Nomination of John Roberts

NOMINATION OF JOHN ROBERTS

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Mr. McCONNELL. Yesterday, I expressed my concern that some may try to turn the confirmation process for Judge John Roberts into a political circus. After recent media reports, I have become concerned that some of those fears I spoke of earlier in this Senate are coming true; namely, that our friends on the other side of the aisle are going to do everything they can to obstruct the confirmation process of the President's nominee to the Supreme Court.

Earlier, I spoke of the Washington Post article that outlined a carefully constructed plan of attack on the Roberts nomination. It was a three-staged battle plan.

The first stage was to assert that the amount of consultation from the White House, no matter the amount, no matter how much consultation, was somehow insufficient. But that dog clearly won't hunt. The White House consulted with over 70 Senators, including two-thirds of the Democratic caucus and every Democrat on the Judiciary Committee.

The President himself met with the Democratic leader and the Democratic ranking member of the Judiciary Committee. He and his staff were receptive to any and all suggestions our Democratic friends cared to give. Frankly, he has done more than the Constitution requires by far, and more than his predecessors did. No one can say he did not consult the Senate, period. End of story.

The second salvo against the President's nominee, as told to the Washington Post, was to try to distort and destroy his record and paint him as extreme. This plan, too, has failed.

Judge Roberts is one of the preeminent jurists of his generation. He is a top graduate of Harvard Law School and Harvard University. He was unanimously approved by the Senate for his current position on the U.S. Court of Appeals for the D.C. Circuit. Over 150 of his peers, Democrat and Republican alike, endorsed him for the current position he holds. And he has argued, as we have pointed out numerous times, before the Supreme Court 39 times. He is clearly in the mainstream, is fair-minded, has a keen intellect, and a sterling record of integrity.

So now some of our Democratic friends, as some of us could have predicted, have come to the third and final stage of the attack plan. They are making unreasonable demands for documents about the nominee.

Now, the administration has been very generous in releasing documents from Judge Roberts's time in the Justice Department as a special assistant to Attorney General William French Smith and his tenure in the White House Counsel's Office.

In fact, the Judiciary Committee will receive some 70,000 pages of documents, at the behest of the administration. Let me say again: That is 70,000 pages turned over. I doubt that our colleagues have pored through those pages already, and yet they are hungry for more.

Since the release of these documents, some in the media have hurriedly--some might say recklessly--skimmed document after document, many of them quite complex, looking for any hint of controversy so precious to the demands of the 24-hour news cycle. In so doing, they run the risk of simplifying complex constitutional issues beyond recognition.

For example, during the last couple of days, there has been a great deal of media attention regarding the arcane issue of so-called ``court stripping,'' a shorthand term describing the issue of whether Congress has the authority to deny jurisdiction to Federal courts.

The New York Times writes this morning that:

Mr. Roberts consistently argued that courts should be stripped of authority of abortion, busing, school prayer and other matters.

The Washington Post yesterday:

Roberts presented a defense of bills in Congress that would have stripped the Supreme Court of jurisdiction over abortion, busing and school prayer cases.

The Boston Globe:

One memo suggested that [Roberts] supported proposals in Congress to strip the federal courts of jurisdiction over abortion, busing and school prayer cases. ``Aha,'' say our friends in the media. The media and some of our friends on the other side of the aisle suggest that John Roberts may have taken a position on these controversial issues. The problem is not that this is an oversimplification. The problem is that it is just plain wrong.

As a young attorney in the Justice Department, John Roberts was assigned to write a memo advocating that Congress had the constitutional authority to determine the appellate jurisdiction of the Supreme Court and other federal courts. This memo was written in response to legislation introduced in Congress proposing to strip Federal jurisdiction on a number of controversial social issues. Now, Mr. Roberts was a constitutional scholar, and he did what constitutional scholars are frequently asked to do: argue a legal theory about congressional authority. Mr. Roberts was given this assignment by his boss, and he responded with the outstanding advocacy for which he is justly admired.

Making a legal argument, however, is miles away from endorsing the policy underlying the constitutional argument. And, as it turns out, John Roberts did not think that ``court stripping'' was good policy in the first place. Let me say again: John Roberts did not think that ``court stripping'' was a good policy in the first place.

The Associated Press reported, yesterday, that in 1985:

[A]s a lawyer in the Reagan White House, John Roberts wrote that Congress had authority to strip the Supreme Court of jurisdiction over cases involving school prayer and similar issues, but he added that ``such bills were bad policy and should be opposed.''

The second half of the story was he added that ``such bills were bad policy and should be opposed.'' This tempest in a teapot over ``court stripping'' refers to a position that Mr. Roberts never agreed with in the first place.

That is the problem with a rush to judgment on a complex legal document--these documents that have been released just recently. Instant media reports can muddy the waters by confusing a legal opinion with a policy position. A legal opinion is different from a policy position.

Now, half the story only conveys half the truth. Half the story only conveys half the truth. And a half-truth is frequently 100 percent wrong. I hope those in the media who got it wrong will not make the same mistake again. This is the exact kind of misrepresentation I hope the Senate can avoid as it debates the Roberts nomination.

Now, Judge Roberts deserves a fair and dignified process. The Senate needs to be thorough and deliberate, but it must be fair. I would say to our friends in the media, half a story is frequently 100 percent wrong. Read all the documents before reaching a conclusion.

So, Mr. President, I suggest we all take a deep breath and not rush to judgment in an effort to get tomorrow morning's headlines out before we have read the entire story.

I yield the floor.

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