First of all, let me congratulate Senator Specter
and Senator Leahy for moving the process of confirming the nomination
of Judge Roberts along with such civility, a civility that I believe
speaks well of the Senate.
Let me also say that I remain distressed that the
White House during this confirmation process, which overall went
smoothly, failed to provide critical documents as part of the record
that could have provided us with a better basis to make our judgment
with respect to the nomination. This White House continues to stymie
efforts on the part of the Senate to do its job. I hope with the
next nominee who comes up for the Supreme Court that the White House
recognizes that in fact it is its duty not just to the Senate but
to the American people to make sure we can thoroughly and adequately
evaluate the record of every single nominee who comes before us.
Having said that, the decision with respect to Judge
Roberts' nomination has not been an easy one for me to make. As
some of you know, I have not only argued cases before appellate
courts but for 10 years was a member of the University of Chicago
Law School faculty and taught courses in constitutional law. Part
of the culture of the University of Chicago Law School faculty is
to maintain a sense of collegiality between those people who hold
different views. What engenders respect is not the particular outcome
that a legal scholar arrives at but, rather, the intellectual rigor
and honesty with which he or she arrives at a decision.
Given that background, I am sorely tempted to vote
for Judge Roberts based on my study of his resume, his conduct during
the hearings, and a conversation I had with him yesterday afternoon.
There is absolutely no doubt in my mind Judge Roberts
is qualified to sit on the highest court in the land. Moreover,
he seems to have the comportment and the temperament that makes
for a good judge. He is humble, he is personally decent, and he
appears to be respectful of different points of view. It is absolutely
clear to me that Judge Roberts truly loves the law. He couldn't
have achieved his excellent record as an advocate before the Supreme
Court without that passion for the law, and it became apparent to
me in our conversation that he does, in fact, deeply respect the
basic precepts that go into deciding 95 percent of the cases that
come before the Federal court -- adherence to precedence, a certain
modesty in reading statutes and constitutional text, a respect for
procedural regularity, and an impartiality in presiding over the
adversarial system. All of these characteristics make me want to
vote for Judge Roberts.
The problem I face -- a problem that has been voiced
by some of my other colleagues, both those who are voting for Mr.
Roberts and those who are voting against Mr. Roberts -- is that
while adherence to legal precedent and rules of statutory or constitutional
construction will dispose of 95 percent of the cases that come before
a court, so that both a Scalia and a Ginsburg will arrive at the
same place most of the time on those 95 percent of the cases --
what matters on the Supreme Court is those 5 percent of cases that
are truly difficult. In those cases, adherence to precedent and
rules of construction and interpretation will only get you through
the 25th mile of the marathon. That last mile can only be determined
on the basis of one's deepest values, one's core concerns, one's
broader perspectives on how the world works, and the depth and breadth
of one's empathy.
In those 5 percent of hard cases, the constitutional
text will not be directly on point. The language of the statute
will not be perfectly clear. Legal process alone will not lead you
to a rule of decision. In those circumstances, your decisions about
whether affirmative action is an appropriate response to the history
of discrimination in this country or whether a general right of
privacy encompasses a more specific right of women to control their
reproductive decisions or whether the commerce clause empowers Congress
to speak on those issues of broad national concern that may be only
tangentially related to what is easily defined as interstate commerce,
whether a person who is disabled has the right to be accommodated
so they can work alongside those who are nondisabled -- in those
difficult cases, the critical ingredient is supplied by what is
in the judge's heart.
I talked to Judge Roberts about this. Judge Roberts
confessed that, unlike maybe professional politicians, it is not
easy for him to talk about his values and his deeper feelings. That
is not how he is trained. He did say he doesn't like bullies and
has always viewed the law as a way of evening out the playing field
between the strong and the weak.
I was impressed with that statement because I view
the law in much the same way. The problem I had is that when I examined
Judge Roberts' record and history of public service, it is my personal
estimation that he has far more often used his formidable skills
on behalf of the strong in opposition to the weak. In his work in
the White House and the Solicitor General's Office, he seemed to
have consistently sided with those who were dismissive of efforts
to eradicate the remnants of racial discrimination in our political
process. In these same positions, he seemed dismissive of the concerns
that it is harder to make it in this world and in this economy when
you are a woman rather than a man.
I want to take Judge Roberts at his word that he
doesn't like bullies and he sees the law and the Court as a means
of evening the playing field between the strong and the weak. But
given the gravity of the position to which he will undoubtedly ascend
and the gravity of the decisions in which he will undoubtedly participate
during his tenure on the Court, I ultimately have to give more weight
to his deeds and the overarching political philosophy that he appears
to have shared with those in power than to the assuring words that
he provided me in our meeting.
The bottom line is this: I will be voting against
John Roberts' nomination. I do so with considerable reticence. I
hope that I am wrong. I hope that this reticence on my part proves
unjustified and that Judge Roberts will show himself to not only
be an outstanding legal thinker but also someone who upholds the
Court's historic role as a check on the majoritarian impulses of
the executive branch and the legislative branch. I hope that he
will recognize who the weak are and who the strong are in our society.
I hope that his jurisprudence is one that stands up to the bullies
of all ideological stripes.
Let me conclude with just one more comment about
this confirmation process. I was deeply disturbed by some statements
that were made by largely Democratic advocacy groups when ranking
member Senator Leahy announced that he would support Judge Roberts.
Although the scales have tipped in a different direction for me,
I am deeply admiring of the work and the thought that Senator Leahy
has put into making his decision. The knee-jerk unbending and what
I consider to be unfair attacks on Senator Leahy's motives were
unjustified. Unfortunately, both parties have fallen victim to this
kind of pressure.
I believe every Senator on the other side of the
aisle, if they were honest, would acknowledge that the same unyielding,
unbending, dogmatic approach to judicial confirmation has in large
part been responsible for the kind of poisonous atmosphere that
exists in this Chamber regarding judicial nominations. It is tempting,
then, for us on this side of the aisle to go tit for tat.
But what I would like to see is for all of us to
recognize as we move forward to the next nominee that in fact the
issues that are confronted by the Supreme Court are difficult issues.
That is why they get up to the Supreme Court. The issues facing
the Court are rarely black and white, and all advocacy groups who
have a legitimate and profound interest in the decisions that are
made by the Court should try to make certain that their advocacy
reflects that complexity. These groups on the right and left should
not resort to the sort of broad-brush dogmatic attacks that have
hampered the process in the past and constrained each and every
Senator in this Chamber from making sure that they are voting on
the basis of their conscience.
Thank you very much.