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the nominee to seek assurances about his positions on cases, questions or issues that might come before him as a judge.
Let me quote the question. "Has anyone involved in the process of selecting you as a judicial nominee, including but not limited to any member of the White House staff, the Justice Department, or the Senate or its staff, discussed with you any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue or question?”
Judge Roberts answered in the negative to that question, and I think it would be ironic indeed if the Committee were now to demand that the nominee take stands on questions that may come before him as a member of the Court.
As Senator Hatch noted earlier, the confirmation hearings of the two most recent nominees, Justices Ginsburg and Breyer, confirmed this same principle. Those hearings were held under the chairmanship of our colleague, Senator Biden, who presided at the time. One of the comments that he made at the time of Justice Ginsburg's hearing was, and I quote: "You not only have a right to choose what you will answer and not answer, but in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the Court.”
Not only would it violate this Committee's standards and procedures for a nominee to answer questions about issues that may come before him as a judge, it would also be unethical for the nominee to answer such questions. Some have argued that nominees cannot talk about cases, but that they can still talk about issues. Well, the Code of Judicial Ethics draws no such distinctions. The American Bar Association Model Code of Judicial Conduct dictates, and I quote, “that a judge or candidate for election or appointment to judicial office, shall not, with respect to cases, controversies or issues that are likely to come before the Court, make pledges, promises of commitments that are inconsistent with the impartial performance of the judicative duties of the office.”
The import of this ethical rule is unambiguous. If a nominee is asked to commit himself to a particular stance on an issue that is likely to come before him as a judge, that nominee is obligated to decline to answer the question. Any other approach would violate the Code of Judicial Conduct.
Judge Roberts, I expect you to adhere to the Code of Judicial Ethics, and I want you to know that I will defend your refusal to answer any question that you believe is improper under those circumstances.
I would also like to emphasize that the standards for questioning that apply in this Committee are not simply quaint relics of the past to be abandoned at no cost to the future. Rather, these rules are fundamental to preserving the nature and role of an independent Judiciary. A judicial nominations process that required candidates to make a series of specific commitments in order to navigate the maze of Senate confirmation, would undermine the very concept of a fair and independent Judiciary. Constitutional law would become a mere extension of politics, but in a less ac
If the Supreme Court operated this way, if it simply enforced political commitments made during the confirmation process, why would we give the power of judicial review, the power to strike down laws made by other more accountable and democratic branches of the Government? Granting this kind of power to the Supreme Court, the power to override democratic majorities, makes sense only if what the Court is deciding is applying and upholding the rule of law and our Constitution. When the Court adheres to that neutral and unbiased role, rather than making policy like the other branches, it is enforcing principles that the people themselves have deemed so important that they should be installed in the constitutional firmament, and placed above the reach of transient majorities or the political compromises reached by elected representatives.
The Courts legitimate authority derives not from commitments made during confirmation, but from its obligations embodied in the Constitution. I raise this matter not to suggest that all questions about a nominee's understanding of the law are improper. Indeed, I think that an examination of the Court's role, and the source of legitimacy of its authority, reinforces the importance of inquiring into a nominee's judicial philosophy, of determining whether he is devoted to upholding and enforcing the laws and the Constitution as they were adopted by the people.
Our proper role this week is to determine whether Judge Roberts has the character, the legal ability and the judicial philosophy to fulfill that responsibility.
Chairman SPECTER. Thank you very much, Senator Kyl.
THE STATE OF WISCONSIN
Judge Roberts, let me also extend my welcome to you this afternoon and to your family. Judge Roberts, if confirmed you will succeed Justice Rehnquist and serve as only the 17th Chief Justice in the history of the United States, and the youngest in 200 years. You are nominated to a position of awesome power and responsibility. The decisions you and the other Justices make will shape the lives of every person in America for generations.
Yet for only a few days this week will the people, through their Senators, be able to question and to judge you. That means that we on this Committee who will be questioning you have an awesome power and responsibility as well.
Judge Roberts, our democracy, our rights and everything we hold dear about America are built on the foundation of our Constitution. That remarkable document has endured throughout our history. In the hands of the Supreme Court, the Constitution has established a right to equal education regardless of race, has guaranteed an attorney and a fair trial to all Americans, rich and poor alike. It has allowed women to keep private medical decisions private. It has allowed Americans to speak, vote and worship without interference from their Government.
You will lead the Court in its most solemn duty to interpret the has the last say in what will be the scope of our rights and the breadth of our freedoms. The Court even has power over which constitutional questions it will hear and which cases the Court will decide. That is why the Supreme Court is so vital to our lives, and who decides these issues, Judge Roberts, is therefore of unsurpassed importance.
Moreover, you will enjoy even greater authority as Chief Justice of the United States than your fellow Associate Justices. You will not only lead an entire branch of our Government if you are confirmed, but also you will have a less evident but an even more important power because it will be your sole responsibility to determine which Justices write which opinions when you are in the majority. Who writes the opinion governs the principle the case stands for, and whether the precedent it sets is broad and important or narrow and less consequential.
If you are confirmed for this lifetime position, your decisions and those of your colleagues will be the final word on the rights and freedoms of all Americans for decades to come. You will have no constraints on the decisions you reach, other than your understanding of the Constitution and your heart. That is why it is so essential that we, the democratic representatives in a democratic country, take this week to probe that understanding and that heart.
This process of lifetime tenure is unique in our system of Government. The President, Senators and Governors make decisions every day. Our choices and our opinions are transparent to the public, and every few years we are accountable for the decisions we make and the votes we cast. If the people do not like our votes or disagree with our record, then they vote for someone else and we are gone. Just as we want and need to know much more about you, we presume that you want the country to know a lot more about what is in your mind and in your heart. People in high places of public trust in this country have a responsibility to share their thoughts about important issues like civil rights, privacy, property rights, separation of church and state, civil liberties, and much more.
We hope you understand the need to be totally forthcoming in your answers to questions on these issues. Evasions, avoidance and hiding behind legal jargon simply will not suffice.
So the panel will ask you about some of the most important issues that you will face should you be confirmed, for example, the right to privacy. In early writings you questioned this freedom, calling it a “so-called right to privacy.” So we expect you to discuss with us your current thinking on this basic question.
This past term the Court decided a ground-breaking case concerning the Government's power of eminent domain. The Supreme Court held that the Government may take private land not only for public use, but also for private development. Public opinion is opposed to this outcome, and so we look forward to hearing your views on this important issue.
The Supreme Court's decisions may be most important when they address the breadth of our civil rights. Some people think that your early writings were cavalier and dismissing many civil rights protections. For example, you were active in efforts to narrowly de
Congressional power to address civil rights and other important issues while a judge on the D.C. Circuit does give us some pause.
The American people deserve to know how you will approach cases involving voting rights, gender discrimination, violence against women, and affirmative action, among many others.
Finally, some speculate that if confirmed, you will seek to weaken the separation between church and state. Your critics point to positions you took as a Government attorney, critical of Supreme Court decisions on prayer in school. And so we need to hear your views about the Establishment Clause of the Constitution as well.
Judge Roberts, if confirmed, we can expect that you will serve 25 to 30 years as Chief Justice of the United States. You will likely become the most influential Justice of your generation. During these decades you will help shape the nature of our country and our democracy. It will be your job to give life and meaning to the broad and lofty promises of the Constitution—such essential principles as due process, equal protection and free speech, and to stand up for the civil rights and the liberties of the underrepresented and the unpopular.
Before we decide whether to entrust you with this power, we ask you to stand before the public and explain your views, express our hopes, and expound on your approach to the bedrock principles that guide us as a Nation.
We have an obligation to find out where you will take us before we decide whether we want you to lead us there, and most importantly, you have an obligation to tell us.
This would be an appropriate time to share my perspective on how I will judge a nominee. In judging this and other Supreme Court nominations my test has been judicial excellence. To me judicial excellence involves four elements.
First, a nominee must possess the competence, character and temperament to serve on the Supreme Court. He or she must have a keen understanding of the law and the ability to explain it in ways that the American people will understand.
Second, judicial excellence means that a Supreme Court Justice must have a sense of the values which form the core of our political and economic system. We have a right to require the nominee to understand and respect our constitutional values.
Third, judicial excellence requires a sense of compassion. The law is more than an intellectual game, and more than a mental exercise. As Justice Black said, "The Court stands against any winds that blow as havens of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered or because they are nonconforming victims of prejudice and public excitement."
A Supreme Court Justice must understand this. He or she must recognize that real people with real problems are affected by the decisions rendered by the Court. They must have a connection with and an understanding of the problems that people struggle with on a daily basis. Justice, after all, must be blind, but it should not be deaf.
And finally, judicial excellence requires candor before confirmation. We are being asked to give the nominee enormous power, so they see the world, and we need and we deserve to know what is in your mind and in your heart.
Judge Roberts, I am convinced that you satisfy the requirements of competence, character and temperament. I enjoyed meeting you a few weeks ago and appreciated our discussion. Your legal talents are undeniably impressive. Yet, while we are now familiar with your abilities, we still know precious little about your philosophies and views on crucial issues that you will face on the Supreme Court in the years ahead.
We look forward to these hearings as an opportunity to learn more and measure whether you meet our test of judicial excellence.
[The prepared statement of Senator Kohl appears as a submission for the record.]
Thank you, Mr. Chairman.
THE STATE OF OHIO
Judge Roberts, I congratulate you on your nomination, applaud you on your extraordinary legal career, and welcome you and your wife, Jane, and your children Jack and Josie to our hearing. Over the next several days we will be spending a lot of time together, you and the 18 Members of this Committee and the American people.
This is the time really for a national conversation, a conversation about the document that binds us all together as a Nation and as a people. That document of course is our Constitution. For more than 215 years we have been having an extended conversation about the meaning of our Constitution. Sometimes the conversation has been civil, sometimes it has been passionate, and sometimes, tragically, it has been violent.
The New Deal and the court battles that were fought about the scope of the Federal Government's power to combat the Great Depression was really a debate about the meaning of the Constitution. The civil rights movement and the vigorous and often violent resistance to the efforts to bring about equality for all Americans, was and remains a debate about the meaning of our Constitution. The Civil War, the most violent and bloodiest time in our history, was really a war about the meaning of our Constitution.
We have seen a President resign, elections decided, and popular laws overturned all because of our Constitution. But our Constitution is more than just a symbol of our Nation's history. It is also a light for the rest of the world. As a Nation we were among the first to sit down and draft a document that quite literally constitutes our Government, but we were not the last. Since our Founders embraced the idea of a written Constitution, others have followed suit. In fact, after the fall of the Soviet regime, we witnessed an explosion of constitution writing in Eastern Europe. There are now more than 170 written constitutions in the world, more than half of which have been drafted just in the last 30 years. To paraphrase Thomas Paine, the cause of America truly is indeed