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Floor Speech

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Mr. DURBIN. Madam President, in keeping with the remarks of the Republican Senate leader, I would like to start with recognition of Supreme Court Justice Stephen Breyer's contribution to America.

On July 12, 1994, a court of appeals judge named Stephen Breyer appeared before the Senate Judiciary Committee. It was the first day of his Supreme Court confirmation hearing. As he began speaking, Judge Breyer laid out his view of the law and its role in maintaining the fabric of American life.

He said: ``I believe the law must work for people.''

He argued that our Nation's vast web of ``Constitution, statues, rules, regulations, practices and procedures . . . has a single basic purpose.''

That purpose, he said, ``is to help the many different individuals who make up America, from so many different backgrounds and circumstances, with so many different needs and hopes, live together productively, harmoniously, and in freedom.''

In his nearly three decades on the Supreme Court, Justice Stephen Breyer has lived by those words. He has helped ensure that the law is a force for good, a force for unity, and a force for freedom and equality.

So, for me, I have truly mixed feelings as I stand here today and look back on the incredible legacy of Justice Breyer, who announced last week that he would retire at the end of this term.

And what a legacy he leaves.

Born in San Francisco, Stephen Breyer attended Stanford University and Harvard Law, and just 3 years after graduating from Harvard, he returned to the school as a professor, a role in which he inspired a generation of jurists, public servants.

He held a few other occupations as well. He served our country as a corporal in the U.S. Army and in the Army Reserve. He was a clerk for Supreme Court Justice Arthur Goldberg, a member of the Watergate special prosecutor's office, and chief counsel to the Senate Judiciary Committee, which I am honored to chair. From there, he was appointed to the U.S. Court of Appeals for the First Circuit, where he served for nearly 14 years before his confirmation to the U.S. Supreme Court.

And I might add, for the record, his vote on confirmation to the Court was 89 to 7. It was a remarkable showing of strength and support for a man whose politics were clear, as he served with Ted Kennedy on the Senate Judiciary Committee as his lead counsel for many years.

Justice Breyer's record when he came to the Supreme Court was nothing short of awe-inspiring. From voting rights to women's reproductive freedom, from criminal justice to consumer protection, from campaign finance to immigration, Justice Breyer's voice has been powerful, pragmatic, thoughtful, and enduring, whether in the majority or in dissent.

Consider, for instance, Justice Breyer's dissenting opinion in the 1995 case, United States v. Lopez. In that case, the Court's conservative majority overturned the Gun-Free School Zones Act, finding that the statute exceeded Congress's power under the commerce clause, a clear departure from existing, standing precedent. In his dissent, Justice Breyer melded sound constitutional interpretation with his signature pragmatism. Citing the facts and the law, he methodically explained how the widespread problems caused by gun violence in and around schools clearly affected and threatened commerce.

He concluded: ``Holding that the particular statute before us falls within the commerce power would not expand the scope of the Clause. Rather, it would simply apply preexisting law to changing economic circumstances. It would recognize that, in today's economic world, gun- related violence near the classroom makes a significant difference in our economic as well as our social well-being.''

That was one of the many opinions that captured Breyer's vision of the law as a force for productivity, for harmony, and for the well- being of the American people.

Fast forward 20 years. The case was Glossip v. Gross. In that case, they challenged a form of lethal injection as violating the Eighth Amendment's ban on cruel and unusual punishment. The Court's conservative majority rejected the challenge. But once again, Justice Stephen Breyer responded with conscience and clarity. With his keen analysis and pragmatic reasoning, he explained the constitutional infirmities of the death penalty. He wrote: ``Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court's view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. The circumstances and the evidence of the death penalty's application have changed radically since then. Given those changes, I believe it's now time to reopen the question.''

Let me say, parenthetically, it is interesting for me to note how many Supreme Court Justices, late in their term, facing retirement or nearing it, reflected on the death penalty. Justice Blackmun was another. And it says to me that these cases that they decided, once with an eye towards consistency, weighed on their consciences, and they came to conclude that the death penalty truly needed to be questioned under our constitutional values.

Justice Breyer, in that case, recognized that in our system of justice, punishment must not only be firm but fair. During his 28 years on the Court, Stephen Breyer has been a stalwart defender of Americans' constitutional rights.

As I mentioned, years before he was confirmed to the Supreme Court, Justice Breyer sat on the Court of Appeals for the First Circuit, located in Boston. Today, on the banks of Boston Harbor, stands a building that reflects his lifetime of service: the John Joseph Moakley United States Courthouse. Let me add, I knew Joe Moakley. He was my colleague and friend in the House. Then-Judge Breyer helped design that courthouse, and he still has an office there.

The building features a curved glass wall, stretching across tens of thousands of feet, so passersby can peer into the courthouse during the day. It is designed to provide a clear view into the administration of justice. Engraved on the wall in the building are the names of the workers who had a hand in building it. Alongside the names of bricklayers and carpenters, etched in equal standing, is Stephen Breyer.

Those two principles reflected in the building--transparency and equality--have, in many ways, defined Stephen Breyer's legal philosophy and his contribution to America. He understands that our system of justice is stronger when the American people understand how the law works and when the law works for them.

Now, we must carry that tradition forward. Soon, President Biden will announce his selection for Justice Breyer's successor to the Supreme Court--big shoes to fill. But I have no doubt that President Biden will select a jurist who parallels Justice Breyer in intellect, ability, and dedication to public service.

With his retirement, we have an opportunity to confirm another outstanding Justice, one who will indeed champion the freedoms and liberties we hold so dear, one who will also remain faithful to the rule of law and who will approach her work on the Court with the same thoughtful dedication displayed by Justice Breyer.

We don't yet know who the nominee will be, but here is what we do know: No matter the nominee, we will undertake a process in the Senate Judiciary Committee that is both fair and timely. This process will afford Senators an opportunity to review the nominee's record and question the nominee thoroughly, while at the same time ensuring the nominee is treated respectfully and receives a prompt confirmation vote. We owe that not just to this nominee but to the American people.

Let me close by turning to Justice Breyer's opening statement before the Judiciary Committee--July 12, 1994. America was watching when Justice Breyer said: ``You are now considering my appointment to the Supreme Court of the United States. That Court works within a grand tradition that has made meaningful, in practice, the guarantees of fairness and of freedom that the Constitution provides.''

He said, ``I promise you, and I promise the American people, that if I am confirmed to be a member of the Supreme Court, I will try to be worthy of that great tradition.''

There is no doubt in my mind or in the mind of any objective analyst, Stephen Breyer has proven himself worthy of that great tradition.

Whoever his successor may be, I am confident she will do the same.

I want to personally thank Justice Breyer, as a Member of the Senate but as an American citizen first, for his thoughtfulness, his spirit of collegiality and consensus building, and for always working to advance the Constitution's guarantees of fairness and freedom.

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