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"The nomination of Judge John Roberts to be Chief Justice of the
United States is a matter of tremendous consequence for future
generations of Americans. It requires thoughtful inquiry and
debate, and I commend my colleagues on the Senate Judiciary
Committee for their dedication to making sure that all questions
were presented and that those outside of the Senate had the
opportunity to make their voices heard. After serious and careful
consideration of the Committee proceedings and Judge Roberts's
writings, I believe I must vote against his confirmation. I do not
believe that the Judge has presented his views with enough clarity
and specificity for me to in good conscience cast a vote on his
behalf.
The Constitution commands that the Senate provide meaningful
advice and consent to the President on judicial nominations, and I
have an obligation to my constituents to make sure that I cast my
vote for Chief Justice of the United States for someone I am
convinced will be steadfast in protecting fundamental women's
rights, civil rights, privacy rights, and who will respect the
appropriate separation of powers among the three branches. After
the Judiciary Hearings, I believe the record on these matters has
been left unclear. That uncertainly means as a matter of
conscience, I cannot vote to confirm despite Judge Roberts's long
history of public service.
In one memo, for example, Judge Roberts argued that Congress
has the power to deny the Supreme Court the right to hear appeals
from lower courts of constitutional claims involving flag burning,
abortion, and other matters. He wrote that the United States would
be far better off with fifty different interpretations on the right to
choose than with what he called the "judicial excesses embodied in
Roe v. Wade." The idea that the Supreme Court could be denied
the right to rule on constitutional claims had been so long decided
that even the most conservative of Judge Roberts's Justice
Department colleagues strongly disagreed with him.
When questioned about his legal memoranda, Judge Roberts
claimed they did not necessarily reflect his views and that he was
merely making the best possible case for his clients or responding
to a superior's request that he make a particular argument. But he
did not clearly disavow the strong and clear views he expressed,
but only shrouded them in further mystery. Was he just being an
advocate for a client or was he using his position to advocate for
positions he believed in? The record is unclear.
It is hard to believe he has no opinion on so many critical issues
after years as a Justice Department and White House lawyer,
appellate advocate and judge. His supporters remind us that Chief
Justice Rehnquist supported the constitutionality of legal
segregation before his elevation to the high court, but never sought
to bring it back while serving the court system as its Chief Justice.
But I would also remind them of Justice Thomas's assertion in his
confirmation hearing that he had never even discussed Roe v.
Wade, much less formed an opinion on it. Shortly after he
ascended to the Court, Justice Thomas made it clear that he wanted
to repeal Roe.
Adding to testimony that clouded more than clarified is that we in
the Senate have been denied the full record of Judge Roberts's
writings despite our repeated requests. Combined, these two
events have left a question mark on what Judge Roberts's views
are and how he might rule on critical questions of the day. It is
telling that President Bush has said the Justices he most admires
are the two most conservative justices, Justices Thomas and
Scalia. It is not unreasonable to believe that the President has
picked someone in Judge Roberts whom he believes holds a
similarly conservative philosophy, and that voting as a bloc they
could further limit the power of the Congress, expand the purview
of the Executive, and overturn key rulings like Roe v. Wade.
Since I expect Judge Roberts to be confirmed, I hope that my
concerns are unfounded and that he will be the kind of judge he
said he would be during his confirmation hearing. If so, I will be
the first to acknowledge it. However, because I think he is far
more likely to vote the views he expressed in his legal writings, I
cannot give my consent to his confirmation and will, therefore,
vote against his confirmation. My desire to maintain the already
fragile Supreme Court majority for civil rights, voting rights and
women's rights outweigh the respect I have for Judge Roberts's
intellect, character, and legal skills.
"
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