Speeches & Floor Statements
Posted on September 27, 2005
My constituents have been asking me: who will President Bush nominate for the second Supreme Court vacancy? And the question reminds me of the kicker from California who went to Alabama to play for Coach Bear Bryant. Day after day in practice, the kicker kept punting it more than 70 yards. Day after day, Bryant never said a word. Finally, the young man went to Bryant. Coach, I came all the way here from California to be coached by you and you never say a word to me. “Son,” Bryant said, “When you start kicking it less than 70 yards, I will remind you of what you were doing when you kicked it 70 yards.” My only respectful suggestion to President Bush is that he try to remember what he was thinking when he appointed John Roberts, and to do it again. For anyone who has been trained in the law, as I have, and who knows something about the profession, it has been a pleasure to watch Judge Roberts’ nomination and his confirmation process. It is difficult to overstate how good Judge Roberts seems to be. He has the resume of most talented law students’ dreams: editor of the Harvard Law Review and clerk to Judge Henry Friendly. I was a law clerk to Judge John Minor Wisdom in New Orleans who regarded Henry Friendly as one of the two or three best appellate judges of the last century. Judge Roberts learned from Judge Friendly. Then he was law clerk to the last Chief Justice. Add to that his work in the Solicitor General’s office where only the best of the best are invited to work. Then add his success as an advocate before the Supreme Court both in private and in public practice. Then still further add his demeanor, his modesty both in philosophy and in person—something that is not always so evident in a person of superior intelligence and great accomplishment. And his kindnesses to individuals with whom he has worked. His performance before the Senate Judiciary Committee demonstrated all of those qualities: restraint, good humor, intelligence, and a command of the body of law that a Supreme Court justice must consider. The televised episodes could be the basis for a law school course or any civics class. Judge Roberts brings, as he repeatedly said, no agenda to the Supreme Court. He understands that he did not write the Constitution, and it’s not his job to rewrite it but to interpret it. That he does not make laws, but is obligated to apply them. He understands the federal system. For a devotee of the law, watching the John Roberts hearings was like watching Michael Jordan play basketball at the University of North Carolina in the early 1980s or Chet Atkins as a session guitarist in the 1950s in Nashville. One doesn’t have to be a great student of the law to recognize there is unusual talent here. So then if Judge Roberts’ professional qualifications and temperament are so universally acclaimed why do we now hear so much talk of changing the rules and voting only for those justices who we can be assured are “on our side.” That would be the wrong direction for our country. In the first place, history teaches us that those who try to predict how Supreme Court nominees will decide cases are almost always wrong. Felix Frankfurter surprised Franklin Roosevelt. Hugo Black surprised the South. David Souter surprised almost everybody. In the second place, courts were never intended to be set up as political bodies that could be relied upon to always tilt one way or another in controversial matters. Courts are supposed to do just the opposite: to hear the facts and impartially apply the law and the Constitution in controversial matters. Who will have confidence in a system of justice that is deliberately rigged to be on one side or the other despite what the facts and the law are? Finally, failing to give overwhelming approval to an obviously well-qualified nominee like Judge Roberts just because he is “not on your side” reduces the prestige of the Court. It jeopardizes its independence. It makes it less effective as it seeks to perform its indispensable role in our constitutional republic. For these three reasons Republican and Democratic senators, after rigorous hearings and discussions, have traditionally given well-qualified nominees for Supreme Court justice an overwhelming vote of approval. I’m not talking about the ancient past, I’m speaking of justices who are on the Court today, none of whom are better qualified than Judge Roberts. · Justice Breyer – Confirmed by a vote of 87 – 9 in a Congress composed of 57 Democrats and 43 Republicans. · Justice Ginsburg – Confirmed by a vote of 96 – 3 in that same Congress. · Justice Souter – Confirmed by a vote of 90 – 9 in a Congress composed of 55 Democrats and 45 Republicans. · Justice Kennedy – Confirmed by a vote of 97 – 0 in a Congress composed of 55 Democrats and 45 Republicans. · Justice Scalia – Confirmed by a vote of 98 – 0 in a Congress composed of 47 Democrats and 53 Republicans. · Justice O’Connor – Confirmed by a vote of 99 – 0 in a Congress composed of 46 Democrats and 53 Republicans. · Justice Stevens – Confirmed by a vote of 98 – 0 in a Congress composed of 61 Democrats and 37 Republicans. The only close vote on this Court was for the nomination of Justice Thomas following questions of alleged misconduct by the nominee. Thomas was confirmed by a vote of 52 – 48. However, even in that vote, 11 Democrats crossed the aisle to support the nominee. If almost all Republican senators can vote for Justice Ginsburg, a former General Counsel for the American Civil Liberties Union, and a nominee who declined to answer numerous questions so as not to jeopardize the independence of the court on cases that might come before her, and if every single Democratic U.S. senator could vote for Justice Scalia – then why can’t virtually every senator in this chamber vote to confirm Judge Roberts? I was governor for eight years in Tennessee. I appointed about fifty judges. I looked for the same qualities Judge Roberts has demonstrated: intelligence, good character, restraint, respect for the law, and respect for those who came before the court. I did not ask one applicant how he or she would rule on abortion or immigration or taxation. I appointed the first woman circuit judge, as well as men. I appointed Tennessee’s first African American chancellor and the first African American state Supreme Court justice. I appointed Republicans and Democrats. That process served our state well and helped build respect for the independence and fairness of our judiciary. I would hope we would try to do the same as we consider this nomination for the United States Supreme Court. It is unlikely in our lifetimes, that we will see a nominee for the Supreme Court whose professional accomplishments, demeanor and intelligence is superior to that of John Roberts. If that is so, then I would hope that my colleagues on both sides of the aisle will do what they did with all but one member of the current Supreme Court, and with most of the previous justices in our history, and vote to confirm him by an overwhelming majority.