Executive Session

Floor Speech

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

BREAK IN TRANSCRIPT

Mr. ALLARD. I congratulate my colleague and good friend from South Carolina for a fine statement.

I also rise today in support of President Bush's nomination of Judge John Roberts to serve as Chief Justice of the United States.

President Bush could not have nominated an individual more qualified to be confirmed as the next Chief Justice of the United States. If one were to prescribe the ideal training regimen for a future Chief Justice, Judge Roberts' career may well serve as the model.

Judge Roberts has interacted with the Supreme Court in nearly every conceivable capacity. After law school, he held a prestigious position at the Supreme Court as a clerk to Justice William Rehnquist. He then went on to argue 39 cases before the Supreme Court, representing both public and private litigants. He currently serves as a judge on the U.S. Court of Appeals for the DC Circuit often referred to as the second highest court in the land.

In short, he has worked at the Supreme Court, represented dozens of clients before the Supreme Court, and served as a judge on the court that many consider a stepping-stone to the Supreme Court. I cannot imagine someone more qualified to now serve as Chief Justice of the Supreme Court.

After spending considerable time with Judge Roberts the nominee, I came to be equally impressed with John Roberts the man. He is humble, unassuming, polite, and respectful. In that respect, he shares the values of many of my fellow Coloradans.

The humility he exudes is reflected in his view on the role of judges and the courts. Judge Roberts says:

[A] certain humility should characterize the judicial role. Judges and Justices are servants of the law, not the other way around.

He describes himself as a ``modest judge,'' which is evidenced in his ``appreciation that the role of the judge is limited, that judges are to decide the cases before them, they're not to legislate, they're not to execute the laws.''

This judicial philosophy is imperative to preserving the sanctity of the Constitution that is under attack by a handful of activist judges activist judges who proclaim the Pledge of Allegiance unconstitutional and attempt to redefine the institution of marriage. Unlike these activist judges, Judge Roberts will be on the side of Constitution.

As a Senator representing Colorado, I also appreciate the uniqueness of the issues important to Colorado and the West. The departure of Justice O'Connor, and now Chief Justice Rehnquist, marks the loss of a Western presence on the Supreme Court.

Earlier this year, I asked President Bush to nominate a judge with an understanding of issues important to Colorado and the West, such as water and resource law.

I asked Judge Roberts about his understanding of Western resource and water law. Judge Roberts acknowledged the loss of the Western presence on the Court and assured me that he understands the uniqueness to the West of such issues as water, the environment, and public lands.

He shared his experience working on several cases in the State of Alaska, encompassing issues on rivers, Indian law, and natural resources. He also described his practice of traveling to the site of cases when he believes it is beneficial to his understanding of the facts. This practice is demonstrative of his commitment to fully understanding cases from the perspective of both sides.

I was pleasantly surprised to learn that he currently has a law clerk from New Mexico. Law clerks sit at a judge's right hand and are integral in the judge's decisionmaking process. I am hopeful that Judge Roberts will continue to surround himself with individuals who have a Western perspective.

The Senate Judiciary Committee has reviewed Judge Roberts' record more extensively than any previous Supreme Court nominee. The Administration produced more than 76,000 pages of documents related to Judge Roberts' distinguished career in public service. Judge Roberts testified for more than 20 hours before the Senate Judiciary Committee.

During the extensive review process, the country learned a great deal about Judge Roberts' fitness to serve on the Supreme Court.

We learned about his judicial philosophy, one which is firmly rooted in the rule of law and unwavering in its reverence for the Constitution. I believe his most telling statement was this:

I come before the Committee with no agenda. I have no platform. 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. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record, according to the rule of law, without fear or favor, to the best of my ability, and I will remember that it's my job to call balls and strikes, and not to pitch or bat.

We learned that Judge Roberts subscribes to ``the bedrock principle of treating people on the basis of merit without regard to race or sex.'' His belief in these principles is echoed in praise from several women's and minority groups.

The Minority Business Round Table says ``his appointment to the U.S. Supreme Court would certainly uphold our core American values of freedom, equality and fairness.''

The Independent Women's Forum applauds Judge Roberts as a ``very well qualified candidate with a reputation of being a strict interpreter of the law rather than someone who legislates from the bench.''

We learned that Judge Roberts recognizes the limitations on the government's taking of private property and the role of the legislature in drawing lines that the Court should not. The Court in Kelo permitted the transfer of property from one private party to another private party to satisfy the Constitution's ``public use'' requirement, essentially erasing this fundamental protection from its text. Judge Roberts says the Kelo decision ``leaves the ball in the court of the legislature. . . . [Congress] and legislative bodies in the States are protectors of the people's rights as well. . . . [Y]ou can protect them in situations where the Court has determined, as it did 5-4 in Kelo, that they are not going to draw that line.''

We learned that Judge Roberts will rely on domestic precedent to interpret the U.S. Constitution, not foreign law. Judge Roberts said, ``as a general matter . . . a couple of things . . . cause concern on my part about the use of foreign law as precedent . . . . The first has to do with democratic theory. . . If we're relying on a decision from a German judge about what our Constitution means, no President accountable to the people appointed that judge, and no Senate accountable to the people confirmed that judge, and yet he's playing a role in shaping a law that binds the people in this country.''

Given his keen intellect, impartiality, temperament, sound legal judgment, and integrity, it is not surprising that Judge Roberts enjoyed bipartisan support by the Senate Judiciary Committee. I expect that he will enjoy similar bipartisan support in his confirmation vote tomorrow morning.

I want to commend President Bush on the unprecedented level of bipartisan consultation he engaged in with the Senate prior to this nomination. The Constitution grants the power to the President to nominate and the Senate to provide advice and consent. Although Senators can provide input, the Senate does not co-nominate. When the President sends forth highly qualified candidates, this body has an obligation to the American people to provide a timely up-or-down vote.

I commend my colleagues on the respectful hearings and expeditious process. The Ginsburg Standard was applied to Judge Roberts fair, respectful hearings; no prejudging of cases likely to come before the court; and a timely, up-or-down vote.

With consultations on the next nominee already well under way, and an announcement imminent, I am hopeful that my colleagues will apply the same standards.

Judges are not politicians. The Senate debate should reflect that the job of a judge is to review cases impartially, not to advocate issues. Judges should be evaluated on their qualifications, judicial philosophy, and respect for the rule of law.

I am confident that President Bush will send forth a highly qualified nominee to replace Justice O'Connor, and I am hopeful that my colleagues will continue to build on the spirit of bipartisanship witnessed during this confirmation process.

In conclusion, I cannot imagine a better qualified candidate than Judge Roberts to lead this nation's highest Court into the 21st century. I believe his rhetoric matches his actions.

On behalf of the citizens of Colorado, I thank Judge Roberts for his willingness to serve our country. I am hopeful that the fair and respectful hearings accorded to him by this body will serve to inspire the best and the brightest of future generations to make similar sacrifices in the name of public service.

I strongly urge my colleagues to cast a vote in favor of Judge John G. Roberts' confirmation as the 17th Chief Justice of the United States.

The PRESIDING OFFICER. The Senator from Montana.

Mr. BURNS. Madam President, after listening to my friend from Colorado and my good friend from South Carolina, and then to look at the statement that I have, it appears we are all saying about the same thing, but we just all haven't had the opportunity to say it yet. I will try to put a little different slant on it.

We know the qualifications of this man, Judge Roberts. He has consistently shown me excellence in all aspects of his previous academic and his professional career. He is widely thought of as one of the best legal minds in the country, is highly respected by his colleagues as a fairminded, brilliant, and temperate jurist. He graduated from Harvard College summa cum laude. He did it in only 3 years. He then graduated from Harvard Law School at the top of his class.

Less than 3 years ago, Judge Roberts was confirmed by a unanimous vote to the DC Court of Appeals, which is often referred to, as my friend from Colorado says, as the second highest court in the land. He was also a partner in the prestigious law firm of Hogan & Hartson. He specialized in U.S. Supreme Court litigation, arguing numerous cases before the very Court to which we seek to confirm him today. Further, he had an active practice in appellate law.

I guess what we look for in the men and women we like to see on the country's highest Court is pretty much found in all the qualifications of Judge Roberts. He had worked in the private sector. He also worked in the White House under President Ronald Reagan as Associate Counsel. In addition, he earned a highly prestigious clerkship on the Supreme Court for Chief Justice William Rehnquist--that in 1980 and 1981. Then he was nominated by this President and went before the Judiciary Committee.

We watched those hearings with a great deal of interest. I speak not as a member of that committee or even as an attorney, but what we heard more than anything else--and this is important to my State of Montana--is that we will have a qualified, fair, and competent Supreme Court Justice. That is important. When questioned on all of those qualifications, fairness, and competence, no one challenged any part of those elements. In this respect, Judge Roberts earned the ``well qualified'' rating from the American Bar Association, which is the highest rating that association offers. There was no challenge there.

He continually impressed my colleagues in the Senate by showing his immense knowledge of the law while reflecting his vast understanding of the rule of law and the importance of precedent. There was no challenge there.

What becomes important is that we know that our Supreme Court Justices understand their duty is to interpret the law as it is reflected in the cases that come before them and refrain from personal biases and from legislating or putting their biases into those cases.

He impressed me when he said that he wanted to be the umpire. He didn't want to be the pitcher or the batter; he just wants to call the balls and the strikes. I appreciate that. I spent a lot of years on a football field, and I was one of those who wore the striped shirt. When I look back on that game, maybe our judiciary should be a little bit like this great American sports feature of football. When you think about it, 4 old referees--some of them overweight whom I could talk about--go out on a field of 22 young men who are hostile, mobile, and bent on hurting each other, and we have very few problems because those striped shirts are the arresting officers, the judges, and the penal officers. They do it in 30 seconds, and they do it without very many complaints. Thus the discipline of the game: 22 young men in armor and dead set on winning the contest.

Throughout his hearings before the Judiciary Committee, Judge Roberts proved over and over that he understands the role of the judiciary as an interpreter and not a legislator and why it is important to our governmental system that our judges across America refrain from overstepping their duties. The law is the law. Yes, it can be a subject of interpretation, but look how simple our Constitution is. It doesn't use very many big words. They are very simple. There is a lot of difference between the word ``may'' and the word ``shall,'' and you can interpret them.

He explained his judicial style during his hearings by saying:

I prefer to be known as a modest judge ..... It means an appreciation that the role of the judge is limited, that a judge is to decide the cases before them. .....

They are not to change it or use their biases to execute a judgment. That is pretty important.

When you look at his private life, the values of how he has progressed in his professional life, how he has carried himself and what is personally important to him--family, being a good husband, a provider--we see all of those values that we Americans hold in very high esteem.

Then we move it over into now what kind of a judge will he be. He was questioned on a lot of social issues that the

courts have no business even considering. That falls on us, the elected representatives of America, and our constituency. What their values are should be reflected here. Yet what I heard was questions on human rights.

It is a wonderful thing, this Constitution we have. The Constitution was not written for groups, it was written for you as the individual. It is your personal Bill of Rights and how we structure our Government and the role of each one of those equal entities and how they relate and interact with each other--the executive, the judicial, and the legislative.

It is important to me and the people I represent that we have judges on the bench who will not prejudge cases. He may have a bias one way or the other, but what does the law say as it pertains to me as an individual citizen? This judge made his own commitment to listening, to hearing both sides of the case, and is committed to a fair and reasonable outcome, whether the judge personally likes or dislikes the eventual results. His approach to the law, simply put, is one of restraint. He is shown not to be an ideologue with an intent of imposing his views or his biases on the law.

Will he always rule in a way that would be consistent with my philosophy? I would say no. I have a feeling, though, however he rules will be fair, and he will not compromise any of the principles of the law as written. He explained:

As a judge I have no agenda, I have a guide in the Constitution and the laws that are precedents to the court, and those are what I apply with an open mind after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench.

I am not sure if it is the job to really draw a consensus when you have nine men and women who have strong views of the law and the Constitution and maybe would interpret them in many different ways, but what this man has shown us is strong character, integrity, and his immense knowledge of the law.

Uphold the Constitution, which protects us all--and we have heard a lot about that lately. People who are maybe short of patience would come up to us and ask, What is taking Iraq so long to get a constitution? I said, You know, it took almost 3 years to put ours together.

I still question: If we had had television and news channels, spin meisters, commentators, and reporters who seemed to inject their bias every now and again into the news, I am not real sure we would have a Constitution yet.

This man has shown us he has all the qualifications to be a judge, especially a judge on the highest Court in the Nation.

On behalf of my constituents in Montana, and from all that I can read and all the information I can gather, I strongly urge my colleagues to join me in voting aye on Judge Roberts as Chief Justice of the United States.

When the premise was wrong, he wasn't afraid to challenge the premise. That is unique when coming before any kind of a committee in a legislative body. That is what impressed me. The premise is assumed instead of factual. That is the importance to all of us when making judgments that affect so many of us in our daily lives.

I thank the Chair. I yield the floor, and I suggest the absence of a quorum.

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