Leahy, YES on Roberts

Statement Of Senator Patrick Leahy, Ranking Member, Senate Judiciary Committee, On The Nomination Of Judge John Roberts, To Be Chief Justice Of The United States, Senate Floor, September 21, 2005

This week, as we celebrate our Constitution’s 218th anniversary, we are nearing the exercise of one of the Senate’s most solemn constitutional responsibilities. Few decisions the Senate faces are as consequential and enduring as when the Senate decides whether to confirm, by giving its consent, to the nomination of a Justice, and even more so when the nomination is for Chief Justice of the United States.

The Supreme Court is different from the lower courts. The Supreme Court is the only federal court required by the Constitution itself. Indeed, the Chief Justice is the only member of the court expressly named in the Constitution. All other courts are bound by the decisions of the Supreme Court -- its decisions are final. Only the Supreme Court can modify or overrule its precedents. Its power is enormous and the role of the Chief Justice is to lead not only that all-powerful court, but the entire third branch of government. We have had 43 Presidents. We have had only 16 Chief Justices, each being appointed for life.

Senator Byrd, whose passionate advocacy established the Constitution Day commemoration, describes the Constitution as the soul of our Nation. The Senate’s advice and consent responsibilities are at the core of this body’s vital role in our Republic.

This week we commemorate our Constitution in a time of great challenges, and we are reminded again how resilient our Constitution is in empowering our Nation to meet each era’s challenges. The carefully calibrated checks and balances within our Constitution are essential to that. No branch of government is intended to be the rubber stamp of another branch.

Each day Americans are fighting and dying in Iraq. Hundreds of thousands of Americans have been displaced by disasters here at home. Four years after 9/11, with public confidence shattered, we must embark on a review of why we are still not prepared to respond to a terrorist attack or foreseen natural disasters. The cost of energy -- gas and home heating fuels – continues to climb to all-time highs, adding to the cost of most other goods. The Bush Administration is suspending environmental and worker protections. Poverty and the disparities of opportunity between races and classes continue their insidious rise each year. After recent years of budget surpluses, the country’s budget deficits are at previously unheard of levels -- between $300 billion and $400 billion a year. Our natural debt is at $8 trillion dollars – a profligate amount that can be paid off only by our children and grandchildren.

Americans need to know that their constitutional rights will be protected, that their government is on their side and that their courts will be a place of refuge, stability, independence and justice.

The nomination of Judge John Roberts to be Chief Justice of the United States presents a close question and one that each Senator must carefully weigh and decide. This is a question that holds serious consequences for all Americans, today and for generations to come. I have approached this nomination with an open mind, as I do with all judicial nominations.

There is no entitlement to confirmation for lifetime appointments on any court for any nomination by a president, Democratic or Republican.

I have served in the Senate for three decades and on the Judiciary Committee for most of that time. I take my constitutional responsibility with respect to advice and consent seriously. I am one vote out of 100, but I recognize that those 100 of us privileged to serve in the Senate are entrusted with protecting the rights of 280 million of our fellow citizens. We stand in their shoes. We, and the President, are the only Americans with a voice in the choice of Chief Justice.

With this vote, I do not intend to lend my support to an effort by this President to move the Supreme Court and the law radically to the right. Above all, balance and moderation on the Court are crucial. I want all Americans to know that the Supreme Court will protect their rights and will respect the authority of Congress to act in their interest.

I want a Supreme Court that acts in its finest tradition as a source of justice. The Supreme Court must be an institution where the Bill of Rights and human dignity are honored.

I have voted for the vast majority of President Ford’s, President Carter’s, President Reagan’s, President George H.W. Bush’s, President Clinton’s, and President George W. Bush’s judicial nominees.

I have drawn the line only at those of President Bush’s nominees who were among the most ideologically extreme and who came to us in the mold of activists. Unfortunately, the President has opted not to seek moderate candidates. Instead, he has insisted on nominating several extreme choices and has politicized the process to a greater extent than I have seen in my 31 years in the Senate.

I have not reflexively opposed Republican nominees or conservative judicial nominees nominated by Republican presidents. In fact I recommended a Republican to President Clinton to fill Vermont’s seat on the Second Circuit, Judge Fred Parker, and I recommended another Republican, Judge Peter Hall, to President Bush to fill that seat after Judger Parker’s death.

I voted for President Reagan’s nominations of Justice Sandra Day O’Connor and Justice Anthony Kennedy, and for President Bush’s nomination of Justice Souter.

Regrettably, this President has said that he approached this matter as if fulfilling a campaign pledge to appoint someone in the mold of Justice Thomas and Justice Scalia. I voted against confirmation of Justice Thomas. I voted for Justice Scalia and now question that vote. If I thought that Judge Roberts would easily reject precedent in the manner of Justice Thomas or would use his position on the Supreme Court as a bulwark for activism in the manner of Justice Scalia, I would not hesitate to vote no.

If I were convinced that he would undercut fundamental rights of privacy or equal protection, this would not even be a close question.

I want to vote for a Chief Justice of the United States who I am confident has a judicial philosophy that appreciates the vital role of the judiciary in protecting the rights and liberties of all Americans. Chief Justice Marshall understood the essential function of the judiciary as a check on presidential power. Under his leadership the Constitution’s guarantee of an independent judiciary and the bedrock principle of judicial review became realities. Chief Justice Roger Taney, a brilliant lawyer by all standards, led the court in a different and destructive direction.

He authored the Dred Scott decision which propelled the States toward civil war by relying only on technical reasoning and an unjust holding that denied African Americans constitutional standing as “persons.” Chief Justice Earl Warren, by contrast, led the Supreme Court and the Nation in a crowning achievement when he forged the unanimous decision in Brown v. Board of Education and breathed life into the equal protection guarantee of the 14th Amendment.

The President asked that this nomination be handled with fairness and dignity, and the Judiciary Committee has met those standards. The Committee held a hearing on the merits. I worked with the Chairman to expedite the Committee’s consideration of the nomination of John Roberts to the Supreme Court out of respect to Justice O’Connor and the work of the Court.

Fewer than 36 hours after the announcement of the passing of Chief Justice Rehnquist and during the horrific aftermath in the week following Hurricane Katrina, the President withdrew that July 19 nomination to be Associate Justice. Thereafter, the White House sent us this alternative nomination, for Judge John Roberts to become the Chief Justice of the United States, and I cooperated with Chairman Specter in an accelerated consideration of the nomination.

I was extremely disappointed by the lack of cooperation from the Administration. Although we started off well with some early efforts at consultation after Justice O’Connor’s retirement announcement in early July, that consultation never resulted in any meaningful discussions. It was truncated after a bipartisan meeting with Senate leaders at the White House. The President never shared his thinking with us or his plans, as is the nature of true consultation. His naming of Judge Roberts as his choice to replace Justice O’Connor came as a surprise, not as a result of meaningful consultation.

He then preemptively announced that he had decided to withdraw that nomination and, instead, nominated Judge Roberts to succeed Chief Justice Rehnquist. He did so at 8 a.m. on the Monday morning following the announcement on the previous Saturday night of the Chief’s passing.

There could and should have been consultation with the Senate on the nomination of someone to succeed Chief Justice Rehnquist and to serve as the 17th Chief Justice of the United States. There was none. I learned about the President’s decision shortly before his televised announcement Monday morning.

The Bush Administration committed another disservice to this nomination -- and, especially, this nominee -- by withholding information that has traditionally been shared with the Senate. The Bush Administration treated Senators’ requests for information with little respect. Instead, for the first time in my memory, they grafted exceptions from the Freedom of Information Act to limit their response to Senators’ requests for information. They stonewalled entirely the narrowly tailored request for work papers from 16 significant cases John Roberts handled when he was the principal deputy to Kenneth Starr at the Solicitor General’s office during the President’s father’s administration. The precedent from Chief Justice Rehnquist’s hearing and others of course goes the other way.

Previous Presidents had paid the appropriate respect to the Senate and especially to the constitutional process by working with the Committee to provide such materials. Accordingly, I would certainly understand if a Senator were to vote against the President’s nomination on this basis alone.

Some Republican Senators also disserved the confirmation process by urging the nominee not to answer questions or reveal his judicial philosophy during the course of this hearing. There was one notable exception from that Republican chorus, the chairman. I appreciate his commitment to the role of the Senate and taking his duty to advise and consent as seriously as it deserves to be taken. Regrettably, the nominee seemed to take the advice of some Republicans to heart in many of his answers.

Finally, Judge Roberts disserved himself by following the script that he had developed while serving in the Reagan Administration. He and this Administration rejected the spirit of Attorney General Jackson’s opinion that, with respect to Senate consideration of nominations, no person should be submitted “whose entire history will not stand light.”

The nominee took a narrow judicial ethics rule correctly limiting what a judge or judicial nominee should say about a particular case and turned it into a broad excuse from comments on any issue that might ever arise in a case.

He apparently rejected the Supreme Court’s holding in 2002 in Republican Party of Minnesota v. White, in which Justice Scalia held that a state canon limiting judicial candidates from announcing their views on legal and political issues was unconstitutional.

By contrast, several of the public witnesses who appeared last Thursday were extraordinarily helpful in underscoring what is at stake for all Americans with this decision. No one who heard Congressman John Lewis, Wade Henderson and Judge Nathaniel Jones can doubt the fundamental importance of our refusal to retreat from our Nation’s commitment to civil rights.

The testimony of Coach Roderick Jackson and Beverly Jones reminded us how courageous Americans are still in opening doors and righting wrongs through our courts. The testimony of Marie Anne Talman of MALDEF reflected what is at stake when alien children are denied education and benefits that should be available to every child in America.

It was a dignified and fair process. I commend Chairman Specter and those Members of the Committee on both sides of the aisle who did not prejudge the matter and who did not seek to politicize the process.

The hearings did provide the committee with some information. I was encouraged by Judge Roberts’s answer to my question about providing the fifth vote needed to stay an execution when four other Justices vote to review a capital case. That has not always been the practice of late and he was right to recognize the illogic, if not the injustice of having the necessary votes to review the case but lacking the necessary vote to allow that review to take place especially where a life hangs in the balance.

I hope that the nominee will take up our suggestion to allow greater access to the Supreme Court’s proceedings by authorizing their televising.

Likewise, I will work with him and with Chairman Specter and Senator Grassley to increase transparency in the work of the increasingly important FISA court.

I would also urge him to consider ways to decentralize the power accumulated to the Chief Justice so that the Judicial Conference, Circuit courts and others can do more. I encourage him to reform the recusal procedures and conflict of interest protections at all levels of the judiciary but, in particular, with regard to the Supreme Court itself. Perhaps what many have said were his own missteps in connection with his interviewing for this nomination during his consideration of the Hamdan case will inspire him to greater efforts in this important regard.

As a young man Judge Roberts clerked for Judge Henry Friendly on the United States Court of Appeals for the Second Circuit. The Second Circuit has been the home to a number of leading judicial lights and certainly Henry Friendly was among them. I hope that he is faithful to Judge Friendly’s fairness and thoughtfulness.

I made no secret of my concerns about this nomination. In advance of the hearing I met twice with Judge Roberts and for nearly three hours in all, raised my concerns. I provided him additional opportunities to respond during the hearing.

I told him I was concerned that he would not act as an effective check on the abuse of presidential power.

Judge Roberts’s work in the Reagan and Bush Justice Departments as well as his formative period in the Reagan White House seem to have led him to a philosophy of significant deference to presidential authority. It is exhibited most recently in his decisions in the Hamdan, Acree and Chao cases, among others. Maybe this deference was a principal basis on which this President chose him.

Throughout this process, I learned that Judge Roberts and I share admiration for Justice Robert Jackson. Justice Jackson’s protection of fundamental rights, including unpopular speech under the First Amendment, and his willingness to serve as a check on presidential authority are among the finest actions by any Justice in our history. When Judge Roberts testified about his respect for Justice Jackson, I hoped that it was a signal he was sending and I posed that question to him. I accept his assurance that he will act as an independent check on the President, in the mold of Justice Jackson, and that when he joins the Supreme Court he will no longer heavily defer to presidential authority. It is one of the crucial roles of the courts, and I take him at his word that he will do so.

This is a fundamental question. We know that we are in a period in which the Executive has a complicit and compliant Republican Congress that refuses to serve as a check or balance. Without the courts to fulfill that constitutional role, excess will continue, and the balance will be tilted.

The other dimension of the fundamental balance of constitutional powers involves appropriate deference to congressional action taken by the people’s elected representatives.

The manner and techniques Judge Roberts has used while in the Executive, private practice and while briefly on the D.C. Circuit show him to require an unrealistic exactitude in drafting laws that no collective body could meet.

I wish he had served in Congress or worked for a time in Congress so that he would have a deeper understanding of the legislative process. I hope that his experience during the hearing and the many questions from Senators on both sides of the aisle have helped increase his appreciation for congressional authority and its importance.

The current activism of the Supreme Court must be curtailed. That should not be part of Chief Justice Rehnquist’s legacy that John Roberts seeks to continue.

Congress acts to protect the interests of Americans through the Commerce Clause, spending powers and the 14th Amendment. That needs to be respected. I am encouraged by his assurances that he will respect congressional authority. My reading of his dissent from the denial of rehearing en banc of the Rancho Viejo v. Norton case, the case in which he made the “hapless toad” reference is that he urged rehearing to “afford the opportunity to consider alternative grounds for sustaining application of the Act.” In addition, his steadfast reliance on the Supreme Court’s recent Raich decision as significant precedent contravening further implications from Lopez and Morrison was intended to reassure us that he will not join the assault on congressional authority pursuant to the Commerce Clause. I heard him and rely on him to be true to the impression that he created.

As a lawyer John Roberts had been significantly involved in the development of Supreme Court authority limiting the authority of Congress pursuant to its constitutional spending powers. He argued before the Supreme Court in the 80s, 90s, and this decade in a series of cases – South Dakota v. Dole, Wilder v. Virginia Hospital Association, Suter v. Artist M., and Gonzaga University v. Doe – in which he called for narrowing Congress’s spending powers and limiting the ability of individuals to sue to compel the protections Congress required under federal law.

His briefs in Gonzaga adopted the extreme view that a spending power enactment was a contract between the state and federal governments and that the intended beneficiaries of those programs had no rights to sue to enforce the commitments, even when states were violating the law and the federal government was not effectively enforcing it.

At the hearing, he took pains to assure me and Senator Feinstein, among others, that as Chief Justice he would not continue to urge additional restrictions and would respect congressional authority.

To do otherwise would greatly undermine Congress’s ability to serve the interests of Americans and protect the environment, ensure equal justice, and provide health care and other basic benefits. I think he knows that now.

From the initial questioning by Chairman Specter throughout the testimony of the nominee, many Senators asked about the fundamental reproductive rights of women that are part of the recognized right of privacy. Judge Roberts testified that he now recognizes Roe v. Wade and Planned Parenthood v. Casey as established precedents of the Supreme Court entitled to respect.

He testified that he interprets the liberty protected by the due process clause of the 14th Amendment as the constitutional bedrock of the right of privacy, which is both substantive and procedural. Here, too, within the overly strict confines of his own self-imposed constraints on his answers, he consciously created the impression that he will not be a judicial activist on this essential point. He left me with the understanding that he would not seek to overrule or undercut the right of a woman to choose. I trust that he is a person of honor and integrity and that he will act accordingly.

As Chief Justice John Roberts will not be only an appointee of a Republican administration or a legal advocate for a narrow interest. As Chief Justice he must check the abuse of presidential power. As Chief Justice he must support congressional efforts to serve the interests of all Americans. As Chief Justice he must work to ensure that the federal courts, and the Supreme Court in particular, are halls of justice where Americans like Beverly Jones, Roderick Jackson and Christine Franklin can seek and find redress for grievances, meaningful remedies for the violation of their rights and protection of their fundamental interests.

Justice White wrote in the Franklin v. Gwinnett County Public School case: “From the earliest years of the Republic, the Court has recognized the power of the Judiciary to award appropriate remedies to redress injuries actionable in court.” As Chief Justice of the United States, John Roberts must ensure that the Supreme Court and all federal courts never “abdicate our historic judicial authority to award appropriate relief in cases brought in our court system.”

Supreme Court Justices decide what cases to decide. They consciously shape the direction of the law by choosing which cases to hear as well as how they are to be decided. We know he believes in the rule of law. But court decisions, especially Supreme Court decisions, are not mechanical applications of neutral principles. If there were, all judges would always reach the same results for the same reasons. They do not. Legal decisions are not mechanical. They are matters of judgment and, often, matters of justice. As Chief Justice, John Roberts is responsible for the way in which the judicial branch administers justice for all Americans. He must know in his core that the words engraved in the Vermont marble on the Supreme Court building are not just “Under Law” but “Equal Justice under Law.” It is not just the rule of law that he must serve, but the cause of justice under our great charter.

I heard days of testimony and hours of meetings with Judge Roberts. Would I have liked more information? Of course -- I always want more. Is a no vote the easier and more popular one?

Of course again, especially with my constituency. But in my judgment, in my experience, but especially in my conscience I find it is better to vote yes than no. Ultimately my Vermont roots have always told me to go with my conscience and they do so today.

Judge Roberts is a man of integrity. I can only take him at his word that he does not have an ideological agenda. For me, a vote to confirm requires faith that the words he spoke to us have meaning. I can only take him at his word that he will steer the court to serve as an appropriate check on potential abuses of presidential power.

I respect those who have come to different conclusions, and I readily acknowledge the unknowable at this moment, that perhaps they are right and I am wrong. Only time will tell.

All of us will vote this month but only later will we know if Judge Roberts proves to be the kind of Chief Justice he says he would be, if he truly will be “his own man.” I hope and trust that he will be.

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