Topic: Senator Specter, Opening Remarks
Senator: Specter
Date: SEPTEMBER 12, 2005
Contents
SPECTER: And now we'll begin the opening statements, as I said, of 10 minutes' duration.
This hearing, Judge Roberts, is being held in the Senate Caucus Room, which has been the site of many historic hearings going back to 1912 with the sinking of the Titanic; 1923, Teapot Dome; 1954, Army McCarthy; 1973, Watergate; 1987, Iran-Contra.
And this chamber still reverberate with the testimony of Judge Bork in 1987 and it still reverberates with the testimony of Justice Clarence Thomas and Professor Anita Hill in 1991.
SPECTER: This is a very unique hearing, the first one in 11 years in the Senate for a Supreme Court justice, and the first one in 19 years for a chief justice.
And you would be, if confirmed, the 17th chief justice in the history of the country and the second youngest since Chief Justice Marshall was sworn in in 1800.
Your prospective stewardship of the court, which could last until the year 2040 or longer -- the senior justice now is Justice Stevens, who is 85, and, projecting ahead 35 years, that would take us to the year 2040 and would present a very unique opportunity for a new chief justice to rebuild the image of the court away from what many believe it has become as super legislature and to bring consensus to the court with the hallmark of the court being 5-4 decisions: a 5-4 decision this year allowing Texas to display the 10 Commandments; a 5-4 decision, turning Kentucky down from displaying the 10 Commandments; a 5-4 decision four years ago striking down a section of the Americans with Disabilities Act; and last year a 5-4 decision upholding the Americans for Disabilities Act on the same congressional record.
SPECTER: Beyond your potential voice for change and consensus, your vote will be critical on many, many key issues, such as congressional power, presidential authority, civil rights, including voting rights and affirmative action, defendants' rights, prayer, many decisions for the future and perhaps institutional changes in the court looking for the day when the court may be televised.
This hearing comes at a time of turbulent partisanship in the United States Senate -- turbulent partisanship. Earlier this year, the Senate faced the possibility of a virtual meltdown with filibusters on one side of the aisle and on the other side of the aisle the threat of the constitutional or nuclear confrontation.
This committee, with the leadership of Senator Leahy, has moved to a bipartisan approach.
SPECTER: We had a prompt confirmation of the attorney general. We reported out bills which have become legislation after being stalled for many years on bankruptcy reform and class action. We have confirmed contentious circuit court nominees. We have reported out unanimously the Patriot Act, and after very deliberate and complex hearings reported out asbestos reform. So it has been quite a period for this committee.
And now we face the biggest challenge of the year, perhaps the biggest challenge of the decade, in this confirmation proceeding. I have reserved my own judgment on your nomination until the hearings are concluded, and it is my firm view that there are ought not to be a political tilt to the confirmation of a Supreme Court justice, thought to be Republican or Democrat. We all have a responsibility to ask probing questions to determine qualification beyond academic and professional standing.
These hearings, in my judgment, ought to be in substantive fact and in perception for all Americans, that all Americans can feel confident that the committee and the full Senate has done its job.
SPECTER: There are no firmly established rules for questions and answers. I have expressed my personal view that it is not appropriate to ask a question about how the nominee would vote on a specific case. And I take that position because of the key importance of independence, that there ought not to be commitments or promises made by a nominee to secure confirmation.
But senators have the right to ask whatever question they choose. And you, Judge Roberts, have the prerogative to answer the questions as you see fit, or not to answer them as you see fit.
It has been my judgment, after participating in nine -- this will be the tenth for me, personally -- that nominees answer about as many questions as they think they have to in order to be confirmed.
It's a subtle minuet. And it will be always a matter of great interest as to how we proceed.
I do not intend to ask you whether you will overrule Roe v. Wade. I will ask you whether you think the Constitution has a right of privacy. And I will ask questions about precedents, as they bear on Roe v. Wade.
I'm very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the court. I am concerned about what I bluntly say is the denigration by the court of congressional authority.
When the Supreme Court of the United States struck down a portion of the legislation to protect women against violence, the court did so because of our, quote, "method of reasoning," close quote. And the dissent noted that that had carried the implication -- the implication of judicial competence. And the inverse of that is congressional incompetence.
SPECTER: And after 25 years in this body and on fact-finding, and there was an extensive record made in the case in the legislation to protect women against violence, the court simply disregarded that.
And then the issue of states' rights, the Supreme Court of the United States has elevated states' rights but in a context that it's impossible to figure out what the law is.
The Americans with Disabilities Act had a very extensive record. But when the case came up in 2001, Garrett, a woman who had breast cancer, the Supreme Court said that the section of the act was unconstitutional.
Four years later in Lane v. Tennessee, you had a paraplegic crawling up the steps, access to a courtroom. The court said that that was constitutional. Again, 5-4 on what really turned out to be on inexplicable decisions.
You have a very extensive paper trail and there will obviously be questions on that subject, and we'll be concerned about what your views are today contrasted with what your views may have been in the future.
Phyllis Schlafly, the president of the Eagles Forum, said that they were smart-alec comments by a bachelor who didn't have a whole lot of experience so she's putting on an understandable gloss on that subject. But I know that will be a matter of considerable interest.
In one of your early memoranda, you came forward with an intriguing thought, one of many in those early memorandas as your conceptualization power was evident that justices ought to be limited to a 15-year term.
SPECTER: And with that idea in play, if time permits, it's something I'd like to explore: voluntary action on the part of a justice, or perhaps the president can make that a condition.
Between now and the year 2040, or in the intervening years, technology will present many, many novel issues. And there again, if time permits, I'd like to explore that.
I'm down to ten seconds and I intend to stop precisely on time and this committee has a record for maintaining that time. That's it.
ROBERTS: Thank you, Mr. Chairman.
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