Executive Session

EXECUTIVE SESSION -- (Senate - September 27, 2005)

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Mr. DORGAN. Mr. President, I know many will provide us with their views on this nominee for the Supreme Court, and I will make a couple points today as I describe the process by which I arrived at my decision.

Mr. President, the Constitution of this country establishes three branches of Government. When you look at this Constitution and read it, it is quite a remarkable document in all of the history of governments around the world. It was 1787 when in Philadelphia, in a hot room called the Assembly Room, 55 white men went into that room, pulled the shades because it was warm in Philadelphia that summer and they had no air-conditioning, and they wrote the Constitution; the Constitution that begins with the words, ``We the people.'' What a remarkable document. And that Constitution creates a kind of framework for our Government that is extraordinary and that has worked in the most successful way of any democracy in the history of mankind. In that Constitution they provided for what is called separation of powers, and for three branches of Government. One of those branches is the judiciary, and the Supreme Court is the top of the judiciary structure which interprets the Constitution in our country. Further, it is the only area in which there are lifetime appointments.

When we decide on a nominee for the Federal bench to become a Federal judge, as is the case with respect to the Supreme Court, we decide yes or no on a nominee sent to us by the President. That person will be allowed to serve for a lifetime--not for 10 years or 20 years but for a lifetime. So it is a critically important judgment that the Senate brings to bear on these nominations.

The President sends us a nomination and then the Senate gives its advice and consent; America approves or disapproves. Even George Washington was unable to get one of his Supreme Court nominees approved by the Senate. He was pretty frustrated by that. But even George Washington failed on one of his nominees.

The role of the Senate is equal to the role of the President. There is the submission of a nominee by the President, and the yes or no by the Senate. Regrettably, in recent years, these issues have become almost like political campaigns with groups forming on all sides and all kinds of campaigning going on for and against nominees. It did not used to be that way, but it is in today's political climate.

I want to talk just a little about the nominee who is before us now, Judge John Roberts, for the Chief Justice of the Supreme Court. The position of Chief Justice is critically important. He will preside over the Supreme Court. And, it is a lifetime appointment proposed for a relatively young Federal judge. John Roberts, I believe, is 50 years old. He is likely to serve on the Supreme Court as Chief Justice for decades and likely, in that position, to have a significant impact on the lives of every American.

I asked yesterday to meet once again with Judge Roberts. I had met with him previously in my office. He came to my office again yesterday and we spent, I guess, 40 or 45 minutes talking. I wanted to meet with him just to discuss his views about a range of issues. There were a number of things that happened in the Judiciary Committee that triggered my interest--civil rights issues, women's rights, the right of privacy, court striping, and many others. Some of his writings in his early years, incidentally, back in the early 1980s also gave me some real pause.

So I asked to meet with him yesterday morning, and at 9:30 we had a lengthy discussion about a lot of those issues. But I confess that Judge Roberts did not give me specific responses that went much beyond that which he described publicly in the Judiciary Committee hearings. Nonetheless, by having met with Judge Roberts twice and having had some lengthy discussions about these many issues, he is clearly qualified for this job. That has never been in question. He has an impressive set of credentials, probably as impressive a set of credentials as any nominee who has been sent here in some decades. He clearly is smart, he is articulate, he is intense.

The question that I and many others have had is, Who is this man, really? What does he believe? What does he think? Will he interpret the Constitution of this country in a way that will expand or diminish the rights of the American people? For example, there are some, some who have previously been nominated to serve on the Supreme Court, who take the position there is no right to privacy in this country; that the Constitution provides no right to privacy for the American people. I feel very strongly that is an error in interpretation of the Constitution, and the nominees who have suggested that sort of thing would not get my support in the Senate. Those who read the Constitution in that manner, who say there is no right to privacy in the U.S. Constitution, I think, misread the Constitution.

I think at the conclusion of his hearings, it is interesting that advocates from both the left and the right had some concerns as a result of those hearings. I believe the conservatives worried at the end of his hearings that he wasn't conservative enough. I think liberals and progressives worried that he was too conservative.

Well, Judge Roberts clearly is a conservative. I would expect a Republican President to nominate a conservative. But from the discussions I have had with him, I also believe that Judge John Roberts will be a Chief Justice who will honor precedent and who will view his high calling to an impartial interpretation of the laws of this country.

Having now spent two occasions visiting with him about a number of issues, I believe he has the ability to serve this Nation well as Chief Justice, and I have decided, as a result, to vote for the confirmation of the nomination of Judge John Roberts. Some of my colleagues have announced they will vote for him, and they are voting their hopes rather than their fears. I would not characterize my vote that way. I think he is qualified, and I don't think he is an ideologue off to the far right--who believes there is no right to privacy and who wants to take us back in time in ways that would diminish the rights of the American people. As a result of that feeling, I intend to vote for this nominee. I recognize there is plenty of room for disagreement, that there is much that we don't know, not only about this nominee, but about everyone who comes before this Senate. And I fully respect the opinions of those who come to a different conclusion and who have reached a different point on this issue. But for me, this nominee, in my judgment, is well qualified to be a good Chief Justice for the country.

Mr. President, I yield the floor, and I make a point of order that a quorum is not present.

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