Topic: Senator Cornyn, Opening Remarks
Senator: Cornyn
Date: SEPTEMBER 12, 2005
Contents
SPECTER: Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
Judge Roberts, let me also join in extending a warm welcome to you and your family of these hearings. As the 15th speaker in the order of seniority here, I recall the adage I learned when I first came to Washington that everything's been said, but not everyone has said it yet.
And perhaps by the time this hearing is over this week, you will have a fuller appreciation than you do now for that.
But, of course, you are a known quantity, so to speak, to this committee and to this Senate, having been confirmed by unanimous consent just two short years ago. And I want to extend a compliment to you on your judicial service. You have served with distinction in your current capacity.
While the importance of your nomination as chief justice of the United States cannot be overstated, it seems as it each new nomination to the court brings an element of drama somewhat akin to an election.
Indeed, we've seen special interest groups raising money, running television advertisements and even trying to coerce you into stating your opinion on hot-button issues that are likely to come before you as a judge, as if this were an election.
But, of course, this is not an election. And no reasonable person expects you to make promises to politicians about how you're likely to rule on the issues when they come before the court as a condition of confirmation.
Still, some in our country have lost sight of the proper of an unelected judge where the people are sovereign and where government enjoys no legitimacy except by consent of the governed.
They see unelected judges primarily as policymakers and arbiters of every pressing social issue that might arise, with the authority to dictate to the people what they think is good for us.
Well, this ideal of the Supreme Court as a super-legislature to which we might turn to give us everything that is good and stop everything that is bad is not a view that I share, nor for that matter did those who wrote and ratified the Constitution.
CORNYN: The Constitution does not guarantee everything that is good and prohibit everything that is bad or it could have been written in two sentences. Rather, it guarantees some specific things, it prohibits some specific things and leaves the rest to be sorted out through the democratic process.
Alexander Hamilton, as you know, wrote in the Federalist Papers, which argued for ratification of the Constitution, that the judicial branch, he predicted, would be known as the least dangerous branch.
He believed that there is no liberty if the power of judging is not separated from the legislative and executive powers. Its sole purpose was to interpret and apply the laws of the land. It's role would be limited.
Regrettably, justices have not always been faithful to this constitutional design. All we need to do is to look at the Supreme Court's track record to see why abdicating our right of self- government to nine judges isolated behind a monumental marble edifice far removed from the life experiences of the average American is a bad idea.
For example, the Constitution says in part that the federal government shall not prohibit the free exercise of religion or abridge freedom of speech. Many Americans, including me, are concerned that the Supreme Court, by erecting extra-constitutional and contradictory judge-made standards in this area of the law, has effectively banned voluntary religious expression from much of our public life turning what should be official neutrality into a policy of official hostility.
To be sure, the court has been zealous in protecting the rights of those who express themselves or promote their products using violence or sex.
But voluntary expression of one's faith? Never.
Likewise, many Americans including me are baffled that the Supreme Court recently saw fit to strike down the display of the Ten Commandments in Kentucky but upheld the constitutionality of a display in Texas, even while the Ten Commandments itself is prominently displayed in the chambers of the United States Supreme Court on its ceiling.
CORNYN: Many Americans, including me, wondered what to read into the court's recent dismissal of a suit seeking to deny schoolchildren the right to recite the Pledge of Allegiance because it contains the words, "One nation, under God."
A majority of the court refused to agree that the pledge was constitutional, leaving this time-honored tradition of schoolchildren across our nation in legal limbo.
And recently the court expanded the awesome power of government to condemn private property beyond all previous bounds by reading the public use limitation on eminent domain right out of the Constitution.
Justice O'Connor warned, "The specter of condemnation now hangs over all property. Nothing is to prevent the state from replacing any Motel 6 with a Ritz-Carlton, any home with a shopping mall or any farm with a factory."
On what legitimate basis can the Supreme Court uphold state laws on the death penalty in 1989, then strike them down in 2005, relying not on the written Constitution -- which, of course, had not changed -- but on foreign laws that no American has voted on, consented to or may even be aware of?
When in 2003 the court decided Lawrence v. Texas, the court overruled a 1986 decision on the constitutionality of state laws based on the collective moral judgment of those states about permissible sexual activity.
What changed in that intervening time?
CORNYN: Did the Constitution change? Well, no.
Did the justices change? Yes.
But should that determine a different meaning of the Constitution? Are some judges merely imposing their personal preferences under the guise of constitutional interpretation?
Indeed, this was the same case, as you know, Judge Roberts, that served as the cornerstone of the Massachusetts Supreme Court's decision, holding that state laws limiting marriage to a man and a woman amounted to illegal discrimination.
Let me close on an issue that several senators have already mentioned today, and that is your obligation to answer our questions.
Of course, I share with all of my colleagues a desire -- and a curiosity, really -- to know what you think about all sorts of issues. All of us are curious.
But just because we're curious doesn't mean that our curiosity should be satisfied. You have no obligation to tell us how you will rule on any issue that might come before you if you're confirmed to the Supreme Court.
It boils down to a question of impartiality and fairness. One characteristic of a good judge is that they keep an open mind until they hear the facts and hear the lawyers argue the case before them. If you pledge today to rule a certain way on an issue, how can parties to future cases possibly feel that they would ever have a fair day in court?
Justice Ginsburg, as we've heard already, one of the last Supreme Court justices confirmed by the Senate, noted not too long ago, "In accord with long-standing norm, every member of the current Supreme Court declined to furnish such information. The line each justice drew in response to pre-confirmation questioning is crucial to the health of the federal judiciary."
This has come to be known as the Ginsburg standard, although it has been the norm for all nominees who come before the committee and before the Senate for confirmation.
Now, I know some of the members of the committee will ask you questions that you can't answer. They'll try to entice you to abandon the rules of ethics and the long tradition described by Justice Ginsburg.
But that should not concern you, Judge Roberts. Don't take the bait. Do not head down that road, but do exactly what every nominee of every Republican president and every Democrat president has done: Decline to answer any question that you feel would compromise your ability to do your job.
CORNYN: The vast majority of the Senate, I am convinced, will not punish you for doing so. Rather, I'm convinced that the vast majority of the Senate will respect you for this decision because it will show you are a person of deep integrity and independence, unwilling to trade your ethics for a confirmation vote.
Again, let me say welcome to you, again, before the committee, and thank you for your continued willingness to serve this great nation.
SPECTER: Thank you, Senator Cornyn.
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