Floor Statement of Senator Kennedy on Nomination of John Roberts to the Supreme Court

(As Prepared for Delivery)

“Mr. President, the nomination of John Roberts to the Supreme Court comes at a time of heated debate and great division in America ­ a debate that is reflected in the deliberations of a Supreme Court in which his vote ­ just like Justice O’Connor’s ­ will affect the freedoms and liberties of Americans on vital questions before the country.

I will not pre-judge the President’s nominee. And I will not decide whether to support or oppose him based on any single issue.

What all Americans deserve to know is whether Judge Roberts respects the core values of the Constitution and falls within the conservative mainstream of America, along the lines of Justice Sandra Day O’Connor.

That is the issue, and I look forward to asking the important questions that are on the minds of Americans as they consider his nomination to our nation’s highest court.

Supreme Court nominations involve far more than the hotly debated social issues so often discussed in the media. Presidents have four-year terms. Senators serve for six years. But Supreme Court Justices serve for life, without ever having to face the electorate. Our decision whether to confirm a Supreme Court nominee affects the rights and freedoms not only of our generation, but those of our children and grandchildren as well.

· The Court’s decisions affect whether employees’ rights will be protected in the workplace.
· They affect whether families will be able to obtain needed medical care under their health insurance policies.
· They affect whether people will actually receive the retirement benefits that they were promised.
· They affect whether people will be free from discrimination in their daily lives.
· They affect whether students will be given fair consideration when they apply to college.
· They affect whether persons with disabilities will have access to public facilities and programs.
· They affect whether we will have reasonable environmental laws that keep our air and water clean.
· And they affect whether large corporations are held accountable when they injure workers and consumers.

Each of these issues ­ and many others ­ have been addressed by the Supreme Court in recent years. In many of these cases, the Court was narrowly divided, and these issues are likely to be the subject of future Court decisions in the years to come.

Because so much hangs in the balance, Supreme Court nominees have a heavy burden to show that they will uphold justice for all. They must demonstrate a core commitment to preserving equal protection of the laws, free speech, workers’ rights, and other individual rights. Americans deserve to know if nominees will be on the side of justice and individual liberties, or if they will side with powerful special interests.

The Senate’s role will be to establish clearly whose side John Roberts would be on if confirmed to the most powerful court in the land. Because Judge Roberts has written relatively few opinions in his brief tenure as a judge, his views on a wide variety of vital issues are still unknown. What little we know about his views and values lends even greater importance and urgency to his responsibility to provide the Senate and the American people with clear answers.

The key question is whether he will uphold core Constitutional and statutory principles.

For instance, in a case involving the ability of Congress to protect the environment, he issued an opinion with sweeping implications not just for the environment, but for a host of other important protections. In it, Judge Roberts questioned the settled interpretation of the Commerce Clause ­ the Constitutional provision that is the foundation for not only the environmental laws that protect our natural heritage and ensure that we have clean air and clean water in our communities, but also for Social Security, Medicare, the minimum wage, and many other important national protections.

I can imagine few things worse for our seniors, for the disabled, for workers, and for families than to place someone on the highest court in the land who would put these protections at risk.

If applied in other cases, Judge Roberts’ view could severely undercut the ability of Congress to respond to real challenges facing our nation. His decision raises questions about whether he would roll back a host of other laws protecting civil rights, workers’ rights, and even many of our federal criminal statutes.

I believe that most Americans would agree that we should not re-fight the civil rights battles of the past. The spirit of America is to move forward to greater opportunity ­ not return to the days of second-class citizenship for many. Too many of our fellow citizens over many generations have sacrificed everything ­ including their lives ­ so that others can fully enjoy the fruits of our liberties and freedoms. They’ve given their all for the rights of people of color, of women, of the disabled, of immigrants, of workers, of senior citizens, and so many others who make up the vibrant American fabric that makes our nation the envy of the world.

So it is important to know where Judge Roberts stands on this great question of opportunity and justice for all.

The significance of the Constitutional principles at issue is clear from the comments of other judges who serve in the same court as Judge Roberts. They noted that the Constitutional provision he questioned not only is the basis of many of our civil rights laws, but also underlies important product safety laws and environmental legislation. Judge Roberts urged the full court to review the panel decision to reconsider the established interpretation of the Commerce Clause in the Rancho Viejo v. Norton case.

Let me be clear. I do not pre-judge Judge Roberts’s nomination based on his decision in this case or any other. Nor should anyone else. But we must not fail in our duty to the American people to responsibly examine Judge Roberts’ legal views.

Other aspects of Judge Roberts’s record also raise important questions about his commitment to individual rights:

· He has opposed programs to guarantee equal opportunity.
· He opposed the right to privacy and argued to overturn Roe v. Wade, saying the case is “wrongly decided” and “finds no support in the text, structure or history of the Constitution.”
· As a private attorney, he represented coal companies against workers’ rights.
· He sought to limit every American¹s right to a lawyer by arguing to narrow the Supreme Court¹s core precedent in Miranda v. Arizona.

Judge Roberts represented clients in each of these cases, but we have a duty to ask where he stands on these issues. I don’t pre-judge them, but the American people deserve to know more.

I join my colleagues in the hope that the process will proceed with dignity.

But the nominee will be expected to answer fully, so that the American people will know whether Judge Roberts will uphold their rights. Anything less would make the Senate a mere rubber stamp in Supreme Court nominations.

In recent days, some have suggested that the Senate should not ask full questions about the nominee’s legal views and judicial philosophy. The President made clear that he would consider judicial philosophy in choosing a nominee, and the Senate should not turn a blind eye to that issue.

When Justice Thurgood Marshall was nominated to the Supreme Court in 1967, I said that Senators should not vote against him just because they don¹t agree with him on every issue. But that’s different from saying we shouldn¹t consider judicial philosophy at all. Particularly today, when philosophy is important to the White House in choosing nominees. Senators should consider it as well.

To be clear, here is what I said in 1967:

“I believe it’s recognized by most Senators that we are not charged with the responsibility of approving [justices] if [their] views always coincide with our own. We are really interested in knowing whether the nominee has the background, experience, qualifications, temperament, and integrity to handle this most sensitive, important, and responsible job.”

But if someone would clearly fail to uphold basic rights, that should be considered and the Senate is entitled to know.

There are few debates more important than this one. And I look forward to considering this important nomination.”

–Crystal Patterson