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WYDEN WILL VOTE TO CONFIRM ROBERTS
AS CHIEF JUSTICE OF U.S. SUPREME COURT
September 28, 2005
Washington, DC – U.S. Senator
Ron Wyden (D-Ore.) announced today that he will vote to confirm
Judge John Roberts as Chief Justice of the United States Supreme
Court. In announcing his decision, Wyden delivered the following
remarks on the Senate floor today.
Wyden Statement on the Nomination of Judge John Roberts
September 28, 2005
Five years have passed since the Presidential election of 2000,
and legitimate questions about the outcome of that campaign have
left too much of America too divided.
Legitimate questions about the outcome of that election gave rise
to an ever-growing polarization between so-called red and blue
states, between liberals and conservatives, and between Democrats
and Republicans in the Congress. And despite a somewhat more convincing
outcome in the 2004 Presidential election, the divisions caused
by the events of 2000 show little sign of abating. Having closely
observed this widening divide, I now wonder whether Judge Roberts’
confirmation will add to the bitterness and distrust of the federal
government, or whether it might serve to remind the people --
and the lawmakers they elect -- that we cannot move forward as
a nation if we remain dedicated to tearing each other down.
This is my first vote on a nominee to the Supreme Court of the
United States, and my obligation as articulated in the Constitution
is to either consent or not consent to a choice specifically entrusted
to the elected President of the United States. Some of the policy
watchdogs I respect the most, and agree with on so very many issues,
have asked that I oppose Judge Roberts because he is not one of
us; because he is too conservative; because he is young; because
he may prove effective. “He is not who we would choose,”
they say, and on that point, I am in full agreement.
Should the test to confirm a Chief Justice be, “He is not
who we would choose?” I ask my friends to imagine the mess
we will have left for our nation if the Senate uses this test
and votes solely on the basis of a nominee’s political beliefs.
Friends who a year ago said, “We don’t want ideologues
appointed to the Supreme Court,” now want John Roberts and
the next nominee to show up at the witness table and submit to
an ideological litmus test.
Here’s my message to those friends: a sword forged in ideology
in 2005 can be used against a progressive nominee in 2009 with
equal disregard for the Constitution and the individual.
In 2008, I fully intend to work harder than ever before to elect
a President who rejects the dangerous priorities that have led
us to war in Iraq and to an energy policy that is folly, that
assures our continued dependence on foreign oil. Should this new,
Democratic President have to contend with a Republican Senate
majority, he or she had better hope that the judicial nominations
of 2005 did not become purely ideology-driven contests. If these
debates are purely partisan, our future will include constitutional
bedlam whenever a Supreme Court opening occurs while the Senate
is controlled by the opposition party.
I reject the suggestion that a Republican nominee is per se objectionable.
A number of moderate justices nominated by Republican Presidents
belie such a claim. The decision that each Senator must make should
be based on the judicial nominee that is before the Senate, not
the one that we wish were before us.
To put this into historical perspective, under the advice and
consent responsibility assigned to the Senate, the President’s
judicial nominees to the Supreme Court have traditionally been
given a large degree of deference. For instance, in spite of the
divisive national debates surrounding gays in the military, universal
health care, Travelgate, Filegate and the Whitewater investigation,
this deference translated into 96 votes for Justice Ginsburg and
87 votes for Justice Breyer when their nominations came to a vote
before the Senate. And yet these are two of the most progressive
voices in the over 200-year history of the high court.
When I had the opportunity to meet with Judge Roberts in my office
this past August, I pressed him to tell me how he viewed some
of the issues that have so bitterly divided Americans. The answers
that Judge Roberts gave me during that hour we spent together
left me with the impression that he will be his own man on the
Court.
Here are my judgments about the individual before us now:
One, on the basis of his public testimony, it is hard to see Judge
Roberts as a man who will walk into the white-pillared building
across the street and set about tearing apart the fabric of our
society.
Two, on the basis of his public testimony, it is hard to see him
as a judicial activist who would place ideological purity or a
particular agenda above or ahead of the need for thoughtful legal
reasoning.
Three, on the basis of his public testimony, it is hard to see
John Roberts as a divisive, confrontational extremist who would
try to further exploit the divisions in our society.
What I saw in his public testimony and in our lengthy private
meeting is an intelligent, thoughtful man – and a conservative
man – with a tempered view of the role of government. At
his Judiciary Committee hearings, nothing he said conflicted with
what he had told me in private.
In addition to meeting with him, I have scrutinized Judge Roberts
and his record closely – considering his
Reagan-era documents, reading the news analysis printed in papers
across the country, listening to the hearings and reviewing the
transcripts as well.
No one disputes that Judge Roberts has a brilliant legal mind.
My analysis of his record leads me to conclude that he is not
cut from the same originalist cloth as Justice Thomas and Justice
Scalia. He does not believe the words of the Constitution are
fossilized, leaving only a one-size-fits-all, 18th-century remedy
for every problem that our society confronts today.
It is hard not to get the sense that he believes in limited government.
Back in March, I led the effort in the Senate to block attempts
to dictate a specific medical treatment in Terri Schiavo’s
case because I believe that the Constitution affords families
the right to decide these matters privately. This is an area in
which the federal government has no business intruding.
In involving itself in the Schiavo case, Congress was inappropriately
meddling and blatantly ignoring the limits of its Constitutional
authority.
I believe the Terri Schiavo case is just the first of many that
will arrive at the Supreme Court’s doorstep. In my view,
most of these cases will involve one person and passionately held
views. Demographic trends and improvements in medical technologies
assure there will be many.
Under the circumstances, I felt that I had a duty to examine how
Judge Roberts saw end-of-life issues in the context of the Constitution
and whether he would be willing to manipulate its meaning to authorize
government intrusion in private, family matters.
So when I met with him in August, we discussed end-of-life issues
at length. Not because this was a litmus test – I don't
believe in litmus tests – but because I felt that it was
important to carefully consider Roberts' judicial temperament
on this important issue.
He did not say how he would have handled the Schiavo case or any
case before the Court; however, Judge Roberts did say quite a
bit that made a lot of sense to me and, I think, the vast majority
of Americans.
Judge Roberts agreed that there is a Constitutionally-based privacy
right and that, while the scope of the privacy right is still
being defined in the end-of-life context, he said that when approaching
the issue, he starts with the supposition that a person has the
right to be left alone and that their liberty interest should
be factored in as well.
At his hearing, he reiterated this position – stating that
a right to privacy exists in the Constitution. He stated that
privacy is a component of the “liberty” protected
by the due process clauses of the Fifth and Fourteenth Amendments.
And he stated that this liberty interest is protected substantively
as well as procedurally.
While discussing the Schiavo tragedy during our August meeting,
I also asked him about Congress’ authority to legislate
a particular remedy in a particular case and he expressed concern
about judicial independence. It was apparent to me that he understands
that there are constitutional limits on the recent enthusiasm
of Congress to prescribe particular remedies in particular cases.
Concerning the states’ right to regulate medical practice
and the scope of the Tenth Amendment, Judge
Roberts stated that he believed the framers expected states to
do most of the regulating and that they expected most regulation
to be state-based. In his view, the basic genius of the federal
system is that it affords different states the ability to approach
problems in a way that’s best suited to their different
needs – imposing uniformity across the country would stifle
the genius of the founding fathers.
Judge Roberts also told me he attaches great importance to the
legislative history in interpreting law. He repeated this point
several times during the public hearings. Those who have closely
studied former Attorney General Ashcroft’s challenge to
Oregon’s physician-assisted suicide law know that there
is not one word in the Controlled Substances Act, the law he used
to launch his case, indicating the Controlled Substances Act was
aimed at or should be used to overturn or undermine the right
of states to regulate medical practice within their borders.
And on the extremely important matter of a woman’s right
to choose, I asked Judge Roberts about Roe. He did not offer specific
comments, but his response indicated he would not enter the Court
with an “agenda,” and that he would respect the Court’s
precedents. In the public hearings, he also said he personally
agreed with the conclusion of the Griswold and Eisenstat decisions,
which held that the privacy right protects the right of individuals
to use birth control.
His opinions on the issues that matter indicate that he is a very
intelligent, thoughtful man with a tempered view of the role of
the federal government.
Judge Roberts’ combination of temperament and intelligence
give him the potential to be a conciliatory voice at a divisive
time. He has the skills to reach across the divisions in America
to show that justice can be a healing force for the wounds that
cut our society so deeply these days. He can help to unify the
country by building a record of well-reasoned opinions, grounded
in the rule of law, not ideology. He will receive my vote tomorrow
to be the next Chief Justice of the United States.
I wish to make one last important point. There is one other vacancy
on the Court, and the President is expected to send forth his
nominee soon. My intention to support Judge Roberts should in
no way be construed as a weathervane for how I might vote on the
next nominee. In the past, I have not hesitated to vote against
several of the President’s nominees to the courts of appeals
when they carry the ideological and activist baggage I believe
would be disruptive to law and society. If the President puts
forward a nominee to replace Justice O’Connor who is unlikely
to ably and respectfully fill her shoes, I will vigorously oppose
that nomination.
I began by voicing my question about the impact of this nomination
on the body politic of our nation. Among the many awesome duties
of the Chief Justice, no duty is of greater importance than the
duty to unify our nation when Americans find themselves in disagreement.
Different chief justices have shouldered this burden with varying
degrees of success. This ability to unify is what is most sorely
needed at this moment in our nation’s history and I am of
the opinion that Judge Roberts possesses the nature and desire
to unify the court, and with it, our nation, as he tackles the
legal issues before him. I wish him wisdom, diplomacy, and moderation
as he prepares to assume this critical role.
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