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The American commitment to the rule of law is one of our most exceptional characteristics as a people. It is the foundation of our liberties and our productive economic system, it is a product of centuries of development. In his magnificent speech in March of 1775 in the House of Commons urging King George not to go to war against the Colonies, Edmund Burke described America's commitment to the rule of law by saying, “In no country perhaps in the world is the law so general a study,” adding, “I hear they may have sold as many of Blackstone's Commentaries on the Law in America as in England.”
But activism by a growing number of judges threatens our judiciary. And frankly, that is what I am hearing as I talk to my constituents and hear from the American people. Activism is when a judge allows his personal views on a policy issue to infect his judg. ments. Activist rulings are not based on statutes or the Constitution, but reflect whatever a judge may think is decent or public policy.
This should not be. But even some members of our body have encouraged this thinking. Indeed, Judge Roberts, one Senator in recent weeks, the man did not know whose side you are on before he voted. His statement provides a direct glance, I think, into the philosophy of activism. When we have an activist judiciary, the personal views of a judge become everything. Who the judge is and whose side the judge is on, not the law and the facts, will determine the outcome of a case. Since judges hold their offices for as long as they live or choose to serve, and are unaccountable to the citizenry, activist rulings strike at the heart of democracy. Five members of the Court may effectively become a continuing constitutional convention on important questions such as taking of private property, the definition of marriage, the Pledge of Allegiance, or a moment of silence before a school day.
If a Congress acts wrongly, new members may be elected and a result changed by a simple majority. A Supreme Court decision founded on the Constitution can be changed by the people only by constitutional amendment, which requires a two-thirds vote of both houses and three-fourths of the State legislatures.
This result-driven philosophy of activism does not respect law. It is a post-modern philosophy that elevates outcomes over law. Today many believe the law does not have an inherent moral power and that words do not have and cannot have fixed meanings. Judges are thus encouraged to liberally interpret the words to reach the result the judge believes is correct. Activist Supreme Court judges have done this in recent years by saying they are interpreting the plain words of the Constitution in light of evolving standards of decency. This phrase has actually formed the legal basis for a number of recent decisions. But as a legal test, it utterly fails because the words can mean whatever a judge wants them to mean. It is not objective, cannot be consistently followed, and is thus by definition not law, but a license.
Such vague standards provide the Court a license to legislate, a power the Constitution did not provide judges. Indeed, recently this license has led some judges to conclude they may look beyond American standards of decency to the standards of foreign nations
concept is further revealed by a Supreme Court ruling in 2003, when the Supreme Court explicitly declared that the Constitution prohibits the elected representatives of the people—us—from relying on established morality as a basis for the laws they pass. The Court thus declares itself free to, in effect, amend the Constitution by redefining its words to impose whatever it decides is evolving standards of decency. Yet at the same time, it prohibits legislatures from enacting laws based on objective standards of morality.
While these unprincipled decisions are becoming too frequent, I do not want to suggest that such is the common practice in courts in America. Having practiced full-time in Federal court for 14 years, I witnessed this first-hand. Day after day, if the law and facts were on my side, I would win consistently. If they were not, I would lose. This was true regardless of whether a judge was a Democrat, a Republican, a liberal, or a conservative. Certainly our Founders were so adamant that judges be unbiased and committed to the law that they drafted a Constitution that gave them a lifetime appoint and provided that Congress could not even reduce
My fear today is that many have come to believe that to expect objectivity in judges is hopelessly naive. Liberals and conservatives openly make this point. On one committee, one that Senator Kyl quoted Lloyd Cutler as testifying at, we focused on the question of whether or not ideology could be a factor in a judge's rulings and that we should in effect admit that people have political views and that those political views will infect their rulings and therefore we should openly talk about that. A writer in the conservative National Review complained that Republicans are hurting the conservative cause by insisting on “abiding by those outdated norms, in effect suggesting conservatives should get their guys in there to promote their ideas.
While many advocates on the left and right would like a Court that promotes their agenda, I do not want that and neither do the American people. What we must have, what our legal system demands, is a fair and unbiased umpire, one who calls the game according to the existing rules and does so competently and honestly every day. This is the American ideal of law. Ideals are important because they form the goals to which we all strive. We must never abandon our ideal of unbiased judges, judges who rule fairly without regard to politics.
Two important bipartisan commissions, the Miller Center of Public Affairs at the University of Virginia, and the Citizens for Independent Courts, have issued reports that deplore any policies that would tend to politicize the courts. These hearings, therefore, provide this Nation an excellent opportunity to discuss these important concepts. Our Nation cries out for judges who love the law and who work every day to uphold its moral authority. The people rightly demand judges who follow, not make, law.
From everything I have seen and from what I have read, Judge Roberts, you are just the man to fill that need. Straight from central casting. We unanimously confirmed you 2 years ago to the Court of Appeals. I am confident that after this exhaustive process you will be confirmed to the august position of Chief Justice of the I look forward to participating in the hearing with you and congratulate you on being nominated to the position.
Chairman SPECTER. Thank you very much, Senator Sessions. Senator Feingold? STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FRO THE STATE OF WISCONSIN Senator FEINGOLD. Mr. Chairman, thank you, and, Judge Roberts, welcome. Welcome to you and your entire family.
First, I want to say, Mr. Chairman, how much I appreciate the evenhanded way that you and Senator Leahy have approached the preparations for the hearing.
Judge Roberts, I also want to thank you in advance for the long hours you will put in with us this week. I wish you well, and I truly do admire your record and your impressive career.
This is a confirmation proceeding, however, not a coronation. It is the Senate Judiciary Committee's job to ask tough questions. We are tasked by the Senate with getting a complete picture of your qualifications, your temperament, and how you will carry out your duties. Obviously, nominees to the Supreme Court must be subject to the highest level of scrutiny, and so as the nominee to be the Chief Justice of the United States, you will be subject to the ultimate level of scrutiny. Our colleagues in the Senate and the citizens of this country are entitled to a hearing that will actually help them decide whether you should be confirmed. And I am sure you understand that.
This is a lifetime appointment to preside over the Supreme Court and lead the entire Federal judiciary. You are obviously very talented, and you also look healthy. So I am sure
Senator FEINGOLD. I am sure you appreciate the importance of this hearing for the future of our country.
Some have called for a dignified process. So have I. But at times, it sounds like what some really want for the nominee is an easy process. That is not what the Constitution or the traditions of the Senate call for. If by dignified they mean that tough and probing questions are out of bounds, I must strongly disagree. It is not undignified to ask questions that press the nominee for his views on the important areas of the law that the Supreme Court confronts. It is not undignified to review and explore the nominee's writings, his past statements, the briefs he has filed, the memos he has written. It is not undignified to ask the nominee questions he would rather not answer should he prefer to remain inscrutable or, worse yet, all things to all people.
This process is not a game. It is not a political contest. It is one of the most important things that the Senate does—confirm or reject nominees to the highest court in the land—and we as Senators must take that responsibility very seriously.
The most recent nine Justices of the Supreme Court served together almost as long as any other Court in history, more than 11 years. Because the Court has been so stable for so long, and Chief Justice Rehnquist presided over it for 19 years, Members of Congress and lawyers and the public have come to know the views of
good at predicting the outcome of cases. That predictability is about to be tested because we will now have a new Chief Justice and because a member of the Court who was the deciding vote in many cases has also announced her retirement.
I do not think, however, that the public is required to wait until a new Chief Justice is seated on the Court to get some idea of how that new Chief Justice thinks, how that new Chief Justice will approach controversial issues that might come before the Court, and how that new Chief Justice also might run the Court. This hearing is our only opportunity to hear from this nominee how he would approach the important issues facing the Court.
In fact, I was struck as I was preparing for this hearing by remarks written years ago by Senator Grassley, my friend and colleague from Iowa and a senior member of this Committee, in the Committee Report on the nomination of Justice O'Connor. The current nomination to the position of Chief Justice makes his remarks even more apt. Senator Grassley said the following: “I do not agree that commenting on past Supreme Court decisions is a commitment to hold a certain way on future cases, and I feel that in order that we as Senators fulfill our duty, it is incumbent upon us to discover a nominee's judicial philosophy. In that we had a very limited number of judicial opinions rendered by Judge O'Connor on constitutional questions, it was my hope,” Senator Grassley said, “by asking specific questions regarding past Supreme Court decisions, that the Committee might obtain a clearer understanding of her philosophy. My purpose was to satisfy my questions regarding Judge O'Connor's record in that I felt it was less complete than many other Supreme Court nominees who have had extensive experience either on the Federal bench or in leadership positions in the profession of law.”
In some ways, Mr. Chairman, the record of our current nominee to the Court raises similar questions. He has a long record as a lawyer, but he has been on the Federal bench for only 2 years, and we have little in the way of his own writings on the issues before the Court to evaluate.
So, like Senator Grassley, I am interested in this nominee's views on a number of cases. I don't think that getting his reaction to those decisions will commit him to vote a certain way in a future case. After all, it is not that past case he will be deciding, but a different one. Even the current Justices, whose views on specific cases are well known, since they either wrote or joined one opinion or another, do not have to recuse themselves from a future case just because we know what they think of a crucial precedent in that case.
So I am looking for Judge Roberts to be forthcoming with this Committee about his views. So, to show the Senate's role in this process the respect it deserves, he should make every effort to be responsive.
Chief Justice Rehnquist himself acknowledged the importance of the Senate's role when he wrote the following in his last annual report on the Federal judiciary: "Our Constitution has struck a balance between judicial independence and accountability, giving indi
ject ultimately to the popular will because judges are appointed and confirmed by elected officials."
Now, that suggests to me that it is not only permissible, but critical, that the Senate seek to learn as much as it can about the views of nominees and that nominees be as forthcoming as they pribly can be without compromising their independence.
Now, we do have a mountain of material from the nominee's early years as a lawyer in the Justice Department and White House Counsel's office of the Reagan Administration. In memo after memo, his writing was highly ideological and sometimes diamimive of the views of others. I do, however, recognize that this in a different time, and he has been nominated to play a different kind of role than he played in those early Reagan years.
5«, frankly, I will be looking for a somewhat different John Rob-
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