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to vote. That did not happen until 1920, and decades later sti took an historic constitutional ruling, a unanimous ruling by United States Supreme Court in the case of Brown v. Boan Education, and then landmark legislation by the Federal Gov ment for America to begin to provide a measure of equality many who were held back for so long because, and only beca of the color of their skin.

I have long been a proponent of First Amendment freedoms open Government because the public's right to know what th Government is doing promotes accountability.

Federal Judges are not elected. They serve for life if they confirmed. The people never have the opportunity for effective o sight of their work. Judiciary is the most isolated branch of Government from public accountability. So this is the only opp tunity to examine what kind of justice John Roberts will dispe if promoted to the Supreme Court, the direction he would lead Federal Judiciary.

This hearing is the only chance that "We the People" have hear from and reflect on the suitability of the nominee to be a fi arbiter of the meaning of the Constitution. Open and honest pub conversation with a nominee in these hearing rooms is an imp tant part of this process. This hearing is about the fundament rights of all Americans, and you are the first nominee of the 21 century. If you are confirmed, you will serve not just for the maining 3 years of the Bush administration, but you could ser through the administrations of the next seven or eight Presiden Judge Roberts, you will be deciding matters that affect not only Americans today but also our children and our grandchildren.

In one of these hearings nearly 20 years ago, I noted how critic it is for the Senate to engage in a public exploration of the judici philosophy of Supreme Court nominees. I said: “There can hard be an issue closer to the heart of the Senate's role than a full ar public exposition of the nominee's approach to the Constitution an to the role of the courts in discerning and enforcing its command That is what I mean by judicial philosophy.” That truth has no changed.

What is more difficult to see, though, is the arc of the law years ahead, as Justices will vote on which cases to accept an then how to decide them. Ours is a Government of laws. When w are faced with a vacancy on the Supreme Court, we are reminde that it is our fellow citizens, 9 out of our 280 million Americans who interpret and apply those laws. The balance and direction the Supreme Court in now at issue with the two vacancies of Chie Justice William Ruhnquist and Justice Sandra Day O'Connor. Chie among emerging concerns are whether the Supreme Court will continue its recent efforts to restrict the authority of Congress to paso legislation to protect the people's interest in the environment and safety, and in civil rights, and whether the Supreme Court will efbeen amassed in the last few years, fectively check the greatly enhanced Presidential power that has be the protector of the rights of all Americans, not just Repub

In other wordø, Judge Roberts, the issue is whether you would licans, not just Democrats, not just Independents, but all Ameri

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[The prepared statement of Sena sion for the record.]

Chairman SPECTER. Thank you your statement. Thank you for you ship on observing the time so metic

Senator Hatch.

to vote. That did not happen until 1920. and decades later still: took an historie constitutional ruling, a unanimous ruling by the United States Supreme Court in the case of Brown v. Board o Educa:!on, and then andrark leszsiation by the Federal Govern ment for America to begin to provide a measure of equality : many who were beið back for so long because, and only because of the color of their skin

I bave long been a proponent cé First Amendment freedoms and open Government because the public's right to know what the Government is doeng promotes accountability,

Federal Judges are not elected. They serve for life if they an consired. The people never have the opportunity for effective over sight of their work. Judiciary is the most isolated branch of oz Gvernment from public acrountability. So this is the only oppur turity to examine what kind of justice John Roberts will dispens if promoted to the Supreme Court, the direction he would lead the Federal Judiciary

This beanng is the or's chance that "We the People have 1 bear from and re:ext co toe stability of the nominee to be a fin arbiter the meaning of the Constitution. Open and honest pubir Qarerson with a demiseen these hearing rooms is an ineren tant pas e os process. This bearing is about the fundamenta nnes 3 a trecians andre are the first nominee of the 2 CEILT. I Fou are not rw will serve not just for the : mr.unin 3 years of the Buddhinistration, but you could 37 three the action of be nert seven or eight Presidens Judge Robers Erbe des matters that affect not only 2 Abercas: darbutas and our grandchildren.

La cze cibe bears spears ago. I noted how critic it is for the Stormboc erporation of the judica phicaphy Sosete I said: "There can haru be an Sederhebene Senate's role than a full as puc cepsibe mire's prac to the Constitution ape to the resten aard encring its commands That is w: I 23 expaper. That truth has of

What is more attese this be art of the law in the vears arzaias Ses Tresa na nich cases to accept 23 then Duw so decide the chos is a Greasest of laws. When are crew ray care Supreme Cout, we are reminde! shat it is users currimin Americans wha interpretacje w The tase and direction of the Supzzetts se na be two vacancies of Chile Justice van Rensseria Dar O Connor. Chief amers 2 wees the Supreme Court will coninue iis Sie aucunty of Cogness to pasi castina para mes nesibe eavironment and verv. and settings anteribe Supreme Court will ef

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STATEMENT OF HON. ORRIN G. H

THE STATE C Senator HATCH. Thank you, Mr. C

I want to begin by saying that my the family of Chief Justice William life on Earth just the way he lived i nity. I am glad that his family was w He was a good man and a great Judg

Judge Roberts, I know that you ar mained close friends. He would have clerk serve with him as a colleague have been nominated to succeed him

When President Bush nominated yo post on the U.S. Court of Appeals, you Committee, and additionally answere questions from various Senators. Th twice unanimously gave you its hig That process covered a lot of ground, issues which are sure to be raised he well that the Senate confirmed you wi prised now, however, if it seems like evaluation had ever happened.

Let me mention one example relatin to show how the confirmation process ren G. Harding nominated former Utah to the Supreme Court on September 5t Judiciary Committee Chairman wents and after a few remarks, made a motior The Senate promptly and unanimously sition, no fishing expedition, no scurrilou judicial selection process, of course,

some political forces want judges to do is change from what Am ica's founders established.

America's founders believed that separating the branches of G ernment with the Legislature making the law and the Judiciary terpreting and applying the law is the linchpin of limited Gover ment and liberty. James Madison said that no political truth h greater intrinsic value. Quoting the philosopher Montesquieu, Ale ander Hamilton wrote in the Federalist No. 78 that, “There is liberty if the power of judging be not separated from the Legisl tive and Executive powers."

Well, times have changed. Today some see the separation of po ers not as a condition for liberty, but as an obstacle to their ow political agenda. When they lose in the legislature they want th Judiciary to give them another bite at the political apple. Polit cizing the Judiciary leads to politicizing judicial selection.

The confirmation process has sometimes been, it seems to m unbecoming of the Senate and disrespectful of nominees. I applau President Bush for resisting this trend and for nominating qual fied men and women who as judges will not legislate from th bench, and you are a perfect example of that.

The conviction that judges interpret and apply but do not mak the law, helps us sort out the information we need, the question we ask, the standards we apply, and the decisions we make. Wit that in mind, I believe that there are three facts that should guid us in this hearing.

First, what judges do limits what judicial nominees may discuss Judges must be impartial and independent. Their very oath of of fice requires impartiality and the canons of judicial ethics prohibi judges and judicial nominees from making commitments regarding issues that may come before them. I will be the first to admit tha Senators want answers to a great many questions, but I also have to admit that a Senator's desire to know something is not the only consideration on the table. Some of have said that nominees who do not spill their guts about whatever a Senator wants to know are hiding something from the American people. Some compare a nominee's refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment.

These might be catchy sound bites, but they are patently false. That notion misleads the American people about what judges do and slanders good and honorable nominees who want to be both responsive to Senators and protect their impartiality and independence.

Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues. Some Senators consult with law professors to ask these questions a dozen different ways, but we all know that is what they seek.

In 1993, President Clinton's Supreme Court nominee, Judge Ruth Bader Ginsburg, explained better than I can why nominees cannot answer such questions no matter how they are framed. She said, “A judge sworn to decided impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judi

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as ard zici vezes se mikrg commitments regarding strs 3: Darre tetore then I will be the first to admit that Searts unters to a great rury questions, but I also have simba Sect's desire to row something is not the only esger- oc the table. Some of have said that nominees who Cc : their gits about whatever a Senator wants to know are hinsaking fre the Aterican people. Some compare a nominees us to volate his judicial oath or abandon judicial ethics to takrg the Fifth Amerdment. These might be catchy sound bites, but they are patently false

. That notion misleads the American people about what judges do and slanders good and honorable nominees who want to be both re sponsive to Senators and protect their impartiality and independence.

Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues. Some Senators consult with law professors to ask these questions a dozen different ways, but we all know that is what they

In 1993, President Clinton's Supreme Court nominee, Judge Ruth Bader Ginsburg, explained better than I can why nominees annot answer such questions no matter how they are framed. She aid, “A judge sworn to decided impartially can offer no forecasts, o hints, for that would show not only disregard for the specifics f the particular case, it would display disdain for the entire judial process.”

Nominees may not be able to opine or speculate about hypoth with concrete issues and real facts ciary itself has existed, the Suprei not have the authority to render s not be surprised then when noi judges themselves may not provis guide us here is that, no matter h things, judicial nominees are lim That limitation is real, and it com judges do.

The second fact is that nomine where to draw the line. Judges, not cial office. Judges, not Senators, are ethics. Judge Roberts will be a Fe come. This process will only determ cupy. He must determine how best 1 Different nominees may draw this 1 draw the same kind of line protec and independence.

Justice Stephen Breyer drew that ents and lawyers must understand minded. Justice Anthony Kennedy d that the public expects that a judge his temperament and character, not

Recently one of our colleagues on myth the idea that Justice Ginsburg lated to how she would rule. Anyone plays of Justice Ginsburg knows that ality.

I was on this Committee in 1993. ing mythological tales when she refus questions, including mine, that she be said was her rule of "no hints, no fc were her words, not mine. Justice preme Court nominee has done, she di necessary to protect her impartiality a

Finally, the third fact that should traditionally has respected the nomine

Seek.

draw the line. In response to some of
burg said, “I must draw the line at ti
respect what I have tried to tell you."
the line differently? Of course. But I
is the historical standard.

In 1967, our colleague, Senator Kenn this Committee, made the same point porting the Supreme Court nomination ator Kennedy said, “We have to respec Supreme Court would have to defer any which are either before the Court or v the Court.” This has been a procedure the past and is one which I think is bas. dent.

Justice Marshall drew his line, yet we confirmed him by a v of 69-11. Justice Sandra Day O'Connor drew her line, yet we c firmed her by a vote of 99-0. Justice Kennedy drew his line, we confirmed him by a vote of 97-0. Justice Ginsburg drew } line, yet we confirmed her by a vote of 96-3. Justice Breyer dr his line, yet we confirmed by a vote of 87-9.

We must use a judicial rather than a political standard to eva ate Judge Roberts's fitness for the Supreme Court. That standa must be based upon the fundamental principle that judges inte pret and apply, but do not make the law.

Judge Roberts, as every Supreme Court nominee has done in ti past, you must decide how best to honor your commitment to juc cial impartiality and independence. You must decide when that o ligation is more important than what Senators, including this on might want to know. As the Senate has done in the past, I belie we should honor your decision and make our own.

Judge Roberts, you have a tremendously complex and importa and honorable record, from law school through the various pos tions in Government that you held, to the judge on the U.S. Circu Court of Appeals for the District of Columbia to now. We have great deal of respect for you. We expect you to make a great Ju tice, and I just want to congratulate you on your nomination.

[The prepared statement of Senator Hatch appears as a submi sion for the record.)

Chairman SPECTER. Thank you very much, Senator Hatch.

I know Senator Warner is with us, one of the introducers, and of course, he is welcome to stay. But the timing, we will move t him at about 3:20, approximately.

Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR

FROM THE STATE OF MASSACHUSETTS
Senator KENNEDY. Thank you very much, Mr. Chairman,

Judge Roberts, I join in welcoming you and your family to this Committee and to this famous room--the site of so many historic hearings.

Today, our Nation's flags are at half mast to honor the memory of Chief Justice Rehnquist and his deep dedication to his beloved Supreme Court. We know that Judge Roberts was especially close to him, and our thoughts and prayers go to the Rehnquist family and all who knew him.

As we are all aware, the Senate's action on this nomination is profoundly important. It is a defining opportunity to consider the values that make our Nation strong and just, and how to implement them more effectively, especially the guiding principle of more than two centuries of our history--that we are all created equal.

Our commitment to this founding principle is especially relevant today. Americans are united as rarely before in compassion and generosity for our fellow citizens whose lives have been devastated by Hurricane Katrina.

That massive tragedy also taught us another lesson. The powerful winds and floodwaters of Katrina tore away the mask that has

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