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Executive Session

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Location: Washington, DC


EXECUTIVE SESSION

NOMINATION OF JOHN G. ROBERTS, JR., TO BE CHIEF JUSTICE OF THE UNITED STATES--Resumed

BREAK IN TRANSCRIPT

Ms. STABENOW. Mr. President, this is a critical time in our Nation's history. For the first time in more than a decade, we have not just one but two vacancies on the United States Supreme Court. Sandra Day O'Conner, the first woman justice and often the critical deciding vote, is retiring, and Chief Justice Rehnquist, who served on the Court for more than 33 years, passed away after a courageous battle with cancer.

The two nominees who will receive these lifetime appointments will dramatically impact the direction of the Court for decades to come and will shape decisions that will affect the rights and freedoms of all Americans.

Furthermore, the new Chief Justice will play a unique and critical role. He will lead the Court. The new Chief Justice will set the initial agenda of what cases should be considered, and assign the justice who will write the majority opinion when he or she is a part of the majority. He will be the most powerful judge in the country.

We all understand that the U.S. Senate has a constitutional obligation to ``advise and consent'' on all Federal judicial nominees. Unlike other nominations that come before the Senate, judicial nominations are lifetime appointments. These are not decisions that will affect our courts for 3 or 4 years but for 30 or 40 years, making it even more important for the Senate to act carefully and responsibly.

I am one of the newer Members of this chamber. In fact, I rank 74th in seniority. I don't have the 20 year voting history on Supreme Court nominees that many of my colleagues do. I didn't vote on the nominations of Justices Scalia, Ginsburg, O'Connor or Thomas.

But I bring a different kind of history to this Chamber. I am the first woman U.S. Senator in history from the State of Michigan. My office is next door to the Sewell Belmont house, where Alice Paul and Lucy Burns planned their suffrage marches and fought to get women the right to vote.

I can see it from my window and every day I am reminded of what the women before me went through so that I could speak on the Senate floor today. I feel the same responsibility to fight against discrimination and for equal rights, for the women that will come after me.

I take this responsibility very seriously and have closely studied Judge Roberts' writings and testimony at the Judiciary Committee hearings. I commend Senators SPECTER and LEAHY for conducting the hearings in a civil and bipartisan manner.

The Judiciary Committee hearings were the only opportunity for Americans to hear directly from Judge Roberts on issues and concerns that impact their daily lives, and to find out what a ``Roberts Court'' might look like. Unfortunately, Judge Roberts refused to answer many of the questions that are on the minds of most Americans.

However, the American people are being asked to hire Judge Roberts for this lifetime job without knowing the answers to most of the interview questions. This problem has been exacerbated by the White House's refusal to share even a limited number of documents from Judge Roberts' time as Deputy Solicitor General.

The Constitution grants all Americans the same rights, liberties and freedoms under the law. These are the sacred, bedrock values upon which the United States of America was founded. And we count on the Supreme Court to protect these constitutional rights at all times, whether they are popular or not.

Unfortunately, Judge Roberts refused to answer most substantive questions about how he would protect our fundamental constitutional rights. Because of his failure to answer questions on the major legal issues of our time in a forthright manner, I feel compelled to base my decision on his writings and opinions.

When you closely examine these documents, you see a forceful and instinctive opposition toward protecting the fundamental rights of all Americans. In case after case, Judge Roberts argued that the Constitution did not protect workers, voters, women, minorities and people with disabilities from discrimination. He also argued that the Constitution does not firmly establish the right of privacy for all Americans.

In all of his memos, writings and briefs, Judge Roberts took the view that the Constitution only protects Americans in the most narrow and technical ways, and does not convey to us fundamental rights, liberties and freedoms. Because of these views, after much deliberation, I have concluded that Judge Roberts is the wrong choice for a lifetime appointment as Chief Justice of the U.S. Supreme Court.

Judge Roberts is certainly an intelligent man with a record of public service. However, that alone does not qualify him to lead the entire third branch of our government. I believe that his writings reveal a philosophy that undermines our most cherished and fundamental rights, liberties and freedoms as Americans, and for that reason, I will be voting no on his nomination.

The Supreme Court decides cases that have a broad impact on American jobs and the economy. Manufacturing is the backbone of Michigan's economy, and these court decisions will affect the livelihood of the families, workers and businesses I represent. We in Michigan need to know whether Judge Roberts will stand with us and with our families or be on the side of major special interests who were his clients in the private sector.

Right now, we are feeling the full impact of price-gouging and oil company monopolies at the gas pumps. But Americans don't know what Judge Roberts' views are of antitrust and consumer protection laws that punish these illegal corporate practices. How will he rule on cases dealing with insider-trading, anti-competitive business behavior and other kinds of corporate fraud to prevent another Enron?

We don't know if he supports basic consumer protections like patients' rights to receive a second doctor's opinion if their HMO tries to deny them treatment. Judge Roberts fought against these patients' right when he represented HMOs in private practice and Americans are entitled to know where he stands on this issue.

Americans need to know where Judge Roberts stands on worker protections under the Family and Medical Leave Act. And will Judge Roberts rule to protect their pensions and retirement benefits? We don't have the answers to these basic questions.

The foundation of our democracy is the belief that all people are created equal and that every American deserves an equal opportunity for a good education, good job, and a good life. The Supreme Court will be deciding cases that have an enormous impact on our civil rights protections and this fundamental American notion of equality.

As a lawyer in the Reagan administration, Judge Roberts argued against some of the most basic civil rights protections such as workplace discrimination laws and strengthening the Voting Rights Act. When he was asked if he disagreed with any of those positions today, Judge Roberts said he was just reflecting the administration's views, and refused to provide any clarity on his own personal views.

However these memos expressed more than just the administration's position; they included Judge Roberts' own extreme views on everything from school desegregation to title IX.

When urging the Attorney General to step up efforts to oppose legislation to strengthen the Voting Rights Act, Judge Roberts wrote, ``My own view is that something must be done to educate the Senators on the seriousness of this problem.'' This legislation ultimately passed with overwhelming bipartisan support.

In memos, he referred to the ``purported gender gap'' and ``the canard that women are discriminated against because they receive $0.59 to every $1.00 earned by men. .....'' In response to an equal pay letter from three Republican congresswomen, Roberts wrote, ``I honestly find it troubling that three Republican representatives are so quick to embrace such a radical redistributive concept. Their slogan may as well be `from each according to his ability, to each according to her gender.' ''

As special assistant, Roberts criticized the Labor Department's affirmative action program and referred to the policies which required ``employers who contract with the government to engage in race and sex conscious affirmative action as a condition of doing business with the government'' as ``offensive.'' Roberts wrote: ``Under our view of the law it is not enough to say that blacks and women have been historically discriminated against as groups and are therefore entitled to special preferences.''

What is particularly troublesome is not just the content of these writings but his tone toward these issues--one that is disrespectful. And one which Judge Roberts refused to disavow during the hearings.

As Senator Feinstein, the only woman on the Senate Judiciary Committee said, ``If Judge Roberts had provided different answers to these questions, he could have easily demonstrated to us that wisdom comes with age, and a sense of his own autonomy. But he did neither.''

These are opinions and attitudes that will have an impact on real people's lives. And Judge Roberts' opinion matters.

They will affect whether or not we have admissions policies that promote diversity at our Nation's universities and policies that help minority-owned and women-owned businesses compete for government contracts.

They will determine how well our antidiscrimination laws are enforced to protect all Americans from housing discrimination, abusive work environments, sexual harassment, discriminatory hiring policies, and sexism in education and collegiate sports under title IX.

And they will determine whether our most fundamental democratic right--the right to vote--is protected.

As Chief Justice, Judge Roberts would decide in case after case, whether these principals of equal opportunity and equal protection should be upheld and whether these laws should be enforced.

The constitutional right to privacy is one of the most fundamental rights we have as Americans. At its core, it is about the role of government in the most personal of family decisions. It is about a woman's right to make her own reproductive choices and a couple's right to use contraception.

But it is also about keeping medical records private to prevent them from being used against Americans in their jobs or when they are trying to get health insurance. It is about a parent's right to send their child to the school of their choice. And it is about the role of government in right-to-die cases, as the nation witnessed in the Terry Schiavo case.

Our constitutional right to privacy is a complicated and often politically charged area of the law. It is extremely important that a Supreme Court nominee approach this issue as a fair and independent-minded jurist who will uphold settled law, and not approach it with a politically motivated agenda.

While Judge Roberts acknowledged that a right to privacy exists, he refused to explain what he believes that right actually encompasses. Like Justice Thomas in his testimony before the committee, Judge Roberts refused to say whether he believed the right to privacy extended beyond a married couple's right to contraception. Senator Schumer asked Judge Roberts whether he agreed that there is a ``general'' right to privacy provided in the Constitution. Roberts' response was, ``I wouldn't use the phrase `general,' because I don't know what that means.''

He repeatedly refused to answer whether the right to privacy protects a woman's right to make her own reproductive choices, and like many women across the country, I was very disappointed that he was evasive in answering this important privacy question.

How Judge Roberts will approach and decide these questions of law will have a profound impact on not just our lives but on the lives of our children and grandchildren.

I had hoped that the hearings would give us insight into his legal reasoning and judicial philosophy on all of these important issues. And I strongly believe that the American people deserve these answers. This isn't a decision that should be based on guesswork or a leap of faith.

So all we have to go on are Judge Roberts' own writings over the past 25 years. Based on this record, I cannot in good conscience cast my vote for John Roberts to be Chief Justice of the United States Supreme Court.

http://thomas.loc.gov/

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