Department of State, Foreign Operations and Related Programs Appropriations Act, 2006

DEPARTMENT OF STATE, FOREIGN OPERATIONS, AND RELATED PROGRAMS APPROPRIATIONS ACT, 2006

BREAK IN TRANSCRIPT

Mr. DURBIN. Madam President, I am glad I am following the comments of my colleague Senator Cornyn because we are both privileged to serve on the Senate Judiciary Committee, which will be the first line of inquiry in relation to Judge John Roberts, who has been nominated by President Bush to serve on the U.S. Supreme Court.

I have been in public life for over 20 years and cast over 10,000 votes on so many different topics. If you had asked me what is the most important vote you have ever cast, it is easy; the most important vote you are ever called on to cast is whether America goes to war, because you know as a result of that vote, if the answer is affirmative, that Americans will lose their lives. You will ask families to give up their sons and daughters, husbands and wives, brothers and sisters, in the name of defending America. So there is nothing more important than that vote. It is one of the few times--and I faced it three or four times in my congressional career--when you really do lose sleep. You toss in bed at night thinking, What is the right thing to do?

I would say that after a vote on war, the second most challenging vote is the one we will face in a few weeks right here in the Senate, the selection of an individual to serve on the Supreme Court. Why is it so important? I think it is important because we know, America knows, the Supreme Court is a very special institution in our democratic form of Government. It may be--in fact I would argue that it is--the single most important institution when it comes to protecting our rights and liberties. Across that street--we can see it through the glass door here--is the Supreme Court, with nine individuals who will make decisions on a regular basis that will change the face of America, change the lives of American people. Think about the power you give to that person who serves in the Supreme Court: a lifetime appointment to stand in judgment not only of individuals and their causes, but to stand in judgment of laws that have been written by past generations and to stand in judgment of new laws that come before them with constitutional questions and policy questions. It is a momentous responsibility.

Rarely does the Senate have an opportunity to consider a vacancy on the Supreme Court. I have served now for 9 years in the Senate and never cast a vote on a Supreme Court nominee. This is the longest period of time since 1823 when we have not had a vacancy on the Supreme Court. Now we do. With the retirement of Justice Sandra Day O'Connor we have an opportunity to fill this vacancy with a person of quality, someone who will serve our Nation.

President Bush has nominated Judge John Roberts of the District Court of Appeals. I am familiar with him to a limited extent because he came before our Senate Judiciary Committee several years ago. I think I would concede, and most would concede, the obvious: He is a very well qualified person. This man was summa cum laude at Harvard, editor of the Harvard Law Review, and has had some of the most important responsibilities as Principal Deputy Solicitor General speaking on behalf of the Government of the United States of America. He has worked at one of the most prestigious law firms in our country. There is no question about this man's legal skill--none at all.

Nor has there been any serious question of any kind raised about his integrity, his honesty. I have not heard a single word suggesting he does not have the temperament to be a Federal judge. After all, it is a lifetime appointment and those of us who practiced law before Federal judges know that sometimes lifetime appointments can go to their heads and they become somewhat imperial. That has never been suggested when it comes to Judge Roberts.

So you say: Senator, if his legal skills are accepted, if he is an honest man, if his temperament is good, why not approve him and get on with it? Because this is the Supreme Court. And because the American people expect us to go through the regular process of asking important questions. What are those questions? I think they come down to these: We need to know whether a nominee such as Judge Roberts is in the mainstream of American values; whether he is coming to this position on the Supreme Court with a balanced view, an open mind, the kind of judicial outlook on the challenges he faces which will do the Court proud and do the Nation proud.

What kinds of issues will we talk about? When we come to the Judiciary Committee I am sure there will be questions of civil rights. In my lifetime, America has changed dramatically in the field of civil rights. I can recall as a youngster seeing evidence of segregation, even growing up in East St. Louis, IL--segregated schools, segregated swimming pools--in my lifetime. But that changed in the 1960s and we decided as a Nation that it diminished us to discriminate against people because of their race.

We have decided since that the same rules should apply in many ways to questions of gender equity, whether women should have the same opportunity as men. So this whole body of law, this whole movement in the United States on civil rights is a movement we have come to accept as part of America. There are some who still resist it, but most Americans believe we are a stronger and better nation when we celebrate our diversity. The Supreme Court is the place where key decisions on civil rights will be decided. The rights of minorities, the rights of women, the rights of those with minority religious beliefs, the rights of the disabled--that Court will make those decisions.

Isn't it important to know whether Judge Roberts stands in the mainstream of values when it comes to our civil rights? I think it is essential. It is one of the most important questions.

What about the rights of women? They have been debated quite a bit on the floor of the Senate and the House, certainly before the Supreme Court. People point to the case of Roe v. Wade. That is the litmus test case for so many people. But I think it goes much deeper. It isn't just the question of abortion--which is controversial, and many people in good faith feel strongly for and against a woman's right to make that decision. But at the heart of that debate is something even more fundamental, the right of privacy. What is it that I should expect as an American citizen, that I should guard as my individual right of privacy? What right of privacy does my family have? Where can I draw the line and say the Government cannot cross this line?

There have been cases before the Supreme Court that decided that, made those decisions and decided where that line would be drawn.

Let me tell you of one, because when I tell youngsters--I just had a group of college students I spoke to here on the Hill. When I tell them the story, I can see they are absolutely amazed, but this is something that happened in recent memory for some. Just a few weeks ago was the 40th anniversary of a Supreme Court decision called Griswold v. Connecticut. It was a landmark decision. The nine Justices found in our Constitution--which I keep in my desk and Senator Byrd carries with him at every waking moment--a concept that is not written in the Constitution. Search this Constitution with ROBERT C. BYRD at your side and you will never find the word privacy, but the Supreme Court found the concept of privacy in this Constitution when they considered the case of Griswold v. Connecticut.

What was that case all about? A little history is worth repeating. At the turn of the last century, the 19th century, there was a man named Anthony Comstock. Mr. Comstock came from the State of New York. He had passionate convictions when it came to morality. He believed it was wrong to have any form of pornography, any form of abortion, and any form of birth control. After passing a State law in New York, he was elected to Congress, which enacted the Comstock law that said basically we prohibit the dissemination of information even about birth control, and then Congress did something more. They gave Anthony Comstock of New York extraordinary powers that no American has today. They made him an agent of the U.S. Post Office and gave him the power to investigate and arrest people who violated the law that was passed in his name.

He spent his adult life traveling across the United States trying to find those who were giving people counseling on birth control or abortions, and so forth, and prosecuting them under the law in his name. Before he died, he said he had filled up 61 different passenger train cars with all the people he had arrested in the name of his law, and it was in that Anthony Comstock tradition that States such as Connecticut enacted laws which said no married person can legally go to a pharmacy and have a prescription filled for birth control pills. In 1965, no doctor in Connecticut could legally prescribe birth control pills, and no pharmacist could legally fill the prescription for a married person. This was the law in Connecticut in 1965. When I tell that to young people today, they say: you have to be kidding. No. That was the law in Connecticut and other States.

When the law was challenged, the Supreme Court across the street said: that is wrong. That is such an intimate, personal, private decision, the Government should stay away from it. And in this Constitution, without the express words, they found the concept of privacy, and that concept of privacy 8 years later was part of the rationale for Roe v. Wade, that that decision on terminating a pregnancy was a personal, private family decision and that except under extraordinary circumstances the Government should not get involved.

So when Judge Roberts comes before us, some have argued that it is out of line for us to ask him: what is your position when it comes to the Government and the right of privacy? I think it is fundamental. I want to know what is in his heart and what is in his mind.

Does he believe in this concept we have seen enshrined in Supreme Court decisions, or does he believe the Government should infringe on privacy rights?

You say, well, Senator, you are pointing to cases that are 40 years old, 30 years old. How is that relevant today? Consider the matter of Terri Schiavo, the tragedy involving this poor young woman who for 15 years was in this--I do not know if vegetative state is the proper word, or comatose state, kept alive by a feeding tube, case after case in court as to whether her husband, who said he expressed her will that she didn't want to live under these circumstances, had the right to end this feeding tube, case after case, court after court, squabbles and arguments within the family--good faith, genuine arguments. And then finally the day came when all these legal appeals had been exhausted. There was a movement in Congress to step in, to have the Federal courts and the Federal Government step into that hospital room, the room where that tragic story of Terri Schiavo was taking place. The argument was made in this Chamber and on the floor of the House that the privacy of that family, this intimate personal decision, should take a back seat to the right of the Federal court to insert itself into that room.

Think about it. Hundreds and thousands of American families every single day make that hard decision. They do it hoping they have done the right thing for the poor person who is suffering and for the family that survives. And some argued at that moment, when that doctor and that family has to sit down and make that heart-breaking decision, it is time for the Federal court to step in. The right of privacy, a right still unresolved and that will be resolved many times over by the person we put on the Supreme Court.

Workers' rights, the right to work in a safe workplace, the right to be paid a fair wage, the right to make certain that if you have paid a lifetime into a retirement system and someone tries to take it away, you have a moment in court to stand up for what you have worked for. Those decisions course through the Federal courts all the way to the Supreme Court, and this nominee and others who are the deciding votes make those decisions.

I could go on with all of the agenda the new Supreme Court Justice might face, but I hope in these few moments that I have spoken, you understand the gravity of this decision.

Judge Roberts is 50 years old. If he is a healthy person with a good lifespan, he may sit on that Court for a quarter of a century. He may be there 25 or 30 years. We have one chance, only one, to ask questions of him, to ask what is in his heart, what are his values, does he reflect the mainstream of America.

Sandra Day O'Connor, when she came to the Court, was befriended and sponsored by one of the greats who served in the Senate, Barry Goldwater of Arizona. I can remember as a college student, Barry Goldwater's race for President of the United States in 1964. He was running as a genuine conservative and he lost. LBJ beat him handily. But he came back to the Senate, retired, and always maintained his dignity and interest in public service. When you look back at his career, he was more a libertarian than conservative, but he surely inspired a lot of people. He wanted Sandra Day O'Connor to serve on the Supreme Court. He liked the fact she was so talented. She graduated No. 3 in her class at Stanford Law School, had a tough time finding a job because she was a woman, and was elected to the State senate. Senator Barry Goldwater thought running for public office was a good thing. I do, too. I think running for public office humbles the exalted and it is a good thing when people have that experience. And she became the first woman to serve on the Supreme Court. Most people said she would follow in the Barry Goldwater conservative tradition, and she did, but it was mainstream conservatism. It was the kind of conservatism that many in the Republican Party and even some in the Democratic Party are very comfortable with.

Later in her career of 24 years of service you saw the libertarian streak coming out in her opinions. She started standing up for a woman's right to choose. She did not want to eliminate Roe v. Wade. She stood up when it came to affirmative action at the University of Michigan. She stood up when it came to the rights of prisoners and detainees even in this war on terrorism--sort of unpredictable, but clearly demonstrating that she had an open mind even as a mainstream conservative.

Now, I am resigned to the fact that when President Bush nominates someone to the Supreme Court, it won't be my choice. I am resigned to the fact that person will be a conservative. But what I am looking for and many Democrats are looking for is someone who is a mainstream conservative. I want them to hold the basic conservative values but not come to the Court with some movement on their mind, some political agenda on their mind. I want them to look at things honestly, with an open mind.

I sincerely hope Judge Roberts ends up being one of those people as we consider his nomination. We need to find out basic things about him, questions that were not answered when he stood for confirmation to the U.S. Court of Appeals for the District of Columbia Circuit. He has the intelligence for the job. We will ask him whether he has the independence for the job. He has the credentials for the job. But we need to ask questions about his commitment to the basic freedoms and liberties in America. The Senate must determine through this confirmation process whether Judge Roberts is entitled to a lifetime position on the highest Court of the land. I know he avoided some answers in an earlier hearing. I hope he will be open and candid and honest at his next hearing. I do not insist that he agree with me on every issue, but I insist that he be open and honest in his answers so we can understand where he is coming from. The Senate and the American people have a right to know where he stands.

Madam President, I yield the floor.

http://thomas.loc.gov/