In Support of John Roberts - Oct. 28, 2005

Mr. President, the consideration of a Supreme Court nomination by the Senate is one of the most important and consequential duties we have as an institution in our system of government. This is especially true when the candidate being considered has been nominated to the position of Chief Justice of the United States.

As the Senate performs its duty under the Constitution with regard to this nominee, I am also mindful that this is the first Supreme Court nominee I have been called upon to evaluate as a Senator from the State of Arkansas. I have no doubt that this is one of the most important nominations that I will consider during my tenure in public service.

Given the import of this decision for the future of this nation and the responsibilities I have to my constituents and my country, I have examined all of the information available about Judge Roberts’ nomination to ensure I have given this matter the full attention it deserves.

In making my decision, I have very carefully and deliberately reviewed the record compiled by the Senate Judiciary Committee. Further, I have considered the views of Arkansans, both those who think Judge Roberts will make a fine Supreme Court Justice and those who have real concerns about the direction he may lead the Court.

I have also met with Judge Roberts privately to get a better sense of who he is as a person, his temperament and what experiences in his life may inform his views and interpretation of the Constitution. Additionally, I have considered the views of his peers and colleagues in the legal community on both sides of the political spectrum who know Judge Roberts and have firsthand knowledge of his work and abilities.

Finally, I have prayed, searched my conscience and reflected on my principles as a Senator for the people of Arkansas, a farmer’s daughter and a wife and mother to make what I believe is the right decision and one that I will have to live with for the rest of my life. I want to say at the outset that this has been one of the hardest decisions I have been called upon to make since I came to the Senate more than six years ago. It has been difficult because the consequences of confirming a new Chief Justice are so profound. Judge Roberts will likely serve on the Court for several decades and I believe he will have more influence on the future of our nation than any Member who serves in this body today.

This decision has also been difficult for me because of the manner in which this Administration has handled this nomination in some respects and many others that have come before it. When President Bush first ran for office in 2000, he told the American people he was a uniter, not a divider. He talked about how well he worked with Democrats as Governor of Texas and that he was going to continue that approach as President to change the tone in Washington.

Sadly, President Bush has not followed through on that promise and judicial nominations are one of the most glaring examples of where his Administration has fallen short. In my opinion, this Administration has gone out of its way to divide this nation and the Senate on judicial nominations which I think is a disservice to our judiciary and the American people.

When the Senate rejected a handful of federal appeals court nominees during the President’s first term in office, I expected a uniter to work with Senators who expressed concerns and nominate other qualified candidates who could win confirmation with broad bipartisan support. Instead, after winning re-election President Bush re-nominated many of the same controversial nominees and essentially dared the Senate to challenge him again.

Reflecting on the last five years, this Administration apparently believes it is better for them politically to pick a fight over judicial nominees than it is to pick qualified nominees who have earned the support and respect from those on both sides of the aisle in the legal community in which they work and in the Senate.

As a pragmatic Democrat who has always been willing to find common ground and work in good faith with members of both parties to serve the best interests of my constituents, I am alarmed by the confrontational approach this Administration has taken.

The founders who created our system of government were very wise and divided the power of appointment and confirmation of federal court judges between the Executive and Legislative Branches of our government.

They did this to ensure only the most qualified candidates who had the confidence of the President and the Senate would be confirmed to a life-time seat on the federal bench.

I truly worry that the political tug of war over the judiciary which President Bush has encouraged threatens to undermine the judicial selection process and with it our framework of checks and balances which has preserved for centuries the rights and freedoms we cherish as Americans.

To work properly, the process depends on mutual trust and respect between the Executive and Legislative Branches, and when that trust and respect is strained, our ability to do our very best as a government to preserve and protect a fair and independent judiciary for future generations is in jeopardy.

So it is into this atmosphere of political confrontation that Judge Roberts was nominated to the Supreme Court. And it is why I have frankly had difficulty separating my profound disappointment with this Administration and the distrust it has fostered from my opinion of Judge Roberts as an individual, a lawyer and potentially the next Chief Justice of the United States.

Ultimately, I have concluded it is unfair to hold Judge Roberts accountable for the actions of the President who appointed him.

As I have set aside the history of the last five years to take a close and careful look at this nominee, it has become apparent to me that Judge Roberts does meet the test I believe we should strive to achieve in the judicial selection process.

After careful thought and deliberation, I have concluded that Judge Roberts is a very smart man who has enormous respect for the law. There is no question in my mind that Judge Roberts has the legal skills and intellect necessary to perform his duties on the Supreme Court. He has impeccable academic credentials and has demonstrated an impressive command of the law and Constitution throughout his professional career and during his recent confirmation hearings.

I also believe that above all else Judge Roberts is devoted to the Constitution and institutional integrity of the Judiciary and the vital role it plays in our system of government. I have no doubt that John Roberts is a Republican like the President who appointed him but I don’t believe his party affiliation will prevent him from giving both sides in each case before the court a fair and impartial hearing.

Simply put, I believe John Roberts cares more about following the law and maintaining respect for the Judiciary than he does about politics or ideology.

I base this conclusion on the respect and support he has earned from lawyers and colleagues on both sides of the aisle who know Judge Roberts well; on the evidence in the record from his own comments and those of his colleagues that he has an abiding respect for the Court’s decisions and understands the value of continuity in the law; and on his distinguished career as a lawyer and advocate before the federal judiciary over many years.

I regret that Judge Roberts has made this decision more difficult than it needed to be by refusing to be more forthcoming about his views on protections in the Constitution for individuals, especially as those protections and guarantees relate to civil rights and gender equality. As many of my colleagues have already mentioned, Judge Roberts wrote several memos when he worked in the Reagan Administration in which he advocated for a narrow application of federal anti-discrimination statutes, specifically the Voting Rights Act and Title IX.

Judge Roberts indicated in his response to questions about these memos during his confirmation hearings that he was representing the views of his client, the Administration, without elaborating on whether he held those same views today.

He stated that he could not say more regarding his views on those subjects because to do so might undermine his ability if confirmed to impartially consider similar cases that are likely to come before the Court.

I believe he could have said more on those and other issues before crossing that line, but I don’t believe Judge Roberts is entirely to blame for failing to be more responsive. The partisan atmosphere which pervades the confirmation process today almost guarantees that Senators are left with no choice but to ask legitimate questions of a Supreme Court nominee they know will not be answered.

So the Senate is left to make a decision based on the limited information provided during the confirmation process and from a nominee’s previous work and life experience.

My vote for John Roberts is by no means an endorsement of his nomination process, nor is it an endorsement of the decision by the Administration to withhold documents from Judge Roberts’ tenure in the Solicitor General’s office during the first Bush Administration that would be helpful to Senators in forming an opinion about this nomination.

These are the type of documents that previous Administrations have made available to the Senate during the consideration of Supreme Court nominees in the past and there is no reason to have not made them available in this instance.

Future nominees to the Supreme Court or any lifetime judicial position may not possess the same outstanding personal qualities and impeccable reputation that help Judge Roberts overcome his failure and the failure of the Administration to respond more fully to legitimate requests for information. Indeed, there have been past nominees who failed to receive Senate confirmation at least partially because they refused to answer questions or release documents.

I have done my level best, despite my misgivings about the actions of this Administration in the past, to fairly and carefully and in good faith evaluate this nomination which is my duty as a United States Senator. I believe I have done that.

It is my hope and expectation that, if confirmed, Judge Roberts will do likewise with respect to every litigant who comes before the Court, especially those who have not experienced the same opportunities with which he has been so richly blessed.

I believe Judge Roberts will do that and therefore I will support his nomination.

In closing, Mr. President, I would like to comment briefly on the future as we move beyond this nomination. When I first ran for office as a young, single woman in the early ‘90s, I did so because I had hope that I could improve my government and make it more responsive to the needs of the citizens in my state.

I have tried my best each day I have been privileged to serve in public office to fulfill that commitment and today I still have great hope for our nation’s future and its government. I also have hope that we can improve the judicial nomination process as we move forward if people of good will on both sides of the aisle will work together in a spirit of cooperation and good faith.

I stand ready to do my part to overcome our differences as a nation because I believe our country is so much stronger if we are united and not divided. As we prepare to consider a 2nd Supreme Court nominee in the coming weeks, I hope President Bush will take that opportunity to do the same.

Mr. President, I yield the floor.