Washington, DC -- The following is the floor statement by Senate Democratic Leader announcing his opposition to John Roberts as Chief Justice. Remarks as prepared:
“One of the Senate’s most important constitutional responsibilities is to provide “advice and consent” with respect to a President’s nominations. The task is especially important when the nomination is of an individual to be the Chief Justice of the United States.
“No one doubts that John Roberts is an excellent lawyer and an affable person. But at the end of this process, I have too many unanswered questions about the nominee to justify a vote confirming him to this enormously important lifetime position.
“The stakes for the American people could not be higher. The retirement of Justice O’Connor and the death of Chief Justice Rehnquist have left the Supreme Court in a period of transition. On key issues affecting the rights and freedoms of Americans, the Court is closely divided. If confirmed, Judge Roberts, who is only 50 years old, will likely serve as Chief Justice and leader of the third branch of the federal government for decades to come.
“The legal authority that we will hand to Judge Roberts by this confirmation vote is awesome. In my view, we should only vote to confirm this nominee if we are absolutely positive that he is the right person to hold that authority. This is a very close question for me. But I must resolve my doubts in favor of the American people whose rights would be in jeopardy if John Roberts turns out to be the wrong person for the job.
“Some say that the President is entitled to deference from the Senate in nominating individuals to high office. I agree that such deference is appropriate in the case of executive branch nominees such as Cabinet officers. With some important exceptions, the President may generally choose his own advisors.
“In contrast, the President is not entitled to very much deference in staffing the third branch of government, the judiciary. The Constitution envisions that the President and the Senate will work together to appoint and confirm federal judges. This is a shared constitutional duty.
“The Senate’s role in screening judicial candidates is especially important in the case of Supreme Court nominees, because the Supreme Court has assumed such a large role in resolving fundamental disputes in our civic life. As I see it, any nominee for the Supreme Court bears the burden of persuading the Senate and the American people that he or she deserves confirmation to a lifetime seat on the Court.
“Let me start by observing that Judge Roberts has been a thoughtful, mainstream judge on the DC Circuit Court of Appeals. But he has only been a member of that court for two years and has not confronted many cutting-edge constitutional issues. As a result, we cannot rely on his current judicial service to determine what kind of Supreme Court justice he would be.
“I was very impressed with Judge Roberts when I first met him, soon after he was nominated. But several factors caused me to reassess my initial view.
“Most notably, I was disturbed by the memos that surfaced from Judge Roberts’s years of service in the Reagan Administration. These memos raise serious questions about the nominee’s approach to civil rights.
“It is now clear that as a young lawyer, John Roberts played a significant role in shaping and advancing the Republican agenda to roll back civil rights protections. He wrote memos opposing legislative and judicial efforts to remedy race and gender discrimination. He urged his superiors to oppose Senator Kennedy’s 1982 bill to strengthen the Voting Rights Act and worked against affirmative action programs. He derided the concept of comparable worth and questioned whether women actually suffer discrimination in the workplace.
“No one suggests that John Roberts was motivated by bigotry or animosity towards minorities or women. But these memos lead one to question whether he truly appreciated the history of the civil rights struggle. He wrote about discrimination as an abstract concept, not as a flesh and blood reality for countless of his fellow citizens. The memos raised a real question for me whether their author would breathe life into the Equal Protection Clause and the landmark civil rights statutes that come before the Supreme Court repeatedly.
“Nonetheless, I was prepared to look past these memos, and chalk them up to the folly of youth. I looked forward to the confirmation hearings in the expectation that Judge Roberts would repudiate those views in some fashion. Instead, the nominee adopted what I consider a disingenuous strategy of suggesting that the views expressed in those memos were not his views, even at the time the memos were written. He claimed that he was merely a “staff lawyer” reflecting the positions of his client, the Reagan Administration.
“Anyone who has read the memos can see that Roberts was expressing his own personal views on these important policy matters. In memo after memo, the text is clear. It is simply not plausible for the nominee to claim that he did not share the views that he expressed.
“For example, there is a memo in which he refers to the Equal Employment Opportunity Commission as “un-American.” If Judge Roberts had testified that this was a twenty year old bad joke, I would have given the memo no weight. But instead, he provided a tortured reading of the memo that simply does not stand up under scrutiny.
“In another memo Judge Roberts spoke about a Hispanic group that President Reagan would soon address, and he suggested that the audience would be pleased to know that the Administration favored legal status for the “illegal amigos” of the audience members. The use of the Spanish word “amigos” in this memo is patronizing and offensive to a contemporary reader.
“I do not condemn Judge Roberts for using the word “amigos” twenty years ago in a non-public memo, but I was stunned when at his confirmation hearing he could not bring himself to express regret for using the term, or recognize that it might cause offense.
“My concerns about these Reagan-era memos were heightened by the fact that the White House rejected a reasonable request by Committee Democrats for documents written by Judge Roberts when he served in the first Bush Administration. After all, if memos written twenty years ago are to be dismissed as not reflecting the nominee’s mature thinking, it would be highly relevant to see memos he had written as an older man in an even more important policymaking job.
“The White House claim of attorney-client privilege to shield these documents is utterly unpersuasive. Senator Leahy asked Attorney General Gonzales for the courtesy of a meeting to discuss the matter and was turned down. This was simply a matter of stonewalling.
“The failure of the White House to produce relevant documents is reason enough for any Senator to oppose this nomination. The Administration cannot treat the Senate with such disrespect without some consequences.
“In the absence of these documents, it was especially important for the nominee to fully and forthrightly answer questions from Committee members at his hearing. He failed to do so adequately. I acknowledge the right – indeed, the duty – of a judicial nominee to decline to answer questions regarding specific cases that will come before the court to which the witness has been nominated. But Judge Roberts declined to answer many questions more remote than that, including questions seeking his views of long-settled precedents.
“Finally, I was very swayed by the testimony of civil rights and women’s rights leaders against confirmation. When a civil rights icon like John Lewis says that John Roberts was on the wrong side of history, Senators must take notice.
“I like Judge Roberts. I respect much of the work he has done in his career, such as his advocacy for environmentalists in the Lake Tahoe takings case several years ago. In the fullness of time, he may well prove to be a fine Supreme Court Justice. But I have reluctantly concluded that this nominee has not satisfied the high burden that would justify my voting for his confirmation based on the current record.
“Based on all of these factors, the balance shifts against Judge Roberts. The question is close, and the arguments against him do not warrant extraordinary procedural tactics to block the nomination. Nonetheless, I intend to cast my vote against this nominee when the Senate debates the matter next week.”
Originally published on Tuesday September 20, 2005.