Executive Session

Floor Speech

BREAK IN TRANSCRIPT

Mr. SCHUMER. Mr. President, I rise to speak on the nomination of Judge John Roberts to be Chief Justice of the United States.

I thank my colleague from Iowa for his heartfelt and outstanding words.

Votes like this come about so rarely that many Senators have spent their entire careers in this body without ever having had the opportunity to vote on a Chief Justice.

And most of us in the Senate today will likely never again vote on a nominee to that incalculably important position.

That is why I have been troubled about how some have characterized the votes of conscientious Senators in this case--Senators from my party who have struggled with, and deliberated over, Judge Roberts's record in arriving at their decisions.

As will be borne out tomorrow, Democratic Senators have given this vote the profound and serious consideration that it deserves.

We are not voting monolothically, but rather each according to his or her own conscience.

And that is what this vote is.

It is a question of principle--not of politics, partisanship, or positioning, as some have cynically suggested.

Democrats have truly struggled with this vote. I know I have. Like some others, I did not make up my mind until late on the night before the committee vote.

We are not marching in lockstep, with nary a dissent like my colleagues across the aisle.

But while this vote was a close call for many, (Like myself) the next one may not be.

While this nomination did not warrant an attempt to block the nominee on the floor of the Senate, the next one might.

If the President sends us a nominee who, like Janice Rogers Brown, believes that the New Deal was the triumph of a ``socialist revolution,'' there will be a fight.

If the President sends us a nominee who, like Priscilla Owen, was criticized by her conservative colleague--Alberto Gonzalez--for an ``unconscionable act of judicial activism,'' there will be a fight.

If the President sends us a nominee who, like Miguel Estrada, refuses to answer any real questions and whose record is not made fully available, there will be a fight.

If the President sends us a nominee who is committed to an agenda of turning the clock back on civil rights, workers' rights, individual autonomy, or other vital Constitutional protections, there will likely be a fight.

And it will be a fight without any winners.

So, Mr. President, on the eve not only of the confirmation vote on John Roberts, but also the President's nomination of a replacement for the seat of Justice O'Connor--for more than two decades a pivotal swing vote on the High Court--I hope and pray that the President chooses to unite rather than divide; that he chooses consensus over confrontation.

Now let me return to the vote at hand.

This vote should be viewed against a unique--and troubling--historical backdrop.

Many are saying the Senate should not bring ``politics'' into this. Their quarrel should be with the President of the United States if they feel that ``politics'' means figuring out a judge's ideological, judicial philosophy. Politics, if you define it as that, was introduced by a President who vowed that, if given the opportunity, he would name to the Supreme Court Justices in the ``mold'' of Clarence Thomas and Anthony Scalia.

Given the President's campaign promise and repeated declarations, there is a presumption that any nominee the President sends to the Senate is in that ``mold.''

The presumption is especially strong--and is particularly hard to overcome--with a nominee who was carefully vetted, researched, and interviewed at sufficient length by a President who professed a desire to nominate people in the mold of Thomas and Scalia; and, with a nominee who is eagerly embraced by those groups who support the views of Thomas and Scalia and who want to change America through the Courts;

The presumption can be rebutted, of course. And the way it can be rebutted is through the answering of questions and through the production of relevant documents. And here, regrettably, there was much lacking.

To be fair, Judge Roberts did partially rebut the presumption. He made some inroads.

Judge Roberts has a keen and impressive intellect. We all know that. His encyclopedic knowledge of the law and eloquent presentation certainly confirmed what his colleagues have said about him--that he is one of the best advocates, if not the best advocate in the Nation.

But being brilliant and accomplished is not the number one criterion for elevation to the Supreme Court--there are many who would use their considerable talents and legal acumen to set America back. So, while legal brilliance is to be considered, it is never dispositive.

In addition, very good lawyers know how to avoid tough questions. People have said that one of the reasons the nominee was so effective arguing in the Supreme Court is that he mastered the trick of making the point he wanted to make, rather than answer the question asked.

When I reviewed the transcript in the week after the hearings concluded but before we were called on to vote, there was often less than met the ear.

There is an obligation of nominees to answer questions fully and forthrightly, because they are essential to figuring out a nominee's judicial philosophy and ideology--to me, the most important criteria in choosing a Justice.

Many of us were disappointed in his failure to answer so many questions and is one of the contributing factors to the no votes that will be cast against Judge Roberts.

Add to that the refusal of the administration to allow the Senate to examine important and relevant documents, and we are voting on a hunch. Senators voting on the position of Chief Justice should not be relegated to voting on a ``hunch.''

We should not be left to guesswork, impressions, and hunches.

There was a bit of a game of hide and seek going on--as much as Senators tried to seek out his views, many remained hidden away.

That is why that I so badly hope that the next nominee will be more forthcoming and will answer more questions about his or her legal views, and that all relevant documents will be provided.

But, the answering of questions is only a means to an end--it is a means of finding out what kind of judge, or Justice, a nominee will make.

In this case, because there were not enough questions answered or documents provided, we are still unsure of the answer to the central question: Who is Judge Roberts?

Particularly troubling to me are the eerie parallels between Judge Roberts's testimony and then-Judge Thomas's, especially given President Bush's declaration that he would nominate Justices in the mold of Justice Thomas.

The echoes of then-Judge Thomas's empty reassurances that he was a mainstream jurist are ringing in the ears of every Senator who listened to many nearly identical statements from Judge Roberts last week.

I was particularly troubled by his answers in two areas--the constitutional right to privacy and the Congress Commerce Clause power to protect the rights and improve the lives of the American people.

At his hearing, for example, Judge Roberts said that he believes ``there is a right to privacy protected as part of the liberty guarantee in the due process clause.'' At his hearing, then-Judge Thomas made almost the identical statement. As a Supreme Court Justice, however, Justice Thomas has repeatedly urged the most narrow interpretation of a privacy interest possible, in Casey, in Lawrence, and at every other opportunity.

At his hearing, Judge Roberts repeatedly assured the Committee that he had ``no quarrel'' with various Supreme Court decisions on issues of privacy, women's rights, civil rights, education, and other important issues. The same assurance in nearly identical words were made by Justice Thomas at his hearings, but when given the opportunity to consider those cases with which he had ``no quarrel'' from the bench, Justice Thomas voted to overrule.

At his hearing, Judge Roberts repeatedly assured the Committee that he had ``no agenda.'' The same assurance was made by Justices Thomas and Scalia at their hearings.

Besides these concerns about Judge Roberts's views on the right to privacy and on the Establishment Clause, I also was troubled by his answers on the Commerce Clause. I asked him if he would disagree with Justice Thomas's extremely narrow, 19th-century, and widely-discredited view that Congress may not regulate activities occurring within a State even if they have substantial effects on interstate commerce. He refused.

There is therefore too serious a chance that Judge Roberts believes that Congress is without power to protect workers' rights, women's rights, and the environment on this widely-accepted constitutional basis.

We simply did not get definitive answers to these questions at the hearings.

At the hearings, I gave Judge Roberts every opportunity to distance himself from Justice Thomas's most extreme views. He refused.

Now, Senator CORNYN, my good friend from Texas, and others from across the aisle have said that if we can't vote for this nominee who could we vote for? Here is your answer: someone who answers questions fully and who makes his or her record fully available; someone who gives us a significant level of assurance with some answers and a record that he or she is not an ideologue;

Judge Roberts is clearly brilliant and his demeanor suggests he well might not be an ideologue.

But he simply did not make the case strongly enough to bet the farm.

There is a good chance--perhaps even a majority chance--that Judge Roberts will be like Justice Rehnquist on the bench. We know he will be brilliant, and he could well be--while very conservative--not an ideologue. That is why I struggled with this decision so long and so hard.

If he is a Rehnquist, that would not be cause for exultation; nor would it be cause for alarm. The Court's balance will not be altered.

But there is a reasonable danger that he will be like Justice Thomas, the most radical Justice on the Supreme Court.

It is not that I am certain that he will be a Thomas. It's not even that the chance that he will a Thomas is greater than fifty percent. But the risk that he might be a Thomas and the lack of reassurance that he won't--particuarly in light of this President's professed desire to nominate people in that mold--is just not good enough.

Because if he is a Justice Thomas, he could turn back the clock decades for all Americans. The Court's balance may be tipped radically in one direction and stay that way for too long.

I hope he is not a Thomas. But the risk is too great to bear, and it exceeds the upside benefit.

Because of that risk and its enormous consequences for generations of Americans, I cannot vote yes. I must reluctantly cast my vote against confirmation.

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