Executive Session

Floor Speech

EXECUTIVE SESSION -- (Senate - September 27, 2005)

BREAK IN TRANSCRIPT

Mr. KENNEDY. Thank you, Mr. President.

Mr. President, along with a vote to authorize war, the vote on the nomination of a Supreme Court Justice, especially a Chief Justice, is one of the most important votes that Senators ever cast. Because the Supreme Court is the guardian of our most cherished rights and liberties, the vote on any Supreme Court nominee has enormous significance for the everyday lives of all Americans.

Supporting or opposing a Supreme Court nominee is not--and should not be--a partisan issue. Indeed, in my time in the United States Senate, I have voted to confirm nearly twice as many Republican nominees to the high Court as Democratic nominees. To be sure, there are also some nominees that I have opposed. But that opposition was not based on the political party of the President who nominated them, but on the record--or lack of record--of the testimony and writings of each individual nominee. In hindsight, there are some votes--either for or against--that I wish I had cast differently, but each vote reflected my best, considered judgment at the time, based on the information and record before me. That is what the Constitution calls us to do as Senators.

Yet some of our friends on the other side of the aisle have tried to portray a vote against John Roberts as a reflexive, partisan vote against any nominee by President Bush. Still others have made the sweeping statement that any Senator who can't vote for Roberts can't vote for any nominee of a Republican President. These broad statements are patently wrong and suggest partisan posturing that does serious injustice to the most serious business of giving a lifetime appointment to a Justice on the highest Court in the land.

With full appreciation and awareness of the Senate's solemn obligation to give advice and consent to this all-important Supreme Court nomination by President Bush, I have read the record, asked questions, re-read the record, and asked even more questions. But after reviewing the record such as it is, I am unable to support the nomination of John Roberts to be the Chief Justice of the United States Supreme Court.

Our Founders proclaimed the bedrock principle that we are all created equal. But everyone knows that in the early days of our Republic, the reality was far different. For more than two centuries, we have struggled, sometimes spilling precious blood, to fulfill that unique American promise. The beliefs and sacrifices of millions of Americans throughout the history of our Nation have breathed fuller life and given real world relevance to our constitutional ideals.

With genius and foresight, our founders gave us the tools--the Constitution and the Bill of Rights--that have aided and encouraged our march towards progress. The guarantees in our founding documents, as enhanced in the wake of a divisive Civil War, have guided our Nation to live up to the promise of liberty, equality and justice for all.

We have made much progress. But our work is not finished. We still look to our elected representatives and our independent courts in each new generation to uphold those guiding principles, to continue the great march of progress, and never to turn back or give up hard-won gains.

The commitment to this march of progress was the central issue in the John Roberts hearing. We asked whether he, as Chief Justice, would bring the values, ideals and vision to lead us on the path of continued equality, fairness, and opportunity for all. Or would he stand in the way of progress by viewing the issues that come before the Court in a narrow and legalistic way, thereby slowly turning back the clock and eroding the civil rights and equal rights gains of the past.

We examined the only written record before us and saw John Roberts, aggressive activist in the Reagan Administration, eager to narrow hard-won rights and liberties, especially voting rights, women's rights, civil rights, and disability rights. As Congressman John Lewis eloquently stated in our hearings, 25 years ago John Roberts was on the wrong side of the nation's struggle to achieve genuine equality of opportunity for all Americans. And, despite many invitations to do so, Judge Roberts never distanced himself from the aggressively narrow views of that young lawyer in the Reagan administration.

Who is John Roberts today? Who will he be as the 17th Chief Justice of the United States?

John Roberts is a highly intelligent nominee. He has argued 39 cases before the Supreme Court, and won more than half of them. He is adept at turning questions on their head while giving seemingly appropriate answers. These skills served him well as a Supreme Court advocate. These same skills, however, did not contribute to a productive confirmation process. At the end of the 4 days of hearings, we still know very little more than we knew when we started.

John Roberts said that ``the responsibility of the judicial branch is to decide particular cases that are presented to them in this area according to the rule of law.''

Of course, everyone agrees with that. Each of us took an oath of office to protect and defend the Constitution, and we take that oath seriously. But the rule of law does not exist in a vacuum. Constitutional values and ideals inform all legal decisions. But John Roberts never shared with us his own constitutional values and ideals.

He said that a judge should be like an umpire, calling the balls and strikes, but not making the rules.

But we all know that with any umpire, the call may depend on your point of view. An instant replay from another angle can show a very different result. Umpires follow the rules of the game. But in critical cases, it may well depend on where they are standing when they make the call.

The same is true with judges.

As Justice Oliver Wendell Holmes famously stated: The life of the law has not been logic; it has been experience.'' He also said that legal decisions are not like mathematics. If they were, we wouldn't need men and women of reason and intellect to sit on the bench--we would simply input the facts and the law into some computer program and wait for a mechanical result.

We all believe in the rule of law. But that is just the beginning of the conversation when it comes to the meaning of the Constitution. Everyone follows the same text. But the meaning of the text is often imprecise. You must examine the intent of the Framers, the history, and the current reality. And this examination will lead to very different outcomes depending on each Justice's constitutional world view. Is it a full and generous view of our rights and liberties and of government power to protect the people or a narrow and cramped view of those rights and liberties and the government's power to protect ordinary Americans?

Based on the record available, there is insufficient evidence to conclude that Judge Roberts view of the rule of law would include as paramount the protection of basic rights. The values and perspectives displayed over and over again in his record cast doubt on his view of voting rights, women's rights, civil rights, and disability rights.

In fact, for all the hoopla and razzle-dazzle in four days of hearings, there is precious little in the record to suggest that a Chief Justice John Roberts would espouse anything less that the narrow and cramped view that staff attorney John Roberts so strongly advocated in the 1980s.

On the first day of the hearing, Senator Kohl asked, ``Which of those positions were you supportive of, or are you still supportive of, and which would you disavow?'' Judge Roberts never gave a clear response.

Other than his grudging concession during the hearing that he knows of no present challenge that would make section 2 of the Voting Rights Act ``constitutionally suspect''--a concession that took almost 20 minutes of my questioning to elicit--John Roberts has a demonstrated record of strong opposition to section 2, which is almost universally considered to be the most powerful and effective civil rights law ever enacted. Section 2 outlaws voting practices that deny or dilute the right to vote based on race, national origin, or language minority status--and is largely uncontroversial today.

But in 1981 and 1982, Judge Roberts urged the administration to oppose a bi-partisan amendment to strengthen section 2, and to have, instead, a provision that made it more difficult some say impossible to prove discriminatory voting practices and procedures. Although Judge Roberts sought to characterize his opposition to the so-called ``effects test'' as simply following the policy of the Reagan administration, the dozens of memos he wrote on this subject show that he personally believed the administration was right to oppose the ``effects test.''

When Roberts worried that the Senate might reject his position, he urged the Attorney General to send a letter to the Senate opposing the amendment, stating, ``My own view is that something must be done to educate the Senators. . . .''

He also urged the Attorney General to assert his leadership against the amendment strengthening section 2. He wrote that the Attorney General should ``head off any retrenchment efforts'' by the White House staff who were inclined to support the effects test. He consistently urged the administration to require voters to bear the heavy burden of proving discriminatory intent--even on laws passed a century earlier--in order to overturn practices that locked them out of the electoral process.

Judge Roberts wrote at the time that ``violations of section 2 should not be made too easy to prove. . . .'' Remember, when he wrote those words there had been no African-Americans elected to Congress since Reconstruction from seven of the States with the largest black populations.

The year after section 2 was signed into law, Judge Roberts wrote in a memorandum to the White House Counsel that ``we were burned'' by the Voting Rights Act legislation.

Given his clear record of hostility to this key voting rights protection, the public has a right to know if he still holds these views. But Judge Roberts gave us hardly a clue.

Even when Senator Feingold asked whether Judge Roberts would acknowledge today that he had been wrong to oppose the effects test, he refused to give a yes-or-no answer.

Judge Roberts responded: ``I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.''

So we still don't know whether he supports the basic law against voting practices that result in denying voting rights because of race, national origin, or language minority status.

You don't need to be a voting rights expert to say we're better off today in an America where persons of color can be elected to Congress from any State in the country. You don't need to be a voting rights expert to know there was a problem in 1982, when no African American had been elected to Congress since Reconstruction from Mississippi, Florida, Alabama, North Carolina, South Carolina, Virginia, or Louisiana--where African Americans were almost a third of the population--because restrictive election systems effectively denied African Americans and other minorities the equal chance to elect representatives of their choice.

You don't need to be a voting rights expert to say it's better that the Voting Rights Act paved the way for over 9,000 African American elected officials and over 6,000 Latino elected officials who have been elected and appointed nationwide since the passage of that act.

And you don't need to be an expert to recognize that section 2 has benefited Native Americans, Asians and others who historically encountered harsh barriers to full political participation.

Yet Judge Roberts refused in the hearings to say that his past opposition to section 2 doesn't represent his current views.

Judge Roberts also refused to disavow his past record of opposition to requiring non-discrimination by recipients of federal funds. These laws were adopted because, as President Kennedy said in 1963, ``[s]imple justice requires that public funds, to which all taxpayers . . . contribute, not be spent in any fashion which . . . subsidizes, or results in . . . discrimination.''

He supported a cramped and narrow view that would exempt many formerly covered institutions from following civil rights laws that protect women, minorities and the disabled. Under that view, the enormous subsidies the Federal government gives colleges and universities in the form of Federal financial aid would not have been enough to require them to obey the laws against discrimination. That position was so extreme that it was rejected by the Reagan administration and later by the Supreme Court. Although Judge Roberts later acknowledged that the Reagan administration rejected this view, he would not tell the committee whether he still holds that view today.

He also never stated whether he personally agrees with the decision in Franklin v. Gwinnett, where the Supreme Court unanimously rejected his argument that title IX, the landmark law against gender discrimination, provided no monetary relief to a schoolgirl who was sexually abused by her schoolteacher.

A careful reading of the transcript of his testimony makes clear that he never embraced the Supreme Court's decision to uphold affirmative action at the University of Michigan Law School, nor did he expressly agree with the Supreme Court decision that all children--including those who are undocumented--have a legal right to public education. He emphasized his agreement with certain rationales used by the court in those cases, but he left himself a lot of wiggle room for future reconsideration of those 5-4 decisions.

Finally, a number of my colleagues on the committee asked Judge Roberts about issues related to women's rights and a woman's right to privacy. On these important matters, too, he never gave answers that shed light on his current views.

No one is entitled to become Chief Justice of the United States. The confirmation of nominees to our courts--by and with the advice and consent of the Senate--should not require a leap of faith. Nominees must earn their confirmation by providing us and the American people with full knowledge of the values and convictions they will bring to decisions that may profoundly affect our progress as a nation toward the ideal of equality.

Judge Roberts has not done so. His repeated reference to the rule of law reveals little about the values he would bring to the job of Chief Justice of the United States. The record we have puts at serious risk the progress we have made toward our common American vision of equal opportunity for all of our citizens.

There is clear and convincing evidence that John Roberts is the wrong choice for Chief Justice. I oppose the nomination. I urge my colleagues to do the same.

I suggest the absence of a quorum.

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