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Public Statements

Nomination of John Roberts

Location: Washington, DC

NOMINATION OF JOHN ROBERTS -- (Senate - September 21, 2005)


Mr. KERRY. Mr. President, we all know there are few things the Senate does which are as important as confirming a Supreme Court Justice, let alone the Chief Justice of the United States. We know that making the decision to support or oppose the nomination is both serious and complicated. We do not need to belabor those points.

What we do need to talk about is what kind of process ought to occur, must occur, before a Senator can vote for or against a judicial nominee. What kind of information should be provided? What kind of discourse should we engage in?

I met with Judge Roberts last week. I must say I enjoyed our conversation enormously. He is earnest, friendly, incredibly intelligent, and on a personal level I liked him. He has dedicated his life to the law, has given back to the legal community, and is certainly beyond question a superb lawyer. It may turn out he will be an outstanding Chief Justice. But I can't say with confidence that I know on a sufficient number of critical constitutional issues how he would rule or what his legal approach would be. I have read memos he wrote during the Reagan administration. I have reviewed the limited materials available from his time in the Solicitor General's office, where he worked under Ken Starr, and then in private practice at Hogan and Hartson. I have read the cases he participated in on the DC Circuit. I have listened to as much of the Judiciary Committee hearings as I could and I have reviewed transcripts where I couldn't.

After all of that, I still find something essential is missing, something critical to our democratic process, something to ensure that we have an appropriate understanding of both our courts and our judges and their role in America. That understanding requires a genuine exchange of information and a real development of ideas, similar, in fact, to that which occurs in every argument at the Supreme Court itself or in the appellate courts.

In appellate arguments, judges and Justices question lawyers, probing the depth of their legal arguments, testing their particular legal argument against the court's, or determining how it fits into their interpretation of the Constitution. They determine how interpretive principles apply and how they can reconcile apparently conflicting arguments. They make a judgment about the consequences of a potential outcome. The result in the end is a better understanding of the record before the court and, hopefully, a principled approach to deciding the case.

Judge Roberts' Judiciary Committee hearings, notwithstanding the efforts of the Chair and many other of the Senators partaking in it, continue an increasingly sterile confirmation process: little genuine legal engagement between the questioners and the questioned, no real exchange of information, and too little substantive discussion. The confirmation exercise has now become little more than an empty shell. People are left guessing, hoping they understand the nominee's positions.

The administration's steadfast refusal to disclose documents Judge Roberts worked on while serving as a Deputy Solicitor General in the first Bush administration has only compounded this problem. They claim disclosure of the documents will violate attorney-client privilege. I find that argument absurd. What client are they trying to protect? The Solicitor General represents the people of the United States of America. He is charged with arguing cases on behalf of all Americans. We were Judge Roberts' client when he worked in the Solicitor General's office. We have a right to know what he thought about the arguments he made on behalf of the American people.

When John Roberts served as a Deputy Solicitor General under Ken Starr, he was intimately involved in critical decisions that office made, such as whether to intervene in a pending case; what legal arguments to advance in support of their position; whether to push for Supreme Court review; what the consequences of those arguments or that action would be; how those arguments fit into their theory of constitutional interpretation, whether those arguments reflect the views of the American people--all of these decisions are critical to an individual's thinking, to their approach to the law, to their understanding of public trust and public responsibility, to their understanding of the Constitution itself. All of these decisions helped to shape how Federal law was applied and how our Constitution was interpreted during that period of time.

The fact is, there are bureaucrats, none of whom take an oath, as we do, to uphold the Constitution, who are aware of the contents of those particular memoranda. Yet we, the Senators, who are constitutionally obligated to give consent to this nominee, still do not know what positions Judge Roberts took, the arguments he made, or the thinking behind those arguments.

For example, the Solicitor General's office decided to intervene in Bray v. Alexandria Women's Health Clinic. That case was brought against abortion clinic protesters during the height of clinic violence and bombings. The plaintiffs argued that protesters were violating a Federal antidiscrimination law by blocking access to clinics and inciting violence. The Government intervened and argued that the Federal antidiscrimination law did not apply and, therefore, could not be used to stop the protesters.

Judge Roberts briefed and argued the case for the Government. I believe the arguments advanced by the Government and the consequences of those arguments are troubling, but what we do not know is even more important: What role did Judge Roberts play in making them? What did he think about that approach? Did he consider the consequences on life, limb, and individual? Did he argue for a more narrow or broad interpretation of the law?

At the same time, the Solicitor General's office intervened in a district court case in Wichita, KS, which raised the same issues that the Supreme Court in Bray was facing. The Government tried to get the district court to lift an injunction put in place to protect the safety of the clinic workers and patients. They argued that the plaintiffs could not win and, therefore, the injunction was improper. The district court denied the Government's request and chastised it for unnecessarily endangering people's lives. Those are the real consequences. We ought to know what kind of thinking, what were the legal approaches to the protection of those individuals' lives.

The question still remains, what role did Judge Roberts have in making that decision? What was the legal reasoning that prompted it? Did he consider the real-life dangers that would result from that legal argument?

The Solicitor General's office is never obligated to intervene in private litigation. There are thousands of cases pending every day like these questions. Why did the Government choose to intervene in those particular cases? And, even more importantly, what role did Judge Roberts have in making that decision?

The administration's refusal to disclose those documents, in my judgment, creates a serious roadblock in the Senate's ability to properly evaluate Judge Roberts. But Judge Roberts' refusal to genuinely engage in the confirmation hearings, answer legitimate questions, or at least shed light on them creates a bigger one.

I understand a Supreme Court nominee cannot answer questions about a case in controversy, cannot answer questions about a case that may well come before him, and I understand that he can't promise to resolve a future case in a particular way. I am not asking him to do that. I don't expect that to be the standard of the hearings.

But that does not mean you can't discuss the principles of decided cases and whether you agree with them. What legal principles do you bring to the job? It doesn't mean you should refuse to disclose an approach to constitutional analysis. It doesn't mean you should do nothing more than recite the status of current Supreme Court case law.

This is not the first time the Supreme Court nominees have refused to engage in that kind of meaningful discourse. Justice Souter refused to answer fundamental questions about his judicial philosophy. For that reason I voted against him at that time. I am happy to say I have been surprised, and pleasantly, that my concerns did not come to pass. Justice Thomas also refused to answer fundamental questions about judicial philosophy. As I said at the time, Justice Thomas found a lot of ways to say ``I don't know'' or ``I disagree'' or ``I cannot agree'' or ``I can't say whether I agree.'' I voted against Justice Thomas because again I didn't know what the end product was going to be. I believe I was correct in making that decision.

At the end of the day I find myself in the same position I was with both of these Justices. Notwithstanding Judge Roberts' impressive legal résumé, I can't say with confidence that I know what specific constitutional approach he believes in or what kind of Chief Justice he will be. Will he protect the civil rights and civil liberties we fought for so long and hard, which he acknowledged in the course of the hearings? Will he support the power of Congress to enact critical environmental legislation? Will he be an effective check on executive branch actions? In my judgment, before you vote for Chief Justice, particularly one who may lead a court for potentially 30 years or more, we ought to know the answers to those fundamental questions. In the case of Judge Roberts, we don't.

For example, I don't know how Judge Roberts will approach cases challenging the power of Congress to enact vital national legislation. I understand that terms such as the ``Commerce Clause,'' ``Section 5 of the 14th Amendment,'' and ``Spending Clause'' don't mean a lot to everybody in the country on a daily basis. But however technical and legalistic the discussion of those terms may be, they are critical to us in our judgments as Senators about how our Government functions. A Justice with a limited view of congressional power will undermine Congress's ability to respond to national problems.

For example, under the commerce clause, Congress can only regulate things that affect interstate commerce. When Congress enacted the Violence Against Women Act in 1996, it made numerous very specific findings about how that violence affected interstate commerce. The Court found those findings insufficient and struck down that piece of legislation.

When asked by Senator Specter whether he agreed with the Court in this case, Judge Roberts refused to answer. When asked whether he would have found similar congressional findings insufficient, Judge Roberts refused to answer. I believe those answers ought to have been forthcoming, particularly when they address how Judge Roberts would interpret Congress's fundamental constitutional powers.

Judge Roberts has shed some light himself on his view of the commerce clause because he wrote about it in a dissenting opinion on the DC Circuit. In Rancho Viejo v. Norton, the so-called ``hapless toad case,'' Roberts suggested that the Endangered Species Act, as applied to the California toads at issue, might be unconstitutional because they had an insufficient connection to interstate commerce.

He also suggested there might be other ways of looking at the case to preserve the act's constitutionality. When asked about it during the hearings, and again personally in my own meeting with him, Judge Roberts did not endorse one view or the other. He gave no sense of how he might interpret Congress's power and its limitations.

While his refusal to completely condemn the Endangered Species Act was obviously somewhat reassuring, at the end of the day, I am left without any real understanding of how he would approach a commerce clause question. I have no idea whether he will undermine Congress's ability to pass needed legislation. I have no idea how he will approach challenges to existing Federal environmental laws, such as the Endangered Species Act. Which of the possible approaches he laid out in Rancho Viejo does he believe is the most correct? This certainly creates a risk I personally am unwilling to accept when voting to confirm the next Chief Justice of the United States.

Another area of great concern to me is obviously the area of privacy, an area where Judge Roberts skillfully answered a lot of questions without giving a hint as to his own position. For example, while Roberts admitted that the Court has recognized that privacy is protected under the Constitution as part of the liberty in the due process clause, he refused to give any indication of what he thought about the Court's most recent decisions.

The furthest he went was to say he had no quarrel with the decisions in Griswold and Eisenstadt, yet this kind of endorsement is not reassuring. In his confirmation hearings, Justice Thomas agreed that the Court had found a constitutional right to privacy. Like Judge Roberts, he also stated he had no quarrel with the Court's holding in Eisenstadt. Yet when he got to the Supreme Court, he disavowed the very rights he had said the Constitution protected.

In fact, more recently in Lawrence v. Texas, Justice Thomas stated he could not ``find [neither in the Bill of Rights nor any other part of the Constitution a] general right of privacy.'' The bottom line is I do not know how Judge Roberts will approach those questions with respect to the fundamental right of privacy.

In addition to what I do not know, what I do know about Judge Roberts also raises issues. I know in the early 1980s, while he worked in the Department of Justice and White House Counsel's Office, Judge Roberts took an active role in advocating on behalf of administration policies that would have greatly undermined our civil rights and liberties.

Mr. President, how much time do I have remaining?

The PRESIDING OFFICER. The Senator's time has expired.

Mr. KERRY. Mr. President, may I ask for an additional few minutes? Thank you.

For example, Judge Roberts argued against using the ``effects test'' to determine whether section 2 of the Voting Rights Act was violated. Instead, he believed that an ``intent'' test--requiring proof of a discriminatory motive--should be required, regardless of the fact that many victims of discrimination would be absolutely unable to prove a real discriminatory intent and, therefore, would be unable to enjoy the protections afforded by the act. In some cases, the effect of Judge Roberts' intent test meant that disenfranchised individuals had to prove the motive of long dead officials who had crafted the legislation. Obviously, that is impossible. So he would have set up an unacceptable standard, one that would come between citizens and their constitutionally protected right to fair representation in our democracy.

Judge Roberts also argued that the obligations imposed on educational institutions by title IX should apply only to the specific program that received Federal funding rather than to the whole institution. Again, by limiting the application of an important antidiscrimination law, there is an effect, which is to deny people their constitutional right.

In the area of affirmative action, Judge Roberts argued in favor of limiting race-conscious remedies to instances where individuals were proven to be the victims of identifiable acts of impermissible discrimination.

I realize Judge Roberts took the positions I just described some time ago. I know he told the Judiciary Committee he was simply advocating the views of the administration at the time. But I think those of us who have worked in and around Government for a period of time find it hard to believe that a staffer at Justice or in the White House never wrote a memo that represented some of his views rather than

just administration positions, particularly when the theme of those memos is consistent across the board--strict adherence to narrow principles of law despite their real-world impact, and particularly when some of the memos released from this time include acknowledgements by Judge Roberts that his own position failed to prevail in the internal deliberations.

That was certainly true when he argued, unsuccessfully, within the administration that Congress could strip the Federal courts of jurisdiction over abortion and desegregation cases.

I will conclude, Mr. President. I do not want to abuse the Senator's permissiveness here. Let me close with this particular argument.

Judge Roberts' more recent decision to join to Judge Randolph's opinion in Hamdan v. Rumsfeld is important with respect to the security consequences regarding the military and our soldiers. That opinion gave the President unfettered and unreviewable authority to place captured individuals outside the protections of the Geneva Convention. Six retired senior military officials with extensive experience in legal policy, the laws of war, and armed conflict, have filed a friend-of-the-court brief in the Supreme Court, arguing that Hamdan must be overturned immediately because it directly endangers American soldiers. These are the real effects of these rigid applications of law.

I understand that Judge Roberts felt he could not discuss the case while it was pending before the Supreme Court, but even when asked about his views of the scope of executive power unrelated to the Hamdan case, he was evasive. He did little more than describe the Court's current framework for analyzing assertions of executive power.

As a result, I do not know whether he believes that the state of war is a blank check for the President or whether he would closely scrutinize the legality of executive branch actions at all times. Given the fact that the Hamdan decision placed our troops at risk, I am forced to conclude that some of his future decisions might threaten the security of troops abroad and our security at home.

Now, some may argue that Democrats ought to vote for Judge Roberts because he is the best nominee we could expect from the administration. I cannot agree to confirm the next Chief Justice of the United States simply because the next nominee to the Court may be less protective of our fundamental rights or liberties or less dangerous to national security. Frankly, I am not sure how I would make that determination given the limited record before me.

Some may argue that Democrats should vote for Judge Roberts because of his resume. He obviously is qualified in terms of his legal education and litigation experience. But I do not think that should be the test. A Supreme Court Justice needs more qualifications than an impressive legal resume. They need compassion and sensitivity. They need a clarity with respect to their approach to the Constitution. They need an understanding of the consequences of their decisions and how they further democratic traditions.

As a Senator, I am duty bound to consider each nominee as an individual and how he or she will fit into the current Court--the current closely divided Supreme Court. I have a duty to protect the fundamental rights I believe our Constitution guarantees. I have a duty to preserve the incredible progress that has been made toward the realization of those rights for Americans. I have a duty to safeguard our national security, and to prevent the executive from using war as a blank check to violate both national and international law.

John Roberts will be confirmed. I hope and look forward to decisions that will allay all of my concerns. He may author or join opinions protecting the rights which we hold so dear, and in so doing he may prove all of my concerns to be groundless. I hope so. But the questions I have raised, the absence of critical documents, the lack of clarity surrounding fundamental issues on how he would interpret the Constitution, requires me to fulfill my constitutional duty by opposing his nomination to be the next Chief Justice.

I thank the Chair again, and I thank the Senator for his courtesy.

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