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2005-09-13

Senate Dems Call For Open Questioning of Roberts as GOPs Encourage Nominee to Avoid Controversial Topics

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During the opening day of confirmation hearings of John Roberts as chief justice, Democrats repeatedly said all questions to the nominee were fair game, including about issues such as abortion and civil rights. Republicans encouraged Roberts not to answer questions about his views on controversial topics. We play excerpts of the hearing. [includes rush transcript]

John Roberts’ opening statement came after the 18 members of the Senate Judiciary Committee–10 Republicans and 8 Democrats–delivered their opening statements.

While lawmakers from both sides of the aisle praised Roberts’ credentials, Democrats challenged his commitment to civil rights and women’s rights. They cited documents stemming from Roberts’ work as a government lawyer under Presidents Reagan and George HW Bush.

Democrats repeatedly said all questions were fair game. They promised to use the nearly weeklong hearings to ask Roberts about a number of issues including abortion, civil rights and the powers of the presidency and Congress.

  • Sen. Joseph Biden (D–Delaware)

While Democrats asserted that all questions during the hearing were fair game, Republicans used the opening day to encourage Roberts not to answer questions about his views on controversial topics.

  • Sen. Lindsey Graham (R–South Carolina)

President Bush nominated Roberts despite pressure from Republicans and even from his own wife, Laura Bush, that he should name a woman following the retirement of Justice Sandra Day O’Connor who was considered a swing vote on the closely divided court.

Roberts is a solidly conservative Republican and has come under criticism for his work and views on abortion. Many Democrats said they intended to question Judge Roberts on his views of "the right to privacy," the basis for the Roe v. Wade ruling legalizing abortion, which he once seemed to dismiss as a "so called right." At Monday’s hearing, it was Senator Dianne Feinstein of California who made the strongest comments of the day on reproductive rights.

  • Sen. Dianne Feinstein (D–California)

Many Republicans on the panel came with a set of procedural talking points aimed at encouraging Roberts not to answer the Democrats’ questions about his views on controversial issues before the court.

  • Sen. Chuck Grassley (R–Iowa)

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Delaware Senator Joseph Biden.

SEN. JOSEPH BIDEN: Like the founders, I believe our Constitution is as big and as grand and as great as its people. Our constitutional journey did not stop with women being barred from being lawyers, with ten-year-olds working in coal mines or black kids forced into different schools than white kids, just because in the Constitution nowhere does it mention sex discrimination, child labor, segregation. It doesn’t mention it. Our constitutional journey did not stop then, and it must not stop now, Judge.

And we’ll be faced with equally consequential decisions in the 21st century. Can a microscopic tag be implanted in a person’s body to track his every movement? There’s actual discussion about that. You will rule on that, mark my words, before your tenure is over. Can brain scans be used to determine whether a person is inclined toward criminality or violent behavior? You will rule on that. And Judge, I need to know whether you will be a justice who believes that the constitutional journey must continue to speak to these consequential decisions or that we have gone far enough in protecting against government intrusion into our autonomy, into the most personal decisions we make. Judge, that’s why this is a critical moment.

There are elected officials in this government, such as Mr. DeLay, a fine, honorable patriotic man and others who have been unsuccessful in implementing their agenda in the elected branches, so they have now poured their energies, as the left would if it were different — they have now poured their energies and resources into trying to change the court’s view of the Constitution, and now they have a once in a lifetime opportunity: the filling of two Supreme Court vacancies, one of which is the chief, and the other is for associate justice, the first time in 75 years.

Judge, I believe with every fiber in my being that their view of the Constitution and where the country should be taken would be a disaster for our people. Like most Americans, I believe the Constitution recognizes a general right to privacy. I believe a woman’s right to be nationally and vigorously protected exists. I believe that the federal government must act as a shield to protect the powerless against the economic interest of this country. And I believe the federal government should stamp out discrimination wherever — wherever it occurs. And I believe the Constitution inspires and empowers us to achieve these great goals.

Judge, if I look only at what you have said and written, as used to happen in the past, I would have to vote no. You dismissed the constitutional protection to privacy as, quote, "a so-called right." You derided agencies like the Securities and Exchange Commission that combat corporate misconduct as "constitutional anomalies," quote. And you dismissed gender discrimination as, quote, and I quote, "merely a perceived problem."

This is your chance, Judge, to explain what you meant by what you have said and what you have written. That’s what I said when I was chairman. That’s what this is about. The Constitution provides for one democratic moment, Judge, one democratic moment before a lifetime of judicial independence. This is that moment. And when the people of the United States are entitled to know as much as they can about the person we are entrusting with in safeguarding our future and the future of our children and our grandchildren, Judge, as you know, and we talked about it, this is that moment, and this is what this hearing is about. And I thank you.

AMY GOODMAN: Democratic Senator, Joseph Biden of Delaware, delivering his opening statement at the confirmation hearing of John Roberts to be chief justice in the Supreme Court. While Democrats asserted all questions during the hearing are fair game, Republicans used the opening day to encourage Roberts not to answer questions about his views on controversial topics. This is South Carolina Senator, Lindsey Graham.

SEN. LINDSEY GRAHAM: What is the standard for a senator to confirm a Supreme Court nominee? Whatever the senator wants it to be. And, really, that’s the way it should be. But there should be some goals, in my opinion. The way we conduct ourselves, one of the goals we should have, is to make sure we don’t run good people away from wanting to be a judge.

I don’t know what it’s like to sit at home and turn on the television and watch a commercial about you in the presence of your wife and your kids that say some pretty unflattering things about you. That’s just not a problem you’ve faced; I’m sure Democratic nominees have faced the same type problem. We shouldn’t, in our standard, trying to come up with a standard, invalidate election. The president won. The president told us what he’s going to do, and he did it. He picked a strict conservative — constructionist to be on the Supreme Court. If anybody is surprised, they weren’t listening to the last campaign.

Roe v. Wade, it divides America. If you believe in polling, most Americans would like to see the decision stand, even though we’re divided 50/50 on the idea of abortion on demand. My good friend from California has expressed a view about Roe v. Wade which I completely understand and respect. I can just tell you, Judge Roberts, there are plenty of women in South Carolina who have an opposite view about abortion. If we were to make our votes, base our votes on that one principle, Justice Ginsburg would not be Justice Ginsburg. In her writing, she embraced the idea of federal funding for abortion. She indicated that an abortion right was based on the equal protection clause of the Constitution.

I dare say that 90 percent of the Republican Caucus is pro-life. I dare say that 90 percent of the Democratic Caucus is pro-choice. Justice Ginsburg got 96 votes, even though she expressed a view of the federal government’s role in abortion that I completely disagree with and I think most conservatives disagree with.

There was a time not too long ago, Judge Roberts, where it was about the way you lived your life, how you conducted yourself, what kind of lawyer you were, what kind of man or woman you were, not whether you had an allegiance to a specific case or a particular cause. Let’s get back to those days. Let’s get back to the days where the Ginsburgs and the Scalias can be pushed and pressed, but they can be honored for their commitment to the law and the way they live their life. Let’s get back to the good old days where we understood that what we were looking for was well-qualified people to sit on the highest court of the land, not political clones of our own philosophy.

AMY GOODMAN: South Carolina Republican Senator, Lindsey Graham at the opening stay of hearings for Judge John Roberts to become Chief Justice of the Supreme Court.

[break]

AMY GOODMAN: President Bush nominated John Roberts despite pressure from Republicans and even from his own wife, Laura Bush, that he should name a woman to replace retiring justice, Sandra Day O’Connor, who was considered a swing vote on the closely divided court. Roberts is a solidly conservative Republican, has come under criticism for his work and views on abortion. Many Democrats say they intend to question Judge Roberts on his views of the right to privacy, the basis for the Roe v. Wade ruling, legalizing abortion, which he once seemed to dismiss as a so-called right. On Monday’s hearing, it was Senator Dianne Feinstein of California who made the strongest comments of the day on reproductive rights.

SEN. DIANNE FEINSTEIN: Now, as the only woman on this committee, I believe I have an additional role in evaluating nominees for the Supreme Court, and that’s to see if the hard earned autonomy of women is protected. Like any population, women enjoy diverse opinions, beliefs, political affiliations, priorities and values. We share a history of having to fight for many of the rights and opportunities that young American women now take so much for granted.

I think they don’t really recall that during the early years of the United States, women actually had very few rights and privileges. In most states, women were not allowed to enter into contracts, to act as executor of an estate, They had limited inheritance and child custody rights. It actually wasn’t until 1839 that a woman could own property separate from her husband, when Mississippi passed the Married Woman’s Property Act.

It wasn’t until the 19th century that women began working outside their homes in large numbers. Most often, women were employed as teachers or nurses and in textile mills and garment shops. As women entered into the workforce, we had to fight our way into non-traditional fields, medicine, law, business and, yes, even politics. The American Medical Association was founded in 1846, but it barred women for 69 years from membership until 1915. The American Bar Association was founded in 1876, but it barred women and did not admit them until 1918. That’s 42 years later. And it wasn’t until 1920, when after a very hard fight, women won the right to vote. Not even 100 years ago.

By virtue of our accomplishments and our history, women have a perspective, I think, that’s been recognized as unique and valuable. With the retirement of Justice Sandra Day O’Connor, the court loses the important perspective she brought as a woman and the deciding vote in a number of critical cases.

For me, and I said this to you privately, and I’ll say more about it in my time on questions, one of the most important issues that needs to be addressed by you is the constitutional right to privacy. I’m concerned by a trend on the court to limit this right and thereby to curtail the autonomy that we have fought for and achieved, in this case, over just simply controlling our own reproductive system rather than having some politicians do it for us.

It would be very difficult, and I said this you to privately and I said it publicly, for me to vote to confirm someone whom I knew would overturn Roe v. Wade, because I remember, and many young women here don’t, what it was like when abortion was illegal in America. As a college student at Stanford, I watched the passing of the plate to collect money so a young woman could go to Tijuana for a back alley abortion. I knew a young woman who killed herself because she was pregnant. And in the 1960s, then, as a member of the California Women’s Board of Terms and Parole, when California had what was called the Indeterminate Sentence Law, I actually sentenced women who committed abortions to prison terms. I saw the morbidity, I saw the injuries they caused, and I don’t want to go back to those days.

How the Court decides future cases could determine whether both the beginning of life and the end of life decisions remain private, or whether individuals could be subject to government intrusion or perhaps the risk of prison.

AMY GOODMAN: California Senator Dianne Feinstein, delivering her opening remarks at Monday’s Senate Judiciary Committee hearing. Many Republicans on the panel came with a set of procedural talking points aimed at encouraging Roberts not to answer the Democrats’ question about his views on controversial issues before the court. This is Iowa Senator, Chuck Grassley.

SEN. CHUCK GRASSLEY: A fundamental principle of our country is that the majority has the legitimate right to govern. This approach hardly means that the courts are less energetic in protecting individual rights, but the words of the Constitution constrain judges every bit as much as they control legislators, executives and our citizens. Otherwise, we are no longer a nation of law, but a nation of politicians dressed in judges’ robes.

During my tenure in the Senate, I participated in a number of these Supreme Court nomination hearings, and I believe it’s nine to date. I’m hopeful that we will see a dignified confirmation process and it will not degenerate into what we saw during the Bork and Thomas hearings. Rather, we need to see the same level of civility as we saw during the O’Connor, Ginsburg’s and Breyer hearings.

Moreover, I’m hoping that we won’t see a badgering of a nominee about how he will rule on specific cases and possible issues that will or may come before the court. That has been the practice, as you know, in the past. And let me remind my colleagues that Justices Ginsburg and Breyer refused to answer questions on how they would rule on cases during the confirmation hearings.

The fact is that no senator has a right to insist on his or her own issue-by-issue philosophy or seek commitments from nominees on specific litmus test questions likely to come before that court. To do so, is to give in to the liberal interest groups that only want judges who will do their political bidding from the bench, regardless of what is required by the law and the Constitution. The result then, is the loss of independence for the Supreme Court and a lessening of our government’s checks and balances.

Some have suggested that since you have been nominated now to be chief justice, you deserve even more scrutiny than before when you were just nominated for associate. Some are saying that we should prolong the hearings, and turn over even more stones than we have already turned over thus far. Well, the chief justice has been described as first among equals. The plain truth is that there really isn’t anything substantively different in your role, and your vote will count just the same as other justices of the court. So my own questioning and analysis of your qualifications will not really be much different from your previous appointment.

But it is true that the chief justice has additional duties as a head of the federal judiciary. The chief justice has to be someone who has a good management style, who can run the trains on time and who can foster collegiality in the court. So, Judge Roberts, I think that since you have appeared before the court 39 times to argue cases on appeal, and that the current judge — justices know and respect you, that bodes very well, in terms of your smoothly transitioning into the Court, into the new role now of chief justice. I congratulate you.

AMY GOODMAN: Senator Chuck Grassley. Senator Grassley speaking at the opening day of the hearings for John Roberts.

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