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Public Statements

Executive Session

By:
Date:
Location: Washington, DC


EXECUTIVE SESSION

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

BREAK IN TRANSCRIPT

Mr. McCONNELL. Madam President, Senators cast many important votes--votes to strengthen our highway system, or to implement a comprehensive energy strategy, for example--but it is not often we cast a vote that is both important and truly historic. We do so, however, when we vote on whether to confirm a nominee to be Chief Justice of the United States.

There have been 9,869 Members of the House of Representatives, 1,884 Senators, and 43 Presidents of the United States, but only 16 Chief Justices. On average, each Chief Justice serves for well over a decade. Our last Chief Justice served for 19 years, a little short of two decades. The occupant of the ``center seat'' on the Court often has had a profound impact on the shape and substance of our legal system. But despite such profound effects, the position of Chief Justice actually got off to a rather inauspicious start.

The Constitution of the United States mentions the position of Chief Justice only once. Interestingly, it does not do so in Article III, which establishes the judicial branch of our Government. Rather, the Constitution refers to the position of Chief Justice, almost in passing, only in Article I, which sets forth the powers of the legislative branch.

There, in section 3, clause 6, it discusses the Senate's procedures for a trial of an impeached President, stating that ``When the President of the United States is tried, the Chief Justice shall preside.'' That is the sum and substance of his constitutional authority.

The Judiciary Act of 1789, which established the Federal court system, did not add much to the Chief Justice's responsibilities. It specified merely that ``the supreme court of the United States shall consist of a chief justice and five associate justices.''

It is not surprising, then, that the position of Chief Justice initially was not viewed as particularly important. Indeed, the first Chief Justice, John Jay, left completely disillusioned, believing that neither the Court nor the post would ever amount to very much.

It took George Washington four tries to find Jay's successor, as prominent people repeatedly turned him down. They were turning down George Washington's offers to make them the Chief Justice of the United States.

With such humble constitutional roots for the office, the power, prestige, and independence of the Supreme Court and the Federal court system in general often has been tied to the particular personal qualities of those who have served as Chief Justice.

John Marshall was our first great Chief Justice. His twin legacies were to increase respect for the Court and, relatedly, its power as well. He worked to establish clear, unanimous opinions for the Court, and his opinion in Marbury v. Madison forever cemented the Court as a coequal branch of Government.

Marshall's successes were viewed, then as now, as a function of his formidable personal qualities. He is said to have had a ``first-class mind and a thoroughly engaging personality.'' Thomas Jefferson, for example, tried, in vain, to break his influence on the Court. In writing to James Madison, his successor, about Supreme Court appointments, Jefferson said:

[I]t will be difficult to find a character of firmness to preserve his independence on the same bench with Marshall.

That is Thomas Jefferson speaking about Chief Justice Marshall.

I find myself agreeing with the columnist George Will, who wrote recently in one of his columns:

Marshall is the most important American never to have been President.

William Howard Taft and Charles Evans Hughes also used their individual talents to become great Chief Justices. Taft, the only Chief Justice to serve also as President, which was prior to that, had a singular determination to modernize the Federal courts. He used his energy and his political acumen to convince Congress to establish what is now the Judicial Conference of the United States to administer the Federal courts; enact the Judiciary Act of 1925, which allowed the Court to decide the cases it would hear; and, before he left office, to give the Court its first, and current, permanent home--a stone's throw from where we stand today, across the East Lawn of the Capitol.

A fellow Justice called Charles Evans Hughes ``the greatest in a great line of Chief Justices.'' He was known for his leadership in running the Court and for constantly working to enhance the public's confidence in the Court. His successes were at least partly due to his keen appreciation of the limits of that office. This is what Charles Evans Hughes had to say:

The Chief Justice as the head of the Court has an outstanding position, but in a small body of able men with equal authority in the making of decisions, it is evident that his actual influence will depend on the strength of his character and the demonstration of his ability in the intimate relations of the judges.

Hughes was famous for the efficient, skillful, and courteous way in which he presided at oral argument, ran the Court's conferences, and assigned opinions, calling the latter his ``most delicate task.'' But his greatest service may have been in spearheading public opposition to FDR's court-packing plan.

Our last great Chief Justice, William Rehnquist, may be said to have possessed the best qualities of Marshall, Taft, and Hughes. He had an exceptional mind, an engaging personality, boundless energy, and a courteous and professional manner. These qualities helped him revolutionize Federal jurisprudence, administer the Supreme Court and the court system very efficiently, and interact constructively with those of us here in Congress.

Of course, we will soon vote on the nomination of his successor, Judge John Roberts, who, in one of life's bittersweet turns, served as a young and able law clerk to then-Associate Justice Rehnquist. In meeting with him, and watching his confirmation hearings, I believe Judge Roberts possesses many of the qualities of our great Chief Justices: an impressive legal acumen, a sterling reputation for integrity, and an outstanding judicial temperament. But I want to focus on one quality in particular; and that is, his devotion to the rule of law.

We use that term all the time, but the question is, what does it mean? I focus on the rule of law because of the positions my colleagues have taken during his nomination. One distinguished Member of this body said on the floor that he needed to find out ``whose side'' John Roberts ``is on.'' Another asked Judge Roberts whether, as a general proposition, he will be on the side of the ``big guy'' or the ``little guy.'' Still another insisted that the position to which Judge Roberts is nominated is akin to an elected official; in other words, an elected politician. Comments such as these are based on a fundamental misunderstanding of the role of a judge.

Many of the Founders were politicians, and they, of course, recognized that politics may favor certain constituencies. Judges, however, are not supposed to be on any group's ``side.'' They are not supposed to favor one party's ``little guy'' at the expense of another political party's ``big guy.'' In short, judges are anti-politicians; at least they are supposed to be.

In giving life tenure to Federal judges, the Founders did not want them--did not want them--to exercise the powers of politicians, to whom they had denied life tenure. None of us are given life tenure here, for good reason. As Alexander Hamilton wrote in Federalist No. 78:

It can be of no weight to say that the courts ..... may substitute their own pleasure to the constitutional intentions of the legislature. ..... The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment--

``Will instead of judgment''--

the consequence would equally be the substitution of their pleasure to that of the legislative body.

In other words, judges must only interpret the law, not write it in order to favor one group over another. Judge Roberts understands the role of a judge is that, and he is committed to adhering to it. Here is what he had to say. This was Judge Roberts at his hearing:

Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. ..... and I will decide every case ..... according to the rule of law, without fear or favor, to the best of my ability.

``Without fear or favor, to the best of my ability.''

To put it more simply, he knows if the law favors the ``little guy,'' then the ``little guy'' will win. If the law favors the ``big guy,'' then the ``big guy'' will win. It is as simple and principled as that.

I do not know--none of us do--the mark a Chief Justice Roberts will leave on the Court. With his many fine qualities, he may be a great administrator. He may lead some great reform of our court system. He may revolutionize some area of law. But he will be a successful leader. And I suspect that whatever else, with his total devotion to the rule of law, he will instill in our legal system a renewed appreciation for the role of judges in our Republic and, thereby, keep the Court on the path the Founders intended.

So today, I, like my colleagues, am mindful of the gravity and the privilege of this vote to confirm our 17th Chief Justice. I do so with the absolute conviction that Judge John Roberts meets the measure of his great predecessors, and will lead the Court with judgment, skill, and integrity as befits the third branch of Government--the branch that protects our liberties by insisting that ours is a country of laws and not of men.

I yield the floor.

http://thomas.loc.gov/

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