. 1, 
at programs that have been in place, let's say, for 10 years, and to 
determine if, in fact, the program is still as needed as it was 10 
years ago, to see if it accomplished what it was set up to do 10 years 
ago and now is completed, could be ended, or could be put in with some 
other program, or could be reduced because the situation may not be the 
same as it was when a program was put in place. Even though there 
probably was a very good reason to have

[[Page S10561]]

the program then, is the reason still good? Should we be changing it?
  It is really a modernization effort, something we would do in every 
business, something we should do, which is take a look at what we have 
done historically and see if they are appropriate and can be done 
  The second half is to not only look at programs that might be 
unnecessary or wasteful, but take a look at programs that will 
continue, but are they being done as efficiently as they can be.
  One of the issues we have to take a look at in terms of excessive 
spending is controlling the size of the Federal Government. It has 
continued to grow and grow. We have sort of developed a political 
notion that if there is anything needed anywhere, let's get the Federal 
Government to pay for it.

  Well, that is a nice thing to do. The fact is we are supposed to be 
divided up, and there are local governments, State governments, and the 
Federal Government, each of which has its own responsibilities and its 
own areas and we ought to be seeking to define what the role of the 
Federal Government is and sort of restrict those things to that area so 
that we can control size.
  So this program would inventory the programs, would have proactive 
steps toward improving and eliminating unnecessary and redundant 
efforts, and it would help us return to fiscal responsibility. It is 
kind of common sense in Government. It provides a framework to do that. 
I don't think anybody will disagree with the notion that we ought to 
evaluate programs to see if they are still efficient, effective, and 
needed, if they could be more productive. Nobody would argue that 
concept, but we don't really have a system to do that. I believe this 
is a good Government measure, and I certainly urge my colleagues to 
take a look at the bill S. 1399 and urge their consideration and 
sponsorship of this bill.
  Mr. President, we always have a responsibility to make sure that 
Government is as efficient as possible, that spending is as effective 
as possible, that we hold spending to the minimum to do the things we 
need to do but not in excess of that, and I think we have an 
opportunity to put that kind of measurement into place and to ensure 
that those things can happen.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I ask unanimous consent that the next hour 
under majority control be allocated as follows: 20 minutes for Senator 
Cornyn, 5 minutes for Senator Cochran, 15 minutes for Senator Bennett, 
and 20 minutes for Senator Allen.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. I thank the Chair.
  Mr. President, I am going to talk about the nominee that we presently 
have before the Senate, Judge John Roberts, in a moment. First, let me 
express my concerns about a Washington Post story that was published 
today entitled ``Filibuster Showdown Looms in Senate.'' The curious 
thing about this article is it does not talk about the nominee for 
Chief Justice of the United States, John Roberts, the nominee that is 
actually pending before the Senate. Rather, what this article talks 
about is the next nominee of the President of the United States to fill 
the seat of Justice Sandra Day O'Connor.
  I am afraid it is perhaps a sign of the times in which we are living 
and perhaps a sign of the contentiousness with which the nomination for 
a vacancy on the Supreme Court has met in the Senate that some of my 
colleagues are already talking about a filibuster of the next nominee 
of the President when that nominee has not yet been named. I think it 
takes partisanship to a new level, to threaten to block an up-or-down 
vote on the Senate floor when we do not even know who that person is 
yet and, indeed, some apparently cannot conceive of the possibility 
that this President would nominate someone on whom they would at least 
allow an up-or-down vote. We are not talking about a Senator not 
following their conscience but talking about Senators, a minority in 
the Senate prohibiting a bipartisan majority from casting an up-or-down 
vote without even knowing who that nominee is going to be.
  We ask that nominees for the courts not prejudge cases that will come 
before them. I would think that we should also ask Senators not to 
prejudge nominees who have not even been nominated by the President 
yet. Whomever the President nominates should be entitled to an up-or-
down vote on the Senate floor. We are not a country that believes in 
the tyranny of the minority but, rather, we believe in a fair process 
and an up-or-down vote and majority rule. That is all we would ask for 
this yet-to-be-named nominee.
  But now let me go to the business at hand and say that I will vote to 
confirm Judge John G. Roberts as the next Chief Justice of the United 
States. Before I explain why I am going to vote for his confirmation, I 
first want to explain the reasons why I am not.
  First, I am not voting for his confirmation because he told us how he 
would rule on cases or issues that might come before the Supreme Court. 
Some of my colleagues have said that they will not vote to confirm 
Judge Roberts because they are not certain how he would rule on cases 
or issues that will come before the Court. They are not certain whether 
he will vote in favor of abortion rights, for example. They are not 
certain that he will vote in favor of racial preferences and quotas. 
They are not certain whether he will vote to give the Federal 
Government unlimited regulatory power to the exclusion of State and 
local government. I am not certain how Judge Roberts is going to vote 
on these issues either, but although my constituents are as concerned 
and as interested in these issues as anyone, I am not going to refuse 
to vote for this nominee on that basis. Judges are not politicians. 
They do not come to Washington to run on a political platform. They do 
not say: Vote for me, and I will put a chicken in every pot. They are 
not supposed to come before the Senate and promise to vote this way or 
that way on a matter that will come before them. Certainly, I 
understand as well as anyone why the American people, and Members of 
the Senate included, are curious about how Judge Roberts is likely to 
rule on future cases. I am curious about that, too. But sometimes we 
have to put our curiosity aside for a greater good. We do not want to 
create a situation where a Justice cannot win confirmation to the 
Supreme Court unless he pledges to vote this way or that way on certain 
hot-button issues of the day. Judges are supposed to be impartial, and 
they are supposed to be independent. That is why they have lifetime 
tenure once confirmed. Judges cannot be either impartial or independent 
if they are forced to make promises to the Senate of how they will vote 
in order to get confirmed.
  Some of my colleagues have said they simply cannot or will not put 
promises to politicians aside for this greater good of independence and 
impartiality. One of my colleagues says she wants to know who will be 
the winners on certain issues when Judge Roberts is on the Court. I can 
tell you who the winners will be. The winners are going to be the 
parties whose positions are supported by the Constitution and laws of 
the United States of America. Judge Roberts eloquently explained this 
during his confirmation hearing. He was asked whether he would rule in 
favor of the little guy. His answer was that if the Constitution and 
laws of the United States supported the little guy's position, the 
little guy will win. But if the Constitution says that the big guys are 
supported, their position is supported by the Constitution and laws of 
the United States and the facts in the case, then he will vote in favor 
of the big guy.

  This is exactly how it should be. Over the Supreme Court of the 
United States, as you look at that stately edifice, it says, ``Equal 
justice under the law,'' not that justice will be rendered in favor of 
the little guy all the time or against the big guy all the time or, 
conversely, for the big guy all the time and against the little guy. 
That is the antithesis of equal justice under the law. As a matter of 
fact, we all recall that Lady Justice wears a blindfold for a very good 
reason--because justice is about the law, not about persons who are 
sitting in front of a judge.
  Mr. President, second, I am not voting for this confirmation because 
he turned away clients with legal positions with which my constituents 
or some of us might disagree. Some of my colleagues have said they will 
vote against Judge Roberts because they are unsure of his heart. They 
are saying that his heart may not be pure because

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in private law practice he would not turn down clients with positions 
anathema to liberal special interest groups. Now, although they 
acknowledge that Judge Roberts has donated his time to clients who, for 
example, were on the liberal side of a lawsuit over gay rights, they 
criticize Judge Roberts because at his confirmation hearings he said he 
would have donated his time to clients on the conservative side of that 
same issue had they approached him first.
  This is perhaps the strangest argument of all against this nominee. 
My colleagues are going to vote against him because they think it is 
heartless to take on clients regardless of whether he agreed with them 
or not? That is the very essence of being a lawyer, a professional, an 
advocate. Lawyers are somewhat like public accommodations in a sense. 
Similar to hotels, restaurants, and the like, when lawyers place their 
shingle out and say, I am willing to entertain cases that people may 
bring to me, they are supposed to serve anyone who comes through the 
door, as long as they have an arguable legal position or factual 
position with which the Court might ultimately agree. As a matter of 
fact, our adversarial system of justice depends on lawyers not just 
taking cases with which they perhaps ideologically are inclined to 
agree but, rather, they are supposed to take the facts and the legal 
arguments and do the very best they can so that in a clash that plays 
out in our adversarial system of justice in the court room, the judge 
can make the best decision based on the best legal arguments and that 
jurors can decide what the truth is based on this clash of opposing 
  People are not supposed to be judged by the lawyers. Rather, in our 
system they are supposed to be judged by a jury of their peers. But if 
lawyers were constrained or prohibited from representing people with 
whom they might personally not agree, then they would never have a 
chance to be judged by a jury of their peers because they would not 
have a lawyer to take their case so that it could be presented to that 
impartial conscience of the community.
  I wish to ask where this reasoning of my colleagues might lead. There 
are any number of clients who few people would support politically but 
who need legal representation in our adversarial system. Criminal 
defendants are the most obvious example. Do my colleagues plan on 
punishing a lawyer who did not refuse to represent someone who is 
accused of a crime? Do they plan to disqualify anyone from service in 
the Federal judiciary who has ever represented someone accused of a 
crime? Or do they plan to disqualify only those lawyers who did not 
shun conservative clients or causes? I do not believe you can tell 
anything about a person's heart, that is, a legal professional, 
professional advocate by whom that person has represented as a 
lawyer. But even more important, I do not think the confirmation 
process should be about the nominee's heart. I, for one, do not want 
judges sitting in judgment in a court of law who are going to be guided 
by their heart and sympathies, rather than the law of the land and the 
facts as found by the trier of fact. I want judges who will side with 
the party who has the best argument and whose position is most 
consistent with established law that we all can recognize and read and 
understand for ourselves.

  Again, Lady Justice is blindfolded for a reason. Justice should not 
depend on who you are or who you know. It should depend on who has the 
law on their side.
  Third, I am not voting for John Roberts because he will preserve some 
hypothetical quixotic ideal of balance on the Supreme Court. Some of my 
colleagues have said they will vote for Judge Roberts because he is not 
any more conservative than his predecessor, Chief Justice Rehnquist, 
whom he will be succeeding. But they issued the warning that I started 
out with: Mr. President, don't you dare nominate someone we disagree 
with next time or we will use this unconstitutional filibuster. We will 
break with 200 years of precedent in the Senate and the very premise of 
our law, which is based on majority rule. We will break with that and 
we will filibuster in the Senate and prevent your nominee from ever 
taking the bench if you nominate someone we perceive is more 
conservative than Sandra Day O'Connor.
  My colleagues have said this is important because they want to 
preserve balance on the Court. Preserving so-called balance on the 
Court has never been the basis of a Supreme Court confirmation vote. 
The examples of this are legion. One of the last Supreme Court nominees 
to win confirmation was Justice Ruth Bader Ginsburg, who replaced 
Justice Byron White. Justice Ginsburg, I think it is clear, I think we 
would all agree, was an unabashed liberal and one of the most zealous 
supporters of abortion rights who has ever been confirmed to the U.S. 
Supreme Court.
  Justice White, nominated by President John F. Kennedy, was fairly 
conservative by contrast and indeed was one of the dissenters in the 
celebrated case of Roe v. Wade. Yet Justice Ginsburg, a self-avowed 
liberal, replaced a moderate to conservative Justice on the Court, and 
she was confirmed by a vote of 96 to 3. No one argued that Justice 
Ginsburg should be defeated because she would somehow shift this 
ideological balance on the Court.
  But she is only one example. Justice Clarence Thomas, one of the most 
conservative members of the Court, was nominated and confirmed to 
succeed Justice Thurgood Marshall, arguably one of the most liberal.
  Chief Justice Burger, President Nixon's antidote to judicial 
activism, replaced Chief Justice Earl Warren, whose name, in the minds 
of some, was synonymous with the phrase judicial activism.
  Justice Goldberg, who believed the ninth amendment gave the Supreme 
Court a license to invent new constitutional rights, replaced Justice 
Frankfurter, the father of judicial restraint.
  So it is clear this has never been the way it has been, historically. 
Nor is there any precedent or any obligation of a President to try to 
seek ideological balance when nominating someone to the Supreme Court. 
The reason why is very simple. Elections are supposed to have 
consequences. The President is entitled to put the people on the 
Supreme Court who share his values and his judicial philosophy; in this 
case one who believes the policymaking ought to primarily emanate from 
the elected representatives of the people in Congress, not life-tenured 
judges who are unaccountable.
  If Presidents were not entitled to change the Supreme Court, then 
Abraham Lincoln could not have changed the Dred Scott case, and 
Franklin Delano Roosevelt could not have changed the Lochner Court. I 
doubt my colleagues who are arguing for this ideological lockstep, or 
uniformity, would have favored that.
  But that brings me to why I am supporting this nominee, and the 
reasons are actually pretty simple. First, Judge Roberts is simply one 
of the most qualified individuals ever nominated to serve on the 
Supreme Court. Indeed, he may very well be the best qualified. We have 
heard it before. He graduated the top of his class, he clerked for two 
of the finest judges in the Nation, he served, with great distinction, 
two Presidents. He has argued 39 cases before the U.S. Supreme Court 
and is widely regarded as the finest oral advocate before the Court 
living today.
  In only 2 years on the D.C. Circuit Court of Appeals, he has already 
acquired a reputation as one of the most respected judges in America. 
Even the New York Times, which has editorialized against this 
nomination, has conceded that few lawyers in America could compete with 
Judge Roberts in professional accomplishments.
  There was a time not too long ago when a brilliant career such as 
Judge Roberts' was sufficient to win confirmation to the Supreme Court, 
when we did not have ideological tests, litmus tests; when we didn't 
have filibusters that blocked the majority from actually having an up-
or-down vote to confirm a nominee.

  Whereas Judge Roberts has spent his career representing clients on 
both sides of every issue, we saw in Justice Ginsburg, whom I mentioned 
a moment ago, a jurist spending most of her career representing the 
single client, the American Civil Liberties Union, on one side of these 
issues. She voiced support for some pretty extreme positions. She

[[Page S10563]]

supported taxpayer funding for abortions. She thought there was a 
constitutional right to polygamy and prostitution. Suffice it to say, 
her ideas were far outside of the legal, not to mention the political, 
mainstream of America.
  Finally, I am going to vote to confirm this nominee because this 
judge understands the proper role of an unelected Supreme Court Justice 
in a democratic Nation.
  Mr. President, I ask unanimous consent for an additional 3 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. To repeat, Judge Roberts understands the proper role of 
an unelected Supreme Court Justice in a democratic Nation. Ours is not 
a nation where nine judges sit in a marble edifice and decide what is 
good for us. Nor is it a Nation conceived on the premise that these 
nine unelected judges should be primarily policymakers. Rather, our 
notion of justice and law is based on consent of the governed. You can 
read it in the Declaration of Independence. Obviously, were unelected, 
lifetime-tenured judges to depart from the text of the Constitution, 
depart from precedent, and get into a mode of sort of freewheeling ad 
hoc public policymakers, they would have departed in the extreme from 
the framework laid down by our Founders and from the framework 
ensconced in our Constitution.
  I will vote to confirm this nominee. I hope my colleagues will do 
likewise. I hope further that my colleagues, who have already stated 
their intention to filibuster the next nominee, will wait until the 
President has in fact named a nominee to succeed Justice Sandra Day 
O'Connor. It is just possible--it is just possible they will be 
surprised and they will find the President has, indeed, selected 
another nominee in the mold of John Roberts, who will be overwhelmingly 
confirmed as Chief Justice of the United States.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi is recognized for 
5 minutes.
  Mr. COCHRAN. Mr. President, I appreciate the opportunity to speak on 
behalf of Judge John G. Roberts' nomination to serve as Chief Justice 
of the United States. The Members of the Senate may disagree on many 
legal and political issues, but I am confident a majority of the Senate 
will agree that Judge John Roberts should be confirmed. He has provided 
the Judiciary Committee with the story of his life. He has answered 
questions on a wide range of issues. In the process, he has 
demonstrated the ability, the temperament, and the wisdom to serve as 
Chief Justice of the United States.
  The process of providing advice and consent on a Supreme Court 
nomination is one of the Senate's most significant constitutional 
responsibilities, although it is not something we are called upon to do 
very often. Eleven years have passed since the Senate last exercised 
its duty to provide advice and consent to the President on his 
selection of a Supreme Court nominee; 19 years have passed since the 
Senate last considered a nominee for Chief Justice.
  By now, all Senators and most Americans have come to know the 
impressive life story of John G. Roberts, Jr. He is a summa cum laude 
graduate of Harvard University and an honors graduate of the Harvard 
Law School. He was an editor of the Harvard Law Review.
  After graduating from law school with high honors, Judge Roberts 
served as a law clerk to a judge on the Second Circuit Court of Appeals 
and as a law clerk to then Associate Justice Rehnquist on the U.S. 
Supreme Court. He has also served as a Special Assistant to the 
Attorney General of the United States and as an associate counsel to 
President Ronald Reagan.
  After those years of public service, he spent 3 years in private 
practice at a well-respected law firm, specializing in civil 
litigation. Judge Roberts then returned to public service as the 
Principal Deputy Solicitor General of the United States.
  During these years of service at the Department of Justice and as a 
lawyer in private practice, Judge Roberts argued 39 cases before the 
U.S. Supreme Court. His performance before the Court earned him a 
reputation as one of the Nation's premier appellate court advocates.
  Two years ago Judge Roberts was unanimously confirmed by this Senate 
to the U.S. Circuit Court of Appeals for the District of Columbia. This 
circuit court is considered by many to be the Nation's second highest 
  Judge Roberts is a devoted husband, a dutiful father of two young 
children, and he is a good and honest man. I closely followed the 
Senate Judiciary Committee's hearings on his nomination to be Chief 
Justice. It is clear to me that he is the right person for this very 
important responsibility. Judge Roberts has served with distinction in 
every job he has ever had. His record is compelling evidence that he 
would be an able and thoughtful member of the Supreme Court, and that 
his experience and his respect for the rule of law demonstrate he would 
be an outstanding Chief Justice of the United States.
  The quality and correctness of opinions and decisions by the Supreme 
Court will depend upon the conscientious application of reason and the 
rule of law by Chief Justice Roberts and his colleagues on the Supreme 
Court. I think Judge Roberts fully understands the role of the Supreme 
Court Justice and is totally qualified to discharge the duties of Chief 
Justice. I believe he will be fair to all and, in the application of 
the rule of law, impartial and unbiased.
  This is serious business. The members of the Federal judiciary are 
charged with the responsibility of protecting our rights as American 
citizens, adjudicating our grievances, promoting order and justice, and 
serving as stewards of the rule of law. The Chief Justice of the United 
States is the highest ranking official in the judicial branch of our 
Federal Government. He is in charge of the management and 
administration of the highest Court in the land. I believe Judge 
Roberts has what it takes to be an outstanding Chief Justice.
  I congratulate the President for his selection of Judge Roberts and I 
commend the President for his nomination. His nominee will be in an 
important position in our Government. I am pleased, indeed, that I will 
be able to vote in favor of his confirmation by the Senate.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Utah is recognized for 15 minutes.
  Mr. BENNETT. Mr. President, most of the speakers who have discussed 
this subject have talked about Judge Roberts' qualification. There is 
no point in my referring to them or repeating them again.
  There is a point that I do wish to make with respect to the entire 
process, which I think needs to be emphasized and stressed. It is this: 
Nominations are not elections.
  Read the Constitution, and we see that it allows for elections. It 
provides for elections. It says there are places where elections are 
appropriate. The President is elected. The Vice President is elected. 
The Members of the Senate and House are elected. But members of the 
Cabinet are not; they are appointed by the President. And to allow the 
election process to have an influence, they have to be confirmed by the 
Senate. But they are not elections.
  The same thing is true very much with respect to the judicial branch. 
A nomination for the Supreme Court is not an election.
  The reason I make such stress of that is because there are many 
groups out there who think this is an election. There are big ads on 
television. They are organizing demonstrations. They are walking around 
with placards. That is what you do when you try to influence voters in 
an election. This is not an election. The Founding Fathers understood 
that it should not be an election.
  There are some who have made up their minds long in advance of any 
nomination as to what they are going to do. I think, quite frankly, if 
President Bush were to somehow resurrect John Marshall and send his 
name to the Senate to be the Chief Justice of the United States, People 
For the American Way and Ralph Neas would insist that he was badly out 
of the mainstream and unqualified to be Chief Justice, even though 
history says he was the greatest Chief Justice in our history. But if 
he were picked by George W. Bush, that group would immediately say he 
is radical, he is out of the mainstream.
  We are getting the same thing with respect to Judge Roberts--an 

[[Page S10564]]

campaign complete with television ads and placards and demonstrations 
saying that Judge Roberts is out of the mainstream.
  I do not know where you go to find mainstream today. I do not know 
exactly where the mainstream is. I know where the left bank of this 
particular stream is. The New York Times is against Judge Roberts. That 
was predictable. That was as sure as the Sun would rise--that the New 
York Times would be opposed to anybody George W. Bush proposed.
  The Washington Post is usually thought of as being fairly close to 
the left bank, but the Washington Post looked at this nominee and said 
this is a qualified nominee.
  The American Bar Association tries to be as much of the mainstream as 
they can. They have given Judge Roberts' nomination their highest 
support, ``well qualified,'' unanimously. Maybe they are not mainstream 
enough for some of these people who are using this argument.
  The Los Angeles Times is not thought of as a rightwing organization. 
The Los Angeles Times said it would be a travesty if we didn't confirm 
Judge Roberts by a wide margin.
  Why do we want to confirm somebody like Judge Roberts? Why is the 
President's nomination a good one? In my view, it is because Judge 
Roberts understands one fundamental truth. Along with the one I have 
just given, a second fundamental truth, if you will, is that 
nominations are not elections and judges are not politicians, or more 
appropriately judges are not legislators. You have elections for 
legislators. You should not have elections for judges.
  Judge Roberts put it this way in describing his understanding of his 
responsibility. We have heard this before with respect to this nominee, 
but it is worth repeating. He said to the committee:

       I come before the committee with no agenda. I have no 

  Again, judges are not legislators.

       Judges are not politicians who can promise to do certain 
     things in exchange for votes. I have no agenda but I do have 
     a commitment. If I am confirmed, I will confront every case 
     with an open mind. 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. I 
     will remember that it is my job to call balls and strikes and 
     not to pitch or bat.

  In other words, he is the umpire, he is not a player. We have seen an 
example brought up in an effort to try to derail Judge Roberts' 
nomination of how he called ``balls and strikes'' and how he was not a 
legislator. It has been dropped now because those people who raised it 
didn't realize that it was going to be analyzed properly and turn out 
to be embarrassing to them rather than to the judge.
  But there was the case of the 12-year-old girl in Washington who, 
while waiting with her friend at the Metro station to buy a Metro 
ticket, happened to eat a single french fry, and she was arrested, 
handcuffed, and taken down to the station. Judge Roberts upheld the 
action of the Metro Police.
  Horrors, came the groups. There is an election. We can grab onto this 
as an example that we can sensationalize and win votes on. Then they 
examined the matter very carefully, and we got Judge Roberts' actual 
opinion in this case. He did not victimize a 12-year-old girl who was 
arrested for eating a french fry. This is what he said in his opinion 
that once again outlines the truth of his position that he will be an 
umpire, not a player, not a legislator.
  He said:

       No one is very happy about the events that led to this 
     litigation. A 12-year-old girl was arrested, searched and 
     handcuffed, all for eating a single french fry in a Metro 
     rail station. The child was frightened, embarrassed, and 
     crying throughout the ordeal. The District Court described 
     the policies that led to her arrest as ``foolish,'' and, 
     indeed, the policies were changed after those responsible 
     endured the sort of publicity reserved for adults who make 
     young girls cry. The question before us, however, is not 
     whether these policies were a bad idea but whether they 
     violated the Fourth and Fifth Amendments to the Constitution.

  He put the emphasis in the right place. This was a stupid law. It was 
passed for some other reason and turned out in administration to be a 
stupid law. It was passed by legislators, people with legislative 
responsibility. It was repealed by legislators. It should not be 
repealed by the judge just because it is stupid.
  I remember a conversation that took place after the Supreme Court 
ruled on the bipartisan Campaign Reform Act. It is no secret that I 
opposed that act as vigorously as I could. We passed it nonetheless. 
The President signed it. Then a lawsuit was filed. It went all the way 
to the Supreme Court. The Supreme Court found that the law was 
constitutional and upheld it.
  I will not reveal names because these were private conversations, but 
a Member of the Senate had the occasion to have a conversation with a 
member of the Supreme Court. The Member of the Senate said to the 
member of the Supreme Court: How could you uphold that law? That is a 
terrible law.
  The member of the Supreme Court appropriately said: You are right. It 
is a terrible law. You shouldn't have passed it.
  In other words, the Supreme Court should not be the one that corrects 
our mistakes unless we violate the Constitution. The Supreme Court 
should not take a position unless we violate the Constitution. The 
Supreme Court is not made up of legislators who fix things; it should 
be made up of people who examine the law.
  Even if the law is foolish enough to punish a 12-year-old girl for 
eating a french fry on the Metro, the Supreme Court should say: 
Legislators, this is a dumb law. You ought to fix it. But it is not our 
responsibility to legislate.
  The real reason so many groups have tried to turn Judge Roberts' 
nomination into an election rather than a nomination is because they 
lost the election and they are hoping they can turn the Supreme Court 
into a superlegislature that is beyond the reach of voters. Clearly, 
that is not what the Founding Fathers had in mind. Clearly, when they 
put the responsibility to make the choice in the hands of the 
President, they were saying this will be a nomination and not an 
election. If the Founding Fathers had wanted the Supreme Court at the 
national level to be open to the electoral process, they would have 
done what others have done at the State level. There are States where 
the appointment to the supreme court of the State is an electoral 
process. Whether that is good or bad is the subject for another 
conversation. But in this circumstance, we are talking about the U.S. 
Constitution, which every Member of this Chamber has taken an oath to 
  If we are going to uphold the Constitution of the United States and 
defend it against all enemies who would undermine it, be they foreign 
or domestic, we should preserve the constitutional process of 
nominations coming from the President of the United States. He has to 
answer to the people for his decisions. He should be the one to make 
the nomination. He is the one who is given the powers specifically.
  We can say, Mr. President, we don't consent to that because we think 
you made a mistake, but we in the Senate should not condone those who 
are trying to turn the nomination process into an electoral process. 
Because we should understand as Members of the legislature that members 
of the judiciary are not legislators, and we should not move in a 
direction of turning them into legislators by participating in an 
election-type process in vetting their credentials. If this man is 
qualified, he should be confirmed. If he is unpopular with the 
electorate, that should be irrelevant. The Constitution does not allow 
for that to intrude upon the confirmation process.
  There is no question but that John Roberts is qualified.
  I end with a conversation I had with one of my colleagues who made up 
his mind to oppose Judge Roberts. I said to him: In a theoretical 
situation, suppose you had everything you own on the line in a nasty 
lawsuit, and you had a legal problem where you could lose everything. 
Who would you choose to defend you? Which lawyer would you hire, John 
Roberts or a member of the Senate Judiciary Committee? He laughed 
immediately. He said: Bob, it isn't even close. If John Roberts is the 
obvious choice for a personal attorney for someone who needs real help, 
why should he not be the obvious choice for the Nation that needs real 
  He will be a superb Chief Justice, and I will vote for him with great 

[[Page S10565]]

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Virginia is recognized for 20 minutes.
  Mr. ALLEN. Thank you, Mr. President.
  Mr. President, I rise this afternoon in strong support of the 
confirmation of Judge John Roberts to be the 17th Chief Justice of the 
United States.
  When we first learned of this vacancy on the Supreme Court earlier 
this summer, I laid out the principles of what kind of judge I believe 
the President should nominate and how the nomination process should 
proceed. It should be a dignified approach as a due process. It should 
be fair, and there should be a vote.
  Federal judges are appointed for life. When one recognizes those 
debates in the founding of our country, Mr. Jefferson wanted judges 
appointed for terms, and Mr. Hamilton wanted them for life. 
Unfortunately, in my view, Mr. Hamilton won. The only time there is any 
scrutiny on the part of the public is at this time of confirmation. 
While some may not like the editorials, some may not like the TV ads, 
the demonstrations, and all the speeches. I don't think judges ought to 
be legislators, and I don't agree with some of their perspectives in 
our free country. Let us as Senators not say that people are wrong to 
demonstrate, run TV ads, advocate and express their views, even if we 
may not be in agreement with them. That is one of the foundational 
principles of our country. Ultimately our role is to listen, to examine 
judicial nominees based upon our criteria. Obviously, we can listen to 
the people and then ultimately it is our responsibility to vote.

  The following are the criteria I use to judge a judge. I have always 
believed the proper role of a judge is to apply the law, not invent the 
law. The proper role of a judge is to uphold the Constitution, not 
amend the Constitution by judicial decrees. The proper role of a judge 
is to uphold the intent of the Constitution and the principles of our 
Founders, not to indulge in self-satisfying judicial activism. The 
proper role of a judge is to protect and, indeed, to defend our God-
given rights, not to create or deny rights out of thin air.
  I believe it is my responsibility and the responsibility of all 
Senators to make sure that America's courts, including, of course, and 
most importantly, the Supreme Court, are filled with qualified men and 
women who possess the proper judicial philosophy in our representative 
  Laws are to be made by the representatives of the people. The people 
are the owners of the government. At the local level, they elect city 
councils, parish leaders, county boards of supervisors. Then we have 
State legislators, Governors, and, of course, Federal legislators, 
Congress, and the President.
  However, colleagues, every week, and almost every day, we see the 
consequences of activist judges who do not properly respect our 
representative democracy. They do not understand or respect the proper 
role and responsibilities of a judge not to be an executive and not to 
be a legislator.
  Let me share with my colleagues two examples of judicial activism, 
decisions where the rule of law which is one of those foundational 
bedrock pillars of a free and just society, where these concepts have 
been eroded and ignored by judges.
  Exhibit A comes from the Ninth Circuit Court of Appeals. The Ninth 
Circuit has trampled upon the will of the people of California by 
ruling that the Pledge of Allegiance cannot be recited in California 
public schools because it contains the words ``under God.'' They fail 
to see that the Pledge of Allegiance is not the establishment of any 
religion. It is a patriotic act. If a student does not wish to recite 
the Pledge of Allegiance, he or she is not compelled to do so. They can 
sit there quietly as the pledge is recited.
  This is a terrible ruling, not just because it violates the will and 
the values of the people of California, which it surely does, but it is 
also a terrible ruling because it actually displays a woeful and 
inexcusable ignorance of America's legal and historical traditions 
going all the way back to Mr. Jefferson's statute of religious freedom. 
This is all sacrificed on the altar of judicial activism.
  Unless the Ninth Circuit reverses itself, then the Supreme Court of 
the United States should ultimately reverse this prohibition of the 
Pledge of Allegiance in schools.
  Exhibit B comes from, I regret to say, the highest Court in the land, 
the Supreme Court of the United States. This past summer, in the case 
of Kelo v. City of New London, Connecticut, five Supreme Court Justices 
willfully ignored the Bill of Rights, allowing local governments, 
acting as commissars, the right to take someone's home, a person's home 
to be taken not for a road, not for a school, not for a legitimate 
public use, but simply because they think they can generate more tax 
revenue from the property upon which that home is located.
  Colleagues, home ownership is the greatest fulfillment of the 
American dream. Every American should have the opportunity to own the 
home in which they live. Every child is enriched by learning and 
appreciating the value and pride of home ownership. That is why I 
advocate economic policies that make home ownership more affordable to 
more people. It is not just good economic sense, it is also an issue of 
fairness. It is an issue of opportunity in this land we call home, 
  This outrageous decision that is forcing people out of their homes, 
the very definition of the American dream, in the name of expanded 
government tax revenue, is amending the Bill of Rights by judicial 
decree and is contrary to what I believe is a fair and just society.
  These are just two examples of judicial activism. We do not need any 
more judicial activists on the Ninth Circuit, on the Supreme Court, or 
any court in this land. The only way to stop this insidious effect of 
judicial activism is to confirm well-qualified judges who possess good 
legal minds and understand their role in our Republic. Judges are not 
to be legislators or executives. Judges should fairly adjudicate 
disputes based upon the law and the Constitution.
  I believe Judge Roberts is precisely that kind of judge. I believe 
Judge Roberts has the credentials, the values, and the temperament to 
be an outstanding Chief Justice.
  Let me briefly touch on some of his outstanding credentials. He 
graduated summa cum laude from Harvard College, magna cum laude from 
Harvard Law School, was a law clerk for both Judge Friendly and later 
for Chief Justice William Rehnquist, a Justice Department aide for the 
Reagan administration, the Principal Deputy Solicitor General in the 
first Bush administration, a private attorney with Hogan & Hartson, and 
since 2003, an esteemed judge on the D.C. Court of Appeals.
  I supported Judge Roberts' confirmation to the D.C. Court of Appeals, 
and his service there has confirmed my confidence in his outstanding 
capabilities. I have been impressed not only by his keen judicious mind 
but also his commitment to the Constitution and understanding the 
importance of the rule of law and the role of a judge.

  I met with Judge Roberts back in August. We discussed things one on 
one. I found him to be a very well grounded individual. He possesses 
the right judicial philosophy. I know people are concerned that some 
judges might get in there and somehow get out of touch in the rarefied 
air of judgeships, particularly on the Supreme Court. I thought it was 
good he cuts his grass every now and then--not that it is a 
qualification to be a judge, but it shows he understands how people 
live in a relatively normal way.
  Most importantly, we talked about the importance of precedence, 
individual rights, the interpretation of Federal and State laws, and 
what deference should be given to laws passed by the representatives of 
the people, as well as a variety of other issues.
  I am very comfortable with Judge Roberts and his understanding of the 
role of a judge, the importance of the Constitution, and that the 
Constitution should not be amended by judicial decree.
  I enjoyed asking him what he thinks the role of international law or 
laws from other countries should be for judges. We will not have others 
from another country tell us what our laws ought to be. I love his 
judicious approach that any judge who uses international laws or the 
laws from other countries to make decisions upon cases in the United 
States, those judges are trying to accrue to themselves more power than 
they should have. The powers of Federal judges in this country

[[Page S10566]]

come from the laws that are passed by the people in the United States. 
If you start trying to get extraneous laws, that is judicial expansion. 
He understands the modest and respectful way a judge should handle 
  Later in his confirmation hearings, we saw how Judge Roberts 
continued to show a rare reverence for our Constitution and the Supreme 
Court's responsibilities under our Constitution. He declared:

       Judges are not to put in their own personal views about 
     what the Constitution should say, but they are supposed to 
     interpret it and apply the meaning that is in the 

  Judge Roberts went on to say:

       [J]udges need to appreciate that the legitimacy of their 
     action is confined to interpreting the law and not to making 
     it, and if they exceed that function and start making the 
     law, I do think that raises legitimate concerns about [the] 
     legitimacy of their authority to do that.

  It is refreshing to hear those words from the lips of a Supreme Court 
nominee. May other judges in the Federal court system understand and 
respect that, as well.
  As we get ready to vote tomorrow on Judge Roberts, this is exactly 
how this system and this process ought to work--fair and open hearings 
where the nominee explains his or her judicial philosophy but refuses 
to prejudge individual cases, and following all of the scrutiny and the 
questions and examination, there is a fair, up-or-down vote on the 
Senate floor. This is the American tradition. This should not be an 
exception. This should be the rule and the way we treat judicial 
nominees, not just this nominee but future nominees.
  I remind my colleagues, we will soon have another Supreme Court 
vacancy to fill. We will need to fill it very soon. We should be fair 
and dignified, we should be deliberative, and when it is over, we 
should vote. Yes, that is our responsibility, to vote.
  I am looking forward to having John Roberts serve as Chief Justice of 
the Supreme Court of the United States. I am also looking forward to 
confirming other well-qualified judges who understand and appreciate 
the foundational principles of our country and who will reinforce the 
rule of law by fairly adjudicating disputes protecting our freedom of 
religion, protecting our private ownership of property, and our freedom 
of expression.
  John Roberts, I believe, will go down in history as one of the great 
Chief Justices of the Supreme Court. Let him also become a role model 
for all other men and women who will follow on Federal benches.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. CARPER. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Under the previous order, the time from 5 p.m. to 6 p.m. will be 
under the control of the Democratic side.
  The Senator from Delaware.
  Mr. CARPER. Mr. President, those of us who are privileged to serve in 
the Senate literally cast thousands of votes during the years we spend 
here. Some votes are procedural in nature and of little consequence. 
Others are far more meaningful. Katrina relief, pension reform, and 
trade agreements come to mind. Once in a great while, though, we are 
called upon in this body to cast a vote of such importance to our 
Nation that it will resonate for years to come--whether to authorize 
the use of military force against another nation or whether to impeach 
a President. There are few votes, however, we will cast in our time 
here that are likely to leave a more lasting impact on America than the 
one we will cast tomorrow morning. In confirming the nomination of John 
Roberts--something that is all but certain--we not only will authorize 
him to serve as the Chief Justice of the U.S. Supreme Court, we will 
also make him the leader of the judicial branch of our Government. God 
willing, he will hold that post for as long as most of us in the Senate 
are likely to live. A great deal is riding on this vote for our country 
and its people, both today and for a long time to come.
  For many of us, this one is a close call. Understandable concerns 
have been raised on a number of fronts about what kind of Chief Justice 
John Roberts ultimately will make. Do the writings of a young man in 
his twenties reflect the views of this 50-year-old man today? If not, 
why was he reluctant to clearly say so publicly when given that 
opportunity? Why did the current administration refuse to allow any 
scrutiny of the writings of Judge Roberts from when he served as the 
No. 2 person in the Solicitor General's Office of former President 
Bush? What direction would Chief Justice Roberts seek to lead the 
Supreme Court in the coming years on issues relating to privacy, to 
civil rights, and to the prerogatives of the Congress to set policy 
that may be at odds with the views of State and local governments? How 
will Judge Roberts seek to interpret and apply the Constitution and a 
wide variety of laws, both State and Federal? Will the Roberts Court 
respect precedent or aggressively seek to establish new ones?
  The honest answer to most of these questions is that none of us 
really know for sure--not the President, probably not even Judge 
Roberts himself. That uncertainty explains at least in part why this 
vote is so difficult for many Members of this body. So we are asked to 
make a leap of faith. For some, that leap is large. For others, it is 
  For myself, I have decided to take that leap of faith. After a great 
deal of deliberation, conversations with many Democrats and Republicans 
on the Senate Judiciary Committee, as well as with others back home and 
here, I have decided to vote tomorrow to confirm the nomination of John 
Roberts to serve as our Nation's Chief Justice. Time will determine the 
wisdom of that decision, along with the decisions of each of our 
colleagues who join me in casting our votes tomorrow.
  Yesterday, I had the privilege of meeting with Judge Roberts in my 
office. There, we discussed many of the concerns and question marks I 
mentioned just a few minutes ago. His responses were forthright. They 
were insightful. And I believe they were sincere.
  Our conversation also provided me with insights into how a young man 
from a small town in Indiana could grow up, attend Harvard, become one 
of the most admired lawyers in America, be nominated for the Supreme 
Court, not once but twice, and then sit through 3 days of often 
grueling questioning before the Senate Judiciary Committee, responding 
calmly and respectfully to questions on a wide range of legal issues 
without the benefit of any notes or even a pad of paper.
  Judge Roberts and I spoke with one another at length about our 
respective childhoods and of our parents and the roles they played in 
our lives and the values they instilled in us and in our siblings. We 
also talked about our educational opportunities, our careers, our 
mentors, our spouses, and even about the children we were raising.
  It was a revealing and encouraging conversation. It was a revealing 
and encouraging conversation in that it provided me with important 
insights into his personal values and with a measure of reassurance on 
the direction he may ultimately seek to lead the highest Court of our 
  I shared with him that in the 8 years before coming to the Senate, I 
served as Governor of Delaware. In that role, I nominated dozens of men 
and women to serve as judges in our State courts, several of whom enjoy 
national prominence given my State's role in business and corporate 
  Ironically, and I think wisely, Delaware's Constitution requires 
overall political balance on our State's courts. For every Democrat who 
is nominated to serve as a judge, Delaware Governors must nominate a 
Republican, and vice versa. The result has been an absence of political 
infighting and a national reputation for Delaware's State judiciary 
regarded by some as the finest of any State in our land.
  The qualities I sought in the judicial nominees I submitted to the 
Delaware State Senate included these: unimpeachable integrity, a 
thorough understanding of the law, a keen intellect, a willingness to 
listen to both sides of a case, excellent judicial temperament, sound 
judgment, and a strong work ethic. In applying those standards to Judge 
Roberts, I believe he meets or

[[Page S10567]]

exceeds all of them. To my knowledge, no one has questioned his 
integrity, his intellect, or his knowledge of the law. Democrats and 
Republicans alike watched, along with a national audience, as Judge 
Roberts fielded any number of tough questions over the 3 days of 
hearings and responded knowledgeably, respectfully, with humility, and 
occasionally with self-deprecating good humor. In all candor, I am not 
sure any of us would have done as well.
  Having said that, though, questions and doubts remain about where 
Chief Justice Roberts will come down on a number of issues--
reproductive rights, civil rights, and respect for congressional 
prerogatives, to mention a few. I might add that, if truth be known, 
all of those doubters are not liberal Democrats. Some of them are 
conservative Republicans.
  The answers to these questions will come in the years ahead as Chief 
Justice Roberts assumes this important post and begins to lead this 
Court and the judicial branch of our Government. In the end, some of 
the decisions he helps to formulate may surprise and confound people on 
all sides of the political spectrum. That is something one of his 
earliest mentors, Judge Henry Friendly of the Second Circuit Court of 
Appeals, has done for years.

  Let me pause and ask my colleagues today to think back just for a 
moment. How many of us would ever have imagined that a Texas 
Congressman and Senator with Lyndon Johnson's early civil rights record 
would go on to champion the civil rights of minorities like no other 
American President in the 20th century? Who among us, watching former 
Representative and Senator Richard Nixon, a Cold War warrior for 
decades, would have foreseen the role he played in opening the door for 
U.S. relations with Communist China? Then, too, recall, if you will, 
the loathing many conservatives came to feel toward the late Chief 
Justice Earl Warren, a nominee of President Eisenhower, or the disdain 
many liberals came to feel toward former Justice ``Whizzer'' White, a 
nominee of President Kennedy.
  The truth is that life and its experiences do change us and some of 
our views in ways that cannot always be predicted. Having children of 
our own and later welcoming those children into our lives as well as 
learning from our mistakes and from the mistakes of others can combine 
to make us wiser, to temper our views, to broaden our horizons and 
deepen our understanding of the views of others with whom we share this 
planet. And so it is likely to be with Judge Roberts.
  As I prepare to take a leap of faith tomorrow--albeit not a reckless 
one, in my view--let me close with a few words of advice, respectfully 
offered, to our President. A second nomination looms just around the 
corner. President Bush's choice of that nominee is, in many respects, 
as important as this one. The next choice can divide this Congress and 
our country even further or it can serve to bring us a little closer 
together. We need a choice that unites us, not one that divides us 
  We also need a choice that reflects the diversity of this country in 
which we live. There are any number of well-qualified women, and maybe 
even a few men, who would be a good choice for the seat now held by 
Justice Sandra Day O'Connor. On behalf of all of us, Mr. President, let 
me encourage you to send us one of those names.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. MURRAY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. MURRAY. Mr. President, I rise to announce my vote on the 
nomination of Judge John G. Roberts, Jr., to be the 17th Chief Justice 
of the United States.
  I do not cast this vote lightly. I recognize how critical the courts 
are in protecting and advancing the rights of all Americans. I know 
what is at stake. I am also mindful that John Roberts has been 
nominated for a lifetime appointment to the highest seat on the highest 
Court in our country. In our system, there is no backstop or review of 
a Supreme Court Justice once he or she is confirmed. That means under 
the Constitution we in the Senate have the responsibility to fully 
evaluate each nominee before voting, and that is exactly what I have 
  For me personally, casting a vote on a nominee to the Supreme Court 
carries special meaning. Thirteen years ago the nomination of another 
Supreme Court Justice, Clarence Thomas, helped launch my own path from 
the kitchen table in Shoreline, WA to this historic desk on the floor 
of the Senate. During the Thomas confirmation, I was deeply frustrated 
that the questions I believed needed to be answered were not even 
raised. I was troubled that average Americans, moms and dads, had no 
voice in a process that would affect their rights and liberties.
  This time I had the opportunity to ask those questions directly to 
the nominee. I was pleased to work with my Democratic women colleagues 
to open the process and empower people across the country to submit 
questions to the nominee via a Web site that Senator Barbara Mikulski 
created. Today not only did I have the opportunity to ask those 
questions directly, but the weight has also been on my shoulders.
  For days I have struggled with whether this nominee represents the 
fear I have of the worst motives of this administration or whether he 
represents the best hopes of a country for wise decisions that protect 
our rights and our freedoms and our responsibilities. No one of us can 
know for sure. There is no doubt that anyone I would have nominated 
would have come from a different background with a different history, 
but this was not my choice. There is much I do not know about how Judge 
Roberts will rule, but as history has shown, none of us can predict 
that. And without a crystal globe, I must make this very difficult 
decision based on what I do know and upon the criteria I have long used 
to evaluate nominees for judicial appointments.
  This evening I talk about how I have applied my standards to other 
nominees for the Federal bench. I am especially pleased that in 
Washington State we do judicial nominations the right way, through a 
careful, bipartisan process that helps us select qualified candidates 
without regard to politics. In Washington State, I have worked with 
different administrations to craft a process that helps us identify and 
confirm qualified individuals for the Federal bench. We solicit input 
from a wide variety of respected individuals within the Washington 
State legal community, and then we personally interview each 
recommended candidate prior to submitting his or her name to the White 
House for consideration.
  During the Clinton administration, my colleague Senator Gorton and I 
worked together to recommend and support individuals for appointment to 
the Federal bench. Senator Gorton and I disagreed on a lot of issues, 
but we did agree that when it came to our duty in confirming 
individuals to the third and coequal branch of our Government, we 
should set aside partisanship and focus on qualifications. That 
tradition has continued with my colleague Senator Cantwell. We got off 
to a rough start on this approach because the Bush administration at 
first did not want to continue the fair process Senator Gorton and I 
had established, but eventually the wisdom of our process prevailed. 
While there have been hiccups along the way, we have used it to confirm 
qualified people to serve on the bench.
  Through this fair and deliberative process, I have supported nominees 
with a wide variety of backgrounds. I have supported people who have 
come from privileged backgrounds and those who beat the odds to realize 
their achievements. I have supported Democrats and Republicans. Each 
time, though, I was confident that I was supporting an individual who 
would serve every American who came before them well, and I have not 
been disappointed.
  My home State of Washington is 2500 miles away from Washington, DC. 
In many ways it is even further than that in terms of our independence 
of thought. The White House would do well to learn from the example we 
set in Washington State, and I hope the Bush administration will do a 
better job of consulting with the Senate on its next nominee and 
providing a more complete record of that nominee's background and 

[[Page S10568]]

  Some have suggested to me that I use my vote to register my 
disapproval at things the Bush administration has done or that I use my 
vote to send a message to the President. While I am angry about 
mistakes and miscalculations and misrepresentations and misdirected 
priorities of the Bush administration, this vote is not the place to 
vent those frustrations. Fairness requires that I evaluate each nominee 
on his or her own merits, without a predetermined outcome, just as I 
expect every judge to do when a case comes before them. My vote is 
based on the same standards I have used for years, not on anger or in 
sending messages or ignoring a nominee's actual record.

  This would be an easier decision if we had a complete record. The 
White House has refused to provide more recent memos from Judge 
Roberts' work in the Solicitor General's office which would have 
provided us with a clearer picture of the nominee. I, frankly, think 
the White House's position is a reflection of the general breakdown in 
the process that we use to select and confirm judges today. With this 
administration, consultation with the Senate is cursory at best, and 
from the very beginning there has been often a kind of ``spoils of 
war'' approach to how they view appointments to the Federal bench. I 
believe this approach has resulted in unqualified individuals being 
forwarded by the administration to the Senate for consideration. This 
approach has contributed to the partisan rancor regarding nominations 
to the courts.
  These actions are even more concerning in light of the second vacancy 
the Bush administration is set to fill in the coming weeks. I do not 
believe that an honest, fair evaluation could be completed with any 
less material information than we were provided during this 
confirmation process. I believe the Bush administration is attempting 
to set a dangerous precedent with its words and actions or lack 
thereof, and I fear that future court nominations could be even more 
contentious as a result.
  In looking at nominees for our courts, I always follow a very 
deliberative process of having a set of standards and comparing 
individuals who come before us as nominees to that set of standards. I 
examine their record and their experience and their testimony. I see if 
they meet the basic standards of honesty and ethics and qualifications 
and fairness. Then I evaluate if they will be independent, evenhanded 
in deciding cases, and if they will uphold our rights and our 
liberties. Those standards help me ensure that when any American, 
regardless of background, comes before the court, he or she receives a 
fair hearing and that the resulting decision renders justice according 
to the law.
  In reaching a decision on Judge Roberts, I reviewed all of the 
information that was available, and then I examined how Judge Roberts 
measured up to my criteria for judicial nominees. I followed the 
Judiciary Committee hearings closely. I read the transcripts. I have 
spoken directly with Judge Roberts twice, once in a meeting in my 
office and once by phone.
  Looking at my standards, I found Judge Roberts to be honest, ethical, 
qualified, and fair. I believe he will be evenhanded in deciding cases. 
On those criteria, Judge Roberts clearly met my test. It was my last 
criteria, upholding the rights and liberties of all Americans, where I 
had a harder time evaluating Judge Roberts. I wish the White House had 
been more forthcoming in making available more documents that would 
have shed light on some of his more recent work and opinions. I wish 
the nominee himself had been more responsive to questions in his 
testimony before the Senate Judiciary Committee.
  Through this process, I have concluded that Judge Roberts is a decent 
person with keen intellect and high ethical standards. I believe he 
does know the difference between the role of advocacy, which he has 
held in the past, and the role of judge. I think he has the capacity to 
be fair, and I think he aims to serve all of the American people.
  On the question of upholding the hard-won rights and liberties of the 
American people, I believe Judge Roberts has a healthy regard for 
precedent and intends to apply a thoughtful approach to interpreting 
the law. This is not to say I would expect or even hope to agree with 
every decision he might make or every opinion a Chief Justice Roberts 
might author. In making my decision, I recognize that history has shown 
no one can accurately anticipate what type of Justice a nominee may 
ultimately become.
  For many weeks I have known some people in Washington State will be 
disappointed in my decision regardless of what that decision is. I have 
heard from friends and colleagues, constituents and strangers, on all 
sides of the question. Many of them have surprised me in their candor 
and in their position. All this has led me to struggle with the 
decision for many days now. I have read up on Judge Roberts. I have 
listened to the thoughts of others. I have talked with the judge 
himself. All the while, it has been an extremely close call in my mind, 
for I know the gravity and the consequences of this important vote. I 
have had deep and lasting concerns. But I have had strong, heartfelt 
hopes as well.
  In the end, I returned to the basic criteria I use on any tough 
question and to the values the people of Washington State sent me here 
to protect. In examining that criteria and those important values, I 
have made a decision that I hope everyone can understand and appreciate 
and even be proud of. I am satisfied that Judge Roberts meets my long-
held criteria and, therefore, I will vote to confirm his nomination.

  I believe Judge Roberts is well qualified to serve. I believe he is 
intelligent and honest and fair. Is he wise? Only time can answer that. 
I cast this vote with the hope that John Roberts will be an individual 
who will combine common sense and decency with a real respect for how 
the law affects each American as he serves out his tenure on the 
Supreme Court. In spending time with him and reviewing the available 
record, I believe Judge Roberts has the capacity to be that kind of 
  Throughout our history, America has always had to confront challenges 
and enjoyed a lively debate on how to meet them. Today is no different. 
Our great Nation is confronting enormous challenges, and the debate 
over how to address those challenges has caused great divisions in our 
country. Many people, as I do, fear the direction in which this country 
is headed. They fear for our security. They fear we are not doing 
enough at home to secure a stronger future, and they fear the progress 
we have made in the last several generations is being eroded by a 
political agenda. Those fears are well founded, and they are real. But 
our country was also founded on hope, hope that by securing individual 
liberty, a free people could govern themselves in the interest of 
promoting the common good, hope that despite our differences, we could 
band together to create strong communities and a better future for 
generations of Americans to come. That spirit of hope is alive today 
and should help guide us at least as much as our fears.

  My vote tonight is a vote of hope--hope that despite our differences, 
we can unite around the common good; hope that equal justice under the 
law means something powerful to every American, regardless of 
background or political persuasion; and hope that John Roberts responds 
to the needs of this Nation to have a Supreme Court that honors our 
past and helps secure the rights and liberties of every American into 
the future.
  When I asked Judge Roberts what kind of judge he wanted to be, he 
said: A Justice for all Americans. I hope my vote, along with the 
diverse group of my Senate colleagues, reminds him every day that he 
must be a judge for all Americans.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mrs. LINCOLN. Mr. President, I compliment my colleague from 
Washington State for the incredible job she does here every day, for 
the thoughtfulness she brings to this process, and the wonderful job 
she does representing the people of Washington State. She is a delight 
to work with and someone who I think brings to the table thoughtful 
consideration, with a strength and a courage and a wisdom that should 
make the people of Washington State proud, and I know it does.
  I come here today after much thought and prayer over a decision

[[Page S10569]]

that is incredibly important. I agree with my colleague from Washington 
State that this is a time where our Nation needs much hope, whether it 
comes from the devastation we have seen in the gulf coast in the 
southern region of our Nation, whether it is the families of our 
soldiers who find themselves giving of themselves and of their families 
to protect the rights and the freedoms in which we in this Nation take 
great pride, and it is also as we come to the consideration of a 
Supreme Court nomination by the Senate which I find to be one of the 
most important and consequential duties we have as an institution in 
our system of Government.
  I think the American people look to us now with hope that we will 
work in a bipartisan way, in a way of union, in uniting our Nation to 
bring about a coequal branch of our Government that can reassure the 
American people of justice and of hope.
  This is especially true when the candidate being considered has been 
nominated to the position of Chief Justice of the United States, not 
simply an Associate Justice but someone who is going to provide the 
leadership to the highest Court in our land.
  As the Senate performs its duty under the Constitution with regard to 
this nominee, I am also mindful this is the first Supreme Court nominee 
I have been called upon to evaluate as a Senator from the great State 
of Arkansas. I have no doubt this is one of the most important 
nominations I will consider during my tenure in public service.
  Given the import of this decision for the future of this Nation and 
the responsibilities I have to my constituents and my country, I have 
examined all of the information available about Judge Roberts' 
nomination to ensure I have given this matter the full attention it 
needs and, most importantly, that it deserves.
  In making my decision, I very carefully and deliberately reviewed the 
record compiled by the Senate Judiciary Committee. Further, I have 
considered the views of Arkansans, both those who think Judge Roberts 
will make a fine Supreme Court Justice and those who have real concerns 
about the direction he might lead this very important Court.
  I have also met with Judge Roberts privately to get a better sense of 
who he is as a person, his temperament, and, most importantly, what his 
experiences have been in his life that may form his views and the 
interpretation of the Constitution.
  Additionally, I have considered the views of his peers and colleagues 
in the legal community on both sides of the political spectrum who know 
Judge Roberts, who have worked with him firsthand and have a firsthand 
knowledge of his works and abilities.
  Finally, I have prayed. I searched my conscience and reflected on my 
principles as a Senator for the people of the State of Arkansas, using 
my experience, coming from the salt of the earth in east Arkansas, a 
farmer's daughter, my experience as a wife, a mother, a neighbor, to 
make what I believe is the right decision and one I will have to live 
with for the rest of my life.
  I want to say at the outset this has been one of the hardest 
decisions I believe I have been called upon to make since I came to the 
Senate more than 6 years ago. It has been difficult because the 
consequences of confirming a new Chief Justice are so profound.
  Judge Roberts will likely serve on the Court for several decades, and 
I believe he will have more influence on the future of our Nation than 
any Member who serves perhaps in this body today.
  This decision has also been difficult for me because of the manner in 
which this administration has handled this nomination, in some 
respects, and certainly many other nominations that have come before 
  When President Bush first ran for office in 2000, he told the 
American people he was a uniter, not a divider. He talked about how 
well he had worked with Democrats as Governor of Texas and that he was 
going to continue that approach as President to change the tone in 
Washington. And, oh, how that tone in Washington needed to be changed.
  But sadly, that did not happen. President Bush has not followed 
through on that promise, and judicial nominations, unfortunately, are 
one of the most glaring examples of where his administration has fallen 
short. In my opinion, this administration has gone out of its way to 
divide this Nation and the Senate on judicial nominations, which I 
think is truly a disservice to our judiciary and to the American 

  When the Senate rejected only a handful of Federal appeals court 
nominees during the President's first term in office, I expected a 
uniter who would work with Senators, who expressed concerns, and 
nominate other qualified candidates who could win confirmation with 
broad bipartisan support. Instead, after winning reelection, the 
President renominated many of the same controversial nominees and 
essentially dared the Senate to challenge him again.
  Reflecting on the last 5 years, his administration apparently 
believes it is better for them politically to pick a fight over 
judicial nominees than it is to pick sometimes qualified nominees who 
have earned the support and respect from those on both sides of the 
aisle in the legal community in which they work and in the Senate.
  As a pragmatic Democrat who has always been willing to find common 
ground and to work in good faith with members of both parties to serve 
the best interests of my constituents, I am alarmed by the 
confrontational approach this administration has taken.
  We can all be proud of the Founders of this great Nation who created 
our system of government, where they wisely divided the power of 
appointment and confirmation of the Federal court Justices between the 
executive and legislative branches of our Government. They did this to 
ensure only the most qualified candidates who had the confidence of the 
President and the Senate would be confirmed to a lifetime seat on the 
Federal bench.
  I truly worry that the political tug of war over the judiciary, which 
President Bush has encouraged, threatens to undermine the judicial 
selection process and with it our framework of checks and balances 
which has preserved for centuries the rights and freedoms we cherish as 
Americans, not to mention the sense of pride and comfort or peace of 
mind it provides the American people to know that in that third coequal 
branch of Government, they can rest assured that their freedoms, their 
rights will be justly directed.
  To work properly, the process depends on mutual trust and respect 
between the executive and the legislative branches, and when that trust 
and respect is strained, our ability to do our very best as a 
government, to preserve and to protect a fair and independent judiciary 
for future generations, becomes in jeopardy.
  So it is into this atmosphere of political confrontation that Judge 
Roberts was nominated to the Supreme Court. And it is why, frankly, I 
have had difficulty separating my profound disappointment with the 
administration and the distrust it has fostered from my opinion of 
Judge Roberts as an individual. So to separate that opinion of Judge 
Roberts that I needed to develop as an individual, as a lawyer, and 
potentially the next Chief Justice of the United States, ultimately, I 
concluded it is unfair to hold Judge Roberts accountable for the 
actions of the President who appointed him.
  As I have set aside the history of the last 5 years to take a closer 
look at this nominee, it has become apparent to me that Judge Roberts 
does meet the test I believe we should strive to achieve in the 
judicial selection process. After careful thought and deliberation, I 
have concluded Judge Roberts is a very smart man who has an enormous 
respect for the law.
  There is no question in my mind that Judge Roberts has the legal 
skills and the intellect necessary to perform his duties on the Supreme 
Court. He has impeccable academic credentials and has demonstrated an 
impressive command of the law and Constitution throughout his 
professional career and during his recent confirmation hearings.
  I also believe that above all else, Judge Roberts is devoted to the 
Constitution and the institutional integrity of the judiciary and the 
vital role it plays in our system of Government.
  I have no doubt John Roberts is a Republican, like the President who 
appointed him. But I don't believe his party affiliation will prevent 
him from

[[Page S10570]]

giving both sides in each case before the Court a fair and impartial 
  Simply put, I believe John Roberts cares more about following the law 
and maintaining the respect for the judiciary than he does about 
politics and ideology.
  I base this conclusion on the respect and support he has earned from 
lawyers and colleagues on both sides of the aisle who know Judge 
Roberts well--they know him far better than I do--on the evidence in 
the record from his own comments and those of his colleagues that he 
has had an abiding respect for the Court's decisions and that he 
understands the value of continuity in the law, and on his 
distinguished career as a lawyer and advocate before the Federal 
judiciary over many years.
  I regret Judge Roberts has made this decision more difficult than it 
needed to be by refusing to be more forthcoming about his views on 
protections in the Constitution for individuals, especially as 
those protections and guarantees relate to civil rights and gender 

  As many of my colleagues have already mentioned, Judge Roberts wrote 
several memos when he worked in the Reagan administration in which he 
advocated for a narrow application of Federal antidiscrimination 
statutes, specifically the Voting Rights Act and title IX. Judge 
Roberts indicated in his response to questions about these memos during 
his confirmation hearings that he was representing the views of his 
client, the administration, without elaborating on whether he held 
those same views today.
  He stated he could not say more regarding his views on those subjects 
because to do so might undermine his ability, if confirmed, to 
impartially consider similar cases that are likely to come before the 
  I believe he could have said more on those and other issues before 
crossing that line, but I don't believe Judge Roberts is entirely to 
blame for failing to be more responsive.
  The partisan atmosphere which pervades the confirmation process today 
almost guarantees that Senators are left with no choice but to ask 
legitimate questions of a Supreme Court nominee they know will not be 
answered. So the Senate is left to make a decision based on the limited 
information provided during the confirmation process and from a 
nominee's previous work and life experience.
  My vote for John Roberts is by no means an endorsement of his 
nomination process, nor is it an endorsement of the decision by the 
administration to withhold documents from Judge Roberts' tenure in the 
Solicitor General's Office during the first Bush administration. That 
would be helpful to Senators in forming an opinion about this 
nomination. These are the types of documents previous administrations 
have made available to the Senate during the consideration of Supreme 
Court nominees in the past. There is no reason to have not made them 
available in this instance. Future nominees to the Supreme Court, or 
any lifetime judicial position, may not possess the same outstanding 
personal qualities and impeccable reputation that helped Judge Roberts 
overcome his failure, and the failure of the administration, to respond 
more fully to legitimate requests for information. Indeed, there have 
been past nominees who have failed to receive Senate confirmation, at 
least partially because they refused to answer questions or release 

  I feel that I have done my level best, despite my misgivings about 
the actions of this administration in the past, to fairly and carefully 
and in good faith evaluate this nomination, which is my duty as a 
Senator. I believe I have done that. It is my hope and expectation 
that, if confirmed, Judge Roberts will do likewise with respect to 
every litigant who comes before the Court, especially those who have 
not experienced the same opportunities with which he has been so richly 
  I believe Judge Roberts will do that, and therefore I will support 
his nomination. I join my other colleagues who look to leadership in 
hopes, in hopes that we can mend many of the fences and the 
difficulties that have been conjured up by very partisan attitudes in 
these nomination processes, but to look toward Judge Roberts in a way 
that understands and takes in full faith his commitment that he will 
administer the law through the courts in a just way, without regard for 
his political or personal views but with the kind of sincere devotion 
to the Constitution and the rule of law and the precedent of the courts 
that he has expressed to many of us personally; that he will move 
forward, and deal with every litigant who comes before him in Court in 
a fair and just way.
  In closing, I wish to comment briefly on the future as we move beyond 
this nomination. When I first ran for office as a young single woman in 
the early 1990s, I did so because I had hope, hope that I could improve 
my Government and make it more responsive to the needs of the citizens 
of my State. Perhaps my greatest attribute was the fact that I was 
naive. It never occurred to me that I didn't belong here; perhaps that 
as a young woman, this might have been a place a little bit out of 
touch for me. But I ran because I believed in my country, I believed in 
the people of my home State, and I believed in what I had to offer.
  I see a good bit of that in Judge Roberts as well. I have tried my 
best each day that I have been privileged to serve in public office to 
fulfill that commitment, and today I still have great hope for our 
Nation's future and its government. I also have hope that we can 
improve the judicial nomination process as we move forward if all 
people of good will on both sides of the aisle will work together in a 
spirit of cooperation and good faith. I stand ready to do my part to 
overcome our differences as a nation because I believe our country is 
so much stronger if we are united and not divided.
  As we prepare to consider a second Supreme Court nominee in the 
coming weeks, I hope President Bush will take that opportunity to do 
the same.
  I yield the floor.
  Mr. GRASSLEY addressed the Chair.
  The PRESIDING OFFICER. I note the time is under Democratic control.
  Mr. GRASSLEY. I was aware of that. I was asking if there are any 
Democrats who would object to my starting my comments at this point.
  The PRESIDING OFFICER. Without objection, the Senator from Iowa is 
  Mr. GRASSLEY. Mr. President, before the Senator from Arkansas goes, I 
do not have prepared remarks, but to try to put her a little bit at 
ease about these decisions that we have to make on the Supreme Court 
because they are very important decisions, I would reflect on some 
  For instance, I probably had the same concerns about President 
Clinton and Justice Breyer and Justice Ginsburg when I voted for them. 
Regarding the political positions that Justice Ginsburg stood for in 
her life before coming to be a judge, I wouldn't agree with many of 
them. But she was totally qualified to be on the Supreme Court, and I 
voted for her based upon the proposition that Alexander Hamilton said 
that the purpose of our activities here of confirming people for the 
courts is basically two. Maybe there is some historian around who will 
say Grassley has it all wrong, but I think it was, No. 1, to make sure 
that people who were not qualified did not get on the courts. In other 
words, only qualified people get appointed to the courts and that 
political hacks do not get appointed to the courts.
  That is somebody who was around when the Constitution was written, 
and the Federalist Papers, stating those things about our role. So I 
have a fairly flexible point of view of how I ought to look at people, 
even those with whom I disagree.
  In regard to what the Senator said about hoping what President Bush 
would do, or what he has done in the past in regard to these 
appointments, I would want you to look at that as I looked at President 
Clinton being elected in 1992. I don't know whether court appointments 
were an issue in that campaign as they were in 2000 or 2004, but I 
assume that he had a mandate to appoint whom he wanted appointed, as 
long as they were not political hacks and as long as they were 
qualified. So I gave President Clinton that leeway.

  I am hoping that even more so with President Bush, since he made very 
clear to the people of this country that he was going to appoint strict 
constructionists and people who were not going to legislate from the 
bench. You may not like what he is doing, but he

[[Page S10571]]

is doing exactly what he said he was going to do, and I hope that would 
enhance credibility to the American people of at least one more 
politician who keeps his word when he is in office. He appoints whom he 
said he was going to appoint, and that is what he is doing here. It 
should not be any surprise, and I hope he would be respected for doing 
that and have leeway in doing that, as long as they are not political 
hacks but they are qualified.
  The other one is, over a long period of time, to maybe take away some 
worry about whether or not we have to be concerned about this specific 
person doing exactly what he said he was going to do. I would refer to 
Judge Souter. I was thinking Judge Souter was maybe not exactly whom I 
would want on the Court, but he would be pretty close to it. During 
that debate--I think it was in committee and not on the floor--there 
was one of the Senators on your side, who I have named but I will not 
name him this time, who made this point about Justice Souter--that he 
didn't have respect for the right to privacy and then was a threat to 
Roe v. Wade.
  Here is one Republican who thought maybe Souter would work out OK, 
from my point of view. There was a Democrat over there who thought 
Souter would be a threat to Roe V. Wade. We were both wrong.
  So it is difficult to predict what people are going to do down the 
road, so you have to look at are they qualified. I don't have any doubt 
but that Judge Souter is qualified to be on the Court. But I misjudged 
him and this Democratic Senator also misjudged him.
  The other one is, if you worry about Republicans, to look at what 
they might appoint versus what Democrats might appoint, and you end up 
getting something from a Republican you don't like. I assume you are 
more to the liberal end than the conservative, and you have to stop to 
think that a Republican appointed John Paul Stevens and a Republican 
appointed Justice Souter, two of the four most liberal people on the 
Supreme Court.
  To some extent, you get what you want from a Republican President as 
much as you do from a Democratic President because the other two were 
appointed by President Clinton.
  Then, also, from a historical standpoint, time brings a great deal of 
balance to the Court. Justices change their views sometimes over a 
period of 25 or 30 years on the Court. Or Presidents that you might be 
thinking are appointing conservatives end up appointing liberals--they 
end up being liberals on the Supreme Court.
  History is going to bring balance to the Court. Right now, if Justice 
Roberts is appointed, we will have four liberals. I don't need to name 
them. Everyone understands who they are. You are going to have three 
conservatives: Roberts, Scalia and Thomas. And then you are going to 
have two moderates, Kennedy and O'Connor--O'Connor for a little while 
now. So you have some balance, but it is tilted a little bit more 
toward the liberal side than it is to the conservative side.
  Maybe, when President Bush gets done with this next nominee, there 
will be even more balance, four conservatives and four liberals and one 
moderate, Justice Kennedy left as a moderate.
  Then I keep thinking about what we ought to do if we want to bring 
balance to the Court, and I hear more about that on your side than I do 
on this side: Let's just say that Justice Ginsburg, obviously a woman, 
and Justice O'Connor is obviously a woman; we have two women, so maybe 
we ought to have a woman appointed to the Supreme Court.
  The liberal women of America have Justice Ginsburg as voting the way 
that they think Justices ought to vote. Maybe the conservative women of 
America are entitled to a seat on the Supreme Court. We might be 
fortunate enough to get appointed a very qualified woman who is also a 
strict constructionist. Then we would have one liberal woman and we 
would have one conservative woman on the Supreme Court, and we have 
even more balance brought to the Court.
  So you see history kind of takes care of these things. I hope 25 
years from now--and you are a lot younger than I am and you will be 
around here 25 years from now--that you are satisfied that history will 
take care of all these problems that are brought up about what the 
Supreme Court might do 10 or 15 years from now.
  Mrs. LINCOLN. If the Senator will yield, I want to say how grateful I 
am to my chairman because he always does provide hopefulness, without a 
doubt, as well as a bipartisan attitude, in trying to get things done.
  I guess you are exactly right. Some of my fear comes from the role 
that I have in helping to create history and the thoughtfulness that I 
need to put into it.
  Some of it also certainly comes from recognizing that there is a 
right way and a wrong way to do everything. My hope is, as we go 
through these processes, that we become a more united body, looking at 
the right way to go about things and a more unified way.
  I am grateful to the chairman. He is always a wonderful Member of 
this body to work with and he always brings balance and hopefulness and 
I am glad he is my chairman.
  Mr. GRASSLEY. She said she is glad I am her chairman. She means she 
and I serve on the Finance Committee together. I don't want to mislead 
the audience, I am not chairman of the Judiciary Committee.
  Mr. President, I will proceed, then, with the remarks I wanted to 
make in regard to my support for Judge John Roberts to be the next 
Chief Justice of the United States. I do support that nomination. Judge 
Roberts has earned our vote. He understands the proper role of a judge 
in our constitutional democracy. He understands the courts are not 
  He understands that I am elected to be a legislator, to make law. If 
people do not like the law I make, they can vote me out of office. But 
if Judge Roberts makes law, with a lifetime appointment to the Court, 
he can never be voted out of office unless he is impeached. He 
understands that the courts are not responsible for addressing every 
social ill or injustice that, in fact, ought to be settled through law 
and public policy. He understands that courts do not create new rights. 
Rather, courts protect those liberties and rights guaranteed by our 
Constitution and the laws appropriately enacted by Congress and State 
  He also understands that there are a great deal--infinitesimal--
number of unenumerated rights out there for you and me that are 
reserved under our Constitution to the States and to the people 
  Judge Roberts said this to the committee:

       Judges and Justices are servants of the law, not the other 
     way around. Judges are like umpires. Umpires don't make 
     rules, they apply them.

  Judge Roberts underscores that ``judges and Justices'' make sure 
everybody plays by the rules. But these rules limiting the power of 
Government over the people apply to the courts as well. He made it very 
clear to us. In Judge Roberts' view, ``Not everybody went to a ball 
game to see the umpire.''
  That is the right approach to the job of a Supreme Court Justice.
  Judge Roberts has demonstrated, particularly to the committee, that 
he understands the limited nature of judges, and especially the 
humility and the modesty necessary to be the kind of judge we need on 
our highest Court. Judge Roberts believes that courts may act only to 
decide cases and controversies. That is exactly what it says in article 
III of the Constitution. So judges cannot address every unaddressed and 
unremedied social problem.
  Judge Roberts said:

       Judges have to decide hard questions when they come up in 
     the context of a particular case. That is their obligation. 
     But they have to decide those questions according to the rule 
     of law, not their own social preferences, not their policy 
     views, not their personal preferences but according to the 
     rule of law.

  That is what he told us in committee.
  Judge Roberts also said:

       We don't turn a matter over to a judge because we want his 
     view about what the best idea is, what the best solution is. 
     It is because we want him or her to apply the law. Let me say 
     parenthetically, as I would interpret that, not to make law, 
     but to apply the law.

  He went on to say:


  Meaning judges--

     are constrained when they do that. They are constrained by 
     the words that I choose to

[[Page S10572]]

     enact into law in interpreting that law. They are constrained 
     by the words of the Constitution. They are constrained by the 
     precedents of the other judges that became part of the rule 
     of law that they must apply.

  This answer he gave to the committee demonstrates that Judge Roberts 
believes in and will exercise judicial restraint on the bench. This 
principle of judicial restraint is a cornerstone of our constitutional 
system, best defined by the tenth amendment--that that power is not 
specifically given to the Federal Government or reserved to the States 
and the people thereof. This is the defining characteristic of the 
judiciary in our Government of divided powers.
  In particular, I was pleased when Judge Roberts told the committee 
that he has no agenda to bring to the bench. I want to remind you what 
Judge Roberts said in a very short opening statement. To quote a little 
bit of it:

       I come before the committee with no agenda. I have no 
     platform. Judges are not politicians who can promise to do 
     certain things in exchange for votes. I have no agenda but I 
     do have a commitment. If I am confirmed, I will confront 
     every case with an open mind. 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 the balls and 
     strikes and not to pitch or bat.

  I was also pleased when Judge Roberts told the committee that:

       I had someone ask me in this process: Are you going to be 
     on the side of the little guy? And you obviously want to give 
     an immediate answer. But as you reflect on it, if the 
     Constitution says that the little guy should win, the little 
     guy is going to win in court before me. But if the 
     Constitution says that the big guy should win, well, then the 
     big guy is going to win because my obligation is to the 
     Constitution. That's my oath.

  So, obviously, Judge Roberts will strive to uphold the Constitution 
and the laws of the United States, regardless of his personal beliefs.
  I want to take a little time to commend Chairman Specter for 
conducting a fair and respectful hearing. I am pleased we are looking 
at a timely up-or-down vote on this nominee. Obviously, so many people 
for so long were inclined to filibuster judges, and to have this 
important person--this ``well-qualified'' person--go through in the 
tradition of the Senate doing what the Constitution says to do, give 
its advice and consent with a 51-vote margin, is something that 
surprises me to some extent after the last 2 years. But to have it 
happen gives me a very warm feeling toward all my colleagues for having 
that up-or-down vote.

  Article II of the Constitution puts the appointment power in the 
executive, and says the President gets to nominate the person of his 
choice to the Supreme Court. And President Bush in an unprecedented 
manner consulted with more than 70 Senators on both sides of the aisle 
before sending up Judge Roberts' nomination. President Bush didn't have 
to do that under the Constitution. But it was wise for him to so do.
  Even though I have been a member of the Judiciary Committee for my 
25th year, I don't remember a President who has talked to me about who 
I think ought to be appointed. I wouldn't want to say over 25 years 
that I couldn't have forgotten some Republican or Democrat talking to 
me about it, but I don't remember. I was consulted by this President on 
the type of person I thought should be nominated. I was even offered to 
give names, if I wanted to. And I took advantage of giving my advice to 
  At the hearing which Senator Specter conducted, Senators were able to 
ask numerous questions of the nominee over a period of 3 days. The 
Judiciary Committee also reviewed thousands of documents, opinions, and 
other information produced by the White House.
  Throughout the process, Judge Roberts was patient; he was candid and 
forthcoming in his responses.
  Judge Roberts clearly has been the most scrutinized judicial nominee 
to come before the Senate in my years on the committee. No nominee in 
these years before the committee has testified as thoroughly and 
comprehensively on his judicial philosophy as Judge Roberts. I have 
gone through 10 Supreme Court hearings. Judge Roberts' command of the 
law and the facts of cases was without precedent.
  Still, some of my colleagues objected to Judge Roberts' refusal to 
review the results of cases. But his refusal was absolutely the right 
thing to do. Judge Roberts wisely resisted the bait to confuse results 
and reasoning when it comes to the judicial function. No doubt this 
greatly frustrated some of my colleagues, particularly on the other 
side of the aisle, who wanted to impose litmus tests on all judicial 
nominees, who want to extract commitments from nominees to rule in a 
predetermined way, their political way, regardless of the facts of the 
  If they can't get that, if they can't get allegiance to their 
personal political predilection, and work with their far-left activist 
groups, well, then it seems as though that nominee isn't worthy of 
their vote.
  It stymies me why it would be wrong for the President of the United 
States to ask a nominee if they support Roe v. Wade or not--and Judge 
Roberts under oath answered the question of whether the President 
discussed it with him, and the President didn't discuss it with him--
but a lot of Senators were saying, or at least implying, that it would 
be wrong for the President to get that sort of litmus test type of 
commitment from a nominee, but some of those very same Senators found 
it not in the least bothering their conscience to ask him exactly that 
same question and expect an answer from him.
  Frankly, I have no way of knowing how Judge Roberts will rule on the 
hot-button issues in the next 25 years. I acknowledge that he might 
rule in ways that will disappoint me in some of the same ways that I 
was disappointed by Justice O'Connor, Justice Kennedy, and Justice 
Souter in the years since they have been on the Court. These were all 
nominees I supported through the Supreme Court confirmation process, 
but no Senator has a right to impose his or her particular litmus test 
on an otherwise qualified nominee.
  I voted, as I said earlier to the Senator from Arkansas, for Ruth 
Bader Ginsburg, as did almost all of my Republican colleagues, because 
we acknowledge the President's--that was President Clinton--primacy in 
the appointments to the Supreme Court, even where we knew this Justice 
Ginsburg had a different philosophy. I knew then that I shared very 
little in terms of political, social, or philosophical views of Ruth 
Bader Ginsburg. As everyone knows now, Judge Ginsburg was then 
affiliated very closely with extremely liberal views--views a majority 
of the American public would deem way out of the mainstream. But the 
Judiciary Committee evaluated her as a fully competent person to serve 
on the Supreme Court. And then because of that, because we were doing 
what we should constitutionally be doing, we voted her in 96 to 3.
  As I said in committee, it seems there is a whole new ball game out 
here when we have an individual with the competence, intelligence, and 
brilliance of Judge Roberts who nonetheless is going to get a lot of 
Democrats voting against him. This says far more about the Democrats 
today than it does about the nominee John Roberts.
  The truth is that at another time Judge Roberts would have been 
confirmed 100 to 0, and properly so, as Justice Scalia 20 years ago was 
approved almost unanimously. Today's Democrats have made the needle's 
eye for approving so small, so impossibly tiny, even the Supreme Court 
giants of the past could never pass through it.

  The reality is that today's Democrat Party seems to be beholden to 
far left pressure groups who know their radical agenda for America can 
only be implemented by judicial fiat. I am sad to say that the other 
party has expressed an unquestionable loyalty to what is probably their 
base but a base out of touch with the vast majority of Americans.
  When we finally cast our vote on the nomination of Judge Roberts, 
most Senate Democrats will show they will be voting in lockstep with 
the demands of their leftwing interest groups regardless of how 
qualified, brilliant, or worthy the nominee is.
  On the other hand, I have to admit since I prepared these remarks, I 
have heard speeches by two Members of that party within the last hour 
who I did not think would come to the conclusion of voting for him, who 
have said within the last hour they were going to vote for Judge 
Roberts. I am pleased with that.

[[Page S10573]]

  But we still have a situation that has been demonstrated over the 
last 3 years, up until May of this year when some judges finally got 
through for the circuits, that judges were being held up for very 
partisan reasons. The other party and their outside groups have their 
own agenda. They want the Supreme Court or courts, generally, to 
implement it, particularly things they might not be able to get through 
the Congress of the United States.
  My colleagues like to say they voted for more judges appointed by 
Republican Presidents than judges appointed by Democrat Presidents. But 
my friends on the other side of the aisle who say this, are not telling 
the whole picture. Sure, they voted for a lot of Republican nominees 
during my time in the Senate. More Republican nominees have been sent 
up for consideration than Democrat nominees. The point is, the 
Democrats have stuck like glue to their outside interest groups through 
thick and thin and voted in lockstep against more Republican-appointed 
judges than Republicans have voted against Democrat-appointed judges. 
That has been by a landslide margin.
  The fact is, a majority of the Democrats voted in lockstep against 
Judge Bork and Justice Thomas. A majority of Democrats voted in 
lockstep against Justice Rehnquist when he was elevated to Chief 
  On the other hand, Republicans voted overwhelmingly for President 
Clinton's two liberal nominees, Justices Ginsburg and Breyer. So I 
think my party has shown it is not wedded to the single-issue interest 
  My friends on the other side of the aisle are weaving revisionist 
history saying the more conservative Justices of the Court, such as 
Scalia and Thomas, are the ones who are really the judicial activists 
on the bench. But we all know this is just not true.
  The American people know what is really going on. The liberal 
leftwing interest groups and Senate enablers, as my friend, Senator 
Hatch, has sometimes called them, want to win in the courtroom what 
they cannot win in the ballot box. The Democrats have taken this to a 
new level. They are already talking about filibustering the next 
nominee, and we do not even know who that is yet. They are really the 
ones who are judicial activists.
  We should take care because the independence of the Federal judiciary 
is at stake. Our entire framework of government as we know it and was 
intended by the Framers is at stake.
  We are told the Democrats are laying the groundwork for the next 
Supreme Court nominee by sending a message, I presume, to the President 
and those of this party. These messages are an argument that Justice 
O'Connor must be replaced by a liberal or moderate, and that individual 
should be a woman or another minority, claiming the balance of the 
Court must be maintained at all costs.
  I hope I made this clear in my comments that Senator Lincoln listened 
to so closely, and that was that history takes care of a lot of this. 
Of the four liberals on the Supreme Court today, two were appointed by 
Republicans, President Ford and President Bush 1. The moderates, 
O'Connor and Kennedy, were appointed by a Republican President. So we 
do not know what we get. I wish we did. I wish we could predict 25 
years from now, but we can't.
  The Democrats did not expect President Clinton to appoint a moderate 
judge to replace Justice Byron White. I remind my colleagues that 
Justice White was one of the two Justices who dissented in Roe v. Wade. 
We Republicans did not say: Well, Justice White is retiring so we need 
to make sure we appoint another person like Justice White to the 
Supreme Court. President Clinton wasn't elected to appoint people the 
Republicans wanted.
  The PRESIDING OFFICER. Under the previous order, the time from 6:20 
to 7:20 is under the control of the Democrat side, if the Senator would 
like to ask unanimous consent to finish his remarks.
  Mr. GRASSLEY. I ask unanimous consent for 3 or 4 more minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRASSLEY. So we get appointments such as Ruth Bader Ginsburg, 
totally qualified to be on the Court. I voted for her; Justice Breyer, 
totally qualified to be on the Court, I voted for him. We did not try 
to second-guess President Clinton.
  Clearly, Justice Ginsburg does not share Justice White's philosophy. 
Yet Senate Republicans overwhelmingly confirmed her, with only three 
``nay'' votes. The fact is, the President picked people they thought 
would be good Justices.
  The bottom line is we should not be thinking of liberal, 
conservative, or moderate judges--men or women for that matter. We 
ought to think of who is qualified. If you are qualified for the job, 
you ought to get the vote of the Senate. Someone who has the right 
temperament and integrity on the job is also a requirement. But these 
liberals I voted for have had that as well.
  Judge Roberts recognized this problem, politicizing the Federal 
bench, and in particular the Supreme Court, when some of my colleagues 
on the other side of the aisle attempted to pin him down on certain 
litmus test questions at his nomination hearings. Judge Roberts said:

       [I]t is a very serious threat to the independence and 
     integrity of the court to politicize them. I think that is 
     not a good development to regard the courts as simply an 
     extension of the political process. That's not what they are.

  Judge Roberts went on to say:

       Judges go on the bench and they apply and decide cases 
     according to judicial process, not on the basis of promises 
     made earlier to get elected and promises made earlier to get 
     confirmed. That's inconsistent with the independence and 
     integrity of the Supreme Court.

  I am in total agreement with that statement. So when Judge Roberts 
testifies his oath is to uphold the Constitution and the laws of the 
United States and that he won't impose a political or social agenda in 
his decisionmaking, that is what we need to hear. That is because the 
bottom line is, irrespective of Judge Roberts' impressive resume, 
brilliant intellect, and personal integrity, he would not be qualified 
to be a Supreme Court Justice unless he was truly willing and able to 
subject himself to that judicial restraint.
  Judge Roberts says his obligation is to the Constitution and that is 
his oath. He says he will not impose his personal views on the people 
but will make decisions in an impartial manner in accordance with the 
Constitution, the laws enacted by Congress. He says he will be modest 
in his judging and exercise judicial restraint. He says he will respect 
the limited role of a judge in society. That is the kind of Justice we 
need to see on the Supreme Court. That is the kind of Justice the 
Senate should support.
  I yield the floor.
  Mr. JEFFORDS. Mr. President, generally when we vote, the decisions we 
make can be revisited within a few months or years. This year's 
appropriations policy can be replaced by a new one next year. 
Unintended consequences can be rectified, legislation fine tuned.
  But the consequences of confirming a Supreme Court Justice last well 
beyond a Senator's term and maybe even his or her life. Given Judge 
John Roberts' age, he may be making critical decisions on 
constitutional rights when my newborn grandson is welcoming children of 
his own into this world.
  Not surprisingly then, I consider voting on the confirmation of a 
Supreme Court Justice, and especially the Chief Justice, one of the 
most important responsibilities of a Senator.
  While I have considered and voted on four Supreme Court nominees 
during my tenure in the Senate, the nomination of Judge Roberts to be 
the 17th Chief Justice of the U.S. Supreme Court is my first chance to 
consider the nomination of an individual to be the Chief Justice.
  I have spent a great deal of time the last few weeks considering this 
nomination. I looked at Judge Roberts' decisions during his tenure on 
the D.C. Circuit Court of Appeals, reviewed the memorandums he wrote 
while working in the Reagan administration, watched the nomination 
hearing, and listened to what my Senate colleagues have said on this 
nomination. After considering all of this, I have decided to support 
Judge Roberts' nomination to be Chief Justice of the U.S. Supreme 
  My decision to support Judge Roberts did not come easily. As my 
father, who served as the Chief Justice of the Vermont Supreme Court, 
first taught me, the law trumps any personal beliefs when a judge is 
working to reach

[[Page S10574]]

a decision on a case. A fair, equal application of the law is what Olin 
Jeffords was known for, which is a reflection of Vermont's view of the 
  As the former attorney general in Vermont, and as a lawyer, I have 
always been deeply devoted to the Framers' concept of an independent 
judiciary filled with intelligent, capable individuals serving the law 
and the public. As a Senator, I have watched in dismay as this 
independence has increasingly been threatened and demeaned by partisan 
  It has been my general policy while in the Senate to support the 
executive branch nominations made by a President, provided the 
individual is appropriately qualified and capable of performing the 
duties required of the position. However, while a position in the 
executive branch lasts only as long as the President remains in office, 
an appointment to the Federal bench is for the life of the nominee.
  I believe it would be illogical to assume that our Founding Fathers 
used the phrase, `` . . . with the Advice and Consent of the Senate . . 
.'' in the Constitution to mean the Senate can only look at the legal 
experience and character of a judicial nominee. So in addition to those 
factors I also look at a nominee's judicial temperament and ideology 
and whether these factors will influence the decisions they make.
  This higher standard is especially appropriate for a nominee to the 
U.S. Supreme Court. This Court is the final authority on the meaning of 
laws and the U.S. Constitution. The Supreme Court gives meaning to what 
is the scope of the right of privacy; whether Vermont's limits on 
campaign contributions and spending are constitutional; what is an 
unreasonable search and seizure; how expansive the power of the 
president can be; or whether Congress exceeded its power in passing a 
law. These are issues that affect everyone, and it is the 
responsibility of the Senate to closely and carefully review every 
nominee to the Supreme Court.
  There are clearly many stances Judge Roberts took as a lawyer in the 
Reagan administration that I do not agree with. Here it is unfortunate 
the Senate has been denied access to the memorandums Judge Roberts 
wrote while part of the Solicitor General's office. These documents 
would have provided a more complete picture.
  From the record we have, nobody has raised a question on whether 
Judge Roberts has the proper legal experience or character to be the 
next Chief Justice of the U.S. Supreme Court. It also appears to me 
from a review of his judicial decisions that Judge Roberts has not 
allowed his judicial temperament or ideology to influence his 
decisionmaking process.
  This belief was reinforced by Judge Roberts himself in sworn 
statements he made to the Senate Judiciary Committee. In his opening 
statement Judge Roberts stated, ``I have no platform.'' He also said, 
that he would ``confront every case with an open mind . . . 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.'' Near the end of 3 
days of testimony Judge Roberts reiterated this view when he said, ``I 
set those personal views aside.''
  With the information and sworn testimony on the record it is clear 
Judge Roberts has the necessary legal experience and character to be 
the Chief Justice of the U.S. Supreme Court. It also appears that Judge 
Roberts will use the law and the Constitution to make his judicial 
decisions, not his ideological or personal beliefs. Judge Roberts gave 
this pledge at the conclusion of his opening remarks, ``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.'' I trust he will stay true to these 
words during his tenure as Chief Justice. History will be the judge.
  Finally, let me acknowledge and thank the Senate Judiciary Committee. 
Senators Specter and Leahy led a dignified, bipartisan and thorough 
hearing on Judge Roberts. For all this hard work they deserve our 
thanks and appreciation.
  Mr. GREGG. Mr. President, I rise today to speak on the nomination of 
Judge John Roberts to become Chief Justice of the United States. If 
confirmed, which is widely expected, Judge Roberts would be the 
seventeenth Chief Justice in Nation's history. As such, this nomination 
is historically significant, both in its relative rarity and its 
potentially lasting impact on our judiciary. The confirmation process 
therefore warrants serious, meaningful, and dignified consideration by 
the Senate. I believe that the Senate has met this responsibility over 
the past weeks, in spite of the efforts by outside groups and the 
urgings of some members to turn the process into something much 
different. After closely following the confirmation hearings and 
careful review of the nominee, I strongly support President Bush's 
nomination of Judge Roberts to be the next Chief Justice.
  Let me first start by saying the obvious, Judge Roberts is an 
incredibly talented and gifted attorney. Armed with a sharp legal mind 
and extensive experience making arguments before the Supreme Court, 
this man is truly one of the best in a very select group of legal 
superstars--namely, the exclusive club of Supreme Court appellate 
specialists. Judge Roberts has therefore rightfully received broad 
praise from coworkers and from all corners of the legal community. He 
also is respected by the very Justices whom he may soon be sitting 
alongside, and he has served our Nation ably on the D.C. Circuit Court 
of Appeals. We are all familiar with these facts, and even my 
colleagues who somehow oppose this nomination have not questioned Judge 
Roberts' intellect or legal skills.
  Judge Roberts has testified, under oath, about his views regarding 
the proper constitutional role of a Supreme Court Justice and the 
judiciary branch overall. Consistently and repeatedly, he has said that 
Justices and judges should approach each case with an open mind and 
decide cases according to the rule of law--and not based on their own 
personal preferences or policy views. Judge Roberts has testified, 
again under oath, that he would fully and fairly analyze the legal 
arguments that come before the Court. He has made it clear that judges 
are not politicians or legislators, and that he is committed to 
upholding the cherished liberties and rights that are enshrined in our 
constitution. Roberts also has stated, under oath, that he is mindful 
of precedent, recognizes constitutional protections for the right to 
privacy, and strongly believes in protecting the judiciary's 
  During 20 hours of oral testimony and after responding to 
approximately 500 questions, Judge Roberts made it clear--consistent 
with past precedent for other nominees--that he is not going to comment 
on unsettled areas of law that may come before the Supreme Court. 
Although some outside groups and some of my colleagues chafe at such 
comments, it is wholly appropriate and, in fact, ethically required to 
protect the Court's integrity. Moreover, many of these same individuals 
seeking a change in precedent did not complain when previous judicial 
nominees invoked this requirement, such as now Justice Ruth Bader 
Ginsburg, whom I supported back in 1993 during her confirmation 
proceedings. But now, sadly, it appears that some of my colleagues want 
judicial nominees, or at least those nominated by President Bush, to 
start issuing opinions on future cases even before the nominees are 
confirmed, before the facts of the cases are ascertained, and before 
both sides present their legal arguments before the Court.
  This focus on litmus tests and political, even religious, ideology 
during the confirmation process not only undermines the Supreme Court's 
role--namely, that of an impartial arbiter of the most important 
cases--but also represents a potentially dangerous evolution in the 
history of the confirmation process. Throughout the history of the 
Senate, Supreme Court nominees have not been expected to swear under 
oath what their opinions will be on unsettled areas of law. I believe 
that this is a good thing. If the confirmation process were to become a 
series of litmus tests and ideological hurdles, the Senate would be 
politicizing the one branch of government that the Founding Fathers 
intended to be above politics. The men and women who serve on the 
Federal bench would no longer be determined on the basis of their legal 
qualifications and dedication to uphold

[[Page S10575]]

the rule of law, but mainly based on who wins at the ballot box and on 
certain hot button issues. Is this what we or the American people want?
  I am hopeful that the Senate will not go down this path and establish 
a precedent that we will someday look back on with regret. Fortunately, 
most of my colleagues, led by the majority leader, share this same hope 
and have done an admirable job throughout the Senate's review of the 
Roberts nomination. They have stayed true to the Senate's proper role 
under the Constitution and to what truly matters when confirming a 
judicial nominee. I would never want to come before a court knowing 
that the judge already has made up his mind based on certain personal 
views and therefore I will never get a fair hearing. Rather, I want 
someone who is bright, considerate of different viewpoints, 
experienced, and dedicated to upholding the rule of law with the 
Constitution as his guide. In his life, career, and under oath, Judge 
Roberts already has shown that he would be precisely this type of Chief 
Justice. In fact, I cannot recall a judicial nominee in recent memory 
that lives up to this ideal as much as Judge Roberts. As a result, I am 
pleased to support this nomination and applaud President Bush for 
making such an outstanding choice.
  Mr. INOUYE. Mr. President, I had the privilege and honor of meeting 
with Judge Roberts. I was impressed by his legal scholarship, but 
expressed a hope that he would be forthright and open with the American 
people as he progressed through the Senate confirmation process. 
Although I must regretfully conclude that there are still questions 
outstanding on Judge Roberts' record, in light of the urgency of 
ensuring that our Nation's Supreme Court has its full complement of 
Justices, I agree with my Democratic and Republican colleagues that his 
nomination should be given an up-or-down vote.
  I have studied the development of the Supreme Court by our Founding 
Fathers, and it is apparent to me that our Nation's leaders did not 
want this group of citizens to be subjected to the political pressures 
of the day, so they provided for lifetime appointments, with no 
termination date. Further, candidates were not required to be lawyers, 
perhaps as a reminder that legal brilliance alone does not qualify a 
man or woman to sit on the bench of our highest court. Integrity, 
compassion, and wisdom are also required in equal--or perhaps greater--
  Reconciling lifetime appointments with the demands of democratic 
elections, created understandable consternation. After much debate, our 
Founding Fathers provided that the executive and legislative branches 
of our Federal Government would employ every means available to them to 
make certain that the selection is a wise one, and one that a nation 
could live with for the lifetime of the judge. Today, we walk again the 
careful path laid out by the Founding Fathers to ensure for the 
American people that Judge Roberts is a man worthy of their trust.
  Fully realizing that Judge Roberts will most certainly receive 
substantial support from the Senate, I will cast my vote against this 
appointment. I do not object to Judge Roberts' politics, nor do I 
object to his personal beliefs. Our democracy guarantees him both the 
freedom to think and speak as he chooses, and the opportunity to ascend 
to any position in our government for which he is qualified.
  My concerns lie instead with the failure of the Department of Justice 
and the White House to honor the request of members of the Senate 
Judiciary Committee to make available certain documents relating to 16 
cases Judge Roberts worked on when he served as Principal Deputy 
Solicitor General. These documents, written during Judge Roberts' 
tenure in his most senior executive branch position, are relevant to 
the Senate's evaluation of his fitness to serve as the Chief Justice of 
the highest court of this land.
  I am not suggesting that these documents might contain dark shadows--
far from it. The refusal of the White House to allow the American 
people to see this corner of Judge Roberts' record, however, deviates 
from the careful road our Founding Fathers paved for us so many years 
ago, and leaves Americans wondering, ``Do those papers hide something I 
should know?''
  Many groups have questioned Judge Roberts' position on civil rights. 
His early writings outline defiance toward review of civil rights 
violations by Federal courts, and many have asked how his views have 
evolved over the years. As one who has spent his life fighting against 
baseless prejudice and discrimination, I share these concerns. Would 
the papers withheld from our sight have answered these questions? We 
will never know.
  Throughout my career I have supported a woman's right to choose. I 
have supported Roe v. Wade. I have also supported stem cell research. 
The responses Judge Roberts provided when questioned about these issues 
did not assure me that these questions would be seriously considered. I 
hope I am wrong. Perhaps the papers hidden from our sight would have 
allayed my fears.
  Similarly, my questions on Judge Roberts' thoughts on the death 
penalty, and habeas corpus review by the Federal courts will never be 
  I am not against the person. As I noted, I am impressed by his legal 
scholarship. Although we seem to differ on the fundamental issues of 
the day, I respect his right to freely form and hold his own opinions. 
I do, however, object to the failure of the White House, the Department 
of Justice, and ultimately Judge Roberts himself, to make available 
documents from his past. The American people deserve a nominee 
unclouded by needless secrecy--and our democratic heritage demands that 
the President and the Congress work together to confirm the worthiness 
of any man or woman to sit as a Supreme Court Justice. To affirm my 
allegiance to these most American of principles, I will vote, ``no.''
  Mr. CHAFEE. Mr. President, after careful consideration, I will 
support the nomination of Judge John Roberts to be Chief Justice of the 
Supreme Court.
  When he was nominated by President Bush in July, it was clear that 
Judge Roberts had the necessary professional qualifications to sit on 
the Supreme Court. He graduated from Harvard College, summa cum laude, 
in 1976, and received his law degree, magna cum laude, in 1979 from the 
Harvard Law School where he was managing editor of the Harvard Law 
  Mr. Roberts clerked for Judge Henry J. Friendly of the U.S. Court of 
Appeals for the Second Circuit and for then-Associate Justice William 
H. Rehnquist.
  John Roberts has served his country twice, working for the President. 
First, he served as Special Assistant to United States Attorney General 
William French Smith. He returned to government service in the first 
Bush administration, serving as Principal Deputy Solicitor General of 
the United States.
  As a lawyer, Roberts has presented 39 oral arguments before the 
Supreme Court covering the full range of the Court's jurisdiction, 
including admiralty, antitrust, arbitration, environmental law, first 
amendment, health care law, Indian law, bankruptcy, tax, regulation of 
financial institutions, administrative law, labor law, federal 
jurisdiction and procedure, interstate commerce, civil rights, and 
criminal law.
  During the hearings before the Senate Judiciary Committee, Senators 
extensively probed the judicial philosophy of Judge Roberts. I think 
our colleagues Senator Specter and Senator Leahy did an excellent job 
and conducted a fair and thorough hearing.
  We do not know how Judge Roberts will rule in many cases. What we do 
know is that he was nominated by a President who, in the glare of the 
lights of a campaign, clearly indicated the type of Supreme Court 
nominee that he would favor. We also know that Judge Roberts is an 
extraordinarily accomplished man with the right temperament.
  I have long noted that I believe we must retain an appropriate 
balance on the Supreme Court. I was pleased that during the hearings, 
Judge Roberts unequivocally acknowledged that the Constitution contains 
a right to privacy. He further testified that the right to privacy is 
not a narrow right. He explained his belief that the right to privacy 
was sufficiently broad to allow the courts to apply it to changing 
circumstances. It was important to hear Judge Roberts state that as a 
Supreme Court justice, he would strive to follow precedent in order to 
ensure stability in the law.

[[Page S10576]]

  I wish Judge Roberts well as he takes his seat as Chief Justice of 
the United States Supreme Court.
  Mr. HAGEL. Mr. President, 25 years from now most of the events and 
personalities of September 2005 will have passed into the pages of 
history. New Orleans will once again stand proudly as one of America's 
most vibrant cities; America will have been forced to address our need 
for energy independence; and the legacies of today's politicians will 
be the work of tomorrow's history professors. However, the confirmation 
of John Roberts as the 17th Chief Justice of the United States Supreme 
Court could well be even more significant in 2030 than it is today. The 
Roberts Court will have a profound and historic impact on the 
preservation of liberty for decades to come.
  I first met John Roberts when we both served in the Reagan 
administration in the early 1980s. He is a person of enormous 
intelligence, character and judgement. His performance in his Senate 
confirmation hearings earlier this month transcended television ads, 
internet blogs, television talking heads, and the million dollar 
industry that reduces the judicial nominations process to caricatures 
and buzz words across the political spectrum. As many of my colleagues 
have noted, the Roberts confirmation hearings forced a serious 
examination of the role of the Supreme Court and the Federal Government 
in our society.
  My beliefs about the role of Government were shaped and molded when I 
served on the staff of Nebraska Congressman John Y. McCollister in the 
1970s. I remember him warning America about the wholesale disregard of 
the 10th Amendment to the Constitution which states:

       The powers not delegated to the United States by the 
     Constitution, nor prohibited to it by the States, are 
     reserved to the States respectively, or to the people.

  In the late 1930s and early 1940s, the Supreme Court used Article I, 
Section 8 of the Constitution which gives the Federal Government the 
power to ``regulate commerce,'' as a crowbar to pry open the lid of 
federalism and more fully insert the Federal Government into the lives 
of the American people. By the 1970s, we saw an expansion of the 
Federal Government's power our Founders could not have imagined.
  At the same time that Congressman McCollister was invoking the 10th 
Amendment in the House of Representatives, Justice William Rehnquist 
was frequently the lone voice on the Supreme Court for the discretion 
of States and the integrity of the 10th Amendment. Much has been said 
about William Rehnquist in the last month. He was a giant of our time. 
As history considers his legacy, I believe his ability to move the 
Court back to a responsible position concerning federalism will be his 
greatest accomplishment. In this, he had a strong ally in Justice 
Sandra Day O'Connor.
  The Founders did not arrive at the 10th Amendment by accident. It was 
a necessary compromise in order to get the Constitution ratified. The 
Founders believed that the Constitution must protect the citizens of 
the United States from the consolidation of the Federal Government's 
power. History has proven them wise. Well meaning politicians never 
have enough power to do all the good things they believe are essential 
to the Nation's well-being. History shows that the growth of central 
governments is no substitute for the ingenuity and energy of individual 
  It was President Woodrow Wilson who said:

       The history of liberty is a history of the limitation of 
     governmental power, not the increase of it.

  As we work to address 21st century challenges like terrorism, the 
proliferation of weapons of mass destruction and incredible advances in 
technology, we will constantly be confronted with the need to balance 
the expansion of the Federal Government's power with States rights, 
individual liberties and national security. As we act to secure our 
Nation, we must also guard against Federal overreaching. That is why 
measures like the sunset provisions in laws like the Patriot Act are so 
  In years to come, Congress will be under great pressure to reach into 
areas of law historically reserved for State and local governments, 
including land use, education, economic development, law enforcement 
and contract law, including marriage. A wise and judicious Supreme 
Court will be as critical as it has ever been to see America through 
this volatile time.
  Decades from now, if John Roberts can look back upon a legacy of 
having protected the rights of States and individuals while helping 
strengthen America from within, and constraining the power of the 
Federal Government, then it will be a legacy worthy of succeeding 
William Rehnquist.
  Mr. VOINOVICH. Mr. President, I rise today to urge my colleagues to 
vote to confirm Judge John G. Roberts as the next Chief Justice of the 
United States Supreme Court.
  Before I discuss my reasons for supporting Judge Roberts, however, I 
would like to make a few remarks about the judicial confirmation 
process. Judge Roberts is the first nominee to the Supreme Court since 
I have been a Senator. I have been very pleased with how his nomination 
has been handled by both the White House and the Judiciary Committee 
and hope that this confirmation process will be a model for future 
  I want to compliment the President, and in particular the President's 
Counsel Harriet Miers, for doing an excellent job in reaching out to 
Senators prior to Judge Roberts' nomination. Ms. Miers called me prior 
to Judge Roberts' nomination and asked me what qualities I thought the 
President's nominee should possess. Our conversation gave me confidence 
that the President wanted to work with Senators to make sure that he 
nominated an excellent candidate--which I believe he succeeded in 
doing. I hope the White House undertakes the same outreach to the 
Senate prior to the President's nomination of the next nominee to the 
Supreme Court.
  I also want to compliment Senator Specter and Senator Leahy for the 
superb job they have done in handling the confirmation hearings for 
Judge Roberts. The hearings were fair and orderly and did not 
significantly interfere with the Senate's other business. I was very 
pleased that the questioning and debate on Judge Roberts was largely 
devoid of personal attacks. Indeed, I think the hearings gave the 
country an opportunity to see what type of judge and person Judge 
Roberts is. They also gave the country a wonderful lesson in 
constitutional law. I hope that Judge Roberts' confirmation hearing 
will serve as a model for future confirmation hearings for nominees to 
the Supreme Court.
  Turning now to Judge Roberts' nomination, I believe that Judge 
Roberts is among the finest candidates to the Supreme Court in our 
Nation's history. I believe history will look back on the nomination of 
Judge Roberts as one of the most important legacies of the Bush 
  When I spoke with White House Counsel Harriet Miers on the qualities 
I looked for in a Supreme Court nominee, I told her there were two 
qualities I valued most. First, a nominee must have outstanding 
professional credentials. Second, a nominee must be committed to the 
rule of law. I am very pleased to say that Judge Roberts is 
extraordinarily qualified on both of these counts.
  It is difficult to see how Judge Roberts could have more impressive 
professional credentials. From his academic record to his Government 
service to his law practice, Judge Roberts has accumulated a remarkable 
record of achievement.
  As my colleagues have previously noted, he graduated from Harvard 
College summa cum laude in 3 years, and graduated from Harvard Law 
School magna cum laude, where he served as the managing editor of the 
Harvard Law Review. During his time at Harvard, he was awarded numerous 
academic accolades, including being inducted into Phi Beta Kappa.
  He has excellent Government experience, having served as a law clerk 
to then Justice William Rehnquist and in several top positions in the 
Reagan and Bush administrations, including as Associate Counsel to 
President Reagan and as Principal Deputy Solicitor General for the 
first President Bush.
  Prior to his unanimous confirmation to the U.S. Court of Appeals for 
the D.C. Circuit, Judge Roberts was widely regarded as the best Supreme 
Court litigator in the Nation. Throughout his distinguished career, he 
argued an impressive 39 cases before the Supreme Court.

[[Page S10577]]

  He has now served for 3 years as a judge on the D.C. Circuit, which 
is regarded as among the most important appellate courts in the Nation. 
As a judge, he has developed a reputation for fairness and producing 
well-written and well-reasoned opinions.
  This impressive background has made Judge Roberts well prepared to be 
Chief Justice of the Supreme Court. As he displayed during his 
confirmation hearings, he has an encyclopedic knowledge of the Supreme 
Court and of constitutional law. Yet, he also has real world experience 
in Government and in how law interacts with the actual day-to-day 
operation of Government. Judge Roberts has the perfect balance of 
academic and practical experience.
  Judge Roberts also has an impeccable ethical record. No question has 
been raised regarding his integrity or professionalism. On the 
contrary, the record is full of testimony praising his honesty and 
propriety from friends and former colleagues. Moreover, during his 
confirmation hearings he properly resisted the temptation to discuss 
cases and legal disputes that could come before him as Chief Justice so 
he would not bias his consideration of those cases and debates. While 
some would like to hear how Judge Roberts would decide future cases, it 
is clear that legal ethics prevent him from doing so. Furthermore, 
knowing how a nominee is going to decide future cases is not necessary 
to select good judges. When I was Governor, I appointed scores of 
judges and never--not once--did I ask how they would decide a case. 
Instead, I examined their credentials, reviewed their writings and past 
decisions and, on several occasions, personally interviewed them.
  Given his professional achievements and ethical record, it is not 
surprising that the American Bar Association has given him a unanimous 
well-qualified rating, its highest rating.
  I also believe that Judge Roberts has shown a commitment to the rule 
of law. Now, no two people will agree on how to interpret every 
provision of the Constitution or every statute. I may not agree with 
all of Judge Roberts' future decisions. However, I think that it is 
essential that any nominee displays a conscious commitment to deciding 
cases based on the law rather than on his or her own personal views.
  During Judge Roberts' confirmation hearings, I was struck by how 
dedicated he is to the law and to correctly applying the law as a 
judge. As he stated during his testimony, ``Judges and Justices are 
servants of the law, not the other way around.'' He also revealed his 
dedication to the law by recognizing that the judiciary has a limited 
role in our government. This means that judges are, to use Judge 
Roberts' words, ``constrained by the words of the Constitution'' and 
``by the precedents of other judges.'' Judges must interpret the law 
based on the text of the Constitution or statute, as the case may be, 
and based on precedent, rather than on their own personal beliefs about 
how the case should be resolved. It is the role of Congress to pass 
legislation and the role of the courts to apply that legislation to 
particular cases. I believe Judge Roberts not only understands this 
distinction, but also will prove to be both a skilled practitioner and 
an eloquent advocate of judicial restraint.
  Accordingly, I have every confidence that parties who appear before 
Judge Roberts will see a fair and brilliant judge who will decide their 
case according to the dictates of the law, not his own personal 
  When I initially spoke to Ms. Miers about the qualities I was looking 
for in a nominee, we were discussing a replacement for Justice 
O'Connor. Now that Judge Roberts has been re-nominated to be Chief 
Justice, I believe that Judge Roberts' management skills are an 
important aspect to consider. The Chief Justice is the top 
administrator of the Federal Courts, so any nominee to Chief Justice 
must possess management skills. Former Chief Justice Rehnquist was an 
excellent administrator, so Judge Roberts has some shoes to fill.
  I had an opportunity to sit down with Judge Roberts, and I asked him 
about his management experience. We discussed his management 
responsibilities while he was at his law firm where he helped manage 
the firm's litigation group. While Judge Roberts has never managed 
anything as large as the Federal court system, our conversation 
convinced me that he has the management skills necessary to be Chief 
Justice. He clearly has already thought about how he will undertake his 
management responsibilities and what he needs to do in order to 
effectively carry out those responsibilities.
  Finally, I want to offer some personal observations about Judge 
Roberts. Too often we view executive and judicial nominees through 
political or ideological glasses and not as human beings. Nominees 
quickly get labeled as being a ``Republican Nominee'' or a ``Democratic 
Nominee'' or as belonging to a particular ``school of thought'' or as 
being a follower of a particular thinker or politician. This is 
unfortunate, as each nominee's own personality gets overlooked and we 
fail to see the most important aspect of a nominee. It is, however, a 
nominee's character that can have the biggest impact on his or her 
  In Judge Roberts, I believe the Senate has before it not only a 
nominee who has the capability to be a great Chief Justice, but also a 
nominee who is simply a wonderful person. During my meeting with him, I 
was struck by his gracious manner and humble attitude. He is clearly 
very smart and engaging, and it is a pleasure to hear him explain 
Supreme Court cases. But, he is also a very open minded person, who 
listens to others with sincerity and a willingness to hear their views. 
Yet what struck me most about him was his humility. For such a 
brilliant and successful person, I did not detect a hint of arrogance. 
He is a dedicated family man with a good sense of humor whom I believe 
all Americans will be able to respect and admire.
  I have been struck by how my regard for Judge Roberts has been echoed 
by so many others, including many whose politics may differ from his. I 
would like to encourage my colleagues to get a hold of an interview C-
SPAN recently aired of Professor Richard Lazarus and Patricia Brannan, 
two longtime friends of Judge Roberts. Both Professor Lazarus and Ms. 
Brannan are Democrats, but they both expressed the highest respect for 
Judge Roberts and supported his nomination. Now, such testimonials may 
concern some of my Republican friends, but to me they are further signs 
that Judge Roberts has the ability to persuade people across the 
spectrum about the importance of judicial restraint.
  In short, I believe Judge Roberts displays the openmindedness and 
humility that should serve as the paradigm of judicial temperament for 
members of the Federal bench.
  In reviewing Judge Roberts' impeccable academic and professional 
record, his firm commitment to the rule of law, and his strong 
character, I believe that Judge Roberts is a nominee of the highest 
caliber. Indeed, I wonder if a stronger nominee could be found.
  I, therefore, urge my colleagues to support the nomination of Judge 
Roberts to be the next Chief Justice of the Supreme Court.
  Mrs. CLINTON. Mr. President, 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

[[Page S10578]]

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 50 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.
  Mr. McCAIN. Mr. President, this Thursday the Senate will have the 
opportunity to vote on the nomination of Judge John Roberts to be Chief 
Justice of the United States. Few decisions made by this body are as 
consequential as this one. If Judge Roberts is confirmed by the 
Senate--and I believe he will be confirmed--he will be the youngest 
Chief Justice in more than 200 years. With the blessing of a long 
tenure on the Court, his influence as Chief Justice will not just 
affect us and our children but also several generations to come.
  In nominating Judge Roberts, the President clearly was mindful of the 
serious and lasting nature of the vote before us. He respected the 
Senate's advice and consent role and engaged in a thorough, deliberate, 
and fair nomination process. The President and his staff consulted with 
more than 70 Members of the Senate, and the President reviewed the 
credentials of many well-qualified candidates. The President also met 
personally with a number of potential nominees. I believe that this is 
the process envisioned by the so-called Gang of 14, and that it 
resulted in an excellent nominee.
  Judge Roberts has impeccable legal credentials and a strong 
reputation and record as a fair- and sharp-minded lawyer and jurist. 
The American Bar Association and many others of all political stripes 
agree that his distinguished career as a lawyer and a jurist makes him 
very well qualified for the position of Chief Justice. Indeed, some 
observers have pointed out that if one were to imagine the perfect 
training to be a Supreme Court Justice, Judge Roberts's career would be 
the model. I could not agree more.
  As an appellate judge, Judge Roberts has built a record of measure, 
control, and fair-mindedness--all crucial characteristics for a member 
of our Nation's highest court.
  Prior to his tenure as a Federal judge, John Roberts was a widely 
respected appellate lawyer. The Washington Post recently characterized 
him as ``among the country's best-regarded appellate lawyers, both in 
private practice and as deputy solicitor general during the 
administration of George H.W. Bush.''
  The Senate Judiciary Committee has engaged in an extensive review of 
Judge Roberts' record. During his nomination hearings, the judge 
acquitted himself with dignity and honesty, answering directly 
questions that he believed he could address without hindering his 
ability to carry out his functions on the Supreme Court or in his 
current position on the DC Court of Appeals. The editorial board of the 
San Francisco Chronicle wrote some days ago that Judge Roberts ``passed 
the key tests before the Senate Judiciary Committee. His command of the 
law is impressive. He carries no trace of ethical taint. His ability to 
stay calm and on point in the face of exhaustive questioning from a 
panel of highly inquisitive--and occasionally posturing--U.S. senators 
was indicative of judicial temperament.''
  The committee has voted to recommend that the full Senate confirm 
Judge Roberts as the Chief Justice of the United States. Several 
Democratic members of the committee joined in that recommendation, and 
rightly so--this nominee's exceptional credentials and temperament 
should place him well above the fray of partisanship.
  I agree wholeheartedly with the nomination of the President and the 
recommendation of the Judiciary Committee. I will vote for John 
Roberts, a man who has proven to be an extraordinarily talented lawyer 
and judge who approaches the law with modesty and a deep respect for 
the Constitution and our Nation's laws.