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Wednesday, July 27, 2005

Text of Schumer's Speech Today

Chuck Schumer gave a speech to the National Press Club today. A press release from his office sums it up thusly:
'MODESTY AND STABILITY' ON THE BENCH: HOW JOHN ROBERTS CAN CONVINCE DEMOCRATS TO VOTE FOR HIM

Schumer Outlines Three Potential Pitfalls that Could Throw Comity of Process off Track

How Roberts Answers Questions; Type and Scope of Documents Turned over by White House; and Making Sure There is Enough Time for Thorough and Fair Hearings Affect Confirmation Process

Senator: "Roberts Told Me He's Not an Ideologue, if that Proves to be True, I'll Vote for Him"

U.S. Senator Charles E. Schumer, the ranking Democrat on the Judiciary Subcommittee on the Courts, spoke to the National Press Club at a luncheon today to discuss the nomination of Judge John G. Roberts to the U.S. Supreme Court. In particular, Schumer addressed how Judge Roberts can convince Democrats to vote for his nomination in the coming weeks and months.
The speech is very long, and I confess that I've not read the whole thing. I'm going to add the full text as the first comment below. Here are a couple highlights:

Now, many of us had little doubt that, at the outset of his
second term, this President fully intended to fill his first Supreme Court vacancy with a committed conservative ideologue whose nomination would have immediately antagonized the half of the country that did not vote for him and plunged the nation into a debilitating and divisive debate over the direction of the high Court.

This, after all, was a President who seemed to go out of his way to pick fights rather than pick judges.

Although the jury is still out on Judge Roberts, we know enough about him to know that he is not in the category of the most divisive nominees....

Whether Judge Roberts is in the broad mainstream remains to be seen.

But, after eight days, we can say that Judge Roberts is a serious man for a serious job, and he is clearly worthy of our serious consideration....

What does Judge Roberts - or any nominee to the Supreme Court, for that matter - have to do to win the votes of Democrats?

He does not have to pass some litmus test, and he does not have to agree with me or any other Democrat on particular political or legal issues before we can vote for him. We understand that the President won the election and that he would nominate - and has nominated - a conservative....

But here is what Judge Roberts must do:

Fundamentally, he must persuasively demonstrate that he is not an ideologue....

Now another bit of good news. I think we've won the argument that judicial philosophy and ideology are important and proper considerations in confirming a nominee....

So, just as the nomination of Judge Roberts was the product of an evaluation of his philosophy by the President, it is beyond doubt that his confirmation can occur only after a similar evaluation by the Senate....

This is not a game, as it sometimes devolved into in the past,
where Republicans looked for whether the nominee smoked marijuana in high school and Democrats looked for what movies a nominee checked out of the video store. Rather, this is a serious inquiry during which a nominee must show that he is not out of the mainstream in applying the law.

There are some who suggest that the President's choice is
entitled to a presumption and that we should be little more than a rubber stamp, and that we should exercise our right to withhold consent only if there is some serious ethical lapse.

But that view is contrary to the Constitution and to common
sense.
The fact that these are just excerpts gives you a sense of how long this speech is. But it's worth a look.

1 Comments:

Blogger Jonah B. Gelbach said...

*?MODESTY AND STABILITY? ON THE BENCH:*

*HOW JOHN ROBERTS CAN CONVINCE DEMOCRATS TO VOTE FOR HIM*

* *

I want to thank the National Press Club for inviting me to be
here today, including Rick Dunham, Bill McCarren, and all of you.



I want to take this opportunity to make some remarks about the
most important domestic decision this President is likely to make during
his time in office ? his first (and hopefully last) selection to the
Supreme Court of the United States.



Today, I want to talk both about his pick, what it means, and
what it portends. On the process so far, I can say it started off quite
well ? I and my colleagues have been pleased that Judge Roberts has made
himself available to meet with Senators at length. And those
conversations have been meaningful, substantive, and helpful.



So far, so good. But because I (and all my colleagues) want the
process to continue to be a smooth one and because I think that no one
gains from a fight about the process, I want to mention three areas
where I am concerned we could go off track if we all don?t get together
and work it out. We are all trying hard to make this work, but there
are three potential stumbling blocks.



I?ve said this before and I?ll say it again ? I want to vote for
Judge Roberts. But he has to meet the only standard that I have ? is he
an agenda-driven ideologue or is he a mainstream jurist? We Democrats
want to make this work. Our goal is simply to discharge our duty to the
Constitution and to our constituents and assure ourselves that Judge
Roberts is in the broad mainstream. This is not a game of ?gotcha.?



In bringing up these problems, it is not my intent to throw down
the gauntlet, but to identify them SO THEY CAN BE SOLVED through
compromise. There are lots of ways to make this hearing process work.
But if you place constraints on one aspect of the process, then you must
necessarily expand some other aspect



I want to be clear ? these three pitfalls are not insurmountable,
but they are troubling, and I think a full, fair, and calm dialogue
about them will go a long way towards preserving harmony in the weeks ahead:

1. The Administration?s blanket refusal to release certain
categories of documents, such as memos from Judge Roberts? days as a
high-ranking political deputy in the Solicitor General?s office. Given
the somewhat revealing nature of documents already made public, it makes
sense that more recent documents authored by the nominee when he was a
higher-ranking official, there is less reason to withhold all these
documents before there has even been a discussion about them. There may
be a way around this, to the satisfaction of everyone, but I know the
Administration is pretty dug in on this. They feel very strongly about
the issue of executive privilege, not just in this case but elsewhere,
so it will be hard to resolve. But I hope the Administration gives
second look.



So the documents may well not be a deal-breaker. But,
when a category of documents is taken completely off the table, that
puts a greater burden ? and a need for greater openness ? on other parts
of the process.



2. Judge Roberts? continuing concerns about answering
questions -particularly answering his views about decided Supreme Court
cases. For example, what is your view of the Supreme Court?s decision
in United States v. Morrison, which outlawed parts of the Violence
Against Women Act. Again, most opinion leaders and scholars think that
this is an appropriate line of inquiry. See Professor Amar?s piece in
today?s New York Times. It would go a long way towards creating a
smooth and quicker-moving process if he were to answer these questions.



3. Constraints on the scope or duration of the hearing, as is
being suggested, such as a hard deadline for a Senate floor vote by
September 29, 2005. Again, if we had all the documents in a timely way
or if the nominee were open to answering questions that would quickly
reveal his judicial reasoning, we would not need as much time for
hearings. Of the three potential roadblocks, this is the most serious
in my view. A requirement that we must finish by a date certain is more
of a third rail to comity in the hearings than any other issue. For
example, what if a new and important issue comes up in the nomination a
week before the vote has been scheduled ? as has happened before? There
needs to be some flexibility in the process.



There is a push and pull here. If the Administration stymies us
at every turn, when all we are trying to do is fulfill our
Constitutional duty to vet this nominee, we will have problems. I
believe strongly that we can make this work ? and it will take
accommodation and understanding from both sides ? but the sooner we have
a rational discussion about it, the better.



Now, although it is still early in the process and although
Senators and citizens are still being introduced to Judge John Roberts,
let me start by making a preliminary observation about the President?s pick.



Now, many of us had little doubt that, at the outset of his
second term, this President fully intended to fill his first Supreme
Court vacancy with a committed conservative ideologue whose nomination
would have immediately antagonized the half of the country that did not
vote for him and plunged the nation into a debilitating and divisive
debate over the direction of the high Court.



This, after all, was a President who seemed to go out of his way
to pick fights rather than pick judges.



This, after all, was a President whose idea of working with the
Senate was to pointedly re-nominate a slew of rejected judges when he
was re-elected to a second term and all but dared us to reject them again.



This, after all, was a President who took the almost
unprecedented step of making a recess appointment of Judge William Pryor
to the 11^th Circuit Court of Appeals, after he was rejected by the Senate.



This was a President who time and time again chose combat over
consensus and one-upsmanship over bipartisanship.



With his rhetoric, renominations, and recess appointment, the
President clearly preferred to play a high-stakes game of judicial
chicken rather than reach out in a bipartisan way to defuse tensions
over nominations to the federal bench.



And so we came to the brink of a Constitutional crisis this past
May. That?s when it appeared that the President, Vice President, and
the Republican Senate leadership were bent on triggering the so-called
?nuclear option,? which would have vaporized two centuries of Senate
tradition, undermined our system of checks and balances, and destroyed
any hope of Congressional cooperation for years to come.



But we stepped back from that precipice with the leadership of
the group of 14, preserved the Senate?s role as a vital check and
balance, and got back to the people?s work.



Then, with Justice Sandra Day O?Connor?s retirement, the
President was again at a crossroads.



Would he choose a nominee who was so apparently doctrinaire and
divisive, so clearly ideological and out of the broad mainstream that
Democrats would have no choice but to make an immediate stand against him?



There were certainly several such candidates on the President?s
widely publicized short list. /They included Janice Rogers Brown,
Michael Luttig, and Edith Jones./



There were some nominees that it would have been clear we could
have easily supported ? such as someone in the mold of Sandra Day
O?Connor. There are others who would have clearly and immediately
caused deep division and perhaps bitter partisan fighting.

Although the jury is still out on Judge Roberts, we know enough
about him to know that he is not in the category of the most divisive
nominees.



I know that Democrats are still frustrated that they cannot pick
the nominee ? but they can take pride in having influenced Bush?s
decision. To an important degree, Democrats should be heartened and
happy that our calls for moderation and for consensus (and our strong
stand against the nuclear option) undoubtedly played a part in
influencing the President?s pick and persuading him to forego selecting
one of the most controversial possibilities.



Now, let me be clear that we still don?t know if Judge Roberts
fits the bill. I for one still don?t know enough about Judge Roberts to
make up my mind about how I will vote.



Whether Judge Roberts is in the broad mainstream remains to be seen.



But, after eight days, we can say that Judge Roberts is a serious
man for a serious job, and he is clearly worthy of our serious
consideration.



That Judge Roberts is a serious nominee worthy of serious
consideration was clear from my two meetings with him.



I can report that Judge Roberts is an impressive, accomplished,
and brilliant lawyer. He appears to be a decent and honorable man. I
liked him personally, and I thoroughly enjoyed our discussions.



As you in the press have widely noted, he certainly has a
remarkable resume. But that, by itself, is not enough to get my vote.



This process should not be a rote and robotic review of a resume,
as some of my colleagues across the aisle have seemed to suggest.



There are many people who boast impressive resumes and academic
credentials, but who would misserve the American people from the bench,
because of their extremist views, misguided judicial philosophy, or
disrespect for the Constitution.



But if they use their impressive resumes or brilliant minds to
take away rights that the Court has assiduously guarded for decades,
then their credentials and brilliance become tools for bad things rather
than good.

A good resume is important, but not dispositive. It is a
necessary, but certainly not sufficient, prerequisite for serving in a
lifetime post on the most powerful court in the land.



So, what is sufficient? What does Judge Roberts ? or any nominee
to the Supreme Court, for that matter ? have to do to win the votes of
Democrats?



He does _not_ have to pass some litmus test, and he does not have
to agree with me or any other Democrat on particular political or legal
issues before we can vote for him. We understand that the President won
the election and that he would nominate ? and has nominated ? a
conservative.



But here is what Judge Roberts must do:



Fundamentally, he must persuasively demonstrate that he is not an
ideologue.



He must show that he does not want to impose his personal views
on the rest of America; and that he will be faithful to the Constitution
and the law, rather than to some political or ideological agenda.



He must convince us that he will be restrained and independent
and capable of growth in the position of Justice.



And he must show us that he is within the broad mainstream ? even
if it?s a conservative mainstream ? of judicial philosophy.



Now another bit of good news. I think we?ve won the argument
that judicial philosophy and ideology are important and proper
considerations in confirming a nominee. This started out as something
of a lonely argument in 2001 with an op-ed piece I wrote in the New York
Times.



Those were lonely days. People attacked me for suggesting
something that they said was completely novel. Well, it seems ? as I
will outline in a moment ? that there is fairly broad consensus that
asking questions about a nominee?s views, especially questions about his
views on decided cases, is perfectly proper, both inside and outside of
Congress.



Senators from across the political spectrum ? from Brownback to
Specter to Kennedy ? have emphasized the importance of knowing a
candidate?s views before voting to confirm.



In fact, in a sign that there is no longer much controversy over
the importance of judicial philosophy, even President Bush publicly
endorsed this view just after Sandra Day O?Connor retired:



?I am going to be deliberate in the process because I want the American
people to know that, when I finally make a decision, it?s going to be
one based upon a lot of research and a lot of thought about the
character of the person, the integrity of the person, the ability of the
person to do the job, _and the philosophy of the person_.?



So, just as the _nomination_ of Judge Roberts was the product of
an evaluation of his philosophy by the President, it is beyond doubt
that his _confirmation_ can occur only after a similar evaluation by the
Senate.



So, let me talk about that evaluation by the Senate.



Judge Roberts has already begun the process of trying to convince
me and the rest of the American people that he is not an ideologue.
/And he?s not off to a bad start./



In fact at our meeting last night, he told me flatly that he is
not an ideologue and said that he shares my aversion to ideologues.
Furthermore, he said I could repeat that publicly and he said I could ?
that he is not an ideologue.



That was certainly good to hear.



It was also good to hear him say, as he reportedly told Senator
Specter and me, that he believes in the values of ?modesty? and
?stability? on the Court.



Those words signal, at least, a deference to the role of the
legislature, a respect for precedent, and an aversion to judicial
activism ? of the left or of the right.



But, if we are to confirm a nominee to the highest court in the
land, we need to be sure of these sentiments.



And it is up to the nominee to convince us. It is the nominee?s
burden to prove that he is worthy, not the Senate?s burden to prove that
he is unworthy.



This is not a game, as it sometimes devolved into in the past,
where Republicans looked for whether the nominee smoked marijuana in
high school and Democrats looked for what movies a nominee checked out
of the video store. Rather, this is a serious inquiry during which a
nominee must show that he is not out of the mainstream in applying the law.

There are some who suggest that the President?s choice is
entitled to a presumption and that we should be little more than a
rubber stamp, and that we should exercise our right to withhold consent
only if there is some serious ethical lapse.



But that view is contrary to the Constitution and to common sense.



That the burden should fall to the nominee is not just my idea.
Listen to the words of Timothy Flanagan, who is the President?s current
nominee to be the Deputy Attorney General in the Justice Department.
This is what he said in 1997 before the Senate Judiciary Committee about
the confirmation process:



?I would reverse the presumption and place the burden squarely on the
judicial nominee to prove that he or she has a well-thought out judicial
philosophy, one that recognizes the limited role of federal judges.
Such a burden is appropriately borne by one seeking life tenure to wield
the awesome judicial power of the United States.?



I could not agree more. So, how can Judge Roberts go about
meeting that burden and securing our votes?



It seems to me there are at least four sources of information
about a nominee from which Senators can assure themselves of the general
judicial philosophy and temperament of a nominee to the bench:



1. The nominee?s personal references;

2. The nominee?s prior judicial record, if any;

3. The nominee?s other written record; and

4. The nominee?s candid answers to questions at the
confirmation hearing.



All of these sources of information, though, are not in abundant
supply for every nominee. And so where one source is either lacking or
unreliable, the other source becomes that much more vital when Senators
fulfill their Constitutional duty of determining whether to give ? or
withhold ? their consent.



Some nominees to the Supreme Court have had no judicial record,
for example, while others have spent years forging a legacy on an
appeals court, which can provide an excellent guide to his or her
judicial philosophy.



There is a push and a pull here. If you constrain one part of
the process, it naturally puts greater pressure on the other parts. For
example, Justice Ginsburg had 13 years on the appeals court and had
written 305 opinions and had penned 65 substantive articles. Because
she had a long record, it was somewhat less critical for her to answer
every question.



And that is why I mentioned my concern about three places where
this process could come to a head ? (1) on production of documents; (2)
on answering certain types of questions; and (3) on timing of the
hearings. Let me say again, that none of us wants a fight. None of
us. The reason I?m giving this speech is to help head this off and see
if we can come to some accommodation and understanding in the best
spirit of bipartisanship.

So, let me review each of the sources of information about a nominee.



_First_, the nominee?s personal references, though important,
will always have to be taken with a grain of salt. Given the standard
of etiquette in the legal community, it will not be common that a
nominee?s peers, mentors, or colleagues will be publicly and brutally
honest about his judicial philosophy and legal thinking.



Also, it will be the rare person, and especially the rare lawyer
or judge, who will want to earn the animosity of someone who could
become one of the nine most powerful jurists in the country. That is
only natural.



So personal references are not to be ignored, but they are
helpful only to a point. And that is certainly true in Judge Roberts?
case. So let?s look at the second source of information.



_Second_, the nominee?s prior judicial record can probably be the
most instructive about his judicial philosophy and method of legal
reasoning.



A body of written opinions _literally_ speaks volumes about a
nominee?s views of the Constitution, loyalty to precedent, and penchant
judicial activism.



Justice Breyer, for example, like Justice Ginsburg, had spent
years on the court of appeals, written hundreds of opinions (even more
than Justice Ginsburg) and authored scores of scholarly works. These
were enough to provide any Senator with patience and a pair of reading
glass ample evidence of his legal thinking.



In Judge Roberts? case, on the other hand, he has only spent two
years on the bench and authored a small fraction as many opinions as
Justice Ginsburg and Breyer had at the time of their nominations.



So his prior judicial record is quite scant. It provides a small
basis for judging his ideology and legal thinking, but less than for
many, many recent nominees to the high court.



So, let?s look at the third source of information: documents that
come from the nominee?s past.



_Third_, when the prior judicial record is scant, naturally a
nominee?s other legal record becomes that much more prominent. This can
include documents such as law review articles, opinion pieces, and
briefs written in the practice of law.



In the case of someone who, like Judge Roberts, spent years in
high level Government positions, that most important part of that record
may include memos and other documents written about significant legal
issues while in Government service.



Here, too, the record is copious because Judge Roberts served a
long while in Government.



This has been the first pitfall the White House has created.
While the White House has dumped a large number of documents from Judge
Roberts? days working for the Reagan Administration, much of which was
already public, it appears to have taken a hard-line stance against
producing ANY documents from his time as the political deputy at the
Solicitor General?s office under the first President Bush.



It is the latter documents, which are more recent, that could
well be more important, as they are more likely to reveal Judge Robert?s
legal philosophy because he held a crucial policy position at the time.
And it is certainly unclear at this stage whether there is any
appropriate claim of immunity or privilege with respect to those
documents because previous administrations have turned over such documents.



It is too early to tell whether those documents would shed light
on our inquiry about Judge Roberts? fitness for the Supreme Court, but
the Administration has summarily cut off a critical source of
information about a nominee who, if confirmed, will be able to ? with
the stroke of a pen ? affect tens of millions of lives.



Of course, the document issue many not be fatal. As I?ve said,
there is a push and pull here. Something has to give ? if the nominee
does not want to answer questions, then we need more documents. If
there is a moratorium on documents, then we need the nominee to answer
questions more forthrightly and we need more time to ask those questions.



I hope the White House will work with the Senate and reconsider
its hardline stance, but in the meantime, we really are left with the
last ? and by process of elimination ? most important source of possible
information about Judge Roberts: answers to questions at the upcoming
hearings.



_Fourth_: Necessary questions and answers at the hearings.
Because of the generally unilluminating nature of personal references,
because of the scant judicial record, and because of the unilaterally
restricted documentary record of Judge Roberts, the upcoming hearings in
the Judiciary Committee will be VASTLY MORE IMPORTANT THAN USUAL.



They will be the most important source of information for
Senators and the most important way for Judge Roberts to prove to the
country that he is not an ideologue.



The good news is this: If ever there was a nominee who was
well-equipped to meet his burden of proving he is suited for the Supreme
Court, it is Judge Roberts.



As you all have been reporting, Judge Roberts? skills as a
litigator and advocate before the Supreme Court are legendary, and
according to his mentor Chief Justice Rehnquist, perhaps unparalleled.



Judge Roberts has made his reputation (and his fortune) by
answering tough questions from the nine toughest questioners in America
? the nine members of the Supreme Court. Compared to those nine, eight
Democrats on the Judiciary Committee should be a walk in the park.



I called Judge Roberts on Monday and told him that I knew he was
a great litigator and that he should use his formidable skills to
convince us that he is not an ideologue ? and we can then all live
happily ever after.



Now, here?s the bad news: While Judge Roberts has earned a
reputation for giving direct and responsive answers during oral
arguments before the Supreme Court, he was much less forthcoming when he
was last before the Judiciary Committee.



Judge Roberts at his last hearing expressed concern about
answering certain questions about his judicial philosophy. In
particular, he did not want to answer questions about which past
decisions of the Supreme Court he disagreed with and what he thought of
the specific holdings in those decisions.



Now, on this issue I think he is just wrong ? and many
conservatives and Republicans agree with me. There?s really no debate here.



Last week when I met with Judge Roberts, some of the questions I
gave him were about past cases. For example, one asked him his opinion
of the /Morrison/ case, which goes to the heart of the Commerce clause,
a vital questions that goes to the heart of his judicial philosophy. I
also asked questions regarding cases relating to the right to privacy,
freedom of religion, and a host of other issues.



And there is a growing consensus that I should be able to ask ?
and that Judge Roberts should answer ? these questions.



1. Just this morning two articles reflect that growing
consensus. One was an op-ed piece in the New York Times from a law
professor making this precise point:



?In its confirmation hearings, the Senate should ask Judge John G.
Roberts to analyze specific cases that have come before the Supreme
Court in the past. That is the only way to get a meaningful sense of
where he may move the nation's jurisprudence.? /Law Professor Vikram D.
Amar/

/ /

2. Former Solicitor General Walter Dellinger made the very
same point today in the Washington Post. How can it be improper for a
nominee to give his views of a decided Supreme Court case when sitting
members of the Supreme Court ? who continue to hear cases ? may have
criticized the same decided cases in dissent?



?What is wrong with asking a nominee whether he or she agrees with
Justice Antonin Scalia's dissenting opinion in /Planned Parenthood v.
Casey/ when we know that Scalia agrees with it and Scalia will be able
to take part in future related cases without anyone suggesting that to
be a problem.?



3. A dozen leading legal ethicists confirmed in a letter to me
recently that there is nothing inappropriate with Senators? asking
questions about Constitutional issues. Relying on Justice Scalia?s
opinion in /White/, these professors wrote:



?It is hardly possible that a person could achieve nomination for
appointment to the United States Supreme Court and yet have no opinions
about the significant constitutional issues and cases of our day. And
the fact that the nominee does have such opinions and voices them will
not undermine impartiality or the appearance of impartiality.?



4. The consensus is now so broad on the propriety of these
questions that conservative commentators -- some of whom are still
kicking themselves because David Souter was not asked searching
questions about his philosophy -- are also coming to the conclusion that
I am right. Just this past Sunday, the conservative Ryan Sager wrote
this in the /New York Post/:



?[Judge Roberts] should be asked his views on everything ? from the
Second Amendment to the Commerce Clause to the Takings Clause. And he
should answer. We?re not buying a computer. We?re trusting a human
being with the care of our Constitution. Someone besides the president
should have some idea what?s going on inside Judge Roberts? head.?



5. Another conservative, Matthew J. Franck, recently wrote this:

?For the record, I like almost all of Senator Schumer's questions, and I
too would like to know Judge Roberts's answers. Of course, I?d like
different answers from the ones I expect Sen. Schumer would like. But
almost without exception, the questions are fair game and even fairly
stated. I see no ethics problem with answering any of them.? [Matthew J.
Franck is chairman and professor of political science at Radford
University in Radford, Virginia]



But it?s not just commentators and scholars who believe that it
is right and important to find out the answers to these questions.



The American people ? whose lives and livelihoods will be
profoundly affected by the next Supreme Court justice ? believe that
they have the right to know where a nominee stands on important legal
and Constitutional issues.



That?s why 61 percent of Americans say that at his confirmation
hearing Judge Roberts should answer questions about how he?d have ruled
on past Supreme Court cases.



They have an innate wisdom about these things, and here their
views are consistent with those of Senators and scholars.



The absurdity of the argument that asking for a nominee?s views
on decided cases is wrong is highlighted by the long tradition of
nominees being asked questions about what they think of past cases.
Senators Hatch, Grassley, and Specter, and many others have asked these
questions.





! Listen to Senator Mathias questioning Lewis Powell
in 1971. He referred Powell to two criminal law cases ? /Miranda/ and
/Escobido/ ? and asked ?I am wondering if . . . you think these cases
should be overruled??



? Powell responded, not by giving a commitment as to how he
would rule in a particular case, but testified that ?I just happened to
have the view that the minority opinion was the sounder one.?



? That was a real and substantive answer, and no one to my
knowledge has ever suggested that was an ethical breach or that Justice
Powell ever had to recuse himself from a case because of his testimony.






! Listen to Senator Hatch to Stephen Breyer in 1994,
?Do you believe that /Washington// /v. /Davis// /[an equal protection
case]/ /is settled law; and second, do you believe it was correctly
decided??



Again, Justice Breyer answered that question.



! Senator Grassley asked Clarence Thomas about a specific decided
case. He asked if Judge Thomas ?had any objections to? the test
established in /Bowers v. Hardwick/ ?as a method of determining the
extent of protectable private interests. Judge Thomas said that the
methodology was one ?certainly f[ou]nd agreeable.?



Despite his clear expression of his views on this case, Justice Thomas
wrote a strongly worded dissent in defense of /Bowers/ when it was
overruled by the Supreme Court in 2003./ /No one asked Justice Thomas
to recuse himself based on his testimony.



! Senator Leahy also asked then-Judge Thomas about his views of a
particular case. Specifically, he asked if the standard for libel
established in /New York Times v. Sullivan/ ?provide[s] sufficient
protection for public figures in your mind?? and if Judge Thomas saw
?any need to change that standard?? Judge Thomas also answered that
question.



! Senator Metzenbaum asked then-Judge Ginsburg, ?In your view, does
the /Casey/ decision stand for the proposition that the right to choose
is a fundamental constitutional right?? Judge Ginsburg answered.



And the list goes on and on.



Now, at my meeting with Judge Roberts yesterday, I went through
some of my questions with him. Again, he expressed concerns about
answering detailed questions about particular cases.



For example, at his earlier hearing, Judge Roberts did not want
to give me his opinion of the Supreme Court?s decision in /United States
v. Morrison/, which not only struck down provisions of the Violence
Against Women Act, a piece of legislation very dear to my heart as I was
sponsor of the House bill, but goes to one of the fundamental issues
facing the Court and the country today ? the Commerce Clause.



When I met with him, we discussed the Commerce Clause and I
explained how important it was to me, but he said he was unable to
answer direct questions about prior cases.



So I tried another tack, and spent 30 minutes asking his views
about the Commerce Clause and how it fit in with his statements about
?modesty? and ?stability.? At the end of the discussion, I was
convinced that Judge Roberts would not overturn decades of established
law and shrink the Commerce Clause to a position it held in the 1890's
and 1930's. Our meeting was detailed, interesting, and fruitful.



As I?ve said, I think Judge Roberts? reticence is wrong, but I
clearly have no way to compel the nominee to answer my questions. I hope
and pray he will reconsider. This is a crucial part of determining
whether we have the information we need. It is the second pitfall we face.



4b. Timing of the hearings. So, given that at the moment the
scant judicial record, given the scant documentary record, and given the
scant hope that Judge Roberts will answer pointed questions at the
hearing, it will be that much harder for him to meet his burden of
proving he is not and ideologue and is within the judicial mainstream.



So if all these constraints are placed on us, this is going to
consume a great deal of time. It can be done, I suppose, but only with
great difficulty. I can ask questions generally about the Commerce
Clause, for example, as I did during my meeting with him yesterday. But
that will take time.



Without the ability to get to the heart of the matter by asking
pointed questions about his views of cases decided by the Supreme Court,
I and other Senators will be left to asking incremental questions about
the text and structure of the Constitution and about the few decisions
that he has written on the lower court. And, as I have said, that will
take time.



If Judge Roberts gives me the same answers in public that he gave
me in private ? as he assured me he would ? much of my concerns would be
abated. But it took a half hour to get some comfort on a single issue.
So we will need ample time at the hearing to go into these issues.



There are a dozen or more other issues ? free speech, privacy,
the separation of church and state, just to name a few ? that would
require equal treatment at a hearing. Each will take time.



The bottom line is this: given the scantness of the record, to
get my vote and the votes of many Democrats, Judge Roberts either has to
become more willing to answer questions that everyone else seems to
understand he can answer _OR_ the hearings have to go on long enough so
that I and others can be satisfied he has met his burden. And that may
be very long indeed.



If it?s the latter, any move to limit the time of the hearings
will be extremely detrimental to the process and to our obligation to
the Constitution and our constituents.



If we do not receive documents and there is no direct answering
of questions about decided cases and there is a deadline for a vote on a
set day, that would be unfair to the process and would undermine our
Constitutional duty.



Let me say this: Judge Roberts does not have to answer every
question or any particular question in any particular way. This is not
a game of gotcha; it is not an end in itself. It is a means to finding
out how he thinks.



A false and artificial deadline could well be the third rail.



If there is a rush to a vote, or a time limit, that would be a strong
signal that there is an effort to railroad the nominee, rather than help
discover the nominee?s philosophy. That is not necessary, especially
given that Sandra Day O?Connor has agreed to stay on until a replacement
has been confirmed.



So if we don?t get documents, strike one.



If we don?t get direct answers to questions, strike three.



Let?s not tempt fate and risk strike three ? by creating an unnecessary
and artificial deadline for concluding the hearing.



Let me repeat. So far, so good. So far things are going well. I want
to be convinced to vote for him, as I believe almost every one of my
Democratic colleagues does.



We simply want to be convinced that he is not an ideologue.



So let us set up a structure that makes it possible for that to happen.

7/27/2005 8:01 PM  

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