Judge Roberts: Why I Voted No

From Senator Joe Biden:

Today, I voted against confirming Judge John Roberts to the Supreme Court and I think it’s important to share why.

Though it was a difficult decision, and I hope he proves me wrong, I have serious doubts that Judge Roberts will fall into the category of the justices from Chief Justice Marshall to Souter, Kennedy, Ginsburg, and O’Connor, who look at the Constitution, quoting Marshall, as “a Constitution … intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.

Included below is the statement I read this morning at the hearings. I hope you will read it and understand why, after careful deliberation, I voted against Judge Roberts.

Joe Biden
U.S Senator


Since the Scalia nomination in 1986 — as my colleagues who have served with me during that period know — I have focused very intently on each nominee’s commitment to defending fundamental rights recognized as being protected by the Constitution and, I might add, fully embraced by the American people: the right to educate your child in the manner you desire; the right to choose whether or not to procreate; the right to live with your grandchildren; the right to marry whomever you wish, even if they’re of a different color; the right to disconnect the machine that is keeping you alive, if you are fully capable of making that decision. The line used by several of our Justices is the right to be let alone and the right to make basic decisions about one’s life’s course.

To me, these are the central, most fundamental, consequential decisions that any person in the court will make for their entire tenure.

As I said in my opening statement of this hearing, “Judge, as you know, there is a genuine intellectual dispute going on in our country today over whether the Constitution is going to continue to expand the protections of the right of privacy.”

Every one of my colleagues on this committee is bright, well- informed, honest and decent, and they all know there is a fundamental — no pun intended — debate going on among legal scholars and the intellectual community today about the protections — whether they should be extended or diminished as they relate to what we generically call the right to privacy.

As its core, the Constitution, in my view, envisions an ever-increasing protection — not diminishing, not static — ever-increasing protection of human liberty and dignity for its citizens and the national government empowered to face unanticipated crises.

I went on to say, “Judge, herein lies the crux of the intellectual debate, whether we will have an increasing protection for human dignity and human liberty or whether those protections will be diminished, as suggested by many in their reading of the Constitution,” some of whom serve on the court.

Now, I say to my colleagues, I believe this is a very close call — a very close call.

I respect those of you who will vote for him, and I respect those of you who are voting no, because it is so close.

I got a little bit of heat for saying these hearings have become sort of a Kabuki dance, and by that I mean a stylized dance that goes on. We all sit down and we reread everything that the person has ever said. They sit down in the White House or wherever and they look at tapes of all of the hearings that went before. Everybody figures out it’s kind of a “gotcha” game when, in fact, it shouldn’t be that at all.

I might note, parenthetically, I’m moving to the view that I’m not sure these hearings are the proper way to determine how to vote for a judge. Maybe we should go back to the pre-1925 rule and just look at what they wrote and said and make our judgments based on that. Because it’s very, very difficult.

I understand why nominees don’t want to let us know what they think, even though the American people, in my view, are entitled to know what they think.

But I have serious doubts that Judge Roberts will fall into the category of the justices from Chief Justice Marshall to Souter, Kennedy, Ginsburg, O’Connor, who look at the Constitution, quoting Marshall, as “a Constitution… intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.” That’s an expanding document.

It’s a close call, and I hope he will prove me wrong, but I believe he will not. I plan on voting no.

I intend to vote no because I don’t believe he will fall within the line of those justices, Republican and Democrat, who view this as an expanding journey of human dignity, areas within which the state has no right to trespass.

For the past 20 years or so, where I’ve been convinced that a nominee would protect fundamental constitutional rights, I voted to confirm them, including O’Connor, Kennedy and Souter. Democratic nominees as well — Ginsburg and Breyer.

Where I’ve had doubts about the nominees’ commitments to fundamental constitutional rights as I’ve explained them, I voted against their confirmation, including Rehnquist and Thomas.

Even though Justice Scalia did not provide answers to his testimony before the Judiciary Committee, I nonetheless gave him the benefit of the doubt and voted for him; the last time I ever did that. And I acknowledged after that vote that it was the last time I would do that. His rulings on the Court to restrict or repeal fundamental rights convinced me that all future nominees would have to answer those questions about their judicial philosophy concerning these rights before I voted.

And I would note, even though it’s not the general perception, a nominee, because he has been nominated or she has been nominated, is not entitled to the job. And the judge pointed out he’s not standing for election. In truth, he is standing for election, through the representatives of the American people, the United States Senate. That’s how it was intended.

The idea that the Founders thought that they should know something about how those who serve in the executive and legislative branch thought about the issues of the day but would say, “I don’t care about the third branch, the co-equal branch, as long as they’re honest, decent, smart and can recite the case law and common law, it’s OK” — that is a preposterous notion that history does not sustain and the constitutional record does not sustain.

And so, as I said during the Ginsburg hearing, “if a nominee, although it is their right, does not answer questions that go not to what they would decide but how they would decide, I will vote against that nominee regardless of who it is.”

I’ve closely reviewed Judge Roberts’s past writings as a political appointee and a government lawyer, his personal statements and commentaries during his tenure in private practice, and his testimony before this committee. Though I and other committee members gave Judge Roberts ample opportunity, in my view he did not provide to the American people any assurances that he embraced fully the Constitution’s enduring values when it comes to fundamental constitutional rights.

And I will speak to this issue at length on the floor of the United States Senate, doing side-by-side comparisons of the very same questions I asked Kennedy, Souter, Roberts, every one of the justices.

During the confirmation hearing of Justice Kennedy, I and others questioned him about his commitment to fundamental rights. In response to the question — just to give you one example about what factors he would use in considering the scope of the right to privacy, Justice Kennedy stated, and I quote:

“[T]he essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of a person to manifest his or her personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her potential.”

That’s the scope of the right to privacy he saw.

But in contrast, Justice Roberts declined to associate himself with anything approaching the broad sweep of Justice Kennedy’s vision, instead casting his formulation in a very narrow and crabbed way.

Not only would Judge Roberts not tell this Committee how broadly the right to privacy extends; he declined even to endorse the general right to privacy. Senator Schumer said, “I assume that you disagree with Justice Thomas’ views that there is no general right to privacy?” Answer — listen to his answer, as opposed to Kennedy’s answer — he said, “Well, I think that question depends, obviously, on the modifier and what you mean by ‘general.’”

Now, as they say in the South, y’all can tell me on the Floor what he means by that.

Most disturbing, he repeatedly said he believed in the right to privacy as does, quote, “every member of the court to some extent or another.”

He’s right. I want to know to what extent. Because if it’s the extent to which Thomas and Scalia believe in the right to privacy, I cannot support, in good conscience, this man. While my colleagues and I may disagree on a lot, I think we could all agree that the right to privacy is viewed very differently by different justices. To say that every court member agrees with a formulation of the right to privacy is to shed absolutely no light on how that nominee will view that right of privacy.

You need only look at the language used by Justice Rehnquist and Justice Kennedy in the case of Moore v. the City of East Cleveland, where a grandmother asserted that she had a fundamental constitutional right to live with her orphaned grandchildren. Look at their respective answers and see how fundamentally, no pun intended, differently they viewed the right to privacy. And it’s consequential.

To be consistent with the statements I’ve used after 1986, I must regretfully vote no, as I have in the past when I’ve doubted the nominee’s commitment to these fundamental rights.

Mr. Chairman, Judge Roberts’ nomination presents a close call. I acknowledge Judge Roberts may surprise me and serve in the mold of traditional conservatives like Justice John Marshall Harlan, who deferred to the elective branches and was respectful of precedent.

But because Judge Roberts did not answer my questions or, I would argue, any of your questions fully, and he does not appear to share the same expansive view of fundamental rights of previous nominees I’ve supported, I’m unwilling to take the constitutional risk at this moment in the court’s history.

One thing is for certain: God willing, Justice Roberts will serve for three decades or more. And it is certain he will have more impact on our lives, and the future of our children’s lives, than any of us and all of us combined. That fact alone, I believe, justifies the desire of the American people to know more about what he thinks.

I did not learn any more. Therefore, I find myself reluctantly voting no because I believe, as I said, the right to be let alone, the right to make basic decisions about one’s life’s course, is not the business of any legislative body. A Justice Roberts will determine those issues for 30 years.

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