Statement Of Senator Patrick Leahy,
Ranking Member, Senate Judiciary Committee,
On The Nomination Of John G. Roberts, Jr.,
To Be Chief Justice Of The United States
Executive Business Meeting Of the Judiciary Committee
September 22, 2005

There are few decisions we face in the Senate that are as consequential and enduring as the one this Committee considers today.  I believe that each Senator must carefully weigh the matter and decide it for himself or herself.

I have approached the nomination of Judge Roberts to be Chief Justice of the United States with an open mind.  I have served in the Senate for three decades and on this Committee for most of that time.  I am one vote out of 100, but I recognize that those 100 of us privileged to serve in the Senate are entrusted with protecting the rights of 280 million of our fellow citizens.  There is no entitlement to confirmation for lifetime appointments on any court for any nomination by a president, Democratic or Republican.  This nomination presents a close question for me, for the reasons I discussed at greater length on the Senate floor yesterday.

I want a Supreme Court that acts in its finest tradition as a source of justice.  The Supreme Court must be an institution where the Bill of Rights and human dignity are honored. 

I have not reflexively opposed Republican nominees or conservative judicial nominees nominated by Republican presidents.  I have drawn the line only at those nominees who were among the most ideologically extreme and who came to us in the mold of activists. 

I do note my extreme disappointment in the Administration’s lack of cooperation with the Senate on this nomination.  Although we started off well with some early efforts at consultation, it never resulted in any meaningful discussions. The President’s naming of Judge Roberts as his choice to replace Justice O’Connor came as a surprise, not as a result of meaningful consultation.  He then preemptively announced that he had decided to withdraw that nomination and, instead, nominated Judge Roberts to succeed Chief Justice Rehnquist.  There could and should have been consultation with the Senate on the nomination of someone to serve as the 17^th Chief Justice of the United States.  

Yesterday Chairman Specter and I, along with the Republican and Democratic leaders of the Senate, met with the President about a possible replacement for Justice O’Connor.  I trust that this time the President will follow through, share with us his intentions and seek our advice before he acts.

The Bush Administration committed another disservice to this nomination by withholding information that has traditionally been shared with the Senate.  The Bush Administration treated Senators’ requests for information with little respect.  They stonewalled entirely the narrowly-tailored request for the most important work papers  from John Roberts’s time as the principal deputy to Kenneth Starr at the Solicitor General’s office.  The precedent from Chief Justice Rehnquist’s hearing and others, of course, go the other way.   Previous Presidents have paid the appropriate respect to the Senate and to the constitutional process by working with the Committee to provide such materials.  Accordingly, I would understand if a Senator were to vote against the President’s nomination of Judge Roberts on this basis alone.  I urge the Administration to work with us and cooperate on any future nomination.  

Some Republican Senators also disserved the confirmation process by urging the nominee not to answer questions during the course of this hearing.  Unfortunately, Judge Roberts heeded that advice to too great a degree and should have been more forthcoming in his answers.   

The President asked for dignified hearings and an up-or-down vote.  That is what we have done on this Committee.  The hearings were dignified and they were fair. 

I thank and commend the public witnesses who appeared before the Committee. They were extraordinarily helpful in underscoring what is at stake for all Americans with these nominations.  No one who heard Congressman John Lewis, Wade Henderson and Judge Nathaniel Jones can doubt the fundamental importance of our refusal to retreat from our Nation’s commitment to civil rights.  Coach Roderick Jackson and Beverly Jones reminded us how courageous Americans are still opening doors and righting wrongs through our courts.  Anne Marie Talman of MALDEF reflected what is at stake when undocumented immigrant children are denied education and benefits that should be available to every child in America. 

As I consider this nomination, I reflect on the hearings and my meetings with Judge Roberts.  In particular, I was encouraged by his answer to my question about providing the fifth vote needed to stay an execution when four other Justices vote to review a capital case.  That has not always been the practice of late and he was right to recognize the illogic, if not the injustice, of having the necessary votes to review the case but lacking the necessary vote to allow that review to take place especially where a life hangs in the balance. 

Judge Roberts testified about his admiration for Justice Robert Jackson.  Justice Jackson’s protection of fundamental rights, including unpopular speech under the First Amendment, and his willingness to serve as a check on presidential authority are among the finest actions by any Justice in our history.  I expect Judge Roberts to act in the tradition of Justice Jackson and serve as an independent check on the President.  When he joins the Supreme Court he can no longer simply defer to presidential authority.   We know that we are in a period in which the Executive has a complicit and compliant Republican Congress that refuses to serve as a check or balance.  Without the courts to fulfill that constitutional role, excess will continue, and the balance will be tilted. 

When Congress acts to protect the interests of Americans through the Commerce Clause, spending powers and the 14^th Amendment, that needs to be respected.  I am encouraged by Judge Roberts’s assurances that he will respect congressional authority.  His steadfast reliance on the Supreme Court’s recent Raich decision as significant precedent contravening further implications from Lopez and Morrison was intended to reassure us that he will not join the assault on congressional authority.  I heard him and rely on him to be true to the impression that he created.

At the hearing, he took pains to assure me and Senator Feinstein, among others, that as Chief Justice he would respect congressional authority.  To do otherwise would greatly undermine Congress’s ability to serve the interests of Americans and protect the environment, ensure equal justice, and provide health care and other basic benefits.  I think he knows that now. 

As Chief Justice, John Roberts will be responsible for the way in which the judicial branch administers justice for all Americans.  He must know in his core that the words engraved in the Vermont marble on the Supreme Court building are not just “Under Law” but “Equal Justice under Law.”  It is not just the rule of law that he must serve, but the cause of justice under our great charter.

After hours of private meetings with Judge Roberts and hours of public testimony, I am called upon to cast a vote on this important nomination.  In my judgment, in my experience, but especially in my conscience, I find it is better to vote yes than no.  Ultimately my Vermont roots have always told me to go with my conscience.

Judge Roberts is a man of integrity.  I take him at his word that he does not have an ideological agenda.  For me, a vote to confirm requires faith that the words he spoke to us have meaning.  I take him at his word that he will steer the court to serve as an appropriate check on potential abuses of presidential power. 

I respect those who have come to different conclusions, and I readily acknowledge the unknowable at this moment, that perhaps they are right and I am wrong.  Only time will tell. 

The Senate will vote next week but only later will we know if Judge Roberts proves to be the kind of Chief Justice he says he will be, if he truly will be “his own man.”  I hope and trust that he will be.  

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