Prepared Remarks of U.S. Senator Dianne Feinstein
The United States Supreme Court:
The Significant Impact for All Americans
Los Angeles County Bar Association and Public Counsel
Biltmore Hotel — Los Angeles, CA
Today, I come to speak to you about the Supreme Court and the unique role that the court plays in our nation. It is a magnificent institution — as powerful in its reach as Congress, and as influential over time as any presidential administration.
And as far as most Americans are concerned, it is probably the least understood of our three branches of government.
For the first time in more than a decade, there is a vacancy on the court. Justice Sandra Day O'Connor, the first woman justice and often critical swing vote, is retiring.
The President has chosen to nominate Judge John G. Roberts Jr., and over the next several weeks my Senate colleagues and I, first on the Judiciary Committee, and then in the full Senate will exercise our authority under the constitution to evaluate his nomination.
It is certainly the most important responsibility that the Senate will undertake this year, and it is a decision that could determine the course of our nation for generations to come.
It is crucial that the nominee who replaces Justice Sandra Day O'Connor not only be intelligent and well qualified, but balanced and fair. His views should be within the mainstream and considered, and they should be without bias.
In other words, extreme ideology from the right or left is unacceptable.
The only way we can determine if Judge Roberts meets this test is to thoroughly and critically examine his judicial philosophy and temperament.
- Will he maintain a balance on the court?
- Is he respectful of precedent?
- Does he have an open mind or a does he have a radical sense of where he wants to take the country?
Throughout history, the Senate has actively engaged in its role to evaluate judicial nominations; however, the role of the Judiciary Committee has evolved over time.
Initially, judicial nominations went directly to the full Senate for consideration. Then in 1816 the Judiciary Committee was formed, but it wasn't until 1955 that the Committee routinely held open hearings with each judicial nominee testifying.
The process we follow today has been in place since the 1960s — whereby the Judiciary Committee's consideration of a Supreme Court nominee almost always consists of three distinct stages — a pre-hearing investigative stage, followed by public hearings with written questions to the nominee and their evaluation after, and concluding with a committee vote on whether to recommend the nominee to the full Senate.
The constitution is very specific in laying out how a Supreme Court nominee is chosen. Pursuant to the "advice and consent" clause, the President proposes and the Senate disposes.
From the beginning the Senate has exercised its prerogative with vigor and has not merely served as a rubberstamp. In total, the Senate has rejected 27 out of 148 Supreme Court nominees since the founding of our Nation — that is almost 20 percent.
Over the succeeding past 200 plus years, the Senate takes its role seriously because the decisions of the Supreme Court have such a substantial impact on the lives of all Americans.
Supreme Court rulings established the legal basis for segregation in the 19th Century, and vitiated that basis in the 20th Century. The Court acted as a force for civil rights and the right to privacy in the 60's and 70's. The Court's rulings have both shaped and reflected the will and culture of this nation in ways that are everlasting and profound.
- The Supreme Court can strike down laws enacted by Congress — In the 1997 case City of Boerne v. Flores, when the Supreme Court struck down the Religious Freedom Restoration Act, which Congress enacted to protect religious groups from unduly burdensome government action.
- The Court can vitiate Executive actions — for instance, when the Bush Administration detained an American citizen, Yaser Hamdi, late in 2001 without permitting him to see a lawyer or go before a judge.
- The Supreme Court overruled the Executive Branch's actions and held that Mr. Hamdi was entitled to counsel and that even "an enemy combatant [should] be given a meaningful opportunity to contest the factual basis for [his] detention before a neutral decision maker"
- The Court also determines when individual constitutional rights supersede governmental action — In the 1990 case, Eisenberg v. U.S., where, in a 5-4 vote, the Supreme Court struck down a Congressional statute that prohibited desecration of the flag as an unconstitutional restriction of free speech in violation of the First Amendment. This is the reason why any limits on flag desecration must be accomplished through a Constitutional amendment.
In its role as the final arbiter, setting standards for all other federal courts, and being able to overrule past precedent, the Supreme Court holds a unique position.
- The Court answers fundamental questions of law;
- What basic rights are provided in the Constitution;
- What is the proper balance of power between the three branches of government;
- Has any branch of the government overstepped its authority; and
- When should the Court overturn past decisions?
The answers to these and other questions affect all of us and often have tremendous impact on many aspects of our daily lives; frequently in ways that most of us don't think about.
- Eminent Domain — Earlier this summer, in Kelo v. City of New London, the Court held, by a 5-4 vote, that government may use eminent domain to force an owner to sell their home, small business, or other private property, and transfer that same property to another private owner if it carefully concludes that such a transfer would benefit the community through increased economic development.
Of course, that the Supreme Court decided states and localities have the authority to seize private property for private sector economic development, does not require using the authority.
- The National Economy — This past July, the Court unanimously issued a major decision that a company may not enable illegal exchanges of copyrighted works over the Internet. In MGM Studios v. Grokster, the Court set out a new important framework which defines intellectual property rights in the Internet age.
Some view the legal battles over copyright and technology as highly esoteric, but in the MGM decision, the Court simplified the debate with this basic legal principle: a company that actively encourages people to violate the law, can be held liable for the results of its actions.
This decision will have a significant impact on the U.S. copyright industry which represents one of the strongest and most significant sectors of our economy. The recording industry has estimated that it has lost almost $5 billion annually, and the motion picture industry says it has lost $3 billion annually because of illegal file-sharing on the Internet.
Perhaps the most distinctive aspect of the Rehnquist Court has been its pattern of restricting congressional authority to pass legislation in several areas. The Rehnquist Court has done this by adopting a narrow view of several provisions of the Constitution:
- The Commerce Clause — which provides Congress's authority to regulate activities that impact interstate commerce; and
- The Fourteenth Amendment — which provides Congressional authority to ensure that all Americans are treated equally under the law.
Historically, the Commerce Clause and the Fourteenth Amendment have been used as the primary sources of Congressional power to address social issues. The Rehnquist Court has reshaped and restricted Congressional authority under these provisions.
If this historic shift continues, the Court could significantly restrict the ability of Congress to address nationwide issues with federal legislation the people's elected representatives decide are necessary.
For example, in 1995 the Supreme Court in, United States v. Lopez, invalidated by a 5-4 vote a federal statute: the Gun-Free School Zones Act which made it a crime to possess a gun within 1,000 feet of a school.
The Court held that the statute was beyond Congressional power to regulate interstate commerce. Justice O'Connor was the deciding vote.
Lopez marked the first time in the 60 years since the New Deal that the Supreme Court struck down an act of Congress for exceeding the Legislative Branch's Commerce Clause powers.
Then in 2000, in United States v. Morrison, again a 5-4 decision, the Rehnquist Court adopted a similarly restrictive view of Congressional power under the Fourteenth Amendment that parallels its limited and restrictive application of the Commerce Clause, ruling that a rape victim did not have the private right of action in federal court that Congress had provided under the Violence Against Women Act. Justice O'Connor again was the deciding vote.
The one vote majority on the Court concluded that neither the Commerce Clause nor the Fourteenth Amendment gave Congress the authority to create a right to sue for gender-based violence. This restricted congressional authority, but just as importantly, it had the effect of taking away rights given to ordinary people.
In the ten years since Lopez, the Rehnquist Court has continued this restrictive, some might say "activist," position. Its decisions have wholly or partially invalidated more than three dozen federal statutes in the past decade.
Almost a third of these decisions were based on the Commerce Clause and the Fourteenth Amendment.
- the Brady Handgun Violence Protection Act, which seeks to keep guns out of the hands of criminals; and
- the Age Discrimination in Employment Act, and the Americans with Disabilities Act, both of which seek to protect citizens from discrimination.
Equally noteworthy is the inconsistency of the Court's decisions of this kind. There have been several exceptions to the Supreme Court's new restrictive "federalism." For example, the Court curtailed states' rights in the Bush v. Gore decision, where for the first time the Supreme Court decided to determine the outcome of a Presidential election.
In addition, earlier this summer, in Gonzales v. Raich, the Court departed from its state's rights principles by overturning a California law that conflicted with the federal Controlled Substances Act. The Court concluded that the production and consumption of even small amounts of medicinal marijuana sufficiently affected interstate commerce to federally pre-empt state's rights. The California law was based on an extremely broad initiative that was passed in 1996 which entitled Californians to purchase and use medical marijuana.
In her dissent, Justice O'Connor criticized the inconsistency and intellectual relativism in the Court's reasoning. In her opinion she wrote, "In my view, the case before us is materially indistinguishable from Lopez and Morrison when the same considerations are taken into account."
Throughout her tenure, Justice O'Connor has often been the deciding vote in a sharply divided Court. As a matter of fact, in the last ten years, there have been 193 5-4 decisions: and Justice O'Connor was in the majority in 148 of them — more than 75 percent. She cast the deciding vote on the Court in many controversial issues. This is what makes her successor such a pivotal appointment.
For example, on whether to protect a woman's right to make her own reproductive choices:
- In 1992, Justice O'Connor wrote the controlling opinion in Casey v. Planned Parenthood, which limited Roe v. Wade but preserved the constitutional right of women to determine whether to have an abortion. Her opinion also created a new "undue burden" standard to evaluate the constitutionality of state restrictions on abortion.
- She also voted in 2000 with the majority in the 5-4 decision in Stenberg v. Carhart that struck down Nebraska's so-called "partial birth" abortion ban.
Justice O'Connor played a critical centrist role regarding race relations. She was central in laying the groundwork to strike down some government minority incentive programs; but at the same time was central to upholding certain affirmative action plans used by colleges and universities.
- In Adarand v. Pena, a contractor challenged a federal agency requirement that there must be a clause which gives a contractor a financial incentive to hire minority subcontractors. In 1995, Justice O'Connor delivered the opinion which held that all racial classifications must be analyzed by a reviewing court under strict scrutiny. Then applying this standard, the government policy was struck down.
- However, in Grutter v. Bollinger, where white students challenged the University of Michigan's affirmative action policy, Justice O'Connor wrote for the five-member majority which held that state colleges and universities could employ narrowly-tailored affirmative action plans in their admissions policies — recognizing the need to extend the opportunity of higher education to minority students.
These cases, of course, only represent the tip of the iceberg. Justice O'Connor has also played a decisive role in evaluating campaign finance reform legislation, the Court's role to hear challenges to detentions, state voucher laws, cases involving the Ten Commandments, and many more.
There can be no doubt that the Rehnquist Court has already made significant changes to the Court's jurisprudence. We know in the new term beginning in less than two months, the Court will hear cases on:
- Parental-Notification — Where the Court will decide whether a parental notification law must contain an exception to protect young women's health, and what is the standard of review for abortion cases. (Ayotte v. Planned Parenthood of New England)
- End of Life — Where the Court will be asked to determine the constitutionality of Oregon's law which permits physician-assisted suicide for terminally ill, but legally competent individuals. (Gonzales v. Oregon)
- Anti-trust — Where the Court will determine whether two oil industry leaders and competitors, Texaco and Shell, which entered into a joint-venture to set the price of gas is permissible under anti-trust laws. (Texaco, Inc. v. Dagher)
- Public Education — Where the Court will determine who is responsible for proving that an individualized education program is appropriate for a disabled student: the parents or the school district? (Schaffer v. Weast)
And those are just a few of the cases that will be considered in the 2005-2006 term.
Additionally, just over the horizon, in the Court of Appeals, many more important legal issues are percolating; such as:
- Hamdan v. Rumsfeld (2005). Earlier this year, the circuit court held that Salim Hamdan, an enemy combatant, had no recourse in the U.S. courts to argue that the U.S. military was holding him improperly. It is widely anticipated that Salim Hamdan will appeal, and the case will end up before the Supreme Court.
- As a member of the DC Circuit, Judge Roberts joined the decision, finding that the Geneva Convention, which provides trial protections to prisoners of war, is unenforceable in United States courts.
This is a decision that could profoundly and adversely affect our own soldiers when they are taken prisoner during wartime. It is a decision that has been discussed in the press lately, and it is a decision that raises questions about Judge Roberts' views on Presidential power and deference to the Executive branch. This is an important and critical line of questioning for the Judiciary Committee.
Another set of three cases:
- Carhart v. Gonzales, Planned Parenthood of Southeastern Pennsylvania v. Casey, and Stenberg v. Carhart cases challenging the "new" so-called partial-birth abortion ban are all making their way through the circuit courts.
This federal law that was passed and signed last Congress provides an exception for the life, but not the health of the mother, as required by the Supreme Court in its ruling in Stenberg v. Carhart. So, only five years after requiring a health exception, the Court is once again being asked to again decide this very issue — making whomever takes Justice O'Connor's position on the Court most likely the deciding vote.
- Circuit Courts are split over the constitutionality of the Endangered Species Act. This is a major issue.
It is likely that this critical question over Congressional authority to protect our nation's environment will be addressed by the Supreme Court in the near future. Depending on the outcome, Congressional authority to enact any environmental legislation, such as the Clean Air Act and Clean Water Act, could either be affirmed or nullified by the Court.
Fundamentally, a negative decision could call into question every piece of environmental legislation enacted by Congress — clearly, this would be devastating. And again, if confirmed, John Roberts would likely be the key vote.
I don't think there is a single American who wants to return to the days of filthy rivers and befouled air.
These examples demonstrate why this nomination is so important — these are mega-issues!
How Judge Roberts will approach and decide these questions of law will have a profound impact, not only on our lives, but on the lives of our children and grandchildren.
Judiciary Committee hearings will begin on Tuesday, September 6th where Senators and the American people may evaluate Judge Roberts' record and qualifications.
Despite political differences, I believe Americans elect their Senators to fulfill their constitutional responsibility — to thoroughly review the nominee for the United States Supreme Court and not simply act as a rubberstamp.
As the only woman on the Committee, I have an additional role to play in representing, the views and concerns of 145 million American women during this hearing process.
I was elected in the wake of the Clarence Thomas hearings, when women across the country, of both political parties, were amazed and angered by how the issues of sexual harassment and privacy were dismissed by members of the Judiciary Committee.
I will never forget watching the hearings as I waited for a plane at Heathrow Airport. Dozens of people clustered around the television sets throughout the airport, I was surprised at the international interest.
But I was more surprised by the demeaning treatment Anita Hill received before the all-male Committee. Well, that day is gone, and it will not occur again.
In 1992, I was elected as a Democratic, pro-choice woman to represent the State of California. In poll after poll, Californians are consistently and overwhelmingly pro-choice.
In fact, in the most recent Field Poll conducted in May 2004, 71 percent of California voters supported maintaining the current level of access to abortion services or lessening existing restrictions — so do a majority of all Americans.
It would be very difficult for me to vote to confirm someone to the Supreme Court whom I know would overturn Roe v. Wade and return our country to the days of the 1950s.
I remember what it was like then when abortion was illegal. When I was a college student, I watched the passing of the plate to collect money so young women could go to Tijuana for an abortion. I knew a woman who ended her life because she was pregnant.
In the 1960s I served on the Women's Board of Terms and Parole. I sentenced women who were convicted of the crime of performing an illegal abortion. I saw the morbidity they caused. I do not want to go back to those days.
Today, we are faced with a divided court and a polarized country. It is clear that the American people are divided about the course this country has taken. However, it is also clear that Americans overwhelmingly believe that the government should not interfere with personal family decisions, especially decisions about life and death.
These are private matters, they represent the most personal, moral, and spiritual choices an individual or a family must make. It may be fruitful for some on the extremes to reduce these issues to rhetorical slogans for their own political advantage.
How the Court decides future cases could determine whether end-of-life decisions will remain private or whether they could be subject to expensive litigation and perhaps the risk of prison.
I believe the choice is clear.
Government should not be allowed to interfere in personal, family decisions and overrule the most difficult choices a family can make. The question I have, is how John Roberts will react to these real life dilemmas when and if they come before him.
In order to fully answer that question the Judiciary Committee needs to have all of the relevant materials that shed light on Judge Roberts' thinking. That is why I and the other Democrats on the Judiciary Committee have asked the Administration for documentation about his writings and opinions as a federal official during the 1990s.
As the Committee begins its hearings, I will be evaluating whether Judge Roberts' judicial philosophy represents the mainstream of American thought. Here are the key questions:
Does he have respect for precedent?
Will he resist judicial activism?
Will he follow the law, rather than seek to create the law?
Does he see the role of the court as ensuring access to justice for all?
Does he believe Roe v. Wade should be overturned?
Does he have the compassion and empathy for the real life problems that people face?
It is my hope that Judge Roberts would play a role similar to Justice O'Connor's on the Court, and bring with him a voice defined by temperance and open-mindedness.
My friends, this is truly a momentous time, and all eyes will be on the Senate this September.
This is an historic moment that will fundamentally impact the course of our nation.
I take my role in this process very seriously.
And I know that Californians and all Americans will be watching closely and making up their own minds about Judge Roberts.
When entering the United States Supreme Court, one looks up and sees on one side of this enormous and impressive courthouse an inscription which reads "Equal Justice Under the Law" and on the other "Justice the Guardian of Liberty."
These are the standards. John Roberts is the nominee. The hearings begin in two weeks.
Thank you very much.