Executive Session

EXECUTIVE SESSION

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

BREAK IN TRANSCRIPT

Mr. GRASSLEY. Mr. President, before the Senator from Arkansas goes, I do not have prepared remarks, but to try to put her a little bit at ease about these decisions that we have to make on the Supreme Court because they are very important decisions, I would reflect on some history.

For instance, I probably had the same concerns about President Clinton and Justice Breyer and Justice Ginsburg when I voted for them. Regarding the political positions that Justice Ginsburg stood for in her life before coming to be a judge, I wouldn't agree with many of them. But she was totally qualified to be on the Supreme Court, and I voted for her based upon the proposition that Alexander Hamilton said that the purpose of our activities here of confirming people for the courts is basically two. Maybe there is some historian around who will say GRASSLEY has it all wrong, but I think it was, No. 1, to make sure that people who were not qualified did not get on the courts. In other words, only qualified people get appointed to the courts and that political hacks do not get appointed to the courts.

That is somebody who was around when the Constitution was written, and the Federalist Papers, stating those things about our role. So I have a fairly flexible point of view of how I ought to look at people, even those with whom I disagree.

In regard to what the Senator said about hoping what President Bush would do, or what he has done in the past in regard to these appointments, I would want you to look at that as I looked at President Clinton being elected in 1992. I don't know whether court appointments were an issue in that campaign as they were in 2000 or 2004, but I assume that he had a mandate to appoint whom he wanted appointed, as long as they were not political hacks and as long as they were qualified. So I gave President Clinton that leeway.

I am hoping that even more so with President Bush, since he made very clear to the people of this country that he was going to appoint strict constructionists and people who were not going to legislate from the bench. You may not like what he is doing, but he is doing exactly what he said he was going to do, and I hope that would enhance credibility to the American people of at least one more politician who keeps his word when he is in office. He appoints whom he said he was going to appoint, and that is what he is doing here. It should not be any surprise, and I hope he would be respected for doing that and have leeway in doing that, as long as they are not political hacks but they are qualified.

The other one is, over a long period of time, to maybe take away some worry about whether or not we have to be concerned about this specific person doing exactly what he said he was going to do. I would refer to Judge Souter. I was thinking Judge Souter was maybe not exactly whom I would want on the Court, but he would be pretty close to it. During that debate--I think it was in committee and not on the floor--there was one of the Senators on your side, who I have named but I will not name him this time, who made this point about Justice Souter--that he didn't have respect for the right to privacy and then was a threat to Roe v. Wade.

Here is one Republican who thought maybe Souter would work out OK, from my point of view. There was a Democrat over there who thought Souter would be a threat to Roe V. Wade. We were both wrong.

So it is difficult to predict what people are going to do down the road, so you have to look at are they qualified. I don't have any doubt but that Judge Souter is qualified to be on the Court. But I misjudged him and this Democratic Senator also misjudged him.

The other one is, if you worry about Republicans, to look at what they might appoint versus what Democrats might appoint, and you end up getting something from a Republican you don't like. I assume you are more to the liberal end than the conservative, and you have to stop to think that a Republican appointed John Paul Stevens and a Republican appointed Justice Souter, two of the four most liberal people on the Supreme Court.

To some extent, you get what you want from a Republican President as much as you do from a Democratic President because the other two were appointed by President Clinton.

Then, also, from a historical standpoint, time brings a great deal of balance to the Court. Justices change their views sometimes over a period of 25 or 30 years on the Court. Or Presidents that you might be thinking are appointing conservatives end up appointing liberals--they end up being liberals on the Supreme Court.

History is going to bring balance to the Court. Right now, if Justice Roberts is appointed, we will have four liberals. I don't need to name them. Everyone understands who they are. You are going to have three conservatives: Roberts, Scalia and Thomas. And then you are going to have two moderates, Kennedy and O'Connor--O'Connor for a little while now. So you have some balance, but it is tilted a little bit more toward the liberal side than it is to the conservative side.

Maybe, when President Bush gets done with this next nominee, there will be even more balance, four conservatives and four liberals and one moderate, Justice Kennedy left as a moderate.

Then I keep thinking about what we ought to do if we want to bring balance to the Court, and I hear more about that on your side than I do on this side: Let's just say that Justice Ginsburg, obviously a woman, and Justice O'Connor is obviously a woman; we have two women, so maybe we ought to have a woman appointed to the Supreme Court.

The liberal women of America have Justice Ginsburg as voting the way that they think Justices ought to vote. Maybe the conservative women of America are entitled to a seat on the Supreme Court. We might be fortunate enough to get appointed a very qualified woman who is also a strict constructionist. Then we would have one liberal woman and we would have one conservative woman on the Supreme Court, and we have even more balance brought to the Court.

So you see history kind of takes care of these things. I hope 25 years from now--and you are a lot younger than I am and you will be around here 25 years from now--that you are satisfied that history will take care of all these problems that are brought up about what the Supreme Court might do 10 or 15 years from now.

Mrs. LINCOLN. If the Senator will yield, I want to say how grateful I am to my chairman because he always does provide hopefulness, without a doubt, as well as a bipartisan attitude, in trying to get things done.

I guess you are exactly right. Some of my fear comes from the role that I have in helping to create history and the thoughtfulness that I need to put into it.

Some of it also certainly comes from recognizing that there is a right way and a wrong way to do everything. My hope is, as we go through these processes, that we become a more united body, looking at the right way to go about things and a more unified way.

I am grateful to the chairman. He is always a wonderful Member of this body to work with and he always brings balance and hopefulness and I am glad he is my chairman.

Mr. GRASSLEY. She said she is glad I am her chairman. She means she and I serve on the Finance Committee together. I don't want to mislead the audience, I am not chairman of the Judiciary Committee.

Mr. President, I will proceed, then, with the remarks I wanted to make in regard to my support for Judge John Roberts to be the next Chief Justice of the United States. I do support that nomination. Judge Roberts has earned our vote. He understands the proper role of a judge in our constitutional democracy. He understands the courts are not superlegislatures.

He understands that I am elected to be a legislator, to make law. If people do not like the law I make, they can vote me out of office. But if Judge Roberts makes law, with a lifetime appointment to the Court, he can never be voted out of office unless he is impeached. He understands that the courts are not responsible for addressing every social ill or injustice that, in fact, ought to be settled through law and public policy. He understands that courts do not create new rights. Rather, courts protect those liberties and rights guaranteed by our Constitution and the laws appropriately enacted by Congress and State legislatures.

He also understands that there are a great deal--infinitesimal--number of unenumerated rights out there for you and me that are reserved under our Constitution to the States and to the people thereof.

Judge Roberts said this to the committee:

Judges and Justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make rules, they apply them.

Judge Roberts underscores that ``judges and Justices'' make sure everybody plays by the rules. But these rules limiting the power of Government over the people apply to the courts as well. He made it very clear to us. In Judge Roberts' view, ``Not everybody went to a ball game to see the umpire.''

That is the right approach to the job of a Supreme Court Justice.

Judge Roberts has demonstrated, particularly to the committee, that he understands the limited nature of judges, and especially the humility and the modesty necessary to be the kind of judge we need on our highest Court. Judge Roberts believes that courts may act only to decide cases and controversies. That is exactly what it says in article III of the Constitution. So judges cannot address every unaddressed and unremedied social problem.

Judge Roberts said:

Judges have to decide hard questions when they come up in the context of a particular case. That is their obligation. But they have to decide those questions according to the rule of law, not their own social preferences, not their policy views, not their personal preferences but according to the rule of law.

That is what he told us in committee.

Judge Roberts also said:

We don't turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law. Let me say parenthetically, as I would interpret that, not to make law, but to apply the law.

He went on to say:

They-- meaning judges-- are constrained when they do that. They are constrained by the words that I choose to enact into law in interpreting that law. They are constrained by the words of the Constitution. They are constrained by the precedents of the other judges that became part of the rule of law that they must apply.

This answer he gave to the committee demonstrates that Judge Roberts believes in and will exercise judicial restraint on the bench. This principle of judicial restraint is a cornerstone of our constitutional system, best defined by the tenth amendment--that that power is not specifically given to the Federal Government or reserved to the States and the people thereof. This is the defining characteristic of the judiciary in our Government of divided powers.

In particular, I was pleased when Judge Roberts told the committee that he has no agenda to bring to the bench. I want to remind you what Judge Roberts said in a very short opening statement. To quote a little bit of it:

I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda but I do have a commitment. 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, and I will remember that it's my job to call the balls and strikes and not to pitch or bat.

I was also pleased when Judge Roberts told the committee that:

I had someone ask me in this process: Are you going to be on the side of the little guy? And you obviously want to give an immediate answer. But as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution. That's my oath.

So, obviously, Judge Roberts will strive to uphold the Constitution and the laws of the United States, regardless of his personal beliefs.

I want to take a little time to commend Chairman Specter for conducting a fair and respectful hearing. I am pleased we are looking at a timely up-or-down vote on this nominee. Obviously, so many people for so long were inclined to filibuster judges, and to have this important person--this ``well-qualified'' person--go through in the tradition of the Senate doing what the Constitution says to do, give its advice and consent with a 51-vote margin, is something that surprises me to some extent after the last 2 years. But to have it happen gives me a very warm feeling toward all my colleagues for having that up-or-down vote.

Article II of the Constitution puts the appointment power in the executive, and says the President gets to nominate the person of his choice to the Supreme Court. And President Bush in an unprecedented manner consulted with more than 70 Senators on both sides of the aisle before sending up Judge Roberts' nomination. President Bush didn't have to do that under the Constitution. But it was wise for him to so do.

Even though I have been a member of the Judiciary Committee for my 25th year, I don't remember a President who has talked to me about who I think ought to be appointed. I wouldn't want to say over 25 years that I couldn't have forgotten some Republican or Democrat talking to me about it, but I don't remember. I was consulted by this President on the type of person I thought should be nominated. I was even offered to give names, if I wanted to. And I took advantage of giving my advice to him.

At the hearing which Senator Specter conducted, Senators were able to ask numerous questions of the nominee over a period of 3 days. The Judiciary Committee also reviewed thousands of documents, opinions, and other information produced by the White House.

Throughout the process, Judge Roberts was patient; he was candid and forthcoming in his responses.

Judge Roberts clearly has been the most scrutinized judicial nominee to come before the Senate in my years on the committee. No nominee in these years before the committee has testified as thoroughly and comprehensively on his judicial philosophy as Judge Roberts. I have gone through 10 Supreme Court hearings. Judge Roberts' command of the law and the facts of cases was without precedent.

Still, some of my colleagues objected to Judge Roberts' refusal to review the results of cases. But his refusal was absolutely the right thing to do. Judge Roberts wisely resisted the bait to confuse results and reasoning when it comes to the judicial function. No doubt this greatly frustrated some of my colleagues, particularly on the other side of the aisle, who wanted to impose litmus tests on all judicial nominees, who want to extract commitments from nominees to rule in a predetermined way, their political way, regardless of the facts of the law.

If they can't get that, if they can't get allegiance to their personal political predilection, and work with their far-left activist groups, well, then it seems as though that nominee isn't worthy of their vote.

It stymies me why it would be wrong for the President of the United States to ask a nominee if they support Roe v. Wade or not--and Judge Roberts under oath answered the question of whether the President discussed it with him, and the President didn't discuss it with him--but a lot of Senators were saying, or at least implying, that it would be wrong for the President to get that sort of litmus test type of commitment from a nominee, but some of those very same Senators found it not in the least bothering their conscience to ask him exactly that same question and expect an answer from him.

Frankly, I have no way of knowing how Judge Roberts will rule on the hot-button issues in the next 25 years. I acknowledge that he might rule in ways that will disappoint me in some of the same ways that I was disappointed by Justice O'Connor, Justice Kennedy, and Justice Souter in the years since they have been on the Court. These were all nominees I supported through the Supreme Court confirmation process, but no Senator has a right to impose his or her particular litmus test on an otherwise qualified nominee.

I voted, as I said earlier to the Senator from Arkansas, for Ruth Bader Ginsburg, as did almost all of my Republican colleagues, because we acknowledge the President's--that was President Clinton--primacy in the appointments to the Supreme Court, even where we knew this Justice Ginsburg had a different philosophy. I knew then that I shared very little in terms of political, social, or philosophical views of Ruth Bader Ginsburg. As everyone knows now, Judge Ginsburg was then affiliated very closely with extremely liberal views--views a majority of the American public would deem way out of the mainstream. But the Judiciary Committee evaluated her as a fully competent person to serve on the Supreme Court. And then because of that, because we were doing what we should constitutionally be doing, we voted her in 96 to 3.

As I said in committee, it seems there is a whole new ball game out here when we have an individual with the competence, intelligence, and brilliance of Judge Roberts who nonetheless is going to get a lot of Democrats voting against him. This says far more about the Democrats today than it does about the nominee John Roberts.

The truth is that at another time Judge Roberts would have been confirmed 100 to 0, and properly so, as Justice Scalia 20 years ago was approved almost unanimously.

Today's Democrats have made the needle's eye for approving so small, so impossibly tiny, even the Supreme Court giants of the past could never pass through it.

The reality is that today's Democrat Party seems to be beholden to far left pressure groups who know their radical agenda for America can only be implemented by judicial fiat. I am sad to say that the other party has expressed an unquestionable loyalty to what is probably their base but a base out of touch with the vast majority of Americans.

When we finally cast our vote on the nomination of Judge Roberts, most Senate Democrats will show they will be voting in lockstep with the demands of their leftwing interest groups regardless of how qualified, brilliant, or worthy the nominee is.

On the other hand, I have to admit since I prepared these remarks, I have heard speeches by two Members of that party within the last hour who I did not think would come to the conclusion of voting for him, who have said within the last hour they were going to vote for Judge Roberts. I am pleased with that.

But we still have a situation that has been demonstrated over the last 3 years, up until May of this year when some judges finally got through for the circuits, that judges were being held up for very partisan reasons. The other party and their outside groups have their own agenda. They want the Supreme Court or courts, generally, to implement it, particularly things they might not be able to get through the Congress of the United States.

My colleagues like to say they voted for more judges appointed by Republican Presidents than judges appointed by Democrat Presidents. But my friends on the other side of the aisle who say this, are not telling the whole picture. Sure, they voted for a lot of Republican nominees during my time in the Senate. More Republican nominees have been sent up for consideration than Democrat nominees. The point is, the Democrats have stuck like glue to their outside interest groups through thick and thin and voted in lockstep against more Republican-appointed judges than Republicans have voted against Democrat-appointed judges. That has been by a landslide margin.

The fact is, a majority of the Democrats voted in lockstep against Judge Bork and Justice Thomas. A majority of Democrats voted in lockstep against Justice Rehnquist when he was elevated to Chief Justice.

On the other hand, Republicans voted overwhelmingly for President Clinton's two liberal nominees, Justices Ginsburg and Breyer. So I think my party has shown it is not wedded to the single-issue interest groups.

My friends on the other side of the aisle are weaving revisionist history saying the more conservative Justices of the Court, such as Scalia and Thomas, are the ones who are really the judicial activists on the bench. But we all know this is just not true.

The American people know what is really going on. The liberal leftwing interest groups and Senate enablers, as my friend, Senator Hatch, has sometimes called them, want to win in the courtroom what they cannot win in the ballot box. The Democrats have taken this to a new level. They are already talking about filibustering the next nominee, and we do not even know who that is yet. They are really the ones who are judicial activists.

We should take care because the independence of the Federal judiciary is at stake. Our entire framework of government as we know it and was intended by the Framers is at stake.

We are told the Democrats are laying the groundwork for the next Supreme Court nominee by sending a message, I presume, to the President and those of this party. These messages are an argument that Justice O'Connor must be replaced by a liberal or moderate, and that individual should be a woman or another minority, claiming the balance of the Court must be maintained at all costs.

I hope I made this clear in my comments that Senator Lincoln listened to so closely, and that was that history takes care of a lot of this. Of the four liberals on the Supreme Court today, two were appointed by Republicans, President Ford and President Bush 1. The moderates, O'Connor and Kennedy, were appointed by a Republican President. So we do not know what we get. I wish we did. I wish we could predict 25 years from now, but we can't.

The Democrats did not expect President Clinton to appoint a moderate judge to replace Justice Byron White. I remind my colleagues that Justice White was one of the two Justices who dissented in Roe v. Wade. We Republicans did not say: Well, Justice White is retiring so we need to make sure we appoint another person like Justice White to the Supreme Court. President Clinton wasn't elected to appoint people the Republicans wanted.

The PRESIDING OFFICER. Under the previous order, the time from 6:20 to 7:20 is under the control of the Democrat side, if the Senator would like to ask unanimous consent to finish his remarks.

Mr. GRASSLEY. I ask unanimous consent for 3 or 4 more minutes.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mr. GRASSLEY. So we get appointments such as Ruth Bader Ginsburg, totally qualified to be on the Court. I voted for her; Justice Breyer, totally qualified to be on the Court, I voted for him. We did not try to second-guess President Clinton.

Clearly, Justice Ginsburg does not share Justice White's philosophy. Yet Senate Republicans overwhelmingly confirmed her, with only three ``nay'' votes. The fact is, the President picked people they thought would be good Justices.

The bottom line is we should not be thinking of liberal, conservative, or moderate judges--men or women for that matter. We ought to think of who is qualified. If you are qualified for the job, you ought to get the vote of the Senate. Someone who has the right temperament and integrity on the job is also a requirement. But these liberals I voted for have had that as well.

Judge Roberts recognized this problem, politicizing the Federal bench, and in particular the Supreme Court, when some of my colleagues on the other side of the aisle attempted to pin him down on certain litmus test questions at his nomination hearings. Judge Roberts said:

[I]t is a very serious threat to the independence and integrity of the court to politicize them. I think that is not a good development to regard the courts as simply an extension of the political process. That's not what they are.

Judge Roberts went on to say:

Judges go on the bench and they apply and decide cases according to judicial process, not on the basis of promises made earlier to get elected and promises made earlier to get confirmed. That's inconsistent with the independence and integrity of the Supreme Court.

I am in total agreement with that statement. So when Judge Roberts testifies his oath is to uphold the Constitution and the laws of the United States and that he won't impose a political or social agenda in his decisionmaking, that is what we need to hear. That is because the bottom line is, irrespective of Judge Roberts' impressive resume, brilliant intellect, and personal integrity, he would not be qualified to be a Supreme Court Justice unless he was truly willing and able to subject himself to that judicial restraint.

Judge Roberts says his obligation is to the Constitution and that is his oath. He says he will not impose his personal views on the people but will make decisions in an impartial manner in accordance with the Constitution, the laws enacted by Congress. He says he will be modest in his judging and exercise judicial restraint. He says he will respect the limited role of a judge in society. That is the kind of Justice we need to see on the Supreme Court. That is the kind of Justice the Senate should support.

I yield the floor.

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