"dependent upon a uniquely as if the competence of the congress was to lesser extent. this was by justice souter. he commented in disagreeing with the chief justice, who said there was an insufficient record, the justice spoke about the information put together by congress, including the record of the gender bias in 21 states, eight separate reports by congress. there was a similar finding by the supreme court of the united states. the supreme court decided that there was an insufficient record to support the enactment

of title 1 of the american -- americans with disabilities act, even though there were task force hearings in every state, attended by 30,000 people, including the thousands who have faced discrimination with 300 examples of discrimination by state government. the supreme court said that there was an insufficient record, justice scalia said the test of proportionality, flabby. he says this was an invitation to arbitrariness. when you look to the standard of congruence and proportionality, this is very vague.

a divergence from the standard that was articulated in 1968, whether there was a rational basis for the decision, and as the justice noted, the standard of congressional proportionality is flat, he went on to say, this casts the court in the role of the taskmaster, we must regularly check their homework to make certain that this is identifying the violations to make their remedy constitutional and proportional. in the confirmation hearings -- confirmation hearings of cheese just as -- chief justice

roberts, he was very supportive of the role of congress, where the court should be differential to the congress. in response to a question, he said the supreme court should defer to the congressional findings. in response to my question, he said, and i appreciate the difference between institutional competence when it comes to basic questions of development of the record, and the authority to make the policy decisions about how to act on the basis of a particular record. this is not disagreement over the record, this is a question of who has the job to make the determination based on the record.

as a judge, you are transgressing into the area of making the law -- when you are a evaluating legislative findings, that does not look like a judicial function. later the chief justice will come to grips with the dominant role of the congress, and says that when the court takes over, the judicial lawmaking, this is something that is recognized to be an area that should not be transgressed. this is up to the congress to make the law, and the court will interpret them. in a hearing on the voting rights act on april 29, northwestern austin municipal,

on the issue of the sufficiency of the record. we had 16,000 pages of testimony, 21 different hearings, 10 months of action, and congress reauthorize the voting rights act. and now, listening to the supreme court argument and reading the record, you cannot draw any conclusions, it looks very much like the court may be on the verge of finding the record insufficient. the chief justice had this to say in the course of argument, one 20th of 1% of the submissions are not clear, this suggests that they are sweeping more broadly than they need to to address the intentional

discrimination. that is the elephant whistle, this is keeping away the elephants. but there are no elephants, so this must be working. if you have 99.98% of those being clear, why is this not reaching too broadly? we will all be watching very closely to see if the supreme court of the united states does about this, -- what they do about this, if this is the opinion of chief justice roberts. he testified so emphatically, as to the rule of the congress, being dominant, and this was, as a judge, you may begin to transgressing to the area of

making the law. those are the issues i will be addressing to judge sotomayor, during the confirmation hearings. i will not ask her how she will decide a case, but i think that it is fair, to ask about the standing, is this the justice standard of a rational basis, or the congruent and proportionate? the standard of recent vintage, having been applied in cases where it was very difficult to understand the conclusions of the court. if you take tennessee vs. lane, where one article of the act was up held, and contrasted with the case where this was stricken --

justice scalia, in the argument, took issue with congress on a 98-0 decision, suggesting that this was not carefully thought through. this reminds me of the 98-0 vote that he got on his confirmation. and the many unanimous decisions of the supreme court, there are a group of cases where the just as determined the cases 9-0. if this legislative body, is voting 98-0, in favor of renewing the voting rights act, and it uses the extensive record, this is not a sign of

weakness, or that they do not know what they are doing. with a 98-0 vote. and so the questions i have proposed, are these questions. would you apply the professional standard or the congruence proportionality standing? what do you think about the characterization that congruence and proportionality is an invitation to judicial arbitrariness, and policy proven decision making, he says this is the way for the court to make the law. do you agree with the chief justice and his conclusion that the violence against women's

legislation was unconstitutional because of congress's -- congress and their method of reasoning. and do you agree with the division of constitutional authority on the supreme court, articulated by chief justice roberts. i do believe that there will be an opportunity for a very important issues, to be presented to the nominee based on what i have seen of her in reviewing the record, and the meeting that i had with her, i have noted my -- i have noted her excellent rise in may, and i look forward to answering the many questions, where she will have more than an opportunity to

have a sound bite, but to give a commentary on the record in support of her nomination. i yield the floor. >> the nomination of a new justice to the supreme court of the united states brings to mind the question, both for the senate and the american people, what is the proper role of a federal judge. answering this question is not an academic task, this is fundamental to what we will be doing here. how the american people and their representatives, who have been delegated this responsibility, to the question that impacts on only the future of the judiciary, but the future of the legal system and the american experience. i would say that from traveling

the world, i am and more convinced than ever before that the glory of our liberty and prosperity is based on the fact that we have a legal system that you can count on. when you go to afghanistan or iraq or the west bank, or bosnia, they cannot get the legal system working. people are now protected from being attacked, their property is not protected. contracts are not enforced properly, and this demoralizes the country's and it makes it difficult to progress. i am proud that the american legal system is something that we inherited and we built upon, this is part of the liberty and prosperity. what do the judges do?

do they interpret the constitution as it is written, or can they reinterpret read this through their personal view and background and opinions? is it better to use the policy that others have enacted, or can the judiciary have new policies? and when the correct answer is difficult to understand, is the judge empowered it to remove the blindfold, the lady of justice, holding the scales? can they allow their personal feelings for other, outside the normal judicial evidence factors make field amid decision in the case? i will be addressing those

questions in the weeks to come, i think that we first need to begin at the source, we must return to the words and ideas of the founders of the nation, resulting in the greatest republic that this world has ever known. it is clear from reviewing these words, and these ideas, as expressed in the constitution itself, the founders desired and created the court system that was independent, impartial, restrained, and through a fateful rendering of the constitution, serves as a check against the government's on the rights of humankind. the founders established a modest government that was limited in its authority. to limit the expansion of

federal government power, they had a written constitution. the powers are only those granted to the government. as john marshall famously wrote, this is an acknowledged to be one of enumerated powers. this means the government has the power that it was given, only the power that was given. the constitution starts, we the people of the united states of america, and the people established this and had certain powers given to the branches of government. but these were not unlimited. they were enumerated and set forth. the founders knew these limitations -- standing alone was not enough.

they created three distinct branches of government, with checks and balances to prevent any one brand from consolidating too much power. they gave their own branch a responsibility, and this declares that all legislative powers shall be vested in a congress of the united states. the second article declares that the executive power should be vested in a president of the united states, article 3 declares, the judicial power of the united states shall be vested in one supreme court. and such other court's as the congress creates. these words are not ambiguous,

the judiciary possesses no power to make law or enforce the law, one of the founding fathers wrote the constitution of massachusetts, that says that the judicial shall never exercise the legislative or executive powers, or either of them, to the end that this is a government of law and not of men. in arguing for the constitution, to convince the americans to vote for this, used the massachusetts constitution, and said that this is essentially what we have here in our government. he was a remarkable man, who described the separation of powers as the central precaution in favor of liberty.

alexander hamilton, in a famous paper that was written to encourage americans to support the constitution, talked about a french philosopher who said, there is no liberty of the power of judging is not separated from the legislative and executive powers. the judicial branch is limited to the interpretations and the application of the law, existing, not created. at no time mayday substitute their political or personal view for that of the elected representatives, or to the people themselves. as this is expressed in the constitution that created the judiciary. it is instructive to looked closer at hamilton's article in

1878. hamilton says that the interpretation of law is the proper and peculiar promise of the court. the constitution must be regarded as a fundamental law. it therefore, belongs to them to ascertain its meaning. judges do not grant the rights or remove them, they defend the rights enumerated in the constitution. the judge must have a uniform adherence to the rights of the constitution. in order to make certain that the judge's with this latest, in the face of outside pressures,

the framers thought about this, taking steps to make sure that the judiciary was independent and isolated from political interference. the framers were guided by the wisdom that they experienced, with a lot of common sense in how they dealt with things. colonial judges were not protected from the king, including in the declaration of independence, and the litany of grievances, is the assertion, when thomas jefferson wrote about the complaints, he said that the king had made all judges depending on his will, for their offices. that was a complaint, one thing that we objected to. in the way that he was handling

the people in the colonies. this was part of the declaration. in order to shield the courts from the threat of political pressure or retribution, article 3 grants a lifetime appointment. the only federal office in america, we have to answer to the public. this also prohibits congress from diminishing judicial payment, or removing judges during times of good behavior. we cannot remove a judge. hamilton says this is one of the most valuable improvements in the practice of government, and he said that this was -- he saw this as the best step available

to secure an impartial administration of a law. he was hoping that the courts, set apart from the shifting tide of public opinion, would be faithful guardians of the constitution, to change against -- to defend against dangerous innovations of government. the court is not free to interpret the constitution or set policy, but the pressures of the people who would encourage them to do that. they also understood that the courts, with a narrow mandate, would also be the weakest branch. hamilton wrote that whoever looks at the different departments of power must concede that in a government where they are separate, the

judiciary, will always be the least dangerous to the political rights of the constitution, because it will not be in a capacity to annoy or enter them, it may not have the force or the will. in light of this narrow mandate, that judges have been given, judges have understood, from time to time, that they should not be drawn into politics, and they should decline to answer questions that they felt should be addressed by the political branches of government. this approach has been invoked when the constitution has allocated decisionmaking on an issue to a particular branch.

when the court is finding a lack of manageable standards, to guide the decision making, or when the court is feeling that they should not assert themselves in a conflict between the branches of government, that is what is happening. they are showing restraint and discipline. this is an example of judicial restraint, respecting the power of the other branches and elected representatives, rather than the judges establishing policy. this is not an academic exercise, or hypothetical. judicial activism has enormous consequences for every american.

if the judge is given a lifetime appointment, and a guaranteed salary, and they are given the power to set policy, this is anti-democratic. we have created someone outside of the political process and allow them to set policy and they are not accountable to the american people. it only takes five justices to determine the words of the constitution. this is really just five people, five of the nine agreed that the constitution means this or that, this is as good as if the great force of the states passed a constitutional amendment, along with a simple majority vote. eight supreme court justice is a powerful thing -- to interpret

the words of the constitution. when justices break from the ideas of these practices, they began to create rights, and destroy rights, based on their personal view. which there were never given the power to do. the temptation to reinterpreted constitution leaves -- leads the judges, they succumb to the call of using that opportunity that they may possess, to enact something that they would like to see happen. maybe they thought they were courageous, and did something great. but we have seen some of these actions happen, under the power to regulate business and

commerce, the government is given, the supreme court recently ruled that carbon dioxide, and nationally eckert -- naturally occurring substance in the environment, when the plants decay they -- they set this off -- they ruled that this was a pollutant, as a result of this. regardless of how you see this matter, they gave the regulation to control pollution, long before global warming was a thought. congress had no contemplation, that this would be used to limit carbon dioxide, some years

later. i only say that because this was a huge economic decision, is called on an agency of the department of the united states government, to regulate every business in america using fossil fuels. right or wrong, i just say what five members of the court can do, the ruling was five members. they also -- they have the supreme court, at least two members of the supreme court, have concluded that the death penalty is unconstitutional, because this is cruel and unusual, as prohibited by the

eighth amendment of the constitution. they descended on every single case, they thought others would agree with them. as time went by, they have left and no other judge has followed that philosophy. i would say that this is an untenable position because the constitution itself makes at least eight references to the death penalty. this is implicit in the constitution, that the government cannot take life without due process. that contemplates that there is a death penalty and you could take a life with due process, and it has references to capital crimes. every single state at the every single state at the founding of the government had a