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September 22, 2005

Senate Judiciary Committee Hearings on Nomination of Judge Roberts: Day Five, September 22, 2005

September 22, 2005

Senate Panel's Debate on the Confirmation of Judge Roberts

The following is the transcript of the Senate Judiciary Committee hearing on the confirmation of Judge John G Roberts Jr, as provided by CQ Transcriptions.

SPEAKERS:
U.S. SENATOR ARLEN SPECTER (R-PA) CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT) RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
SPECTER: The Judiciary Committee will now proceed with our executive session.

The floor schedule has votes which will be starting shortly, but our committee's going to go right ahead. There may be two votes or three votes, and if there are two votes, we will move to the 20-minute mark or so and vote and come back.

But we have a good bit of work to do this morning, so we will start right off with the committee action on the nomination of Judge John G. Roberts Jr. to be chief justice of the United States.

We do not need a quorum for that, so we can start to speak.

At the outset, I want to compliment my distinguished colleague Senator Leahy for his courage in his vote yesterday. It is not easy to vote in a different manner with the thrust of the party. Some of us have had some experience at that.

And I think when you talk about a Supreme Court nominee you're talking about a vote of conscience and a vote of really great importance. There's no vote more important in the Senate, except for a declaration of war or the practical equivalent, which is a resolution for the use of force, than a vote for a justice on the Supreme Court.

And that is magnified even further when we're talking about chief justice. And that is magnified beyond that when you have somebody who's 50 years of age who has the potential to serve to the year 2040 or perhaps even beyond.

When the roll is called, prospectively next Thursday, I intend to vote aye for Judge Roberts to be chief justice.

He comes to this position with an academic and professional career second to none: Harvard College, Harvard Law, magna cum laude, summa cum laude, 39 cases argued before the Supreme Court of the United States.

And during the course of his extensive testimony, I believe he acquitted himself well. I have long thought that nominees answer about as many questions as they think they have to in order to be confirmed. I believe that Judge Roberts answered a few more; only a few more, but a few more.

Some nominees have refused to comment about cases, even those decided a long time ago in the realm of clear, unchallengeable law. Judge Roberts answered questions if he thought that the case was not likely to come before the court.

His approach of modesty of stability, and away from judicial activism, I think, is a model. Whether it is carried out remains to be seen, but those are the principles.

SPECTER: I was pleased to hear his testimony about his view on flexibility, in his comment that the framers were crafting a document that they intended to apply in a meaningful way down through the ages. So it's not a static doctrine; it's not a matter of original intent.

And he would not quite accept my question about Justice Harlan's language on the Constitution being a, quote, living thing, but he said that the clauses of liberty and due process were expansive and could be applied in a very broad context.

When it came to the major issue of a woman's right to choose, I did not ask him whether he would overrule Roe, because I don't think it appropriate to ask a nominee how he or she would vote on a matter likely or virtually certainly to come before the court.

I believe that his answers on stare decisis showed a very real respect for precedent. And he talked about the factors of reliance and how long the case had been in effect; whether it had been reaffirmed; talked about the potential of Roe and Casey v. Planned Parenthood being a super-precedent.

And when the research was conducted and determined that there were some 38 cases where Roe could have been overruled, I thought it not inappropriate to talk about a super-duper-precedent -- but that's just talk. That's just Judiciary Committee talk.

When you cross the street and go to the columns of the Supreme Court which are lined up with the Senate columns, that's where you stop talking about Confederate money and start talking about real money in terms of what the court will do.

There is considerable discussion about what the early memos meant. And he had talked about a so-called right of privacy and I think he moved categorically away from that, and sincerely so, when he talked about the right of privacy in the Constitution and Griswald and Eisenstat. And I think those were some of the most compelling and direct answers which he gave.

Other memoranda -- candidly, I was not entirely satisfied with his explanation, but I think we have a man who is considerably different than he was when those memoranda were written some 20 years ago.

They were best summarized by Phyllis Schlafly, the president of the Eagles Forum, saying that they were comments of a young bachelor who hadn't had much life experience when he criticized women for being lawyers instead of homemakers. I think he's a different man. He has a wife who's a prominent lawyer and a homemaker as well.

I was dissatisfied with his refusal to answer on the case of U.S. v. Morrison, where legislation was struck down involving the protection of women against violence; didn't think that was going to come up again. I think we were entitled to an answer on the sufficiency of that record, but he chose not to answer.

On the cases involving the Americans for Disability Act, two 5-4 decisions going the opposite way, I was, frankly, disappointed that he wouldn't repudiate this doctrine of congruence and proportionality which was plucked out of thin air. But overall, his performance was more than credible.

One of the factors which I like about the prospect of a chief justiceship for Judge Roberts is his potential to bring the court together. I think that he has a real sense for building a consensus.

And when you have, last year, two 5-4 decisions, the Ten Commandments can be displayed outside on a tower in Texas but not indoors in Kentucky, makes no sense.

The reversals on the Americans for Disabilities Act on an identical record.

And when they talked about being among equals, I think that's a tough job for a man of 50. But he knows the other eight justices very well, having been before them on some 39 occasions. I'm having a little trouble understanding the clock which has jumped back and forth. But I do know that I started about 9:33 and I know it's 9:41 and a half. And Senator Leahy and I have discussed the effort to have speeches today -- 10 minutes in the committee, which will put us well into the afternoon. There will, as we all know, be an opportunity for unlimited speechmaking on the floor, and there's an opportunity for that here, too. But to the extent that we could confine our speeches within 10 minutes, it would help with moving ahead with the business of the committee, because we do have other business even after the Roberts' nominee. I now yield to my courageous colleague, Senator Leahy.

LEAHY: Mr. Chairman, I think that what I'm going to do is yield to the senator of California. And the reason that I'm doing this: She is managing a major appropriations bill on the floor and will have to be there. I'm going to be here all day anyway. So I yield my time to her with the idea that I would then, in rotation, speak.

SPECTER: Thank you very much, Senator Leahy.

SPECTER: Senator Feinstein is recognized.

FEINSTEIN: I listened with some concern to what you said. And I think there's no question that Judge Roberts is an extraordinary person. I think there's no question that he's got many stellar qualities: certainly a brilliant legal mind and a love and abiding respect for the law and, I think, a sense of its scope and its complexity as well.

But before taking the momentous step of agreeing that a nominee should serve as the chief justice of our Supreme Court for what in this case will be over 30 years, I wanted to have a reasonable sense of confidence that he would uphold certain essential legal rights and protections that Americans rely on and rights that reflect the values and ideals that make our country so great.

And I don't ask for certainty. I don't ask for promises, especially as to how a nominee would rule in any case in the future, even one as important as Roe.

But I asked for some ability to find a commitment to broad legal principles that form the basis of our fundamental rights: equal protection under the law and the ability to remedy discrimination; a basic right to privacy that extends from the beginning of life to the end of life; the ability of the American public to elect representatives that have the constitutional right and authority to protect and respond to Americans' safety, social and environmental needs; and a view of executive power that extends deference but within the law.

FEINSTEIN: It's important to know that a justice will be willing to at least start with these fundamental rights.

In making the judgment as to how judge Roberts evaluates these rights, I've got to start with his record. True, a young lawyer in government service; involved, though, in some of the most important issues of the day, issues that continue to be critical even today.

He was in position to advise the most important lawyers of the executive branch. In these positions he advanced arguments opposing many of these fundamental rights. And when asked whether he disagreed with any of those positions today, some even more extreme than his superiors adopted, he did not disagree with virtually any of them.

I asked him about a series of written comments and margin notes that appeared to demonstrate a denigrating view of issues impacting women. I said that it appeared that he used a very acerbic pen or else he really thought that way. Then I gave him an opportunity to distance himself: that he was a young lawyer, that he wouldn't choose to use that language today, whatever it might be, but distance himself.

I expected him to admit that the derogatory comments about women were wrong or that, at least, he regretted making them. Instead he responded, Senator, I have always supported and support today equal rights for women, particularly in the workplace. When Senator Schumer asked him a similar question, he received a disappointing response. Senator Schumer said, So my question is not the substance, but do you regret the tone of some of these memos? Do you regret some of the inartful phrases you used in these memos, a reference to 'illegal amigos' in one memo?

Again, an easy question with an obvious response. Instead, Judge Roberts responded, Senator, in that particular memo, for example, it was a play on the standard practice of many politicians, including President Reagan.

If Judge Roberts had provided different answers to these questions, he could have easily demonstrated to us that wisdom comes with age and a sense of his own autonomy. But he did neither.

Simply put, I didn't find the argument that he was just an employee doing what his boss wanted him to do to be credible.

When discussing his work while political deputy solicitor general, where he argued to overturn Roe and advance other troubling positions, we received similar dispassionate answers.

FEINSTEIN: Not only did he refuse to disavow the tone used in his earlier memos, he also refused to disavow many of the positions he advocated when in the Solicitor General's Office.

I had hoped he would have given some indication that even if he would not tell me what he thought about a particular case, he would tell the committee that he believed in the general right to privacy. But he refused.

Senator Schumer specifically asked whether Judge Roberts agreed there's a general right to privacy provided in the Constitution. His response was, and I quote, I wouldn't use the phrase 'general' because I don't know what that means, end quote.

Then, when I couldn't get a sense of his judicial philosophy, I attempted to get a sense of his temperament and values. And I asked him about the end-of-life decisions: clearly, decisions that are gut- wrenching, difficult and extremely personal.

Rather than talking to me as a son, a husband, a father -- which I specifically requested he do -- he gave a very detached response. Quote: Well, Senator, in that situation, obviously, you want to talk and take into account the views of the heart-felt concerns of the loved ones that you're trying to help in that situation, because you know how they're viewing this, end quote.

I also asked him about how he planned to be in touch with the problems real people have out there. And once again, rather than discussing the importance of reaching out to communities that he normally would not be in contact with and spending time to understand the problems that average people face in my communities, in Bayview Hunters Point, in East L.A., in some of the agricultural areas of our state, he mentioned the attendance of soccer games with his family.

FEINSTEIN: Now, that's a slice of life, true. But it's a very narrow slice of life.

This answer failed to recognize the point of the question and the concern about staying in touch with people who have different life experiences.

Several senators asked him about whether he could admit he made a mistake when he was wrong. Senator Biden asked him about a very specific legal term regarding what kind of review the courts should give to cases involving gender discrimination.

Rather than clarifying his position or admitting he was wrong to argue for a lesser standard, Judge Roberts said he was using two very different legal terms interchangeably. He stated, And, Senator, the memorandum is using heightened scrutiny the way you use strict scrutiny, which is scrutiny that's limited to the basis of race.

And that seems hard to believe that a sophisticated jurist would interchange these two well-defined legal terms. This was brought to my attention by a lawyer. I didn't know about it. I've asked other lawyer. They've all said this is something that you learn in your first year of law school: that they are not, in fact, interchangeable. I posed a series of questions regarding the Plyler case, which had to do with Texas statutes that prohibited illegal alien children from going to public schools. I asked, Do you believe you were wrong? Could you say you were wrong if you believed were you wrong? And, again, I got an unsatisfactory response.

I'd given him the memo. I asked him to review it overnight. And the response I got was, I have no quarrel with the court's decision.

And I was struck as I reread the transcript by his use of this line, I have no quarrel with five times: in the Eisenstat case, in other cases.

And then I went back and read Judge Thomas' transcript. And he used that phrase eight times on eight different topics. And yet when faced with these topics on the court, he took a position indicating that he did, in fact, have a quarrel with the case on abortion, on church and state separation, on precedent, and on the commerce clause. He took a clear position that contradicted his use of the words, I have no quarrel with.

So I came to believe that I have no quarrel with is a kind of term of art of equivocation, frankly.

Judge Roberts used this phrase on five topics: adoption rights, the right to privacy as applied to a single person, Title IX and its remedies, the Americans with Disabilities Act and its adoption to the states, and Plyler.

So does this mean that he, too, will have a quarrel with these issues when they come before him?

Now, I realize this past week, after reading and rereading the transcripts, going over answers to questions, that I knew as little about what Judge Roberts really thought after the hearings as I did before the hearings.

FEINSTEIN: And this makes it very hard for me. Because he was very young when he wrote a lot of these memos. And yet, in the years of the solicitor general, when we asked for 16 cases to look at memos, we were denied those documents which denied us the ability to really see where his thinking had changed or matured.

And, of course, what remains is the few years on the Circuit Court, where virtually all of 50 cases -- over 40 of them were unanimous, and most of them relatively uncontroversial in the nature of the decision.

So I cannot, in good conscience, cast a yay vote. I will cast a no vote. However, I expect that a majority of my colleagues will vote for his confirmation, and I respect their decision.

And I take this position mindful of the fact that Judge Roberts will very likely be our next chief justice. And I hope and I pray that when he serves in that most important post, he will do so in a way that protects and preserves our nation's fundamental strengths and some of our most important laws and protections for people.

I basically believe that once someone has earned a right, they should not lose that right. And the rights coming before the court in this upcoming session and other sessions, I would think, are really critical rights.

And I'm the only woman on this committee. And when I started, I said that was going to be my bar. And he didn't cross my bar. (RECESS)

SPECTER: The Judiciary Committee will resume our consideration of the nomination of Judge Roberts for chief justice.

I've been authorized by Senator Coburn to announce that he is waiving his speech, so we have saved 10 minutes or more there. And a commitment by Senator Kyl to be brief.

But I now yield to the distinguished former chairman, Senator Hatch.

HATCH: Thank you, Mr. Chairman. I think you're putting pressure on me.

(LAUGHTER)

SPECTER: If you suggest pressure, you're not incorrect, but it's not just on you.

HATCH: However, I intended to be very brief myself.

Let me just say this: that I've been around here a long time, I've been involved in every Supreme Court nomination hearing and debate for the last 29 years, and all but one of the current Supreme Court justices, and I have never in my whole time here seen a witness who made such sense and who literally was so superior in every way.

I think anybody can find something in the 20 hours of testimony that they can say, Well, I wonder about that, or, I'm not sure what he means by that. I mean, I think anybody can find something to disagree with. But when you look at that overall testimony and record, it's pretty tough to vote against this man, if you're really serious about being fair on judicial nominations to the Supreme Court.

I have to say he's the best I've seen, and that's really saying something because some of the others have been absolutely tremendous in the past as well.

Let me just say, I just quote David Broder, widely respected journalist, the dean of the journalists here in Washington, D.C., watched these things all these years, and his observation about the Roberts nomination, quote: He is so obviously, ridiculously well- equipped to lead government's third branch that it is hard to imagine how any Democrats can justify a vote against his confirmation, end quote.

Mr. Chairman, I totally agree with that. I don't see how anybody can justify a vote against Judge Roberts, unless they want to nitpick certain areas that you can nitpick on anybody.

We have asked the floor to hold a vote and the committee will recess so that we can vote. There will be a second vote which should start fairly promptly after our arrival to conclude the first vote.

We will then return and proceed with our consideration of Judge Roberts' nomination.

HATCH: With that, I'm going to vote for Judge Roberts. That's no surprise to anybody. But I can tell you, he's as good as it gets.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Hatch, for yielding back seven minutes and 50 seconds.

Senator Leahy?

LEAHY: Thank you, Mr. Chairman.

You know, there are very few decisions we face in the Senate that are as consequential and as enduring as the one this committee considers today.

I actually believe every senator should carefully weigh the matter. They should decide it for himself or herself.

I have approached the nomination of Judge Roberts to be chief justice of the United States with an open mind.

I have served in the Senate for three decades. I have been on this committee most of those 30 years. I am only one vote out of 100, but I recognize that the 100 of us who are privileged to serve in the Senate are entrusted with protecting the rights of 280 million other American. We stand in their shoes in making these decisions.

There is no entitlement to confirmation for lifetime appointments on any court for any nominee of either party, Democratic or Republican.

Now, this nomination presents a close question to me and for me. I will not go into all the detail I did on the Senate floor yesterday.

I want a Supreme Court that acts in its finest tradition as a source of justice. The Supreme Court must be an institution where the Bill of Rights and human dignity are honored.

I have not reflexively opposed Republican nominees or conservative judicial nominees nominated by Republican presidents. I have drawn the line only at those nominees who were among the most ideologically extreme, and who came to us and were told that they were nominated because they were in the mold of activists.

I have noted my extreme disappointment in the administration's lack of cooperation with the Senate on this nomination. Although we started off well with some early efforts at consultation, of course, those efforts did not result in any meaningful discussions.

The president's naming of Judge Roberts as his choice to replace Justice O'Connor came as a surprise, not as a result of meaningful consultation. He then preemptively announced he decided to withdraw that nomination, and instead nominate Judge Roberts to succeed Chief Justice Rehnquist.

There could -- actually, there should -- have been consultations with the Senate on the nomination of someone to serve as the 17th chief justice of the United States.

Yesterday, Chairman Specter and I, along with the Republican and Democratic leaders of the Senate, met with the president about a possible replacement for Justice O'Connor.

I hope that this time the president will follow through, share with us his intentions, and even seek our advice before he acts; that little thing called the advice and consent clause of the Constitution.

LEAHY: I thought they committed another disservice to this nomination by withholding information that has traditionally been shared with the Senate. Senators' request for information was treated with very little respect. They stonewalled entirely the narrowly tailored request for the most important work papers from John Roberts' time as the principle deputy to Kenneth Starr at the Solicitor General's Office.

Of course, the precedents from Chief Justice Rehnquist's hearing and others go just the other way. Previous presidents have paid the appropriate notice to the Senate and to the constitutional process by working with the committee to provide such material.

So, accordingly, I would understand if a senator were to vote against the president's nomination of Judge Roberts on this basis alone. I would hope the administration and any future administration would work with us and cooperate on other nominations.

I also feel some of my friends on the other side of the aisle disserved the confirmation process by urging the nominee not to answer questions during the course of his hearing. Unfortunately, as I've told Judge Roberts, he probably heeded that advice to too great a degree. I think if he had not heeded their advice he could have been more forthcoming in his answers.

The president asked for dignified hearings and an up-or-down vote. That's what we've done, this committee. Hearings were dignified and they were fair.

And I want to thank and commend the public witnesses who appeared before the committee. They were extraordinary and helpful in underscoring what's at stake for all Americans with these nominations.

No one who heard Congressman John Lewis or Wade Henderson or Judge Nathaniel Jones can doubt the fundamental importance of our refusal to retreat from our nation's commitment to civil rights.

Coach Roderick Jackson and Beverly Jones reminded us how courageous Americans are still opening doors and righting wrongs, but they're doing it through our courts and they must have the ability to do it through our courts, whether they're handicapped in any way, whether they are of a different color or a different religion or anything else. They must be able to have access to our courts.

Anne Marie Tallman of MALDEF reflected what's at stake when undocumented immigrant children are denied education and benefits. They should be available to every single child in our great country.

LEAHY: As I consider this nomination, I reflect on the hearings and my meetings with Judge Roberts. In particular, I was encouraged by his answer to my question about providing the fifth vote needed to stay an execution before the justices vote to review a capital case.

That's not always been the practice of late. He was right to recognize the illogic, if not the injustice, of having the necessary votes to review the case, lacking that one necessary vote to allow that review to take place, especially when somebody's life hangs in the balance, literally.

He testified about his admiration for Justice Robert Jackson, Justice Jackson's protection of fundamental rights, including unpopular speech, under the First Amendment -- we all know you really don't have to protect popular speech; the First Amendment is there to protect unpopular speech -- his willingness to serve as a check on presidential authority, among the finest actions by any justice in our nation's history. I expect Judge Roberts to act in the tradition of Justice Jackson and serve as an independent check on the president, no matter who the president might be. When he joins the Supreme Court, he can no longer simply defer to presidential authority. We know that we are in a period in which the executive has a complicit and often compliant Republican Congress who refuses, in most instances, to serve as a check and balance.

Without the courts to fulfill that constitutional role, excess will continue, the balance will be tilted and the American people will suffer.

When Congress acts to protect the interests of Americans through the commerce clause, through the spending powers, through the 14th Amendment, that demands respect.

I'm encouraged by Judge Roberts' assurances that he'll respect congressional authority. His steadfast reliance on the Supreme Court's recent race decision as significant precedent, contravening further implications from Lopez and Morrison, was intended to reassure us that he will not join what has been an assault in the court on congressional authority.

I heard him. I rely on him to be true to the impressions he created.

At the hearing, he took pains to assure me and Senator Feinstein, among others, as chief justice, he'd respect congressional authority. To do otherwise would greatly undermine Congress's ability to serve the interests of Americans to protect the environment, assure equal justice, provide health care and other basic benefits.

I think he knows that now. I think he knows that now.

LEAHY: The chairman pushed him, quite appropriately, on these issues, as did others.

As chief justice, John Roberts will be responsible for the way in which the judicial branch administers justice for all Americans.

He must know in his core that the words that are engraved in the Vermont marble on the Supreme Court building are not just under law, they say equal justice under law. It's not just the rule of law that he must serve, but the cause of justice under this great charter.

And in our country, where equal justice has only been a matter of evolution, we must continue that evolution. We must guarantee it. We must guarantee it.

After hours of private meetings with Judge Roberts and hours of public testimony, I am called upon to cast a vote in this important nomination. In my judgment, in my experience, but especially in my conscience, I find it better to vote yes than no. And ultimately, my Vermont roots have always told me to go with my conscience.

Judge Roberts is a man of integrity. I take him at his word that he does not have an ideological agenda. For me, a vote to confirm requires faith that the words he spoke to us have meaning. I take him at his word that he will steer the court to serve as an appropriate check on potential abuses of presidential power.

I have great respect for those who have come to different conclusions. I readily acknowledge the unknowable at this moment: that perhaps they are right and I am wrong. Only time will tell.

The Senate will vote next week. But only later will we know if Judge Roberts proves to be the kind of chief justice he says he will be, if he truly will be his own man.

I hope, but I trust -- I trust that John Roberts will be, and that's why I will vote yes.

SPECTER: Thank you very much, Senator Leahy. Thank you.

Senator Grassley?

GRASSLEY: Mr. Chairman, I'm pleased to speak in support of Judge John Roberts to become chief justice of the United States.

And, obviously, to even those who might oppose him Judge Roberts is an intelligent and experienced lawyer. I think people will even see him as a fair judge. They, obviously, see him as a dedicated public servant. And, obviously, whether you're for or against him, you see him as a person with a brilliant mind.

By now, we're all very familiar with Judge Roberts' impressive resume and his stellar performance before this committee. Judge Roberts has set the record straight that he is prepared to be chief justice. He possesses the knowledge of and respect for the Constitution that is necessary for all people on the Supreme Court.

GRASSLEY: He understands and respects the separate functions of the judicial and political branches of government; at least that came out very clearly in his testimony to us.

He expresses the views of an individual who is truly committed to the rule of law and the United States Constitution and looking at a case based upon what the facts are of that case and how the law applies to it. Consequently, then, I believe he's going to be a practitioner of what I want: a person who is going to exercise judicial restraint and leave legislating to those of us who were elected to legislate, those of us that can be removed, because if we make a decision that people don't like, they can vote us out of office, whereas legislating from the bench does not lend itself to the representative principle of government.

He emphasizes the importance of modesty and humility in the role of a justice. I believe that at his hearing last week, Judge Roberts demonstrated that he will be fair and open-minded and will approach cases without bias and without a personal agenda, and that was a specific question that I asked him.

This is the kind of a judge, then, that everyone, both liberals and conservatives alike, should want on the bench. But it's quite obvious that some would like to have people that are more ambitious in legislating than maybe what Judge Roberts would do.

The reality is that we can't always accurately predict how an individual is going to make decisions once he or she gets on the bench.

And I often use Justice Souter and my thinking that he was going to be a person that was going to be fairly moderate or even conservative when he got on the bench, and how really wrong I was in voting for him; probably should have voted for him based on his qualifications to be a jurist, but he sure turned out different than what I was led to believe in his testimony.

GRASSLEY: Now, there's a Democratic member of this committee that said something about Judge Souter; that he was going to be a threat to privacy -- or, I mean, didn't have proper respect for privacy within the Constitution, and might be a threat to Roe v. Wade.

Well, both Chuck Grassley and that Democratic member of this committee were both very wrong about Judge Souter. So in the end, you have to trust our judgment, and sometimes that judgment's going to be wrong. But that's what the confirmation process is about. And it basically gets you back to where Alexander Hamilton said we were meant to be in the first place anyway, and that is to make sure that the confirmation process protects us against political hacks getting on the Supreme Court or people who are totally incompetent.

And so we might judge people, like I would Souter, different than what I thought he was going to be, but I don't question his competence to be on the Supreme Court. But when he said he was going to follow the trail of Justice Harlan, he surely didn't turn out that way.

So sometimes we're wrong, whether you're Republican or Democrat.

But the plain truth is that President Bush has made a very good choice putting a competent person on the Supreme Court. He won't impose his personal views on the people but will make decisions that should be decided in an impartial manner.

I believe -- and hopefully won't come back here 10 years from now and say I was wrong about him like I was about Souter -- but I believe he will carry out the responsibilities of a chief justice in an honorable, fair and effective manner, and much along the lines of what he testified to us that he was going to approach the law and the Constitution, which then seems to me to have been what Judge Roberts has done on his period that he's been on the Circuit Court now.

GRASSLEY: We should all be happy with this nominee. And I'm pleased to support Judge Roberts. And I urge my colleagues to support his nomination as well.

And I would like to speak to just Republican members of the committee at this particular time and not the Democratic members.

LEAHY: Should we stop listening?

GRASSLEY: Yes, you can stop listening.

(LAUGHTER)

And that is that I sense in viewing the ideological groups and the single-issue groups that have come out against Judge Roberts, and then Democratic members' response to that, that they seemed to have more loyalty to their ideological and single-interest groups than we do to ours.

And I would use as an example the opposition, not today but over a period of weeks now, that has been expressed by some Democratic members against Judge Roberts, or maybe it's been more in questioning, but then we will see a sizable vote, I believe, of the Democratic Caucus against him.

You see that expressed in their opposition and you didn't see it expressed in our opposition to Justice Ginsburg. I voted for Justice Ginsburg. I presume she's performing on the bench pretty much what she said she was going to do before our committee.

But I voted for her even though she had written extensively prior to being a justice about a lot of political views she had, speaking for a lot of liberal organizations that she was closely affiliated with.

But we saw her as a competent person, and we voted for her, 97-3, I believe. And we did not respond to our single-interest groups. And I'm not advocating we do. But I guess I am suggesting that maybe there's a whole new ball game out there with people when you have somebody with the competence of Judge Roberts. And we're going to have the number of people voting against him that I anticipate will vote against him, even if it's only 25 people. It still seems to be significant compared to the reaction that Republican members of the Senate had to somebody like Justice Ginsburg who had a political agenda that we surely didn't agree with, but we saw her as a competent person to serve on the Supreme Court.

SPECTER: Thank you very much, Senator Grassley.

GRASSLEY: You note that I left two minutes.

LEAHY: Mr. Chairman...

SPECTER: First, thank you for leaving that two minutes.

GRASSLEY: OK.

LEAHY: Mr. Chairman, if I might note, let's keep this on the merits.

Senator Grassley is a dear friend of mine, but to suggest that we are running with special interest groups and the Republicans aren't, I think when this vote is, you'll find a lockstep vote on the Republican side for Judge Roberts, you'll find a split vote on the Democratic side. And it's kind of, you know, that sort of falls apart there.

I would also mention on Justice Ginsburg, that was a case where President Clinton consulted with the Republicans, who were in the minority at the time -- consulted with the Republicans ahead of time, had her name recommended by the Republicans, and had basically pre- cleared her with the Republicans and brought her up here. So let's just keep the history straight. The histrionics are fine, but the history is what ultimately has to be the thing we listen to.

SPECTER: Senator Kennedy?

KENNEDY: Thank you very much, Mr. Chairman. And since I have voted for more Republican justices on the Supreme Court than Democrats, Senator Grassley couldn't be referring to me.

(LAUGHTER)

We'll have to find out how the rest of our colleagues feel.

After reviewing the record of this nomination, I cannot support the nomination of John Roberts to be chief justice of the United States. Our founders proclaimed the bedrock principle that we are all created equal, but everyone knows that in the early days of our republic, the reality was very different. For more than two centuries, we have struggled, sometimes spilling precious blood, to fulfill that unique American promise. And the beliefs and sacrifices of millions of Americans throughout the history of our young nation have breathed fuller life and given real- world relevance to our constitutional ideals.

With genius and foresight, our founders gave us the tools, the Constitution and the Bill of Rights, that have aided and encouraged our march of progress. And the guarantees in our founding documents as enhanced in the wake of a divisive Civil War have guided our nation to live up to the promise of liberty, equality and justice for all.

We have made much progress. But our work is not finished, and we still look to our elected representatives and our independent courts in each new generation to uphold those guiding principles, to continue the great march of progress and never to turn back or give up on hard- won gains.

The commitment to this march of progress was the central issue in John Roberts' hearing. We asked whether he, as chief justice, would bring the values and ideals and vision to lead us on the path of continued equality, fairness and opportunity for all; or would he stand in the way of progress by viewing the issues that come before the court in a narrow and legalistic way, thereby slowly turning back the clock and eroding the civil rights and equal right gains of the past.

KENNEDY: We examined the only written record before us and saw John Roberts, aggressive activist in the Reagan administration, eager to narrow hard-won rights and liberties, especially voting rights, women's rights, civil rights and disability rights.

As Congressman John Lewis eloquently stated in our hearings, 25 years ago John Roberts was on the wrong side of the nation's struggle to achieve genuine equality of opportunity for all Americans. And despite many invitations to do so, Roberts never distanced himself from the aggressively narrow views of that young lawyer in the Reagan administration.

Who is John Roberts today, and who will he be as the 17th chief justice of the United States?

John Roberts is a highly intelligent nominee. He has argued 39 cases before the Supreme Court, and won more than half of them. He is adept at turning questions on their head while giving seemingly appropriate answers.

These skills served him well as a Supreme Court advocate. These same skills, however, did not contribute to a productive confirmation process. At the end of the four days of hearings, we still know very little more than we knew when we started.

John Roberts said that the responsibility of the judicial branch is to decide particular cases that are presented to them in this area according to the rule of law. Of course, everyone agrees with that. Each of us took an oath of office to protect and defend the Constitution, and we take that oath seriously.

But the rule of law does not exist in a vacuum. Constitutional values and ideals inform all legal decisions, but John Roberts never shared with us his own constitutional values and ideals.

He said that a judge should be like an umpire, calling the balls and strikes but not making the rules. But we all know that with any umpire, the call may depend on your own point of view. An instant replay from another angle can show a very different result.

Umpires follow the rules of the game. But in critical cases, it may well depend on where they are standing when they make the call. The same is true of judges.

As Justice Oliver Wendell Holmes famously stated, The life of the law has not been logic, it has been experience.

KENNEDY: He has also said that, Legal decisions are not like mathematics. If they were, we wouldn't need men and women of reason and intellect to sit on the bench. We would simply input the facts and the law into some computer and wait for a mechanical result.

We all believe in the rule of law. But that is just the beginning of the conversation when it comes to the meaning of the Constitution.

Everyone follows the same text, but the meaning of the text is often imprecise, and you must examine the intent of the framers, the history and the current reality. And this examination will lead to very different outcomes depending on each justice's constitutional worldview. It is a full and generous view of our rights and liberties and of government power to protect the people, or narrow and cramped view of those rights and liberties and the government's power to protect ordinary people.

But on the record available, there is insufficient evidence to conclude that Judge Roberts' view of the rule of law would include as paramount the protection of basic rights. The values and perspectives displayed over and over again in his record cast doubt on his view of voting rights, women's rights, civil rights and disability rights.

In fact, for all the hoopla and razzle-dazzle in four days of hearings, there is precious little in the record to suggest that a Chief Justice John Roberts would espouse anything less than the narrow and cramped view that Staff Attorney John Roberts so strongly advocated in the 1980s.

On the first day of the hearing, Senator Kohl asked: Which of those positions were you supportive of, or are you still supportive of, and which would you disavow?

Judge Roberts never gave a clear response.

Other than his grudging concession during the hearing that he knows of no present challenge that would make Section 2 of the Voting Rights Act constitutionally suspect -- a concession that took almost 20 minutes of my questions to illicit -- John Roberts has a demonstrated record of strong opposition to Section 2, which is almost universally considered to be the most powerful and effective civil rights law ever enacted.

Section 2 outlaws voting practices that deny or dilute the right to vote based on race, national origin or language, minority status, and is largely uncontroversial today.

But in 1981 and in 1982, Judge Roberts urged the administration to oppose a bipartisan amendment to strengthen Section 2 and to have, instead, a provision that made it more difficult -- some say impossible -- to prove discriminatory voting practices and procedures.

And although Judge Roberts sought to characterize his opposition to the so-called effects test as simply following the policy of the Reagan administration, the dozens of memos he wrote on this subject show that he personally believed that the administration was right to oppose the effects test.

When Roberts worried that the Senate might reject his position, he urged the attorney general to send a letter to the Senate opposing the amendment, stating, My own view is that something must be done to educate the senators.

He also urged the attorney general to assert his leadership against the amendment strengthening Section 2. He wrote that the attorney general should head off any retrenchment efforts by the White House staff who were inclined to support the amendment.

He consistently urged the administration to require voters to bear the heavy burden of proving discriminatory intent even on laws passed a century earlier in order to overturn practices that locked them out of the electoral process.

Judge Roberts wrote at the time that violations of Section 2 should not be made too easy to prove. Remember when he wrote those words, there had been no African-Americans elected to Congress since Reconstruction from seven of the states with the largest black population.

The year after Section 2 was signed into law, Judge Roberts wrote in a memo to the White House counsel that, We were burned by the Voting Rights Act legislation.

Given his clear record of hostility to this key voting rights protection, the public has a right to know if he still holds those views. But Judge Roberts gave us hardly a clue.

Even when Senator Feingold asked whether Judge Roberts would acknowledge today that he had been wrong to oppose the effects test, he refused to give a yes or no answer. Judge Roberts responded, I am certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

So we still don't know whether he supports the basic law against voting practices that result in denying voting rights because of race, national origin or language or minority status.

You don't need to be a voting rights expert to say we are better off today in an America where persons of color can be elected to Congress from any state in the country.

You don't need to be a voting rights expert to know that when a problem in 1982, when no African-American had been elected to Congress since Reconstruction from Mississippi, Florida, Alabama, North Carolina, South Carolina, Virginia or Louisiana, where African- Americans were almost a third of the population, because restrictive election systems effectively denied African-Americans and other minorities the equal chance to elect representatives of their choice.

And you don't need to be a voting rights expert to say it's better that the Voting Rights Act paved the way for over 9,000 African-American elected officials and over 6,000 Latino public officials who have been elected and appointed nationwide.

KENNEDY: You don't need to be an expert to recognize that Section 2 has benefited Native Americans, Asians and others who historically encountered harsh barriers to full political participation.

Yet Judge Roberts refused in the hearings to say that his past opposition to Section 2 doesn't represent his current views.

Judge Roberts also refused to disavow his past record of opposition to requiring nondiscrimination by recipients of federal funds. These laws were adopted because, as President Kennedy said in 1963, simple justice requires that public funds to which all taxpayers contribute not be spent in any fashion which subsidizes or results in discrimination.

He supported a cramped and narrow view that would exempt many formally covered institutions from following civil rights laws that protect women, minorities and the disabled. Under that view that Judge Roberts had, the enormous subsidies the federal government gives colleges and universities in the form of financial aid would not have been enough to require them to obey the laws against discrimination.

That position was so extreme that it was rejected by the Reagan administration and later by the Supreme Court. Although Judge Roberts later acknowledged that the Reagan administration rejected this view, he would not tell the committee whether he still holds that view today.

He also never stated whether he personally agrees with the decision in Franklin v. Gwinnett, where the Supreme Court unanimously rejected his argument that Title IX of the Civil Rights Act provided no monetary relief for a school girl who was sexually abused by her teacher.

Careful reading of the transcript of his testimony makes clear that he never embraced the Supreme Court's decision to uphold affirmative action at the University of Michigan Law School. Nor did he expressly agree with the Supreme Court decision that all children, including those who are undocumented, have a legal right to public education.

KENNEDY: He emphasized his agreement with certain rationales used by the court in those cases but he left himself a lot of wiggle room for further consideration of those 5-4 decisions.

Finally, a number of my colleagues on the committee asked Judge Roberts about issues related to women's rights and women's right to privacy. On these important matters, too, he never gave answers that shed light on his current views.

No one, no one is entitled to become chief justice of the United States. The confirmation of nominees to our courts by and with the advice and consent of the Senate should not require a leap of faith.

Nominees must earn their confirmation by providing us with full knowledge of their values and convictions that'll bring to decisions that may profoundly affect our progress as a nation toward the ideal of equality. Judge Roberts has not done so.

His repeated reference to the rule of law reveals little about the values he will bring to the job of chief justice of the United States. The record we have puts at serious risk the progress we have made toward our common American vision of equal opportunity for all of our citizens.

Supporting of opposing nominees to the Supreme Court should not be a partisan issue. In my 43 years in the United States Senate, I have supported more nominees for the Supreme Court by Republican presidents than by Democratic presidents. But there is a clear and convincing evidence that John Roberts is the wrong choice for chief justice. I oppose the nomination, and I urge my colleagues to do the same.

Thank you.

SPECTER: Thank you, Senator Kennedy.

Senator Kyl?

KYL: Thank you, Mr. Chairman.

My short statement just got a little bit longer because of the necessity to respond to two comments, one by the ranking member and the other by Senator Kennedy's comments just now.

The senator from Vermont said that some senators had urged John Roberts not to answer questions.

KYL: Now, I never heard any senator urge John Roberts not to answer questions.

In my opening remarks, I told John Roberts that I would defend his position, in complying with the canons of judicial ethics and the traditions of this committee, not to testify in ways that could signal how he might rule on a matter that was likely to come before the court.

That is the proper standard. He adhered to that standard. And I defend his right to do so.

Secondly, I am sure that many of us could detail in great length our disagreement with the characterizations of Judge Roberts' testimony by Senator Kennedy just a moment ago. I disagree strongly with those characterizations.

The transcript of the hearings will be the best evidence of what Judge Roberts actually said, and history will simply have to refer to those.

But just to select one example, on the matter of civil rights, which are important to all of us, I remember John Roberts being very careful to reiterate on more than one occasion his strong commitments to civil rights and voting rights, which I recall him characterizing as the basis for all other rights.

It's not appropriate here to try to respond to each and every comment made, but I think it's important for us to note that there appear to be two very different views as to what John Roberts actually testified to.

Mr. Chairman, I'm just going to refer to three newspaper editorials, not because I think these papers or the editorials are the last word on the subject, but because they are well-known, relatively liberal organs in our country and, obviously, start from a basis of some skepticism with respect to nominations of President Bush and in particular the Roberts nomination.

And yet here's what these relatively liberal newspapers had to say.

First is the Chicago Tribune. It said, Americans can see for themselves why Roberts richly deserves to be confirmed. He has the mind, the manner and the modesty to be a fine chief justice.

He came across as intellectual but not calculating, collegial but not unctuous, deferential but not phony. His evident devotion to the law and to the Constitution ought to humble those partisans who want Supreme Court justices instead to evangelize for political causes.

KYL: I think that last statement in particular is important.

The Los Angeles Times: It would be a damning indictment of petty partisanship in Washington if an overwhelming majority of the Senate does not vote to confirm John G. Roberts Jr. to be the next chief justice of the United States.

As last week's confirmation hearings made it clear, Roberts is an exceptionally qualified nominee well within the mainstream of American legal thought who deserves broad bipartisan support.

And we've seen several editorials by the newspaper here in Washington, the Washington Post. Among other things, it said this:

John G. Roberts should be confirmed as chief justice of the United States. He is overwhelmingly well-qualified, possesses an unusually keen legal mind and practices a collegiality of the type an effective chief justice must be.

He shows every sign of commitment to restraint and impartiality. Nominees of comparable quality have, after rigorous hearings, been confirmed nearly unanimously. We hope Judge Roberts will similarly be approved by a large bipartisan vote.

Again, Mr. Chairman, not because these editorials are the last word on the subject, but because we all approach these nominees from a perspective that reflects our background and our politics and our philosophy, I think it's instructive that papers that one can certainly understand might take a different point of view have all come to the conclusion that this is an exceptional nominee who we should confirm.

I join in their judgment and will happily support John Roberts' confirmation for chief justice of the United States.

SPECTER: Thank you very much, Senator Kyl.

Senator Biden?

BIDEN: Thank you for the way in which you conducted this hearing.

For the past 25 years since the Scalia nomination in 1986, I have focused -- as my colleagues who've served with me during that period -- I have focused very intently on each nominee's commitment to defending fundamental rights recognized as being protected by the Constitution and, I might add, fully embraced by the American people: the right to educate your child in the manner you desire; the right to choose whether or not to procreate; the right to live with your grandchildren, a fundamental constitutional right; the right to marry whomever you wish, even if they're of a different color; the right to disconnect the machine if you are fully capable of making that decision that this machine is keeping you alive; and the line used by several of our justices is the right to be let alone and the right to make basic decisions about one's life's course.

BIDEN: To me, that is the central most fundamental, consequential decision and decisions that any person in the court will make for their entire tenure.

As I said in my opening statement of this hearing, Judge, you know there's a genuine intellectual struggle going on in our country today as to whether our Constitution will continue to expand the right of privacy.

Every one of my colleagues on this committee is bright, well- informed, honest and decent, and they all know there is a fundamental -- no pun intended -- debate going on among legal scholars and the intellectual community today about the protections -- whether they be extended or diminished as they relate to what we generically call the right to privacy.

As its core, the Constitution, in my view, envisions an ever- increasing protection -- not diminishing, not static, ever-increasing protection -- of human liberty and dignity for its citizens and the national government empowered to face unanticipated crises.

I went on to say, Judge, herein lies the crux of the intellectual debate, whether we will have an increasing protection for human liberty and dignity or whether those protections will be diminished, as suggested by many in their reading of the Constitution, some of whom serve on the court.

Now, I say to my colleagues, I believe this is a very close call -- a very close call.

BIDEN: I respect those of you who vote for him, and I respect those of you who are voting no, because it is so close.

It is true -- and I got a little bit of heat for saying these hearing have become sort of a Kabuki dance. And by that I mean a stylized dance that goes on.

We all sit down and we reread everything that the person has ever said. They sit down in the White House or wherever and they look at films of all of the hearings that went before. Everybody figures out it's kind of I gotcha game. It's kind of a game of I gotcha, when, in fact, it shouldn't be that at all.

I might note, parenthetically, I'm moving to the view that I'm not sure these hearings are the proper way to determine how to vote for a judge. Maybe we should go back to the pre-1925 rule and just look at what they wrote and said and make our judgments based on that. Because it's very, very difficult.

I understand why nominees don't want to let us know what they think, even though the American people, in my view, are entitled to know what they think -- entitled to know what they think.

But I have serious doubts that Judge Roberts will fall into the category of the justices from Chief Justice Marshall to Souter, Kennedy, Ginsburg, O'Connor, who look at the Constitution, quoting Marshall, as a Constitution intended to endure for the ages to come and consequently to be adapted to the various crises of human affairs. That's an expanding document.

It's a close call, but I hope he will prove me wrong, but I believe he will not, because I plan on voting no.

I intend to vote no because I don't believe he will fall within the line of those justices, Republican and Democrat, who view this as an expanding role of human dignity, areas within which the state has no right to trench (ph).

For the past 20 years, where I've been convinced that a nominee would protect fundamental constitutional rights, I voted to confirm them, including O'Connor, Kennedy and Souter. Democratic nominees as well, Ginsburg and Breyer.

Where I've had doubts about the nominees' commitments to fundamental constitutional rights as I've explained them, I voted against their confirmation, including Rehnquist and Thomas.

Even though Justice Scalia did not provide answers to his testimony before the Judiciary Committee, I nonetheless gave him the benefit of the doubt and voted for him; the last time I ever did that. And I acknowledged after that vote it's the last time I would do that.

BIDEN: His rulings on the court to restrict or repeal fundamental rights, however, convinced me that all future nominees would have to answer those questions about their judicial philosophy concerning these rights before I voted.

And I would note, even though it's not the general perception, a nominee, because he has been nominated or she has been nominated, is not entitled to the job.

And the judge pointed out he's not standing for election. In truth, he is standing for election, through the representatives of the American people, the United States Senate. That's how it was intended.

The idea that the founders thought that they should know something about how those who serve in the executive and legislative branch thought about the issues of the day but would say, But I don't care about the third branch, the co-equal branch, as long as they're honest, decent, smart and can recite the case law and common law, it's OK -- that is a preposterous notion that history does not sustain, the constitutional record does not sustain.

And so, as I said during the Ginsburg hearing, if a nominee, although it is their right, does not answer questions that go not to what they would decide but how they would decide, I will vote against that nominee regardless of who it is.

I've closely reviewed Judge Robert's past writings as a political appointee and a government lawyer, his personal statements and commentaries during his tenure in private practice and his testimony before this committee. Though I and other committee members gave Judge Roberts ample opportunity, in my view he did not provide to the American people any assurances that he embraced fully the Constitution's enduring values when it comes to fundamental constitutional rights.

And I will speak to this issue at length on the floor of the United States Senate, doing side-by-side comparisons of the very same questions I asked Kennedy, Souter, Roberts, every one of the justices.

During the confirmation hearing, Justice Kennedy, I and others questioned him about his commitment to fundamental rights. In response to the question -- just to give you one example about what factors he would use in considering the scope of the right to privacy, Justice Kennedy stated, and I quote, The essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of a person to manifest his or her personality, the inability of a person to obtain his or her own self's fulfillment, the inability of a person to reach his or her potential -- that's the scope of the right to privacy he saw.

But in contrast, Justice Roberts declined to associate himself with anything approaching the broad sweep of Justice Kennedy's vision, instead casting his formulation in a very narrow -- in a very narrow and crabbed way.

Not only would Judge Roberts not tell this committee how broadly the right to privacy extends, he declined even to endorse the general right to privacy.

In response to Senator Schumer, he said -- Senator Schumer said,

I assume that you disagree with Justice Thomas' views that there is no general right to privacy? Answer -- listen to his answer, as opposed to Kennedy's answer -- he said, Well, I think that question depends, obviously, on the modifier and what you mean by 'general.'

Now, as they say in the South, y'all can tell me on the floor what he means by that.

Most disturbing, he repeatedly said he believed in the right to privacy as does, quote, every member of the court to some extent or another.

BIDEN: He's right. I want to know to what extent. Because if it's the extent to which Thomas and Scalia believe in the right to privacy I cannot support, in good conscience, this man.

While my colleagues and I may disagree on a lot, I think we could all agree that the right to privacy is viewed very differently by different justices. To say that every court member agrees with the formulation that the right to privacy -- that the right is to shed absolutely no light on how that nominee will view that right of privacy.

You need only look at the language used by Justice Rehnquist and Justice Kennedy in the case of Moore v. the City of East Cleveland, where a grandmother asserted that she had a basic constitutional, fundamental constitutional right to live with her orphaned grandchildren.

Look at their respective answers and see how fundamentally, no pun intended, differently they viewed the right to privacy. And it's consequential.

To be consistent with the statements I've used after 1986, I must regretfully vote no as I have in the past when I've doubted the nominee's commitment to these fundamental rights.

Mr. Chairman, Judge Roberts' nomination presents a close call. I acknowledge Judge Roberts may surprise me and serve in the mold of traditional conservatives like Justice John Marshall Harlan, who deferred to the elective branches and was respectful of precedent.

But because Judge Roberts did not answer my questions or, I would argue, any of your questions fully, he does not appear to share the same expansive view of fundamental rights of previous nominees I've supported, I'm unwilling to take the constitutional risk at this moment in the court's history.

One thing for certain: God willing, Justice Roberts will serve for three decades or more. And it is certain, gentlemen and lady, he will have more impact on our lives, in the future of our children's lives, than any of us and all of us combined.

Therefore, that fact alone I believe justifies the desire of the American people to know more about what he thinks -- more about what he thinks.

I did not learn any more, therefore I find myself reluctantly voting no because I believe, as I said, the right to be let alone, the right to make basic decisions about one's life's course, is not the business of any legislative body.

BIDEN: He will determine those issues for 30 years. SPECTER: Thank you, Senator Biden.

Senator DeWine?

DEWINE: Mr. Chairman, thank you very much.
Judge Roberts is certainly one of the most accomplished legal minds of his generation. We all know that he's argued 39 cases before the United States Supreme Court. He is certainly an eloquent spokesman for the rule of law; received a unanimously well-qualified rating from the American Bar Association.

It's my intention to vote for Judge Roberts.

I think we should consider what we have learned about Judge Roberts over the past several months. I think we have learned many things. We've learned some things about his judicial philosophy.

Judges should not make policy; they don't pass laws or implement regulations. Instead, in the words of Justice Byron White, judges simply decide cases. Nothing more.

Judge Roberts embodies that philosophy. During the hearings he told us that, and I quote, The role of the judge is limited. A judge is to decide the cases before them. They're not to legislate; they're not to execute the laws, end of quote.

Second, over the past several months we've learned that the American people share our view that Judge Roberts will be a fair and open-minded chief justice. We need to look no further than the editorial pages of many of America's papers.

Senator Kyl has already cited several of these. I would like to cite several from my home state of Ohio.

The Akron Beacon Journal, a paper that endorsed Al Gore in the year 2000 and John Kerry in the year 2004, called Roberts, and I quote, supremely qualified.

As made plain during four days of testimony, Judge Roberts is eminently qualified. He has a sharp mind, a sound temperament and a keen understanding of the collegiality required to run an effective Supreme Court, end of quote. According to the Cleveland Plain Dealer, and I quote, In the instance of John Roberts, it is difficult to find even among his most committed opponents anyone who will deny his intellectual superiority. His ethics are unimpeached. He is by all measures a fair mind. There is no reason to doubt that he will make an outstanding chief justice.

DEWINE: The Dayton Daily News described Judge Roberts in straightforward terms, and I quote: You got to like the guy. Judge John Roberts' three-day appearance before the Senate was impressive. Facing a Judiciary Committee full of people who obviously consider themselves experts on constitutional issues, he displayed mastery. He was familiar with just about any case the senators could name. He discussed not only their main thrust, but their nuances.

His decency was as unmistakable as his brilliance and diligence. He bears no ill will toward any group that Democrats in the Senate are concerned about: minorities, women, working people, handicapped people, the poor, end of quote. I might say also, Mr. Chairman, that Republicans also care about minorities, women, working people, handicapped people and the poor, as well.

Clearly, Mr. Chairman, these editorial writers saw the same thing that we saw during the hearing. Judge John Roberts is modest, he's decent and he's a fair man, who has earned the title of chief justice of the United States. Mr. Chairman, members of the committee, third and finally, over the past few months we've heard from those individuals who know the judge best. Maureen Mahoney, former deputy solicitor general of the United States, testified from her personal experience that Judge Roberts had an enduring commitment to providing equal opportunity to women in the workplace. The mayor of Juneau, Alaska, a self-proclaimed liberal Democrat, offered his full support. The mayor worked closely with Judge Roberts in several cases and described him as, and I quote, the most remarkable and inspiring lawyer I have ever met, end of quote.

Finally, Catherine Stetson, a partner at Hogan Hartson, offered her praise as well. She told us how Judge Roberts helped her transition back into the workplace after the birth of her first child. According to Stetson, Judge Roberts supported her in both her roles: her role as lawyer and her role as mother. And I quote: And he did it quietly and without fanfare.

Mr. Chairman, all of these individuals have something in common. What they have in common is that they know Judge Roberts personally. They have worked with him and they support his nomination.

DEWINE: We have long known about Judge Roberts' experience, his legal ability and his modest approach to judging.

But it was this personal testimony, testimony about Judge Roberts the man, that I believe gave us the final piece to the puzzle. Over the past several months, we've learned a great deal about who John Roberts really is. We now know about John Roberts the lawyer, John Roberts the judge and John Roberts the man. I like what I see. I intend to vote to confirm Judge John Roberts the 17th chief justice of the United States. Thank you, Chair. I yield the floor.

SPECTER: Thank you very much, Senator DeWine and thank you for yielding back almost four minutes. And I didn't thank Senator Kyl for yielding back four minutes, too.

Senator Kohl?

KOHL: Thank you, Mr. Chairman.

I want to congratulate you and Senator Leahy and your staffs on Judge Roberts' confirmation hearings.

Proceedings were fair to both sides. More importantly, the hearings were fair to the nominee.

The impartial handling of the hearing allowed us, on behalf of the people we represent, to conduct a thorough examination of Judge Roberts.

Judge Roberts came before this committee as a very well-respected judge, with a sterling academic record and a remarkable legal career. He leaves this committee with that reputation intact, if not enhanced. I have enormous respect for Judge Roberts' legal talents. Obviously, they're undeniable. It is for this reason, his distinguished career and his sterling reputation as a lawyer and a judge, that I will vote my hopes today and not my fears and support Judge Roberts' nomination for chief justice of the United States. During a private meeting with him, as well as through four impressive days of testimony, Judge Roberts made clear that he will be a modest judge. He assures us that he'll address each issue on its merits and approach each argument with an open mind.

He recognizes that judges should not substitute their policy preferences for those of Congress, and, of course, I agree.

Judge Roberts sees a clear boundary to the judge's role. He told us repeatedly that his personal views about issues did not matter. He assured us that he will not be an activist and that he will rarely, if ever, look to overturn precedent. Rather, precedent, not his version of how the law should be, will mark the beginning of his constitutional analysis.

Judge Roberts recognizes the right to privacy in the Constitution and he understands that people have a right to rely on it.

KOHL: He made clear his agreement with the cases on the right to privacy that led to the court's decisions in Roe and Casey.

Judge Roberts rejected originalist or literalist philosophies. He does not bind the Constitution to narrow interpretations of the past.

Too many judicial activists have used this philosophy to limit our rights and our freedoms. Judge Roberts believes that as society evolves, our interpretation of the Constitution must evolve with it. We choose to take Judge Roberts at his word and believe that those words will bind him throughout his tenure on the court. Ultimately Judge Roberts persuaded us that he will be the chief justice we saw this past week, and not the chief justice that his critics see in his past. Nonetheless, the decision was not an easy one. While I support moderation in judicial temperament, I do not support inaction in the face of injustice. I do worry that a court full of neutral umpires would not have decided Brown v. Board of Education or other cases in which the court moved America forward. Modesty is to be respected to a point, but not when it stands in the way of progress. Historically, the courts have often succeeded when our democratically elected branches could not. However, Judge Roberts testified -- and I do not disagree -- that his confirmation to replace Chief Justice Rehnquist will not radically shift the balance of the court. If he had been nominated, as he was originally, to replace Justice O'Connor, then his confirmation would have moved the court to the right, and that would have made a much more difficult decision for me. It is my hope that the White House recognizes this concern when they choose the next nominee. Mr. Chairman, in considering my decision, I was troubled by parts of Judge Roberts' record, but I was impressed by the man himself. I will support him as a chief justice who will keep an open mind and reject ideological extremism and simplistic approaches to interpreting the Constitution. I will vote my hopes and not my fears and I will vote to confirm him. Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Kohl, for yielding back more than six minutes.

Senator Sessions?

SESSIONS: Thank you, Mr. Chairman.

This is indeed an important confirmation process. And the chief justice of the Supreme Court is indeed an important office.

But more than that, let's be frank. In the last half-dozen years, we've had a national debate ongoing about the role of judges in America.

SESSIONS: It's played a role in all of our senatorial campaigns.

I think any fair reading of those elections would show that senators who believe that judges should show more modesty, senators who believe that judges should be more faithful to the Constitution, less prone to impose personal values and concepts on the American people in the guise of interpreting the Constitution, have been successful in election after election.

And there's no doubt that President Bush campaigned on it openly and directly and repeatedly that he believed that a judge should be faithful to the law, should show modesty, follow the law. And he promised that he would nominate a judge of the highest quality who shared those judicial values.

And Judge Roberts has been quite open and direct about his judicial values and judicial philosophy. He said he believes a judge should be modest and he believes a judge can ascertain what the law means and, once that has occurred, the judge should follow the law and be faithful to it.

He has indicated quite clearly that if a federal statute or any other action of government violates the Constitution, violates those constitutional principles that he has sworn to uphold, he will strike those down. And, gentlemen, that is not activism. If this Congress passes laws that overreach, that imperil state or individual rights, we expect the judge to strike that down. And that's not activism. What is activism, and what has concerned the American people is that we have a series of decisions that are not founded in the Constitution, that promote an agenda that is not the agenda of the American people. I can't express how strongly and how deeply I believe that this may be, I hope, a turning point in our legal system; that we will be returning to a veneration and a respect for the classical judicial process by which a judge considers the facts of the case, considers the law, considers the Constitution and only then makes a decision. That's why I asked Judge Roberts to explain what a judge does and how a case comes to the Supreme Court. And that case is tried in a trial court before a jury, very often, and every word is written down. And it's appealed to the Court of Appeals. And the lawyers point out what they think is in error on both sides.

SESSIONS: The law clerks help the judge study it and then the judge meets with his colleagues and renders an opinion.

And then when it gets to the Supreme Court, if it does, it's even more under scrutiny because very few cases reach that court. And the clerks, the oral arguments, the judicial conferences, all occur before a judge makes a decision, for heaven's sake.

And that's why we have an independent judiciary. And to expect some judge or some nominee to blithely start expressing their personal opinion on cases that have not gone through process, where the facts have not been clarified, the issues have not been clarified, the arguments have not been heard, reflects a view of the legal system that is dangerous and unhealthy. Yes, we have a right to know the judge's judicial philosophy but the only thing we need to know about his political philosophy is will he set it aside. President Bush says he does not want a judge to promote his agenda and neither do I. I want one who will set aside their political and personal and social agenda, and will enforce the law faithfully and allow us, who have to face the American people, to fight it out right here in the Senate and in the Congress and the state legislatures throughout America. And that's how the American people are empowered. When five judges on the Supreme Court determine that the Constitution says something it really does not say, they really violate democracy. They undermine the power of the people to control their destinies. I would just conclude with beautiful words of Judge Roberts when he was pressed on some of these issues. He says, Judges have to decide hard questions when they come up in the context of a particular case. They don't go pick cases, they come up in the context of a particular case that has explicit facts. Then he says, That's 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, according to the rule of law. There are those more academic theorists, Judge Roberts goes on, who say it is a question of degree, and since it's just a question of degree you shouldn't try to draw the line, because it's hard sometimes to interpret the law without making the law. We'll just throw up our hands and say, 'Well, judges make law,' and proceed from there. Then he adds, That has not been my experience either as a judge or an advocate. My experience has been, in most cases you can see where the line is and you do know when judges are exceeding their authority and making law rather than interpreting it. And careful judges are always vigilant to make sure they're adhering to their proper function and not going into the legislative arena.

SESSIONS: Mr. Chairman, I think that represents a clear statement of the American history of law, a reaffirmation of those principles. And I salute the president for submitting someone who can so eloquently state them.

SPECTER: Thank you, Senator Sessions, and thank you for yielding back a little more than three minutes.

Senator Feingold?

LEAHY: I might add, of course, that it's nice to yield back time, but I would hope everybody would take all the time they need.

And, of course, there is no time limit on individual senators. I think we've all been very cooperative in our time, but there is no time limit. SPECTER: I agree with what Senator Leahy has just said, and I thank you for the cooperation.

FEINGOLD: Thank you, Mr. Chairman.

Mr. Chairman, I will vote in favor of the nomination of Judge John Roberts to be the chief justice of the United States. This has not been an easy decision, but I believe it is the correct one.

Judge Roberts' impeccable legal credentials, his reputation and record as a fair-minded person, and his commitment to modesty and respect for precedent have persuaded me that he will not bring an ideological agenda to the position of chief justice of the United States and that he should be confirmed.

I have often noted that the scrutiny that I will apply to a president's nominee to the Supreme Court is the highest of any nomination. And that the scrutiny to be applied to the position of chief justice must, of course, be the very highest.

I have voted for executive branch appointments and even for court of appeals nominees whom I would not necessarily vote to put on the Supreme Court.

Furthermore, because the Supreme Court, alone among our courts, has the power to revisit and reverse its precedents, I believe that anyone who sits on that court must not have a preset agenda to reverse precedents with which he or she disagrees, and must recognize and appreciate the awesome power and responsibility of the court to do justice when other branches of government infringe on or ignore the freedoms and rights of all citizens.

Judge Roberts came to his hearing with a record that few can top. His long record of excellence as a lawyer practicing before the Supreme Court and his reputation as a lawyer's lawyer, who has no ideological agenda, carried substantial weight. I wanted to see, however, how that record and reputation would stand up against a searching inquiry into his past statements and current views.

One important question I had was about Judge Roberts' view on the role of precedent and stare decisis in our legal system. A lot of the concern about this nomination stems from the fact that many important precedents seem to be hanging by a thread. In both our private meeting and in his hearing, Judge Roberts demonstrated a great respect for precedent and for the importance of stability and settled expectations.

FEINGOLD: His themes of modesty and humility showed appropriate respect for the work of the justices who have come before him.

He convinced me that he will take these issues very seriously with respect to both the constitutional right to privacy and many other issues of settled law.

And I'm sure every single one of us in this committee noticed and expected Judge Roberts did not expressly say how he would rule if asked to overturn Roe v. Wade.

But if Judge Roberts abides by what he said about how he would approach the question of stare decisis, I think he should vote to uphold Roe. He certainly left some wiggle room and he said he would approach the possibility of overturning a case differently if the underlying precedents themselves came into question. But it will be difficult to overrule Roe or any other important precedents while remaining true to his testimony about stability and settled law, including his statement that he agrees with the outcome in Griswold v. Connecticut. I know that the American people will be watching him very closely on that question, and I personally will consider it a reversal of huge proportions and a grave disappointment if he ultimately does attempt to go down that road. I was also impressed that Judge Roberts does not seem inclined to unduly rein in Congress' power under the commerce clause. He repeatedly called attention to the court's decision in Gonzales v. Raich as indicating that the court is not headed inexorably in the direction it turned in the Lopez and Morrison cases limiting Congress' power. His approving references to race suggest to me that he will take a more moderate stance on these issues than his mentor, Chief Justice Rehnquist. His attitude seems to be, if Congress does its job right, he will not stand in the way as a judge. That is, of course, cold comfort if the court creates new hoops for Congress to jump through and applies them retroactively. And hope that Judge Roberts will recognize that Congress can pay attention to what the court says is needed to legislation only if the court gives clear, advance notice of those requirements. Judge Roberts also seemed to reject a return to the Lochner era, when a majority of the court invoked the due process and contract clauses of the Constitution to strike down child labor and other laws they disagree with. And the court openly acted as a super- legislature, rejecting congressional enactments based on their own political and economic judgments. Judge Roberts disparaged the Lochner decision saying, quote, You can read that opinion and it's quite clear that they're not interpreting the law, they're making the law, unquote. Now, that's a marked contrast to many in the so-called Constitution exile movements including recently confirmed D.C. Circuit Judge Janice Rogers Brown. Judge Roberts' determination to be a humble and modest judge should lead him to reject efforts to undermine Congress' power to address social and economic problems through national legislation. And I view that as a significant commitment that he has made to Congress and to the country.

FEINGOLD: Another important involves not so much respect for settled precedent, but rather questions that will arise in the future with respect to the application of the Bill of Rights in time of war.

The Supreme Court has already dealt with a series of cases arising from the Bush administration's conduct of the fight against terrorism, and undoubtedly will face many more during the next chief justice's term. Indeed, how the new justices address these issues may well define them and this coming court in history. For me and my colleagues, Judge Roberts' discussion of the foreign intelligence surveillance court, which has been such an issue in the Patriot Act debate, was a defining moment in the hearing. His answers showed a gut-level understanding of the potential dangers of a court that operates entirely in secret, with no adversary process. His instincts as a lawyer, one who trusts our judicial system and its protections to yield the correct result under the rule of law, seemed to take over, and he seemed genuinely disturbed by the idea of a court without the usual protections of an open adversary process. Here is what he said about the FISA court to Senator Dewine, quote: I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch the lawyers argue, and it's subject to the glare of publicity, and the judges explain their decision to the public and they can examine them. That's what we think of as a court. He continued: This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does, but it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved, end of quote. Judge Roberts' comments went out of his way to express surprise at the fact that this secret court even exists suggests to me that he would address issues relating to FISA, such as government secrecy and challenges to civil liberties, with an appropriately skeptical mindset. I was troubled when Judge Roberts refused to give a fuller answer about his view of the Supreme Court's decision in the Hamdi case, and I have concerns about his decision as an appeals court judge in the Hamdan case regarding military commissions. But Judge Roberts did tell me that he believes, quote, The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis, unquote. I was pleased to hear him recognize this fundamental principle. Now, Mr. Chairman, I don't want to minimize the concerns that have been expressed by those who oppose this nomination. I share some of them. Many of my misgivings about this nomination stem from Judge Roberts' refusal to answer many of our reasonable questions. Not only that, he refused to acknowledge that many of the positions he took as a member of the Reagan administration team were misguided or in some cases were even flat-out wrong. I do not understand why the one person who cannot express an opinion on virtually anything the Supreme Court has done is the person whom the American public most needs to hear from. No one on the committee asked him for a commitment on a given case or set of issues. We certainly recognized that it is possible his views might change once he's on the court and hears the arguments and discusses the issues with his colleagues. All of those caveats would have been perfectly appropriate. But why shouldn't the committee and the public have some idea of where he stands or at least what his instincts are on recent controversial decisions?

Although in some areas, he was more forthcoming than others, Judge Roberts did not answer questions that he could and should have, unfortunately, with the full support of committee members who want to smooth his confirmation. And I think that that was somewhat disrespectful of the Senate's constitutional role.

FEINGOLD: In addition, the administration's refusal to respond to a reasonable, limited request for documents from the time Judge Roberts served in the Solicitor General's Office did a real disservice to the country and to this nominee.

So my voting in favor of Judge Roberts does not endorse this refusal. In fact, if not for Judge Roberts' singular qualifications, I may have felt compelled to oppose his nomination on those grounds alone. Future nominees who refuse to answer reasonable questions or whose documents the administration -- any administration -- refuses to provide should not count on my approval.

Also troubling was Judge Roberts's approach to the memos he wrote as a young Reagan administration lawyer. His writings from his early service in government were those of a very smart man who, at time, was a little too sure of himself and too dismissive of other viewpoints.

I wanted to see -- as I said at the outset -- if Judge Roberts of 2005 had grown from the John Roberts of 1985, whose strong views often suggested a rigid ideological agenda. I wanted to see the possibility of a seasoned, wise and just John Roberts on the Supreme Court, not just a more polished, shrewder version of his younger self.

Unfortunately, he refused to disavow any of those memos, many of which laid out disturbing opinions on a variety of issues from voting rights to habeas corpus to affirmative action. He refused to acknowledge that some of is tone and word choice in that era demonstrated a lack of sensitivity to minorities and women and to the challenges they face.

Instead, I think he took refuge in the argument that he was simply doing his job, so we are not now supposed to infer anything about his beliefs or motivations based on the memos he wrote in the 1980s.

Now, I found these arguments unpersuasive, particularly since several of these memos indicate that those were, in fact, his own personal views. And I do not understand why he felt he had to defend these 20-year-old memos. Maybe it was pride; maybe it was a political strategy dictated by a White House that so rarely admits error.

But take voting rights: It should have been easy for Judge Roberts to say that in retrospect he was wrong about the dangers of advocating a hard-to-meet effects test and that the 1982 amendments to the Voting Rights Act that he had opposed had been good for the country. Instead, he said he wasn't an expert on the Voting Rights Act and insisted on the correctness of his position. And, Mr. Chairman, I must say that troubles me. The John Roberts of 2005 did not have to embrace the John Roberts of 1985, but in some cases he did all too readily.

On the other hand, I'm not sure that the John Roberts of 1985 would have told Senator Feinstein, with respect to affirmative action, that, quote, A measured effort that can withstand strict scrutiny is a very positive approach, unquote.

FEINGOLD: His answer to questions on affirmative action seemed to me, on balance, to be an encouraging sign that he will not undo the court's current approach.

Finally, Mr. Chairman, I was unhappy with Judge Roberts' failure to recuse himself in the Hamden v. Rumsfeld case, once he realized he was being seriously considered for a Supreme Court nomination.

It is also hard to believe, as Judge Roberts testified, that he does not remember precisely when the possibility of an ethics violation first came to his attention. Judge Roberts sat on a court of appeals panel that heard the appeal of a district court ruling that if upheld would have been a huge setback for the administration's position on military commissions and the detainees at Guantanamo Bay. And he heard oral argument, just six days after interviewing for a Supreme Court appointment with the attorney general of the United States, who was also a major participant in the underlying legal judgment of the administration that was challenged in the case. I am troubled that Judge Roberts apparently didn't recognize at the time that there was an ethical issue. And I do give great weight to ethical considerations in judicial nominations. For example, when Judge Charles Pickering solicited letters of recommendation for his court of appeals nomination from lawyers practicing before him in the district court, I found that very significant, especially in combination with his actions in a cross- burning case where improper ex parte contacts were alleged. While the issue raised about Judge Roberts is serious, I do not see such a pattern with Judge Roberts, who has a long record and reputation for ethical behavior. Nor is there evidence of the egregious, almost aggressive, unethical behavior that was present in the nomination of Judge Pickering. I hope that Judge Roberts now understands the concerns that I and a number of respected legal ethicists have about his participation in the Hamden case. It is not too late for him to recuse himself and allow a new panel to hear the case.

Mr. Chairman, at the end of the day, I'd ask myself: What kind of a justice does this man aspire to be? An ideologue? A lawyer's lawyer? A great Supreme Court justice like Justice Jackson, who moved comfortably from the top legal positions in the Department of Justice to a judicial position in which he was more than willing to challenge executive power? A chief justice who will go down in history as the leader of a sharp ideological turn to the right, or a consensus builder who is committed to the court and its role as guarantor of basic freedoms?

Now, I have talked to a number of people who know John Roberts or to people who know people who know John Roberts. All of those -- all of those -- I have heard from directly or indirectly have seen him develop since 1985 into one of the foremost Supreme Court advocates in the nation, whose skills and judgments are respected by lawyers all across the ideological spectrum.

FEINGOLD: They don't see him as a champion of one cause, as a narrow ideologue who wants to impose his views on the country. They see him as open-minded, respectful, thoughtful, devoted to the law and truly one of the great legal minds of his time.

Now, that carries a great deal of weight with me. And it helps to overcome my frustration with Judge Roberts for not distancing himself from what he wrote in his Reagan-era memos, and with the White House for refusing to release relevant documents to the committee.

History has shown that control of the White House -- and, with it, the power to shape courts -- never stays for too long with one party. When my party retakes the White House, there may very well be a Democrat John Roberts nominated to the court, a man or woman with outstanding qualifications, highly respected by virtually everyone in the legal community, and perhaps with a paper trail of political experience through service on the progressive side on the ideological spectrum. Now, when that day comes -- and it will -- that will be the test for this committee and the Senate. And, in the end, it is one of the central reasons I will vote to confirm Judge John Roberts to be perhaps the last chief justice of the United States in my lifetime. The position of chief justice demands the very highest scrutiny from the Senate. And the qualifications and abilities of the nominee for this position must shine through. Judge Roberts has the legal skills, the intellect and the character to be a good chief justice. And I hope that he fulfills that promise. I wish him well. May his service be a credit not only to the rule of law, but also to the principles of equality and freedom and justice that make this country so great.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Feingold.

Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

One, I hope Senator Feingold has a long life and he sees many Supreme Court justices come and go.

If I can do what my predecessor did, Senator Feingold, I have 50 more years to serve.

(LAUGHTER)

So this court will flip over four or five times.

And I'm going to miss most of you all, by the way.

(LAUGHTER)

Senator Biden gave me some good advice when I first came to the Senate. He was gracious enough to come down and speak at Senator Thurmond's funeral upon his passing. And I really do like Senator Biden a lot.

And he said, Don't ever question a senator's motive. You can argue with their result, you can disagree with how they vote, but don't question their motive.

And, you know, that's great advice. And I am going to adopt that advice. I think that if you vote differently than I do, I don't question your motives.

But I'll make an observation, too, for the long view of things, because I think Russ is on to something here. What we do here today is definitely going to affect the future.

Just for a point of observation, Breyer and Ginsburg and Scalia, I've been told, were reported out of the committee unanimously. Well, that's not going to happen today with Judge Roberts, but I'm not questioning anyone's motives. It's just a fact.

I think people have articulated very heart-felt reasons for voting no and yes. And we're already talking about the next nominee in code.

Senator Kohl, who voted yes, is talking about the balance of the court with O'Connor. Senator Feingold has mentioned he may not be too receptive to Justice Brown. I can understand that; that's the way this situation is in 2005. But this is my first -- hopefully of many -- Supreme Court confirmation hearings, Mr. Chairman, and I think you've done an excellent job.

Senator Leahy, I think you've done an excellent job as the ranking member.

GRAHAM: I've been very proud of the committee. I've at times refused to come over here because I hated to come, because we'd argue about what time it is.

I think the committee distinguished itself very well, I really do. I think the questions were hard, they were probing. And, generally speaking, I think the committee did well.

The mystery is gone: I will vote for Judge Roberts. I'm sure everybody was hanging on whether that would happen.

(LAUGHTER)

But the reason I'm going to vote for him is because I believe that the president does enjoy some deference here. And that's what this debate is about right now: the role of the president versus the Senate.

And Senator Kennedy has articulated what he thought the central issue of the hearing was at the beginning and he concluded with his view of the central issue as whether or not the nominee would roll back certain progress that he's seen in the law.

And I started out the central issue being whether or not the Senate will allow the president, President Bush, to fulfill a campaign promise he made to the American people, and that is to nominate a well-qualified strict constructionist to the court.

Two different views of what the Senate should be doing.

He will get confirmed, thanks to people like Senator Kohl and Feingold and Senator Leahy and others. And people who vote their conscience against him, they're doing what they think is right. But that is a basic issue the country needs to come to grips with.

Senator Reid, when he was indicating that he would vote no, made a statement: The president is not entitled to very much deference in staffing the third branch of government, the judiciary. And The Washington Post wrote an editorial called, Words That Will Haunt.

And I just want to, if I can, in a few minutes, talk about where we're going from here. He's going to be confirmed but the vote totals are going to be fairly dramatically different than they were with Ginsburg, Scalia and Breyer.

And if you get away from the qualifications, intelligence and character test, which I think had to be in play there, you're setting up a scenario that could haunt us all.

If we're going to start looking at people's hearts, that is a very subjective thing to do. Justice Ginsburg -- her writings, as Senator Grassley said, I admire him for voting because she is qualified but from a conservative's point of view, her view of politics and her writings and the role she played in the law was very hard to swallow.

And I would just say that one of the attacks on Judge Roberts was that he was a legal genius, well-qualified, intellectually gifted, but we didn't know if he had the worldness of judging others; that he was qualified to really sit in judgment at that level. We're questioning whether or not he's lived his life right.

Well, one could argue that if you're for a constitutional right of prostitution, those of us who have been in the criminal law as prosecutors and defense attorneys would probably come out different; that prostitution's not a good business endeavor, that those women who find themselves in the world of prostitution live in hell. And we could start questioning whether or not someone who believed in that view of a constitutional right really was connected to the real world as I see it.

But, you know, the real world as Lindsey Graham sees it is -- I'm glad you don't adopt it. It would be a very boring place for the country.

We all have different value systems and we all have different hot-button items. And if we start judging the nominee on, Will you show allegiance to what I think is most important in the country? then we're going to politicize the process to the point that I think the role of the president has been dramatically changed and undermined. And woe be on to those judges who have to figure out how to navigate our value systems, our beliefs and show allegiance to our heart. That is a standard I would not want to put on any of you. It's not a standard I want to put on anyone who's going to follow.

GRAHAM: So there is a fundamental shift in this nomination to, I think, what the standard has been in the past to what it will be in the future. And I have a little bit of concern about that. Actually, I have a lot of concern. The reasons to vote no, while I respect those reasons, have been very subjective. And they've been around a case or a concept that you find so important that that's going to be the end of the discussion. And I would just urge this committee, as we go to the next debate, to remember that Scalia was obviously conservative. There's no way Roberts is more conservative than Scalia. There's no way that Roberts is more challenging and in-you-face than Scalia in his writings. Scalia got 98 votes. Now what's happened?

Ginsberg got 96 votes. What's going on?

I think Senator Grassley put his finger on it: There's a lot of pressure on us all. This is the easiest vote a Republican will ever make. This is so easy for us to vote for Roberts. It is not easy for you, Russ. I know you are a prominent player in the Democratic Party. This is not easy for Senator Leahy. It is not easy for Senator Kohl. It will not be easy for those who choose to side with Roberts because they're trying to drive down the vote numbers because of the next person to come.

And, Senator Grassley, you're right: Politics is rearing its head like it has not done before. But here's what I worry about, sir: Our day will come. There will be a Democratic president, probably in my lifetime.

(LAUGHTER)

And the pressure that they're feeling, we're going to feel. And the compromise -- Senator DeWine and I felt a little bit of pressure -- if we could look at the person before us based on qualifications, character and integrity and not require them to show an allegiance to a particular case or a cause, it would serve the country well. Because liberals and conservatives come and go, but the rule of law is bigger than all of our philosophies. The rule of law is about the process. If you want the law to be outcome-determinative, then the process has been cheapened. The good thing about the law, Mr. Chairman, is that the conservative and liberal philosophy and agenda is parked at the courthouse door and we're judged by facts and what people did before us. And there needs to be one place left in American discourse and politics for the quietness of the merits of individuals to trump the loudness of special interest groups. And the last place I know of is the courtroom. And the reason that I think Justice Roberts will be a justice for the ages -- he's probably the most qualified guy, top two or three people in the history of the nation -- is that he believes beyond anything else that the rule of law is for the unpopular cause, is for the quiet discussion not the loud political campaign, and that he believes deep down and loves the law more than he loves politics.

GRAHAM: And that's all you can ask of anybody that comes through our gatekeeping here: Will you adhere to the law more than you'll adhere to anyone's political philosophy?

The president has chosen well.

Mr. President, you have done a good service to this nation by choosing someone of such intellect and character who will serve this nation for a long period of time. You have another choice awaiting you. Listen to our Democratic colleagues. Listen to what we have to say. But at the end of the day, ask you to do one thing for the good of your presidency and all to follow: Fulfill your campaign promise of selecting a strict constructionist, well-qualified person who loves the law more than they love politics.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Graham.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

And, Mr. Chairman, I'd like to take a step back for a moment and consider where we are. I'd like to consider the context of the votes we cast today. And so let us set the stage.

And let me answer my friend, Senator Graham, about what is different between previous nominations -- Ginsburg, Scalia -- and this one today.

In my judgment, some years ago, a number of extreme groups and individuals decided that they could not abide the direction that America was going in. They tried to change America through the presidency. They won a few elections. They tried to change it through Congress, but they could not because those are elected branches of government and electoral politics fundamentally decides things in the middle.

So they decided to try and change America through the courts, the one non-elected branch of government. That is, of course, their right.

In 2000, they helped elect a president who embraced their vision. That president signaled that he'd agreed with them, that America could and should be changed through the courts. And he signaled his agreement by repeating over and over again -- first on the stump and then at the presidential podium -- that he'd appoint judges in the mold of Antonin Scalia and Clarence Thomas. That meant that the president subscribed to their viewpoint that America should be radically changed through the courts and that the clock should be rolled back using legal theories like originalism and strict constructionism. That is very different than what President Clinton set out to do when he consulted Orrin Hatch before nominating Justices Breyer and Ginsburg. It's also quite different than what President Eisenhower sought out to do when he nominated Justices Warren and Brennan, even though they turned out a lot differently than he thought. So, Mr. Chairman, the stage for this vote was set some five years ago. It was set by a president who vowed that if given the opportunity, he would name Supreme Court justices in the mold of Clarence Thomas and Antonin Scalia. Given the president's campaign promise and repeated declaration, there is a certain presumption that any nominee the president sends to the Senate is in that mold. The presumption is especially strong and it's hard to overcome with a nominee who was carefully vetted, researched and interviewed at sufficient length by a president who professed a desire to nominate a certain type of judge, and with a nominee who was eagerly embraced by those groups to support the views of Thomas and Scalia and who want to change America through the courts. The presumption can, of course, be rebutted, and the way it can be rebutted is through answering of questions and the production of documents. And here, regrettably, there was too much lacking. To be fair, Judge Roberts did partially rebut the presumption. He made some inroads. As I said last week, he has a keen intellect, has encyclopedic knowledge of the law, an eloquent presentation; certainly confirms what his colleagues have said about him and that is that he's one of the best advocates, if not the best advocate, in the nation. But being brilliant and accomplished is not the number one criteria for elevation to the Supreme Court. There are many who would use their considerable talents and legal acumen to set American back. So while legal brilliance is to be considered, it's never dispositive.

In addition, very good lawyers know how to avoid tough questions. People have said one of the reasons the nominee was so effective arguing before the Supreme Court is that he mastered the trick of making the point he wanted to make, rather than the question asked.

SCHUMER: This week, after the hearings, as I reviewed the transcript, there was often less than met the ear.

Judge Roberts was such a good witness that everyone seemed to emerge from the hearing with a different view of what he actually said. People might recall that Judge Roberts mentioned at the hearing his favorite movies were Dr. Zhivago and North By Northwest. But perhaps the most relevant movie to this hearing is Rashomon, where four people saw the exact same crime and each had a totally different view of what had happened.

Mr. Chairman, the answering of questions is extremely important. As I've repeatedly said, long before Judge Roberts' nomination, there's an obligation of nominees to answer questions fully and thoroughly, because they're essential to figuring out a nominee's judicial philosophy and ideology: to me the most important criteria for choosing a judge.

Many of us were disappointed in his failure to answer questions. And it's one of the contributing factors to the no votes that will be cast this morning and next week on the floor.

Indeed, a yes vote here from me might indicate acceptance not only of a nominee's strategic decision to avoid answering important and proper questions about decided cases, but also an administration's decision to refuse to let the American people have important information about a nominee in the form of important documents.

That's why I hope, whatever happens with Judge Roberts, that the next nominee will be more forthcoming and will answer more questions about his or her legal views, and that all relevant documents will be provided.

But as I said before, answering questions is only a means to an end. It's a means of finding out what kind of judge or justice a nominee will make.

In this case, because there were not enough questions answered or documents provided, we're still unsure of how to answer the central question: Who is Judge Roberts? We're left with guesswork, impressions, hunches. We are left playing a bit of a game of blind man's bluff. To me, particularly troubling are the eerie parallels between Judge Roberts' testimony and Judge Thomas', especially given President Bush's declaration that he'd nominate justices in the mold of Justice Thomas. The echoes of then-Judge Thomas' empty reassurances that he was a mainstream jurist are ringing in the ears of every senator who listened to many nearly identical statements from Judge Roberts last week. I was particularly troubled by his answers in two areas, the constitutional right to privacy and the Congress' commerce clause power to protect the rights and improve the lives of American people. At this hearing, for example, Judge Roberts said he believes, quote, There is a right to privacy, protected as part of the liberty guarantee in the due process clause, unquote. At this hearing, then-Judge Thomas made the almost identical statement. He said, quote, I, with respect to the privacy interest, would continue to say that the liberty component of the due process clause is the repository of that interest. We all know as a Supreme Court justice, however, Justice Thomas has repeatedly urged the most narrow interpretation of privacy interests possible, in Casey and Lawrence and every other opportunity. At this hearing, as Senator Feinstein already mentioned -- and we spent time talking about this last night -- Judge Roberts repeatedly assured the committee he had no quarrel with various Supreme Court decisions on privacy, women's rights, civil rights, education and other important issues. The same assurance was made by Justice Thomas at his hearings. But when given the opportunity to consider those cases with which he had, quote, no quarrel, from the bench, he voted to overrule.

He had no quarrel with Eisenstat, and made his ruling in Lawrence. He had no quarrel with the Lemon test, and then ridiculed in the Lamb's Chapel case.

At his hearing, Judge Roberts repeatedly assured the committee he had no agenda. The same assurance was made by Justice Thomas at his hearing. But given Justice Thomas's history in particular, the phrase alone, without documentation, provides little comfort.

Besides these concerns on Judge Roberts's views on the right to privacy in the establishment clause, as I mentioned, I was troubled, deeply troubled by his answers on the commerce clause.

I asked him if he'd disagree with Justice Thomas's view that Congress may not regulate activities occurring within the state even if they have substantial effects on interstate commerce. He refused.

We simply did not get definitive answers at this hearings. At the hearings, I gave Judge Roberts every opportunity to distance himself from Justice Thomas' most extreme views. He refused. For example, after Judge Roberts seemingly answered a question about his belief in a constitutional right of privacy, I asked him if he agreed or disagreed with Justice Thomas' view that there's no general right to privacy in the Constitution. He refused to give his view. I asked him whether he agreed with Justice Thomas' rather extreme view of the commerce clause. He refused to disagree. That's an elemental thing to do that doesn't reveal how you would view future cases. In fact, I asked him if he could name a single opinion written by Justice Thomas with which he disagreed. He refused.

In written questions also, answers which we were just received yesterday, I gave him the opportunity to explain his position on various issues as compared with Justices Thomas and Scalia and again he refused.

SCHUMER: Of lesser concern but still rankling, there were questions about the old memos and Judge Roberts' stubbornness in standing by the language in some of them. It didn't seem too much, for instance, to concede 20 years later the wording of illegal amigos was unfortunate. Yet when I asked him, he refused to say so.

Similar, it didn't seem to acknowledge that a reference to the Equal Employment Opportunity Commission as unAmerican was impolitic and he refused to do that as well. Now, I've heard my good friend from Texas, Senator Cornyn, repeat, he said, If we can't vote for this nominee, who could we vote for? Here's your answer: Someone who answers questions fully and who makes his or her record fully available; someone who gives us the significant level of assurance with some answers in a record that he or she is not an ideologue.

Judge Roberts is clearly brilliant. His demeanor suggests he well might not be an ideologue. But he did not make the case strongly enough to bet the whole house. There's a good chance, perhaps even a majority chance, that Judge Roberts will be like Justice Rehnquist on the bench. We know he'll be brilliant and he could well be, while very conservative, not an ideologue.

That's why I struggled with this decision so long and so hard. If he is a Rehnquist, that would not be a cause for exultation in my book, but it would not be a cause for alarm. The court's balance will not be altered. But there is a reasonable danger that he will be like Justice Thomas, the most radical justice on the Supreme Court. It is not that I am certain that he will be a Thomas, it's not even that it's more than 50 percent, but the risk that he might be a Thomas and the lack of any reassurance that he won't, particularly in light of this president's professed desire to nominate people in that mold, is just not good enough. I hope he will not be a Justice Thomas but the risk is too great to bear. The court's balance may be for decades tipped radically in one direction. Because of that risk and its enormous consequences for generations of Americans, I cannot vote yes. I must reluctantly cast my vote against confirmation.

SPECTER: Thank you, Senator Schumer.

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

Mr. Chairman, to begin with, let me say to you and Senator Leahy, our ranking member, that I think we've seen the Judiciary Committee at its best during these confirmation hearings. It has been a privilege to participate in these hearings because I think they have been what all of our proceedings should be: dignified, civil, fair.

Clearly, we come to this position and to this committee with different views. And I'll go into some of that here in a minute.

But I think the American people are entitled to a Senate and a committee that has performed as this one has under your leadership, Mr. Chairman. So I wanted to say that.

I will tell you that I don't always look forward to coming to Judiciary Committee hearings or meetings, but maybe we've set the standard here that we can all strive for in the future. CORNYN: I think this committee has discharged its responsibility and will, by the time we vote on this nominee, in the way that our framers would have expected and anticipated when they wrote, and the people ratified, the advice and consent clause of the United States Constitution. I'm sure it will come as no surprise to anyone who's been following this that I intend to vote for Judge Roberts' confirmation. I'll have to say, before I leave the subject, that I think, in terms of the committee's performance, there have been, I think, some great courage shown by a number of people in this process that I, frankly, admire and I think speaks the best about some of the members who have demonstrated that courage. And I think it's been very positive. But I have to say to my colleague from New York -- he disagreed with me; I'm going to disagree with him. And that's fine. We do, from time to time. And we'll let the people listening decide who they agree with. But the notion that this president and the party that has won the election in 2004, 2000, and who currently holds a majority in the Senate and in the House, are trying to change American through the courts is the exact opposite of the truth. In fact, the most contentious issues we've had come before us, whether it's the issue of same-sex marriage, whether people can display the Ten Commandments in public, whether the Pledge of Allegiance itself is constitutional because it contains the words one nation under God -- these are all examples of decisions and positions being advocated by the minority in the courts who want to overturn the ability of the majority to determine the rules and laws by which our society is governed. And, in fact, it's those who embrace this idea of an evolving Constitution, that it is all about the courts making decisions that some judges feel is good for us, and when they feel that the majority is unable or unwilling to govern itself consistently with the fundamental values and notions contained in the Constitution. Now, I understand that when Senator Schumer and others say that they want to know the answers to the questions that were asked, I don't blame them for wanting to know. I guess every contestant in every sporting event, every lawsuit, would like to know ahead of time whether their desired outcome will prevail. But I submit that, particularly in courts of law, no one is entitled to know ahead of time what the outcome will be, because the very premise of our judicial process is that courts are supposed to be fair and listen to both sides or all sides of an argument; that judges are supposed to be disinterested in the outcome and impartial; and that judges, finally, be independent of the political process. So no one is entitled to know how Judge Roberts will rule on these hot-button issues of the day. No one is. Senators are not entitled to know. Presidents are not entitled to know. In fact, I think what Judge Roberts demonstrated was the ideal of fairness, impartiality and commitment to the rule of law.

CORNYN: Now, all Americans are entitled to judges who haven't made up their mind before they listen to the facts.

And all Americans are entitled to judges who have not made pledges of performance in office as if they were a politician running on a political platform.

Now, I'm not knocking politicians because I happen to be one of them. But we say what we intend to do if elected to office and people make a choice whether to choose to elect us or not to get rid of us is they don't like how we're doing.

But we can't do that for judges and rightly so, because judges are not supposed to make political decisions or advance an agenda of their own. That is why the framers correctly conferred upon them life tenure and the unaccountability, so to speak, to the political process of the decisions that they make.

Now, if we are not entitled to know how Judge Roberts will rule on the hot-button issues of the day, and if the American people are entitled to judges who haven't already made up their mind or made pledges of performance if confirmed, what is this all about?

Well, I would say that, you know, probably Judge Roberts himself may not know, even if he were inclined to answer these questions, how he will rule on some of these questions.

And, you know what, I think history certainly is replete with presidents who had guessed wrong about judges. And people do change in their views over time. And the names of Souter, White, Warren, Blackman, Holmes -- just to name a few -- are examples of how nominees have not performed perhaps according to the expectations of the presidents who have nominated them.

So, I think, for good reasons, Judge Roberts handled the questions the way he did.

I would submit, Mr. Chairman, by any objective measure, Judge Roberts is clearly one of the very best nominees who will ever serve on our Supreme Court throughout our nation's history. Indeed, he may very well be the best qualified.

In fact, I think, one thing that will make this next round of conformation hearings so much more challenging for all of us -- and I do hope we meet the high standards that the committee has set on a bipartisan basis during these hearings -- will be because I think the next nominee will be judged by the standard that Judge Roberts has set.

And I won't recount the reasons for that conclusion because I think we all agree, regardless of whether people vote for him or against him, that he is a brilliant individual who is well-prepared for this job.

CORNYN: I simply don't recall an instance where a president has nominated a more accomplished individual to the United States Supreme Court.

That's why I am a little disappointed when Senator Schumer reiterated my question that if not John Roberts, then who will some Democrats on the committee and in the Senate vote to confirm? I wonder, because I don't believe some would ever vote to confirm any nominee of this president. And, of course, this has not always been