Red Chicago

Roberts Confirmation Transcripts - Dick(head) Durbin's opening comments

DURBIN: Thank you, Mr. Chairman.

Judge Roberts, welcome to you, your family. Congratulations on your nomination.

The committee hearing began with the chairman telling us that you had shared the wisdom of 47 individual senators by visiting their office, some of them on several different occasions.

And many people believe that that fact alone should earn you confirmation before the United States Senate.

Twelve years ago, at the nomination hearing of Justice Ruth Bader Ginsburg, my friend Illinois Senator Paul Simon said something worth repeating. He said to the nominee, and I quote, You face a much harsher judge than this committee. That's the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you expand it?

I think Senator Simon put his finger on how the United States Senate should evaluate a nominee for a lifetime appointment to the federal bench.


Judge Roberts, if you're confirmed, you will be the first Supreme Court justice in the 21st century. The basic question is this: Will you restrict the personal freedoms we enjoy as Americans or will you expand them?

When we met in my office many weeks ago, I gave you a biography of a judge I admire greatly. His name was Frank Johnson, a federal district judge from Alabama and a life-long Republican.

Fifty years ago, following the arrest of Rosa Parks, Judge Johnson ruled that African-Americans of Montgomery, Alabama, were acting within their constitutional rights when they organized a boycott of the buses and that Martin Luther King Jr. and others could march from Selma to Montgomery. As a result of those decisions, the Ku Klux Klan branded Johnson th">LancasterOnline.com: Roberts Confirmation Transcripts 8 of 10: "DURBIN: Thank you, Mr. Chairman.

Judge Roberts, welcome to you, your family. Congratulations on your nomination.

The committee hearing began with the chairman telling us that you had shared the wisdom of 47 individual senators by visiting their office, some of them on several different occasions.

And many people believe that that fact alone should earn you confirmation before the United States Senate.

Twelve years ago, at the nomination hearing of Justice Ruth Bader Ginsburg, my friend Illinois Senator Paul Simon said something worth repeating. He said to the nominee, and I quote, You face a much harsher judge than this committee. That's the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you expand it?

I think Senator Simon put his finger on how the United States Senate should evaluate a nominee for a lifetime appointment to the federal bench.

Judge Roberts, if you're confirmed, you will be the first Supreme Court justice in the 21st century. The basic question is this: Will you restrict the personal freedoms we enjoy as Americans or will you expand them?

When we met in my office many weeks ago, I gave you a biography of a judge I admire greatly. His name was Frank Johnson, a federal district judge from Alabama and a life-long Republican.

Fifty years ago, following the arrest of Rosa Parks, Judge Johnson ruled that African-Americans of Montgomery, Alabama, were acting within their constitutional rights when they organized a boycott of the buses and that Martin Luther King Jr. and others could march from Selma to Montgomery. As a result of those decisions, the Ku Klux Klan branded Johnson the most hated man in America. Wooden crosses were burned on his lawn. He received so many death threats that his family was under constant federal protection from 1961 to 1975.

Judge Frank Johnson was denounced as a judicial activist and threatened with impeachment.

He had the courage to expand freedom in America.

Judge Roberts, I hope that you agree America must never return to those days of discrimination and limitations on our freedom.

Now, some of the memos you wrote that I talked to you about in my office many, many years ago in the Reagan administration have raised some serious concerns about where you stand on civil rights, on women's rights, concerns that have led some of the most respected civil rights groups in America to openly oppose your nomination.

So it's important for you at this hearing to answer the questions and to tell us your views on civil rights and equality and the role of courts in protecting these basic freedoms.

This hearing is your opportunity to clarify the record, to explain your views.

We can't assume that time or maturity has changed your thinking from those Reagan-era memos.

The refusal of the White House to disclose documents on 16 specific cases you wrote as deputy solicitor general denied this committee more contemporary expressions of your values.

Only your testimony before this committee can convince us that John Roberts of 2005 will be a truly impartial and open-minded chief justice.

Concerns have also been raised about some of the things you wrote relative to the right of privacy.

We've gone through Griswold. We know what that Supreme Court decision meant in 1965, 40 years ago, when the court struck down the Connecticut statute which made it a crime for married couples to buy and use birth control. They said there was a fundamental right of privacy in that Constitution, though you can search every word of it, and not find the word privacy. But it's far from settled law in the minds of many. Forty years later, there have been new efforts to restrict the right of privacy, attempts to impose gag rules on doctors when they speak to their patients about family planning.

You saw it in the sad debate over the tragedy of Terri Schiavo, a debate that led some members of Congress to threaten judges who disagree with their point of view with impeachment.

And you can find it in the eagerness to authorize the government to pry into our financial records, medical records and library records.

Whether the court continues to recognize and protect America's right to privacy will have a profound impact on every American from birth to death.

In your early writings that we have to rely on here, you referred to this right of privacy as an abstraction. We need to know if that's what you believe.

We also need to hear your views on another basic issue and that is the view on executive power. They don't teach this subject much in law school. It's not tested on any bar exam. It's not been a major focus in many Supreme Court hearings, yet it is very important today.

Some aspects of your record, your early record, when you were an attorney for a president, suggest you might be overly deferential to the executive branch. We need to know where you stand.

Throughout history, during times of war, presidents have tried to restrict liberty in the name of security. The Supreme Court has always been the guardian of our Constitution. It's usually been up to the task but sometimes it's failed such as in the notorious Korematsu decision.

We're being tested again. Will we stand by our Constitution in this age of terrorism? That challenge will fall especially on our Supreme Court and on you, Judge Roberts, if you're confirmed.

We also need to know what you think about religious liberty. Over the past few decades, the Supreme Court has maintained a delicate yet what I believe proper balance between church and state. Justice Sandra Day O'Connor said it so well in the recent Ten Commandments decision.

And I quote, At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Our regard for constitutional boundaries has protected us from similar travails while allowing private religious exercise to flourish.

Those who would renegotiate the boundaries between church and state must answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly? I asked you a question when you came by to see me, which I'm not sure either one of us could answer at that moment.

I asked you: Who has the burden of proof at this hearing? Do you have the burden to prove that you are a person worthy thing of a lifetime appointment before the Supreme Court or do we have the burden to prove that President Bush was wrong in selecting you?

Your position as Supreme Court justice, chief justice, gives you extraordinary power: to appoint 11 judges on the FISA court, which has the authority to issue warrants for searches and wiretaps of American citizens, all the way to the establishment of rules of criminal and civil procedure.

No one has the right to sit on that court. No one has the right to be chief justice. But they can earn it through a hearing such as the one which we have today.

I'd like to say that I spoke earlier about the courage of Frank Johnson. A few months ago another judge of rare courage testified before this committee. Her name is Joan Lefkow. She's a federal judge in Chicago and I was honored to nominate her.

Last February, her husband and mother were murdered in her home by a deranged man who was angry that she had dismissed his lawsuit.

In her remarks to the committee, Judge Lefkow said that the murders of her family members were, quote, a direct result of a decision made in the course of fulfilling our duty to do justice without fear or favor.

In my view, that is the only proper test for a Supreme Court justice: Will he do justice without fear or favor? Will he expand freedom for all Americans as Judge Frank Johnson, the condemned judicial activist, once did.

I congratulate you, Judge Roberts, on your nomination, your accomplished career, and I look forward to these hearings to give you your chance in the next several days, not to rely on 20-year-old memos or innuendoes and statements by those who are not part of the hearing, but in your own words a chance to tell us and to tell the American people what you truly believe.

If you believe that you have the burden at this hearing to establish why you are worthy of this, the highest ranking position of a judge in America, I hope that you will be forthcoming. If you do not answer the questions, if you hold back, if you believe, as some on the other side have suggested, that you have no responsibility to answer these questions, I'm afraid the results will not be as positive. I certainly hope that they will be positive.

Thank you.

SPECTER: Thank you, Senator Durbin.

posted by Red Chicago @ 10:24 AM