Executive Session

EXECUTIVE SESSION -- (Senate - September 28, 2005)

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 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 States.

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 that.

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.

Another:

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.

Another:

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.

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