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Public Statements

Executive Session

Location: Washington, DC

EXECUTIVE SESSION -- (Senate - September 29, 2005)


Mr. KENNEDY. I thank the Chair.

Mr. President, the Supreme Court of the United States is the ultimate arbiter of our Constitution and, as such, it is the final protector of individual rights and liberties in this great Nation. So when we vote to confirm a justice for a lifetime appointment to the Supreme Court, we have an awesome responsibility to get it right. And when we vote to confirm the Chief Justice of the United States, we have an even greater responsibility, because the stakes are even higher.

The Chief Justice sets the tone for the Court and, through leadership, influences Court decisions in ways both subtle and direct. Indeed, during the course of his confirmation hearings, Judge Roberts expressly acknowledged the important role that a Chief Justice can play in persuading his fellow justices to come along to his way of thinking about a particular case. During my discussion with him of the Supreme Court's landmark decision in Brown v. Board of Education, I mentioned that the decision was a unanimous one. Judge Roberts responded:

Yes. That represented a lot of work by Chief Justice Earl Warren because my understanding of the history is that it initially was not. And he spent--it was re-argued. He spent a considerable amount of time talking to his colleagues and bringing around to the point where they ended up with unanimous court.....

On another day, when I again mentioned Brown and the indispensable role played by Chief Justice Warren, Judge Roberts said:

Well, Senator, my point with respect to Chief Justice Warren was that he appreciated the impact that the decision in Brown would have. And he appreciated that the impact would be far more beneficial and favorable and far more effectively implemented with the unanimous court, the court speaking with one voice, than a splintered court.

The issue was significant enough that he spent the extra time in the reargument of the case to devote his energies to convincing the other justices--and, obviously, there's no arm-twisting or anything of that; it's the type of collegial discussion that judges and justices have to engage in--of the importance of what the court was doing and an appreciation of its impact on real people and real lives.

I have thought long and hard about the exchanges I had with Judge Roberts, and I have read and re-read the transcript and the record. And try as I might, I cannot find the evidence to conclude that John Roberts understands the real world impact of court decisions on civil rights and equal rights in this country. And I cannot find the evidence to conclude that a Chief Justice John Roberts would be the kind of inspirational leader who would use his powers of persuasion to bring all the Court along on America's continued march toward progress.

Therefore, I do not believe that John Roberts has met the burden of proof necessary to be confirmed by the Senate as Chief Justice of the United States. Sadly, there is ample evidence in John Roberts' record to indicate that he would turn the clock back on this country's great march of progress toward equal opportunity for all. The White House has refused to release documents and information from his years in the Reagan administration and in the first Bush administration that might indicate otherwise, but without those records we have no way of knowing.

Both in committee and on the floor, some have argued that those of us who oppose John Roberts' nomination are trying to force a nominee to adopt our ``partisan'' positions, to support our ``causes,'' to yield to our ``special interest'' agendas.

But progress toward a freer, fairer Nation where ``justice for all'' is a reality--not just a pledge in the Constitution--is not a personal ``cause'' or a ``special interest'' or a ``partisan'' philosophy or ideology or agenda.

For more than half a century, our Nation's progress toward a just society has been a shared goal of both Democrats and Republicans. Since Republican Senate Leader Everett Dirksen led his party in supporting the Civil Rights Act of 1964, equal rights for all has been a consensus cause, not a ``partisan cause.'' Since Congress adopted the Voting Rights Act of 1965 and began the process of spreading true democracy to all Americans, it has been a national goal, not a ``special interest'' goal. Fulfilling the Founders' ideals of equality and justice for all is not just a personal ideology, it is America's ideology. Surely, in the 21st century, anyone who leaves the slightest doubt as to whether he shares it fully, openly and enthusiastically should not be confirmed to any office, let alone the highest judicial office in the land.

Our doubts about John Roberts' commitment to continuing our national progress toward justice was, quite appropriately, a major issue in the committee hearings. The fundamental question was whether his record and his answers suggested that he would be an obstacle to that progress, by treating cases before the Supreme Court in a narrow legalistic way that resists and undermines the extraordinary gains of the past.

For all his brilliance and polish, he gave us insufficient evidence to demonstrate that the John Roberts of today is not the ideological activist he clearly was before. The strong evidence from his own hand and mind, the crucial 3-year gap in evidence because of the Administration's refusal to release his papers as Deputy Solicitor General, and his grudging and ambiguous answers at the hearing left too many fundamental doubts, and could put the entire Nation at risk for decades to come.

Some argue that John Roberts was just doing his job and carrying out the policies of the Reagan administration in the early 1980s. But his own writings refute that argument--these were clearly his own views, and were enthusiastically offered as his views. If he didn't agree with those policies as a lawyer in the Justice Department in 1981 and 1982, he would not have applied for the more political and more sensitive job in the White House Counsel's office when he left the Justice Department. He knowingly chose to be a voice for their policies, and often advocated even more extreme versions of those policies.

He certainly knew what was expected of him when he chose to become Deputy Solicitor General in 1989. That position was explicitly created to be the political monitor over all Department of Justice litigation. He was eager to advance the ideological views that his earlier memoranda show he personally supported. He obviously wasn't just ``following orders''--he was an eager recruit for those causes. That was the evidence he needed to overcome in the hearings, and his effort to do so is unconvincing.

I hope I am proven wrong about John Roberts. I have been proven wrong before on my confirmation votes. I regret my vote to confirm Justice Scalia even though he, too, like John Roberts, was a nice person and a very smart Harvard lawyer. I regret my vote against Justice Souter, although at the time, his record did not persuade me he was in tune with the Nation's goals and progress.

But as the example of Justice Scalia shows, and contrary to the assertions of my colleagues across the aisle, I have never hesitated to vote for a Republican President's nominee to the Supreme Court whose commitment to core national goals and values appeared clear at the time. In fact, I have voted for seven of them, more than the number of nominees of Democratic Presidents I have voted for.

Our Senate responsibility to provide advice and consent on the Supreme Court Justices and other nominations is one of our most important functions. The future and the quality of life in this Nation may literally depend on how we exercise it. If we are merely a rubberstamp for the President's nominees, if we put party over principle, then we have failed in this vital responsibility. Even more important, if we go along to get along with the White House, we will be undermining the trust the Founders placed in us, and we will diminish the great institution entrusted to our care. Every thoughtful and reasonable ``no'' vote is a vote for the balance of powers and for the Constitution, so we must never hesitate to cast it when our independent consciences tell us to do so.

I yield the floor.

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