Executive Session

EXECUTIVE SESSION

NOMINATION OF JOHN G. ROBERTS, JR., TO BE CHIEF JUSTICE OF THE UNITED STATES--Resumed

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Mr. SMITH. Mr. President, I thank you for the time. It is for me a privilege to speak on behalf of Judge Roberts, but especially because while I have voted on hundreds of nominations for President Clinton and now at the present time President Bush, this is the first time I will cast a vote, an affirmative vote, for a member of the U.S. Supreme Court, and, perhaps, if Judge Roberts lives long enough, the only time I will cast one on behalf of the Chief Justice of the U.S. Supreme Court.

It is for that reason that I asked Judge Roberts to come see me. I enjoyed a delightful visit with him prior to announcing my affirmative decision to vote for him without qualification, without reservation, or any reluctance. He is, in short, a brilliant nominee and I believe he will be a brilliant judge who will make us proud for years and years to come.

When I ran for the Senate, I ran as someone with a hat in the political arena. It is an experience where you state your position, you ask for votes. That is a fundamentally different exercise than being a judge. A judge is not someone who comes as a candidate asking for a vote, posturing in any fashion, and playing politics. The nature of the judicial branch, even the executive branch, is fundamentally different from the judicial branch. Ours is to make law. The president is to execute the law. The judge is to interpret that law.

When I was running for an election certificate, I was asked repeatedly about how I would judge nominees to the Court. The underlying question was always, what is your litmus test? Do you have a single issue litmus test? I promised Oregonians that I would have no litmus test and would vote for qualified Democrats and Republicans from the administration that put them forward because I truly believe we have to remember the characteristic distinctions between the roles of these different branches of Government. What I did tell them is that I would judge them by their intelligence, their integrity, and their temperament. By that standard, I am not sure we will ever have the privilege of voting for a nominee who is more intelligent than Judge John Roberts. His academic credentials are without equal. He is clearly qualified by his schooling and by his service in the legal community. His integrity is beyond reproach as well. He has conducted himself honorably. There has been no hint of any kind of scandal that would disqualify him from holding high public office. I like especially the fact that he and his wife late in life decided to adopt two beautiful children. Every parent in America, I think, squirmed when they watched the concerns the Robertses had when President Bush announced his nomination--the little boy Jack was fidgeting on a public occasion, and all chuckled and recognized the humanity of Judge and Mrs. Roberts, and also related to that experience.

When it comes to temperament, I think there are many qualifications Judge Roberts has that are evident in his entire life. He is overwhelmingly qualified. He has promised fidelity to the law. He has said:

My obligation is to the Constitution, that's the oath.

The quality in his temperament, I think, that was particularly meaningful was the humility he demonstrated in the give and take with our colleagues on the Judiciary Committee. The Judiciary Committee is composed of many very bright men and women, and the back and forth was thrilling to watch for someone who loves constitutional law. He went into a heavyweight ring and he came out the champ. I was impressed and expressed that to him.

The quality of humility is one that I think bears mentioning. Judge Roberts said, in fact, to that committee:

A certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around.

What he is saying is that judges and justices are bound by the law, as we are as individual citizens, and as Members of the Senate we are bound by the law, and so are judges. That humility is important in the life of a judge.

I remember a great public servant once said:

Pride is concerned with who is right, humility is concerned with what is right.

I believe Judge Roberts will be focused on what is right, not who is right. The greatest threat Judge Roberts identified to the law is that of a judicial branch beginning to act more like a political branch.

That is something many of my colleagues have spoken to. It is something I learned about in law school in a constitutional law class. It is called the political question doctrine. What that doctrine refers to is the wisdom that judges need to have, the humility they have to not intersect questions that are in the political arena, part of the discussion, the debate between we the people about where we want to go. So, instead of reaching over the people and deciding it when the issue is ripe for settlement at the ballot box, judges should be restrained in overreaching and doing things from on high that, frankly, disturb the body politic here in our country. I believe Judge Roberts will have that kind of restraint, that kind of humility.

Judge Roberts made a quote in his opening statement, again without notes; something he feels obviously in his bones and knows in his heart and mind. He said:

The one threat to the rule of law is the tendency on behalf of some judges to take that legitimacy--the legitimacy of the law, and that authority--the authority of the law, and to extend it into areas where they are going beyond the interpretation of the Constitution into where they are making the law. Judges have to recognize that their role is a limited one.

An aside, Mr. President, I like his metaphor to an umpire.

Judges have to recognize that their role is a limited one. That is the basis of their legitimacy. Judges have to have the courage to make the unpopular decisions when they have to. That sometimes involves striking down acts of Congress. That sometimes involves ruling that acts of the executive are unconstitutional. That is a requirement of the judicial oath. You have to have that courage.

What I find in that statement is an understanding of the political question doctrine. He is saying we have to be humble in most all instances; to respect the rights of the people. But he is also saying you have to have courage to interpret the Constitution in a way that is faithful to it.

As Cicero once said:

We are in bondage to the law so that we might be free.

I know my time is up, so I yield the floor and urge my colleagues to vote in support of Judge Roberts. If you can't vote for him, it is hard to know for whom one could vote.

I yield the floor.

http://thomas.loc.gov/