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

I have long been a proponent of First Amendment freedoms a 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 a confirmed. The people never have the opportunity for effective ov sight of their work. Judiciary is the most isolated branch of o Government from public accountability. So this is the only opp tunity to examine what kind of justice John Roberts will dispen if promoted to the Supreme Court, the direction he would lead t 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 fin arbiter of the meaning of the Constitution. Open and honest publ conversation with a nominee in these hearing rooms is an impo 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 r maining 3 years of the Bush administration, but you could serv through the administrations of the next seven or eight President Judge Roberts, you will be deciding matters that affect not only a Americans today but also our children and our grandchildren.

In one of these hearings nearly 20 years ago, I noted how critica it is for the Senate to engage in a public exploration of the judicia philosophy of Supreme Court nominees. I said: "There can hardl be an issue closer to the heart of the Senate's role than a full and public exposition of the nominee's approach to the Constitution and to the role of the courts in discerning and enforcing its commands 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 in the years ahead, as Justices will vote on which cases to accept and then how to decide them. Ours is a Government of laws. When we are faced with a vacancy on the Supreme Court, we are reminded that it is our fellow citizens, 9 out of our 280 million Americans, who interpret and apply those laws. The balance and direction of the Supreme Court is now at issue with the two vacancies of Chief Justice William Rehnquist and Justice Sandra Day O'Connor. Chief among emerging concerns are whether the Supreme Court will continue its recent efforts to restrict the authority of Congress to pass legislation to protect the people's interest in the environment and safety, and in civil rights, and whether the Supreme Court will effectively check the greatly enhanced Presidential power that has

been amassed in the last few years.

In other words, Judge Roberts, the issue is whether you would

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cans, whether you can serve as the check and balance that all Americans expect.

The light of the nominations process is intense. It is intense because it is the only time that light is going to shine. The afterglow lasts for the rest of a Justice's career. "We the People" have just this one chance to inquire whether this person should be entrusted with the privilege and responsibility of interpreting our Constitution, and dispensing justice from the Nation's highest court. Two hundred eighty million Americans. The President stated his choice. Now there are only 100 Americans standing in the shoes of all other Americans, and on behalf of the American people, it is the job of the 100 of us in the Senate to do all we can to make sure we get it right.

Mr. Chairman, there is time left over, but I have said all I intend to say.

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

Chairman SPECTER. Thank you very much, Senator Leahy for your statement. Thank you for your leadership, and your leadership on observing the time so meticulously.

Senator Hatch.

STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH

Senator HATCH. Thank you, Mr. Chairman.

I want to begin by saying that my thoughts and prayers are with the family of Chief Justice William Rehnquist. He concluded his life on Earth just the way he lived it, independently and with dignity. I am glad that his family was with him when he passed away. He was a good man and a great Judge.

Judge Roberts, I know that you and Chief Justice Rehnquist remained close friends. He would have been proud to have a former clerk serve with him as a colleague on the Court, and now you have been nominated to succeed him as Chief Justice.

When President Bush nominated you 2 years ago to your current post on the U.S. Court of Appeals, you had two hearings before this Committee, and additionally answered approximately 100 written questions from various Senators. The American Bar Association twice unanimously gave you its highest "well-qualified" rating. That process covered a lot of ground, including many of the same issues which are sure to be raised here. You acquitted yourself so well that the Senate confirmed you without dissent. Do not be surprised now, however, if it seems like none of that scrutiny and evaluation had ever happened.

Let me mention one example relating to my home State of Utah to show how the confirmation process has changed. President Warren G. Harding nominated former Utah Senator George Sutherland to the Supreme Court on September 5th, 1922. That same day the Judiciary Committee Chairman went straight to the Senate floor, and after a few remarks, made a motion to confirm the nomination. The Senate promptly and unanimously agreed. There was no inquisition, no fishing expedition, no scurrilous and false attack ads. The

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

America's founders believed that separating the branches of Go ernment with the Legislature making the law and the Judiciary i terpreting and applying the law is the linchpin of limited Gover ment and liberty. James Madison said that no political truth ha 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 pov 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 me unbecoming of the Senate and disrespectful of nominees. I applau President Bush for resisting this trend and for nominating quali fied men and women who as judges will not legislate from the 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 questions we ask, the standards we apply, and the decisions we make. With that in mind, I believe that there are three facts that should guide 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 prohibit judges and judicial nominees from making commitments regarding issues that may come before them. I will be the first to admit that 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 independ

ence.

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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Finally, the third fac traditionally has respec draw the line. In respo burg said, "I must dray respect what I have tri the line differently? Of is the historical standard

In 1967, our colleague this Committee, made t porting the Supreme Cou ator Kennedy said, "We Supreme Court would ha which are either before the Court." This has bee

Justice Marshall drew his line, yet we confirmed him by a vo of 69-11. Justice Sandra Day O'Connor drew her line, yet we co firmed her by a vote of 99-0. Justice Kennedy drew his line, y we confirmed him by a vote of 97-0. Justice Ginsburg drew h line, yet we confirmed her by a vote of 96-3. Justice Breyer dre his line, yet we confirmed by a vote of 87-9.

We must use a judicial rather than a political standard to eval 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 th past, you must decide how best to honor your commitment to jud cial impartiality and independence. You must decide when that of ligation is more important than what Senators, including this on might want to know. As the Senate has done in the past, I believ we should honor your decision and make our own.

Judge Roberts, you have a tremendously complex and importan and honorable record, from law school through the various pos tions in Government that you held, to the judge on the U.S. Circui 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 Jus tice, and I just want to congratulate you on your nomination.

[The prepared statement of Senator Hatch appears as a submis 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 to 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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