STATEMENT OF SEN. SCHUMER IN OPPOSITION TO ROBERTS NOMINATION TO SUPREME COURT

Today U.S. Senator Charles E. Schumer, ranking member of the Judiciary Subcommittee on the Courts, announced his opposition to the nomination of Judge John G. Roberts, Jr. for Chief Justice of Supreme Court of the United States at the Judiciary Committee Markup session. The statement prepared for delivery follows:

Mr. Chairman, let us take a step back for a moment and consider where we are, consider the context of the votes we cast today. Let us put this nomination in context. Let us set the stage.

Let me answer my friend Senator Graham about what difference there is between previous nominations - of Justice Ginsburg or Scalia - and now.

Some years ago, a number of extreme groups and individuals decided that they could not abide the direction that America was going in. They could not change America through the Presidency; they could not change it through the Congress, because those are elected branches, and American politics is usually decided in the middle. So, they decided they could change America through the Courts, the one unelected branch of Government. That of course is their right.

In 2000, they succeeded. They helped to elect a President who embraced their vision. That President signaled that he agreed with them, that America could and should be changed through the Courts. And he signaled his agreement by repeating over and over again – first on the stump and then at the Presidential podium – that he would appoint judges “in the mold” of Antonin Scalia and Clarence Thomas.

That meant that the President subscribed to their viewpoint that America should be radically changed through the Courts and that the clock should be rolled back using legal theories like originalism and strict constructionism.

That is very different from what President Clinton did when he nominated Justices Ginsburg and Breyer, both names suggested to him by Senator Hatch, and what President Eisenhower set out to do when he nominated Justices Warren and Brennan.

So, Mr. Chairman, the stage for this vote was set some five years ago. It was set by a President who vowed that -- if given the opportunity -- he would name to the Supreme Court Justices in the “mold” of Clarence Thomas and Antonin Scalia.

Given the President’s campaign promise and repeated declarations, there is a presumption that any nominee the President sends to the Senate is in that “mold.”

The presumption is especially strong – and is particularly hard to overcome:

– with a nominee who was carefully vetted, researched, and interviewed at sufficient length by a President who professed a desire to nominate people in the mold of Thomas and Scalia;

– with a nominee who is eagerly embraced by those groups who support the views of Thomas and Scalia and who want to change America through the Courts;

The presumption can be rebutted, of course. And the way it can be rebutted is through the answering of questions and through the production of relevant documents. And here, regrettably, there was much lacking.

To be fair, Judge Roberts did partially rebut the presumption. He made some inroads.

As I said last week, Judge Roberts has a keen intellect. His encyclopedic knowledge of the law and eloquent presentation certainly confirmed what his colleagues have said about him – that he is one of the best advocates, if not the best advocate, in the nation.

But being brilliant and accomplished is not the number one criterion for elevation to the Supreme Court – there are many who would use their considerable talents and legal acumen to set America back. So, while legal brilliance is to be considered, it is never dispositive.

In addition, very good lawyers know how to avoid tough questions. People have said that one of the reasons the nominee was so effective arguing in the Supreme Court is that he mastered the trick of making the point he wanted to make, rather than answer the question asked.

When one reviewed the transcript, there was often less than met the ear.

Judge Roberts was such a good witness that everyone seemed to emerge from the hearing with a different view of what he actually said.

People might recall that Judge Roberts mentioned at the hearing that his favorite movies were Doctor Zhivago and North by Northwest.
But perhaps the most relevant movie to this hearing is Rashomon, where four people saw the exact same crime and each had a totally different view of what had happened.

The answering of questions is extraordinarily important.

As I have repeatedly said, there is an obligation of nominees to answer questions fully and forthrightly, because they are essential to figuring out a nominee’s judicial philosophy and ideology - to me, the most important criteria in choosing a Justice.

Many of us were disappointed in his failure to answer many questions and is one of the contributing factors to the no votes that will be cast this morning and next week on the Floor.

Indeed, a yes vote here for me might indicate acceptance not only of a nominee’s strategic decision to avoid answering important and proper questions about decided cases, but also an Administration’s decision to thumb its nose at the American people’s right to have information about a nominee in the form of important documents.
That is why that I hope that – whatever happens with Judge Roberts – the next nominee will be more forthcoming and will answer more questions about his or her legal views, and that all relevant documents will be provided.

But, as I have repeatedly said, the answering of questions is only a means to an end – it is a means of finding out what kind of judge, or Justice, a nominee will make.

In this case, because there were not enough questions answered or documents provided, we are still unsure of the answer to the central question: Who is Judge Roberts?

We are left to guesswork, impressions, and hunches. We are left playing a bit of a game of blind man’s bluff.

Particularly troubling to me are the eerie parallels between Judge Roberts’s testimony and then-Judge Thomas’s, especially given President Bush’s declaration that he would nominate Justices in the mold of Justice Thomas.

The echoes of then-Judge Thomas’s empty reassurances that he was a mainstream jurist are ringing in the ears of every Senator who listened to many nearly identical statements from Judge Roberts last week.

I was particularly troubled by his answers in two areas – the Constitutional right to privacy and the Congress’s Commerce Clause power to protect the rights and improve the lives of the American people.

! At his hearing, for example, Judge Roberts said that he believes “there is a right to privacy protected as part of the liberty guarantee in the due process clause.” At his hearing, then-Judge Thomas made almost the identical statement. He said “I, with respect to the privacy interests, would continue to say that the liberty component of the due process clause is the repository of that interest.” As a Supreme Court Justice, however, Justice Thomas has repeatedly urged the most narrow interpretation of a privacy interest possible, in Casey, in Lawrence, and at every other opportunity.

! At his hearing, as Senator Feinstein has already mentioned, Judge Roberts repeatedly assured the Committee that he had “no quarrel” with various Supreme Court decisions on issues of privacy, women’s rights, civil rights, education, and other important issues. The same assurance was made by Justice Thomas at his hearings, but when given the opportunity to consider those cases with which he had “no quarrel” from the bench, Justice Thomas voted to overrule.

– Then-Judge Thomas had “no quarrel” with the Supreme Court decision in Eisenstadt v. Baird, which protected the right of privacy of unmarried couples, but wrote in dissent in the Lawrence case that there is “no general right to privacy.”

– He said he had no quarrel with the Lemon test used to evaluate challenges to the Establishment Clause, but then joined a dissent which ridiculed that test in the Lamb’s Chapel case.

! At his hearing, Judge Roberts repeatedly assured the Committee that he had “no agenda.” The same assurance was made by Justices Thomas and Scalia at their hearings. But given Justice Thomas’s history, in particular, the phrase alone provides little comfort.

! Besides these concerns about Judge Roberts’s views on the right to privacy and on the Establishment Clause, I also was troubled by his answers on the Commerce Clause. I asked him if he would disagree with Justice Thomas’s view that Congress may not regulate activities occurring within a state even if they have substantial effects on interstate commerce. He refused.

! There is therefore too serious a chance that Judge Roberts believes that Congress is without power to protect workers’ rights, women’s rights, and the environment on this widely-accepted Constitutional basis.

We simply did not get definitive answers to these questions at the hearings.

At the hearings, I gave Judge Roberts EVERY OPPORTUNITY to distance himself from Justice Thomas’s most extreme views. He refused.

! For example, after Judge Roberts seemingly answered a question about his belief in a Constitutional right to privacy, I asked him if he agreed or disagreed with Justice Thomas’s view that there is no “general” right to privacy in the Constitution. He refused to give his view.

! As I said, I asked him whether he agreed with Justice Thomas’s rather extreme view of the Commerce Clause. He refused to disagree.

! In fact, I asked him if he could name a single opinion written by Justice Thomas with which he disagreed. He refused.

! In written questions, also, answers to which were received just yesterday, I again gave him the opportunity to explain his position on various issues as compared with Justices Thomas and Scalia. Again, he refused.

Of lesser concern, but still rankling, there are questions about some of the old memos and Judge Roberts’s stubborness in standing by the language in some of them.

– It did not seem much, for instance, to concede, twenty years later, that the wording of “illegal amigos” was unfortunate, yet he refused to say so.

– Similarly, it did not seem much to acknowledge that a reference to the Equal Employment Opportunity Commission as “unamerican” was impolitic, to say the least, yet he refused to say so.

All of these factors entered into my decision.

Now, Senator Cornyn has said that if we can’t vote for this nominee who COULD we vote for? Here is your answer:

– someone who answers questions fully and who makes his or her record fully available;
– someone who gives us a significant level of assurance with some answers and a record that he or she is not an ideologue;

Roberts is clearly brilliant and his demeanor suggests he well MIGHT not be an ideologue. But he did not make the case strongly enough to bet the whole house.

There is a good chance – perhaps even a majority chance – that Judge Roberts will be like Justice Rehnquist on the bench. We know he will be brilliant, and he could well be – while very conservative – not an ideologue. That is why I struggled with this decision so long and so hard.

If he is a Rehnquist, that would not be cause for exultation; nor would it be cause for alarm. The Court’s balance will not be altered.

But there is a reasonable danger that he will be like Justice Thomas, the most radical Justice on the Supreme Court.

It is not that I am certain that he will be a Thomas. It’s not even that the chance that he will a Thomas is greater than fifty percent. But the risk that he might be a Thomas and the lack of reassurance that he won’t – particularly in light of this President’s professed desire to nominate people in that mold – is just not good enough.

I hope he is not a Thomas. But the risk is too great to bear. The Court’s balance may for decades be tipped radically in one direction.

Because of that risk and its enormous consequences for generations of Americans, I cannot vote yes. I must reluctantly cast my vote against confirmation.

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