Confirmation Hearing of Judge John G. Roberts, Jr. Statement of Senator Charles E. Schumer
CONFIRMATION HEARING OF JUDGE JOHN G. ROBERTS, JR. STATEMENT OF SENATOR CHARLES E. SCHUMER
(AS PREPARED FOR DELIVERY)
Today U.S. Senator Charles E. Schumer, ranking member of the Judiciary Subcommittee on the Courts, made the following statement at the conclusion of the questioning period at the confirmation hearing of Judge John G. Roberts, Jr. for Chief Justice of the United States:
Let me say a few concluding words here. First Judge thanks for holding up so well during three days of grueling questions.
Judge, many of us on this committee have been wrestling with how to vote on your nomination since well before the hearings started and that process has accelerated now. I for one wake up in the middle of the night thinking about it and have been unsure how to vote.
My colleague from Delaware was on to something when he called this a role of the dice. But this is a vote on the chief justice of the Supreme Court. You will in all likelihood affect every one of our lives in many ways for a whole generation. This is not just rolling the dice; this is betting the whole house.
So I thought I'd share with you where some of us are in our thoughts. As with any important question, there are pros and cons.
On the pro side is first of all your brilliance. You have an amazing knowledge of the law, spent three days here talking about so many aspects of it without any paper in front of you at all, without a single aid whispering a word in your ear or passing you a note. Your knowledge of the law and your way of presenting it is a tour de force. You may very well possess the most powerful intellect of any person to come before the Senate for this position.
Second is that you seem to be a lawyer above all. You have devoted your entire adult life to the law and it is clear that you love it. Most people in that position tend not to be ideologues, but will follow the law wherever it takes them regardless of the consequences. You have repeatedly professed that to be true for you, but given that you spent most of you r legal life representing others, and that your limited tenure on the court of appeals didn't allow you to rule on very many non-technical cases there is not a long enough track record to prove that point.
Third and perhaps most important is your judicial philosophy of modesty and stability. Such a theory respects precedent, the Congress, and other judge's opinions. Modest jurists tend not to be ideologues and many of us on this side of the aisle would like the court to maintain and in cases related to the commerce clause like Morrison, increase, its modesty.
But in complicated decisions like this one, there is almost always a counterpoint. Yesterday you said that the decision of Brown v. Board could be described as modest. Breathtaking, wonderful, reversing 80 years of accepted but bad law yes. But modest? Could overturning Wickard, or Roe, also be modest within your definition? Nonetheless, your philosophy of modesty is an appealing and important philosophy to many of us.
On the con side is the question of compassion and humanity. I said on the first day of these hearings that it is important to determine not just the quality of you mind, but the fullness of your heart -- the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.
It didn't seem much, for instance, to concede that the wording of "illegal amigos" was unfortunate yet you refused to say so. America has in the 21st century moved beyond the cramped view of civil rights professed in the early Reagan administration, but you would not admit in 2005 that any of those views you argued for in the early 80s were misguided. That is troubling.
Second, is the refusal of the administration to let us see any documents you wrote when you served as Deputy Solicitor General, when you were not simply following policy but making it. This would have given us tremendous insight into who you are and what kind of justice you would make. But, for what seemed to be self serving reasons, they were refused. This was not your decision, but you carry its burden and we must consider this refusal when weighing how to vote.
Third and most important on the con side is your refusal to answer so many of our questions. I know you feel you were more forthcoming than most other nominees to the high court, but I must disagree. You were more forthcoming than a few - I do not know Justice Scalia's opinion on Dr. Zhivago, for instance - but most answered more relevant questions than you did. Your refusal to comment on any issue that you thought may come before the courtyour views on older, completely discredited cases like Lochner, Plessy, Korematsu, are of very little help to usmakes it very hard to figure out what kind of justice you will be, particularly in light of the fact that we have very little else to go on other than your assurances. You did speak at length on many issues and sounded like you were conveying your views to us, but when one went back and read the transcript each evening, there was less than met the ear that afternoon. Perhaps that is the job of a good litigator, but in too many instances it didn't serve the purpose of the hearing.
Having said that, obtaining documents and answering questions are a means to an end not an end in itself. In some cases, such as Miguel Estrada's nomination we had no knowledge of his views, and had no idea of what kind of judge he would make. In your case there clearly is some evidence.
We must now take the evidence we have and try to answer the fundamental question: What kind of Justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter, and Friendly? Will you be a very conservative judge who will impede Congressional prerogatives, but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the Court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve? This is the question we on this committee will be grappling with this week.
http://schumer.senate.gov/SchumerWebsite/pressroom/press_releases/2005/PR41835.Roberts%20Closing%20Statement.09.15.05.html