PROTECTION OF LAWFUL COMMERCE IN ARMS ACT--MOTION TO PROCEED
BREAK IN TRANSCRIPT
FOLLOWING THE GINSBURG STANDARD
Mr. McCONNELL. Madam President, I rise to speak on the nomination of Judge John Roberts to be the next Justice of the Supreme Court of the United States. As we are beginning to learn, the President has selected one of the foremost legal minds of his generation. Many of my colleagues have already spoken Judge Roberts' praises on this floor, and I agree with all of them. Judge Roberts possesses a keen intellect, an open mind, very importantly, a judicious temperament, and a sterling reputation for integrity. He will faithfully apply the Constitution, not legislate from the bench. He should be confirmed in time for the Court to operate at full strength by October 3.
Looking to recent history, and looking more specifically to the most recent Supreme Court nominations of Justices Ruth Bader Ginsburg and Stephen Breyer, I would think that I should not have cause to worry how this nominee will be treated. Then, as now, the President's party controlled the Senate. Then, as now, the President nominated a jurist whose credentials could not be questioned. The only difference is that the occupant of the White House then was a Democrat, and the current President is a Republican.
But that one simple fact may make all the difference to some of my friends on the other side of the aisle.
In recent weeks I have begun to worry that some of my Democratic friends have forgotten the standard to which the Senate held Justices Breyer and Ginsburg when they were nominees. Judge Roberts deserves the same standard, no more or no less, than the nominees of President Clinton. But I fear that ``the Ginsburg-Breyer standard''--which I will call the ``Ginsburg standard'' for short--is giving way to a double standard. I would like to remind my colleagues of recent history, so we may draw some lessons from the confirmation processes of Justices Breyer and Ginsburg.
Both Ruth Bader Ginsburg and Stephen Breyer came to the Senate with a distinguished record and a deserved reputation for a fine legal mind. But Justice Ginsburg also came with a long record of liberal advocacy and thought-provoking, to put it mildly, statements. Yet the Senate handled her nomination in a manner that brought credit to the institution. It followed a respectful process. Indeed, it can be said that ``respect''--both for the President and his nominee--was a hallmark of her nomination, and the nomination of Stephen Breyer.
In the Ginsburg nomination, the Senate recognized that most judicial nominees, including Justice Ginsburg, have at one point been private practitioners of the law. The Senate recognized that it is unfair to attribute to lawyers the actions of their clients. Lawyers are zealous advocates for their clients. Lawyers speak for their clients, not themselves.
After all, if a lawyer defends a client accused of stealing a chicken, it does not then follow that the lawyer is a chicken thief. Again, if a lawyer defends a client accused of stealing a chicken, it does not then follow that the lawyer is a chicken thief. By following this standard, the Senate did not hold against Justice Ginsburg the policy positions of her most famous client, the American Civil Liberties Union.
As we know, the ACLU takes consistently liberal positions on high-profile issues, positions that many Americans strongly disagree with. I respect that. I do not often agree with the ACLU, but its members believe strongly, and they fight for their beliefs. There is certainly nothing but admiration we can have for that.
During Justice Ginsburg's tenure as a general counsel and a member of its board, the ACLU, for example, opposed restrictions on pornography. Yet even though her client had adopted controversial policy positions, the Senate did not attribute them to Justice Ginsburg, let alone disqualify her from service on the Supreme Court because of them.
In addition, this country values a healthy ``market-place of ideas.'' So, the Senate did not block Justice Ginsburg's nomination because she made controversial and thought-provoking statements in her private capacity as a legal thinker. Those thoughts ranged from suggesting a constitutional right to prostitution, to proposing abolishing ``Mother's Day'' and ``Father's Day'' in favor of a unisex ``Parent's Day.'' Why did we not hold those views against her? Because by a 96-3 margin, we decided she had the integrity to apply the law fairly to each case, despite some rather, to put it mildly, provocative personal views that had been expressed over the years in her writing.
With both the Ginsburg and Breyer nominations, the Senate also continued its long-standing practice of respecting a nominee's right not to disclose personal views or to answer questions that could prejudge cases or issues. Senators may ask a nominee whatever questions they want. But the nominee also has the right not to comment on matters the nominee feels could compromise their judicial independence.
For example, during his Supreme Court confirmation hearing in 1967, Thurgood Marshall, before the Senate Judiciary Committee, declined to answer a question regarding the Fifth Amendment. He explained.
I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed, sit on the Court and when a Fifth Amendment case comes up, I will have to disqualify myself.
Justice O'Connor, whom our Democratic colleagues have been citing so glowingly in the last few weeks, also demurred regarding questions she thought would compromise her independence. One of those questions asked her view of a case that had already been decided, Roe v. Wade; and in explaining her position, she said:
I feel it is improper for me to endorse or criticize a decision which may well come back before the Court in one form or another and indeed appears to be coming back with some regularity in a variety of contexts. I do not think we have seen the end of that issue or that holding and that is the concern I have about expressing an endorsement or criticism of that holding.''
The Senate continued this practice with the Breyer and Ginsburg nominations. It did not require them to state their private views, or to prejudge matters before they had read one word of a brief or heard one word of oral argument.
Justice Breyer explained why he had to be careful about pre-committing to matters:
I do not want to predict or to commit myself on an open issue that I feel is going to come up in the Court. . . . There are two real reasons. The first real reason is how often it is when we express ourselves casually or express ourselves without thorough briefing and thorough thought about a matter that I or some other judge might make a mistake. . . . The other reason, which is equally important, is . . . it is so important that the clients and the lawyers understand that judges are really open-minded.
The Senate respected Justice Breyer's concerns about prejudging and confirmed him by an overwhelming 87-9 margin. This respect extended to cases that had already been decided. For example, our late colleague, Senator Thurmond, asked Justice Breyer about Roe v. Wade, a case that had been decided 21 years earlier. Like Justice O'Connor, Justice Breyer declined to comment, stating:
The questions that you are putting to me are matters of how that basic right applies, where it applies, under what circumstances. And I do not think I should go into those for the reason that those are likely to be the subject of litigation in front of the Court.
Senator Thurmond respected Justice Breyer's position, and did not hold against Justice Breyer his decision not to answer that question. Other Senators did the same on a host of issues.
Justice Breyer also declined to give his personal views. He explained, ``The reason that I hesitate to say what I think as a person as opposed to a judge is because down that road are a whole host of subjective beliefs, many of which I would try to abstract from.'' As result, he declined to give his personal views on whether the death penalty was cruel and unusual, what the scope of the exclusionary rule should be and whether he supported tort reform.
Justice Ginsburg also invoked her prerogative not to answer questions that could compromise her independence, and both sides of the aisle respected her decision. Indeed, Senator BIDEN, who was then chairman, encouraged her not to answer questions that would preview her position on a legal issue. He told her:
I will have statements that I made during the process read back to me. But I do think it is appropriate to point out, Judge, that you not only have a right to choose what you will answer and not answer, but in my view you should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably, over your tenure on the Court.
Justice Ginsburg's effort to remain unbiased--like Justices O'Connor and Breyer--included not commenting on cases that had already been decided. For example, Justice Ginsburg was asked how she would have ruled in Rust v. Sullivan, an abortion case that had already been decided. She declined to answer, explaining her position with a metaphor of the slippery slope:
I sense that I am in the position of a skier at the top of that hill, because you are asking me how I would have voted in Rust v. Sullivan. Another member of this committee would like to know how I might vote in that case or another one. I have resisted descending that slope, because once you ask me about this case, then you will ask me about another case that is over and done, and another case. . . . If I address the question here, if I tell this legislative chamber what my vote will be, then my position as a judge could be compromised.
Indeed, Justice Ginsburg declined to comment 55 times on a variety of legal questions. That is 55 times. These included: If the second amendment guarantees an individual right to bear arms; If the death penalty is cruel and unusual punishment under the eighth amendment; If school vouchers for children are constitutional under the Establishment Clause; If the Supreme Court had interpreted too narrowly the Voting Rights Act; If the first amendment was intended to erect a wall of separation between church and state; and If the Federal Government may prohibit abortion clinics from using Federal funds to advocate performing abortions.
That is a lot of ``ifs'' she declined to answer and yet was confirmed overwhelmingly.
Both Justices Ginsburg and Breyer were reported out of the committee promptly; Republicans did not try to delay the committee vote. Nor did Republicans try to deny these nominees the courtesy of an up-or-down vote on the Senate floor.
As I mentioned, Justice Ginsburg was confirmed 96-3 after 2 days of debate. Justice Breyer was confirmed 87-9 after only a single day of debate. By giving these nominees up-or-down votes, the Senate continued the practice it had followed with even contested Supreme Court nominees, like Robert Bork and Clarence Thomas. The average time for Senate consideration of the Ginsburg and Breyer nominations was 58 days. For Justice Ginsburg's nomination, the entire process lasted only 42 days from nomination to confirmation.
It troubles us on this side of the aisle, and it should trouble all Americans, when different standards are applied to different people for no valid reason. Unfortunately, this already appears to be happening with respect to the nomination of Judge John Roberts.
Judge Roberts will no doubt be as forthcoming as he properly can be when he testifies. However, as with all nominees, there are some questions that he will not be able to answer. His decision ought to be respected as were the decisions of Justice Ginsburg and Justice Breyer.
But our colleague Senator SCHUMER has declared that for this nomination--forget all the prior nominees--``Every question is a legitimate question, period.'' And he plans on asking Judge Roberts some 70 questions. These include specific issues that will likely come before the Court. In addition, he wants Judge Roberts to discuss how he would have voted in specific cases, such as New York Times v. Sullivan and United States v. Lopez.
If our friend from New York insists that Judge Roberts answers these types of questions, it will be a radical departure from the practice that the committee followed with Justice O'Connor, Justice Breyer, Justice Ginsburg and other Supreme Court nominees. These nominees were given discretion in not answering questions on issues that might come before the Court. It was agreed that it would be improper for a potential justice to pre-commit on a matter.
We on this side of the aisle are not asking the Senate to change its practices or standards. We are not asking that this President be treated better than his immediate predecessor. We are asking for equal treatment. In short, we are simply asking that the Senate follow the Ginsburg standard, not a double standard.
I am hopeful that the courtesy and respect the Senate showed President Clinton's nominees, and prior Supreme Court nominees, will continue with Judge Roberts. After all, it's only fair.
I yield the floor.