Executive Session

By:  Lindsey Graham
Date: Sept. 27, 2005
Location: Washington, DC




Mr. GRAHAM. Mr. President, as Senator Hatch indicated, I do not think we are ``rolling the dice'' at all to vote for this uniquely qualified man. It is not about whether he gets confirmed. He will be confirmed in the Senate by the close of business on Thursday, unless something major happens that no one anticipates now. Judge Roberts will then become the 17th Chief Justice of the U.S. Supreme Court, and his confirmation will receive somewhere in the range of 70-plus votes probably. So his nomination is not in doubt.

But I think this whole process will be viewed by scholars of the Court and those who follow the confirmation process, in the Senate particularly, in a very serious way because the vote totals do matter. He will get well over 50 votes, but the reasons being offered to vote ``no'' I think suggest a change in standard from the historical point of view of how the Senate approaches a nominee.

One of the things I think they will look at in the Roberts confirmation process is: What is the standard? If it is an objective standard of qualifications, character, integrity, has the person lived their life in such a way as to be able to judge fairly, not to be ideologically driven to a point where they cannot see the merits of the case, then Judge Roberts should get 100 votes. The reason I say that is, not too long ago in the history of our country President Clinton had two Supreme Court vacancies occur on his watch. One was Justice Ginsburg, who sits on the Court now. I believe she received 96 votes. The other was Justice Breyer, who sits on the Court now, who received well over 90 votes. Shortly before that, under President Bush 1's watch, Justice Scalia--a very well-known conservative--received 98 votes.

What is the difference between then and now? I think that is a very important point for the country to spend some time talking about. If he receives 70 or 75 votes, then, obviously, there has been a reduction in the vote total for someone who I think is obviously qualified. But in terms of qualifications, I am going to read some excerpts from what some Senators have said about Judge Roberts.

Senator Biden: Incredible. Probably one of the most schooled appellate lawyers ..... at least in his generation.

Senator Boxer: A brilliant lawyer. Well qualified. Well spoken. Affable. Unflappable.

Senator Corzine: Eloquen[t]. A great lawyer. A great litigator.

Senator Durbin: A judge [who] will be loyal and faithful to the process of law, to the rule of law. A great legal mind.

Senator Feinstein: Very full and forward-speaking. Eloquent. Very precise.

Senator Kennedy: An outstanding lawyer. A highly intelligent nominee. Well-educated and serious. A very pleasant person. Intelligent.

Senator Kerry: Obviously qualified in his legal education and litigation experience. Earnest. Friendly. Incredibly intelligent. A superb lawyer.

Senator Landrieu: Very well credentialed.

Senator Obama: Qualified to sit on the highest court in the land. Humble. Personally decent. Very able. Very intelligent. Unflappable.

Senator Reid: A very smart man. An excellent lawyer. A very affable person. A thoughtful mainstream judge on the D.C. Circuit Court of Appeals.

Senator Schumer: Brilliant. Accomplished. Clearly brilliant. A very bright and capable man. Very, very smart man. Outstanding lawyer. Without question, an impressive, accomplished and brilliant lawyer. A decent and honorable man.

There is more, and I will read those later. I would hope half that could be said about me in any job I pursued. The reason those testimonials were offered is, it is obvious to anyone who has been watching the hearings and paid any attention to what has gone on here in the last week or so that we have in our midst one of the most well-qualified people in the history of our Nation to sit on the Supreme Court--probably the greatest legal mind of his generation or maybe of any other generation. I think when history records President Bush's selection of Judge Roberts, it will be seen historically as one of the best picks in the history of this country.

The man is a genius. I was there in his presence a whole week. He never took a note. He never asked anybody how to say something or what to say, or get any advice from anyone as to how to answer a question. He had almost complete total recall of memos from 20-some years in the past. Not only did he understand every case he was questioned upon without notes, he understood how the dissenting opinions did not reconcile themselves. I have been around a lot of smart people. I have never been around anyone as capable as Judge Roberts.

Now, why would he not get 96 or 98 or 100 votes? Well, some people have said all these glowing things but said that is not enough. There comes the problem. If him being intelligent, brilliant, a superb lawyer, the greatest legal mind of our generation, and well qualified is not enough, what is? What are some of the reasons that have been offered in terms of why anyone could not support this eminently qualified man?

Most of the reasons I think have to do with a subjective analysis of the nominee that apparently was not used before. Because if a conservative went down the road of something other than qualifications, character, and integrity, I doubt if a conservative could have voted for Justice Ginsburg or Justice Breyer, if you wanted to use some subjective test as to how they might vote on a particular case or if you had a philosophical test in place of a qualifications test. I will talk about that a bit later.

One of the reasons people have offered for a ``no'' vote is that during the questioning period he would not give complete answers to constitutional issues facing the country. I think Senator Kerry said: He is a superb, brilliant lawyer, but I can't vote for him because I don't know how he will come out on the great constitutional issues of our time.

Well, I would say that is good. You are not supposed to know how he is going to decide the great constitutional questions of our time because that is done in a courtroom with litigants before the judge. It is not done in a confirmation process where you have to tell people before you go on the Court how you are going to rule.

At least one Senator has said: I can't vote for this man because he won't tell me if he will buy into the right of privacy and uphold Roe v. Wade. If that becomes the standard, the hearing could be limited to one question: Will you uphold Roe v. Wade, yes or no? And that is the end of the deal.

I would argue if we go down that road as a nation, using one case, an allegiance to one line of legal reasoning, or a particular case, whether you uphold it or whether you will reverse it, then you have done a great disservice to the judiciary because we are not looking for judges to validate our pet peeves as Senators in terms of law. We are looking for judges to sit in judgment of our fellow citizens who will wait until the case is being litigated, listen to the arguments, read the briefs, and then decide.

That is not unknown to the Senate. The idea that Court nominees in the past would refuse to give specific answers to specific cases is not unknown at all.

Mr. President, I have excerpts from past nominees and questions that were asked.

I will read some of these excerpts.

This is an abortion question by Senator Metzenbaum to Justice Ginsburg: After the Casey decision, some have questioned whether the right to choose is still a fundamental right. In your view, does the Casey decision stand for the proposition that the right to choose is a fundamental constitutional right?

That is a very direct question: Do you buy into the precepts of Roe v. Wade?

Ginsburg: What regulations will be permitted is certainly a matter likely to be before the Court. Answers depend in part, Senator, on the kind of record presented to the Court. It would not be appropriate for me to go beyond the Court's recent reaffirmation that abortion is a woman's right guaranteed by the 14th amendment. It is part of the liberty guaranteed by the 14th amendment.

She recited the current law and said: There will be lines of attack on the right to privacy. I am going to wait until the record is established.

Good answer.

Voting rights. Senator Moseley-Braun: I guess my concern in Presley really is a matter of your view of the language of the statute, the specific language of section 5 of the Voting Rights Act, and given the facts of that case whether or not the Court gave too narrow an interpretation of the language in such a way that essentially frustrated the meaning of the statute as a whole.

That is a topic before the Senate now.

Ginsburg: I avoided commenting on Supreme Court decisions when other Senators raised that question, so I must adhere to that position.

The death penalty. Senator Specter: Let me ask you a question articulated the way we ask jurors, whether you have any conscientious scruple against the imposition of the death penalty.

Ginsburg: My own view of the death penalty I think is not relevant to any question I would be asked to decide as a judge. I will be scrupulous in applying the law on the basis of the Constitution, legislation, and precedent.

Who does that sound like?

Ginsburg: As I said in my opening remarks, my own views and what I would do if I were sitting in the legislature are not relevant to the job for which you are considering me, which is the job of a judge.

A very good answer.

Ginsburg: So I would not like to answer that question any more than I would like to answer the question of what choice I would make for myself, what reproductive choice I would make for myself. It is not relevant to what I will decide as a judge.

Now, within that answer she does two things that I think are important. She refuses to give a personal view of the death penalty based on the idea that: My personal views are not going to decide how I will judge a particular case. And for me to start commenting in that fashion will compromise my integrity as a judge. She also said: I am not going to play the role of being a legislator because that is not what judges do.

So I would argue not only did she give the right answers, but that is all Judge Roberts has done. When he is advising the President of the United States about conservative policies initiated by the Reagan administration, he is doing so as a lawyer, advising a client. He several times indicated that his personal views about matters are not going to dictate how he decides the case. What will dictate how he decides the case are the facts presented, the law in question, and the record.

All right, more about the death penalty.

Senator Hatch: But do you agree with all the current sitting members that it is constitutional, it is within the Constitution?

Again, talking about the death penalty. This is Senator Hatch trying to get Judge Ginsburg to comment on sitting members of the Court.

Ginsburg: I can tell you that I agree that what you have stated is the precedent and clearly has been the precedent since 1976. I must draw the line at that point and hope you will respect what I have tried to tell you, that I am aware of the precedent and equally aware of the principle of stare decisis.

Now, who does that sound like? That sounds like Roberts on Roe v. Wade, but she is talking about the death penalty.

HATCH: It isn't a tough question. I mean I am not asking----

Ginsburg: You asked me what was in the fifth amendment. The fifth amendment used the word ``capital.'' I responded when you asked me what is the state of current precedents. But if you want me to take a pledge that there is one position I am not going to take, that is what you must not ask a judge to do.

So Senator Hatch was trying to draw her out on the death penalty and follow a particular line of reasoning. She says, no, I am not going to pledge to get on the Court to tip my hand there.

HATCH: But that is not what I asked you. I asked you, is it in the Constitution, is it constitutional?

Again, he was talking about the death penalty.

Ginsburg: I can tell you the fifth amendment reads, no person shall be held to answer for a capital or otherwise infamous crime unless, and the rest. But I am not going to say to this committee that I reject the position out of hand in a case as to which I have never expressed an opinion. I have never ruled on a death penalty case. I have never written about it. I have never spoken about it in a classroom.

SPECTER, on women's rights: Would you think it is appropriate for the court to employ in general terms the original understanding of the 14th amendment which you wrote about in the Washington University Law Quarterly as interpretive to women's rights?

Ginsburg: I have no comment on that, Senator Specter. I have said that these issues will be coming before the Court. I will not say anything in the legislative Chamber that will hint or forecast how I will vote in cases involving particular classifications.

It goes on and on. I have 30 pages here. I will put them in the RECORD. The idea that Judge Roberts, during his time before the committee, was evasive or unresponsive, different than people who came before him, is not supported by the record. What we have in this confirmation process is a frontal assault on the nominee in terms of pledging allegiance to Roe v. Wade, something that didn't happen to Ginsburg as directly.

There is at least one Senator who appears to be basing her vote on the idea that he won't tell me whether he will uphold Roe v. Wade; therefore, I can't vote for Judge Roberts. Again, I argue if that is the standard for a yes or no vote, the standard has changed dramatically. It will be unhealthy for the country as a whole. It will do great damage to the judiciary. It will be a standard Democrats would not want to be applied in the future, I can assure my colleagues.

The other issue is about the idea of civil rights, that somehow Judge Roberts' position during the Reagan administration was unfriendly to civil rights to the point that we can't vote for him. Bottom line is, of all the reasons given, that is the most distorted. That is a reason, that is a cut-and-paste job we have seen too much of to try to cast someone in a bad light for doing what their job required of them. John Roberts was in his 20s, working for the Reagan administration. The idea that he would be advising President Reagan about conservative policy initiatives shouldn't surprise anyone. That was his job.

The issue of civil rights is important to all of us. One of the worst things you can do is try to question someone's character, integrity, to the point that it puts a shadow of who they are in terms of being sensitive to other people based on race or any other difference. The idea that John Roberts, when he was working for the Reagan administration, showed a hard heart and insensitivity to people's ability to fairly vote is a shameful attack, not supported by the record. It is a cut-and-paste job. It is a distortion of what he said then, what he said now, and we ought to reject it.

The issue that was being discussed was whether Ronald Reagan's position of reauthorizing the Civil Rights Voting Act as written was extreme. The Reagan administration said: We will reauthorize the Voting Rights Act as written. The problem in the early 1980s was that you had a Supreme Court decision, the Boulder case, where the Supreme Court said that when it comes to section 2, where you look at the effects of voting patterns and whether there is discrimination being applied based on race and voting and representation, the test to determine that would be the intent test. Did the people who drew the lines setting up the voting procedures and the voting districts, was it their intent to racially discriminate and undermine African-American voting rights in the States in question. That was the test the Supreme Court applied.

Senator Kennedy and others wanted to change that test to the effects test, where you would look at the effects of how the lines were drawn and how the districts were set up. It was an honest debate.

The third concept no one has talked much about is proportionality. The Reagan administration was against proportional representation which is basically an electoral quota. You look at a district based on race, and you come to the conclusion that the elected officials within that district have to mirror the population. In other words, you will have a racial quota. If 40 percent of the district is of a particular race, then 40 percent of the people have to be of that race. I don't think most Americans want that. What we want is people to have a chance to run for office, be successful and vote their conscience, without anything interfering and without bad forces standing in the way. I don't think most Americans want to decide the election based on race before you cast any ballot.

That was the debate in the 1980s. The Reagan administration was against proportionality. They were standing for the Civil Rights Act as written in the 1960s. Then you had the Supreme Court case that interjected a new concept. What Judge Roberts, then a lawyer in the Reagan administration, was advising was that the current law was the intent test. The Reagan administration was supporting the Supreme Court's intent test. How that has been twisted and turned to show or to make the argument that John Roberts is insensitive to people's ability to vote and has stood in the way of people having their fair day at the ballot box, to me is a complete distortion of who he is and the position he took.

At the end of the day, here is what happened. There was a legislative compromise. The Supreme Court intent test was replaced by a totality of the circumstances test which is somewhere between the effects and intent test. I know this is a bit hard to follow, but the bottom line is, there was a compromise legislatively dealing with a Supreme Court decision. John Roberts' legal advice to the Reagan administration was very much in the mainstream of where America is, very much in the mainstream of the Reagan position. To say his legal memos arguing that proportionality was inappropriate and the intent test was based on sound legal reasoning, to somehow go from that legal reasoning to the idea that the man, the person, is insensitive to people's voting rights, again, is quite shameful.

He said in the hearing, it is the right of which everything else revolves around, the ability to go to the ballot box and express yourself.

This has happened to Judge Pickering, and it is going to happen to the next nominee. I will put the Senate on record from my point of view, coming from the South, there have been plenty of sins where I live in the South. The Voting Rights Act has cured a lot of those sins. But one of the things we should not lay on John Roberts is the idea that because he represented the Reagan administration, arguing that the Supreme Court was right, somehow he, as a person, is insensitive to minority rights.

The reason that is a bogus argument is because there is not one person who came before the Senate Judiciary Committee or otherwise to say John Roberts has ever lived his life in a way that would suggest he is insensitive to people's rights based on race. As a matter of fact, one of the witnesses before the committee analyzed the cases Judge Roberts presented to the Supreme Court dealing with civil rights. They found out he won 71 percent of his cases dealing with civil rights issues. That says not only does he understand civil rights law well, he is arguing mainstream concepts. When he looked at how Justices agreed or disagreed with him, apparently Thurgood Marshall agreed with John Roberts, the advocate, over 60 something percent of the time. So if you look at the way he has lived his life, the way he has argued the law and who he has represented, there is not one ounce of evidence to suggest John Roberts the man is in any way insensitive to people's ability to vote based on race.

Tomorrow we will come back and we will look at the other reasons to say no to this fine man. I think we are getting into a dicey area, if we are going to play this game of voting no based on ``you won't tell me how you will vote on a particular case'' or that we take someone's legal advice and use the client's position against that person, that you are going to set a standard that will chill out a lot of people wanting to be members of the Court. There are other things being said about this fine man that would be dangerous if the Senate adopted as the test in the future. I will talk next time about how the sitting Justices would not fare so well. The bottom line is there is a reason that Scalia, Ginsberg, and Breyer received well over 90 votes apiece. They were well qualified. They were people of good character and good integrity.

If this man, John Roberts, after all that has been said about him in terms of his qualifications, doesn't get 90-plus votes, the Senate needs to do some self-evaluation because we have gone down the wrong road.

I yield the floor.


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