Executive Session

EXECUTIVE SESSION -- (Senate - September 28, 2005)

BREAK IN TRANSCRIPT

Mrs. MURRAY. Mr. President, I rise to announce my vote on the nomination of Judge John G. Roberts, Jr., to be the 17th Chief Justice of the United States.

I do not cast this vote lightly. I recognize how critical the courts are in protecting and advancing the rights of all Americans. I know what is at stake. I am also mindful that John Roberts has been nominated for a lifetime appointment to the highest seat on the highest Court in our country. In our system, there is no backstop or review of a Supreme Court Justice once he or she is confirmed. That means under the Constitution we in the Senate have the responsibility to fully evaluate each nominee before voting, and that is exactly what I have done.

For me personally, casting a vote on a nominee to the Supreme Court carries special meaning. Thirteen years ago the nomination of another Supreme Court Justice, Clarence Thomas, helped launch my own path from the kitchen table in Shoreline, WA to this historic desk on the floor of the Senate. During the Thomas confirmation, I was deeply frustrated that the questions I believed needed to be answered were not even raised. I was troubled that average Americans, moms and dads, had no voice in a process that would affect their rights and liberties.

This time I had the opportunity to ask those questions directly to the nominee. I was pleased to work with my Democratic women colleagues to open the process and empower people across the country to submit questions to the nominee via a Web site that Senator Barbara Mikulski created. Today not only did I have the opportunity to ask those questions directly, but the weight has also been on my shoulders.

For days I have struggled with whether this nominee represents the fear I have of the worst motives of this administration or whether he represents the best hopes of a country for wise decisions that protect our rights and our freedoms and our responsibilities. No one of us can know for sure. There is no doubt that anyone I would have nominated would have come from a different background with a different history, but this was not my choice. There is much I do not know about how Judge Roberts will rule, but as history has shown, none of us can predict that. And without a crystal globe, I must make this very difficult decision based on what I do know and upon the criteria I have long used to evaluate nominees for judicial appointments.

This evening I talk about how I have applied my standards to other nominees for the Federal bench. I am especially pleased that in Washington State we do judicial nominations the right way, through a careful, bipartisan process that helps us select qualified candidates without regard to politics. In Washington State, I have worked with different administrations to craft a process that helps us identify and confirm qualified individuals for the Federal bench. We solicit input from a wide variety of respected individuals within the Washington State legal community, and then we personally interview each recommended candidate prior to submitting his or her name to the White House for consideration.

During the Clinton administration, my colleague Senator Gorton and I worked together to recommend and support individuals for appointment to the Federal bench. Senator Gorton and I disagreed on a lot of issues, but we did agree that when it came to our duty in confirming individuals to the third and coequal branch of our Government, we should set aside partisanship and focus on qualifications. That tradition has continued with my colleague Senator Cantwell. We got off to a rough start on this approach because the Bush administration at first did not want to continue the fair process Senator Gorton and I had established, but eventually the wisdom of our process prevailed. While there have been hiccups along the way, we have used it to confirm qualified people to serve on the bench.

Through this fair and deliberative process, I have supported nominees with a wide variety of backgrounds. I have supported people who have come from privileged backgrounds and those who beat the odds to realize their achievements. I have supported Democrats and Republicans. Each time, though, I was confident that I was supporting an individual who would serve every American who came before them well, and I have not been disappointed.

My home State of Washington is 2500 miles away from Washington, DC. In many ways it is even further than that in terms of our independence of thought. The White House would do well to learn from the example we set in Washington State, and I hope the Bush administration will do a better job of consulting with the Senate on its next nominee and providing a more complete record of that nominee's background and writings.

Some have suggested to me that I use my vote to register my disapproval at things the Bush administration has done or that I use my vote to send a message to the President. While I am angry about mistakes and miscalculations and misrepresentations and misdirected priorities of the Bush administration, this vote is not the place to vent those

frustrations. Fairness requires that I evaluate each nominee on his or her own merits, without a predetermined outcome, just as I expect every judge to do when a case comes before them. My vote is based on the same standards I have used for years, not on anger or in sending messages or ignoring a nominee's actual record.

This would be an easier decision if we had a complete record. The White House has refused to provide more recent memos from Judge Roberts' work in the Solicitor General's office which would have provided us with a clearer picture of the nominee. I, frankly, think the White House's position is a reflection of the general breakdown in the process that we use to select and confirm judges today. With this administration, consultation with the Senate is cursory at best, and from the very beginning there has been often a kind of ``spoils of war'' approach to how they view appointments to the Federal bench. I believe this approach has resulted in unqualified individuals being forwarded by the administration to the Senate for consideration. This approach has contributed to the partisan rancor regarding nominations to the courts.

These actions are even more concerning in light of the second vacancy the Bush administration is set to fill in the coming weeks. I do not believe that an honest, fair evaluation could be completed with any less material information than we were provided during this confirmation process. I believe the Bush administration is attempting to set a dangerous precedent with its words and actions or lack thereof, and I fear that future court nominations could be even more contentious as a result.

In looking at nominees for our courts, I always follow a very deliberative process of having a set of standards and comparing individuals who come before us as nominees to that set of standards. I examine their record and their experience and their testimony. I see if they meet the basic standards of honesty and ethics and qualifications and fairness. Then I evaluate if they will be independent, evenhanded in deciding cases, and if they will uphold our rights and our liberties. Those standards help me ensure that when any American, regardless of background, comes before the court, he or she receives a fair hearing and that the resulting decision renders justice according to the law.

In reaching a decision on Judge Roberts, I reviewed all of the information that was available, and then I examined how Judge Roberts measured up to my criteria for judicial nominees. I followed the Judiciary Committee hearings closely. I read the transcripts. I have spoken directly with Judge Roberts twice, once in a meeting in my office and once by phone.

Looking at my standards, I found Judge Roberts to be honest, ethical, qualified, and fair. I believe he will be evenhanded in deciding cases. On those criteria, Judge Roberts clearly met my test. It was my last criteria, upholding the rights and liberties of all Americans, where I had a harder time evaluating Judge Roberts. I wish the White House had been more forthcoming in making available more documents that would have shed light on some of his more recent work and opinions. I wish the nominee himself had been more responsive to questions in his testimony before the Senate Judiciary Committee.

Through this process, I have concluded that Judge Roberts is a decent person with keen intellect and high ethical standards. I believe he does know the difference between the role of advocacy, which he has held in the past, and the role of judge. I think he has the capacity to be fair, and I think he aims to serve all of the American people.

On the question of upholding the hard-won rights and liberties of the American people, I believe Judge Roberts has a healthy regard for precedent and intends to apply a thoughtful approach to interpreting the law. This is not to say I would expect or even hope to agree with every decision he might make or every opinion a Chief Justice Roberts might author. In making my decision, I recognize that history has shown no one can accurately anticipate what type of Justice a nominee may ultimately become.

For many weeks I have known some people in Washington State will be disappointed in my decision regardless of what that decision is. I have heard from friends and colleagues, constituents and strangers, on all sides of the question. Many of them have surprised me in their candor and in their position. All this has led me to struggle with the decision for many days now. I have read up on Judge Roberts. I have listened to the thoughts of others. I have talked with the judge himself. All the while, it has been an extremely close call in my mind, for I know the gravity and the consequences of this important vote. I have had deep and lasting concerns. But I have had strong, heartfelt hopes as well.

In the end, I returned to the basic criteria I use on any tough question and to the values the people of Washington State sent me here to protect. In examining that criteria and those important values, I have made a decision

that I hope everyone can understand and appreciate and even be proud of. I am satisfied that Judge Roberts meets my long-held criteria and, therefore, I will vote to confirm his nomination.

I believe Judge Roberts is well qualified to serve. I believe he is intelligent and honest and fair. Is he wise? Only time can answer that. I cast this vote with the hope that John Roberts will be an individual who will combine common sense and decency with a real respect for how the law affects each American as he serves out his tenure on the Supreme Court. In spending time with him and reviewing the available record, I believe Judge Roberts has the capacity to be that kind of justice.

Throughout our history, America has always had to confront challenges and enjoyed a lively debate on how to meet them. Today is no different. Our great Nation is confronting enormous challenges, and the debate over how to address those challenges has caused great divisions in our country. Many people, as I do, fear the direction in which this country is headed. They fear for our security. They fear we are not doing enough at home to secure a stronger future, and they fear the progress we have made in the last several generations is being eroded by a political agenda. Those fears are well founded, and they are real. But our country was also founded on hope, hope that by securing individual liberty, a free people could govern themselves in the interest of promoting the common good, hope that despite our differences, we could band together to create strong communities and a better future for generations of Americans to come.

That spirit of hope is alive today and should help guide us at least as much as our fears.

My vote tonight is a vote of hope--hope that despite our differences, we can unite around the common good; hope that equal justice under the law means something powerful to every American, regardless of background or political persuasion; and hope that John Roberts responds to the needs of this Nation to have a Supreme Court that honors our past and helps secure the rights and liberties of every American into the future.

When I asked Judge Roberts what kind of judge he wanted to be, he said: A Justice for all Americans. I hope my vote, along with the diverse group of my Senate colleagues, reminds him every day that he must be a judge for all Americans.

I yield the floor.

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