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September 13, 2005

John Roberts Confirmation Hearing, Transcript Pt. IV

Schumer (continued): You should be prepared to explain your views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers' rights, women's rights and a host of other issues relevant to the most powerful lifetime post in the nation.

Now, having established that ideology and judicial philosophy are important, what's the best way to go about questioning on these subjects?

The best way I believe is through understanding your views about particular past cases, not future cases that haven't been decided, but past, already-decided cases. It's not the only way, but it's the best and most straightforward way.

Some have argued that questioning a nominee about his or her personal views of the Constitution or about decided cases indicates prejudgment about a future case.

It does nothing of the sort.

Most nominees who have come before us, including Justice Ginsburg, whose precedents you often cite, have answered such questions.

Contrary to popular mythology, when she was a nominee, Justice Ginsburg gave lengthy answers to scores of questions about constitutional law and decided cases, including individual autonomy, the First Amendment, criminal law, choice, discrimination and gender equality.

Although there were places she said she did not want to answer, she spoke about dozens of Supreme Court cases and often gave her unvarnished impressions, suggesting that some were problematic in their reasoning while others were eloquent in their vindication of important constitutional principles. And nominee after nominee, from Powell to Thomas to Breyer, answered numerous questions about decided cases, and no one every questioned their fitness to hear cases on issues raised during confirmation hearings.

So I hope you'll decide to answer questions about decided cases, which so many other nominees have done.

If you refuse to talk about already decided cases, the burden, sir, is on you, one of the most preeminent litigators in America, to figure out a way, in plain English, to help us determine whether you'll be a conservative but mainstream conservative chief justice or an ideologue.

Let me be clear: I know you're a conservative. I don't expect your views to mirror mine. After all, President Bush won the election and everyone understands that he will nominate conservatives to the court.

But while we certainly do not expect the court to move to the left under the president, it should not move radically to the right.

You told me when we met that you were not an ideologue and you share my aversion to ideologues. Yet, you've been embraced by some of the most extreme ideologues in America, like the leader of Operation Rescue.

That gives rise to a question many are asking: What do they know that we don't?

Judge Roberts, if you want my vote, you need to meet two criteria.

First, you need to answer questions fully so we can ascertain your judicial philosophy.

And, second, once we have ascertained your philosophy, it must be clear that it is in the broad mainstream.

Judge Roberts, if you answer important questions forthrightly and convince me you're a jurist in the broad mainstream, I'll be able to vote for you. And I would like to be able to vote for you.

But if you do not, I will not be able to vote for you.

Mr. Chairman, I have high hopes for these hearings. I want, and the American people want, a dignified, respectful hearing process, open, fair, thorough, above board; one that not only brings dignity but, even more importantly, information about Judge Roberts' views and ideology to the American people. I, along with all of America, look forward to hearing your testimony.

Specter: Thank you, Senator Schumer.

Senator Cornyn?

Cornyn: Thank you, Mr. Chairman.

Judge Roberts, let me also join in extending a warm welcome to you and your family of these hearings. As the 15th speaker in the order of seniority here, I recall the adage I learned when I first came to Washington that everything's been said, but not everyone has said it yet.

And perhaps by the time this hearing is over this week, you will have a fuller appreciation than you do now for that.

But, of course, you are a known quantity, so to speak, to this committee and to this Senate, having been confirmed by unanimous consent just two short years ago. And I want to extend a compliment to you on your judicial service. You have served with distinction in your current capacity.

While the importance of your nomination as chief justice of the United States cannot be overstated, it seems as it each new nomination to the court brings an element of drama somewhat akin to an election.

Indeed, we've seen special interest groups raising money, running television advertisements and even trying to coerce you into stating your opinion on hot-button issues that are likely to come before you as a judge, as if this were an election.

But, of course, this is not an election. And no reasonable person expects you to make promises to politicians about how you're likely to rule on the issues when they come before the court as a condition of confirmation.

Still, some in our country have lost sight of the proper of an unelected judge where the people are sovereign and where government enjoys no legitimacy except by consent of the governed.

They see unelected judges primarily as policymakers and arbiters of every pressing social issue that might arise, with the authority to dictate to the people what they think is good for us.

Well, this ideal of the Supreme Court as a super-legislature to which we might turn to give us everything that is good and stop everything that is bad is not a view that I share, nor for that matter did those who wrote and ratified the Constitution. The Constitution does not guarantee everything that is good and prohibit everything that is bad or it could have been written in two sentences. Rather, it guarantees some specific things, it prohibits some specific things and leaves the rest to be sorted out through the democratic process.

Alexander Hamilton, as you know, wrote in the Federalist Papers, which argued for ratification of the Constitution, that the judicial branch, he predicted, would be known as the least dangerous branch.

He believed that there is no liberty if the power of judging is not separated from the legislative and executive powers. Its sole purpose was to interpret and apply the laws of the land. It's role would be limited.

Regrettably, justices have not always been faithful to this constitutional design. All we need to do is to look at the Supreme Court's track record to see why abdicating our right of self- government to nine judges isolated behind a monumental marble edifice far removed from the life experiences of the average American is a bad idea.

For example, the Constitution says in part that the federal government shall not prohibit the free exercise of religion or abridge freedom of speech. Many Americans, including me, are concerned that the Supreme Court, by erecting extra-constitutional and contradictory judge-made standards in this area of the law, has effectively banned voluntary religious expression from much of our public life turning what should be official neutrality into a policy of official hostility.

To be sure, the court has been zealous in protecting the rights of those who express themselves or promote their products using violence or sex.

But voluntary expression of one's faith? Never.

Likewise, many Americans including me are baffled that the Supreme Court recently saw fit to strike down the display of the Ten Commandments in Kentucky but upheld the constitutionality of a display in Texas, even while the Ten Commandments itself is prominently displayed in the chambers of the United States Supreme Court on its ceiling. Many Americans, including me, wondered what to read into the court's recent dismissal of a suit seeking to deny schoolchildren the right to recite the Pledge of Allegiance because it contains the words, One nation, under God.

A majority of the court refused to agree that the pledge was constitutional, leaving this time-honored tradition of schoolchildren across our nation in legal limbo.

And recently the court expanded the awesome power of government to condemn private property beyond all previous bounds by reading the public use limitation on eminent domain right out of the Constitution.

Justice O'Connor warned, The specter of condemnation now hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory.

On what legitimate basis can the Supreme Court uphold state laws on the death penalty in 1989, then strike them down in 2005, relying not on the written Constitution -- which, of course, had not changed -- but on foreign laws that no American has voted on, consented to or may even be aware of?

When in 2003 the court decided Lawrence v. Texas, the court overruled a 1986 decision on the constitutionality of state laws based on the collective moral judgment of those states about permissible sexual activity.

What changed in that intervening time? Did the Constitution change? Well, no.

Did the justices change? Yes.

But should that determine a different meaning of the Constitution? Are some judges merely imposing their personal preferences under the guise of constitutional interpretation?

Indeed, this was the same case, as you know, Judge Roberts, that served as the cornerstone of the Massachusetts Supreme Court's decision, holding that state laws limiting marriage to a man and a woman amounted to illegal discrimination.

Let me close on an issue that several senators have already mentioned today, and that is your obligation to answer our questions.

Of course, I share with all of my colleagues a desire -- and a curiosity, really -- to know what you think about all sorts of issues. All of us are curious.

But just because we're curious doesn't mean that our curiosity should be satisfied. You have no obligation to tell us how you will rule on any issue that might come before you if you're confirmed to the Supreme Court.

It boils down to a question of impartiality and fairness. One characteristic of a good judge is that they keep an open mind until they hear the facts and hear the lawyers argue the case before them. If you pledge today to rule a certain way on an issue, how can parties to future cases possibly feel that they would ever have a fair day in court?

Justice Ginsburg, as we've heard already, one of the last Supreme Court justices confirmed by the Senate, noted not too long ago, In accord with long-standing norm, every member of the current Supreme Court declined to furnish such information. The line each justice drew in response to pre-confirmation questioning is crucial to the health of the federal judiciary.

This has come to be known as the Ginsburg standard, although it has been the norm for all nominees who come before the committee and before the Senate for confirmation.

Now, I know some of the members of the committee will ask you questions that you can't answer. They'll try to entice you to abandon the rules of ethics and the long tradition described by Justice Ginsburg.

But that should not concern you, Judge Roberts. Don't take the bait. Do not head down that road, but do exactly what every nominee of every Republican president and every Democrat president has done: Decline to answer any question that you feel would compromise your ability to do your job. The vast majority of the Senate, I am convinced, will not punish you for doing so. Rather, I'm convinced that the vast majority of the Senate will respect you for this decision because it will show you are a person of deep integrity and independence, unwilling to trade your ethics for a confirmation vote.

Again, let me say welcome to you, again, before the committee, and thank you for your continued willingness to serve this great nation.

Specter: Thank you, Senator Cornyn.

Senator Durbin?

Durbin: Thank you, Mr. Chairman.

Judge Roberts, welcome to you, your family. Congratulations on your nomination.

The committee hearing began with the chairman telling us that you had shared the wisdom of 47 individual senators by visiting their office, some of them on several different occasions.

And many people believe that that fact alone should earn you confirmation before the United States Senate.

Twelve years ago, at the nomination hearing of Justice Ruth Bader Ginsburg, my friend Illinois Senator Paul Simon said something worth repeating. He said to the nominee, and I quote, You face a much harsher judge than this committee. That's the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you expand it?

I think Senator Simon put his finger on how the United States Senate should evaluate a nominee for a lifetime appointment to the federal bench.

Judge Roberts, if you're confirmed, you will be the first Supreme Court justice in the 21st century. The basic question is this: Will you restrict the personal freedoms we enjoy as Americans or will you expand them?

When we met in my office many weeks ago, I gave you a biography of a judge I admire greatly. His name was Frank Johnson, a federal district judge from Alabama and a life-long Republican.

Fifty years ago, following the arrest of Rosa Parks, Judge Johnson ruled that African-Americans of Montgomery, Alabama, were acting within their constitutional rights when they organized a boycott of the buses and that Martin Luther King Jr. and others could march from Selma to Montgomery. As a result of those decisions, the Ku Klux Klan branded Johnson the most hated man in America. Wooden crosses were burned on his lawn. He received so many death threats that his family was under constant federal protection from 1961 to 1975.

Judge Frank Johnson was denounced as a judicial activist and threatened with impeachment.

He had the courage to expand freedom in America.

Judge Roberts, I hope that you agree America must never return to those days of discrimination and limitations on our freedom.

Now, some of the memos you wrote that I talked to you about in my office many, many years ago in the Reagan administration have raised some serious concerns about where you stand on civil rights, on women's rights, concerns that have led some of the most respected civil rights groups in America to openly oppose your nomination.

So it's important for you at this hearing to answer the questions and to tell us your views on civil rights and equality and the role of courts in protecting these basic freedoms.

This hearing is your opportunity to clarify the record, to explain your views.

We can't assume that time or maturity has changed your thinking from those Reagan-era memos.

The refusal of the White House to disclose documents on 16 specific cases you wrote as deputy solicitor general denied this committee more contemporary expressions of your values.

Only your testimony before this committee can convince us that John Roberts of 2005 will be a truly impartial and open-minded chief justice.

Concerns have also been raised about some of the things you wrote relative to the right of privacy.

We've gone through Griswold. We know what that Supreme Court decision meant in 1965, 40 years ago, when the court struck down the Connecticut statute which made it a crime for married couples to buy and use birth control. They said there was a fundamental right of privacy in that Constitution, though you can search every word of it, and not find the word privacy. But it's far from settled law in the minds of many. Forty years later, there have been new efforts to restrict the right of privacy, attempts to impose gag rules on doctors when they speak to their patients about family planning.

You saw it in the sad debate over the tragedy of Terri Schiavo, a debate that led some members of Congress to threaten judges who disagree with their point of view with impeachment.

And you can find it in the eagerness to authorize the government to pry into our financial records, medical records and library records.

Whether the court continues to recognize and protect America's right to privacy will have a profound impact on every American from birth to death.

In your early writings that we have to rely on here, you referred to this right of privacy as an abstraction. We need to know if that's what you believe.

We also need to hear your views on another basic issue and that is the view on executive power. They don't teach this subject much in law school. It's not tested on any bar exam. It's not been a major focus in many Supreme Court hearings, yet it is very important today.

Some aspects of your record, your early record, when you were an attorney for a president, suggest you might be overly deferential to the executive branch. We need to know where you stand.

Throughout history, during times of war, presidents have tried to restrict liberty in the name of security. The Supreme Court has always been the guardian of our Constitution. It's usually been up to the task but sometimes it's failed such as in the notorious Korematsu decision.

We're being tested again. Will we stand by our Constitution in this age of terrorism? That challenge will fall especially on our Supreme Court and on you, Judge Roberts, if you're confirmed.

We also need to know what you think about religious liberty. Over the past few decades, the Supreme Court has maintained a delicate yet what I believe proper balance between church and state. Justice Sandra Day O'Connor said it so well in the recent Ten Commandments decision.

And I quote, At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Our regard for constitutional boundaries has protected us from similar travails while allowing private religious exercise to flourish.

Those who would renegotiate the boundaries between church and state must answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly? I asked you a question when you came by to see me, which I'm not sure either one of us could answer at that moment.

I asked you: Who has the burden of proof at this hearing? Do you have the burden to prove that you are a person worthy thing of a lifetime appointment before the Supreme Court or do we have the burden to prove that President Bush was wrong in selecting you?

Your position as Supreme Court justice, chief justice, gives you extraordinary power: to appoint 11 judges on the FISA court, which has the authority to issue warrants for searches and wiretaps of American citizens, all the way to the establishment of rules of criminal and civil procedure.

No one has the right to sit on that court. No one has the right to be chief justice. But they can earn it through a hearing such as the one which we have today.

I'd like to say that I spoke earlier about the courage of Frank Johnson. A few months ago another judge of rare courage testified before this committee. Her name is Joan Lefkow. She's a federal judge in Chicago and I was honored to nominate her.

Last February, her husband and mother were murdered in her home by a deranged man who was angry that she had dismissed his lawsuit.

In her remarks to the committee, Judge Lefkow said that the murders of her family members were, quote, a direct result of a decision made in the course of fulfilling our duty to do justice without fear or favor.

In my view, that is the only proper test for a Supreme Court justice: Will he do justice without fear or favor? Will he expand freedom for all Americans as Judge Frank Johnson, the condemned judicial activist, once did.

I congratulate you, Judge Roberts, on your nomination, your accomplished career, and I look forward to these hearings to give you your chance in the next several days, not to rely on 20-year-old memos or innuendoes and statements by those who are not part of the hearing, but in your own words a chance to tell us and to tell the American people what you truly believe.

If you believe that you have the burden at this hearing to establish why you are worthy of this, the highest ranking position of a judge in America, I hope that you will be forthcoming. If you do not answer the questions, if you hold back, if you believe, as some on the other side have suggested, that you have no responsibility to answer these questions, I'm afraid the results will not be as positive. I certainly hope that they will be positive.

Thank you.

Specter: Thank you, Senator Durbin.

I recognize now Senator Brownback and also recognize today is his birthday.

(APPLAUSE)

Brownback: Thank you very much. And this is certainly a long way to spend it. It's seeming like a long birthday.

Thank you.

Judge Roberts, as one of my colleagues was just saying, I hope we're done before my birthday ends. I welcome you to the court. Delighted to have you here, you and your family. I want to congratulate you on your lifetime of service thus far and looking forward to future service that you'll have for this great land.

I recall the meeting that you and I had in my office, as many of the members have here have as well, and enjoyed them. You said two things in there that I particularly took away and hung on as an indicator of yourself and how you would look at the courts and also what America needed from our courts.

One of the statements was that we need a more modest court. And I looked at that and I thought that's exactly, I think, the way the American people would look at the situation today.

We need a more modest court, a court that's a court but not a super-legislature, as you've heard others refer to, or is in a different role, but is a court.

And that's what it needs to be and that's what we need to have: one that looks at the constitution as it is, not as we wish it might be, but as it is, so that we can be a nation that is a rule-of-law nation.

You had a second point that was very apt, I thought, when you talked about the courts and baseball. You drew the analogy of those two together, which was apt, I thought. And you said it's a bad thing when the umpire is the most watched person on the field.

And I guess that appealed to me as well from the standpoint of where we are today's American governance, where the legislature can pass the bill, the executive can sign it, but everybody waits and holds their breath until how the court is going to look at this and how it's going to interpret it, because it seems as if the court is the real mover of what the actual law is. And that's a bad thing. The umpire should call the ball fair or foul -- it's in or it's out -- but not get actively involved as a player on the field.

And, unfortunately, we've gotten to a point today where in many respects the judiciary is the most active policy player on the field.

I was struck by your nomination and what you said when you were nominated that you, quote, had a profound appreciation for the role of the court in our constitutional democracy.

And that's something I think we all respect and we look for in what we need to do.

Democracy I believe loses its luster when justices on the high court who are unelected and not directly accountable invent constitutional rights and alter the balance of governmental powers in ways that find no support in the text, the structure or the history of the Constitution.

Unfortunately, the court in recent years I believe has gone into that terrain.

In our system of government, the Constitution contemplates that federal courts will exercise limited jurisdiction. They should neither write nor execute the laws, but simply say what the law is, in quoting Marbury v. Madison.

The narrow scope of judicial power was the reason the people accepted the idea that the federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.

The people believe that the courts would maintain their independence and at the same time would recognize their role by deferring to the political branches on policy choices.

Legitimacy based on judicial restraint was a concept perhaps best expressed by Justice Felix Frankfurter, appointed by Franklin Delano Roosevelt. And he said this: Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed and therefore most dependable within narrow limits. Their essential quality is detachment, founded on independence. And history teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primarily responsibility in choosing between competing political, economic and social pressures.

Primary responsibility for adjusting the interests which compete of necessity belongs to the Congress. Yet courts today have strayed far beyond this limited role. Constitutionalists from Hamilton to Frankfurter surely would be shocked at the broad sweep of judicial activity today.

Just listen to some of them.

Federal courts are redefining the meaning of marriage, deciding when a human life is worthy of protection, running prisons and schools by decree, removing expressions of faith in the public square, permitting the government under the takings clause to confiscate property from one person and give it to another in the name of private economic development and then interpreting our American Constitution on the basis of foreign and international law.

Perhaps the Supreme Court's most notorious exercise of raw political power came in Roe v. Wade and Doe v. Bolton, two 1973 cases based on false statements which invented a Constitutional right to abortion. The issue had been handled by the people through their elected representatives prior to that time.

Since that time, nearly 40 million children have been aborted in America, 40 million lives that could be amongst us but are not, beautiful, innocent faces that could bless our existence and our families and our nation, creating and expanding a culture of life.

If you're confirmed, your court will decide if there is a constitutional right to partially deliver a late-term child and then destroy it. Partial-birth abortion is making its way to the Supreme Court. The federal courts have thus far found laws limiting partial-birth abortion unconstitutional.

Now, it should be noted again, if Roe is overturned, it does not ban abortion in America. It merely returns the issue to the states so states like Kansas or California can set the standards they see right and just.

The principle of stare decisis will be involved. The Supreme Court frequently has overruled prior precedents, I would note. A case founded in my state, Brown v. the Board of Education, which overruled Plessy v. Ferguson, fits within a broad pattern -- evidenced since the founding of the Supreme Court, revising previous decisions.

I would note for you that, by some measure, the Supreme Court has overruled itself in 174 cases, with a substantial majority of those cases involving constitutional, not statutory, issues.

One final thought. In a just and healthy society, both righteousness and justice travel together. Righteousness, the knowledge of right and wrong, good and evil, that's something that's that's written within our hearts. Justice is the application of that knowledge.

Everybody in our representative form of government tries to do both of these -- righteousness and justice -- within the boundaries set for each of us. No one branch has unlimited control. The Supreme Court has boundaries, too. There are checks and balances on what it can deal with and what it can do.

For instance, the court cannot appropriate money. That power's specifically left to the Congress in the Constitution, no matter how right or just the court may view the cause.

We all are constitutional officers, sworn to uphold the Constitution. Yet each branch has separate functions which the other branch can check and balance.

The total system functions best when each branch does its job but not the others.

We arrived at an important moment with your nomination to serve as chief justice of the United States. Quite a title.

Will you serve, as Hamilton assured the people, by exercising judgment rather than will?

By review of your many legal writings over the past quarter century, it leads me to believe that this is the case. I hope that this instinct will be proven correct during the days to come; that, you, Judge Roberts, will be confirmed to serve as the first justice among equals; and that the noble legacy of the justice that you once served will be honored. God bless you and your family.

Specter: Thank you, Senator Brownback.

Senator Coburn?

Coburn: Thank you, Senator.

First of all, I'd like to thank you and your staff, as well as all the staff of this committee. While we were traveling in August, they were laboring diligently to help prepare us for these hearings.

I also think everybody should know that Senator Brownback's entering his fifth decade, so he can catch up with the rest of us.

And, finally, I'm somewhat amused at the propensity for us to project your life expectancy. I met with you twice. And as the only physician on this panel, and one of the few nonlawyers on this panel, I find it somewhat amusing that we can predict that without a history of physical exam or a family history. But we'll let that pass.

I am a physician. And up until the end of this month, and hopefully after that, I'll continue to practice. This weekend I had the great fortunate of delivering two little girls.

And I've had the opportunity to talk with people from all walks of life as a physician, those that have nothing and those that have everything. And I believe the people in our country and in my state in particular are interested and concerned with two main issues.

And one is this word of judicial activism that means such a different thing to so many different people. And the second is the polarization that has resulted from it and the division that has occurred in our country that separates us and divides us at a time when we need to be together.

We each have our own definition of judicial activism. Essentially the court will not become an activist court if it adheres to its appropriate role and does not attempt to legislate or create policy.

There always will be and should always be checks on each of the different branches of government. Yet look where we are today. Decades of judicial activism have created these huge rifts in the social fabric of our country.

Whether we're on one side or the other, it's a tension pulling us apart rather than a tension pulling us together.

I believe we've seen federal and state legislators' responsibility usurped by the court, especially to make important decisions. And I think that is what has created a lot of the division within our country.

And I believe it's time that that stopped and a limited role for the Supreme Court -- and I think we're willing to debate as a country what judicial activism is. But we're also wanting someone who will listen to both sides of that and, in a measured and balanced way, knowing what the Constitution says and the restraint that our forefathers have written about, will take that into consideration.

I'm deeply heartened in that I've read many statements that you've made. I believe you indicate a more proper role for that of the judiciary.

And I believe, in our discussions, super-legislation -- a super- legislator body -- is not what the court was intended to be.

When I ponder our country and its greatness, its weaknesses, its potential, my heart aches for less divisiveness, less polarization, less finger-pointing, less bitterness, less mindless partisanship which, at times, sounds almost hateful to the ear of Americans.

The problems before our country are enormous. Our family structures have declined. Our dependency on government has grown. The very heritage of our country, which was borne out of sacrifice by those who preceded us, is at risk.

We are all Americans. We all want the greatest future for the generations to come, protection for the innocent and the frail, support for those less fortunate. But, most of all, we want an America that will live on as a beacon of hope, freedom, kindness and opportunity.

America is an idea; it's not competing ideologies. It's an idea that has proven tremendously successful and, when we reduce it to that of competing ideologies, we make it less than what it is.

I believe the genius of our founders is that they recognized that individual rights were derived from a creator, not a king, not a court, not a legislature or a state.

Our founders were concerned that, if our rights derived from the state or a court, they can be taken away by a state or a court.

Our Constitution enshrines this idea and gives its meaning in the rule of law. That's why it's important for us to respect the words of that Constitution. I would hope as we conduct these hearings over the next few days our tendency as politicians to be insensitive, bitter, discourteous and political will surrender to the higher values that define us as a nation.

We have an opportunity to lead by example, to restore the values and principles that bind us together.

How we conduct ourselves and how we treat you, Judge Roberts, can be a great start toward reconciliation in our country.

I want one America.

An America that continues to be divided is an America that is at risk.

Our country waits for its leaders at all levels to rise to the occasion of rebuilding our future by placing our political fortunes last and constitutional principles first and working diligently to reconcile each and every American to the freedom and responsibility that our republic demands.

May God bless our efforts.

Specter: Thank you very much, Senator Coburn.

We now move to the presenters -- Senator Lugar, Senator Bayh and Senator Warner -- and then the administration of the oath to Judge Roberts, and then Judge Roberts' opening statement.

Welcome, Senator Lugar, as the senior presenter, elected in 1976, Indiana's senior senator.

We have allotted five minutes each to the presenters.

And, Senator Lugar, you are now recognized.

Lugar: Mr. Chairman, let me first ask that a copy of my full statement appear in the committee record.

Specter: Without objection, your full statement will be made a part of the record.

Lugar: Thank you, Mr. Chairman.

It's a genuine privilege and pleasure to appear before you, Senator Leahy and my other distinguished colleagues who serve on this important committee.

I'm pleased to introduce the president's nominee to serve as the 109th justice of the Supreme Court and the 17th chief justice of the United States, John D. Roberts Jr.

Judge Roberts was born in Buffalo, New York, but moved at age 8 to Indiana. The Roberts family settled in Long Beach, a small Hoosier community, on the shores of Lake Michigan.

John attended local schools there in nearby LaPorte and, in 1973, graduated first in his high school class of 22, having also excelled in numerous extracurricular activities, including co-captaining the football team despite his self-described status as a slow-footed halfback. I know committee members will understand my observing that our state takes a certain pride of its own nomination by the president to lead the nation's highest court.

Simply put, John Roberts is a brilliant lawyer, a jurist with an extraordinary record of accomplishments in public service. This exceptional blend of professional and personal qualifications is especially important now, given the further responsibilities Judge Roberts has been called upon to assume on the passing of the chief justice.

I know Judge Roberts is keenly and humbly aware of the large shoes he has now been asked to fill, the more so since the late chief justice was his own initial boss when he arrived in Washington a quarter century ago.

All Americans can be grateful that Judge Roberts not only learned, but has lived, the lessons taught by his mentor and his role model. In my judgment, he is supremely qualified to carry forward the tradition of fair, principled and collegial leadership that so distinguished the man for whom he once worked and has now been nominated to replace.

Under the judicial confirmation standards that prevailed throughout most of our history, my remarks could appropriately end at this point, and the committee and the Senate as a whole should proceed to consider Judge Roberts' nomination in light of his outstanding qualifications.

Indeed, nominees almost never testified in such hearings before 1955, and the last Supreme Court justice from Indiana, Sherman Minton, was confirmed without controversy, despite declining even to appear before the committee following his nomination by President Truman.

I am not troubled by the fact that the committee hearings, including testimony by Supreme Court nominees, now seems firmly established as a part of the confirmation process. These proceedings serve a vital role in our deliberations and are a vivid course in living history for all Americans.

But it's important we write that history well. Today's Supreme Court regularly faces issues of enormous public import and attendant controversy. Many are deeply decisive, with well-funded, well- organized advocacy groups passionately committed to one or the other side and for whom the central, well-nigh exclusive focus is who wins. Media coverage in the Information Age, whether on talk radio or countless cable outlets featuring talking heads for each side, fuels both the controversy and the resultant tendency to see the Supreme Court as a kind of political branch of last resort.

When a court vacancy occurs, the confirmation process takes on the trappings of a political campaign, replete with interest group television ads that often reflect the same oversimplifications and distortions that are disturbing even in campaign for offices that are in fact political.

All of this may be understandable. It remains in my view a fundamental departure from the vision of the courts and their proper role that animated those who crafted our Constitution.

The founders were at pains to emphasize the difference between the political branches, the executive and the legislative, and the judiciary. They were concerned about the potential dangers if passionate interest-driven political divisions, which Madison famously called the mischiefs of faction, influenced their design of our entire governmental structure.

But they were especially concerned that such mischiefs not permeate those who would sit on the bench. Otherwise, they warned, the pestilential breath of faction may poison the fountains of justice and would stifle the voice both of law and of equity.

I believe that each of us in the Senate bears a special responsibility to prevent that from occurring. The primary focus of these hearings and our substantive debate and vote on the floor will be Judge Roberts and his qualifications.

But another focus will be whether the Senate, in discharging the solemn advice-and-consent duty conferred by the Constitution, is faithful to the trust the founders placed in us.

I thank you, Mr. Chairman, and all members of the committee for your courtesy in allowing me to introduce Judge John G. Roberts Jr., a distinguished son of Indiana, whom I believe will prove to be an outstanding chief justice of the United States Supreme Court.

I thank you very much.

Specter: Thank you very much, Senator Lugar.

We now turn to Senator Bayh, elected in 1998, previously governor of Indiana.

Senator Bayh?

Bayh: Thank you very much, Chairman Specter, Senator Leahy, members of the Judiciary Committee.

There isn't nearly enough civility in Washington today. And so when I was asked to uphold long-standing and bipartisan traditions to introduce someone from my state, I did not hesitate to accept.

I am pleased to join with my friends and our colleagues, Dick Lugar and John Warner, to introduce to you John Roberts.

John Roberts grew up in northwest Indiana and still has family living in our state. He is the proud father of two lovely children, Jack and Josie, and the husband of Jane.

At only 50, Judge Roberts has had a distinguished legal career that would make most lawyers envious. He has argued 39 cases before our Supreme Court and won 25 of them. Most lawyers are lucky to argue and win one case before our nation's highest court.

There is no question that Judge Roberts has achieved much through hard work and great ability to reach the pinnacle of the legal profession.

If confirmed as chief justice of the Supreme Court, Judge Roberts could serve for 30 or more years. During that time, the court will likely hear cases that affect every aspect of the law and American life, from civil rights to women's rights, to property rights, to states rights.

I look forward to a full and clarifying discussion of his views on these important topics and others because, for this nominee and for anyone who aspires to our nation's highest court, it is ultimately their beliefs, even more than their biography, which should determine the result of the confirmation process.

As a fellow Hoosier, I'm proud that someone from our state would be so talented and so successful to be considered for a position on the highest court of our land.

Mr. Chairman, Senator Leahy, my colleagues, I am pleased to introduce to you a fellow Hoosier, Judge John Roberts.

Specter: Thank you very much, Senator Bayh.

Senator Warner, welcome back.

When you were here earlier this morning, I said you'd be recognized at about 3:20. I want to apologize for being two minutes off.

Warner: It's all right, Mr. Chairman. I'll take till (inaudible) to finish my statement and you yield back your time to me.

Specter: Your full statement will be made a part of the record, Senator Warner.

Warner: Members of the committee and Judge Roberts and his family, I find this a singular privilege in my now 27 years in this institution.

Speaking of the institution, in 218 years since the Constitution was ratified, we've had 43 presidents, and this is the 17th chief justice.

Seems to me that underscores the importance of this hearing.

Further, the Senate deliberations in this hearing, followed by subsequent floor debate, provide a unique opportunity for generations of Americans, particularly the younger Americans, to acquaint themselves with how our government operates.

And I'm absolutely confident that this distinguished committee, before whom I've appeared many, many times in these years, will comport yourself in a manner in the finest traditions of the Senate and will impart in our audience across America, particularly the younger ones, a respect for and an understanding for the institution of the United States Senate and its responsibilities. The Constitution, together with the Bill of Rights, is an amazing document, for it is the reason that our nation's government stands today as the oldest continuous, democratic republic form of government in the world today.

Indeed, most all of the other bold experiments in government have gone into the dustbin of history. Little wonder that why so many other nations are forming their governments today, patterning their government on ours.

But only if the president and the Senate fairly, objectively and in a timely manner exercise these respective constitutional powers, can the judicial branch have the numbers of qualified judges to properly serve the needs of our citizens.

For this reason, in my view, a senator has no higher duty than his or her responsibilities under Article II, Section 2.

Recently, 14 senators, of which I was one, committed ourselves in writing to support the Senate leadership in facilitating the Senate's responsibility of providing advice and consent.

In our memorandum of understanding, Senator Byrd and I incorporated language that spoke directly to the founding fathers' explicit use of the word advice.

Without question, our framers put the word advice in the Constitution for a reason: to ensure consultation between a president and the Senate prior to the forwarding of a nominee to the Senate for consideration.

I commend President Bush for the exemplary manner in which he conducted the advice-and-consent responsibility.

Now, with the beginning of these hearings, the Senate commences the next phase -- the consent phase of this constitutional process -- after the committee consideration and nomination move to the full Senate for debate, followed by a vote.

Throughout this process, the ultimate question will remain the same: whether the Senate should grant or deny consent.

Now to this distinguished jurist.

I judge his credentials to be chief justice in the same manner as I've applied to all others. Since I've been privileged to serve in this institution, I recounted there are about over 2,000 nominations that have come in this quarter of a century plus.

I can say without equivocation I have never seen the credentials of any nominee with stronger qualifications than Judge Roberts.

Some two years ago, when nominated to serve in the Court of Appeals for the District of Columbia, I was privileged at his request to introduce him. At the time, he was relatively unknown; today, the world knows him.

We were brought together because we were both fortunate to have been partners at different times in our careers at the law firm of Hogan Hartson, a venerable firm known for its integrity and rigid adherence to ethics. Among the firm's many salutary credentials, it has been long known for its pro bono work. In fact, I'll share a personal story.

In 1960, I was an assistant U.S. attorney. Been there about four years. A knock came on my door and in walked a very tall, erect man, introducing himself as having just been appointed to represent an indigent defendant charged with first-degree murder.

We had a brief consultation. The trial followed. Midway in the trial the defendant pleaded guilty to a lesser defense.

That man was Nelson T. Hartson, senior partner and founder of this firm.

I firmly believe that John Roberts shares in the belief that lawyers have an ethical duty to give back to the community by providing free legal services, particularly to those in need. The hundreds and hundreds of hours he spent working on pro bono cases are a testament to that. He didn't have to do any of it, the bar doesn't require it, but he did it out of the graciousness of his heart and an obligation.

Those who know him best can also attest to the kind of person he is. Throughout his legal career, both in public and private practice, his pro bono work, Roberts has worked with and against hundreds of lawyers. Those attorneys who know him well typically speak with one voice when they tell that you that dignity, humility and a sense of fairness are the hallmarks of this nominee.

In conclusion, Mr. Chairman, I take a moment to remind all present and those listening and following that this exact week 218 years ago our founding fathers finished the final draft of the U.S. Constitution, after a long, hot summer of drafting and debating.

And when Ben Franklin ultimately emerged from Independence Hall upon the conclusion of the convention, a reporter asked him, Mr. Franklin, what have you wrought? And he said, A republic, if you can keep it. And that is ultimately what this advice and consent process is all about. But while the Constitution sets the course of our nation, it is without question the chief justice of the Supreme Court who must have his hand firmly on the tiler to keep our great ship of state on a course consistent with the Constitution.

I shall follow carefully the deliberations of this committee. I will participate in the floor debate. I look forward to the privilege of voting for this fine, outstanding public servant.

Judge Roberts, I'm the last. You're on your own.

(LAUGHTER)

Specter: Thank you, Senator Warner.

Thank you, Senator Lugar.

Thank you, Senator Bayh.

Judge Roberts, if you'd now resume your position at center stage.

Judge Roberts, if you would now stand, please. The protocol calls for your swearing in at this point. We have 23 photographers -- well, five more waiting. We may revise our procedures to swear you in at the start of the proceeding, if you should come back.

If you would raise your right hand, and they've asked me to do this slowly, because this is their one photo op.

Do you solemnly swear that the testimony you will give before this Committee on the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God?

Roberts: I do.

Specter: Thank you. And you may be seated.

Now, Judge Roberts, we compliment you on your patience of listening to 21 speeches. And the floor is now yours.

Roberts: Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.

Let me begin by thank Senators Lugar and Warner and Bayh for their warm and generous introductions. And let me reiterate my thanks to the president for nominating me. I'm humbled by his confidence and, if confirmed, I will do everything I can to be worthy of the high trust he has placed in me.

Let me also thank you, Mr. Chairman, and the members of the committee for the many courtesies you've extended to me and my family over the past eight weeks.

I'm particularly grateful that members have been so accommodating in meeting with me personally. I have found those meetings very useful in better understanding the concerns of the committee as the committee undertakes its constitutional responsibility of advice and consent.

I know that I would not be here today were it not for the sacrifices and help over the years of my family, who you met earlier today, friends, mentors, teachers and colleagues -- many of whom are here today.

Last week one of those mentors and friends, Chief Justice William Rehnquist, was laid to rest. I talked last week with the nurses who helped care for him over the past year, and I was glad to hear from them that he was not a particularly good patient.

He chafed at the limitations they tried to impose.

His dedication to duty over the past year was an inspiration to me and, I know, to many others.

I will miss him.

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

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

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court.

I always found it very moving to stand before the justices and say, I speak for my country.

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and our constitutional system.

Here was the United States, the most powerful entity in the world, aligned against my client. And, yet, all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing.

It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world. Because without the rule of law, any rights are meaningless.

President Ronald Reagan used to speak of the Soviet constitution, and he noted that it purported to grant wonderful rights of all sorts to people. But those rights were empty promises, because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

Mr. Chairman, I come before the committee with no agenda.

I have no platform.

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

Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain, from the days of our youth, certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land.

Growing up, I never imagined that I would be here, in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.

If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.

Thank you, Mr. Chairman.

Thank you, members of the committee.

I look forward to your questions.

Specter: Thank you very much, Judge Roberts, for that very profound statement.

We will stand in recess until 9:30 tomorrow morning, when we will reconvene in the Hart Senate Office Building, Room 216.

That concludes our hearing.

Posted by Jeff at September 13, 2005 12:35 PM

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