Executive Session

EXECUTIVE SESSION

NOMINATION OF JOHN G. ROBERTS, JR., TO BE CHIEF JUSTICE OF THE UNITED STATES--Resumed

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Mr. WYDEN. Mr. President, 5 years have passed since the Presidential election of 2000, and legitimate questions

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about the outcome of that campaign have left too much of America too divided. Legitimate questions about the outcome of that election have given rise to an ever-growing polarization between so-called red and blue States, between liberals and conservatives, and between Republicans and Democrats in the Congress.

Despite a somewhat more convincing outcome in the 2004 Presidential election, the divisions caused by the events of 2000 show little sign of abating. Having closely observed this widening divide, I now wonder whether Judge Roberts' confirmation will add to the bitterness and distrust of the Federal Government or whether it may serve to remind the people and the lawmakers they elect that we cannot move forward as a nation if we remain dedicated to tearing each other down.

This is my first vote on a nominee to the Supreme Court of the United States, and my obligation as articulated in the Constitution is to either consent or not consent to a choice specifically entrusted to the elected President of the United States. Some of the policy watchdogs that I respect the most and agree with on so many issues have asked whether I oppose Judge Roberts because he is not one of us, because he is too conservative, because he is too young, because he may prove effective. He is not whom we would choose, they say. And on that point, I am in full agreement.

Should the test to confirm a Chief Justice be, he is not one we would choose? I ask my friends to imagine the mess we will have left for our country if the Senate uses this test and votes solely on the basis of a nominee's political beliefs. Friends who a year ago said, We don't want ideologues appointed to the Supreme Court, now want John Roberts and the next nominee to show up at the witness table to submit to an ideological litmus test.

Here is my message to those friends: A sword forged in ideology in 2005 can be used against a progressive nominee in 2009 with an equal disregard for the Constitution and the individual.

In 2008, I fully intend to work harder than ever before to elect a President who rejects the dangerous priorities that have led us to war in Iraq and an energy policy that is folly, that assures our continued dependence on foreign oil. Should this new Democratic President have to contend with a Republican Senate majority, he or she better hope that the judicial nominations in 2005 did not become purely ideology- driven contests. If these debates are purely partisan, our future will include constitutional bedlam whenever a Supreme Court opening occurs while the Senate is controlled by the opposition party.

I reject the suggestion that a Republican nominee is, per se, objectionable. A number of certainly moderate justices nominated by Republican Presidents certainly belie this claim. The decision each Senator must make should be based on the judicial nominee that is before the Senate, not the one that we wish was before the Senate.

To put this into historial perspective under the advice and consent responsibility assigned to the President, the President's judicial nominees to the Court have traditionally been given a large degree of deference. For example, in spite of the divisive national debate surrounding gays in the military, universal health care, Travelgate, Filegate, and the Whitewater investigation, this deference translated into 96 votes for Justice Ginsburg and 87 votes for Justice Breyer when their nominations came to a vote before the Senate. Yet these are two of the most progressive voices in the over 200-year history of the Court.

When I had the opportunity to meet with John Roberts in my office this past August, I pressed him to tell me how he viewed some of the issues that have most divided our country. The answers Judge Roberts gave me during the hour we spent together left me with the impression that he will be his own man on the Court.

Here are my judgments about the individual before the Senate now: One, on the basis of his public testimony, it is hard to see Judge Roberts as a man who will walk into the white pillard building across the street and set about tearing apart the fabric of our society; two, on the basis of his public testimony, it is hard to see Judge Roberts as a judicial activist who would place ideological purity or a particular agenda above or ahead of the need for thoughtful reason; three, on the basis of his public testimony, it is hard to see Judge Roberts as a divisive, confrontational extremist who would try to further exploit the divisions in our country.

What I saw in his public testimony and in our private meeting is an intelligent, thoughtful man, certainly a deeply conservative man with a tempered view of the role of Government.

At his Judiciary Committee hearings, nothing he said in public conflicted with what he had told me in private.

In addition to meeting with him, I have scrutinized Judge Roberts and his record closely, considering his Reagan-era documents, reading the news analysis printed in papers across our country and listened to the hearings and reviewed the transcripts of them as well. No one disputes that Judge Roberts has a brilliant legal mind. My analysis of his record leads me to conclude that he is not cut from the same originalist cloth as Justice Thomas and Justice Scalia. He does not seem to believe that the words of the Constitution are fossilized, leaving only a one-size-fits-all, 18th century remedy for every problem that our society confronts. It is hard not to get the sense that he believes in limited government.

Back in March, I led the effort in the Senate to block attempts to dictate a specific medical treatment in Terri Schiavo's tragic case because I believed the Constitution affords families the right to decide these matters privately. This is an area, in my view, in which the Federal Government has no business intruding. Involving itself in the Schiavo case, Congress was inappropriately meddling and blatantly ignoring the limits of its constitutional authority.

I believe that the Terri Schiavo case is the first of many such end-of-life cases that will arrive at the Supreme Court's doorstep. In my view, most of these cases will involve one individual and passionately held views. Demographic trends and improvements in medical technology assure that there will be many of these cases.

Given what is ahead, I felt I had an obligation to examine how Judge Roberts saw end-of-life issues in the context of the Constitution and whether he would be willing to manipulate its meaning to authorize Government intrusion in private family matters. When I met with Judge Roberts in August, we discussed end-of-life issues at length, not because this was a litmus test for me, and I certainly don't believe in litmus tests, but because I thought it was important to carefully consider Judge Roberts' judicial temperament on this critical issue.

Judge Roberts did not say how he would have handled the Schiavo case or any case before the Court. However, Judge Roberts did say quite a bit that made a lot of sense to me and I think would make sense to the vast majority of Americans. Judge Roberts agreed that there is a constitutionally based privacy right and that while the scope of the privacy right is still being defined in the context of end-of-life care, he said that when he approached the issue, he starts with the proposition that each person has the right to be left alone and that their liberty interests should be factored in as well.

At his hearing, Judge Roberts reiterated his position, stating that a right to privacy exists in the Constitution. He stated that privacy is a component of the liberty protected by the due process clauses of the 5th and 14th amendments, and he stated this liberty interest is protected substantively as well as procedurally.

While discussing the Schiavo tragedy during our August meeting, I also asked him about Congress's authority to legislate a particular remedy in a particular case, and Judge Roberts expressed his concern about judicial independence. It was apparent to me Judge Roberts understands there are constitutional limits to the recent enthusiasm of Congress to prescribe particular remedies in a particular end-of-life case.

Concerning States rights to regulate medical practice and the scope of the 10th amendment, Judge Roberts stated he believed the Framers expected States to do most of the regulating and that they expected most regulation to

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be State-based. In his view, the basic genius of the Federal system is that it affords different States the ability to approach problems in a way that is best suited to meet their different needs, and that imposing uniformity across the country would stifle the genius of our Founding Fathers.

Judge Roberts also told me he attaches great importance to legislative history in interpreting law. He repeated this point several times during his public hearings. Those who have closely studied former Attorney General Ashcroft's challenge to the Oregon physician-assisted suicide law know there is not one word in the Controlled Substances Act, the law used to launch the case, indicating the Controlled Substances Act is aimed at or should be used to overturn or undermine the right of States to regulate medical practices within their borders.

On the extremely important matter of a woman's right to choose, I asked Judge Roberts about Roe. He did not offer specific comments, but his response indicated he would not enter the Court with an ``agenda'' and he would respect the Court's precedents. In the public hearings, he also said he personally agreed with the conclusion of the Griswold and Eisenstat decisions, which held that the privacy right protects the right of individuals to use birth control.

His opinions on the issues that matter indicate he is intelligent, thoughtful, and that he has a tempered view of the role of the Federal Government.

Judge Roberts' combination of temperament and intelligence give him the potential to be a conciliatory voice at a divisive time in American history. He has the skills to reach across the divisions in America to show that justice can be a healing force for the wounds that cut our society so deeply. He can help to unify the country by building a record of well-reasoned opinions grounded in the rule of law, not ideology.

He will receive my vote tomorrow to be the next Chief Justice of the United States.

I want to make one final point, Mr. President, a point that is important to me. There is another vacancy on the Court, and the President is expected to send forth his nominee soon. My intention to vote for Judge Roberts tomorrow should in no way be construed as a ``weathervane'' for how I might vote on the next nominee. In the past, I have not hesitated to vote against several of the President's nominees to the courts of appeals when they carried the ideological and activist baggage I believed would be disruptive to our society. If the President puts forward a nominee to replace Justice O'Connor who is unlikely to ably and respectfully fill her shoes, I will vigorously oppose that nomination.

I began by voicing my question about the impact of this nomination on the body politic of our country. Among the many awesome duties of the Chief Justice, no duty is of greater importance than the duty to unify our Nation when Americans find themselves in disagreement. Different Chief Justices have shouldered this burden with varying degrees of success. This ability to unify is what is most sorely needed at this moment in our Nation's history, and I am of the opinion that Judge Roberts possesses the nature and the desire to unify the Court and, with it, our Nation. I wish him wisdom, diplomacy, and moderation as he prepares to assume this critical role.

Mr. President, I yield the floor.

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