| |
 |
| July 20th, 2005 |
|
Media Contact(s): Adam Elggren (202) 224-3370 |
|
Printable Version |
|
|
FLOOR STATEMENT: "NOMINATION OF JOHN ROBERTS TO THE SUPREME COURT OF THE UNITED STATES"
|
| |
Statement of Sen. Orrin G. Hatch
before the
United States Senate
“Nomination of John Roberts to the Supreme Court of the United States”
Mr. President, yesterday President Bush fulfilled his constitutional duty and nominated John Roberts to fill the vacancy left by Justice Sandra Day O’Connor on the Supreme Court of the United States. The spotlight is now here on the United States Senate. The President has done his duty. Now we must do ours.
Let me first pay tribute to Justice O’Connor, who has been a real trailblazer in her own right. The first woman on the Supreme Court, a thoughtful and dedicated jurist, she has ably served on our highest court for nearly 24 years. Her announced retirement creates the first vacancy in nearly 11 years. This has been the longest period with the same set of Justices in more than 175 years.
In Article II, Section 2, the Constitution says that the President alone nominates, but he appoints only with the advice and consent of the Senate. One of the best short-hand ways of understanding the Senate’s role is that, by deciding whether to consent to the nomination, we give the President advice about whether to appoint the person he has nominated. Traditionally, we have done so by means of an up or down vote here on the Senate floor.
I want to commend the President and his team of senior advisers for broadly soliciting the views of Senators and other interested parties. The President and his staff spoke with more than two-thirds of the members of this body, an absolutely unprecedented level of interaction. For some, though, it appears that even extensive consultation with all 100 Senators would not be enough if they do not like the President’s nominee. On the other hand, if they did like the nominee, I suppose they would declare a five-minute chat with a Senate staffer to have been a consultative triumph.
No President need consult at all with any Senator, or with anyone else for that matter. The President does so because, in his judgment, it will help him fulfill his constitutional responsibility. President Bush has done that, and has nominated John Roberts to be the 109th individual to serve on the Supreme Court in American history. The ball is now in our court.
Judge Roberts has served on the U.S. Court of Appeals for the D.C. Circuit ever since we confirmed him on May 8, 2003 -- without even a roll call vote I might add. Judge Roberts was so easily confirmed because he is so eminently qualified. He graduated summa cum laude from Harvard Law School and served as managing editor of the Harvard Law Review. He clerked for Judge Henry Friendly on the U.S. Court of Appeals for the Second Circuit, and then for Chief Justice William Rehnquist on the U.S. Supreme Court. Judge Roberts served as Special Assistant to the Attorney General, Associate Counsel to President Ronald Reagan, and Principal Deputy Solicitor General under the first President Bush. And before his judicial appointment, he was head of the appellate practice group at the distinguished law firm of Hogan & Hartson.
He has been widely acknowledged as one of the most accomplished appellate attorneys in America, having argued nearly 40 cases before the Supreme Court on a wide range of issues, from antitrust and the First Amendment to Indian law, bankruptcy, and labor law. Not surprisingly, the American Bar Association unanimously gave him its highest well qualified rating for his appeals court appointment. This has been the Democrats’ Gold Standard for evaluating judicial nominees.
Mr. President, the question now is how we should evaluate Judge Roberts’ nomination to the Supreme Court. What standards we should apply. There is more confusion about that than there should be, yet I believe that, like so many other endeavors, ending in the right place requires starting in the right place. An effective process for hiring or selecting someone to fill a position, any position, must start with an accurate description of that position.
I am reminded of a 1998 article by Judge Harry Edwards, appointed in 1980 by President Jimmy Carter to the U.S. Court of Appeals for the D.C. Circuit. He was that court’s chief judge from 1994 to 2001 and a colleague of Judge Roberts. Judge Edwards warned that giving the public a distorted view of what judges do is bad for both the judiciary and the rule of law.
Mr. President, the debate about judicial selection is a debate about what judges do, about their proper place in our system of representative government.
Getting the judicial job description straight is necessary for a legitimate and effective selection process. It defines the qualifications for the job. It identifies the criteria we should apply. It guides the questions that may properly be asked and answered, and the conclusions that should be reached.
Judges take law they did not make and cannot change, determine what it means, and apply it to the facts of a legal dispute. That is what judges do. That judicial job description applies across the board. It does not depend on the parties or the issues before the court. It does not depend on the law that is involved in a particular case. And it certainly does not depend on which side wins.
I believe we must help our fellow citizens better understand what judges do, so they can better evaluate what we will be doing in the weeks ahead as we consider the nomination now before us. Without in any way trivializing the work of judges, I want to use a practical example because I believe we can be simple without being simplistic. Judges are like umpires or referees. They are neutral officials who take rules they did not make and cannot change, and apply those rules to a contest between two parties.
How would we evaluate the performance of an umpire or referee? Would we say he did a good job as long as our favored team won the game? If we were hiring an umpire or a referee, would we grill him about which side he was likely to favor in upcoming matches? Of course not. Desirable results neither justify an umpire or referee twisting the rules during the game, nor are automatic proof that the umpire or referee is fair and impartial. Umpires and referees must be fair and impartial from beginning to end during the contest before them. They do not pick the winner before the game starts, nor do they manipulate the process along the way to produce the winner they want.
Mr. President, in the same way, we must not evaluate judges solely by whether we like their decisions, or whether their decisions favor a particular political agenda. The political ends do not justify the judicial means. This is a very important point, something we must keep in clear focus throughout the weeks ahead. That is why I wanted to raise it now, at the beginning of the confirmation process.
One thing is becoming increasingly clear: not everyone who says that judges must interpret, but not make, the law means the same thing. Some who use that language still determine whether that standard is met the same old way, by whether a judge’s decisions meet a litmus test. Once again, Mr. President, an umpire or referee is not there to pick the winner, he is there to fairly and impartially apply the rules. Similarly, judges are not there to pick the winner, they are there to fairly and impartially apply the law.
I emphasize this because it is at the heart of this entire debate over judicial selection, and I will be returning to it throughout this process. We may like or dislike a judge’s decision, but that is not the point. His decisions may be consistent with certain political interests, but that is not the point. That is not what judges do; it is not their role in our system of representative government. Rather, if the American people do not like what the faithful and impartial application of the law produces, then they and their elected representatives can change the law. That is our role in our system of representative government. Expecting judges to do our job undermines the judicial branch and demeans the legislative branch. Simply put, judges must be evaluated not by the results they reach but by the process they follow to reach those results. That is what judges do.
Mark my words, we will hear in the days and weeks ahead, this group or that Senator demanding to know whether the nominee now before us will produce results they like. They want to know whether the nominee will rule this way on this issue and that way on that issue. Some may try to cloak their mission, perhaps using terms their focus groups say will go down more smoothly with the public, but we all know what is going on. They want to know which side the umpire or referee will favor. They want to know that their team will have the upper hand even before it takes the field.
In recent days, we have heard speeches by Senators and seen letters by interest groups and law professors with lists of questions to ask this nominee. Most of them are geared, in one way or another, to finding out how this nominee would likely rule, that is, the results this nominee would likely deliver, on certain issues. Past nominees, including virtually every current member of the Supreme Court, have resisted such intrusive attempts to extract either commitments or previews of future rulings. In that way, judicial nominees sometimes appear to have a deeper commitment to judicial independence than some Senators. I expect Judge Roberts will take a judicious approach to answering questions, mindful both of the judicial position he already occupies and the one to which he has been nominated.
Last night, the head of one of the left-wing groups primed to attack Judge Roberts was on one of the cable talk shows as the news about the nomination circulated. It took him about 15 seconds to say the words serious problems regarding this superbly qualified nominee. Within minutes of the President’s announcement last night, other groups had already proclaimed the nominee an unacceptable extremist.
Mr. President, that kind of knee-jerk, results-oriented standard is wrong, whether such calls come from the left or the right. Mr. President, as Judge Edwards reminded us, misrepresenting what judges do harms both the judiciary and the rule of law. Judges take law they did not make and cannot change, determine what it means, and apply it to settle legal disputes. That is what judges do.
In the days and weeks ahead, let us keep that job description in mind and set about determining whether the nominee now before us can do that job. Judge Roberts twice came before the Judiciary Committee. I remember him as an intelligent, fair-minded, and thoughtful person. While I, of course, must withhold final judgment on Judge Roberts’ nomination to the Supreme Court until after the confirmation hearing, my initial reaction is that President Bush appears to have submitted to the Senate a well-qualified nominee with exactly the kind of intellect, integrity, and independence that is required for a Supreme Court Justice. Mr. President, we must apply the right standard as we evaluate this nominee.
I yield the floor.
|
| |
| ### |
| |
| |
| |
|
|
