Topic: Senator Schumer, Opening Remarks
Senator: Schumer
Date: SEPTEMBER 12, 2005
Contents
SPECTER: Senator Schumer ?
SCHUMER: Thank you, Mr. Chairman.
And, Judge Roberts, welcome to you and Mrs. Roberts, your parents, your family, your two beautiful children.
I join my colleagues in congratulating you on your nomination to the position of chief justice of the United States.
Now, this is indisputably the rarest opportunity in American government.
In the entire history of the republic, we have had but 16 chief justices.
But the responsibility is as great as the opportunity is rare.
SCHUMER: The decisions of the Supreme Court have a fundamental impact on people's lives, and the influence of a chief justice far outlasts that of a president.
As the youngest nominee to the high court's top seat in 204 years, you have the potential to wield more influence over the lives of the citizens of this country than any jurist in history.
I cannot think of a more awesome responsibility; awesome not in the way my teenage daughter would use the word, but in the biblical sense of the angels trembling in the presence of God.
But before you can assume that responsibility, we senators, on behalf of the people, have to exercise our own responsibility. Fundamental to that responsibility is our obligation to ascertain your legal philosophy and judicial ideology.
To me, the pivotal question which will determine my vote is this: Are you within the mainstream -- albeit the conservative mainstream -- or are you an ideologue who will seek to use the court to impose your views upon us as certain judges, past and present on the left and on the right, have attempted to do?
The American people need to learn a lot more about you before they and we can answer that question.
You are, without question, an impressive, accomplished and brilliant lawyer. You're a decent and honorable man. You have a remarkable resume. There are those who say your outstanding and accomplished resume should be enough, that you should simply promise to be fair and that we should confirm.
I disagree. To me, the most important function of these hearings -- because it's the most important qualification for a nominee to the Supreme Court -- is to understand your legal philosophy and judicial ideology.
This is especially true now that judges are largely nominated through an ideological prism by a president who has admitted he wants to appoint justices in the mold of Scalia and Thomas.
To those who say ideology doesn't matter, they should take their quarrels to President Bush. I began to argue that a nominee's judicial ideology was crucial four years ago. Then, I was almost alone.
< SCHUMER >: Today, there is a growing and gathering consensus on the left and on the right that these questions are legitimate, important and awful crucial.
Therefore, I and others on both sides of the aisle will ask you about your views.
Here is what the American people need to know beyond your resume:
They need to know who you are and how you think;
They need to assess not only the sharpness of your mind but the fullness of your heart;
They need to believe that an overachiever can identify with an underdog who has nothing but the Constitution on his side;
They need to understand that your first class education and your advantaged life will not blind you to the plight of those who need help and who rely on the protections of the Constitution, which is every one of us at one point or another;
They need to be confident that your claim of judicial modesty is more than easy rhetoric, that your praise of legal stability is more than lip service;
They need to know above all that, if you take the stewardship of the high court, you will not steer it so far out of the mainstream that it founders in the shallow waters of extremist ideology.
As far as your own views go, however, we only have scratched the surface. In a sense, we have seen maybe 10 percent of you -- just the visible tip of the iceberg, not the 90 percent that is still submerged. And we all know that it is the ice beneath the surface that can sink the ship.
For this reason, it is our obligation to ask and your obligation to answer questions about your judicial philosophy and legal ideology.
If you can't answer these questions, how are we to determine whether you're in the mainstream? A simple resume, no matter how distinguished, cannot answer that question.
So for me, the first criterion upon which I will base my vote is whether you will answer questions fully and forthrightly. We do not want to trick you, badger you, or play a game of gotcha. That is why I met with you privately three times, and that's why I gave you a list of questions in advance of these hearings.
It's not enough to say you will be fair.
SCHUMER: If that were enough, we'd have no need for a hearing.
I have no doubt you believe you'll be a fair judge.
I have no doubt that Justice Scalia thinks he is a fair judge and that Justice Ginsburg thinks she is a fair judge.
But in case after case, they rule differently. They approach the Constitution differently. And they affect the lives of 280 million Americans differently.
That is so, even though both Scalia and Ginsburg believe that they are fair.
You should be prepared to explain your views of the First Amendment and civil rights and environmental rights, religious liberty, privacy, workers' rights, women's rights and a host of other issues relevant to the most powerful lifetime post in the nation.
Now, having established that ideology and judicial philosophy are important, what's the best way to go about questioning on these subjects?
The best way I believe is through understanding your views about particular past cases, not future cases that haven't been decided, but past, already-decided cases. It's not the only way, but it's the best and most straightforward way.
Some have argued that questioning a nominee about his or her personal views of the Constitution or about decided cases indicates prejudgment about a future case.
It does nothing of the sort.
Most nominees who have come before us, including Justice Ginsburg, whose precedents you often cite, have answered such questions.
Contrary to popular mythology, when she was a nominee, Justice Ginsburg gave lengthy answers to scores of questions about constitutional law and decided cases, including individual autonomy, the First Amendment, criminal law, choice, discrimination and gender equality.
Although there were places she said she did not want to answer, she spoke about dozens of Supreme Court cases and often gave her unvarnished impressions, suggesting that some were problematic in their reasoning while others were eloquent in their vindication of important constitutional principles.
SCHUMER: And nominee after nominee, from Powell to Thomas to Breyer, answered numerous questions about decided cases, and no one every questioned their fitness to hear cases on issues raised during confirmation hearings.
So I hope you'll decide to answer questions about decided cases, which so many other nominees have done.
If you refuse to talk about already decided cases, the burden, sir, is on you, one of the most preeminent litigators in America, to figure out a way, in plain English, to help us determine whether you'll be a conservative but mainstream conservative chief justice or an ideologue.
Let me be clear: I know you're a conservative. I don't expect your views to mirror mine. After all, President Bush won the election and everyone understands that he will nominate conservatives to the court.
But while we certainly do not expect the court to move to the left under the president, it should not move radically to the right.
You told me when we met that you were not an ideologue and you share my aversion to ideologues. Yet, you've been embraced by some of the most extreme ideologues in America, like the leader of Operation Rescue.
That gives rise to a question many are asking: What do they know that we don't?
Judge Roberts, if you want my vote, you need to meet two criteria.
First, you need to answer questions fully so we can ascertain your judicial philosophy.
And, second, once we have ascertained your philosophy, it must be clear that it is in the broad mainstream.
Judge Roberts, if you answer important questions forthrightly and convince me you're a jurist in the broad mainstream, I'll be able to vote for you. And I would like to be able to vote for you.
But if you do not, I will not be able to vote for you.
Mr. Chairman, I have high hopes for these hearings. I want, and the American people want, a dignified, respectful hearing process, open, fair, thorough, above board; one that not only brings dignity but, even more importantly, information about Judge Roberts' views and ideology to the American people.
SCHUMER : I, along with all of America, look forward to hearing your testimony.
SPECTER: Thank you, Senator Schumer.
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