Executive Session

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

BREAK IN TRANSCRIPT

Mr. REED. I thank the Chair.

Mr. President, we are at a moment of great importance in our Nation's history: the chance to choose a new Chief Justice for a lifetime appointment on the U.S. Supreme Court.

The Constitution makes the Senate an equal partner in the appointment and confirmation of Federal judges. Article II, section 2, clause 2, of the Constitution states that the President ``shall nominate, and by and with the Advice and Consent of the Senate, shall appoint ..... Judges of the Supreme Court.''

Neither this clause itself, nor any other text in the Constitution, specifies or restricts the factors that Senators should consider in evaluating a nominee. It is in upholding our constitutional duty to give the President advice and consent on his nominations to Federal courts that I believe we have our greatest opportunity and responsibility to support and defend the Constitution.

This is the first nominee to the Supreme Court that this body has had the opportunity to vote upon in 11 years. Like Members of this Chamber, this is my first opportunity to review and vote on a candidate for the Supreme Court.

My test for a nominee is simple, and it is drawn from the text, the history, and the principles of the Constitution.

A nominee's intellectual gifts, experience, judgment, maturity, and temperament are all important, but these alone are not enough. In this regard, I want to say something about the difference between a nomination to a lower court, including a court of appeals, and to the Supreme Court. The past decisions of the Supreme Court are binding on all lower courts. Therefore, even if a judge on a circuit court disagrees with well-established precedent about the rule of law, he or she is bound to apply that law in any case. However, the Supreme Court alone can overturn established legal precedent. As a result, I need to be convinced that a nominee for Supreme Court Justice will live up to the spirit of the Constitution.

The nominee needs to be committed not just to enforcing laws, but to doing justice. The nominee needs to be able to make the principles of the Constitution come alive--equality before the law, due process, full and equal participation in the civic and social life of America for all Americans, freedom of conscience, individual responsibility, and the expansion of opportunity. The nominee also needs to see the unique role the Court plays in helping balance the often conflicting forces in a democracy between individual autonomy and the obligations of community, between the will of the majority and the rights of the minority. A nominee for Supreme Court Justice needs to be able to look forward to the future, not just backward. The nominee needs to make the Constitution resonate in a world that is changing with great rapidity.

Judge Roberts' testimony before the Judiciary Committee and the legal documents he has produced throughout his career have not convinced me that he will meet this last test, that he will protect the spirit as well as the letter of the Constitution. In Judge Roberts' work as a private lawyer, and in two Republican administrations, he has created a long trail of documents revealing his judicial philosophy to be narrow and restrictive on issue after issue.

He has attempted to distance himself from some of his record by saying he was merely representing his clients and stating his clients' view. I cannot fully accept this argument. With a degree from Harvard Law School and a Supreme Court clerkship, this man could have chosen any legal role he wanted, but he chose to become a political activist in the Reagan and Bush I administrations, to advocate for the ideas he believed in. He knew what he believed then, and he chose his clients to pursue his own constitutional agenda.

We only have insight into this nominee's political activism because of papers obtained from the Ronald Reagan Presidential Library. I will point out, as others have, that our deliberations have been handicapped because this administration has refused to turn over documents that would be illustrative of his views, his ideas, his principles, and his passions. We only received the documents we have on his early career in the Government because they were in the custody of the Ronald Reagan Presidential Library. That, to me, has hobbled his nomination. I hope in the future, when a nominee is sent to us by the White House, they will be willing to release pertinent documents that will illustrate more clearly the positions of that nominee.

The Bush administration, though, repeatedly refused requests to give Senators records from Judge Roberts' time in the U.S. Solicitor General's Office. If Judge Roberts did wish to disassociate himself from the agenda he has advocated throughout his legal career, he had that opportunity during his hearings before the Judiciary Committee. Each of my colleagues on that committee asked him extensive questions about his judicial philosophy, his understanding of important legal issues, and his opinion of major Supreme Court precedents. Judge Roberts had the burden to convince this body that he would be a judicious and balanced member of the Supreme Court that would uphold the spirit of the Constitution. He had numerous opportunities to do so by releasing legal documents he had written and by candidly discussing his views on previously decided cases and broad areas of the law.

However, Judge Roberts failed to pass this test. He failed, in my view, to inform this body of his views on important constitutional issues. He stonewalled the release of important documents. He evaded fair and important questions, instead of offering honest and insightful answers, and he failed to demonstrate that he would uphold not just the letter of the law but also the spirit. As a result, I cannot support his lifetime nomination to the highest Court in America.

Now I would like to turn to some of the areas I have the most concern about regarding this nominee. The Constitution relies on a careful system of checks and balances between the judiciary, the legislature, and the executive. If the judiciary becomes a blank check for executive desires, this careful balance will break down. As a political appointee in the Reagan White House and Justice Department, however, Judge Roberts advocated expansive Presidential powers. For example, in a July 15, 1983, memorandum to White House counsel Fred Fielding, Roberts supported reconsidering the role of independent regulatory agencies like the FCC and the FTC, bringing them within the control of the executive branch. We lack sufficient information about his advocacy within the Reagan and Bush I administrations. But from his short tenure on the court of appeals, we already have two examples of cases where Judge Roberts has deferred to the administration. Judge Roberts has not had the chance to hear that many cases in his brief stint on the DC Circuit. However, these two are troubling, and they both give the President sweeping and unprecedented powers.

In Hamdan v. Rumsfeld, Roberts joined an opinion

that upheld the military commissions this administration has created to try foreign nationals at Guantanamo Bay and agreed with the Bush administration that the Geneva Conventions did not apply to Hamdan. Judge Roberts' majority opinion argued that under the Constitution, the President ``has a degree of independent authority to act'' in foreign affairs and, for this reason and others, his construction and application of treaty provisions is entitled to ``great weight.''

But part of this decision was rejected by concurring senior judge Stephen Williams, a distinguished jurist and Republican appointee. He wrote that the United States, as a signatory to the Geneva Convention, was bound by its ``modest requirements of `humane treatment' and `the judicial guarantees which are recognized as indispensable by civilized peoples.'''

That was not the only case. In another case, Acree v. Republic of Iraq in 2004, Judge Roberts, alone among three judges, supported the Bush administration's position that a Presidential order validly divested the Federal courts of jurisdiction to hear suits against Iraqi officials brought by American prisoners of war for torture they suffered during the first Gulf War. For a man who has so little judicial experience, opinions in support of the administration's expansive powers in two different cases presents a troubling pattern to me.

Finally, if I may add, Judge Roberts' refusal to cooperate in turning over documents from his service in two presidential administrations to this body indicates his support for and compliance in this administration's unprecedented secrecy of executive branch operations. Indeed, memos he wrote in the 1980s show that he agreed with the administration's overly expansive claims of executive privilege to shield documents from the Congress and the public.

A number of cases on Presidential authority are likely to come before the Court in the near future. Although I am reassured that during the hearings Judge Roberts declared his support for the analytical framework established in Youngstown Sheet & Tube Company v. Sawyer, which some in the current administration have not done, I am still concerned about his respect for the balance of power required by the Constitution.

At the same time that Judge Roberts' record suggests he has been excessively deferential to the actions and whims of the executive branch, he has shown a troublesome activism in overruling the sovereign acts of this Congress. In recent years, a narrow majority on the Supreme Court and some lower court judges and right-wing academics and advocates have launched a Federalism revolution, cutting back on the authority of this Congress to enact and enforce critical laws important to Americans' rights and interests. These judges have overturned settled precedent by narrowly construing the commerce clause and section 5 of the 14th amendment, while broadly interpreting the 11th amendment and reading State sovereignty immunity into the text. Judge Roberts' short record raises troubling signs that he may subscribe to this new Federalism revolution.

In one case, Rancho Viejo v. Norton, Judge Roberts issued a dissent from the decision by the full DC Circuit not to reconsider upholding the constitutionality of the Endangered Species Act in this case. In other words, Judge Roberts viewed part of the Endangered Species Act as unconstitutional because he believed its application was an unconstitutional exercise of Federal authority under the commerce clause. This narrow reading of Congress's constitutional authority could undermine the ability of Congress to protect not just the environment but other rights and interests of the American people.

Judge Roberts' reasoning suggests he may subscribe to an extremely constricted interpretation of the commerce clause recently rejected by the Supreme Court in the medical marijuana case, Gonzales v. Raich. There the Court followed longstanding precedent, dating back to the 1940s, to hold that Congress commerce clause authority includes the power to regulate some purely local activities.

And this is not just about endangered species. Congress uses its constitutional authority under the commerce clause for all sorts of purposes in representing the American people. Other environmental protections of clean air and clean water come from the commerce clause. So, too, the commerce clause provides civil rights safeguards, minimum wage, and maximum hour laws, and workplace safety protections.

Although Judge Roberts affirmed that the Constitution does contain a right to privacy, this declaration did not tell me much at all. As we know, at least three Justices on the current Supreme Court believe in a right to privacy but don't believe it extends to a woman's right to choose. Furthermore, Judge Roberts' written record shows that he did not believe there was, in his words, a ``so-called right to privacy'' in the Constitution. This places a higher burden on him to answer questions regarding this constitutional line of cases. Not only did Judge Roberts fail to answer any direct questions on this issue, he also failed to answer questions about whether he would uphold this line of cases as precedents that a generation of Americans have come to rely upon. Senator Specter repeatedly asked questions about how his view on precedent might inform his decisions regarding the constitutional right to privacy. Senator Specter pointed out that Chief Justice Rehnquist had ultimately agreed to uphold the Miranda rule, even though he disagreed with the original Miranda case, because he believed the warnings to criminal subjects had become part of our national culture. Judge Roberts refused to agree that the right to certain types of privacy were equally embedded in our national culture.

In fact, Judge Roberts pointedly refused to answer questions about whether the right to privacy applies to either the beginning or end of life. The only decided case in this area he was willing to talk about was in response to a question from Senator Kohl regarding Griswold v. Connecticut, the case that says the Constitution's right to privacy extends to a married couple's right to use contraception. However, in response to a followup question from Senator Feinstein, Judge Roberts did not make it clear if he agreed with the Supreme Court's opinion in Eisenstadt v. Baird, which upheld the right of single people to use contraception, saying only that ``I don't have any quarrel with that conclusion.'' I found it hard to tell whether he was embracing the right to privacy in this context or just restating what the Supreme Court has said.

So what might this all mean? For me, it is again a question of whether Judge Roberts will uphold not just the letter but the spirit of the Constitution. Since he has a written record demonstrating his lack of support for the so-called right of privacy, I believe Judge Roberts owed us more candid responses to questions regarding these issues. There are a number of cases coming before the Supreme Court this term on these issues, and there will be many more in the future. These cases are not just about parental notification or the relationship between doctors and their patients, they go to core constitutional protections for all members of our society, particularly women.

I am also concerned that as a young lawyer in the Reagan administration, Judge Roberts appears to have joined in its efforts to dismantle the civil rights gains of the 1960s and 1970s.

For example, Judge Roberts wrote vigorous defenses of a proposal to narrow the reach of the 1965 Voting Rights Act. That act is now up for reauthorization, and I am proud to see that this Congress and the country as a whole have come to see how important and successful it has been in giving all Americans the ability to participate in our democracy. And we should not have a Justice who would wish for anything less.

In other civil rights cases, Judge Roberts' record suggests that he wished to limit the Congress's authority to protect and enforce civil rights. Recently released documents show that Judge Roberts, when working in the Reagan Justice Department, disagreed with Ted Olsen, himself a strong conservative, on this issue, with Roberts arguing that Olsen's position wasn't conservative enough. In other documents, he challenged arguments by the U.S. Commission on Civil Rights in favor of busing and affirmative action. He described a Supreme Court decision broadening the rights of individuals to sue States for civil rights violations as causing ``damage'' to administration policies, and he urged that legislation be drafted to reverse it. In the context of the 1984 case of Grove City College v. Bell, he wished to limit the use of title 9, endorsing a narrow reading of that statute that Congress would later overrule in 1988.

Perhaps the issue I am most bothered about in the civil rights area is Judge Roberts' apparent support for court stripping. In the 1980s, there were a number of bills introduced in Congress to effectively gut Brown v. Board of Education. There were other bills proposed to strip courts of the ability to hear cases involving school prayer or reproductive rights, essentially stripping away the right of a citizen to go before a court and claim that they have been aggrieved.

Judge Roberts was supportive of these court stripping bills and wrote several memos trying to influence the administration to support them as well. Although he ultimately appears to have lost the debate in the administration on this issue, I believe these bills would have stripped the Federal courts of the ability to be the final arbiter of what the Constitution means, as well as an assault on the separation of powers.

Perhaps these memos are especially troubling to me since this Congress just passed legislation to strip the courts of the power to hear cases involving the negligence of gun dealers and manufacturers. This legislation is likely to end up before the Supreme Court in the near future and effectively strips ordinary citizens who have been injured from being able to take their grievances to court. Again, this makes me question Judge Roberts' desire to uphold the spirit of the Constitution.

From what we know about Judge Roberts, I am also concerned about his commitment to upholding the constitutional separation of church and state. As is true with many areas of constitutional law, he has not expressed his personal views on these topics in articles or speeches. But the briefs he wrote while in the Solicitor General's Office, if indicative of his views, suggest Judge Roberts would move the Court in a more conservative direction, allowing far more governmental involvement with religion.

One of the geniuses of our Constitution is its separation of church and state. The first amendment has allowed a multitude of religions to flourish in our country. Indeed, I find it ironic, as we try to create a constitution in Iraq that allows a number of religions to flourish, we are not more aware of the importance of our own Constitution in making that possible in America. As well-funded religious movements attempt to inject religion into Government, the Supreme Court remains an important bulwark against going down such a path.

For example, while at the Solicitor General's Office, Judge Roberts authored a brief arguing that school officials and local clergy should be allowed to deliver prayers at public school graduation ceremonies. The Government brief, written by Roberts, contended that religious ceremonies should be permitted in all aspects of ``our public life'' in recognition of our Nation's religious heritage. The brief argued for no limits on the content of prayers, allowing even overtly proselytizing messages. The Supreme Court, in a 5-to-4 opinion written by Justice Kennedy, rejected Judge Roberts' argument on behalf of the Government, finding that it ``turns conventional first amendment analysis on its head.''

The Supreme Court in Lee v. Weisman, and elsewhere, has stated it would not reconsider the longstanding Lemon v. Kurtzman test, which is the benchmark for evaluating issues of church and state relations. The Lemon test forbids Government officials from acting with a religious agenda, endorsing religion, or excessively entangling Government and religion. Roberts has advocated that the Lemon test be scrapped and replaced by a far more permissive standard, the coercion test. Under this view, the Government would violate the first amendment only if it literally established a church or coerced religious behavior. Critics of the Lemon test believe Government should be able to give money to religious schools for religious instruction. They believe it is proper for the Government to display profoundly religious symbols in a way that clearly and unambiguously endorses religion.

I worry that a Court with Judge Roberts has the potential to dramatically change the law with regard to the establishment clause. These changes could lead to many activities which today, wisely, are beyond the endorsement of Government and in the province of religion, as they should be.

As a judge, private lawyer, and Government attorney, Judge Roberts also has repeatedly argued to narrow the protections of the Americans with Disabilities Act. He argued in one case before the

Supreme Court that a woman who developed severe bilateral carpal tunnel syndrome and tendinitis from working on an auto manufacturing assembly line was not a person with a disability because she was not sufficiently limited in major life activities outside of her job.

Judge Roberts has long held these views. In 1982, Judge Roberts wrote a memo while at the Reagan Justice Department criticizing a trial court and appeals court decision that a Federal law required a deaf student to have a sign language interpreter to assist her in school. Even the conservative Justice Department of that administration disagreed with this view and supported the student. This is just one more area where, based on what we know, it appears Judge Roberts would roll back freedoms and rights this Congress and the American people have long fought for.

Some on the Supreme Court, to judge by their dissenting and concurring opinions, would use the bench to impose a dramatic change in the meaning of the Constitution on the American people. With one or two more votes, they could overturn dozens, even hundreds, of important precedents going back decades. They could dismantle rights and freedoms Americans have fought for and come to rely on: the right to privacy, civil rights, the ability of Congress to fight discrimination, to protect consumers, workers, and the environment.

The next Justice appointed will likely sit on the Court for 25, maybe even 35 years. He or she will be in a position to decide important constitutional questions, not only for our generation, but for our children and our grandchildren. The precedents he or she helps to create will bind our country for the 21st century and beyond. They will be the definitive interpretation of our founding document, not just in the Supreme Court, but in all the Federal appellate courts and all the district courts in the land. They will affect every American, from the earliest days of their childhood through the closing days of their life.

The Supreme Court will cast rulings on every issue of importance to the American people. The list is familiar: right to privacy, civil rights, freedom of speech and religious liberty, environmental, labor, and consumer protections. But these are only the issues we are aware of now. The Court will also confront future issues beyond our foresight or imagination. From cloning and bioethics to control of intellectual property and access to information in a global economy, the Supreme Court in the years to come will face challenging issues we cannot yet even conceive.

A lifetime nomination to the Supreme Court presents an awesome power and responsibility, one that transcends our time. The Supreme Court has been a pillar of America's constitutional democracy, and its responsibility for upholding and protecting the Constitution has proven a model for emerging constitutional democracies around the world. Alexander Hamilton wrote in Federalist No. 78, in defending the Constitution's creation of an independent judiciary with lifetime appointments to judges:

This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

I intend to vote against the nomination of Judge Roberts to be the Chief Justice of the U.S. Supreme Court because I am not convinced he will discharge this great responsibility in the way he should. He has not convinced me that he will protect minority communities in our country, that he will halt dangerous innovations from the executive branch, or that he will guard the Constitution and the rights of all individuals. Judge Roberts has not convinced me he will uphold not just the letter of the Constitution, but the spirit of the Constitution as well.

Mr. President, I yield the floor, and I suggest the absence of a quorum.

http://thomas.loc.gov/