Topic: Closing Remarks
Date: SEPTEMBER 15, 2005
OK. What I'd like to do is say a few concluding words here with a final request.
SCHUMER: First, I want to thank you for holding up so well during the three days of grueling questions. Many of us on this committee, probably every one of us, some more than others, has been wrestling with how to vote on your nomination since well before the hearings started. And, of course, now that process has accelerated.
I, for one, have waken up in the middle of the night thinking about it, being unsure how to vote.
Now, I think my colleague from Delaware was on to something when he called this a roll of the dice.
But this is a vote on the chief justice of the Supreme Court. You will in all likelihood affect everyone of our lives in many ways for a whole generation. So this isn't just rolling the dice, it's betting the whole house.
And I thought I'd share with you the thoughts of some of us with important questions. There are pros and cons.
On the pro side, first of all, is your brilliance. You have an amazing knowledge of the law. You spent three days here talking of so many aspects of it without any paper in front of you, without a single aide coming over and whispering in your ear or passing you a note.
Your knowledge of law and the way you present it is a tour de force. You may very well possess the most powerful intellect of any person to come before the Senate for this position.
Second on the pro side is that you seem to be a lawyer above all. You've devoted your entire life to the law and it's clear that you love it.
Most people in that position tend not to be ideologues. They'll follow the law wherever it takes them regardless of the consequences, and you have repeatedly professed that to be true for you.
But given that you spent most of your legal life representing others and your limited tenure on the court of appeals didn't allow you to rule on very many non-technical cases, there's not a long enough track record to prove that point.
The third, and perhaps the most important, at least to me, is your judicial philosophy and modesty and stability. Such a theory respects precedent, the Congress and other judges' opinions. Modest jurists tend not to be ideologues. And many of us on this side of the aisle would like the court to maintain -- and in cases related to the commerce clause like Morrison increase -- its modesty.
But in complicated decisions like this one, there's always a counterpoint, even on the modesty question.
Yesterday, you said that the decision of Brown v. Board could be described as modest. Brown v. Board was breathtaking. It was wonderful. It reversed 80 years of accepted but bad law, yes. But modest?
So I ask myself, could overturning Wickard or Roe also be modest by your definition?
Nonetheless, I think the philosophy of modestly is an appealing, important and unifying philosophy to many of us.
Let me go to the con side here.
First, is the question of compassion and humanity. I said on the first days of these hearings it's important to determine not just the quality of your mind but the fullness of your heart, which to I think a good number of us at least on side of the aisle really mean the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.
It didn't seem much, for instance, to concede that the wording "illegal amigos" was unfortunate, yet you refused to say so.
America has moved in the 21st century what Senator Kennedy called the cramped view of civil rights professed in the early Reagan administration. But you wouldn't admit now in 2005 that any of those views you argued for in the early '80s were misguided with the hindsight of history.
SCHUMER: That's troubling.
Second is the refusal of the administration to let us see any documents you wrote when you served as deputy solicitor general, when you were not simply following policy, which you've reminded us in your earlier days there and in the counsel's office, but making it.
This would have given us tremendous insight into who you are, into knowing who you are and what kind of justice you'd make.
But, for what seems to be self-serving reasons, they were refused.
Now this was not your decision. But you carry its burden and I think we all have to consider it when weighing how to vote.
Third, and most important, on the con side, is your refusal to answer so many of our questions.
I know you feel you were more forthcoming than most any other nominee to the high court. I must disagree. You certainly were more forthcoming than a few. Now, for instance, I don't know Justice Scalia's opinion on "Doctor Zhivago," but most answered more relevant questions than you did.
Your refusal to comment on any issue that you thought may come before the court -- we learned a lot about your views on older, completely discredited cases, like Lochner and Plessy and Korematsu. But they're not of much help to us.
What we need to know are the kinds of things that are coming before the court now. And it makes it hard to figure out what kind of justice you will be, particularly in light of the fact we have little else to go on.
You did speak at length on many issues and sounded like you were conveying your views to us but when one went back and read the transcript each evening, there was less than met the ear that afternoon.
Perhaps that's the job of a good litigator, but in too many instances it didn't serve the purpose of the hearing.
Having said that about documents and questions, obtaining documents and answering questions are a means to an end, not an end in itself.
In some cases, like Miguel Estrada's nomination, we had no knowledge of his views so we couldn't vote. But here there's clearly some evidence.
So now we must take the evidence we have and try to answer the fundamental question: What kind of justice will John Roberts be?
Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly?
Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society, like Justice Rehnquist?
SCHUMER: Or will you use your enormous talents to use the court to turn back a near-century of progress and create the majority that justices Scalia and Thomas could not achieve?
That's the question that we on the committee will have to grapple with this week. And over the next week, if you have any more information that could help us answer this question, I think every one of us would welcome it.
Thank you, Judge.