Executive Session

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

Mr. LIEBERMAN. Mr. President, I thank my friend from Colorado for his very thoughtful and eloquent statement.

I rise to speak on the President's nomination of John Roberts of Maryland to be Chief Justice of the U.S. Supreme Court. During my 17 years as a Member of the Senate, I have had the opportunity on four previous occasions to consider nominees to the Supreme Court--two from the first President Bush and two from President Clinton. On three of those occasions--Justices Souter, Ginsburg and Breyer--I carried out my constitutional responsibility by giving not only advice but consent. On the fourth, Justice Thomas, I withheld my consent.

I must say that on each of those preceding four occasions, I was struck, as I am again now in considering President Bush's nomination of John Roberts, by the wisdom of the Founders and Framers of our Constitution and by the perplexing position they put the Senate in when we consider a nominee to the U.S. Supreme Court.

As we know, our Founders declared their independence and formed their new government to secure the inalienable rights and freedoms which they believed are the endowment of our Creator to every person. But from their knowledge of history and humanity, and from their own experiences with the English monarch, they saw that governments had a historic tendency to stifle, not secure, the rights and freedoms of their citizens. So in constructing their new government, they allocated power and then they limited it, time and time again. Theirs was to be a government of checks and balances, except for one institution which is, generally speaking, unchecked and unlimited, and that is the Supreme Court.

I understand that Congress can reenact a statute that has been struck down by the Court as inconsistent with the Constitution, but I also know that the Court can then nullify the new statute. I understand, too, that the people may amend the Constitution to overturn a Supreme Court decision with which they disagree, but that is difficult and cumbersome and therefore rare in American history. So the Supreme Court almost always has the last word in our Government. It can be, and has been, a momentous last word, with great consequences for our national and personal lives.

Why then, in constituting the Supreme Court, did our Nation's Founders vary from their system of limited government, of checks and balances? I believe one reason is that they were wise enough to know that to be orderly, to function, a system must have a final credible point where disputation and uncertainty end and from which the work of society and government proceeds. But there was a larger reason, I am convinced, consistent with their highest value, and that was their understanding, again from their knowledge of history and humanity, that freedom can just as easily be taken by a mob of citizens as it can by a tyrannical leader. So they created a Supreme Court that was to be insulated from the political passions of the moment and that would base its decisions not only on transitory public opinion but on the eternal values of our founding documents--the Declaration, the Constitution, the Bill of Rights--and the rule of law.

They did this, these Founders and Framers, not just by giving the Court such enormous power but also by giving its individual members life tenure. The President nominates Justices, the Senate advises and decides whether to consent, and then the Justice who is confirmed serves for as long as he or she lives or chooses to serve, absent the unusual possibly of impeachment, of course; limited in that service only by the Justice's own conscience, intellect, sense of right and wrong, understanding of what the Constitution and law demand, and by the capacity of the litigants who appear before the Court and by the Justice's own colleagues on the Court to convince him or her.

This gets to why I have described the Senate's responsibility to act on nominations to the Supreme Court as perplexing. It is our one and only chance to evaluate and influence the nominees, and then they are untouchable and politically unaccountable. But the Senate is a political body. We are elected by and accountable to the people. So naturally during the confirmation process we try to extract from the nominees to this Court, on this last chance that we have, commitments, political commitments that they will uphold the decisions of the Court with which we agree and overrule those with which we disagree; and they naturally try to avoid making such commitments.

We are both right. Because the Supreme Court has such power over our lives and liberties, we Senators are right to ask such questions. But because the Court is intended to be the nonpolitical branch of our Government, the branch before which litigants must come with confidence that the Justices' minds are open, not closed by rigid ideology or political declaration, the nominees to the Court are ultimately right to resist answering such questions in great detail. I understand that I am describing an ideal which has not always been reached by individual Justices on the Court. But on the other hand, the history of the Supreme Court is full of examples of Justices who have issued surprisingly different opinions than expected, or even than expressed before they joined the Court; and also of Justices who have changed their opinions over the years of their service on the Court. That is their right, and I would add the responsibility the Constitution gives to Justices of our Supreme Court.

Our pending decision on President Bush's nomination of John Roberts to the Supreme Court is made more difficult because it comes at an excessively partisan time in our political history. That makes it even more important that we stretch to decide it correctly and without partisan calculations, whichever side we come down on. Judge Roberts, after all, has been nominated to be Chief Justice of the highest Court of the greatest country in the world, and our decision on whether to confirm him should be a decision made above partisanship.

Today in these partisan times, it is worth remembering that seven of the nine sitting Justices were confirmed by overwhelmingly bipartisan votes in the Senate. Justices O'Connor by 99, Stevens and Scalia by 98, Kennedy by 97, Ginsburg by 96, Souter by 90, and Breyer 89. So it was not always as it is now, and it is now hard to imagine a nominee who would receive so much bipartisan support. That is wrong and it is regrettable.

One reason for this sad turn, is that our recent Presidential campaigns have unfortunately made the Supreme Court into a partisan political issue, contrary to the intention of the Founders of our country as I have described it, with candidates in each party promising to nominate only Justices who would uphold or overrule particular prevailing Supreme Court decisions. I know that is not the first time in our history this has happened.

But it nonetheless today undercuts the credibility and independence of the Supreme Court, and I might add it complicates this confirmation process. Because President Bush promised in his campaign that he would nominate Supreme Court Justices in the mold of Justices Scalia and Thomas, an extra burden of proof was placed on Judge Roberts to prove his openness of mind and independence of judgment.

All of that is one reason why earlier this year I was proud to be one of the ``group of 14'' Senators. I view the agreement of that group of 14 as an important step away from partisan politicizing of the Supreme Court. By opposing the so-called nuclear option, we were saying--7 Republicans and 7 Democrats--that a nominee for a lifetime appointment to the Supreme Court should be close enough to the bipartisan mainstream of judicial thinking to obtain the support of at least 60 of the 100 Members of the Senate. That is not asking very much for this high office.

When I was asked during the deliberation of the group of 14 to describe the kind of Justice I thought would pass that kind of test, I remember saying it would be one who would not come to the Supreme Court with a prefixed ideological agenda but would approach each case with an open mind, committed to applying the Constitution and the rule of law to reach the most just result in a particular case. I remember also saying the agreement of the group of 14 could be read as a bipartisan appeal to President Bush which might be phrased in these words:

Mr. President, you won the 2004 election and with it came to the right to fill vacancies on the Supreme Court. We assume you will nominate a conservative but we appeal to you not to send us an extreme conservative who will confront the court and the country with a disruptive, divisive, predetermined ideological agenda. Send us an able, honorable nominee, Mr. President, who will take each case as it comes, listen fully to all sides, and try to do right thing.

Based on the hours of testimony Judge Roberts gave to the Judiciary Committee under oath, the lengthy personal conversation I had with him, a review of his extraordinary legal and judicial ability and experience, and the off-the- record comments of people who have known or worked with Judge Roberts at different times of his life, and volunteered them to me, and uniformly testified to his personal integrity and decency, I conclude that John Roberts meets and passes the tests I have described. I will, therefore, consent to his nomination.

In his opening statement to the Judiciary Committee on September 13, Judge Roberts said:

I have no platform.

Judges are not politicians who can promise to do certain things in exchange for votes. 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.

I could not have asked for a more reassuring statement.

During the hearings, some of our colleagues on the Judiciary Committee challenged Judge Roberts to reconcile that excellent pledge with memos or briefs he wrote during the 1980s or early 1990s, or opinions he wrote on the Circuit Court in more recent years. They were right to do so. I thought Judge Roberts' answers brought reassurance, if not total peace of mind. But then again, I have no constitutional right to total peace of mind as a Senator advising and deciding whether to consent on a Justice of the Supreme Court.

From his statements going back more than 20 years, I was troubled by, and in some cases strongly disagreed with, opinions or work he had been involved in on fundamental questions of racial and gender equality, the right of privacy, and the commerce clause. But in each of these areas of jurisprudence, his testimony was reassuring.

On questions of civil rights, Judge Roberts told the Judiciary Committee of his respect for the Civil Rights Act and the Voting Rights Act, as precedents of the Court, and he said they ``were not constitutionally suspect.''

He added that he ``certainly agreed that the Voting Rights Act should be extended.''

When asked by Senator Kennedy whether he agreed with Justice O'Connor's statement in upholding an affirmative action program that it was important to give ``great weight to the real world impact of affirmative action policies in universities,'' Judge Roberts answered, ``You do need to look at the real world impact in these areas and in other areas as well.'' He also told Senator Durbin that he believed the Reagan administration had taken the ``incorrect position'' on Bob Jones University.

I have said, and I say again, that I found those answers to be reassuring.

With regard to the right of privacy, Judge Roberts gave a lengthy and informed statement: ``The right of privacy is

protected under the Constitution in various ways.''

He said:

It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects, and papers is protected.

It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.

It protects privacy in matters of conscience.

These are all quotes from Judge Roberts, and I continue:

It was protected by the framers in areas that were of particular concern to them--: The Third Amendment protecting their homes against the quartering of troops.

And in addition the Court--has recognized that personal privacy is a component of the liberty protected by the due process clause.

The Court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well.

And those decisions have sketched out, over a period of years, certain aspects of privacy that are protected as part of the liberty in the due process clause of the Constitution.

I thought that was a learned embrace of the constitutional right of privacy, particularly when combined with Judge Roberts' consistent support of the principle of stare decisis, respect for the past decisions and precedents of the Court in the interest of stability in our judicial system and in our society.

Regarding Roe v. Wade, Judge Roberts specifically said, ``That is a precedent entitled to respect under the principles of stare decisis like any other precedent of the Court.''

When asked by Senator Feinstein to explain further when, under stare decisis, a Court precedent should be revisited, Judge Roberts said:

Well, I do think you do have to look at those criteria. And the ones that I pull from these various cases are, first of all, the basic principle that it's not enough that you think that the decision was wrongly decided. That's not enough to justify revisiting it. Otherwise there would be no role for precedent, and no role for stare decisis. Second of all, one basis for reconsidering the issue of workability (And) ..... the issue of settled expectations, the Court has explained you look at the extent to which people have conformed their conduct to the rule and have developed settled expectations in connection with it.

Again, specifically with regard to Roe v. Wade, I found those answers reassuring.

One of Judge Roberts' circuit court opinions on the commerce clause gave rise to fears that he would constrict Congress's authority to legislate under that important clause. But in his consistent expressions of deference to the work of Congress and his several references to the Supreme Court's recent decision in Gonzales v. Raich, Judge Roberts was once more reassuring.

So I will vote to confirm John Roberts and send him off to the nonpolitical world of the Supreme Court with high hopes, encouraged by these words of promise he spoke to the Judiciary Committee at the end of his opening statement to that committee as follows:

If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that make this land one of endless possibilities for all Americans.

I thank the Chair. I yield the floor.

http://thomas.loc.gov/