have had but 16 Chief Justices. But the responsibility is as great as the opportunity is rare.

The decisions of the Supreme Court have a fundamental impact on people's lives, and the influence of a Chief Justice far outlasts that of a President. As the youngest nominee to the High Court's top seat in 204 years, you have the potential to wield more influence over the lives of the citizens of this country than any jurist in history. I cannot think of a more awesome responsibility-awesome not in the way my teenage daughter would use the word, but in the Biblical sense of the angels trembling in the presence of God. But before you can assume that responsibility, we Senators, on behalf of the people, have to exercise our own responsibility. Fundamental to that responsibility is our obligation to ascertain your legal philosophy and judicial ideology. To me, the pivotal question which will determine my vote is this: Are you within the mainstream, albeit the conservative mainstream, or are you an ideologue who will seek to use the Court to impose your views upon us as certain judges, past and present, on the left and on the right, have attempted to do?

The American people need to learn a lot more about you before they and we can answer that question. You are without question an impressive, accomplished, and brilliant lawyer. You are a decent and honorable man. You have a remarkable resume. There are those who say your outstanding and accomplished resume should be enough, that you should simply promise to be fair and that we should confirm. I disagree. To me, the most important function of these hearings, because it is the most important qualification for a nominee to the Supreme Court, is to understand your legal philosophy and judicial ideology. This is especially true now that judges are largely nominated through an ideological prism by a President who has admitted he wants to appoint Justices in the mold of Scalia and Thomas. To those who say ideology does not matter, they should take their quarrel to President Bush.

I began to argue that consideration of a nominee's judicial ideology was crucial 4 years ago. Then I was almost alone. Today, there is a growing and gathering consensus on the left and on the right that these questions are legitimate, important, and awfully crucial. Therefore, I and others, on both sides of the aisle, will ask you about your views.

Here is what the American people need to know beyond your resume. They need to know who you are and how you think. They need to assess not only the sharpness of your mind but the fullness of your heart. They need to believe that an overachiever can identify with an underdog who has nothing but the Constitution on his side. They need to understand that your first-class education and your advantaged life will not blind you to the plight of those who need help and who rely on the protections of the Constitution, which is every one of us at one point or another. They need to be confident that your claim of judicial modesty is more than easy rhetoric, that your praise of legal stability is more than lip service. They need to know above all that if you take the stewardship of the High Court, you will not steer it so far out of the mainstream

As far as your own views go, however, we only have scratched the surface. In a sense, we have seen maybe 10 percent of you, just the visible tip of the iceberg, not the 90 percent that is still submerged. And we all know that it is the ice beneath the surface that can sink the ship.

For this reason, it is our obligation to ask and your obligation to answer questions about your judicial philosophy and legal ideology. If you cannot answer these questions, how are we to determine whether you are in the mainstream? A simple resume, no matter how distinguished, cannot answer that question. So for me, the first criterion upon which I will base my vote is whether you will answer questions fully and forthrightly. We do not want to trick. you, badger you, or play a game of "gotcha." That is why I met with you privately three times, and that is why I gave you a list of questions in advance of these hearings. It is not enough to say you will be fair. If that were enough, we would have no need for a hearing. I have no doubt you believe you will be a fair judge. I have no doubt that Justice Scalia thinks he is a fair judge and that Justice Ginsburg thinks she is a fair judge. But in case after case, they rule differently. They approach the Constitution differently, and they affect the lives of 280 million Americans differently. That is so, even though both Scalia and Ginsburg believe that they are fair.

You should be prepared to explain your views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers' rights, women's rights, and a host of other issues relevant to the most powerful lifetime post in the Nation.

Now, having established that ideology and judicial philosophy are important, what is the best way to go about questioning on these subjects? The best way, I believe, is through understanding your views about particular past cases, not future cases that haven't been decided, but past, already decided cases. It is not the only way, but it the best and most straightforward way.

Some have argued that questioning a nominee about his or her personal views of the Constitution or about decided cases indicates prejudgment about a future case. It does nothing of the sort. Most nominees who have come before us, including Justice Ginsburg, whose precedent you often cite, have answered such questions. Contrary to popular mythology, when she was a nominee, Justice Ginsburg gave lengthy answers to scores of questions about constitutional law and decided cases, including individual autonomy, the First Amendment, criminal law, choice, discrimination, and gender equality. Although there were places she said she did not want to answer, she spoke about dozens of Supreme Court cases and often gave her unvarnished impressions, suggesting that some were problematic in their reasoning while others were eloquent in their vindication of important constitutional principles. And nominee after nominee, from Powell to Thomas to Breyer, answered numerous questions about decided cases, and no one ever questioned their fitness to hear cases on issues raised during confirmation hearings.

So I hope you will decide to answer questions about decided cases, which so many other nominees have done. If you refuse to

the most preeminent litigators in America, to figure out a way in plain English to help us determine whether you will be a conservative, but mainstream conservative, Chief Justice or an ideologue. Let me be clear. I know you are a conservative. I do not expect your views to mirror mine. After all, President Bush won the election, and everyone understands that he will nominate conservatives to the Court. But while we certainly do not expect the Court to move to the left under the President, it should not move radically to the right.

You told me when we met that you were not an ideologue and you share my aversion to ideologues. Yet you have been embraced by some of the most extreme ideologues in America, like the leader of Operation Rescue. That gives rise to a question many are asking: What do they know about you that we do not?

Judge Roberts, if you want my vote, you need to meet two criteria: first, you need to answers questions fully so we can ascertain your judicial philosophy; and, second, once we have ascertained your philosophy, it must be clear that it is in the broad main

stream.

Judge Roberts, if you answer important questions forthrightly and convince me you are jurist in the broad mainstream, I will be able to vote for you, and I would like to be able to vote for you. But if you do not, I will not be able to vote for you.

Mr. Chairman, I have high hopes for these hearings. I want and the American people want a dignified, respectful hearing process, open, fair, thorough, aboveboard, one that brings not only dignity but, even more importantly, information about Judge Roberts's views and ideology to the American people. I, along with all of America, look forward to hearing your testimony.

[The prepared statement of Senator Schumer appears as a submission for the record.]

Chairman SPECTER. Thank you, Senator Schumer.
Senator Cornyn?

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM
THE STATE OF TEXAS

Senator CORNYN. Thank you, Mr. Chairman.

Judge Roberts, let me also join in extending a warm welcome to you and your family for these hearings. As the 15th speaker in the order of seniority here, I recall the adage I learned when I first came to Washington that everything has been said, but not everyone has said it yet. And perhaps by the time this hearing is over this week, you will have a fuller appreciation than you do now for that.

But, of course, you are a known quantity, so to speak, to this Committee and to this Senate, having been confirmed by unanimous consent just 2 short years ago. And I want to extend a compliment to you on your judicial service. You have served with distinction in your current capacity.

While the importance of your nomination as Chief Justice of the United States cannot be overstated, it seems as though each new nomination to the Court brings an element of drama, somewhat akin to an election. Indeed, we have seen special interest groups

to coerce you into stating your opinion on hot-button issues that are likely to come before you as a judge, as if this were an election. But, of course, this is not an election, and no reasonable person expects you to make promises to politicians about how you are likely to rule on those issues when they come before the Court as a condition of confirmation.

Still, some in our country have lost sight of the proper role of an unelected judge where the people are sovereign and where Government enjoys no legitimacy except by consent of the governed. They see unelected judges primarily as policymakers and arbiters of every pressing social issue that might arise, with the authority to dictate to the people what they think is good for us.

Well, this ideal of the Supreme Court as a super-legislature to which we might turn to give us everything that is good and stop everything that is bad is not a view that I share, nor, for that matter, did those who wrote and ratified the Constitution. The Constitution does not guarantee everything that is good and prohibit everything that is bad, or it could have been written in two sentences. Rather, it guarantees some specific things, it prohibits some specific things, and leaves the rest to be sorted out through the democratic process.

Alexander Hamilton, as you know, wrote in the Federalist Papers, which argued for ratification of the Constitution, that the judicial branch, he predicted, would be known as the least dangerous branch. He believed that there is no liberty if the power of judging is not separated from the legislative and executive powers. Its sole purpose was to interpret and apply the laws of the land. Its role would be limited.

Regrettably, Justices have not always been faithful to this constitutional design. All we need to do is to look at the Supreme Court's track record to see why abdicating our right of self-government to nine judges isolated behind a monumental marble edifice, far removed from the life experiences of the average American, is a bad idea.

For example, the Constitution says in part that the Federal Government shall not prohibit the free exercise of religion or abridge freedom of speech. Many Americans, including me, are concerned that the Supreme Court, by erecting extra-constitutional and contradictory judge-made standards in this area of the law, has effectively banned voluntary religious expression from much of our public life, turning what should be official neutrality into a policy of official hostility.

To be sure, the Court has been zealous in protecting the rights of those who express themselves or promote their products using violence or sex, but voluntary expression of one's faith, never.

Likewise, many Americans, including me, are baffled that the Supreme Court recently saw fit to strike down the display of the Ten Commandments in Kentucky but uphold the constitutionality of a display in Texas, even while the Ten Commandments itself is prominently displayed in the chambers of the United States Supreme Court on its ceiling.

Many Americans, including me, wondered what to read into the Court's recent dismissal of a suit seeking to deny school children

words "One nation under God." A majority of the Court refused to agree that the pledge was constitutional, leaving this time-honored tradition of school children across our Nation in legal limbo.

And, recently, the Court expanded the awesome power of Govern ment to condemn private property beyond all previous bounds by reading the public use limitation on eminent domain right out of the Constitution. Justice O'Connor warned, "The specter of condemnation now hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz Carlton, any home with a shopping mall, or any farm with a factory."

On what legitimate basis can the Supreme Court uphold State laws on the death penalty in 1989, then strike them down in 2005, relying not on the written Constitution, which, of course, had not changed, but on foreign laws that no American has voted on, consented to, or may even be aware of? When in 2003 the Court decided Lawrence v. Texas, the Court overruled a 1986 decision on the constitutionality of State laws based on the collective moral judgment of those States about permissible sexual activity. What changed in that intervening time? Did the Constitution change? Well, no. Did the Justices change? Yes. But should that determine a different meaning of the Constitution? Are some judges merely imposing their personal preferences under the guise of constitutional interpretation? Indeed, this was the same case, as you know, Judge Roberts, that served as the cornerstone of the Massachusetts Supreme Court's decision holding that State laws limiting marriage to a man and a woman amounted to illegal discrimination.

Let me close on an issue that several Senators have already mentioned today, and that is, your obligation to answer our questions. Of course, I share with all of my colleagues a desire and a curiosity, really, to know what you think about all sorts of issues. All of us are curious. But just because we are curious does not mean that our curiosity should be satisfied. You have no obligation to tell us how you will rule on any issue that might come before you if you are confirmed to the Supreme Court.

It boils down to a question of impartiality and fairness. One characteristic of good judges is that they keep an open mind until they hear the facts and hear the lawyers argue the case before them. If you pledge today to rule a certain way on an issue, how can parties to future cases possibly feel that they would ever have a fair day in court?

Justice Ginsburg, as we have heard already, one of the last Supreme Court Justices confirmed by the Senate, noted not too long ago, "In accord with longstanding norm, every member of the current Supreme Court declined to furnish such information. The line each Justice drew in response to pre-confirmation questioning is crucial to the health of the Federal judiciary." And this has come to be known as "the Ginsburg standard," although it has been the norm for all nominees who come before the Committee and before the Senate for confirmation.

Now, I know some of the members of the Committee will ask you questions that you cannot answer. They will try to entice you to abandon the rules of ethics and the long tradition described by Justice Ginsburg. But that should not concern you, Judge Roberts.