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Nomination of John Roberts

Location: Washington, DC

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


Mr. KENNEDY. I thank the Senator for making her statement and particularly her comments about the effort by the Judiciary Committee to seek some 16 of

the 300 cases in which Judge Roberts was involved as a Deputy Solicitor General.

As Judge Roberts pointed out during the hearings, when he was acting as the Solicitor General, he was acting as America's lawyer. That was not being a part of the Republican administration. The Solicitor General is to act as America's lawyer. That is why even Robert Bork, when he was Solicitor General, gave the information to the committee; and Brad Reynolds, who was in the Solicitor General's Office, also gave the materials from the Solicitor General to the committee.

As I have listened to the Senator, this is basically Judge Roberts' job interview for America. The members of the Judiciary Committee are just instruments to try to help the American people understand this nominee. It seems to me if the material had been favorable to Judge Roberts, they probably would have made it available. I imagine the American people are wondering, since others have made it available, why they did not make it available for him and why they denied the American people additional helpful information so they would be able to make up their own minds during the course of the hearing.

I underline the point the Senator made about the importance of information and the importance of documents. Would the Senator not agree this is basically Judge Roberts' interview with America, that the Judiciary Committee is the instrument by which the American people are forming an impression? It is a worthwhile part.

This is no more a client-lawyer relationship than the man in the moon, although some have suggested that. This is a longstanding process where that material has been made available to the Judiciary Committee. I have had the good opportunity to sit for some 20 nominees, I have seen the different procedures followed, and I have seen when it has worked the best. The information has been made available to the American people, and this is the point the Senator is making.

I wanted to ask the Senator if she agreed with me that this is his job interview with America?

Mrs. BOXER. I thank the Senator for asking me this question. I could not agree more. The American people have told us through many polls that they want to have this information. They want to know. They believe it is more important and I believe the number was 77 percent said it was more important to know about where Judge Roberts stood than it was to know about his qualifications. Everyone agrees on his qualifications. The Senator is absolutely right. It is, to me, very disappointing that the judge himself refused to help us.

It is also my understanding--and Senator Kennedy, if I am wrong, I hope you will correct me--that when Judge Rehnquist was up for the Court, he also turned over documents from when he was a lawyer in government. So we had Judge Rehnquist, we had Robert Bork, and that was the right thing to do.

You have to ask the question, What are they hiding? The American people are very smart. They understand it. Why wouldn't one show the committee this information?

Mr. KENNEDY. Will the Senator yield?

Mrs. BOXER. I am delighted to.

Mr. KENNEDY. The point being this was only a request for 16 cases out of the 300 cases he actually participated in directly. There were many more where he expressed an opinion. These 16 directly involve constitutional issues. One was on a case involving affirmative action where the Federal Communications Commission asked the Solicitor General's Office to support their program on affirmative action because no major television stations were available to any of the minorities, Black or Brown, in this country, and they were trying to work out a process where there could be greater availability and they would be able to participate in these various bids that were coming in. They requested the Solicitor General to help them. They had a program. It had been approved. They asked the Solicitor General's Office to help them with their program.

What happened is not only did Mr. Roberts decide he wouldn't help them, he filed a brief for the Solicitor General's Office in opposition to the agency's program that would have opened up greater competition, greater diversity in terms of communication and ownership. That is exceptionally done, rarely ever done. All we were trying to find out was the circumstances--why did this happen, this unique set of circumstances?

Clearly, if we had enough time, I suppose we could have had the Federal communications lawyers at that time come in, and we could have tried to do our own kind of investigation on this particular case. But that is not what these hearings are all about, and that was illustrative of the type of case that was being requested and was denied to the Judiciary Committee, which had a direct relevancy as to his competency--whether we were going to continue to march toward progress in striking down the walls of discrimination, the walls of denial of opportunity, the gender discrimination which we have had in this country and which we made very substantial progress in over the period of the last 30 years with title IX, the actions that we have taken in terms of the 1964, 1965 Act, the 1968 Housing Act.

Mrs. BOXER. I say to the Senator, I think what we have tried to do in this little exchange is make a point to the American people that information was denied to the Judiciary Committee, and that information was denied to the Senate. And, the only information we have is very slim. It is a 2-year stint on the DC Circuit Court of Appeals.

We have a lot of information from 20 years ago. So on the one hand, it is kind of a catch-22 circumstance here. When you go back 20 years ago, everybody says: Oh, that is old information. It does not reflect Judge Roberts. You ask Judge Roberts, he won't answer. He says he was writing for someone else. So we then need to look at the time in the 1990s when he worked in the Solicitor General's office. But, we cannot get that information. So we go around in a circle.

I have to say, if this debate were about a small matter, it would be one thing. But, we are talking about the future of this country. The importance of a position on the U.S. Supreme Court cannot be overstated.

Mr. KENNEDY. Mr. President, will the Senator yield further?

Mrs. BOXER. Mr. President, I am happy to yield.

Mr. KENNEDY. On those memoranda, I think the Senator quite appropriately recorded that he had written those a number of years ago. And he, when he was asked about those memos, indicated he was just working for the administration. Of course, he made the application to work for the administration; he was vetted for the administration; he got the job with the administration. So this was something he very much wanted to do. He was constantly promoted within the administration. He could have very easily worked in another area. As John Lewis pointed out, this was a key moment in American history in terms of the march toward progress and moving ahead in terms of knocking down walls of discrimination.

I say, as a member of the committee, I was disappointed that Judge Roberts would not say whether those were his views today. That was the key. You can accept that, well, he was just an attorney in the Ford administration and was carrying on the administration's policy, although I think that is a stretch in many of the different memoranda that he wrote, when he explicitly said ``this is my opinion'' and ``I believe,'' as compared to ``we believe'' or ``it is our position.'' I think that is very distinguishable.

But, nonetheless, he was asked repeatedly, as I mentioned in my comments earlier, by Senator Kohl, by Senator Feingold, by Senator Biden, and other members of the committee, are those his views today? I expected he would say, ``well, you know, times have changed. I wouldn't have used those words. I wouldn't have come, perhaps, to those conclusions,'' which would have been very understandable. But there is not a single instance--not a single instance--during the course of those hearings where he said: Those are not my views today. I have changed my position.

I think the Senator appropriately points out that aspect of the hearings and why that is troublesome. Because we only can conclude if he does not disown those positions, they may very well be his positions today, which would be very disturbing.

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