U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE UNITED STATES
SEPTEMBER 14, 2005
U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT), RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
WITNESSES: JUDGE JOHN ROBERTS, NOMINATED TO BE CHIEF JUSTICE OF THE UNITED STATES
Transcript provided by CQ Transcriptions LLC
SPECTER: The committee will now proceed with the confirmation hearing of Judge Roberts to be chief justice of the United States.
One preliminary statement: I noted after the session yesterday that there was some comment about my statement when I asked Senator Biden to allow you to continue to respond, or to respond at all, and he then interjected that you were misleading the committee.
My statement was, While they may be misleading, they are his answers. It was in the subjective, and I was not suggesting that your answers were misleading. But in that moment, the object was to let you answer.
If somebody wants to characterize them one way or another, they can do that and you can respond. And I was not suggesting in any way, shape or form that they were misleading. And you picked it right up and said that they weren't misleading.
There are sometimes differences of opinion between the person asking the question and the person answering the question, but there was no doubt in my find as to the fact that they were not misleading.
We now proceed with the final two senators on the opening 30- minute round. And I recognize Senator Brownback.
BROWNBACK: Thank you very much, Mr. Chairman.
And I welcome you. Good morning, Judge Roberts and Mrs. Roberts. Glad to see you here this morning.
You're only two away from the end of this round, and we'll see how much further it goes. I hope you had a good night's sleep.
And I thought you had a great presentation yesterday.
I want to compliment you on the number of areas that you answered. My colleague from Texas went through the number of areas and commented about that yesterday and I was very impressed with the breadth, obviously, of your knowledge and your forthcomingness; how many of these areas you answered where prior nominees had not put answers forth.
And so I think you've revealed a great deal and yet not gone into those areas of active judicial action where there could be a lot of things coming forward.
I also want to compliment the chairman, Chairman Specter, who originates from my home state, and his stamina. He's been going through a lot lately, the chairman has, and yet you've pressed this committee so that many of us have difficulty keeping up with you.
And I want to compliment you on that stamina and the ability that you show. You always set a fast pace.
SPECTER: Well, Senator Brownback, being a Kansan yourself, you know where that stamina came from, because I'm a Kansan myself.
BROWNBACK: It's standing in the wind all day long; you just have to lean into it.
It makes you -- strengthens you quite a bit.
I want to go to a few areas that you haven't answered questions on yet; maybe surprise to some watching if there are any areas left but, actually, there are quite a few. And with your service on the court, you know on the bench you're going to get such a range of issues and topics that are going to come up.
It is noteworthy to me that a supermajority of committee members have asked you about privacy and leading up to questions on Roe, which I think only makes the point that this is an issue that should be left into the political system and not into the judicial system, where it is today.
That's something you'll have to resolve, as issues like partial- birth abortion come up to you.
But the very dominance of the question bespeaks of its interest within the political system and why it's best resolved within the political system and not the judicial one on a constitutional basis. But I'll get to that later.
I want to take you first to the takings clause issue. There was a recent case that came up that really shocked the system.
And you talked about shocks to the system when the judiciary acts. This is one that did it, in the Kelo v. New London case. In perhaps no other area of the law is stability more important than in the area of private property and property rights.
Even before the existence of the United States, William Blackstone, that famous English legal authority, stated this; he stated, quote, The law of the land postpones even public necessity to the sacred and inviolable rights of private property.
Mindful of the sentiment and the excesses of the king yet aware of the needs of a new and growing country, the framers of our Constitution established a strict limitation on the government's ability to take private property.
The takings clause of the Fifth Amendment of the Constitution provides that private property may not, quote, be taken for public use without just compensation. We all know those famous words.
Traditionally, this has meant that the government had to pay fair value when it sought to confiscate a homeowner's property in order to build a road or other public good. But now the notion of public use has taken a different hue to it.
In this Kelo v. the City of New London case, the Supreme Court had decided whether a private economic development plan, which a city government believed would yield greater economic benefits, qualified as a public use. So you had private property taken by the state and given back to private individuals, but it was having a greater economic use -- and whether that was sufficient under the takings clause.
In the words of the court, this economic development plan, quote, was projected -- not resulted, but projected -- to create in excess of a thousand jobs, increase taxes and other revenues.
On this basis, the court upheld the government confiscation as a public use and there was an uproar across the country. We thought that private property rights were established and set, and now it appears as if it's not; that the system is different. You can take private property, by the government's eminent domain ability, and give it back to a private individual.
Justice O'Connor, in her eloquent dissent, quotes this: Nothing is to prevent the state now from replacing any Motel 6 with a Ritz- Carlton, any home with a shopping mall, or any farm with a factory.
It is remarkable how this issue has stirred, as I mentioned, great criticism. I'm pleased the chairman is going to hold a hearing on it this next week.
Judge Roberts, what is your understanding of the state of the takings clause jurisprudence now after Kelo? Isn't it now the case that it's much easier for one man's home to become another man's castle?
ROBERTS: Well, under the Kelo decision, which, as you explained, was interpreting the public use requirement in the Constitution, the majority -- and, of course, as you mentioned, it was a closely divided case -- the majority explained its reasoning by noting the difficulty in drawing the line.
Everybody would agree, as you suggest, to build a road or to build a railroad, to situate a military base if that's the only suitable place, that the power of eminent domain is appropriate in those instances. And I think people agree further that when you're talking about a hospital or something like that, that satisfies public use.
And I think the reason the court gave, really, in the majority opinion was that it's kind of hard to draw the line.
Justice O'Connor's dissent didn't think it was that hard. She focused on the question of whether it was going to be a use open to the public as a road, a hospital, used for the public like in a military base, or private. And she would have drawn the line there and said even public benefits that derive from different private uses don't justify that aspect of it.
There was a caveat in the Kelo majority. They said they were only deciding this in the context of an urban redevelopment plan. They reserved the question if it's just taking one parcel and giving it to somebody else, not part of a broader plan. That question was still open.
And as you said, there's been a lot of reaction to it. I understand some states have even legislated restricting their power.
BROWNBACK: And we are considering it here in the Congress.
ROBERTS: And I think that's a very appropriate approach to consider. In other words, the court was not saying, You have to have this power, you have to exercise this power.
What the court was saying is, There is this power, and then it's up to the legislature to determine whether it wants that to be available, whether it wants it to be available in limited circumstances or whether it wants to go back to an understanding as reflected in the dissent that this is not an appropriate public use. That leaves the ball in the court of the legislature.
And I think it's reflective of what is often the case -- and that people sometimes lose sight of -- that this body and legislative bodies in the states are protectors of the people's rights as well.
It's not simply a question of legislating to address particular needs, but you, obviously, have to also be cognizant of the people's rights and you can protect them in situations where the court has determined, as it did 5-4 in Kelo, that they are not going to draw that line.
You still have the authority to draw.
BROWNBACK: I understand the authority we maintain. What I'm curious about is your view is: Does that right exist? I would not think Blackstone would agree that that right exists for the public to take private property for private use.
ROBERTS: Well, in the first year in law school, we all read the decision in Calder against Bull, which has this famous statement that the government may not take the property of A and give it to B. And that certainly was quoted in the dissent -- in Justice O'Connor's dissent.
The Kelo majority, though, said if the legislature wants to exercise that power, basically that the court's not going to second- guess the judgment that this is a public use.
And I do think that imposes a heavy responsibility on the legislature to determine what they're doing and whether it is a public use or if it's simply transferring from one private party to the next.
BROWNBACK: I take it you're not going to respond whether or not that right exists under the Constitution?
ROBERTS: Well, the Kelo decision, obviously, was just decided last year and I don't think I should comment on whether it was correct or not. It stands as a precedent of the court.
It did leave open the question of whether it applied in a situation that was not a broader redevelopment plan. And if the issue does come back before the court, I need to be able to address it without having previously commented on it. Let me take you to another area that's stewing here in legislative bodies, certainly, across the United States and, certainly, in Congress, and that's the issue of checks and balances of the court.
Any civics student can talk about checks and balances within the executive, the legislative and the judicial branch. And we all know that Congress, when it passes a bill, can be checked by a veto of the president. And we know the president's power can be checked by the power of the purse in the Congress -- those checks and balances. And when popularly elected branches of government enact bills contrary to the Constitution, the courts can strike the law down by exercising judicial review.
One curiosity, though, especially given the broad sweep of judicial power in America today and the angst that that stirs among so many people, is what check there is on the court and what checks there exist on the court. And it seems to me critical that we have this discussion at this point in time.
First check on the judiciary, of course, is the president's ability to populate the bench, of which you're a nominee, and our ability on advise and consent.
A greater problem arises once a federal judge is on the bench. And what's in Article 3, Section 1 -- and this is getting a lot of discussion now here in this body -- where judges hold office during good behavior -- which I know you will -- effectively have life tenure. But that's not really an effective check in the system.
There is also another area that you wrote about when you were working within the Reagan administration. That was the ability of Congress to limit the authority and the review of the courts of what you would have. And I want to look at that in particular.
It's the power to define jurisdiction that we would have. It's in Article 3, Section 2, and I just want to read this because I don't think it's well understood as the check and balance. And I want to get your reaction to it.
This is Article 3, Section 2: In all cases affecting ambassadors, other public ministers, counsels and those in which a state may be a party, the Supreme Court shall have original jurisdiction -- no question there.
Goes on: In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law in fact with such exceptions and under such regulations as the Congress shall make. That phrase, as you know, is known as the exceptions clause.
You wrote about this when you were in the Reagan White House, about this exceptions clause. And you stated this: It stands as a plenary grant of power to Congress to make exceptions to the appellate jurisdiction to the Supreme Court. A clause by its terms contains no limit -- these are your words -- and, quote, this clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block that those who would read the clause in a more restrictive fashion.
Now, I understand that you also argued on policy grounds this is not a good idea for the Congress to do. But would you agree with those earlier statements that you made about the nature of this power being a plenary power of the Congress and stands as a clear standard in favor of the Congress to be able to limit the jurisdiction of the courts?
ROBERTS: Well, you know, Senator, that that writing was done at the request of the attorney general. And he asked me specifically to present the arguments in favor of that power.
He was receiving, from elsewhere in the department, a memorandum saying that this was unconstitutional, the exercise of that authority. He wanted to see the other view before making up his mind for the department. So I was tasked to present the arguments in favor of constitutionality.
And as you say, they focus and start with the language in the Constitution, the exceptions clause, which is as you read it. And I went on to explain that it had been interpreted, in the famous case of Ex Parte McCardle, around the time of the Civil War, which seemed to suggest that the framers meant what that language says on its face.
Also, though, a later case, United States against Kline, suggested that there were limits on the power of Congress in this area. It is a central debate among legal scholars, the scope of that authority.
The argument on the other side -- the one that the attorney general adopted, rather than the argument he asked me to present -- is that it is the essential function of the Supreme Court to provide uniformity and consistency in federal law. And that if you carve out exceptions in its core constitutional area, that you deprive it of that ability and that that itself violates the constitutional scheme.
It's an area in which most distinguished scholars line up on either side, because it does call into question basic relationships between the Congress and the courts.
BROWNBACK: Could that language be any clearer, though, in the exceptions clause? I mean, I understand how legal scholars maybe can debate what a single word means, but that language is pretty clear, isn't it?
ROBERTS: The argument on the other side says that it's intended to apply to -- well, for example, we have clear situations in the lower federal courts like the amount in controversy; those cases are excluded; you can have rules about timing, you know.
The question is whether it was intended to address core constitutional areas or simply more administrative matters. The argument on the other side says, if you get into the core constitutional areas, that undermines the Supreme Court's authority and that the framers didn't intend that.
BROWNBACK: Then what check is there on the court's power?
ROBERTS: Well, I think the primary check is the same one that Alexander Hamilton talked about in the Federalist Papers, because the exact argument was raised in the debates about the Constitution. People were concerned about a new judiciary. What was it going to do? They were concerned that it might deprive them of their rights.
And, of course, Hamilton's famous answer was, the judiciary was going to be the least dangerous branch because it had no power. It didn't have the sword. It didn't have the purse.
And the judges were not going to be able to deprive people of their liberty because they were going to be bound down by rules and precedents; they were going to just interpret the law. And if judges just interpreted the law, there was no threat to liberty from the judicial branch.
So I would say the primary check on the courts has always been judicial self-restraint and a recognition on the part of judges that they have a limited task, that they are insulated from the people.
They're given life tenure, as you mentioned, precisely because they're not shaping policy. They're not supposed to be responsive; they're supposed to just interpret the law.
BROWNBACK: And I guess that's the area that has so many people concerned, is that the judiciary does not show restraint, and judicial restraint is the limitation on the courts, such as in the takings clause debate we just had, really, where the court is saying, Well, no, this is a broader power ; that if you don't restrain yourselves, then who does within this system? Obviously, there's restraints on the Congress. There's restraints on the president. And we like that system; we want that check and balance system. I think the framers put that exceptions clause and other things in there for a clear purpose and for a clear reason.
But let me take you on to another area, because that one, I think, you're going to see a lot of action as you get pushing back and forth between the three branches of government, and a number of people feeling like the judiciary has not shown judicial restraint in recent years.
I'm going to take you to the now probably most contentious social issue of our day -- and you've been debating and discussion it a great deal here already -- the issue of abortion.
It's at the root of much of the debate taking place in the country today. It has inflamed people. It has gotten them involved in the political process, folks that probably wouldn't have been previously, because the only way they saw that they could affect the system was get involved and try to elect a president, a Senate.
The president' lead applause line in the last election cycle was, I'll appoint judges who'll be judges, not legislators. That that's an applause line at a political rally should say something about people's angst toward what the courts have done, and particularly rooted in this issue of abortion.
The very root of the issue is the legal status of the unborn child. This is an old debate. Whether that child is a person or is a piece of property is the root of the debate.
In our legal system, everything's either one of the two: you're either a person or you're a piece of property. If you're a person, you have rights; if you're a piece of property, you can be done with as your master chooses.
And I believe everyone agrees that the unborn child is alive. And most agree that biologically it is a life, a separate genetic entity. But many will dispute whether it's a person. These may be legal definitions, but that's the way people would define it.
Could you state your view as to whether the unborn child is a person or is a piece of property?
ROBERTS: Well, Senator, because cases are going to come up in this area, and that could be the focus of legal argument in those cases, I don't think it would be appropriate for me to comment on that one way or another.
I will confront issues in this area as I would confront issues in any area that come before the court, and that would be to fully and fairly consider the arguments presented and decide them according to the rule of law. And I don't think it would be appropriate for me to express views in an area that could come before the court.
BROWNBACK: I hope you would agree with me that this is at the core of the issue, obviously, the competition between the woman's right to choose and the legal status of the unborn, and it permeates so much of our debate, and it's why a lot of us believe it should be within the political system to discuss.
I want to point out one thing to you, and I don't think it probably needs to be addressed, but I want to point it out.
In Plessy v. Ferguson, it's been cited yesterday along with the Brown decision, which my state is the proud home state host of Brown v. Board of Education. And I personally knew two of the lawyers that practiced in that case, and they were noble gentlemen.
They overturned Plessy, as you know, which was an 1896 case. So Plessy had stood for nearly 60 years.
We've had a discussion about this super stare decisis issue. And I just want to hold up a quick chart if I could -- if I've got it back here -- the notion that, because Roe has not been overturned in 30-some cases, makes it a super stare decisis: Plessy had not been overturned in a series of cases over a period of 60 years, where the court at each time looked at it, discussed it, decided against overturning it.
Yet I don't think anybody would agree that Plessy shouldn't have been overturned, and certainly not anybody from my state. We're the host state of Brown v. the Board of Education.
But the notion that by tenure a (inaudible) standing becomes a super stare decisis or by number of times that it's been looked at it become a super stare decisis I don't think finds a basis in law nor in practicality, as you noted. And some of these decisions up there, I would point out to you, are pretty onerous statements that the court put forward itself in how they upheld Plessy for a number of years.
And, yet, thank goodness that the court overruled it in the Brown v. the Board of Education's case that it eventually decided. I want to also point out to you something -- and you talked a lot about it yesterday, and I really appreciate this -- about facts matter in a case. And judges decide cases. And cases are built on facts. And you have the facts and you have the law but the facts matter.
There's no one in my state that wouldn't be honored to show you the school building where Brown v. the Board of Education was decided. We just dedicated it last year. The president was there, 50th-year anniversary.
You can see the path where the little girl walked to the school and had to walk by the all-white school to get there. And you look at that set of facts (inaudible). You look at it and you say, That's wrong. And you're ennobled that we no longer do that.
I held a hearing earlier this year on the factual setting of Roe v. Wade and Doe v. Bolton; the factual setting of these two cases. The two plaintiffs in those cases testified in front of the Judiciary Subcommittee. And I was there and Senator Feingold.
Both of them talked about the false statements of record that those cases were built upon, the false statements.
Listen to this statement by Sandra Cano. She's Doe of Doe v. Bolton. This is what she said, June 23rd, 2005, in Judiciary Subcommittee that I chaired.
Quote, Doe v. Bolton falsely created the health exception that led to abortion on demand and partial birth abortion.
This is her statements now.
I, Sandra Cano, only sought legal assistance to get a divorce from my husband and to get my children from foster care. Abortion never crossed my mind. Although, apparently, it was on the mind of the attorney from whom I sought help.
Further quote, At no time did I ever have an abortion. I did not seek an abortion nor do I believe in abortion.
This is Sandra Cano, the Doe of Doe v. Bolton.
And then she goes on to say, Doe v. Bolton is based on lies and deceit. It needs to be retired, retried or overturned -- which she's trying to get it retried. Doe is against my wishes. Abortion is wrong. That's Doe of Doe v. Bolton.
Now here's Norma McCorvey, Roe of Roe v. Wade. This is just the factual setting. I believe I was used and abused by the court system in America. Instead of helping a woman in Roe v. Wade, I brought destruction to me and millions of women throughout the nation.
Sandra McCorvey, quote, This is really troubling, too. I made up the story that I had been raped to help justify my abortion -- Sandra McCorvey.
Facts. Facts. In Roe v. Wade and Doe v. Bolton, falsified statements. And upon this we've based this constitutional right that's been found that we now have 40 million fewer children in this country to bless us with?
And I want to take another point on that to tell you -- we talked a lot about the disability community, and well we should, and the protection needed for the disability community. And that's important, because I think it really helps people that need help, but it helps the rest of us to be much more human and caring.
Senator Kennedy is helping me with a bill because a number of children never get here that have disabilities. Unborn children prenatally diagnosed with Down's Syndrome and other disabilities -- I don't know if you know this, but there was a recent analysis, and 80 percent to 90 percent of children prenatally diagnosed with Down's Syndrome never get here -- never get here. They're aborted in the system.
And people just say: Look, this child's got difficulties. And we even have waiting lists in America of people, today, willing to adopt children with Down's Syndrome. And we will protect that child -- as well we should, under the Americans with Disabilities Act and other issues -- when they get here.
But so much of the time, and with our increased ability of genetic testing, they don't get here. Diagnosed in the womb, system that encourages this child to be destroyed at that stage -- and this is all in the records.
And we are the poorer for it as a society.
All the members of this body know a young man with Down's Syndrome named Jimmy. Maybe you've met him, even. He runs the elevator that takes the senators up and down on the Senate floors. His warm smile welcomes us every day. We're a better body for him.
He told me the other day -- he frequently gives me a hug in the elevator afterwards. I know he does Senator Hatch often, too, who kindly gives him ties, some of which I question the taste of, Orrin...
... but he kindly gives ties.
HATCH: It doesn't have to get personal...
BROWNBACK: And Jimmy said to me the other day after he hugged me; he said Shhh, don't tell my supervisor. They're telling me I'm hugging too many people.
BROWNBACK: And, yet, we're ennobled by him and what he does and how he lifts up our humanity and 80 to 90 percent of the kids in this country like Jimmy never get here.
What does that do to us? What does that say about us. And I would just ask you, Judge Roberts, to consider -- and probably you can't answer here today, whether the individuals with disabilities have the same constitutional rights that you and I share while they're in the womb.
ROBERTS: Well, Senator, I appreciate your thoughts on the subject very much. I do think, though, since those precise questions could come before the courts that that is in the area that I have to refrain from answering.
BROWNBACK: Now, I just hope one thinks about people like Jimmy and a system, now, that scientifically can figure out the nature of this child's physical or mental state at an early point and is having many of them destroyed at that point in time. And that's taking place in our country today.
I have little time left. I want to say one final thing to you. And I appreciate you and I appreciate your inability to answer some of these questions. They're tough questions. And they're questions that are live in front of us as a society. I would just ask you really about your mentor or one of your mentors in Chief Justice Rehnquist who I admired greatly -- admired for his demeanor.
As you go on, and I anticipate you will be approved to be the chief justice of the United States, I would ask you just if you could briefly respond: How do you view his mentorship of you and your taking over if you are confirmed as chief justice? What does that mean personally to you and how will it impact you as chief justice?
ROBERTS: Well, it makes the opportunity a very special one, as I've said before. The chief was a mentor to many people. And like many great mentors, of course, he led by example not by precept.
His example of how he dealt with other people, not just other justices but everybody in the courthouse including the law clerks, in an open, friendly, balanced way was an example for everybody there.
Substantively, his approach to the role of a judge and the appropriate role of the court is, I think, a very important example. He was somebody who appreciated the appropriate limits on the judicial role and the judicial power and he was always careful and conscious of that. He was always asking whether or not this was something that it was appropriate for the courts to do.
And I do think it is important for judges at every level to always ask that question, because, as we had talked earlier, judicial self-restraint is the key check on the authority of the court. And if you're not asking yourself that question at every stage, Is this an appropriate thing for me to do as a judge, then they're's a great danger that you'll lose sight of that important judicial self- restraint.
And God bless you in your service to the country and your family.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Brownback.
Senator Leahy has a doctor's appointment this morning, but will be joining us shortly. We now turn to Senator Coburn for his 30 minutes.
COBURN: Thank you, Mr. Chairman.
And, again, welcome. Good morning. ROBERTS: Good morning.
COBURN: There are so many legal terms yesterday bandied around that I was having trouble grabbing hold of, I thought I'd start out with medical terms this morning and see if you could keep up.
I also thought it was interesting, since you've been prophesied to have 35 years -- that's 12,675 days that the chairman prophesies that you'll be there -- that you've passed three of them. And congratulations on number three.
I want to go to something that Senator Kyl talked with you about. And I was very pleased with your answer. He asked you about referencing and using preference to select and pick precedents from foreign law yesterday. And I thought you gave a very reassuring answer to the American public.
You based your answer on two points.
One is that the democratic theory is that, in this country, with our law, the people are involved in that, both through the Senate, the House and the president who appoints you.
The other point you made is that relying on foreign precedent does not confine judges.
And I just want to kind of ask a couple of questions. Number one, the oath that you took for your appellate position and the oath that you will take states the following: that, I, John Roberts, do solemnly swear that I will administer justice without respect of persons and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties incumbent upon me, John Roberts, under the Constitution and the laws of the United States, so help me God. My question relates to the Constitution and what is said in Article 3 that judges, both of the Supreme and inferior courts, shall hold their offices during good behavior.
My question to you: Is relying on foreign precedent and selecting and choosing a foreign precedent to create a bias outside of the laws of this country, is that good behavior?
ROBERTS: Well, for the reasons I stated yesterday, I don't think it's a good approach. I wouldn't accuse judges or justices who disagree with that, though, of violating their oath. I'd accuse them of getting it wrong on that point and I'd hope to sit down with them and debate it and reason about it.
But I think the justices who reach a contrary result on those questions are operating in good faith and trying, as I do on the court I am on now, to live up to that oath that you read.
I wouldn't want to suggest that they're not doing not doing that. Again, I would think they're not getting it right in that particular case and with that particular approach. I would hope to be able to sit down and argue with it as I suspect they would like to sit down and debate with me.
But I wouldn't suggest they're not operating in good faith to...
COBURN: Can the American people count on you to not use foreign precedents in your decision-making on the Supreme Court?
ROBERTS: You know, I will follow the Supreme Court's precedents consistent with the principles of stare decisis. And there are cases in this area, of course. That's why we're having the debate. The court has looked at those.
I think it's fair to say, in the prior opinions, those are not determinative in the sense that the precedent turned entirely on foreign law, so it's not a question of whether or not you'd be departing from these cases if you decided not to use foreign law.
And for the reasons I gave yesterday, I'm going to be looking...
COBURN: I understand that, and I respect that, and I know that you can't be in a position to make a judgment on that.
But again, for the record, I want to read what the Constitution says, that the judges, both of the Supreme and inferior court, shall hold their offices during good behavior, and that the oath that they take references only the Constitution and the laws of this country.
And, if anything, I would like to send a message that that's what their oath states. And this judicial restraint that you've spoken of, I believe, includes that oath and the definition that our founders believed when they said: Here's what you should base your decisions on; it's the Constitution of the United States and the laws.
The other thing: Yesterday, you had an exchange with Senator Feingold on a case, and I think it was the Gonzaga, and you talked about congressional intent.
And I'd like for you for a moment to spend a minute giving us your opinion. And you may refuse to do so if you care to; that would be your privilege.
But one of my observations is that, oftentimes, we don't do a very good job with the laws that we write, because we're not very clear. Sometimes we're lazy. Sometimes we are politically expedient.
But, oftentimes, the very problems that you as a court make controversial decisions over are because we've not done a good job.
And I'd just like your thoughts as to: If you were to critique things that we could do better to make your job easier and clearer, what would you have to say to that?
ROBERTS: Well, sitting where I am, I'm not terribly inclined to be critical of...
... the Congress and wouldn't be, in any event.
But a lot of what judges spend their time doing -- not always in the momentous constitutional cases that we've been talking about, but sometimes in very mundane cases -- is the effort to discern congressional intent, trying to figure out what Congress meant when it used specific words that were passed by both houses and signed by the president into law.
Now, some of that is entirely unavoidable. The complexity of human endeavor is such that situations are going to arise that are not clearly answered by even the most specific language. And that's to be expected, and judges have to address those situations.
But as you suggest yourself in your question, there are situations where sometimes Congress punts the issue to the courts. They can't come to an agreement about how a particular provision should be applied, and so folks who want it to go one way and folks who want it to go the other way just sort of leave it ambiguous or leave it out and take their chances in court. And obviously that's a different situation.
I think all judges would tell you that to the extent Congress can address the issues and resolve the issues that are the policy questions entrusted to them, it makes it a lot easier for the courts to decide the cases that do come up, because then it's just a question of looking at the facts and the law is clear and you apply the facts to the law. If the law is unclear, that makes it that much more difficult.
You know, as I said, obviously a lot of these situations are unavoidable, but there are certainly -- and the Supreme Court has addressed many of these -- the issue of implied rights of action in the past. And they were getting case after case after case. And they finally adopted an approach in the early 1980's that said, look, we're not going to imply rights of action anymore. Congress, if you want somebody to have a right of action, just say so.
But this is not a good thing for the courts to be doing, deciding whether a particular right of action should be implied or not. And after the court developed that jurisprudence in the early 1980's, you know, the hope was -- and I think it has been realized to a large extent -- that there would be more addressing of that question in Congress, which is where it should be addressed.
COBURN: And you would agree, we could do a better job.
ROBERTS: Well, I'm sure everyone's doing as good a job as they can.
COBURN: That's the first answer I worry about that you've given the whole testimony. Let me go to another area.
As I mentioned in my opening statement, I'm a practicing physician, kind of an old-time G.P. I've delivered 4,000 babies. I take care of people at the end of life, at the beginning of life.
In all 50 states, death is recognized and defined as the irreversible cessation of the brain and heart activity.
Do you have any reason to dispute that?
ROBERTS: I don't know the medical terms or definitions, but no. I mean, if that's the law in the states, that's not to say that it has any particular legal significance...
COBURN: Right. I'm not asking you about legal significance.
Would you agree that the opposite of being dead is being alive?
I don't mean to be overly cautious in answering it.
COBURN: You know I'm going somewhere. One of the problems I have is coming up with just the common sense and logic that if brain wave and heartbeat signifies life, the absence of them signifies death, then the presence of them certainly signifies life.
And to say it otherwise, logically is schizophrenic. And that's how I view a lot of the decisions that have come from the Supreme Court on the issue of abortion.
And I won't pressure you on this issue. I know you can't. But for the listeners of this hearing, if, in fact, life is the presence of a heartbeat and brain wave, it's important for everybody in the country to know that at 16 days post-conception, a heartbeat is present; and that at 41 days, right now, we can assure ourselves that brain activity and brain waves are present. And as the technology improves, we're going to see that come earlier and earlier.
I make that point because so many of the decisions of the Supreme Court have been made in a vacuum of the scientific knowledge of what life is, when personhood is, when it begins, when it doesn't, when it exists, when it doesn't.
And it belies the scientific facts and medical facts that are out there today.
And so that was for your information and my ability to put forth a philosophy that I believe would solve a lot of the controversy in this country.
I want to cover one area that was discussed yesterday where the implication was made that you might have ruled on a case violating the judicial ethic, and that was the Hamdan v. Rumsfeld case. Senator Feingold asked you questions about the case. You invoked the canon code of conduct of U.S. judges that prohibits you from talking about a pending case.
I would like, Mr. Chairman, a copy of that canon to be placed in the record.
SPECTER: Without objection, so ordered.
COBURN: And canon three provides that, A judge should perform the duties of the office impartially and diligently. The judicial duties of a judge take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards and adjudicative responsibilities.
There's another one of those legal words I'm having trouble getting my hands around.
A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel, subject to the judge's direction and control.
The official commentary to canon 3A(6) provides the admonition against public comment about the merits of a pending or impending action until completion of the appellate process.
I would also note that any criticism of your participation in this case is unwarranted. Numerous law professors who specialize in legal ethics have stated that you in no way have violated any ethics rules simply because you were considered for another judgeship. The opinion was finalized well before you met with the president -- I believe that's correct -- or was offered this nomination.
Is that correct?
COBURN: The argument, the initial vote, and the drafting of the opinion all took place before there was a Supreme Court vacancy at all. Is that correct?
COBURN: You did not write an opinion on that case. Is that correct?
ROBERTS: I joined Judge Randolph's opinion.
COBURN: Right. But you did not write a separate opinion.
COBURN: That's right.
I would also like to enter into the record the nonpartisan ethicists who agree that Judge Roberts did not violate any ethics rules.
SPECTER: Without objection, it will be make a part of the record.
COBURN: I want to go to one other area that I have some concern about. I know my concerns are opposite from some of those who have a different philosophy in life.
Many of the questions posed to you have focused on our concerns about an activist judiciary. My opening statement expressed some of those concerns. However, I'm equally concerned about an activist Congress that goes beyond its bounds, a Congress that routinely ignores its own constitutional boundaries.
Historically, the debate about the role and scope of Congress has focused on the general welfare clause. As we all know, Article I, Section 8, Clause 1 of the Constitution gives Congress the power to provide for the common defense and general welfare of the United States.
The 10th amendment also spells out limitations on congressional power. We had the discussion yesterday on the toad, I believe. The 10th amendment states the power not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. And I want to give you a quote that James Madison said, because in his wisdom, he anticipated that would try to stretch the definition of the founders.
And we wrote with respect to the words general welfare : I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.
In Federalist Paper 45, Madison writes, The power is delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and infinite.
Do you agree with James Madison's interpretation of the general welfare clause, that the powers of the Congress should be fundamentally limited, or do you agree with the modern prevailing wisdom of both political parties, particularly appropriators, who believe Congress' role is fundamentally unlimited?
ROBERTS: Well, I agree with Madison's view in general that the Constitution does contain limitations on the federal authority. The general welfare clause, and in particular the necessary and proper clause of course, have been interpreted in many of Chief Justice John Marshall's early opinions to recognize, though, that the scope of authority given the Congress is broad and broad enough to confront the problems that, in Chief Justice John Marshall's case, were confronted by a young nation and helped to bind it together as a nation, and broad enough today to confront the problems that Congress addresses.
But the notion that the Constitution was one of limited powers, albeit broad under the necessary and proper clause and even the general welfare clause, as interpreted by Chief Justice John Marshall in these early opinions, that recognition doesn't undermine the framers' essential vision that we are dealing with the federal system in which vast powers reside with the states and that the federal government is one of limited powers; broad in, obviously, particular areas and broad under the necessary and proper clause but limited powers nonetheless.
COBURN: Thank you.
I just have one other comment. As you have been before our committee, I've tried to use my medical skills of observation of body language to ascertain your uncomfortableness and ill at ease with questions and responses.
And I've honed that over about 23, 24 years. And the other thing that I believe is integrity is at the basis of what we want in judges .
And I will tell you that I am very pleased, both in my observational capabilities as a physician to know that your answers have been honest and forthright as I watch the rest of your body respond to the stress that you're under. But I'm also pleased with our president that he's had the wisdom to pick somebody of such stature and such integrity.
Without integrity what you say here means nothing. And that's the very foundation of which I believe you've based your life. And I'm pleased to have you before us. And I thank you.
Mr. Chairman, I yield back the balance of my time.
SPECTER: Thank you very much, Senator Coburn.
Judge Roberts, before taking up the subject of the confrontation, we'll now proceed to the 20-minute round for each senator.
Before taking up the issue of the confrontation or clash between the Congress and the Supreme Court, I want to pick up a few strands from yesterday's testimony.
Near the end of my questioning, I commented on the case of United States v. Dickerson where if a chief justice had made a modification of his earlier objections to Miranda and said that the Miranda warnings ought to be upheld, contrasting his view in 1974 in a Supreme Court decision with his view in the year 2000, saying that Miranda should not be overruled because it has been embedded in routine police practices and become a part of our national culture -- that has all of the earmarks of the doctrine of a living constitution.
Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on this issue, saying that the -- commenting on liberty, the quote, The traditions from which it is developed, quote, that tradition is a living thing. And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?
ROBERTS: Well, I think the framers, when they used broad language like liberty, like due process, like unreasonable with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.
As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.
They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages.
SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.
And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.
When talking about the constitutional evolution, he referred to it as expressing values which are, quote, the very essence of a scheme of ordered liberty, close quote, quote, principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.
Would you agree with the Cardozo statement of jurisprudence which I just quoted?
ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.
And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.
But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.
And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle. I depart from some views of original intent in the sense that those folks, some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they use, and if the words adopt a broader principle, it applies more broadly.
SPECTER: Well, I'll accept that as an indication of your view not to have a, quote, crabbed interpretation, in applying the broad principles.
Let me refer you to a statement by Chief Justice Rehnquist in dissent in the Casey case which surprises me. And I ask you whether you agree with this.
He said, quote, A woman's interest in having an abortion is a form of liberty protected by the due process clause.
Do you agree with that?
ROBERTS: Well, that does get into an area where cases are coming up. The chief, in that position, was referencing, of course, the holding in Roe v. Wade and that was what the issue was in Casey.
But I don't think I should opine on the correctness or incorrectness of particular views in areas that are likely to come before the court.
SPECTER: I'm going to move now to the confrontation between Congress and the court and what I consider to be denigrating comments about the Congress.
In the Morrison case, in the face of an overwhelming factual record, the court, 5-4 decision, said that parts of the legislation to protect women against violence unconstitutional because of the congressional, quote, method of reasoning.
And then the dissent picked up the conclusion that the majority's view was, quote, dependent upon a uniquely judicial competence, close quote, with the other side of the coin being congressional incompetence.
And then in the dissent in Tennessee v. Lane, Justice Scalia says that the court engages in ill-advised proceedings to make itself the, quote, taskmaster, to see if the Congress has done its homework.
You commented a few minutes ago that you would be respectful of Congress. Do we have your commitment that you won't characterize your method of reasoning as superior to ours?
ROBERTS: I don't think it's appropriate...
SPECTER: In your particular case, maybe yours is, but...
ROBERTS: No, no...
SPECTER: As a generalization, we've gone around this with other nominees. And after they have gone to the court, they haven't been mindful as to what they have said here. But I take umbrage at what the court has said and so do my colleagues. There isn't a method of reasoning which changes when you move across the green from the Senate columns to the Supreme Court columns. And we do our homework, evidenced by what has gone on in this hearing. And we don't like being treated as school children, requiring, as Justice Scalia says, a taskmaster.
Will you do better on this subject, Judge Roberts?
ROBERTS: Well, I don't think the court should be taskmaster of Congress. I think the Constitution is the court's taskmaster, and it's Congress's taskmaster as well. And we each have responsibilities under the Constitution.
And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding, development of a record, and also, the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record.
SPECTER: On the record, in U.S. v. Morrison, the legislation to protect women against violence, the record showed that there were reports on gender bias from the task force in 21 states, and 8 separate reports issued by Congress and its committees over a long course of time leading to the enactment, and a characterization by the dissenters that there was a mountain of evidence.
What more does the Congress have to do to establish a record that will be respected by the court?
And this is where the five-person majority threw it over, not because of the record but because of the method of reasoning. Isn't that record palpably sufficient to sustain the constitutionality of the act?
ROBERTS: Well, Mr. Chairman, I don't want to comment on the correctness or incorrectness of a particular decision. What I will say...
SPECTER: Well, Judge Roberts, let me interrupt you there for a minute. Why not? The case is over. This isn't a case which is likely to come before you again. These are the specific facts based on the rape of the woman -- alleged rape -- by the three VMI students.
I liked your answers yesterday. You were willing to answer more questions about cases on the differentiation that they are not likely to come before the court. This is not likely to come before the court again.
Isn't this record sufficient in Morrison to...
ROBERTS: Well, Mr. Chairman...
SPECTER: ... uphold the act?
ROBERTS: Mr. Chairman, I must respectfully disagree. I have been willing to comment on cases that I think are not likely to come before the court again. I think particular question you ask about the adequacy of findings and make a determination of the impact on interstate commerce is likely to come before the court again. And expressing an opinion on whether the Morrison case was correct or incorrect would be prejudging those cases that are likely to come before the court again.
And that is the line -- it's not just a line that I'm drawing, it's a line that, as I've read the transcripts, every nominee who's sitting on the court today drew. Some of them drew the line far more aggressively and wouldn't even comment on cases like Marbury v. Madison.
What I can tell you is that with respect to review of congressional findings that my view of the appropriate role of a judge is a limited role and that you do not make the law.
And it seems to me that one of the warning flags that should suggest to you as a judge that you may be beginning to transgress into the area of making a law is when you are in a position of re- evaluating legislative findings because that doesn't look like judicial function. It's not an application of analysis under the Constitution; it's just another look at findings. Now, again, I don't feel it's appropriate to comment on Morrison.
I do feel it's appropriate to tell you that I appreciate the differences between Congress and the courts with respect to findings, both with respect to the issue of the capability and competence to undertake that enterprise and also with respect to the issue of authority to make a decision based on the findings.
SPECTER: Judge Roberts, we'll have to agree to disagree about that. I don't think the facts of Morrison are likely to come before the court. But I ask the questions; you answer them.
Let me come now to the Americans with Disabilities Act. And you have 5-4 decisions going opposite way. Ms. Garrett had breast cancer. The court in 2001 said that the title of the Disabilities Act was unconstitutional 5-4. On employment, discrimination. And then, three years later, you have the case coming up of Lane, a paraplegic, rolling up the steps, accommodations, 5-4: the act was upheld.
The record in the case was very extensive: 13 congressional hearings; a task force had held hearings at every state attended by more than 30,000, including thousands who had experienced discrimination.
And in the Garrett case, the Supreme Court of the United States used a doctrine which had been in vogue only since 1997 in the Boerne case. You and I discussed this in my office. They came up with the standard of what is congruent and proportionate; congruence and proportionality.
I was interested in your statement, when we talked informally, that you didn't find those in the Fourteenth Amendment. I didn't either.
Now they plucked congruence and proportionately right out of thin air. And when Scalia dissented, he said that the congruence and proportionality test was a, quote, flabby test, which is a, quote, invitation to judicial arbitrariness by policy-driven decision- making.
Now, you said yesterday that you did not think that there was judicial activism when the court overruled an act of Congress. Isn't this congruence and proportionality test, which comes out of thin air, a classic example of judicial activism where the view of congruence -- hard to find a definition for congruence; proportionality, hard to find a definition for proportionality -- I've searched and can't find any. Isn't that the very essence of what is in the eye of the beholder, where the court take carte blanche to declare acts of Congress unconstitutional?
ROBERTS: Well, these questions arise, of course, under, as you know, Section 5 of the Fourteenth Amendment, where the issue is Congress' power to address violations of the Fourteenth Amendment.
And it's an extraordinary grant of power. And the court has always recognized it as such.
And their decisions in recent years -- it's not just, as you point out, the Garrett case on the one hand and the Lane case on the other. You have the Hibbs case recently, which upheld Congress' exercise of authority.
The most recent cases, Lane and Hibbs, uphold Congress' exercise of authority to abrogate...
SPECTER: But, Judge Roberts, they uphold it at the pleasure of the court. Congress can't figure that out. There's no way we can tell what's congruent and proportional in the eyes of the court.
ROBERTS: Well, and that was Justice Scalia's position in dissent. He had originally...
SPECTER: Do you agree with Scalia?
ROBERTS: Well, again, this is -- the congruent and proportional test...
SPECTER: Do you disagree with Justice Scalia?
ROBERTS: I don't think it's appropriate, in an area...
... and there are cases coming up, as you know, Mr. Chairman. There's a case on the docket right now that considers the congruence and proportionality test.
SPECTER: That's why I'm raising it with you. I'd like to see a sensible interpretation with the court in that case.
ROBERTS: Well, and if I am confirmed and I do have to sit on that case, I would approach that with an open mind and consider the arguments.
I can't give you a commitment here today about how I will approach an issue that is going to be on the docket within a matter of months.
SPECTER: Judge Roberts, I'm not talking about an issue. I'm talking about the essence of jurisprudence. I'm talking about the essence of a man-, woman-made test in the Supreme Court which has no grounding in the Constitution, no grounding in the Federalist Papers, no grounding in the history of the country.
It comes out of thin air in 1997. And it's used in Lane and Garrett, two 5-4 decisions on identical records on an identical act, and the country and the Congress are supposed to figure out what the court means.
So I'm really talking about jurisprudence.
Judge Roberts, let me move to one other subject in the two minutes that I have remaining, and that is on the ability which you would have, if confirmed as chief justice, to try to bring a consensus to the court.
We have 5-4 decisions as the hallmark of the court. It's not unusual. You commented yesterday about what Chief Justice Warren did on Brown v. Board of Education, taking a very disparate court and pulling the court together.
As you and I discussed in my office, there are an overwhelming number of cases where there are multiple concurrences. A writes a concurring opinion in which B joins. Then B writes a concurring opinion in which A joins and C joins.
In reading the trilogy of cases on detainees from June of 2004 to figure out what we ought to do about Guantanamo, it was a patchwork of confusion.
I was intrigued by the comment which you made in our meeting about a dialogue among equals. And you characterized that as a dialogue among equals when you appear before the court, and they're on a little different level over there. I'm way behind you on Supreme Court arguments. It's 39-3. But I wouldn't have been an equal of theirs in any event; perhaps you are.
But I am intrigued by your concept. And I asked you how you'd be able to be the chief with Justice Scalia, who is 18 years older than you, and even Justice Thomas, who's seven years older than you.
Tell us what you think you can do on this dialogue among equals to try to bring some consensus to the court to try to avoid these proliferation of opinions and avoid all these 5-4 decisions.
LEAHY: I'd like to hear the answer, because that's a question I was going to ask, too.
SPECTER: Well, now we're on Senator Leahy's time. Go ahead.
LEAHY: Oh, no, no. We're not on my time. We're not on my time. We're still on yours, Mr. Chairman. But I'd like to hear this answer.
SPECTER: It's permissible to have the answer on the red light, just not the question.
ROBERTS: Well, I don't want to be presumptuous about, if I am confirmed, what I would do.
I do think, though, it's a responsibility of all of the justices, not just the chief justice, to try to work toward an opinion of the court.
The Supreme Court speaks only as a court. Individually, the justices have no authority. And I do think it should be a priority to have an opinion of the court.
You don't, obviously, compromise strongly held views, but you do have to be open to the considered views of your colleagues. Particularly when it gets to a concurring opinion, I do think you do need to ask yourself, What benefit is this serving? Why is it necessary for me to state this separate reason? Can I go take another look at what the four of them think or the three of them think to see if I can subscribe to that or get them to modify it in a way that would allow me to subscribe to that?
Because an important function of the Supreme Court is to provide guidance. As a lower court judge, I appreciate clear guidance from the Supreme Court.
I think the last thing Chief Justice Rehnquist said in court, on the last day of the term, he was reading the disposition in a case and said, you know, A reaches this conclusion. He is joined by B. And then C has a separate concurrence, joined by D and E. And he ended up by saying, I didn't know we had that many judges on the court.
ROBERTS: And that undermines the importance of providing guidance.
I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution, and that would certainly be a priority for me if I were confirmed.
SPECTER: Thank you very much, Judge Roberts.
LEAHY: Thank you, Mr. Chairman. Thank you for asking that question because it was one I wanted to ask, too.
Last night, we welcomed you to night court. Welcome to daytime court.
ROBERTS: Thank you, Senator.
LEAHY: It will probably become night court before we get done.
We talked just briefly about the First Amendment yesterday. And it's written primarily in terms of speech. But in a free and democratic nation, access to information, I think, is extraordinarily important, too.
Our framers knew that maximum knowledge is power. Actually, that was the maxim the administration used as the model for what was somewhat Orwellian, Total Information Awareness Program, until a Republican Congress. And I supported this, shut it down, because it was asking too much knowledge about individual Americans.
I also spoke about we, the people. If we, the people, know what our government's doing, why it's doing it, we can hold the government accountable and should.
So I worry about administration -- I'm not going into a specific case, but I'm worried about an administration that spreads misinformation, that is declaring more things secret and spending billions of dollars doing that, far more than any administration in history, probably all administrations put together. It punishes the whistleblowers. It bars the press and cameras from so many different events. And I believe very strongly that the people want to know what's going on. The courts are, if at all possible, supposed to take their side in making sure they know what's going on. Because our government should not be able to hide things unnecessarily from the people.
No matter who's in power, the people should know what's going on.
So I would like to know how you would approach such a case. Let me give you a few examples.
In the last couple of years, the administration fought to prevent the media from covering coffins returning from Iraq. It fought to keep disturbing images of U.S.-run prisons in Iraq from the media. And just last weekend, actually after they lost the initial bout in court, it abandoned its zero-access policy regarding scenes of devastation in New Orleans.
As you know, most of America found out what was going on in New Orleans really from the press not from our government, at least the first few days.
There's been a number of reasons, excuses, which seem to change day by day, for why these things are being blocked. I'm not going to ask you to evaluate them.
But my question is this: If the government seeks to broadly exclude media from access to images or events of public interest or concern, does the First Amendment require the government to justify that denial of access? And if so, what kind of standards -- not any particular case, but what kind of standards does the court have to apply?
ROBERTS: Senator, I haven't dealt with a lot of First Amendment access cases. I studied one about media access to prisons, for example; the issue about whether the media had a right of access to prisons -- they wanted to report on it. And so I'm not terribly familiar with the precise levels of scrutiny that apply.
There is, obviously, a balancing of sorts between particular interests, when you are dealing with governmental operations. And there's some perfectly valid reasons for excluding media.
On the other hand, simply disagreement about whether it's an appropriate issue for the public to see would not strike me as a very compelling governmental interest.
And I think the courts regularly balance these sorts of things when they get an issue about a challenge by the media saying their First Amendment rights are being violated because of a particular exclusion.
And again, I'm not terribly familiar with the precise legal standards or how they have developed since the prison access case that I'm familiar with, but it does require a consideration and weighing. And the values of the First Amendment, obviously, are something that have to be given careful weight by the court, for the very reasons that you have discussed.
Because the First Amendment serves a purpose. It's not there just because the framers thought this was in general a good idea. It serves a purpose with respect to the government. It provides access to information and allows the people in a free society to make a judgment about what their government is up to.
LEAHY: Like the chairman, I was a prosecutor. And if we move a little bit out of the prison situation, which raises all other kinds of questions and abilities to limit access, let's just go to something that the public might easily have access to, if they could just walk in there.
Suppose the government -- I'll use something like Katrina. Suppose they felt that the rescue operations of the government, whether it's state, local or federal, was being handled in an inept way, or evacuees are being mistreated. Does that give them a right to bar the media, who may want to expose that? ROBERTS: I think it's a general...
LEAHY: How would you analyze the claim, without citing a particular case?
The media comes and says, Look, the government screwed up. We're trying to get in there to take pictures to show how they screwed up and they say, 'You can't come in.' How would you analyze a claim like that?
ROBERTS: Well, you know, I do start with a general principle in this area. And I think it was Justice Brandeis who talked about, you know, sunlight being the best disinfectant.
And I think that's a lot of what the framers had in mind in guaranteeing freedom of speech and the other rights that go along with it. They appreciated the benefits that would come from public awareness. That's an important principle.
And, again, this is not an area that I feel completely up to speed on the precedents. And I obviously, if I were in a position as a judge and had to decide a particular case, would study them and become aware.
But my recollection is that there is great difficulty whenever you try to distinguish between public rights and media rights. And that if it's a situation in which the public is being given access, you can't discriminate against the media, and say, as a general matter, that the media don't have access, because their access rights, of course, correspond with those of the public. And as you said, they're in a position -- if there are a handful of people who might be able to have access, the media is in a position to make that information or knowledge, or whatever, available on a broader basis.
LEAHY: I raise this, because -- and I'm not trying to pin you on a particular case -- I think we're going to see more and more of this. We're in a digital age. A lot of information is readily available.
At the same time, the bad part about that is our government can acquire more and more and more information on us, just as your credit card company or anybody else does on you.
And some of us want to be in a position to be able to go in and find out what is being collected on us; to what extent are we giving up our privacy?
And usually, far more than the Congress or anybody else, it's been the media that's exposed when this has been overdone, when mistakes or violations are done. And I would hope that you would be committed to protecting just as much as possible access, rather than the other way around. Let me go to an issue we discussed yesterday -- or others did -- the issue of capital punishment.
We've held in this committee a number of hearings that show some real flaws in the administration of capital punishment: you know, sleeping lawyers, drunk lawyers, lawyers who didn't bother even to investigate or didn't have the funds to do it. More than 100 death- row inmates have been exonerated; some, though, who have spent years on death row under the most horrible conditions for a crime they never committed.
I think Senator Durbin mentioned a situation out in Illinois where a Republican governor had to, and did -- courageously I felt -- extend clemency to a whole lot of people who had been on death row.
Some say -- and I think you have even said this -- when they're exonerated, it shows the system works.
Well, let me tell you about the system in that case. One of the people is Anthony Porter: spent 16 years on death row. He was within two days of being executed.
The system didn't work on behalf of the government doing. A bunch of kids from Northwestern University, who had taken as an elective course a course on journalism, and the teacher said, Why don't you look into a couple of these? and these kids went out and did it.
The kids dug up the information that was there available to the police, available to the prosecutor, available to the defense. Nobody dug up. They found it, and within two days of his execution, the state's attorney dropped the case. They got somebody else to confess.
You said two years ago -- and I remember being at that hearing -- you said that, on the startling number of innocent men sentenced to death who are later exonerated, you responded somehow showed the system worked in exonerating them.
I worry about that statement, I really do.
It bothered me. You know, I voted for you for the circuit court, and there was a split vote in our party. But that one really bothered me, that statement. I found it almost mechanical, and I'll tell you why.
When we have people say innocent people who have been freed after years on death row shows the system was working, it doesn't. I think Sandra Day O'Connor said two years ago, If statistics are any indication, the system may well be allowing some innocent defendants to be executed. If that's the case, the system is not working. In Herrera, we've discussed that. The court grappled with it and didn't ultimately decide: Does the Constitution permit the execution of a person who is innocent?
And as principal deputy solicitor general, you co-authored the amicus brief for the U.S. in the Herrera case. You say the claim of actual innocence does not state a ground for federal habeas.
Actually, you said, quote, Does the Constitution require the prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process? In our view, the Constitution does not guarantee the prisoner such a right.
So let me ask you this, without going to the facts of Herrera: Is it your current personal view the death row inmate who can prove his innocence has no constitutional right to do so before a court before he's executed?
ROBERTS: Well, Senator, this is the basis of the disagreement in Herrera. Herrera is not a case about actual innocence. It's a question of whether you are entitled to bring a new claim.
LEAHY: Well, listen to my question. To the death row inmate who can prove he is innocent, do they have no constitutional right to do so in a court of law before they are executed?
ROBERTS: Well, prove his innocence, the issue arises before you get to the question of proof. And the question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder?
And does that mean you start the trial all over again simply on the basis of that last-minute claim or do you require more of a showing at that stage? That's what Herrera was about.
Now I don't think, of course, that anybody who is innocent should suffer as a result of a false conviction. If they have been falsely convicted and they are innocent, they shouldn't be in prison, let alone executed. But the issue...
LEAHY: Does the Constitution permit the execution of an innocent person?
ROBERTS: I would think not. But the question is never: Do you allow the execution of an innocent person? The question is: Do you allow particular claimants to raise different claims, fourth or fifth or sixth time to say at the last minute that somebody who just died was actually the person who committed the murder and let's have a new trial? Or do you take into account the proceedings that have already gone on?
LEAHY: I'm looking for broad principles here. You said -- let me read it again -- does the Constitution require that a prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process?
In our view, the Constitution does not guarantee the prisoner such a right.
Is that your view today?
ROBERTS: Well, that's what the court held in Herrera?
LEAHY: I know. Is that your view today?
ROBERTS: Well, I'm not in the position to comment on the correctness or incorrectness of particular court decisions. That's the court's precedent in Herrera. It agreed with the administration position, which was not that innocent people should be subject to imprisonment or execution.
LEAHY: That's a position you took. The Supreme Court's going to revisit this issue in House v. Bell. Because you stated a position on that, does that require you to recuse yourself in the House v. Bell?
ROBERTS: No, because the position was stated in a brief filed on behalf of the administration. And we've talked yesterday about the established principle that lawyers do not subscribe as a personal matter to the views they present on behalf of clients.
LEAHY: Well, in this case, the client's the United States. I mean, you're stating the position, sort of the -- what do they call it? The 10th justice?
ROBERTS: Well, I was the deputy solicitor general on the brief. I didn't argue the case. The solicitor general was the counsel of record in the case. But the position presented in the brief as an advocate is not necessarily the position of every lawyer on the brief.
LEAHY: I think you were more than just a lawyer on the brief. You were one of the most sought after jobs, picked because of your position. I was very impressed when I talked with you about your use of Latin, for example, and French.
And I'm always impressed with somebody with that facility. There is a Latin phrase. And this is not a (inaudible). I'll translate it: (SPEAKING IN LATIN). He who acts through another acts for himself. And that's not the case in Herrera?
ROBERTS: He who acts for another acts for himself? Well, it's the client acting through the lawyer and it's the client who is acting for themselves...
LEAHY: You are the client in this case when you are -- the solicitor general is the client, in effect.
ROBERTS: No, Senator, I disagree with that. The solicitor general represents the interest of the United States and those positions represent that client's position. And in the Herrera case, again, it was the solicitor general who was responsible for the position that was advanced. I'm not suggesting in any way that I disagree with it or agree with it. I'm just saying that it is a basic principle in our system that lawyers represent clients and you do not ascribe the position of the client to the lawyer.
It's a position that goes back to John Adams and the Revolution.
LEAHY: Let me ask you this, then. Let me ask you something that couldn't be ascribed to a justice of the Supreme Court. It's something that both the chairman and I have talked a lot about.
And that goes into some of the mechanics. And if you will let me take a moment, you understand these but, for the audience, the so- called rule of four: It takes only four justices to grant cert, but it takes five to grant a stay of execution.
Usually the courtesy is that, if you get four, a fifth one will sign on. That has not always been followed of late. Of course, we are dealing with the life or death issue. Senator Specter called it bizarre and unacceptable and sent in legislation to change it.
How do you feel if you were chief, if you had four other justices now voting for a stay of execution? Do you feel, as chief, you should do the courtesy of the rule of five and kick in the fifth one?
ROBERTS: It's an issue that I'm familiar with. I do know it arose. And I thought the common practice -- the current practice -- was that, if there are four votes to grant cert, that the court would grant the stay even though that does require the fifth vote, so that you don't have a situation..
LEAHY: It usually occurred -- yes, but that's because one more says, OK we've got four. We will put somebody else's name on here.
LEAHY: But that hasn't been followed all the time recently. It usually was. And that's why both Senator Specter and I have raised concern.
Do you feel the earlier practice of once you have four...
ROBERTS: I think that practice makes a lot of sense. I don't want to commit to pursue a particular practice in an area that I'll obviously have to look at in the future. But it obviously makes great sense that, if you have four to grant and that's the rule, that you will consider an issue if there are four to grant; you don't want to moot the case by not staying the sentence.
LEAHY: Right. And I appreciate that, because I know we find a lot of cases where they are perfectly willing to grant cert on monetary damages, but here it's kind of get it right. It doesn't make much difference with an appeal after the execution. You wrote a memo regarding -- in fact, in '83, to the White House lawyer -- you wrote a memo regarding proposals by then Chief Justice Warren Burger to reduce the Supreme Court's case load.
In that memo you volunteered the following: If the justices truly think they're overlooked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the good faith standard and advocating the role of fourth or fifth guesser in death-penalty cases would eliminate about a half dozen argued cases from the court's docket each term.
Are you saying that judges are just too busy to pay attention to death cases?
ROBERTS: No, Senator.
LEAHY: What are you saying. How do you feel today? That was '83. How do you feel now, 22 years later?
ROBERTS: Well, in '83, of course, they were hearing about 150 case as year. They hear about half that now. Again, I don't want to prejudge questions or even be presumptuous to look down the road, but it seems to me that there's the capability there to hear more cases today, not fewer.
And I'm sure there are reasons for the reduction in the case load that I'm not familiar with that I might become more familiar with, but they handled twice as many cases 20 years ago than they do today, and I think the capability to address more issues is there in the court.
LEAHY: My time is up, but I think you'll find both the chairman and ranking member of this committee believe they could handle more.
Thank you, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Leahy.
HATCH: I think you have acquitted yourself as well as anybody I've seen in the 10 nominations for the Supreme Court that I have been part of. And I'm going to correct the record a little bit. It isn't the Ginsburg rule, although that's been referred to by almost all of us, including me.
It's the Thurgood Marshall rule, the Rehnquist rule, the Kennedy/Souter/Thomas/Ginsburg/Breyer rule -- just to name a few, because in every case, as I stated in my original remarks, the individual nominee has to draw a line as to what they can discuss and what they can't.
And you've drawn, I think, a fair line here throughout these proceedings, and I commend you for it. And there's just no excuse for being pushed to try and answer questions about cases that are likely to come before the court or presently are before the court. And I think the American people are starting to really fully realize that now as a result of this hearing.
Now, Judge Roberts, as you know, the war on terror is a unique challenge in American history. As a consequence, many novel issues regarding presidential authority to prosecute the war on terror will doubtless come before the Supreme Court.
I think we ought to recognize the need to be careful in our questioning so you're not placed in the position of precommitting yourself to any particular viewpoints on executive power that would compromise your ability to render a fair judgment as cases come before the court. But let me as ask a general question on terrorism.
It is a question that many in Congress and the administration and in the public have had to struggle with, particularly in the aftermath of the events of September 11th, 2001.
The question is this: What is the best way for our society to protect ourselves against terrorists not affiliated with a nation state, wear no uniforms, and really secrete themselves in ways that have never been done before?
On the one hand, there are very specific international rules embodied in the Geneva Conventions that specify how enemies in traditional warfare are to be treated.
On the other hand we have the traditional criminal law protections contained in Title XVIII of the United States Code that define the rights accorded to criminal such as the famous Miranda warning and the right to obtain counsel. What everyone is struggling with is how do we apply these two traditional methods against nontraditional enemies who clearly are nontraditional? Let us make no mistake, their goal is to destroy our society and way of life. And they will use weapons of mass destruction if they can. I don't think anybody doe doubts that.
Let me just ask you this general question: Will you give us assurance that you will keep an open mind as the administration and Congress adopt and implement new policies and legal procedures that govern the apprehension, interrogation and detention of suspected terrorists?
ROBERTS: Yes, Senator, I will. I certainly am not qualified to comment on the best approaches in the war on terror or the most effective approaches. That is the responsibility, obviously, of the other branches.
The responsibility of the judicial branch is to decide particular cases that are presented to them in this area according to the rule of law. And that is what I have tried to do and that is what I will continue to do. Either on the court of appeals or on other courts.
HATCH: Well, thank you.
Now, also yesterday, the Democrat staff of the committee released a press release stating that you failed to distance yourself from what it called your earlier cramped positions on Title 9 and women's rights.
After listening to you yesterday, I did not find your earlier positions cramped at all. In fact, as you explained here to the committee, many of the documents that questioners relied upon reflected the positions of the Reagan administration for which you worked. Now, what assurance can you give the committee that you will fairly interpret the civil rights laws including critical statutes such as Title IX, fully and fairly, consistent with the purposes Congress intended in passing these laws?
ROBERTS: Well, I can give the commitment that I appreciate that my role as a judge is different than my role as a staff lawyer for administration.
As a judge, I have no agenda. I have a guide in the Constitution and the laws and the precedents of the court and those are what I would apply with an open mind, after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench. That's the way I would approach cases in that area as in any other area.
The approach of someone who's obviously a staff lawyer in an administration is very different. The approach of someone who's an advocate for a client before the court is obviously very different.
Those are positions that I have held in the past. I am now a judge, and I have had the experience, and I think my record will establish that that is how I approach cases across the spectrum of issues that are raised before the courts.
HATCH: And reasonable people can differ on some of these issues.
ROBERTS: Oh, certainly.
HATCH: Now, in the Grove City case, you won that case, didn't you?
ROBERTS: The administration's position prevailed.
HATCH: That's right. In other words, the position that you had advocated prevailed.
Then we didn't like it up here on Capitol Hill. So we passed the Civil Rights Restoration Act. And we changed it, right?
HATCH: Which, of course, is always the prerogative of Congress when you're dealing with a question of statutory interpretation. And that's part of a regular interchange between the court and the Congress. Sometimes if the court gets something wrong, Congress can fix it. Even if the court gets it right but Congress thinks the approach ought to be changed, Congress is free to legislate for a different result.
So I find it strange to criticize you because you won a case in the Supreme Court and have not advocated against women's rights in any way, shape or form, ever in your career as far as I can understand. Is that correct?
ROBERTS: That's correct, Senator.
HATCH: And, in fact, you're a strong supporter of women's rights and gender equality.
ROBERTS: Yes, Senator.
Now let me just ask you a question that relates to some of the answers you gave yesterday regarding the voting rights.
Even as the hearing was unfolding, again, Democratic staffers of the committee issued a press release that said that you had missed an opportunity to distance yourself from what the release called your earlier narrow positions on the reach of the Voting Rights Act.
Now, that is not what I heard you say nor do I believe that is what the public heard. The Democratic press release said that you had resorted to vague generalities about the importance of voting.
Now, as I heard you, I heard you explain the vigorous debate that took place regarding reauthorization of the Voting Rights Act in the 1980s.
And, by the way, I was part of that debate. I felt very deeply that the effects test should apply to Section 5, to those states that had a history of discrimination. But I also felt very deeply at the time that the intent test should apply to all the other states in Section 2. Which was the position, I think, the administration took that you had to do some research on within the administration.
Now, I lost in committee. Now, I was arguing that all of the states that did not have a history of discrimination should not be burdened by the effects test, which basically says, If the effects of what happens looks like discrimination, that therefore is, even if there was never an intent to commit discrimination.
Now, I lost. But I feel that the Voting Rights Act is the most important civil rights bill in history, and I felt it then. And I voted for the amended bill with the effects test language in Section 2 and have been a strong supporter ever since.
Would that be fair to describe your feelings about that?
ROBERTS: Well, yes, Senator.
The debate, as you remember, was over whether or not Section 2 should be extended without change, as interpreted by the Supreme Court in Mobile against Bolden, or whether it should be changed to incorporate the effects test and later the totality of the circumstances test.
The administration position at the time was to extend the Voting Rights Act for the longest period in history without change, and that was the position that I was working on at the time.
And Congress eventually decided -- Senator Dole and some other senators, developed a compromise position on Section 2, and that was enacted with the support of the administration.
And the one thing that was clear to me throughout those extended debates was that the people on both sides of the issue in good faith supported extension of the Voting Rights Act and recognized the importance of the Voting Rights Act in securing civil liberties for all Americans. It wasn't a dispute about the goal. It wasn't a dispute about the objective. It wasn't a dispute about the importance. It was a dispute about whether to extend the act without change or whether to make changes in the act. And that was what the debate was about.
HATCH: Well, and the difference was that the administration vehemently wanted to pass the Voting Rights Act as it existed that was somewhat difficult to pass originally when it was originally passed. And that was a decent, honorable position.
But when it was changed, through our democratic process up here on Capitol Hill, I felt for the worse at the time, but I feel like I was wrong at the time. Then we voted for it.
In fact, it was my friend Senator Kennedy who insisted that I come down to the White House as part of the bill-signing team, because he knew how deeply I felt about this.
But there was a legitimate reason to take the administration's position. And once the compromise was reached with Senators Dole and Kennedy, the administration accepted that as well and so did you.
And that's the point I just, kind of, wanted to make because I think it's important to realize that we can sometimes get to a point where we misconstrue the intentions of decent, honorable people. And I count myself one of those.
And even though I lost in committee -- I voted for this bill because to me it is the most important civil rights bill in history, albeit others are very important as well.
Now, I just want to tell you that, like I say, I've been here for 29 years and I've been through 10 of these -- I think 10, if I recall correctly. And in all of that time, we've seen some really sterling, brilliant, wonderful people before this committee. But I've never seen anybody who has done a better job of explaining himself than you have.
If people can't vote for you, then I doubt that they can vote for any Republican nominee.
You have made a very, very strong presentation here. And I hope the American people realize that, and I hope my colleagues on both sides of the aisle realize that. And I look forward to seeing you as chief justice of the United States Supreme Court. And will do everything in my power to see that you are confirmed.
With that, I have eight and a half minutes left. I reserve the balance of my time.
SPECTER: Thank you very much, Senator Hatch. Senator Kennedy?
KENNEDY: Thank you very much, Mr. Chairman.
ROBERTS: Good morning, Senator.
KENNEDY: I would like to, if we could, come back in the time that I have now, and perhaps in a follow-up round, to the issue on civil rights. Because as been mentioned here by others, it is the overarching issue, I think, for our country and our society.
I think our founders didn't get it right at the time of the drafting of the Constitution. We've had a Civil War. This country went through an extraordinary period of time, led by Dr. King in the 1950s, and then we had that extraordinary moment of Dr. King here at the Lincoln Memorial, which I think touched the conscience of the nation, people from all over the country.
We were stuck for months on the 1964 act, as you probably remember, and then with the action that was taken by Everett Dirksen that opened up the possibilities for reaching a compromise on the public accommodation provisions.
We spent eight hours, a number of us in the Judiciary Committee, with Nick Katzenbach over in the Capitol office, and had an agreement at that time there would be no amendments on the public accommodations; we could amend other provisions when the legislation went forward. And was monumental in its importance and consequence.
Then we came back and realized after that that the most important legislation that we could probably address -- we still had a ways to go on housing and employment; although employment was included in the '64 act, but not to a great extent -- was in the Voting Rights Act.
KENNEDY: And we had extensive hearings. And during the course of those hearings by this committee -- other committees, as well -- we listened to Attorney General Katzenbach, who had been working with Senator Dirksen -- really the architect, leadership of President Johnson, certainly, but the architect of the '64 act.
And he testified before this committee about the Section 2 provisions. And in his testimony on the Section 2 provisions, he said, Section 2 applies to any voting practice or procedure if its purpose or effect was to deny or abridge the right to vote on account of race or color. So for many of us, including the civil rights community, believed that the effects test was operative at that time.
That bill passed the House by 333-85, 77-19.
The next thing that happened is we had the series of tests, as you recall. And the overarching test case was the Zimmer case, but we had a number of cases -- Zimmer v. McKeithen. And it was the 5th Circuit, en banc, that dealt with the whole range -- for the most part -- range of states where many of these challenges had existed, although I certainly recognize we have a long ways to go in my own state of Massachusetts.
But this court en banc effectively in the Zimmer case; it was the lead case on the effects test. And that was followed by a series of cases -- U.S. v. Post (ph), Kendrick v. Walder -- for a long period of time.
You're aware of this history?
ROBERTS: I'm remembering it from when we addressed this debate of 23 years ago.
KENNEDY: But it sounds familiar?
Then we went up to 1980 and we had the Mobile case which effectively put the intent test in.
KENNEDY: And after the Mobile case, as you well remember, the Justice Department dropped a whole series of cases that had been prepared under the effects test because they did not believe that they could make the case on the intent test: whole series.
And this sent a very powerful message to individuals across the South, other parts of the country, that the additional kind of a burden to demonstrate intention was going to be so substantial, it was going to make, in terms of resources, and to try and determine the intent of individuals that lived many years ago, to virtually be prohibitive.
That happened. The Justice Department dropped scores of cases.
And it was one of the important reasons that the civil rights community and many of us believed that it was so important at the time of the extension of the voting rights case in 1982 that we put the effects test in.
You believed, as I remember, and as we have gone over, that it should have been a restatement of the existing law, as you correctly stated yesterday, which was the intent test. Am I correct so far?
ROBERTS: That was the administration's position.
KENNEDY: The administration's position. I remember French Smith testifying before this committee to that effect. I remember at that particular time.
Every civil rights group in 1982 included the effects test. This is the NAACP Legal Defense, National Urban League, Lawyers Committee on Civil Rights Under Law, Conference on Civil Rights, Mexican- American Legal National Council of Raza, League of United Latin American Voters, League of Women Voters -- the list goes on -- Congressional Black Caucus.
KENNEDY: And the House went ahead and passed the legislation with the effects test by 389-24 -- 389-24.
And in that legislation, the legislation included language which reflected the concern of the administration about whether the intent test was going to lead to either proportional representation or to quotas.
That language was included in the House legislation that passed. And it included the fact that members of a minority group have not been elected in numbers equal to the group's proportion of the population, should not, and in and of itself a constitutional violation of this section.
This addressed, for all intents and purposes, the concerns that the administration, I thought, and most of us -- the civil rights community -- thought that they had with regard to the issue of proportional representation.
You roughly remember that or aware without...
ROBERTS: I certainly remember the provision in the House bill at the time.
KENNEDY: So we also, now, included that language in the Senate bill. Now, the House bill passed. The Senate bill had 61 co-sponsors prior to the time that we adopted the Dole amendment.
That legislation was on its way. That legislation was good as done, quite frankly.
The Dole amendment was effectively a restatement of what was in the House bill, and it had been included.
But the administration, after that, said: Well, if they're going to include that as the Dole amendment, we will let up in our opposition and we'll eventually support it.
Now, during the time after the passage of the House bill and prior to the passage of the Senate bill, you -- even though the House had passed it -- you still strongly maintained the administration's position, did you not?
ROBERTS: Well, I was still working for the administration, Senator.
ROBERTS: President Reagan's position was to extend the act without change, as you mentioned. That was the attorney general's position. I was a special assistant to the attorney general and I was doing my best to implement their views and support their views.
KENNEDY: In your memoranda that was to the attorney general, Brad Reynolds, now -- the administration after the House bill, I think the history will show it, thought that the administration should alter its position.
Your memoranda said, Brad Reynolds has expressed some reservation about circulating any written statement on the question to the Hill. My own view is that something must be done.
Maybe that's a staffer, but it's separating yourself from Brad Reynolds, who was the leader on this issue at the time.
ROBERTS: Well, with respect, Senator, my understanding -- and I've looked at that memorandum recently -- is that the issue was whether or not to circulate something, explaining the administration position.
ROBERTS: And I didn't think Mr. Reynold's view was: you shouldn't do that because you didn't support the position; it was a question whether or not to circulate something at that time.
ROBERTS: And my view was whether or not I thought if the administration was advocating its position, it ought to get the position out.
KENNEDY: Well, I think that's good. You're a good advocate and a strong believer in this.
The reason in this memoranda that you circled -- and I have it right here -- make what parts of it available to the record -- in this, in the last paragraph, you said, On the issue of the effects standard nationwide, on the strength of the record, will be constitutionally suspect but also contrary to the most fundamental tenets of the legislative process, which the laws of this country are based.
Constitutionally suspect -- effects test.
The reason that I bring this up is to find out what you believed in then and what you believe today, because you, having raised in your memoranda that this is provision -- the effects test is constitutionally suspect -- is that still your position?
Because if it is your position on an issue as important as the Voting Rights Act that resulted in the elections of hundreds and thousands of local leaders of color in all parts of the country, representatives in the House of Representatives, and moved the whole democratic process forward, then I think the American people are entitled to know.
So, specifically, do you believe that the effects test in the Voting Rights Act, which is currently the law, is constitutional?
ROBERTS: Well, Senator, I don't know what the analysis -- you read a clause of a sentence -- and I would have to look at the whole memorandum to see exactly what the suggestion or the issue was in that case.
SPECTER: Senator Kennedy, would you make the memo available to him, please?
KENNEDY: Sure. Yes.
What I'm interested in doing is asking now whether you believe that the effects test is constitutionally suspect. I'm interested in today, quite frankly, more than what we had written before -- whether you believe that it is suspect today or whether you find that it is settled law.
It's fine if you want to, obviously, refer to it, but I'm interested in what's your view today, whether you...
ROBERTS: Well, we're referring to -- what I'm referring to in this paragraph is the court's determination -- if I'm looking at this correctly -- under Section 5, its determination -- the language you read notes the Supreme Court's conclusion under Section 5, which is the preclearance provision that applies to jurisdictions with a history of discrimination.
And what the court had said in that case was that requirement of preclearance was acceptable given the record that the Congress had established in the Voting Rights Act of 1965 of the practices in those jurisdictions.
And the concern was that if you extend the effects test nationwide, the record, which had been established only with respect to particular jurisdictions in the South, wouldn't apply nationwide, and that would be the basis for a constitutional challenge.
The application of the test under Section 2, which is -- as you know, we use the shorthand effects test. It's actually the totality of the circumstances test, and it lays forth a number of considerations. And I think there is some argument about how closely it tracks effects test under Section 5 or if it's a different totality of the circumstances approach.
ROBERTS: I'm not aware of any case that has questioned the constitutionality of the application of the totality of the circumstances case under Section 2.
And if an issue on that were to be presented to me on the Supreme Court, which it may be, given the pending extension of the Voting Rights Act, I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a position.
And as a judge, I would come to the issue with an open mind and I would fully and fairly consider any arguments that might be presented. I don't know if an argument is going to be presented about the application of the totality of the circumstances test nationwide.
Again, I'm not aware of any challenges that have been presented to it since it was enacted. I don't know if any will be if or when the Voting Rights Act is extended again, but if it is I would confront that as a judge and not as a staff attorney for an administration with a particular position on that issue.
KENNEDY: Well, Judge, there hasn't been, at least that I know, in the legal circles, suspicion about the unconstitutionality of the effects test as it applies to Section 5. That's as grounded as it can be.
I'm asking the specific issue that was the -- really issue attention with the extension and really the most important part historically about the Voting Rights Act, whether you think that that provision is constitutionally suspect today.
KENNEDY: This is the backbone of effective voting in our country and our society.
And I think the American people are entitled to know whether you believe or suspect that that particular provision which, as passed just overwhelmingly by the House and the Senate, signed by President Reagan and has resulted in this extraordinary march to progress, is constitutionally sound?
That's what I'm asking.
ROBERTS: I have no basis. I'm not aware of any constitutional challenge that has been brought to Section 2 since it was enacted. And I have no basis for viewing it as constitutionally suspect and I don't.
If an issue were to arise before the Supreme Court or before the Court of Appeals, if I head back there, I would consider that issue with an open mind in light of the arguments.
I have got no basis for viewing it as constitutionally suspect today, and I'm not aware that it's been challenged in that respect since it was enacted. It may have been, but as I said, I'm not aware of it.
KENNEDY: I gather -- you've had an extensive answer -- that from that answer I did hear that it is not constitutionally suspect as far as your view today?
Could I move on to the issue of affirmative action, please?
KENNEDY: In the Grutter v. Bollinger case, the Supreme Court decided, very close, 5-4 decision, Sandra Day O'Connor, the deciding individual justice, the Supreme Court upheld the university practices that considered race as one factor in its admission decisions.
No one is talking today about quotas. We're talking about affirmative action as defined in this Grutter decision.
KENNEDY: The court found that there was a constitutional affirmative action program aimed at achieving a racially diverse student body.
In this decision, the court expressly gave great weight to the representation by military leaders -- military leaders -- that said a highly qualified, racially diverse officer corps is essential to the military's ability to fulfill its principal mission and to provide national security.
What weight would you give to that kind of a comment or statement or testimony by the military in considering any issue dealing with affirmative action?
ROBERTS: Well, the weight it was given was to help satisfy the test, as the court, as you know in Grutter, applied strict scrutiny because it was dealing with considerations on the basis of race.
And that required the showing of a compelling governmental interest to support that legislative action. And the testimony of the military officers, as the court explained, helped substantiate the compelling nature of the interest in having a diverse student body.
And that was the weight that the court gave it. There was, of course, the other case. There were two Michigan cases: the law school case and the university case, the Grats (ph) case where the court did say that it looked too much like a quota in that case because it was given determinative consideration as opposed to being one of a variety of factors that is considered.
And the two cases together kind of show where the court is coming out, at least in the area of higher education. The court permits consideration of race or ethnic background, so long as it's not sort of a make-or-break test.
KENNEDY: Do you agree then with Justice O'Connor, writing for the majority that gave great weight to the real-world impact of affirmative policies in universities?
KENNEDY: And the reason -- I've got 35 seconds left -- you might say: Well, this may eventually come on up before the court. But the fact is we know how every other justice has voted because they have all voted. And the American people would like to know where you stand on this very important public policy issue, particularly since Sandra Day O'Connor wrote such a compelling decision that was, I think, in the cause of fairness and justice.
ROBERTS: Well, Senator, I think I can answer the specific questions you've asked because, as you phrased the question: Do you agree with her that it's important to look at the real world significance and impact?
And I can certainly say that I do think that that is the appropriate approach without commenting on the outcome or the judgment in a particular case. But you do need to look at the real-world impact in this area and I think in other areas as well.
KENNEDY: Thank you very much. My time is up. Thank you.
SPECTER: Thank you, Senator Kennedy.
SPECTER: We will resume the hearings. We're just a few minutes tardy because we just finished a vote.
And we now turn to Senator Grassley for his 20-minute second round.
GRASSLEY: Thank you.
Once again, I compliment you on how you've handled yourself at these hearings. You've done very well. It's going to be very hard for people to cast a no vote against you.
Judge Roberts, do you believe that every citizen who meets the qualifications set forth in the Constitution and our laws should have the opportunity to cast a free and unfettered vote?
And as a follow-up, will you, on the court, fairly apply the Voting Rights Act?
ROBERTS: I certainly agree that every citizen who meets the qualifications not only has a right to vote but should vote. I think it's a problem that we don't have more people voting. And any issues that come before me under the Voting Rights Act, I will confront those with an open mind and decide them after full and fair consideration of the arguments, in light of the precedents of the court and in light of the recognition of the critical role that the right to vote plays as preservative of all other rights.
GRASSLEY: Thank you.
The Supreme Court has repeatedly stated that the legislative history of a particular bill is critical to interpretation of the statute.
Of course, Justice Scalia is of the opinion that most expressions of legislative history, like committee reports or statements by the senators on the floor or the House, are not entitled a great weight because they are unreliable indicators of legislative intent.
Presumably, Judge Scalia believes that if the members don't actually write a report or don't actually vote on a report, then there's no need to defer to this expression of congressional intent.
Now, obviously, I have great regard for Justice Scalia, his intellect, legal reasoning. But, of course, as I told you in our office, I don't really agree with his position.
So I'd like to ask you five questions. They're relevantly short so I'll ask them all at once.
What is your opinion? How important is legislative history to you? How have you utilized it? And will it be any different from your use on the circuit court versus what you might do on the Supreme Court?
And did you refer to any committee reports of congressional debate in any of your 39 briefs before the Supreme Court?
And to what extent do you -- and don't start out with this last one -- to what extent do you share Justice Scalia's view on unreliability of legislative history although that's important.
And I can repeat those if you forget what I have asked.
ROBERTS: Sure. If I leave one out, you can remind me at the end.
But, obviously, when you're dealing with interpreting a statute, the most important part is the text. You begin with the text, and as the Supreme Court has said in many cases, perhaps most cases, that's also where you end -- the answer is clear.
I have, though, as a judge, relied on legislative history to help clarify ambiguity in the text. The Supreme Court stated once, and I think it's a very important principle, you look to legislative history to clarify ambiguity. You don't look to legislative history to create ambiguity.
In other words, if the text is clear, that is what you follow and that's binding. And you don't look beyond it to say, well, if you look here, though, maybe this clear word should be interpreted a different way.
On the other hand, we confront situations where the text is not clear and the legislative history can be helpful in resolving that ambiguity. It requires a certain sensitivity to what you're dealing with. All legislative history is not created equal.
There's a difference between the weight that you give a conference report and the weight you give a statement of one legislator on the floor. You have to, I think, have some degree of sensitivity in understanding exactly what you're looking at; appreciate where those comments were made in the legislative process; be careful to make sure that they're dealing with the same language that was eventually adopted.
You have to, for example, be very skeptical about statements by opponents of the bill. It's quite a common thing saying, well, this bill would do this and this and this, and so we shouldn't pass it. That's not always the best guide as to what the sponsors really intended in the language.
So it does require a certain sensitivity to what you're dealing with, but I have quoted and looked to legislative history in the past to help determine the meaning of ambiguous terms, and I would expect to follow that same approach on the Supreme Court.
I don't think there's a difference there in terms of what things you think it is appropriate to look to, help you do your job, which is to figure out what Congress intended.
GRASSLEY: And you didn't address Judge Scalia but let me put it another way so I don't put you in a bad position. You would see, at least in some instances, where it needs to be used -- reliability in legislative history.
ROBERTS: In some instances, I think if you look at it carefully, you can make an assessment that this is a reliable guide.
And one area I didn't touch on: In my arguments, I've certainly relied on legislative history in presenting arguments because, of course, in the Supreme Court you need five votes and not just the one, so you tend to cast your net as widely as possible.
And at argument sometimes, Justice Scalia would not be as receptive to an argument based on legislative history as some of the others but, again, the name of the game is counting to five when you're arguing up there, so I've certainly made arguments based on legislative history.
GRASSLEY: In regard to how you view and use legislative history, I'd like to discuss your opinion in Totten, Bombardier Corporation case, interpreting the False Claims Act.
The issue, on appeal, was whether interpreting Bombardier had met the presentment requirements of the False Claims Act. To violate the statute according to Section 37.29.A(1), a company must have presented its false claim to an officer or employee of the federal government.
Importantly, Section 37.29.C explicitly provides that the term
claim includes demands for payments submitted to government contractors whether or not they are resubmitted to the federal government.
In your opinion, you wrote that those facts of that case did not consist of a false claim under the False Claims Act because there can only be a false claim if it's literally presented to somebody that's a federal government employee, I assume.
It seems to me that to reach this result, you inserted a resubmission requirement into the law in place where it doesn't in fact appear, Section 37.29.A(1), and in fact gave short shrift to the legislative history which spelled out what Congress intended when it amended the act in '86.
GRASSLEY: The legislative history of the act in the Senate committee report -- and I didn't refer to my authorship of the legislation, but anyway, in our Senate committee report explaining that liability on the False Claims Act attaches to a submission of, and I quote, a false claim to the recipient of a grant from the United States or to a state under a program financed in part by the United States, end of quote.
The legislative history also states that Congress sought to ensure that, quote, A false claim was actionable, although the claim or false statements were made to a party other than the government if the payment thereon would ultimately result in a loss to the United States, end quote.
So, my question is whether, on reflection, that is a fair way to deal with the express wishes of Congress and whether it is possible that you misunderstood the statue when you decided the Totten case. Why did you reject legislative history if you referred to it? And maybe you didn't refer to it. But why did you reject legislative history regarding the resubmission requirement in the False Claims Act when you wrote the opinion in Totten?
ROBERTS: Well, Senator, the answer to your question is, it's certainly possible that the majority in that case didn't get it right. And the dissent, that was a very strong dissent, did get it right. I think the majority got it right. There we focused on particular language.
The issue in the case involved, as you know, a subcontractor claim. You have the United States giving the money to, in this case it was Amtrak and then Amtrak using that money to hire a subcontractor -- I think it was Bombardier -- to do a particular part of the job.
Everybody agreed that, under the precedents that are applied, Amtrak is not the government. It can't be considered part of the government. And the statue, as you noted, required -- it was triggered by the presentment of a false claim to an officer or employee of the United States.
And the majority's reasoning was that the false claim was one made by Bombardier to Amtrak and the claim was submitted to Amtrak.
ROBERTS: And since Amtrak was not the government, what Judge Rogers and I concluded was that that wasn't presentment of a false claim to an officer or employee of the United States.
There was an extensive discussion between the majority and the dissent. The view that you've articulated was certainly presented in a compelling way by Judge Garland, my colleague on the court of appeals, and we spent a great deal of time on the case. And I think it's reflected in the opinions. And that view was laid out.
Judge Rogers and I thought that the statutory language that said the claim had to be presented to an officer or employee presented too high a hurdle for us to get over in looking at the legislative history.
But I'm happy to concede that it was among the more difficult cases I've had over the past two years. Any time Judge Garland disagrees, you know you're in a difficult area. And the function of his dissent, to make us focus on what we were deciding and to make sure that we felt we were doing the right thing, I think was well- served.
But Judge Garland disagreed, and so it's obviously, to me, a case on which reasonable judges can disagree. And I just have to rest on the analysis in the majority opinion.
GRASSLEY: Let me tell you something you might not be aware of, and that is that the Bush administration has filed an amicus brief in the 11th Circuit, arguing that you had misread the False Claims Act in the Totten case.
And in Atkins v. McInteer, the administration has argued that there's no presentment requirement in Section 37.30.A(2) of the False Claims Act.
In fact, quote, The Totten majority misconstrued the language and purpose of the False Claims Act in concluding that the act does not encompass (inaudible) claims, records, statements, submitted to recipients of federal funds, absent resubmission to a United States officer or an employee.
And I assume if I ask you if you have an opinion on that, you can't answer it.
ROBERTS: Well, not on that one. I do know the Bush administration filed an amicus brief in our case as well. I guess this would be one of those cases I would cite in response to the question of whether I'm capable of ruling against the administration. We did in that case.
Again, the arguments I think were well-presented on both sides. Judge Rogers and I gave it our best shot. And the opinion will stand or fall on its own.
GRASSLEY: Well, I hope, sitting in the marble palace, you'll remember that I have great pride in the success of the False Claims Act...
... $8 billion coming back to the Federal Treasury.
Judge Roberts, you filed an amicus brief in the case of United States v. Halper, a case which raised the question of whether a civil False Claims Act case could implicate double jeopardy clause.
The Supreme Court agreed with your arguments and held that double jeopardy job protects a convicted criminal defendant from a second punishment in the form of a civil sanction that, quote, may not fairly be characterized as remedial, end of quote, because it is, quote, overwhelmingly disproportionate the damage the defendant has caused, end of quote.
As you know, the Halper decision was later overturned by Hudson. Judge Roberts, do you consider the False Claims Act treble damages provisions to be excessive, in the words of the court, overwhelmingly disproportionate, and also in the words of the court, not fairly characterized as remedial ?
ROBERTS: Well, you've touched on a case that is very close to my heart, Senator. It was the first case I argued before the Supreme Court. I was appointed by the court to argue it on behalf of Mr. Halper.
It was an unusual case. It arose -- the conspiracy at issue was a slight inflation of I believe it was Medicare or Medicaid claims that this individual was submitting. I think he added $1 or $2 to every claim.
ROBERTS: And yet under the law at that time, there was a minimum penalty for each false claim.
These numbers won't be right, but he had something like 300 false claims for a grand total of maybe $700. But under the statute, he was assessed a civil penalty of several million dollars, because each of the false claims was a separate penalty.
And the issue was, after having been sentenced criminally, would a civil penalty of several -- and again, I'm not sure of the numbers -- but several million dollars for $700 or so of fraud, was that remedial and civil or was it punishment?
And the court agreed with my submission at the time that that was punishment. It led to some difficulty, I think, in administering civil and criminal laws down the line.
And as you said, eight years later, they reversed course and overruled the Halper precedent.
But the provision that you specifically mentioned, treble damages, that's a little different. There, it's a much closer connection. Obviously, just three times whatever the damages are.
In the Halper case, it was a much more disproportionate impact. And that's what led the court, I think, to conclude that, that looks like punishment.
Treble damages is something that's familiar in the law in a number of areas and is not regarded as impermissible punishment in this context.
GRASSLEY: Are you familiar with the legal arguments that some opponents of the False Claims Act have made to the effect that its Qui Tam provisions are unconstitutional under Articles 2 and 3, and if so, do you have an opinion on these arguments?
And before you answer, I'd like to remind you that at least since the 1st Congress was involved in this, I'd like to assume that the framers of the Constitution, because the first Congress enacted several Qui Tam statutes that if that be any deference to you in giving -- whether this factor would make any difference to you when assessing the constitutionality of Qui Tam statutes today.
ROBERTS: I think, if my memory serves, that the Article 3 objections -- and just so we're on the same page, the Qui Tam statutes, of course, are when a private individual brings suit on behalf of the government for fraud on the government and, in return, gets a percentage of the recovery.
And, as you've noted, it's been, under the False Claims Act, very successful in securing recovery of funds on behalf of the government.
The Vermont case -- and I'm not remembering it anymore than that; it was a case from Vermont -- I think addressed most of the Article 3 issues. The objection was: That individual has no standing, I think, because he doesn't necessarily have an interest.
And what the court said was that the individual has standing as a result of the bounty, if you will, the percentage he gets. That satisfies the standing requirement. So those objections are out of the way.
I do know that some have raised additional objections under Article 2, which go to the fact that this might interfere with the executive's authority to execute the law; in other words, you have private individuals bringing suit.
I'm not sure that those issues have been finally resolved.
And obviously, if those cases do come up, I'll want to keep an open mind.
The factor you mentioned, obviously, about historic practice, that is something that the court does look to in assessing constitutionality. If it's something that the founders were familiar with or a practice that they engaged in and showed no disagreement with, while not determinative, that is a factor that the court would look at.
I don't know if any of those cases are going to come before the court. But if they do, that's one of the considerations that will have to be taken into account.
GRASSLEY: Other than the Totten case and the Halper case, have you ever written or spoken publicly about the issue of the constitutionality of Qui Tam or any other provisions of the False Claims Act?
To your memory?
ROBERTS: I don't remember any, no, Senator.
Judge Roberts, in 1986, while serving as an associate White House counsel, you approved Reagan administration testimony regarding Whistleblower Protection Act of '86.
GRASSLEY: You probably recall that the Reagan administration opposed that legislation, which is now law. Could you explain what role, if any, you had in formulating the administration's position on the Whistleblower Protection Act?
ROBERTS: I don't recall any role, Senator. Our office, the counsel's office, would routinely review testimony that was about to be given. We were just looking out for particular constitutional concerns or issues. We generally did not get into the substance. The substance of that would have been shaped over in the Justice Department, and we would have been really looking out for anything that we thought infringed on the constitutional authorities of the president or presented other consistency issues, but the substance of the testimony is not something that I was involved in.
GRASSLEY: Do you feel that you have any bias against the False Claims Act or the Whistleblower Protection Act that would impact on your ability to fairly decide cases on those statutes?
ROBERTS: No, Senator. I have had some whistleblower cases and different aspects I do recall coming up in the court of appeals. And I think in some cases we ruled in favor and in some cases we ruled against, so I have seen those cases and have had no difficulty fairly and objectively deciding them.
GRASSLEY: Are you against cameras in the courtroom like Justice Rehnquist was?
ROBERTS: Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of.
But I don't have a set view on that. I do think it's something that I would want to listen to the views of -- if I were confirmed -- to my colleagues.
GRASSLEY: I would suggest, then, to the chairman that we move quickly on that bill before he's go an opinion on it.
SPECTER: I intend to do just that, Senator Grassley, now that I have your support.
GRASSLEY: Thank you.
SPECTER: Thank you, Senator Grassley.
BIDEN: Good morning, Judge. How are you?
ROBERTS: Good morning, Senator. Fine, thanks.
BIDEN: I went back and looked at something you said yesterday, which -- I was reminded by my son, who's done some appellate work; nothing like you -- and he said I thought I heard him say this, and I went to staff, got it.
Yesterday morning you said, I went back once and counted the questions during my half hour. There were over 100 questions the court asked. So you're not at all offended by us interrupting you like we do.
You're used to being interrupted, aren't you?
ROBERTS: I'm used to being interrupted before the court. That's for sure, Senator.
BIDEN: Well, we're kind of a court here. We're kind of a court.
You're not entitled to the job. God love you, you've been nominated, and your job is to demonstrate that there's no presumption, as you well know.
So I hope you won't mind some questions -- I promise I won't interrupt, if you give short answers. OK?
ROBERTS: I'll try, Senator.
BIDEN: OK. All right. Great.
I'd like to follow up on yesterday. I asked you if you agreed there was a right of privacy to be found in the liberty clause of the Fourteenth Amendment. And you said, and I quote, I do, Senator. I think that the court's expression -- and I think if my reading of the precedent is correct, I think every justice on the court believes that to some extent or another. Is that correct?
BIDEN: Now, one of the things that's been amazing is you are one of the best witnesses that I think has come before this committee, and I've been here 30-some years. And is that you've convinced the folks who share Senator Brownback's view that you're going to be just right for them, and you've convinced the folks that share Senator Kennedy's view that you're going to be just right for them.
And I think I'd like to plumb a little bit more closely this notion of how you view this right of privacy.
Now, if you take a look at Justice Scalia's comment about that right to privacy found in the Fourteenth Amendment, as related to the Casey case, he said, The issue is whether abortion is liberty protected by the Constitution of the United States. I am sure it is not, because of two simple facts: The Constitution says absolutely nothing about it and the longstanding traditions, et cetera.
Then on that same case, the quote coming from -- I've got to make sure I get the right justice here -- from O'Connor, Kennedy and Souter's dissent, they said, The liberty of a woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties and physical constraints, the pain that only she must bear. Her suffering is too intimate and personal for the state to insist, without more, upon its own version of a woman's role.
Two fundamentally different views of the right to privacy as it relates to that issue.
In Cruzan, the case relating to whether or not fully competent adults have the right to refuse unwanted medical treatment, Justice Scalia said in his opinion, quote, that the federal courts have no business in this field; that American law has always accorded to state the power to prevent, by force if necessary, suicide, including suicide by refusing appropriate measures necessary to preserve one's life.
BIDEN: Justice Kennedy, in the same case, as you -- I know you know all this. But I just want to try to get a sense where you are.
He said, Liberty presumes an autonomy of self. That includes freedom of thought, belief, expression and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its transential (ph) dimensions.
Obviously, fundamentally different.
And then the same goes when he talks about -- when O'Connor says,
I agree that to protect the liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. And that refusal of artificially delivered food or water is encompassed within the liberty interest, Justice (inaudible).
The point I'm making is obvious that there are very, very, very disparate views.
Can you tell which side you come down closer on?
ROBERTS: Well, Senator, first of all...
BIDEN: I'm not asking you to comment on any case.
ROBERTS: I can say that it is my view that all of the justices -- I think of a case like the Glucksberg case, in which the majority subscribed to the view that there is an appropriate mode of analysis to determine the content of the liberty clause; that it does include protection beyond physical restraint; and that that protection applies in a substantive manner. Now, there are legal theorists; there are judges and jurists who do not agree with that, who do not agree that there is right of privacy protected under the due process clause, who do not agree that the liberty protected extends beyond freedom from physical restraint.
Their view is that it means you cannot be basically imprisoned or arrested without due process. And that means only that you get some type of procedural protection.
That is not my understanding of where the justices on the Supreme Court are and it's not my understanding.
I believe that the liberty protected by the due process clause is not limited to freedom from physical restraint; that it includes certain other protections, including the right to privacy, as you know, that the court has tried to map out in a series of cases that go back to Meyer v. Nebraska and Pearce and all that and in the various instances as the claims have arisen; and that it's protected not simply from procedural deprivation.
BIDEN: If I may interrupt, that's not the question I asked you. I thank you for that lesson and I understand what you're saying.
I'm asking you a specific question.
Do you side more within that context, with the views of Scalia and Thomas which say that consenting adults do not have, if they're both male or female, do not have the right to engage in sexual conduct; the state can determine that?
Let me put it another way. My family faced and I'm sure many people in this audience's families faced a difficult decision of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive.
It's of great moment to the American public now. And there is a view expressed by Justice Scalia that there is no right that is absolute -- or no fundamental right that exists for a family member -- assuming the person is not capable of making the decision themselves, to make that judgment.
BIDEN: He says, and I'm speaking in layman's terms, he says the state legislature can make that decision.
I firmly believe, unless there's some evidence that the family's incompetent, the husband or the wife, with the advice of the doctor, should be able to make that decision.
What do you think?
ROBERTS: Well, Senator, that does get into an area that is coming before the court. There is a case pending on the docket right now that raises the question of whether or not state legislatures have a prerogative to lay down rules on certain end of life issues.
BIDEN: It's suicide, isn't it, Judge?
ROBERTS: Well, in that case it's the application of the federal controlled substantive law.
The issue of illness in those cases do come before the court. The Glucksberg case raised a similar question. The Cruzan case that you mentioned presented it in a very difficult context of an incompetent individual no longer able to make a decision and the question of how the state law should apply in that situation.
Those cases do come before the court.
BIDEN: Do you think the state -- well, just talk to me as a father. Don't talk to me -- just tell me, just philosophically, what do you think? Do you think that is -- not what the Constitution says, what do you feel?
Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment -- they are comatose -- to prolong that life should be one that the legislators in Dover, Delaware, should make, or my mother should make?
ROBERTS: I'm not going to consider issues like that in the context as a father or a husband or anything else.
BIDEN: Well, you did...
ROBERTS: I think...
ROBERTS: I think obviously putting aside any of those considerations, these issues are the most difficult we face as people and they are profoundly affected by views of individuality and moral views and deeply personal views.
Now, that's obviously true as a general matter. But at the same time, the position of a judge is not to incorporate his or her personal views in deciding issues of this sort.
ROBERTS: If you're interpreting a particular statute that governs in this area, your job as a judge is to interpret and apply that according to the rule of law.
If you are addressing claims of a fundamental right under the liberty protected by the due process clause, again, the view of a judge on a personal matter or a personal level is not the guide to the decision.
BIDEN: All right.
Well, Judge, let me ask you then, with your permission, about your constitutional view. Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue -- he does not want to continue -- on a life support system?
ROBERTS: Well, Senator, I cannot answer that question in the abstract, because...
BIDEN: That's not abstract. That's real.
ROBERTS: Well, Senator, as a legal matter, it is abstract, because the question would be in any particular case: Is there a law that applies, that governs that decision? What does the law apply...
BIDEN: That's the question, Judge. Can any law -- can any law -- trump a fundamental right to die? Not to commit suicide, a right to decide, I no longer want to be hooked up to this machine, the only thing that's keeping me alive. I no longer want to have this feeding tube in my stomach -- a decision that I know I personally made, and many people out here have made.
And the idea that a state legislature could say to my mom -- your father wants the feeding tube removed, he's asked me, the doctors heard it -- and the state legislature's decided that, no, it can't be removed.
Are you telling me that's even in play?
ROBERTS: Well, Senator, what I'm telling you is, as you know, there are cases that come up in exactly that context so that it is in play and the (inaudible) is that there are cases involving disputes between people asserting their rights to terminate life, to remove feeding tubes either on their own behalf or on behalf of others.
There is legislation that states have passed in this area that governs that. And there are claims that are raised that the legislation is unconstitutional.
Those are issues that come before the court. And as a result, I will confront those issues, in light of the court's precedents, with an open mind. I will not take to the court whatever personal views I have on the issues. And I appreciate the sensitivity involved. They won't be based on my personal views. They will be based on my understanding of the law.
BIDEN: That's what I want to know about because without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.
We are going to face decisions, you are, and the American public is going to face decisions about whether or not, as I said, a patent can be issued for the creation of human life. You are going to be faced with decisions about whether or not there is a right to refuse extraordinary medical -- heroic medical efforts that you don't want as an individual. And you are fully capable, mentally of making that decision.
And the idea that without a specific fact pattern before you, as someone keeps -- it keeps getting repeated here -- the law is about life. It's about facts, specific facts.
What I'm asking you, there's no fact situation before you about whether or not a person, fully mentally capable of making a decision, chooses to say, I no longer want this feeding tube in my stomach; please remove it, and whether or not that is a fundamental constitutional right.
ROBERTS: Senator, that's asking me for an opinion in the abstract on a question that will come before the court. And when that question does come before the court, the litigants before me are entitled to have a justice deciding their case with an open mind based on the arguments presented, based on the precedents presented.
I've told you with respect how I would go about deciding that case.
ROBERTS: It begins with the recognition that the liberty protected by the due process clause, does extend to matters of privacy, that it's not limited to restraints on physical freedom, and that that protection extends in a substantive way and not simply procedurally.
I have also explained the sources that judges look to in determining the content of that privacy protected by the liberty clause. They're the ones that have been spelled out in the courts opinions, the nation's history, traditions and practices.
And I've explained how judges apply that history, tradition and practices in light of the limited role of the judge to interpret the law and not make the law, the limited role of the judge in light of the prerogative of the legislature.
BIDEN: Judge, I understand that. Justice Scalia says the same thing and draws a very fundamentally different conclusion than O'Connor...
BIDEN: See, you've told me nothing, Judge.
With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.
There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.
The idea that the founders sat there and said, Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is -- as you are -- a decent, bright, honorable man, that's all we need to know. That's all we need to know.
Look, let's -- I only have three minutes and 45 seconds left -- and by the way, I'd ask permission for the record to introduce the number of questions asked by Senator Hatch and others, very specific questions, as to Justice O'Connor with very specific answers on these very questions. I'd like to ask that they be submitted to the record.
SPECTER: Without objection, they will be made part of the record.
BIDEN: Let me conclude..
ROBERTS: Senator, could I...
BIDEN: I still have the floor -- and I'll yield to you, since you can speak after the clock's out. I can't, OK. I'm sure you understand that.
And I'm sure if I'm ever before the Supreme Court, you'll give me more time. You won't interrupt me.
Here's the point I want to make: I asked -- and I'm sure you're not going to answer it -- I asked Justice Ginsburg a question about Footnote 5 in the Michael H. case. And the whole issue there is, as you well know, whether or not you keep talking -- it sounds wonderful to the uneducated ear, the non-lawyer's ear, that I'm going to look at history and tradition.
You and I both know how you determine history and tradition determines outcomes. In that case, as you'll recall, there was a question of whether or not the natural father -- you could prove by a blood test and DNA that he was the natural father of a child he wanted to see that happened to be born to a woman that was living with her married husband. So the child was illegitimate.
So in determining whether or not there are any visitation rights, there's a famous footnote there.
BIDEN: And I'm going to do this quickly at two minutes and seven seconds.
The court said -- Scalia said in footnote six, Look, you go back and look at the specific historical precedent. Short-circuiting it,
Have bastards ever been protected in the law? And Brennan (ph) said, No, no, that's not what you go back; you go back and look at fatherhood. Was fatherhood ever something that's part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?
Now, Scalia said, No, no, no, no. I looked up the record: Bastards have never been protected in English common law. Therefore, there's nothing going on here.
And by the way, You should never go back, he says, and look at the general proposition has fatherhood achieved a status of consequence? No, it's have bastards achieved it?
So, Judge, how do you -- I'm not asking you on any case. How do you -- do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?
ROBERTS: I mean, I think you're quite right that, that is quite often the critical question in these cases -- the degree of generality at which you define what the tradition, the history and the practice you are looking at.
The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage?
BIDEN: Thirty-three seconds left: Do you agree with O'Connor then?
ROBERTS: Well, I get extra time you said...
BIDEN: I know. But I don't. I get to get it in now before the chairman...
SPECTER: Judge Roberts, when his red light goes on, you'll have as much time as you want.
ROBERTS: Thank you.
The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.
ROBERTS: And you look at...
BIDEN: But which precedent do you agree with? There are competing precedents.
ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.
So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely certain.
BIDEN: But that's specific, Judge. The generality was the right to marry. That's the generality.
ROBERTS: Well, that's what I'm saying. The dispute is, do you look at it at that level of specificity or broader?
And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. You're saying there is, obviously, that statute that's part of the history.
So you look at it at a broader level of generality.
Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, We stand for election and we wouldn't be elected if we didn't tell people what we stand for.
Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that,
This judge should go on the bench because these are his or her positions and those are the positions they're going to apply.
Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.
That's inconsistent with the independence and integrity of the Supreme Court.
BIDEN: No one's asking for a promise.
SPECTER: Thank you very much, Senator Biden.
BIDEN: Thank you.
Thank you, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Senator Kyl?
KYL: Thank you, Mr. Chairman.
I think this last exchange is important because it goes back to what we talked about at the very beginning, when some of us in our opening statements pledged to defend you if you stopped short of answering every question the way that every senator felt important, based upon your view that the matter in question might come before the court; that the canons of judicial ethics preclude you from doing that.
KYL: A very wise senator on this committee once said something. Let me quote it to you. And by the way, I contend that he is still wise.
KYL: And this is what he said: Judge, you not only have a right to choose what you will answer and not answer. But, in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 different forms, probably, over your tenure on the court.
Now, as I said, that was wise then. It's wise now. It is the statement of then-Chairman Joseph Biden in the Ginsburg hearings. And in all sincerity, I do believe Senator Biden to be wise and I believe that that comment is wise.
It's what's animated your approach to answering, probably by now, hundreds of questions that have been asked of you. And you've answered every question. In some cases, however, you have stopped short of advising us what you believe the law to be because you felt that that matter is going to come before the court.
But you didn't stop there. When permitted, you expanded to tell us why you thought it was a matter that might come before the court and what your general approach to the case would be in terms of your judicial philosophy, how you would approach judging the case, but that you didn't want to talk about your view of what the law was, both because the case could come before the court and also because it's pretty hard to formulate in a question all of the factual considerations that would permit you to know what law would be specifically applicable to that particular case.
KYL: And you and I talked a little bit about the facial challenge to statutes versus the as-applied kind of problem.
So with respect to this last interchange you had with Senator Biden -- and by the way, I'll say, again, to compliment my colleagues, if anybody ever contended that senators weren't both diligent in pursuing what they want to pursue and also very imaginative, they should watch this hearing, because we've been blessed with most creative ways of trying to pull out of you commitments on matters that senators would like to have you make commitments on.
But as Senator Biden just said, and I'm paraphrasing here -- he said without the knowledge of your personal views -- he was talking at the time about end-of-life issues -- we're rolling the dice.
And your response to that, as I understand it, is: My personal views are irrelevant to a case that comes before me of Jones v. Smith, of X v. Y. What I personally think about issues has nothing to do with the resolution of the dispute between those two parties. And were I to let them intrude, I would not be doing my job as a judge, fairly taking the facts of their case and then applying the law that I understand it to be to reach a decision.
Moreover, Judge, isn't it the case that if you were to state your views on such subjects, as they might pertain to a case that would come before the court, wouldn't you actually have to recuse yourself from deciding that case and, therefore, all of the discussion, all of the effort to get you committed to a particular point of view would be for naught because if you expressed it you couldn't sit on the case anyway? Or am I incorrect in that?
ROBERTS: I think that's a concern that other nominees have raised in the past, particularly given the expression of the views as part of the confirmation process.
It's not supposed to be a bargaining process.
And if you start stating views with respect to particular issues of concern to one senator, then, obviously, everyone's going to have their list and when that individual nominee, if confirmed, if the bargain is successful from his or her point of view and he gets confirmed, he'll have to begin each case, not with the party's briefs and arguments, but with the transcript of the confirmation hearing to see what he or she swore to, under oath, was their view in a particular area of the law or particular case.
And I think that would undermine the independence of the Supreme Court. It would undermine the integrity of the judicial process. Everyone of the justices on the court today, everyone of them refused to engage in that type of process. And if I'm to sit with them, if I am confirmed, I feel I have to follow the same approach.
Now, I do think I've been more expansive than most nominees. I've gone back and read the transcripts and some of them would not talk about particular cases even if it were unlikely that the case was going to come before the court.
And the reason they gave was, Look, it's hard to draw the line. If I think this case is not going to come before the court, what about this one and maybe that will. And rather than trying to draw the line, I'm just not going to do it.
And those justices were confirmed.
I've taken what I think is a more pragmatic approach. If I think an issue is not likely to come before the court, I have told the committee what my views on that case were -- what my views on that case are.
Perhaps that means it's sometimes difficult to draw the line, perhaps that's right. But, again, if I make the judgment -- and other nominees may draw the line differently. They have drawn it differently in the past or differently in the future.
The nominee, I think, has to be comfortable with the proposition that they're not doing anything that's going to undermine the integrity of the court.
KYL: And I noted yesterday, in response to a question, you said,
Well, that's the reward for trying to be more expansive. You were talking about Griswold v. Connecticut. I thought at the time, boy, he's expressing a view on a relatively recent case and, at least, issues associated with it are clearly going to come before the court. And I wondered, does that go too far, does that cross the line?
But your point was the specific issue in the case and the precise holding of the case are not likely, in your view, to come before the court. And therefore, you expressed your opinion about that case and the law underlining the ruling in the case. So I would agree with you that, not only have you attempted to answer every one of our questions, but you have also ventured into expressing your personal views on matters that you didn't think would come before the court -- although, as you note, it's at least possible that some of them might.
So hopefully you haven't gone too far there.
This, I think, is a great civics lesson. Some of this hearing should be encapsulated in law school courses to remind us about the difference between elected officials who make policy and judges who are not supposed to make policy.
I thought the questioning, I believe it was by Senator Brownback earlier, was instructive. You noted that the primary check and balance on the judiciary was its own self-restraint.
Many of us believe that the court has not exercised appropriate self-restraint in all cases and that, when it doesn't, it naturally generates concern expressed by the citizens of the country, as reflected certainly by their elected representatives.
And we do express that concern.
I think the court has failed to exercise appropriate restraint in several matters. And one of the things that appeals to me from your approach to the law is that it appears to be a very traditional approach, which is that I'm not sent there to make law; I'm sent there to take whatever case comes before us and just decide the case.
And that element of self-restraint and modesty is one which I think should be more the rule than it is today in courts at all levels. And I would commend that philosophy to all of the judges.
I think you've expressed it very well. And while I appreciate my colleagues' desire to try to draw you out on your personal views about matters, I think you have drawn the line at an appropriate place, and you've certainly provided us with a great deal of information in the process.
KYL: And, again, partly because you've explained to us, when you could not completely satisfy a senator's curiosity, why that was the case, but still tried to inform us about the basic issues that might exist in the case, the basic arguments that would be made on either side, but without giving us a hint as to which one of those you thought you might come down on the side of.
And I also think it's important that you have totally eschewed ideology here, saying that your own personal views or ideology don't have a place in your decision making, and therefore they are pretty irrelevant to the questions that are asked here.
I've got a whole notebook of questions here that to one extent or another have been dealt with, I think, by colleagues. And I don't think it serves a purpose to go over them again.
Let me just conclude with kind of a general comment, but before I do just try to correct the record on -- not necessarily correct, but add to the record on one very narrow point.
You were discussing, I believe with Senator Kennedy, the Herrera v. Collins case, and he talked about innocence claims being heard by the court, that a prisoner should have the right to present innocence claims.
I just wanted to ask you, is it not the case that in that Herrera v. Collins case, that it did not address the proper route for bringing claims based on newly discovered forensic evidence, such as DNA testing, which is, of course, a relatively new phenomenon now, but that was not the issue presented in that case?
ROBERTS: That's right.
There wasn't -- I don't know if they had as much access to that type of evidence back then when it was argued.
ROBERTS: But it was certainly not that type of evidence.
It was a new claim that somebody else did it, somebody who had just died. That was the new claim that they sought to raise at the last stage there. And I do think any issue arising with respect to DNA evidence, and those issues are working their way up through the court, those cases would have to be addressed on their own terms.
KYL: Yes. Thank you.
Well, let me conclude with this point.
Some who are watching might come to the conclusion that there's a lot of repetition here, and that to some extent there's a lot of senator talk expressing concern to you about different issues that are important to them.
Frankly, I think this is a once in a lifetime opportunity. It is the only time that before you take your position on the court, you'll have the opportunity to be directly lobbied in the political context in an appropriate way.
We reflect the views of our constituents, and we've all got different issues on our minds, and there isn't a one of them that is not a legitimate issue or concern.
I brought up the matter of applying foreign law to American decisions on our Constitution for example. It seems to be appropriate that you hear from us, the political branch, concerns that we have about the way that the court approaches its job. We may be right, we may be wrong, but it's important for you to hear that.
I know that justices read the newspapers and so on, but this is a very good forum to have expressed to you concerns that we have about various issues. And we wouldn't be talking about them if we didn't think that they would come before the court.
So, in a sense, virtually everything we're talking about we're trying in some way to get a point across to you because we believe it is likely to be decided by you.
And I think that's fine. You need to hear from us what our concerns are, even though perhaps we're trying to draw you out in areas that you obviously can't be drawn out in with respect to future cases.
It's also important for us to get the feedback from you. There won't be very many other times that we will have as a group of senators to sit down with the person that will likely be the chief justice of the Supreme Court and have a legal conversation with you.
We'll have to talk about matters relating to court administration. That'll be totally appropriate. And I'm sure we'll be doing that.
But by and large, this is the only chance we have to have this kind of an interchange with you. It is illuminating to me, as a student of constitutional law, someone who's practiced before the court.
KYL: I've learned a lot.
And therefore, to those who, on the outside, say, well, it looks like a lot of senators posturing, if they're listening very closely to your answers, I think they will find a great deal of meat, of knowledge, of the application of your wisdom to how you approach judging.
And I find it very consistent with the traditions of our court and the rule of law in our country. And this, therefore, becomes a very good reminder of what our rule of law is all about, what judging is based on, and the inter-relationship between the representative bodies of our government and the third branch, which you represent.
I think this is all very instructive, very informative and in my case, at least, with regard to your testimony, very comforting. Because it seems to me that you are following the great tradition of the court in your approach to the law, that you are careful, that you are cautious, and yet you are willing to look at the circumstances of our contemporary times in applying your judgment to the law that is before you.
And because I have that confidence, it's my intention to support your nomination. And because I think it unnecessary to delve into any other specific questions, I will yield back the remaining five minutes of my time.
BIDEN: Mr. Chairman?
SPECTER: Senator Biden?
BIDEN: A point of personal privilege, as we say in this body.
KYL: On my time, since I had five minutes and I referred to Senator Biden, please, take my time.
BIDEN: Thank you.
I've been quoted many times about what I said to Justice Ginsburg. With the permission of the chairman, it will just take a second, I'd like to read my whole quote, if I may, and then...
SPECTER: Senator Biden, you may do that.
You can even have more time. Senator Kyl's given you...
BIDEN: No, no. I don't want to use his time.
Let me just say -- here's what else I said. I said, Now, I hope, as I said to you very briefly, that the way in which you outline a circumstance under which you would reply and not reply, that you will not make a blanket refusal to comment on things, because obviously everything we could ask you is bound to come before the court.
BIDEN: There is not a controversial issue in this country that does not have the prospect of coming before the court.
Continuing: If a nominee, although it is their right, does not answer questions that don't go to the way they would decide but how they would decide, I would vote against that nominee regardless of who it is.
It's a continued quote: And you can thank Justice Scalia for that.
At the close of testimony, I said, I would also point out that my concerns about you not answering questions have been met. You've answered my questions the second day and the third day. At least, from my perspective, you've been forthcoming as any recent witness has.
I submit the entire statement for the record, along with the answers to her questions from Senator Hatch, you and others.
SPECTER: Without objection, they will be made a part of the record.
BIDEN: I thank the chairman for his courtesy and I thank the witness for listening.
SPECTER: It is now 12:30, and two votes have been scheduled at this time. So we will take a lunch recess until 1:45, quarter of two.
ROBERTS: Thank you, Mr. Chairman.
SPECTER: The committee will resume.
Senator Kohl, 20 minutes.
KOHL: Judge Roberts?
KOHL: We spent quite a bit of time yesterday discussing how you would decide cases. And as we all know, it is your view that Supreme Court justices are umpires who are neutrally deciding cases.
I want to discuss with you another area where I believe your analogy falls somewhat short.
The Supreme Court not only, as you know, has the power to decide cases and to construe the Constitution, but it also has the sole and the absolute power to decide which cases it hears, which cases it decides, which parties get to be heard, and which parties do not get to be heard.
So if you're confirmed, you will get to choose which cases will be placed on the Supreme Court's docket with the vote of yourself and only three other justices, as you know. Making this choice, your opinions, your perspectives and your life experiences obviously matter quite a bit. Much more than an umpire calling balls and strikes, you are in that sense a manager who is really setting the field with players to decide what the menu's going to be like.
So this power is really quite important and it's crucial, and it's important that we understand that when we look at your role in terms of your own description.
In recent times, the Supreme Court has received appeals in nearly 7,000 cases a year. And as you know, in recent times the Supreme Court has heard only about 80 cases a year.
In other words, the justices choose to heard about 1 percent of the appeals that they receive.
My question for you, Judge Roberts, is, should you be confirmed, how will you decide which cases will make the cut and will be heard by the Supreme Court and what will guide your complete discretion to choose which cases to hear?
ROBERTS: I appreciate the question, Senator. It is an area where I happily concede that the justices are not acting just like umpires in deciding which cases they're going to hear, as opposed to how they're going to decide them.
My perspective has changed a little bit in this area. Certainly when I was practicing law, a lot of what I spent my time trying to do was get the Supreme Court to take a case.
As you know, you file these things called petitions for certiorari, which are really quite extensive arguments about why the court should hear your case, having really not that much to do with the merits, whether it was right or wrong, but just why the court needs to issue an opinion in this area. And I thought they weren't taking enough cases.
When I became a court of appeals judge, I thought you didn't need to have more cases taken up for review.
ROBERTS: But the considerations, some are pretty well established. The job of the Supreme Court is to ensure the uniformity and consistency of federal law, in particular of interpretations of the Constitution.
So the clearest case that the court should hear, they should grant certiorari on, as they say, is when two different courts of appeals are interpreting a law differently.
Obviously a law should mean the same thing in every part of the country, and if two different courts take a different view of the law, that's the kind of case the court ought to be taking.
I think the court should, as a general matter -- and again, other justices have expressed this view as well -- grant review in cases in which a lower court strikes down an act of Congress. I don't think that's an absolute rule, but certainly as a general matter. If an act of Congress is going to be declared unconstitutional, I think the Supreme Court ought to be the one determining that as a final matter, and generally not leave it to a court of appeals.
So those are two categories: when there's a conflict, when an act is found to be unconstitutional.
Beyond that -- and this is where I agree with you, the umpire analogy does not hold up -- there is a lot of discretion in deciding whether it's the right time to grant review in a case. The people who practice before the court talk about the court letting an issue percolate a little bit; in other words, get more than just one or two decisions from the courts of appeals, wait until others have had a change to weigh in.
The theory is that makes it more likely the Supreme Court will get it right, if they have the benefit of several decisions from the lower courts, rather than just one.
Other cases, justices determine that that's not appropriate. It's not appropriate to wait until the issue develops a little more. They want to look at it expeditiously. And it's hard to lay down categorical rules in that area.
ROBERTS: I have expressed the view, and it may be a view that I'll have to be educated on further if I am confirmed. I'm not stating it as a solid view. I do think there's room for the court to take more cases. They hear about half the number of cases they did 25 years ago.
There may be good reasons for that that I'll learn if I am confirmed. But just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases.
I have heard others say they could contribute to the clarity and uniformity of the law by taking fewer cases, but I don't subscribe to that view. I think there's room for additional cases on the docket.
KOHL: I think we agree that it's an enormous power, that power of decision. It's a very active power. It's not benign in any way. If justices, for example, decide not to hear a case, whatever the merits, that is the final decision; is that not correct?
ROBERTS: That's right. The decision of the court of appeals stands in that case.
Now, it is true that I think the justices generally look at their duty and obligation to ensure consistency in a fairly dispassionate and objective way. In other words, it doesn't matter how a particular case came out. If it's different in one part of the country and another, most of the justices, in my experience, readily agree that that's the kind of case they need to address.
KOHL: But just to refer to two that were taken up without any reference from any lower court -- one was Youngstown Sheet and Tube, which was, you know, the ability of the government to seize a steel mill during a time of war.
And, of course, another one that I'm interested in your comment on is Bush v. Gore, in which the courts decide to directly insert itself into a presidential campaign. I'm interested in not what happened after they decided to do that, but the decision they made, in terms of its propriety, its impact on the court, the court's standing in the country.
You must have thought about it, I'm sure, a great deal when it happened.
KOHL: I'm sure you have an opinion on their decision to enter that case. And I think we'd like to know what that opinion is.
ROBERTS: Well, you mentioned first the Youngstown case and it's a category -- and I think perhaps the Bush v. Gore case, perhaps the justices concluded it fell into that category.
There are certain cases that don't come along all that often that are, by their importance, significant enough for the court to take. In other words, they don't fit the description of a conflict among the courts of appeals or an act of Congress held unconstitutional.
But they are, otherwise, sufficiently important that the court will grant review and take those cases.
Certainly, the Youngstown case was of that sort. It started out actually in the D.C. court. And the hearing was first there. And then the court granted (inaudible) decision by a president to seize the steel mills based on the Constitution.
That's an important enough issue. You want the Supreme Court to issue a final ruling on that.
On the decision in Bush v. Gore and the determination of whether to grant review in that case, again, that's not something that -- you don't know on what basis the justices make a decision to grant review. You just get an order that says review is granted.
In that case, you had the decision of a state court that apparently the justices thought should be reviewed. And, obviously, expeditious treatment was needed as I think it was in the Youngstown case as well. They're capable of moving expeditiously when an important matter requires them to do so.
KOHL: I asked you what your opinion of that decision was at that time.
ROBERTS: Well, that's an area where I've not been -- I've not felt free to comment whether or not I agree with particular decisions or...
KOHL: Well, it's not likely to come up again.
ROBERTS: Well, I do think that the issue about the propriety of Supreme Court review in matters of disputed electoral contests, it is a matter that could come up again. Obviously, the particular perimeters in that case won't, but it is a very recent precedent.
And that type of a decision is one where I thought it inappropriate to comment on whether I think they were correct or not.
Judge Roberts, one of the most important constitutional events of our lifetime was the nomination of Robert Bork to the Supreme Court. Congress chose to exercise its role to advise and, in this case, not to consent, based upon judicial philosophy and the strongly held opinions of the nominee.
In effect, Congress told the president that we have an important role to play in the process, as well.
Do you believe that the Senate's rejection of Judge Bork in 1987 was a reasonable and respectable act, or instead do you view it as a period of unfair partisanship? What were your thoughts about that case as it unfolded?
ROBERTS: Senator, I don't think it's appropriate for me as a nominee to comment on the Senate's treatment of other nominees, and I would respectfully decline to do that.
KOHL: Judge Roberts, when we met a few weeks ago in my office, we discussed the Supreme Courts recent property rights decision.
In that case, Kelo v. the City of New London, the court found it permissible under the Constitution for a city to seize private homes against the wishes of their owner so that a large pharmaceutical company could build a private industrial park and a research facility.
A total of 15 homes were condemned, including a home lived in by an 87-year-old woman for her entire life, a home that her family had owned for over 100 years. Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.
We discussed this when you were in my office, and you told me that you were, quote, surprised, by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?
ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.
And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.
When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.
Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.
The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.
I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.
What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.
ROBERTS: But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.
The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.
And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.
KOHL: Did I understand your opinion on whether or not that case was correctly decided, or are you...
ROBERTS: Again, that's -- particularly since it's an area they do leave -- specifically leave open the question about whether it applies outside of a redevelopment project, that's an issue that could come before the court. It's not one I feel appropriate to comment on.
KOHL: It would or would not surprise you if we'd not heard the last of that?
ROBERTS: It's certainly one of those areas that could come before the court again, even in its present form. I know the author of the majority opinion said it was an area where he, as a personal policy matter, wouldn't have exercised that authority.
But, of course, the issue there was the legal issue, not policy preferences. It could come before the court again, yes.
KOHL: You will have a decision to make if it does rise up to that level. Is it possible that your decision, along with three other justices, might be to put that on the docket?
ROBERTS: That would be one of the decisions that, in the exercise of the cert process, as they call it, short for the certiorari decision, and that would certainly be an issue that could come before the court.
And they already have, of course, four dissenters who may be anxious to revisit it -- or not. I don't know. I don't want to presume how they would view it on an ongoing basis.
KOHL: Judge Roberts, I would like to talk a little about antitrust. I'm the ranking member on the Antitrust Subcommittee.
To me, antitrust is not some mysterious legal theory that only lawyers can talk about or understand. Antitrust is just another word for fair competition.
The laws that we use to protect consumers and competitors from unfair and illegal trade practice is what antitrust is all about.
Do you agree that government enforcement of antitrust law is crucial to ensuring that consumers are protected from anti-competitive practices such as price fixing and illegal maintenance and monopolies?
ROBERTS: Yes, I do, Senator. In fact, when I was in private practice, one of the cases I handled was the Microsoft antitrust case, on behalf of government officials.
The states in particular -- a number of states -- retained me to argue that case before the D.C. Circuit on bond.
So I certainly appreciate the role of governments -- both state and federal -- in enforcing the protections of the antitrust laws because, as you know, there's concurrent authority in that area: the Sherman Act, of course, on the federal level, and then what people call the baby Sherman Acts on the state level.
KOHL: I'm glad to hear you say that because on June 14th, 1983, which is more than 20 years ago, in a memo to the White House counsel Fred Fielding, you wrote, quote, Enforcement of federal rights is advanced most effectively by private suits in antitrust cases.
KOHL: So isn't it often true that individual consumers don't have the resources to pursue these private suits against large corporations? And isn't that why government enforcement of antitrust is essential? So you would perhaps not be feeling the same way today as you did 22 years ago when you made that comment?
ROBERTS: Well, I think it depends on what area you're talking about. I do think that the system established under the Sherman Act of private antitrust enforcement -- and of course the opportunity to recover additional damages and attorneys' fees and other aspects -- has been an effective tool in enforcing the law.
There are areas, as you mentioned, if the issue is mostly consumer rights as opposed to business rivals, that government action may be more necessary in those areas as opposed to the others.
And I know that government antitrust regulators make those determinations every day, that their resources are best directed to areas where consumers or attorneys bringing class actions on consumers' behalf, whatever the reason, where the incentive system for private litigation may not be as effective. And that's often the area where state attorneys general, the Justice Department, decide to get involved to supplement the private enforcement activity.
KOHL: All right. I'll just ask one more question before my time expires, and that's upon the important role that chief justice plays as the head of Judicial Conference, which is the organization of the entire federal judiciary.
As head of Judicial Conference, chief justice makes policy recommendations with respect to legal reform, reform of court procedures and advocates for the federal courts.
What, if you were confirmed, would be your agenda, your plans or your policy objectives to advance in connection with your role as the head of Judicial Conference?
ROBERTS: Well, I'm familiar with how the Judicial Conference operates for at least part of its role. I've been on the Advisory Committee on Appellate Rules. I was there as a lawyer, and I've kept on as a judge. In fact, I was slated to be the chairman of that committee starting in October.
KOHL: So I understand the role in promoting reform of rules that apply in the federal courts, both the appellate rules, civil rules, criminal rules and bankruptcy rules and evidence rules -- different committees there.
And I'm familiar with the process. They go through the advisory committee, a broader committee about rules in general, then they are submitted to the Judicial Conference for consideration.
And it is a very exhaustive process, but I think also a very responsive one. Particular problems are identified in practice by practitioners, by judges. They are submitted to the committees. They review them. They come up with proposals.
It is a very important part of the functioning of the federal system and it affects all the levels, not just the Supreme Court of course, but the courts of appeals and the trial courts.
Other issues of concern, obviously, pressing issues concerns with respect to security in light of different developments, those are addressed at the Judicial Conference -- any need for legislative action that the courts feel is appropriate.
I have to tell you that if I were to be confirmed, as an initial matter, I think my primary posture is going to be one of listening because there's obviously much I have to learn about matters of concern to different judges, different courts around the country.
And that's the good thing about the Judicial Conference, of course. They bring in judges from around the country to make sure that you get a national perspective on what needs to be done and you are not just focused on issues here in Washington or anywhere else.
But it is an area where I think I will have to listen a lot at the outset before being presumptuous enough to have a particular agenda.
KOHL: I thank you, Judge Roberts.
I thank you, Mr. Chairman.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Kohl.
DEWINE: Thank you, Mr Chairman.
Judge, good afternoon.
ROBERTS: Good afternoon.
DEWINE: You know, Judge, our Constitution created federal courts with limited powers. And, in fact, Article 3 of the Constitution only gives federal courts the power to decide cases and controversies.
This case and controversy requirement means that federal courts will only hear real lawsuits involving real parties with real injuries. We talked about this over the last several days.
This has led to the development of a number of different rules about when people can bring lawsuits in federal court and when they cannot.
One of these rules, as you well know, is the principle of standing. You talked about this in 1993 in a law review article you wrote in the Duke Law Journal.
You said the following, and I'll quote briefly from this: The legitimacy of an unelected life tenured judiciary in our democratic republic is bolstered by the constitutional limitation of that judiciary's power in Article 3 to actual cases and controversies.
KOHL: You went on to later state the following: The Article 3 standing requirement ensures that the court is carrying out its function of deciding a case or controversy rather than fulfilling the executive responsibility of taking care of the laws we faithfully execute, end of quote.
Judge, could you elaborate on these statements today and maybe explain briefly what the doctrine of standing is and why that doctrine is really so important to our constitutional system?
ROBERTS: Well, Senator, your question really ties together a few themes we've already touched on. I don't remember if it was you or someone else who referenced Justice White's description of his obligation and what it was, and his answer was to decide cases.
KOHL: That was me.
ROBERTS: And the basis for the institution of judicial review, as explained by Chief Justice John Marshall in Marbury v. Madison, is similarly grounded on the obligation to decide cases and controversies.
Because if you look at the Constitution, it doesn't say in Article 3 that the judicial branch is established in order to tell us all what the Constitution means. It says that the judicial branch is established to decide cases and controversies arising under this Constitution and the laws. And that is the basis for the authority to interpret the Constitution.
As Marshall explained, we have to decide a case. If the argument is that it's inconsistent with the Constitution, we have to decide that.
Therefore, we have that authority. And I believe that's consistent with the intent of the framers.
But it does mean, and this is the point I was trying to make in that small little law review comment, that judges should be very careful to make sure they've got a real case or controversy before them, because that is the soul basis for the legitimacy of them acting in the manner they do in a democratic republic. They're not accountable to the people. As judges they have the obligation to decide cases according to the rule of law.
So, first, make sure you've got a real case and a real case is not simply, I'm interested in this area. I don't like what the government is doing. Or, I' don't like this law, and so I'm going to go to court. What the standing doctrine requires is that you actually be injured by what the government is doing, injured by Congress' action.
Now, the injury doesn't have to be economic. The Supreme Court has explained in cases, like Sierra Club v. Morton, it can be aesthetic. It can be environmental. It can cover a wide range of injuries. But you have to show some injury that separates you from the general public, so you're just not voicing a gripe; you're trying to get a case decided. That's the importance of the standing doctrine.
KOHL: I appreciate the explanation, Judge.
Let me ask you a more personal question.
KOHL: Last time you appeared before our committee, you were a lawyer in private practice. Since that time, you spend approximately two years on the Court of Appeals in the District of Columbia, a new experience, even for an experienced practitioner like you.
What surprised you about the last two years of judging, if anything?
ROBERTS: Well, I think I had the biggest surprise on the first day that I heard cases.
Obviously, it's opening day and the first day of my career, so I prepared as well as I could and the arguments were great and I went into the conference room and I had my notes and all the books. It's just the judges, you know; just the three judges. We bring the record in; we're surrounded by the U.S. reports, by our Court of Appeals reports, but the United States code that you folks have written.
And I was ready and I'm sitting there and I remember the chief judge, who by tradition sits on a new judge's first day. He was there and another judge and I waited a while and I looked and they were still waiting. I waited a while longer and they were still waiting. And, finally, the chief judge advised me that the tradition was that the junior judge goes first at these discussions.
And, so, I was kind of put on the spot right off the bat. And part of what that conference was like -- and throughout, it really has -- I don't know if I'd say a surprise, but it's been illuminating to me.
The judges really do roll up their sleeves and try to find the right answer. It's just the judges. But, as we say, Well, we think this case is controlled by the Smith case, we get out the Smith case and we open it up and we look at it, leaning over each other's shoulders and seeing exactly what it says.
If somebody says, Well, but in this case, under the record, there was no evidence about this or there was no objection raised about that, you get out the record and you look at page, you know, 223, and you point to it and say, Well, here's where the objection was raised.
And the judges are very open. Hit's a very encouraging part of the process from my point of view. Nobody goes in there with set views. They want the benefit of the collegial process, the benefit of each other's views.
And you have to be able to substantiate your position. There's no place for rhetoric. People are pointing to the law. And I found that a very encouraging part of the process, what goes on in the conference room, which was, of course, a part of the process that I hadn't participated in before.
KOHL: It's something that we don't see, either.
KOHL: We have no way of seeing it.
ROBERTS: Right. And the positive part of that process to me was that nobody was invested in anything other than getting the right result. And they're prepared to be convinced, contrary to initial impressions. And I was as well. I found it a very encouraging part of the process.
KOHL: Let me ask you, moving to administrative law issues, if I could. As you know in the 18th and 19th centuries, we really did not have the governmental agencies that have such a profound influence, for better or worse, on the daily lives of Americans.
Today, administrative agencies set workplace safety rules, establish environmental regulations, lay down traffic safety standards, just to name a few things.
As far as I know, there's no specific article in the Constitution dedicated to the administrative state we live in today.
In your view, what is there in the text or history of the Constitution that supports the growth of this administrative state that we live in?
Is the growth of the administrative state an example of the Constitution being amended simply out of necessity or is the administrative state consistent with the Constitution as drafted by our founding fathers?
How do you get to where we are from a constitutional point of view?
ROBERTS: Well, you know, we all, of course, begin in high school civics, with the notion of three branches of government, the executive, the legislative and the judicial. And we study that. And then, only occasionally do people look at the real world and say: Well, what is this agency? What is that? Is that legislative? Or is that judicial? Or is that executive?
And of course, the answer is, well, it's a little bit of each. It's exercising power delegated by Congress. It's executing it in a particular way. It's issuing regulations that have the force and effect of law. And quite often it's adjudicating particular disputes.
The activities of the administrative agencies are, of course, the bulk of what judges on the Court of Appeals for the D.C. Circuit do (inaudible) of administrative law that have recognized the legitimacy of these agencies and sought to ensure that their exercise of authority is consistent with constitutional provisions, by basically -- I mean, I know the issue can seem arcane to many people, but he fundamentals of administrative law really go back to the basic principles of justice: Is someone being given an opportunity to be heard?
ROBERTS: Is someone being treated fairly? Is someone who's making a decision, doing it for a rational reason or an arbitrary reason?
These are the same basic principles that have animated the common law system since the time of Lord Cook -- and they're being applied here as well. And the objection is often: This agency made a decision without adequately hearing our concerns.
Or this agency made an adjudicatory decision without hearing the record evidence. Or they did not explain.
That's the basic requirement of administrative law: explain your decision. That's the limitation on arbitrariness. And the agency didn't explain why it's doing these.
The notion that, even in these arcane areas, our legal system insists upon the observance of these basic requirements of -- I don't want to say due process; that's a technical term -- but that's the principle that is being applied.
That goes a long way to explaining how these agencies have been accepted into the constitutional system, because they've been required under principles of administrative law, to comply with these basic precepts of procedural regularity.
DEWINE: Judge, let me turn to the area of antitrust, a matter that's very important for the businesses and the consumers of this country.
DEWINE: For over 100 years our antitrust laws have helped consumers by ensuring that our economy is competitive and vibrant. Our antitrust laws are the oldest in the world, and many people, including me, think they are the best in the world.
In fact, I'm proud to say that John Sherman, Republican senator from my own home state of Ohio, wrote the first antitrust law back in 1890.
Over the past 20 years we've achieved a great deal of consensus, I think, about how the antitrust laws should be enforced, Democrat and Republican administrations.
As the chair of this committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, I've worked very closely with Senator Kohl, who asked you some questions about antitrust. I think we've worked in a bipartisan way to ensure that consumers and competition are protected.
This is a simple goal but it's not always easy to achieve or put into practice. For example, recently the rise and expansion of the Internet and the technological explosion of the so-called new economy have led to a marketplace that's changing faster and more often than we have really ever experienced before.
Judge, what challenges do you think the courts face in trying to square our old antitrust laws as they are currently written with new business strategies and the high technology markets? And do you think that the laws, these laws, give courts enough guidance to deal with these new economy issues?
ROBERTS: Well, that was really the basic issue that I faced in the Microsoft case before the D.C. Circuit en banc. There was a lot of argument, academic commentary back and forth. The idea this is a whole new area, you can't apply the old principles, they don't work in this context, you need to do something different. A so-called new paradigm and all that.
And at least the argument that I tried to make on behalf of the states was that the basic principles are the same. The Sherman Act was, as many have said, you know, a charter of economic freedom, and that those basic principles do have to be applied regardless of changes in the economics of the underlying businesses or the structure of the markets. Obviously, it requires a great deal of sensitivity on the part of the judges and it's a real challenge for the lawyers sometimes to be able to understand the economics, to be able to explain them to the judges, and judges appreciate that.
But my basic instinct, and it's nothing more than that, is that the principles are there and the issue is simply application in a new context.
DEWINE: Thank you.
Judge, just one final comment: Yesterday, Senator Grassley asked you whether you think that there is, and I quote, any room in constitutional interpretation for the judge's own values or beliefs.
In response, you said, and I quote, No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case, but you don't look to your own values and beliefs. You look outside yourself to other sources, end of quote.
You contained by saying that, and I quote, Judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision, end of quote.
Now, Judge, I know what you meant by that answer: Judges should not impose their own preferences from the bench. In fact, I said pretty much the same thing in my opening statement on Monday.
But, Judge, putting on a black robe does not mean that judge should lose his character.
You, sir, have a perfect resume and, certainly, an outstanding professional career. But a Supreme Court justice is more than just impeccable academic credentials and impressive accomplishments. President Bush nominated John Roberts, the man. America has gotten to know John Roberts, the man.
And I'm quite sure that the Senate is in fact going to confirm John Roberts, the man.
Over the past several months, we've examined your life, met with you in private, and now questioned you about your beliefs.
Throughout this time, your honesty, your integrity, your wisdom and, dare I say, your values have shown through.
I would just say, sir, please don't check any of that at the door when you walk into the Supreme Court.
By becoming John Roberts the chief justice, don't ever forget to be John Roberts, the man.
DEWINE: I think this country needs you to remember how you got here and who you met along the way.
We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been.
We need you to bring to the court your strong commitment to equal justice for all.
And we need you to always remember that your decisions will make a real difference in the lives of real people.
When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide, open fields of your youth.
Those values are strong, they are true. The president saw them when he nominated you. And we are certainly seeing them this week.
I must say, sir, they must never leave you.
Justice Felix Frankfurter gave this same advise to his colleagues in 1949.
There comes a point, Justice Frankfurter wrote, where this court should not be ignorant as judges of what we know as men. Great justices are more than just legal automatons, legal technicians. They are more than just that. And though they lose their individuality when they put on a black robes, great justices never forget who they are.
I wish you well. Thank you, sir.
ROBERTS: Thank you, Senator.
SPECTER: Thank you very much, Senator DeWine.
SPECTER: Senator Feinstein?
FEINSTEIN: Thank you very much, Mr. Chairman.
Judge, I subscribe to much of what Senator DeWine said. I want to tell you what I think, perhaps a little differently and personally.
Senator Graham, last night, pointed out that Justice Scalia was confirmed by 98 votes of this body. And I thought, then, and I think now how different the days were in 1986.
There's so much water under the damn since then. The nation is divided. It has polarized. It is about 50-50. We are at war. Executive authority is very much on people's minds. The law as it relates to war, the Geneva Conventions, the conventions against torture, all of these things, very much on everyone's minds.
We have seen, in the last 10 years, 193 5-4 decisions of the court, which suggests that, on major questions, the court is also very divided.
And so in comes this young justice. I was one on our side that voted for you for the D.C. Court. I did so because there were so many testimonials about what a fine lawyer you are, what a fine human being you are. And I voted for you.
But there's more in this vote. Senator DeWine just spoke about the man as opposed to the legal automaton.
FEINSTEIN: Yesterday morning, you spoke, I thought eloquently. In answering Senator Specter's questions on Roe, you discussed stare decisis as fully as I have ever heard it discussed. I am not a lawyer. I learned a lot from listening to you. You discussed the right to privacy. You were very full and forward speaking.
And then after lunch, it was as if you shut down and became very cautious. So my first question: Did anybody caution you between the morning and the afternoon sessions?
ROBERTS: No, Senator. No.
FEINSTEIN: Has anyone, when you were being interviewed for this position, ever asked your opinion on Roe?
FEINSTEIN: OK. That's good to know.
1973, 2005 -- 32 years -- over three generations of women have come, really, to feel that finally they have some autonomy over their body. And women are all different. Many of them are very pro-life. Many are pro-choice. People have different religious views, moral views. So it's this big diverse cosmopolitan of women.
But the growth has been enormous. And the ability of women to succeed -- I mean, I went into the workforce at the same time Sandra Day O'Connor did, with a year's graduate work. The door was closed. It's now open. And women are so lucky.
FEINSTEIN: And it seems to me that the living Constitution is that each person in this great country, man or woman, rich or poor, white or black, whatever it might be, can really reach their full potential.
And I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I've heard so many times, I can't really say because it may come before me. And yet, I don't expect you to say what you would do with Roe one way or another.
But I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice. You could be chief justice for 40 years. That's a very long time.
And because of the division -- and there's also a lot of fear out there -- where this new court, now with potentially two new justices, is going to go, whether you've got the ability to bring that court together, to end the 5-4 decisions, to see that big decisions are made so that they represent a much greater consensus.
And I'm trying to find out and see are those qualities really there. I was interested in a colloquy you had with Senator Biden on the end of life. And he used the word -- he asked a number of legal questions.
And then he says, OK, just talk to me as a father and tell me. Now, I have been through two end of life situations, one with my husband and one with my father, both suffering terrible cancers, a lot of pain, enormous debilitation.
FEINSTEIN: Let me ask you this question this way: If you were in that situation with someone you deeply love and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do?
To me, it's that stark because I've been through it.
ROBERTS: Well, Senator, in that situation, obviously, you want to talk and take into account the views and heartfelt concerns of the loved one that you're trying to help in that situation, because you know how they are viewing this. You know what they mean when they're saying things like what their wishes are and their concerns are and, of course, consulting with their physician.
But it seems to me that in that situation, you do want to understand and make sure that you appreciate the views of the loved one. And only you can do it because...
FEINSTEIN: That wasn't my question.
ROBERTS: I'm sorry.
FEINSTEIN: I'm trying to see your feelings as a man.
I'm not asking you for a legal view.
ROBERTS: I wasn't trying to give a legal view.
My point was that, obviously, you look to the views of the person involved. And if it's a loved one, you are the one who is in a position to make sure that you understand their views and can help them communicate those.
FEINSTEIN: How would you feel if you were in that position?
ROBERTS: An end of life situation?
You know, I do think it's one of those things that it's hard to conceptualize until you're there. I really would be hesitant to say this is what I would definitely want done or that's what I would definitely want done. You do need to confront that and appreciate all of the different concerns and impulses and considerations.
FEINSTEIN: And every situation is different.
And it's one of those things I think is difficult to put yourself in that position and say, Well, with any degree of confidence, if I were suffering and confronting the end of life, this is what I would want to do or that is what I would want to do.
ROBERTS: You can theorize it and try to come up with your views or how you would confront...
FEINSTEIN: That's right.
All I'm saying is you wouldn't want the government telling you what to do.
ROBERTS: Well, I'm happy to say that as a general matter.
FEINSTEIN: That there should be a basic right of privacy.
ROBERTS: Well, that's getting into a legal question.
FEINSTEIN: OK, I won't go there.
ROBERTS: And you don't want...
FEINSTEIN: I won't go there. Let me go somewhere else.
Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.
It goes through most of the time scrubbed pretty good before it gets to the president.
Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.
'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.
Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students.
And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.
Now, at what point does crime influence commerce?
ROBERTS: Well, I think it does.
And one of the things that's important to understand about the Lopez decision is the court analyzed it -- and, again, I'm not taking a position on whether it was correctly decided or not.
FEINSTEIN: Right, right.
ROBERTS: But as the court analyzed it, one of the things about the act was that it did not have what's known as a jurisdictional requirement. It didn't have a requirement that the firearm be transported in interstate commerce -- a requirement that I think it would be easy to meet in most cases, because guns...
FEINSTEIN: But the firearm is transported in interstate commerce -- maybe not when that student had it, but to get to the student, the firearm has been transported in interstate commerce.
ROBERTS: My point is that the fix in Lopez, all that the court was saying was missing in there, or what was different about Lopez than many of the other cases, was that lack of a jurisdictional requirement.
And if the act had been -- as I understand the court's analysis, the act had required that, which I think, again, it's fairly easy to show in almost every case.
ROBERTS: As you say, these guns are transported in interstate commerce. Then that would have been within the Congress' power under the commerce clause.
I think it was an unusual feature of the legislation that it didn't have that requirement, as so many laws do. As you know, it often says in interstate commerce. And that's -- at least as I understand the Lopez decision -- what made it unusual.
FEINSTEIN: That's very helpful. You might get it back again someday, with that fix.
Let me turn to something else that Senator Leahy asked a number of questions on, and that's the Constitution and executive power.
I'm looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?
FEINSTEIN: Which gives it the total weight of law.
Can a president, then, decide not to follow a treaty?
ROBERTS: As a general matter, the answer is no.
The treaty power, as long as it's ratified according to the requirements in the Constitution, by two-thirds of the Senate, you're perfectly correct, it is under the supremacy clause the supreme law of the land.
Now, I don't know if there are particular arguments about executive authority in that area with which I'm not familiar, and I don't mean to state categorically, but my general understanding is that treaties that are ratified -- and of course we have treaties that aren't ratified and executive agreements that aren't submitted for ratification and so on -- but the treaty that's ratified by the Senate under the supremacy clause is part of the supreme law of the land.
FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?
Now, there are questions, of course, that arise under those -- and have arisen under those -- about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated.
But that's an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.
FEINSTEIN: Let me take you to yesterday morning and stare decisis.
FEINSTEIN: Because you specifically discussed, when you were asked about Roe and Casey, precedent. Specifically, as we said, workability, reliance, pragmatic considerations, changed facts or circumstances and whether the underlying legal or constitutional doctrine would still be valid.
Are there any other factors that you think should be considered?
ROBERTS: Well, the court has been somewhat inconsistent on some other factors.
They, for example, talked about, in some cases, the length of a precedent, the idea that the longer it's been on the books, the more people have conformed their conduct to it.
In other cases, they've suggested that's not such an important consideration. In Payne v. Tennessee, the case said it noted how closely divided the court was and the prior case was a factor. But in other cases, the court has said that's not a major consideration.
So I put those factors on the table simply because, in some cases, the court looks to them; in others, it doesn't. But I think the ones I mentioned yesterday are ones that apply in every case, including the settled expectations, the workability, whether the doctrinal basis of a decision have been eroded.
FEINSTEIN: Yesterday, in answering Senator Specter on this very point, when you referred to Payne v. Tennessee, you did point out there were other considerations that come into play and they're laid out again in Dickerson and other cases, Payne v. Tennessee, Agostini, and a variety of decisions where the court has explained when it will revisit a precedent and when it will not.
FEINSTEIN: What do you think, when it should and should not?
ROBERTS: Well, I do think you do have to look at those criteria. And the ones that I pull from those various cases are, first of all, the basic principle that it's not enough that you think that the decision was wrongly decided. That's not enough to justify revisiting it. Otherwise, there'd be no role for precedent and no role for stare decisis.
Second of all, one basis for reconsidering it is the issue of workability. If a precedent has turned out not to provide workable rules, if courts get different results in similar cases because...
FEINSTEIN: Or if another case, like Casey, finds that Roe is workable.
ROBERTS: Well, again, that is a precedent of its own...
ROBERTS: ... that obviously would be looked at under principles of stare decisis.
The issue of the erosion of precedent: If you have a decision that's based on three different cases and two of them have been overruled, maybe that's a basis that justifies revisiting the prior precedent.
The issue of settled expectations: The court has explained, you look at the extent to which people have conformed their conduct to the rule and have developed settled expectations in connection with it.
Perhaps the discussion earlier we had about the Dickerson case is a good example of that, where the chief justice thought Miranda was wrongly decided but explained that it had become part of the established rules of police conduct and was going to respect those expectations.
FEINSTEIN: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
Do you think that right of privacy that you're talking about there extends to single people, as well as married people?
ROBERTS: The courts held that in the Eisenstat case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstat.
FEINSTEIN: OK. Do you think that that same right extends beyond family choices then about a child's education?
ROBERTS: Well, that's where it actually got started 80 years ago in the earliest cases. Meyer and Pierce involved questions about how to raise children, whether you could teach them a foreign language, whether you could send them to a private school. And those decisions are really what started that body of law.
FEINSTEIN: Justice argued that the statute gave the president the authority to change Iraq's designation as a state sponsor of terror and thereby relieve it, after the fact, of its responsibilities for prior acts of terror.
You wrote a concurring opinion in favor of overturning the district court's judgment. Although you agreed with the other two judges on the panel that the judgment should be reversed, you alone adopted the Department of Justice's argument that the statute granted the president total power to absolve Iraq of liability.
You reached this conclusion while acknowledging the question of statutory interpretation is close.
Can I ask my question?
SPECTER: Yes, you may finish your question.
FEINSTEIN: Do you believe that when, as in Acree, there is a close question of interpretation of a statute touching upon a foreign policy, that the executive deserves total deference?
ROBERTS: Oh, no. Senator, whether the question is close or not, I don't think there is any situation where a court concludes that the executive deserves total deference. And that was not the basis of my decision.
The judges were unanimous that the veterans were not entitled to relief. The panel was chosen from a point -- happened to be appointees of three different presidents. The view was unanimous that they were not entitled to relief.
The other two judges concluded there was no cause of action available to them. I concluded that there was no jurisdiction and wrote separately. The recognition that it was a closed question is also reflected in the view of the other two judges in addressing my concern. They acknowledged that it was a close question and I agreed with that.
But you did have legislation that said that the president can determine that these laws do not apply if he makes a determination under the criteria set forth in the statute. And he had done that. And my conclusion: that that extended to the provision that otherwise would have allowed suit.
The other two judges disagreed. They thought there was jurisdiction disagreed. They thought there was jurisdiction, but then concluded there was not right of action, so the end result of both of our positions was the same.
But it was not a question of deference. It was a question of interpreting the legal authority and consequences of an act that this body had passed and the president's finding under that.
ROBERTS: When it comes to interpreting of law, I go back to Marbury v. Madison. That is emphatically the province and duty of the judicial branch. We don't defer to the executive. We don't defer to the legislature in making that final decision about what the law is.
FEINSTEIN: If confirmed, maybe you will defer to the legislative a little bit.
ROBERTS: We defer -- just to clarify. We certainly defer in the standards of review that make sure that we are not (inaudible). But the final decision about what's constitutional or not rests with the judicial branch. The policy judgments, we certainly defer to the legislature.
FEINSTEIN: Thank you.
ROBERTS: Thank you.
SPECTER: Thank you, Senator Feinstein.
SESSIONS: Thank you, Mr. Chairman. And thank you for your leadership as we move forward expeditiously, I think, today, and I think in a helpful way.
I think the hearings have been very good.
And, Judge Roberts, I salute you for your excellent manner and your forthrightness and professionalism as you answer these questions.
You know, I hope we are moving away, Senator Feinstein, from divisiveness. In some ways, we do have a divided country. But in other ways I think we have the potential to move together. And I frankly believe that one thing that causes divisiveness and frustration and angst is when a Supreme Court would render an opinion that really is more a political or social policy decision rather than a legal decision.
And when they say it amounts to the Constitution, a constitutional provision, then that Supreme Court opinion can only be changed by two-thirds of both Houses and three-fourths of the state.
Do you understand that danger, Judge Roberts, in opinions and is that perhaps one reason you think a judge should show modesty?
ROBERTS: Well, it is part of what I mean when I say a certain humility should characterize the judicial function. Judges need to appreciate that the legitimacy of their action is confined to interpreting the law and not making it.
And if they exceed that function and start making the law, I do think that raises legitimate concerns about legitimacy of their authority to do that.
SESSIONS: Well, I would observe that the American people are beginning to believe that is occurring, and I think it does threaten the legitimacy of the court in a way that all of us who love the law should be concerned.
And I do love the law. And I'm a big critic of the courts on these kind of activist cases. But I have practiced full time before federal judges. And as I said earlier, I believe, day after day, justice is done.
SESSIONS: You have said that, before your court, you are impressed with the objectivity and fairness that the judges bring.
Is the ideal of a blindfolded justice, a neutral umpire, is that a romantic, naive ideal? Or is that something that you believe we can and should strive to achieve in America?
ROBERTS: Well, I do know that there are sophisticated academic theorists, people who spend a lot more time theorizing in this area than I do -- and a lot smarter than I am addressing these issues -- who, some of whom conclude that in particular cases, it is difficult to do, it is different to avoid making the law while you are interpreting it.
And they kind of throw up their hands and suggest that we shouldn't even try, therefore.
And I don't agree with that. I think, as a practical matter, as a pragmatic matter, judges every day know the difference between interpreting the law and making the law.
Every day, judges put aside their personal views and belief and apply the law, whether the result is one they would agree with as a legislator or not agree with.
The question is what the law is, not what they think it should be.
I have seen that on the court of appeals. I have seen that as a practicing lawyer before the court. That is the ideal.
I'm sure judges -- I'm sure justices -- don't always achieve it in every case because it is a human endeavor, and error is going to infect any human endeavor.
But that is the ideal and I think good judges working hard can not only achieve it, but also achieve it together in a collegial way and benefit from the insight and views of each other.
SESSIONS: Well, I thank you for that. And I would share those views. And I absolutely believe the strength of our nation is our good legal system.
We have talked about the commerce clause and there has been a lot of criticism of some of the cases.
SESSIONS: I think there have only been two significant commerce clause cases maybe in the last 40 years, Lopez and Morrison. Senator Feinstein and you had a nice exchange about Lopez. I would certainly agree with your analysis.
Had the Congress placed in there a requirement that the firearm had been traveled in interstate commerce, I believe that statute would have been upheld. We could pass it again with that simple requirement, and virtually every firearm will have traveled in interstate commerce. A few states have manufacturers.
When I was a federal prosecutor, I prosecuted a lot of those cases. As a young prosecutor, I was sort of an expert at it in the '70s, and I proved sometimes the interstate commerce by simply putting an agent on there saying there was no gun manufacturer in Alabama. Or it said, Made in Italy, on it. I remember I got that affirmed one time as proof beyond a reasonable doubt that it was not made in Alabama.
So Lopez, I believe, is a good decision.
Also, with regard to crime, I would note that we've always had that nexus with interstate commerce. As a federal prosecutor, it's not prosecution for theft, it's prosecution for interstate transportation of stolen property. That's the federal crime. Theft is prosecuted only by the state courts unless it's theft from an interstate shipment. That's a federal crime. It's not stealing an automobile, it's interstate transportation of a stolen motor vehicle. ITSMV is the federal crime.
The Hobbs Act, the Extortion Act to use against politicians, you have to have an interstate nexus. And I've had cases where bribery was proven, but we were not able to prosecute it federally because it did not have an interstate nexus. RICO, even arson cases have to have it there.
So I just want to make sure that -- let me ask you this.
In general, wouldn't you agree if someone in Pennsylvania picks up a rock and murders their neighbor, that is a crime unreachable by federal prosecution under traditional interpretations of commerce clause and the reach of the federal government?
ROBERTS: Well, again, barring special circumstances of the sort you were talking about, that's generally something addressed by state authorities.
SESSIONS: We need to get this thing straight.
We have some people complaining we are federalizing too many crimes and then complaining that we are striking down some that go too far. States should prosecute these cases locally and effectively, and should do that -- guns in schools, and guns and that kind of thing.
In the Violence Against Women Act, that was a commerce clause case, where a woman was raped and then sued the people who assaulted and raped her. She wanted to sue in federal court under the Violence Against Women' act.
What the court held there was, as I read it, the court limited Congress' power to provide for civil damages, money damages. She could sue that rapist in state court, but not for money damages in federal court. Is that the holding of that case?
ROBERTS: That's my understanding of what the court held in the Morrison case, yes.
SESSIONS: And I don't think it is an utterly extreme position. It certainly did not gut the Violence Against Women Act. It has so many more provisions than just that.
If the action had been against a private business, could the damages have been rendered in that case?
ROBERTS: I'm not sure I know the answer to that, Senator.
SESSIONS: I will follow up on the Garrett case that several people mentioned. It involved the University of Alabama in a lawsuit against the state institution claiming violation of the Disabilities Act.
The state defended on the grounds that you could sue the state of Alabama for back pay. You could sue the state of Alabama to get your job back. You could sue the state of Alabama and get an injunction against the state to not discriminate again in the future.
But under the sovereign immunity doctrine that protects a state from lawsuits, you couldn't sue them for money damages.
Now, Senator Cornyn, who was attorney general of his state and attorney generals like Attorney General, now Judge Bill Pryor, who defended Alabama raised that defense.
And I don't think it is a bogus defense. I think it is a legitimate concern.
Judge, do you recall where the doctrine is that's so famous in the law, that the power to sue is the power to destroy? Do you remember where that came from in our legal history?
ROBERTS: I remember tax opinions talking about it; the power to tax being the power to destroy.
SESSIONS: But I think that the doctrine has been applied to the states. We attorney generals are familiar with it.
Under the sovereign immunity that the states have, if you are empowered to sue the state of Alabama in federal court, then you have virtually the power to destroy that state financially, if there's no real limit on it.
And so we have always provided and the states have provided a sovereign immunity that the states are only allowing themselves to be sued under certain circumstances and you cannot just sue them unnecessarily.
I know Senator Mark Pryor, our Democratic colleague, signed on the brief for the state of Alabama in the Garrett case, taking this position and the Supreme Court ruled with it.
So I also would note that it did not in any way destroy the Disabilities Act. It applied to only -- state employees only make up about 3.7 percent of the employees in the nation that might be covered by that.
So I think that there has been healthy trends in re-establishing that there's some limit to the reach of the commerce clause.
Would not you agree?
ROBERTS: Well, the interesting thing: The court's most recent decision is the medical marijuana decision in the Raich case. And the court there looked at the Lopez and Morrison decisions and tried to put them in context and said -- because the argument there was based on Lopez and Morrison, saying this is beyond Congress' power.
And the court said those are only two of our cases and they need to be put ion the broad sweep of commerce clause precedents for over 200 years.
Yes, there are two cases and it had been -- I think -- 65, 70 years since the court had focused on limitation under the commerce clause and concluded that it was beyond Congress' power.
But the Raich case concluded that this was within Congress' power. they said it's not as if Lopez and Morrison are junking all that came before. They just need to be considered in a broad context.
And, of course, there's decision after decision, going back to Gibbons against Ogden, one of Chief Justice John Marshall's early opinions about the scope of Congress' power to destroy.
SESSIONS: But I think that the doctrine has been applied to the states. We attorney generals are familiar with it.
Under the sovereign immunity that the states have, if you are empowered to sue the state of Alabama in federal court, then you have virtually the power to destroy that state financially, if there's no real limit on it.
And so we have always provided and the states have provided a sovereign immunity that the states are only allowing themselves to be sued under certain circumstances and you cannot just sue them unnecessarily.
I know Senator Mark Pryor, our Democratic colleague, signed on the brief for the state of Alabama in the Garrett case, taking this position and the Supreme Court ruled with it.
So I also would note that it did not in any way destroy the Disabilities Act. It applied to only -- state employees only make up about 3.7 percent of the employees in the nation that might be covered by that.
So I think that there has been healthy trends in re-establishing that there's some limit to the reach of the commerce clause.
Would not you agree?
ROBERTS: Well, the interesting thing: The court's most recent decision is the medical marijuana decision in the Raich case. And the court there looked at the Lopez and Morrison decisions and tried to put them in context and said -- because the argument there was based on Lopez and Morrison, saying this is beyond Congress' power.
And the court said those are only two of our cases and they need to be put ion the broad sweep of commerce clause precedents for over 200 years.
Yes, there are two cases and it had been -- I think -- 65, 70 years since the court had focused on limitation under the commerce clause and concluded that it was beyond Congress' power.
But the Raich case concluded that this was within Congress' power. they said it's not as if Lopez and Morrison are junking all that came before. They just need to be considered in a broad context.
And, of course, there's decision after decision, going back to Gibbons against Ogden, one of Chief Justice John Marshall's early opinions about the scope of Congress' power; and the recognition under the constitutional scheme that it is a broad grant of power; and the recognition that this body has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.
SESSIONS: I think you're going to another setting. But I think you are correct. These are some difficult areas in the court that you need a lot of attention to. But some recognition that there are limits to federal reach is, I think, legitimate for a court.
Judge, are you aware of the salary that you'll be paid if you become...
ROBERTS: In a vague way, yes.
SESSIONS: And I suppose you were, when you were affirmed to the court of appeals.
SESSIONS: You're not going to be back next week asking for a pay raise, are you?
ROBERTS: Not next week, no.
SESSIONS: Chief was pretty -- always over here knocking on our door about pay raises. But, you know, we have a deficit in our country...
And you're paid the same -- I guess the chief's maybe paid more than senators. But for the most part, judges are paid what members of Congress are paid. And I, frankly, am dubious that we should give ourselves big pay raises when we can't balance the budget.
I also chair the Courts Subcommittee, Courts and Administration. And as chief, you have a serious responsibility with regard to managing and providing guidance to the Congress on the needs of the court system.
I know that -- I'm sure that you will do that with great skill and determination. But let me ask you: Will you also seek to manage that court system -- and I hesitate, but I will use the word
bureaucracy at times -- effectively and efficiently and keep it a lean and effective management team and maintain as tight a budget as you can maintain?
ROBERTS: Well, if I am confirmed, Senator, the answer is yes. I'm aware that there is, for example, the administrative office and they provide valuable services to judges around the country.
As a consumer of their services for the past two years, I have certainly particular views about where I think they're effective and helpful to judges and other areas where -- like any bureaucracy -- where I think they can do better.
It is an area where my first priority is going to be to listen because I'm sure there are many considerations of which I'm not aware that are very important for the chief justice to take into account.
ROBERTS: And, after listening, I'll try to make the best decisions I can about administering that system.
SESSIONS: Well, there are a lot of problems. Judges are not happy with the General Services Administration, and sometimes GSA is not happy with the judges, and sometimes judges overreach and want to be treated awfully specially.
And so I think you have a challenge there. I would look forward to working with you. If you'll help us make sure that your court system is lean and efficient and productive, we'll try to make sure that you have sufficient resources to do those jobs.
One more thing that I'd just like to inquire about, and that deals with stare decisis, the deference you give to a prior decision of the Supreme Court. And you've mentioned a number of factors. And I recognize those as valid and worthy of great consideration.
But it almost strikes me that is a bit circular. In other words, the court is creating a wall around its opinions to try to avoid seeing them overruled.
Isn't it true that your first oath is to enforce the Constitution, as God gives you the ability to understand it, and that sometimes decisions have to be reversed if they are contrary to a fair and just reading of the Constitution?
ROBERTS: Yes, Senator, the oath we take is to uphold the Constitution and laws of the United States. That's true. And the way judges go about that is within a system of precedent and, consistent with rules of stare decisis, no judge starts the day by opening a blank slate and he said, What should the Constitution mean today?
You operate within those systems of precedents. That's the best way that we judges have determined to interpret the Constitution and laws consistent with principles of stare decisis.
SESSIONS: Judge, I would just conclude with noting that I remember when the court, in the 9th Circuit, ruled that striking down the Pledge of Allegiance -- then Majority Leader Tom Daschle came to the floor, as now Minority Leader Harry Reid did at the same afternoon, and they criticized the opinion and criticized the 9th Circuit and expressed concern about activism in that circuit, which I have done often myself.
SESSIONS: But I responded that my concern was not so much with the circuit, but with the confusing number of opinions from the Supreme Court and that I had no doubt that there was Supreme Court authority that would justify the 9th Circuit rendering the ruling that they did.
And I say that because we've just received word today that a judge in San Francisco has upheld -- has ruled that the pledge's reference to one nation under God violates the Constitution and should be stricken down.
So that case is going to be winding its way forward.
I'm not going to ask you to comment on it, because it will obviously come before you. But will you tell us whether or not you are concerned about the inconsistencies of these opinions? And will you work to try to establish a body of law in the Supreme Court that recognizes the free exercise rights of American citizens in regard to religion and to avoid a state establishment of a religion?
ROBERTS: Well, we talked about this in the committee hearings on a couple of occasions. And I think everyone would agree that the religion jurisprudence under the First Amendment, the establishment clause and the free exercise clause, could be clearer.
The Ten Commandments cases are the example right at hand. You have two decisions of the Supreme Court. Only one justice thinks both are right. That is an area in which I think the court can redouble its efforts to try to come to some consistency in its approach.
Now it obviously is an area that cases depend in a very significant way on the particular facts. And any time that's the case, the differences may be explained by the facts.
You do have the two provisions, as your question recognized, the establishment clause and the free exercise clause.
ROBERTS: And as I've said before, I think that both of those are animated by the principle that the framers intended the rights of full citizenship to be available to all citizens, without regard to their religious belief or lack of religious belief. That, I think, is the underlying principle, and hopefully the court's precedents over the years will continue to give life to that ideal.
SESSIONS: Well, thank you, Judge Roberts. You have by your testimony validated the high opinions that so many have of you. I'm confident you would make a great chief justice.
SPECTER: Thank you, Senator Sessions.
FEINGOLD: Thank you, Mr. Chairman.
Judge, let me start off by taking up a couple of new topics.
In September 1985, when you were in the White House Counsel's Office, you recommended deleting the following line from the presidential briefing materials: quote, As far as our best scientists have been able to determine, the AIDS virus is not transmitted through casual or routine contact, unquote.
You said at the time that the conclusion was in dispute. We now know, of course, that the line is completely accurate. But I would say we also knew that then.
The Center for Disease Control guidelines issued the month before you wanted to delete that line said the following: quote, Casual person-to-person contact as would occur among school children appears to pose no risk, unquote.
Major news organizations had reported the CDC's conclusion.
In fact, the CDC had said as early as 1982 that it was unlikely that HIV could be spread through casual contact.
ROBERTS: I'm sorry, as early as when?
FEINGOLD: As 1982. That it was unlikely that HIV could be spread through casual contact.
Why did you recommend that that line be deleted?
ROBERTS: Well, for the reason I gave in the memorandum. This was a statement by the president and I didn't want the president giving out medical advice if it was a subject of some uncertainty.
I, obviously, was not a medical expert, and you said the CDC had issued a report a month before earlier in your commentary. I don't know what the 1982 issue was.
But I just thought it's purely a matter of caution and prudence to have the president make a pronouncement on it. You have to remember, this was at the very beginning of the AIDS coming into public consciousness, and I was just concerned that the president not be giving out medical statements if people weren't absolutely sure that it was correct.
FEINGOLD: Let me follow on that a little bit. It certainly was an early time and also a critical time. I'm wondering what you did to check or have someone check on these facts. I mean, you must have known that the issue was so important the president was saying something like this that it could have given a great reassurance to people all over the country, as well as helping children infected with the AIDS virus to live happier and more normal lives to know that this was the medical conclusion. So I'm just wondering why you wouldn't check...
ROBERTS: The flip side of that, Senator, of course, is if it turned out to be wrong it could have been disastrous to have the president announcing, because the president wasn't a medical expert, either.
ROBERTS: And I'm sure my suggestion would have caused the people drafting the president's speech to go back. And if they thought they were convinced and they were sure, then that's what would have gone in there.
It was just a question of concern. I wanted to make sure that they were 100 percent confident that what the president was going to be saying about a medical issue, they had complete confidence in it. I don't know actually whether they took it out or left it in, but at least it caused them to focus...
FEINGOLD: I don't want to belabor it, but I think that was a great opportunity for presidential leadership and reassurance and would just respectfully disagree with your judgment there.
ROBERTS: Well, my judgment, just so I could...
FEINGOLD: Fair enough...
ROBERTS: It wasn't my medical judgment.
FEINGOLD: I understand...
ROBERTS: The impact of my suggestion was, obviously, to cause the people who wanted that in there to go back and make sure they were sure that they wanted the president of the United States issuing a medical statement.
FEINGOLD: I think it was pretty certain at that time what the medical view was, as indicated by the medical community of our own government, but I'll leave it at that.
Do you believe that the Congress has the power under the constitution to prohibit discrimination against gays and lesbians in employment?
ROBERTS: I don't know if that's an issue that's going to come before the courts. I don't know if Congress has taken that step yet. And until it does, I think that's an issue that I have to maintain some silence on.
Personally, I believe that everybody should be treated with dignity in this area and respect. The legal question of Congress' authority to address that, though, is one that could come before the courts, and so I should...
FEINGOLD: Can you imagine an argument that would be contrary to that view?
ROBERTS: Well, I don't know what arguments people would make. I just know that I shouldn't be expressing an opinion on issues that could come before the court.
FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.
You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.
The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.
FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.
In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.
The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.
So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?
ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.
The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.
The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.
In other words, it's only the right of a militia to possess arms and not an individual right.
Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.
I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.
So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.
FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?
ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts. So I do think that issue is one that's likely to come before the court.
FEINGOLD: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court.
But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions.
So your answer that you would apply that principle doesn't help me very much in understanding your view of this. We know where all eight other members of the court stand on these opinions -- in their opinions. They either wrote or joined one of them.
Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court.
Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech.
But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision.
So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?
ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.
ROBERTS: They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process.
You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views.
The process of the opinion-writing -- you can't -- the opinion turns out it (inaudible) you have to change the result. The discipline of writing helps lead you to the right result.
You're asking me for my views, you know, right here without going through any of that process.
FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?
ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice. People who would be arguing in that future case should not look at me and say, Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to.
They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing.
I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices -- every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.
FEINGOLD: I understand your view. I think it's narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn't have, as we say in Wisconsin, a snowball's chance with a couple of the justices because of what they had ruled previously.
But I didn't think that made the process in any way tainted. I knew that they simply weren't going to agree with this statute. I recognize your limitations.
So let me ask you about something else, the Hamdan.
Yesterday, you refused to answer any questions regarding your conduct in the Hamdan v. Rumsfeld case.
FEINGOLD: But today you answered questions from Senator Coburn regarding this matter. So I want to follow up in order to make sure the record is complete.
You interviewed with the attorney general of the United States concerning a possible opening on the Supreme Court on April 1, 2005. Is that correct?
ROBERTS: Yes. The specifics of the details I discussed in the response to the committee's questionnaire.
FEINGOLD: And that was six days before the oral argument in the Hamdan case. Isn't that right?
ROBERTS: I don't remember the exact date of it. I know it was shortly before that, yes.
FEINGOLD: You had further interviews on May 3rd concerning a possible appointment to the court with numerous White House officials, including Karl Rove, the vice president and the White House counsel before the decision in the Hamdan case was released. Isn't that correct?
ROBERTS: The decision was June 15th...
FEINGOLD: The question here is just: Did you have further interviews on May 3rd concerning a possible appointment to the court?
ROBERTS: May 3rd, yes. Well, whatever it was, I don't remember the exact dates, but...
FEINGOLD: You've had interviews with those individuals...
ROBERTS: In the Senate...
FEINGOLD: The record seems to indicate it was on May 3rd. You met again with Ms. Miers, the White House counsel, on May 23rd. Isn't that right?
ROBERTS: I'm relying on the -- if that's what I said in the questionnaire, yes. I don't have an independent recollection...
FEINGOLD: You have no good reason to doubt that those facts are correct. You never informed the counsel, in this case, of these meetings. Did you?
ROBERTS: I did not, no.
FEINGOLD: Mr. Gonzales' advice to the president concerning the Geneva Conventions was an issue in the case. Isn't that right?
ROBERTS: I don't want to discuss anything about what's at issue in the case. The case is still pending and pending before the Supreme Court.
FEINGOLD: Well how about this one? President Bush was named a defendant in the case. Right?
ROBERTS: Yes, in his official capacity.
FEINGOLD: The Hamdan decision was released on July 15th. Is it your testimony that no work on that decision took place after July 1?
ROBERTS: No, I didn't -- that was not my testimony. The opinions in the D.C. Circuit...
FEINGOLD: Oh, you're saying in your testimony now that no work on that decision took place after July 1?
ROBERTS: Opinions in the D.C. Circuit are complete and circulated to the panel a week before they're released. That was my -- the conclusion of when work was complete. And again, I wasn't the author of the opinion. It would have been a week before it was released.
FEINGOLD: Did you read over the opinion of the concurrence after July 1? Was there any editing that took place after that date?
ROBERTS: I don't recall, Senator, and...
FEINGOLD: But when was the issue of whether you should recuse yourselves from this case -- when did that first come to your attention?
ROBERTS: I saw -- was made aware of an article. I think it was an article. I don't remember when that took place. Whenever the article was published. And then I understand the legal opinions on the other side were requested by, I believe, the chairman. And I know that those were...
FEINGOLD: You don't recall when this matter first came up? One would think it would be something you'd remember when somebody suggested you should have recused yourself.
ROBERTS: I don't remember the date of the...
FEINGOLD: How about the approximate time?
ROBERTS: I think it was some time in July.
FEINGOLD: Mr. Chairman, so the record will be complete, I'd like to submit the article from Slate magazine by Professors Gillers, Luban and Lubet and a letter sent to you responding to Professor Rotunda's criticisms of their position. And I also want to submit an article by these three law professors that was published in the Los Angeles Times on this topic. I don't want to take anymore time on this, but I think these professors...
SPECTER: Without objection, it will be made a part of the record.
FEINGOLD: Thank you, Mr. Chairman.
I think these professors very convincingly answer Professor Rotunda's views and point out that his analysis of the case law is not particularly persuasive. And I'd urge any of my colleagues who really want to understand the issue with Judge Roberts' participation in the case, rather than just dismissing it because it's inconvenient, that they take a look at it and actually see what the issues were here.
But I appreciate your answer to those questions.
I will only be answer to get to some of my questions on the next subject, and hopefully in the next round can continue. But, Judge Roberts, as Senator Leahy mentioned earlier, when you came before the committee a couple of years ago we discussed the fact that more than 100 people on death row have been exonerated and released, and in fact I believe the number is now 121 people who we know were sentenced to die for crimes they did not commit.
I want to follow up on the work that Senators Durbin and Leahy have done in discussing with you the Herrera case. I do differ with your characterization of the case. The solicitor general brief that you signed presented the issue as whether the Constitution, quote,
requires that a prisoner have the right to seek judicial review of a claim of newly discovered evidence, unquote. That is, the question was not how strong the evidence of innocence must be, as you seemed to be suggesting earlier, but whether the Constitution requires that there be some avenue (inaudible) presenting evidence of innocence in federal court. Your brief argued that it does not.
Now, that brief also, as you know, contained a footnote that I'm going to ask you to comment on. It said, quote, There is no reason to fear that there is a significant risk that an innocent person will be executed under procedures that the states have in place. The direct review and collateral procedures that the federal government and the states have in place are more than ample to separate the guilty from the innocent. And yesterday you talked about the possible effect of DNA evidence on the legal framework in this type of case.
In light of the many cases of innocent people ending up on death row that have come to light in the past decade, and aside from what was the ultimate issue at stake in that case, do you still agree with your statement from the government's Herrera brief?
ROBERTS: Well, that was the administration position at the time. It was one that the Supreme Court agreed with; 6-3 I think was the ruling.
ROBERTS: I know Justice O'Connor was in the majority.
The issue -- and again, there was obviously argument at the time about what the issue really was in Herrera. And I thought it was quite inaccurate to view it as a case involving the question of whether actual innocence could be presented. Because it was a claim of newly discovered evidence. And it was a claim that somebody who just died was actually the murderer.
At the end of exhaustive appeals to the state system, exhaustive collateral review through the state system, exhaustive collateral review through the federal system, is there an obligation to decide at that point that a new claim that somebody else committed the crime...
FEINGOLD: I'm just running out of time and wonder if you'd just still stand by the statement, if you could just say yes or no.
ROBERTS: Well, that was the administration position that was presented.
FEINGOLD: All right, let me try to be quick on it. I'd like to know whether you think there's a risk that innocent people may be sentenced to death in today's criminal justice system.
I must say, Judge, Supreme Court justices do have the power of life and death in these matters.
ROBERTS: Senator, I think there is always a risk, in any enterprise that is a human enterprise, like the legal system. Obviously, the objective of the provision of the rights to a criminal defendant in trial, the provision of collateral review at the state level, the provision of collateral review at the federal level, the availability of, as you suggested, clemency, all of that is designed to ensure that the risk is as low as possible.
There are issues that are going to be presented about the availability of DNA evidence which may or may not help reduce the risk even further.
There's always a risk.
And obviously when you're dealing with something like capital punishment, the risk is something that has to be taken extremely seriously, at every stage of the process.
As we talked about more than two years ago at the prior hearing, I think the most effective way of minimizing that risk is to ensure that people facing that sanction have the best counsel available at every stage.
As you know from looking at this problem, the issue that comes up are questions that weren't raised that should have been raised if the person had a more capable lawyer. Avenues that weren't pursued that should have been pursued, if that lawyer had the resources.
And that's where I think the risk of wrongful conviction is going to be most effectively addressed, ensuring the availability of competent counsel at every stage of the proceeding.
FEINGOLD: Thank you, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Feingold.
GRAHAM: Thank you, Mr. Chairman.
Judge Roberts, your intellectually stamina impresses me because you can't see this on television. It must be 150 degrees in here.
And I just don't know how you're doing it. But I'm tremendously impressed.
Mr. Chairman, I would like permission to introduce into the record some law professor's opinion that being interviewed for the Supreme Court vacancy, when Judge Roberts was interviewed, did not require him to recuse himself and I'll...
SPECTER: Without objection, it will be made a part of the record.
GRAHAM: Well, let's think about that in kind of political terms. And I know that's not really your job.
If we took this to its logical conclusion, say I was president -- I don't think that's going to happen so you don't need to be overly worried about it but you could take someone to be chief justice from the people sitting on the court. Is that correct?
GRAHAM: So if you had a judge you didn't particularly like, the best thing you could do is go talk to him about the job and they couldn't decide anything. Would that be the logical conclusion of this?
ROBERTS: I think that would be the logical conclusion...
GRAHAM: Well, I'll remember that if I'm president. But on the record now, I don't think I have the right to do that. That's part of the process.
Some big things here. Were you proud to work for Ronald Reagan?
ROBERTS: Very much, Senator, yes.
GRAHAM: During your time of working with Ronald Reagan, were you ever asked to take a legal position that you thought was unethical or not solid?
ROBERTS: No, Senator, I was not.
GRAHAM: We talked about the Voting Rights Acts. Proportionality test in the Reagan administration's view was changing the Voting Rights Act to create its own harm. Is that correct?
ROBERTS: The concern that the attorney general had and the president was that changing Section 2 to the so-called effects test would cause courts to adopt a proportionality requirement, that if elected representatives were not elected in proportion to the racial composition in a particular jurisdiction, that there would be a violation shown that would have to be addressed.
GRAHAM: Do you think it would be fair to try to suggest that because you supported that position but you're somehow racially insensitive?
ROBERTS: No, Senator. And I would resist the suggestion that I'm racially insensitive. I know why the phrase, Equal Justice Under Law is carved in marble above the Supreme Court entrance. It is because of the fundamental commitment of the rule of law to ensure equal justice for all people without regard to their race or ethnic background or gender.
The courts are a place where people need to be able to go to secure a determination of their rights under the law in a totally unbiased way. That's a commitment all judges make when they take a judicial oath.
GRAHAM: Knowing this will not this line of inquiry but, at least, trying to put my stamp on what I think we've found from this long discussion, basically, the Supreme Court decided in Section 2 that the intent test was constitutionally sound. Is that correct?
ROBERTS: That was its determination in Mobile against...
GRAHAM: And Senator Kennedy disagreed because he wanted a different test. And I respect him. He is one of the great -- first, he's not part of the Reagan revolution. I think we all can agree with that. So I don't expect him to buy into it.
But I respect him greatly for his passion about his causes. He took it upon himself to try to change a Supreme Court ruling, to go away from the intent test to the effects test, and he was able to reach a political compromise with the administration.
And I just want that to be part of the record; that to say that Ronald Reagan or Judge Roberts, by embracing a concept approved by the court, equates to that administration or this person being incensed at people of color in this country I think is very unfair and off base.
You said something yesterday that was very compelling to me. I asked you, could you express or articulate what you thought might be one of the big threats to the rule of law. And I believe you said, Judges overstepping their boundaries, getting into the land of making the law, putting their social stamp on a cause, rather than interpreting the law, because that could over time, in the eyes of the public, undermine the confidence in the court.
Is that a correct summary?
ROBERTS: Yes, Senator.
GRAHAM: Well, we have before us today, Judge Roberts, a legal opinion just issued, hot off the presses, that says the establishment clause of the Constitution apparently is violated if an American recites the Pledge of Allegiance.
You will be on the court, I hope, and you will use your best judgment on how to reconcile the 9th Circuit opinion. And I'm not asking you to tell us how you might rule, I'm making a personal observation that this is an example, in my opinion, of where judges do not protect us from having the government impose religion upon us, but declare war on all things religious.
And that is my personal view and opinion. That's why most Americans sometimes are dumbfounded about what's going on in the name of religion. No American wants the government to tell them how to worship, where to worship or if to worship. But when we exercise our right to worship, it bothers me greatly that judges, who are unelected, confused the concept between establishment and free exercise.
And I will move on.
I think it is one of the cases that is undermining the confidence in the judiciary. And I'm glad that you're sensitive to that.
The war on terror. In my past legal life, I've spent most of my legal career associated with the military. And I'm proud to be a military lawyer. I'm the only Reservist in the Senate. I sit as an Air Force Court of Criminal Appeals judge. I handle the easy cases, because I don't have a whole lot of time and I help where I can.
But I understand, I think, very well what it means to abide by the judicial canons of ethics -- not to tip your hand, not to compromise yourself to get promoted or to get put on the court; promoted in the military or to get put on the board; trying to please your boss, trying to please a senator.
And my respect for you has gone up because you're unwilling to compromise your ethics. And I hope the Senate will understand that, in the past, other people were not required to do so.
Are you familiar with the Geneva Convention?
ROBERTS: Yes, Senator.
GRAHAM: Do you believe that the Geneva Convention, as a body of law, that it has been good for America to be part of that convention?
ROBERTS: I do, yes.
ROBERTS: Well, my understanding in general is it's an effort to bring civilized standards to conduct of war -- a generally uncivilized enterprise throughout history; an effort to bring some protection and regularity to prisoners of war in particular.
And I think that's a very important international effort.
GRAHAM: As Senator Kyl said, this will be the only time we get to talk. And I don't want to compromise your role as a judge, but I do want you to help me express some concepts here that America needs to be more understanding of.
And I want to work with my Democratic friends to see if we can find some way to deal with us.
We're dealing with an enemy that is not covered by the Geneva Convention. Al Qaida, by their very structure and nature, are not signatories to the Geneva Convention and are not covered under its dictates.
An enemy combatant: Are you familiar with that term in the law?
ROBERTS: Yes, Senator, I am.
GRAHAM: What would an enemy combatant be under American jurisprudence? Who would they be?
ROBERTS: Well, I really have...
GRAHAM: Fair enough. Fair enough.
ROBERTS: Those cases are both pending. The ones that I've decided are pending before the Supreme Court and those issues are likely to come before...
GRAHAM: Fair enough. The Geneva Convention doesn't cover Al Qaida, but or president has said that anyone in our charge, terrorist or not, will be treated humanely.
I applaud the president, because, in fighting the war on terror, we need not become our enemy. Our strength as a nation is believing in the rule of law, even for the worst of those that we may encounter.
I admire Mr. Adams for representing the Redcoats. I cannot imagine how tough that must have been. But his willingness to take on the unpopular cause in the name of the rule of law has made it stronger.
When the president said that we will treat everyone humanely, even the worst of the worst, I think he's brought out the best in who we are.
But we're in a war, Judge Roberts, where the Geneva Convention doesn't apply. And we have before the courts a line of cases dealing with the dilemma this country faces.
When you capture an enemy combatant, non-citizen, foreign terrorist, there's three things I think we must do. We must aggressively interrogate them without changing who we are. We must have the ability to keep them off the battlefield for a long period of time to protect our nation.
GRAHAM: And we must have a system to hold them accountable for some of the most horrible crimes imaginable.
Justice Jackson was of your favorite justices. Is that correct?
ROBERTS: I think that's a fair description, yes.
GRAHAM: He has indicated in the Youngstown case that the presidency of the executive branch is at its strongest when it has concurrence with the legislative branch. Is that a fair summary of what he said?
ROBERTS: Yes. He divided up the area basically into three parts. Considering the executive's authority, he said when it has the support of Congress it's at its greatest, and, obviously, when it's in opposition to Congress it's at its lowest ebb, as he put it. And he described a middle area in which it was sometimes difficult to tell whether Congress was supporting the action or not.
GRAHAM: This is me speaking, not you.
Congress is AWOL, ladies and gentlemen, in the war on terror when it comes to detention, interrogation and prosecution of enemy noncitizen combatants.
Justice Scalia has written eloquently that Congress has the power to get involved in these issues and Congress is silent.
What is the case, is it the Rasul case, where the Supreme Court in a 5-4 decision has given habeas corpus rights to noncitizen foreign terrorists?
ROBERTS: I think that's correct, Senator.
GRAHAM: That is an amazing departure from what we've been as a nation for 200 years. I have been to Guantanamo Bay twice. The people running the prison tell me that 185 of detainees have lawyers in federal court. Justice Scalia says we've set up a situation where 94 different jurisdictions can hear habeas cases involving noncitizen foreign terrorists. The people running the jail say this process is undermining out ability to get good information.
A habeas corpus petition, would it allow a defense attorney to call a military commander in to answer for how this person was captured?
ROBERTS: I don't know, Senator, and I hesitate to opine on that without knowing.
GRAHAM: Well, the truth is that we've set up a situation where our military leaders and our military commanders and soldiers in the field can be called from all over the world, all over the country, to answer for why such person is detained.
We had a conversation in our office, my office. You said something to the effect, as Justice Scalia said in his dissenting opinion, that this would be an area where the courts would welcome some congressional involvement.
And right now, we have the executive branch carrying the load totally by themselves. We've got several cases before the court dealing with detention policy, interrogation policy and prosecution policy. Do you believe that this is an area, if the Congress acted, as Justice Jackson said, that it would strengthen the hand of the executive in a legal situation?
ROBERTS: My observation during our meeting, Senator, was not an expression of legal determination. And it doesn't necessarily mean a view that Congress' action or involvement would be determinative or would even be within the scope of legal authority, depending on what the issue and the arguments were.
I do know that when you are in the middle area, where it's difficult to determine whether Congress is supporting the president's action or is opposed to the president's action, that the court often has to try to read the tea leaves of related legislation.
If you look at the Dames and Moore decision coming out of the Iranian hostage crisis, what the court did in that case, applying the middle tier, was look at a vast array of legislation. And it was a very difficult enterprise to try to figure out what Congress' view was.
My point was simply that if we'd know what Congress' view was, it might make it easier to apply it in a particular case, and you wouldn't have to go through that process of trying to determine what position Congress was in, if that turned out to be pertinent under the particular legal challenge.
GRAHAM: Thank you.
Justice Scalia said in a very direct way, The courts are ill- equipped to deal with these issues.
In the Youngstown Steel case, Justice Jackson says, When the president acts pursuant to an express or implied authorization of Congress, his authority is at the maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate.
A seizure executed by the president pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who may attack.
GRAHAM: Do you agree with that?
ROBERTS: That was read from the Jackson -- I do. I agree with the basic proposition that the president's authority is at its greatest when he has the support of Congress.
GRAHAM: To my colleagues, I think it is imperative for this body to get involved in the war on terror when it comes to detaining, interrogating and prosecuting enemy combatants who are not citizens.
It is important that all three branches of government, in my opinion, feel comfortable with the policies of this nation, that we'll be stronger if the judicial branch, the legislative branch and the executive branch are working together to come up with policies that will allow for aggressive interrogation, appropriate detention and serious prosecution in a way that's within the values of our nation.
So that is why I will be introducing legislation on all those topics. And I will not ask you any further what you may or may not do about the legislation if it ever gets to the floor of the Senate and passed.
The Kelo case. Of all the things that have been decided, and I haven't been to my office since the recent case about the pledge -- though it may have trumped it -- I have gotten more phone calls about the Kelo case than anything the Supreme Court has done lately.
And for those who may be tuning in, the Kelo case basically said that the government can take your property, give it to someone else, another private person because it could be used at a higher and best use and it may generate more taxes.
I'm not going to ask you to tell me how you decide the Kelo case. But I just want you to know -- as Senator Kyl indicated, this is the only time you can hear from us -- that my phone is ringing off the hook and that every legislature that I know of is going into session as quickly as they can to correct that.
So I want to leave with you -- and when you meet your new colleagues, please let them know that some of the things they do that we watch. And that the courts are able to do their job because the public defers to the court and respects the court, but there is a limit.
GRAHAM: The office of chief justice of the United States is different, as you're the first among equals.
What do you believe as chief justice you can bring to the table that you could not as just a normal member of the court?
ROBERTS: Well, if I am confirmed, I think one of the things that the chief justice should have as a top priority is to try to bring about a greater degree of coherence and consensus in the opinions of the court.
I know that has been -- was a priority of the last chief justice. I actually believe that is something that should be a matter of concern for all of the justices, but as the chief, with responsibility for assigning opinions, I think he has greater scope for authority to exercise in that area and perhaps over time can develop greater persuasive authority to make the point.
And again, coming from the chief it may be a point that other justices would receive -- be more receptive to than they might coming from one of their colleagues; that we're not benefited by having six different opinions in a case; that we do need to take a step and think whether or not we really do feel strongly about a point in which a justice is writing a separate concurrence which only he or she is joining, or whether the majority opinion could be revised in a way that wouldn't affect anyone's commitment to the judicial oath to decide the cases as they see fit, but would allow more justices to join the majority so the court speaks as a court.
That is something that the priority should be, to speak as a court.
GRAHAM: So your goal as chief justice is where you can, and as often as you can, define consensus and unite the court, is that true?
ROBERTS: I think the court should be as united behind an opinion of the court as it possibly can.
ROBERTS: Now, obviously, in many cases it's not going to be possible.
GRAHAM: I applaud you because we're a divided nation, and the more united we can become at any level of government, the stronger we'll be. So I applaud you for that attitude.
SPECTER: Thank you very much, Senator Graham.
SCHUMER: Thank you, Mr. Chairman.
And, Judge Roberts, it's nice to talk to you so early in the day.
Yesterday, you stated that you, quote, agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that, unquote. And you noted that the court's later decisions have based the constitutional right to privacy on the liberty component of the due process clause of the 14th Amendment.
Now, Justice Thomas, at his confirmation hearing, answered in a way very similar to the way you did. During his confirmation hearing, here's what he said, quote: I believe the approach that Justice Harlan took in Griswold in determining the -- or assessing -- the right to privacy was an appropriate way to go, unquote.
Now, we all know that Justice Harlan's approach located the right to privacy in the liberty interests of the due process clause of the 14th Amendment.
And Justice Thomas also said at his confirmation hearings, along the same lines, that he agreed with the court decision in Eisenstadt v. Baird, where the court held that single people have the same right to privacy as married people on the issue of procreation.
However, since he's been confirmed to the court, Justice Thomas has not applied the right to privacy to keep protections -- for instance, in Lawrence, in 2003, he declared that there is no general right to privacy in the Constitution.
Now, yesterday you said that, quote, Liberty is not limited to freedom from physical restraint.
SCHUMER: It does cover areas, as you said, such as privacy. It's not only protected in procedural terms, but protected substantively as well.
You said that you agreed that, quote, There's a right to privacy to be found in the liberty clause of the Fourteenth Amendment.
So that seems directly to contradict Justice Thomas' view, once he got on the court, as I outlined, in Lawrence.
I assume that you disagree with Justice Thomas's view that there is no general right to privacy, as he stated in Lawrence.
ROBERTS: Well, I think that question depends, obviously, on the modifier and what you mean by general.
I noted in going over the nomination hearings of Justice Breyer, he also said that the privacy interest is protected as part of the liberty protected by the due process clause. I think that is the general approach.
SCHUMER: Let's talk about Justice Thomas. He said there is no general right of privacy. You seemed to say yesterday -- you didn't seem to say; you said, that there was a right to privacy.
Let's forget that Justice Thomas said it. You would disagree that there is no general right to privacy in the Constitution.
ROBERTS: I wouldn't use the phrase general, because I don't know what that means. I don't know if by saying general they're trying to describe the particular scope to the right to privacy or not.
I think there is a right to privacy protected as part of the liberty guarantee in the due process clause.
SCHUMER: A substantive right to privacy?
ROBERTS: It's protected substantively, yes.
SCHUMER: Your reading of Justice Thomas' case in Lawrence, that he does not believe in that?
ROBERTS: No. I think his statement obviously focused on general. And his conclusion in that case was that the right to privacy protected under the due process clause that you noted he acknowledged at his hearings did not extend to include the activity at issue in Lawrence.
SCHUMER: This is obviously very important, because Justice Thomas seemed to be more full in his view of privacy at his confirmation hearing than later, when he was on the court, at least if you read his decisions.
And you are not willing to say that your view is different than the view Justice Thomas stated in Lawrence.
ROBERTS: I'm not willing to state a particular view on the Lawrence decision. And that's consistent with the approach that I've taken...
SCHUMER: Let me ask you a broader question. Do you disagree with Justice Thomas' interpretation of the right to privacy in any decided case?
ROBERTS: Senator, I'm not going to comment on whether I think particular cases were correctly decided or not, in areas...
SCHUMER: I didn't ask that.
ROBERTS: Well, I don't know which cases you're talking about.
SCHUMER: Any -- any one you want.
ROBERTS: Well, that would be commenting on whether that decision was correctly decided or not. If I'm agreeing or disagreeing with one of the justice's views in that case, that would be commenting on whether that view was correct or not. If it was in a dissent, it would be disagreeing.
ROBERTS: If it was in the majority, it would be agreeing. And because those are in areas that could come before the court, like every other nominee to come before this committee who's on the court today, I think it's inappropriate to comment on the correctness or incorrectness of those decisions in areas that could come before the court.
SCHUMER: So, you're not -- you don't have to answer this. It's obvious you will not state where you disagree with Justice Thomas, and it could well be that what he said at his hearing and you said at your hearing might lead to -- might -- lead you to rule in the same way on privacy.
ROBERTS: Well, again, my view on privacy -- as I've expressed, but there is a right to privacy, protected as part of the liberty under the due process clause.
SCHUMER: Would you say there's a general right to privacy?
ROBERTS: I don't know what general means.
SCHUMER: Substantive right to privacy.
ROBERTS: Well, substantive, yes. I have said that, that the protection extends to substantive protection. But when you say general, I don't know what that means. I don't know if that means...
SCHUMER: Excuse me. Didn't Justice Thomas disagree with the substantive right to privacy in Lawrence?
ROBERTS: His conclusion was that the liberty protected by the due process clause did not extend to that right, yes.
SCHUMER: Thank you. So, it would seem to me you disagree with him. I think you said it without saying it.
ROBERTS: No, Senator, you're asking me whether the right to privacy protected under the liberty clause extends to a particular right, the right at issue in Lawrence.
SCHUMER: I think what I'm asking you: Is there a substantive right to privacy? I don't apply it to a particular case.
ROBERTS: I have said there is a substantive right to privacy.
SCHUMER: And in Lawrence, Justice Thomas seemed to say there is no substantive right to privacy.
ROBERTS: No, as I understand it -- again, his testimony as a nominee was that there was. What he said was -- the quote you read in Lawrence --said there's no general right to privacy. Now, I don't know...
SCHUMER: His holding was that there was no substantive right to privacy under the liberty clause. Wasn't it? Wasn't that the whole thrust of his argument?
ROBERTS: No, I think, Senator, that his conclusion in Lawrence was that whatever right there was, it did not extend to the activity that was at issue in Lawrence.
SCHUMER: Bottom line is: You're unwilling to differentiate yourself from Justice Thomas's view on Lawrence.
ROBERTS: Well, it's consistent with the approach I've taken that I don't think it's appropriate to protect -- necessary to protect the independence and integrity of the court, to comment on whether that decision was correctly decided or not. And that is consistent with the approach that every member of the court...
SCHUMER: Yes, I just didn't ask you that. I asked if you disagreed with his particular holding.
SCHUMER: But let me ask you a few other questions here because I think you're cutting back a little on what you said yesterday, at least, if you look at the whole picture here and your unwillingness to disagree with Justice Thomas.
But let me ask you this about judges in general. You sit on a court, correct?
SCHUMER: OK. And sometimes you dissent. And that's routine, not just for you but for every judge.
ROBERTS: It's rare on our court, I'm happy to say.
SCHUMER: Yes, it is. It is. That is true. I've noticed that. But it happens in courts all the time.
OK. And in doing so, the dissenting judge is criticizing the majority opinion, right? Disagreeing with it? And I take it this happens on the Supreme Court quite often? And, in fact, there aren't that many unanimous Supreme Court cases on major cases these days.
ROBERTS: Actually, one point that statistics always show that more cases were unanimous than anything else.
SCHUMER: But there are a lot of dissenting...
ROBERTS: There are a lot.
SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?
Let's go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?
SCHUMER: In speeches, law review articles, it's a healthy process, wouldn't you say?
ROBERTS: I agree with that. Yes.
SCHUMER: And you did this occasionally when you were in private practice?
SCHUMER: OK. Nothing unseemingly about that?
SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That's what they do for a living.
And that's part of being a good lawyer.
And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?
ROBERTS: On occasion, yes.
SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, Roe was wrongly decided and should be overturned, unquote. Right?
SCHUMER: OK. But in this hearing room, you don't want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary.
You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you've done it until very recently. You could probably do it before you just walked into this hearing room.
And if you're confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room -- when it is more important than at any other time that the American people, and we the senators, understand your views.
Why this room should be some kind of a cone of silence is beyond me. The door outside this room doesn't say, check your views at the door.
So your failure to answer questions is confounding me. You've done it in instance after instance after instance after instance.
What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day?
In each case, they have to state their opinion. They have to do it as part of their job, if you will -- writing a brief, rendering an opinion, writing an article.
In each case, they're stating their views, which might bias them. You've done it.
Yet, only here you can't state your views. If the argument -- and, by the way, there's a very god countervailing reason that you should state your views, because, as the founding fathers so constructed, this is the one time you go before an elected body before a lifetime appointment. And it seems to me this is something of an argument of convenience. Senator Specter said it well. He said you'll answer as many questions as you have to to get confirmed. That may be the actual fact, but it's not the right thing to do, in my judgment.
And so, please tell us why is the bias, why is the fact that you have already stated an opinion, any different when you sit in this room in terms of jeopardizing your future as a judge than it is when you're doing all these other things that you've done?
And let me just remind you -- going to give you a chance the answer this -- but I think it's bothering a lot of people, in this room and out of this room.
Justice Ginsburg, people who have sat in your very chair, just about every single justice, with one or two exceptions, has given their opinions of existing cases. Justice Ginsburg said on Roe v. Wade, My view is that if Roe had been less sweeping people would have accepted it more readily. Do you think she was unable to keep an open mind in cases implicating Roe? Do you? Do you think she was unable to keep an open mind? Just answer me about her, not about what...
ROBERTS: Senator, I'll explain why she expressed her views on that particular issue. It was an explanation that she gave at the time, that she had written extensively on that subject, and she thought that her writings were fair game for discussion. She took a different view...
SCHUMER: But she -- excuse me, because I want to -- she would be expressing an opinion, which might yield bias, whether she wrote before or not. She did it over and over again. She praised Learned Hand's First Amendment decision in :Masses publication. I don't think she was biased to keep her mind open on courts in that line. As Joe Biden said, in Moore v. City of Cleveland, she candidly -- and I don't think she had writings on that one -- she expressed the opinion has difficulties.
And other justices have done it: Justice Breyer talked about U.S. v. Booker; Justice Powell about Miranda; Justice Souter about Miranda. Didn't bias him in the Dickerson case. Not all have these people had previously written.
You can make a distinction to every single example I give. You can say, well, she wrote on that one.
SCHUMER: But when you add it all up, you are being less forthcoming. I know you're doing what you feel is right. But you're being less forthcoming with this committee than just about any other person who has come before us. You are so bright and you know so much, but there's another aspect to this, which is letting us know what you think.
And you've set up your own little construct. It's not really the Ginsburg precedent, or it isn't Canon 5, which you cited repeatedly at your Court of Appeals hearing.
And so let me ask you this one question and then you can answer it in general: Has there been any judge that you're aware of who has had to recuse himself or herself because of what they said at a confirmation hearing?
Can you name for me a judge who you think was biased or not able to render justice because they gave their opinion at a confirmation hearing, sitting at this table as you do?
ROBERTS: I think because the justices have followed the approach that I am following -- and as I said, I've gone back and read every one of the transcripts for the justices -- they have avoided commenting on whether they think decisions were correctly decided or not.
If you look at what Justice Ginsburg said when she was asked whether she thought the Maher and Harris cases were correctly decided, you will see she said, I'm not going to comment on that. She said,
I know what the precedents are, I have no agenda to overrule them, and that's all I'm going to say.
SCHUMER: She commented on many other cases, as you went through with Senator Biden yesterday, and as we've gone through a little bit here. She commented on many different cases, didn't she?
ROBERTS: My understanding...
SCHUMER: There were reasons, but she did comment on other cases, didn't she?
ROBERTS: My understanding of the cases she felt appropriate to comment on, as I said, were the ones where she had already written on it. And she said, I think my writings are appropriate.
SCHUMER: There are no cases she commented on where she hadn't written?
ROBERTS: I thought she adhered to her view.
Her view was no hints, no forecasts, no previews. That's exactly what she said. That's an exact quote from her hearing transcript.
SCHUMER: I have to say, sir, I disagree with you.
I've looked at her testimony. She didn't comment on some cases and commented on others.
SCHUMER: If you look at how many she commented on and how many she didn't, it's a far different balance than you, who have commented on Marbury, Brown, Griswold and not much else.
And each time, even when we talked yesterday about Wickard v. Filburn -- and it's a 1942 case, it's at the root of a large -- it's a trunk of a large tree of constitutional law, you were unwilling to comment.
And of course you say it might come before the court, but that's a prediction. Some may, some may not. Maybe a Brown case would come before the court. Maybe a Griswold case would come before the court.
And if you had wanted to, you could have easily said those may come before the court and not answer those. It's sort of your own little way of doing it.
I just have one more question here.
The president, as I said -- and this motivates some of us -- he said he wants to nominate judges in the mold of Thomas and Scalia.
I want to ask you: Are you in the mold of Thomas and Scalia? The president said he wanted to nominate people that way.
ROBERTS: Well, Senator, I'll give the same answer I gave yesterday to Senator Graham when he asked if I would be in the mold of the chief justice.
ROBERTS: And the answer is: I will be my own man on the Supreme Court, period.
SCHUMER: I appreciate that.
Do you think they are activist judges?
ROBERTS: I'm not going to criticize them with respect to any general description of that sort.
I'm sure there are cases where I would agree with them and there are cases where I would disagree with them, as with all of the justices.
Now -- by the way, I'll note, I don't think I have time here, but you did criticize in a memo back when you were working in Attorney General Fred Fielding's office, Brennan and Marshall as activist judges.
Now, I don't think that was the official position of the Reagan administration, so it seemed to be your opinion.
Can you tell me in 30 seconds, so I can just ask one more question: How is it different not to want to characterize Justices Thomas and Scalia, but it was OK to characterize Justices Marshall and Brennan?
ROBERTS: Well, that was -- it was a reflection of the views of the attorney general at the time. And that was part of the...
SCHUMER: But it wasn't official Reagan policy?
ROBERTS: I don't think it was official policy. It was an expression that the attorney general had made on various occasions.
SCHUMER: Let me just say, sir, in all due respect -- and I respect your intelligence and your career and your family -- this process is getting a little more absurd the further we move.
You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers.
It's as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, I like movies with good acting. I like movies with good directing. I like movies with good cinematography.
And I ask you, No, give me an example of a good movie. You don't name one. I say, Give me an example of a bad movie.
SCHUMER: You won't name one. Then I ask you if you like
Casablanca, and you respond by saying, Lots of people like 'Casablanca.'
You tell me it's widely settled that Casablanca is one of the great movies.
SPECTER: Senator Schumer, now that your time is over, are you asking him a question?
I am saying, sir -- I am making a plea here. I hope we're going to continue this for a while, that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.
SPECTER: We will now take a 15-minute break, reconvene at 4:25.
ROBERTS: Mr. Chairman, could I address some of the...
SPECTER: Oh, absolutely. Absolutely.
I didn't hear any question, Judge Roberts...
ROBERTS: Well, there were several along the way.
LEAHY: ... want to break anyway. You go right ahead.
ROBERTS: I'll be very succinct.
SPECTER: You are privileged to comment.
This is coming out of his next round, if there is one.
SCHUMER: I guess there'll be.
ROBERTS: First, Dr. Zhivago and North by Northwest.
SCHUMER: Now, how about on the more important subject of what...
SPECTER: Let him finish his answer. You're out of time.
SCHUMER: Not out of movies.
ROBERTS: The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences.
The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion.
And in my experience, every one of those stages can cause you to change your view.
The view you ask then of me, Well, what do you think, is it correct or not? or How would you come out? That's not a result of that process. And that's why I shouldn't respond to those types of questions.
Now, the professor, how is that different? That professor is not sitting here as a nominee before the court. And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is turning this into a bargaining process.
It is not a process under which senators get to say, I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you.
That's not a bargaining process.
Judges are not politicians. They cannot promise to do certain things in exchange for votes.
And if you go back and look at the transcripts, Senator, I would just respectfully disagree. I think I have been more forthcoming than any of the other nominees. Other nominees have not been willing to tell you whether they thought Marbury v. Madison was correctly decided. They took a very strict approach.
I have taken what I think is a more pragmatic approach and said, if I don't think that's likely to come before the court, I will comment on it.
ROBERTS: And, again, perhaps that's subject to criticism, because it is difficult to draw the line sometimes. But I wanted to be able to share as much as I can with the committee in response to the concerns you and others have expressed, and so I have adopted that approach.
SPECTER: 4:25 -- we're anxious to move ahead to try to conclude your testimony, Judge Roberts, as early as we can. I know you'll agree with that.
ROBERTS: Thank you, Mr. Chairman.
Thank you for the accommodation.
SPECTER: The hearing will continue.
We found out as soon as we had completed the recess that a vote had been called, and the senators have been over voting, which accounts for the slight hiatus here. But we're now going to proceed. And it's the turn of Senator Cornyn for a 20-minute round.
LEAHY: And I'm sure, Mr. Chairman, the judge just missed us terribly, couldn't wait for us all to get back here.
ROBERTS: Glad we're back.
SPECTER: He may have missed us under the theory that the sooner we start, the sooner we end.
But that principle may not apply here. Stare decisis would suggest that it does not.
CORNYN: Thank you, Mr. Chairman.
Judge Roberts, my observation is that you have been completely bipartisan when it comes to refusing to answer questions, either from this side of the aisle or that side of the aisle, that you feel would compromise your independence as a judge or violate your code of conduct as a judge.
I have to tell you, though, that there are people who may be keeping score of how many questions you're answering propounded by this side and that side. And I guess one way to sort of run the score up would be to keep asking questions that you know you can't answer and thus to claim some grievance or advantage when it comes to making that comparison. But I hope we don't do that.
I want to talk to you a little bit -- well, first of all, before we go there, I know one of the questions involved the Code of Judicial Conduct and whether you were proscribed by that and the differences between what you have felt at liberty to testify to and Justice Ginsburg did.
CORNYN: But I noticed that in the commentary to Canon 5, the Model Code of Judicial Conduct, the last sentence says this section applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment.
Is that your recollection of the code's scope?
ROBERTS: Yes, Senator.
CORNYN: And I would ask unanimous consent that that be made a part of the record.
SPECTER: Without objection, it will be made a part of the record.
CORNYN: Thank you, Mr. Chairman.
And I won't dwell on this any more, about the numbers of questions asked, but I know we're now up to about 66 questions that you've responded to on the role of a judge and your judicial philosophy, 48 on civil rights and discrimination, 44 on abortion and privacy.
Let me ask you this: If we keep asking the same question over and over and over again, but try to approach it from a slightly different way, to get you to answer a question that you don't feel you can ethically answer, are you going to give us a different answer? Or are you going to give us the same answer?
ROBERTS: I hope my answer would be the same, Senator.
CORNYN: Well, I'm sure that's the case.
We talked about the Code of Judicial Conduct and your ethical obligation. We've talked about the practical aspects of being a judge and the importance. And I guess this is not just practical; it's really a constitutional duty that judges have to maintain judicial independence, even from the legislative branch by making commitments of performance in office as a condition to your confirmation.
But I want to also ask you what I would -- I guess for lack of a better phrase -- practical reasons why it's hard, if not impossible, even if a judge wanted to, to be able to accurately predict how you might decide a particular matter.
I was interested to hear Senator Biden earlier ask you about right-to-die issues. And you said, I can't answer the question in the abstract. And he said, that's not abstract; that's real.
And you said: Well, Senator, as a legal matter, it is abstract, because the question would be, in any particular case: Is there a law that applied that governs that decision?
CORNYN: And that prompted me to think of, in addition to, as I think Senator DeWine asked you about, the case or controversy limitation in Article 3 of the Constitution that limits the manner in which you might reach a particular issue. So it requires a case or controversy.
He talked about standing and the importance of litigants actually having a stake in the outcome so they're willing to fight hard in the adversarial process.
Could you explain, for example, why the adversarial process is so important, and it's important for judges to make sure that people have an actual stake in the outcome, rather than, let's say, doing -- well, I know Senator Brownback, Senator Coburn, all of us get letters from constituents that say, What is your position on the Base Realignment and Closure Commission?
And why we just can't write judges letters and ask what your opinion is just sort of for an advisory capacity...
ROBERTS: Well, that actually goes back very far in our history, as you know, to the early stages when John Jay, I believe, the first chief justice, was asked for his opinion on a matter. And he made the determination that it would be inappropriate to give that kind of advice.
It was really one of the leading historical episodes that contributed to implementing the separation of powers. I think he appreciated that, if he started just giving advice on legal questions that were of concern to the president, that he would be acting more like an attorney general, and it wouldn't be separated from the executive. And then he would be in a position of giving the president advice while at the same time ruling on the legality of his conduct.
And I think the reason John Jay decided that was not appropriate for these new judges, on the new Supreme Court, to give advisory opinions is because he appreciated that they were in the judicial department, as the Constitution put it, not in the executive department -- or if the request for advice had come from the legislature.
It's an important part of the separation of powers that our courts don't give advisory opinions.
ROBERTS: Some state courts do. They have a different system of separation of powers. And in some state courts, the supreme court will give an advisory opinion. But the federal rule has always been that you have to have a constitutional case or controversy.
CORNYN: And is that a constitutional limitation?
ROBERTS: It's in Article 3, yes.
CORNYN: I mean it's not something you can take or leave?
ROBERTS: No. The requirement of an actual case or controversy is derived from the Constitution. There are some aspects of standing doctrine that are, they say, prudential; in other words, that it's up to the court whether to apply them or not. But the core requirement that the litigants have a stake in the issue, a case or controversy, is a constitutional requirement.
CORNYN: Well, in getting back to Senator Biden's question about right to die and what you believe or what your position would be if that were to come before the court, it just occurred to me you'd have to determine whether there was, in fact, a case or controversy, whether there was actually a person that had standing; that is, with a concrete stake in the outcome that brought the lawsuit so as to preserve that adversarial process.
I imagine, if you're sitting as an appellate judge, either on the circuit court or Supreme Court, you'd want to look and see what the evidence is. And maybe, for example, whether it'd make any difference in a right to die case, whether someone had a living will or not, and what the evidence was in the court below before you could really sort of make a pronouncement from on high that, yes, right to die trumps everything.
ROBERTS: Well, it's hard to know whether it trumps something until you know what the other something is. And that includes what the legislation might be.
I've had many questions before this committee about the importance of deferring to the legislature in areas in which Congress is given authority under the Constitution.
Well, as a judge, before I'd propound the idea of a right that it doesn't matter what the issue is on the other side, I'd like to know if a legislature has addressed that issue.
Now, sometimes, as you know, legislatures can exceed their constitutional bounds, and there are rights under the Constitution that individuals have that trump efforts by the legislature to address those or infringe upon them. But you need to know what the issue is in terms of the conflict between an asserted right and an asserted power of the legislature.
I don't think members of a legislative body would accept the principle that you would decide a case like that without even knowing what the legislature had enacted or what the issue was or why they had decided that this was an appropriate area of legislature. That's not deciding the controversy, it's just saying we need to have the issue narrowed in a way that courts are familiar with addressing.
CORNYN: Well, of course, juries in many instances are the fact finder, and their determination is usually binding on not only the court below, but also appellate courts reviewing that.
CORNYN: And I guess citizens would feel that they were engaged in a futile exercise of serving on juries and listening to evidence and trying to decide disputed facts if the judge on appeal was just going to say, Let's throw that out the window. We don't really care because this is the result we want to reach in a particular case.
ROBERTS: Well, judges, when they sit down to decide a case, when the case has come into the chambers, judges don't sit and decide,
What do I think about issues under the Fourth Amendment or the Fifth Amendment or the Seventh Amendment?
They want to know what the case is about. And that begins with knowing what the factual dispute is about and what the record is.
Then they want to know what law applies in resolving that question. And they want to know what the arguments are. That's why we have briefs on one side and briefs on the other.
And I'm sure you've had the same experience that I've had which is that you'll find the opening brief can be very persuasive, then you move on to the second one and you see it in an entirely different light.
And maybe your view of the case will change again as you consult with your colleagues on the bench or as you hear the oral argument.
I know I spent a lot of time doing those briefs and arguments. And I certainly hope they had some impact on a case from time to time.
And then when you sit down with the judges, all of these things, your view of a case is going to change in some way at every stage. And to say that it's the same thing when you sit down and ask an abstract question as when you've been through the judicial process and reached a decision, including having to reduce it to writing -- the requirement that judges write opinions is an important discipline on the decision of process. And those opinions are going to be submitted to the public. And everyone's going to be able to see your reasoning.
And so it has to be coherent and reasonable and something that can stand the glare of publicity and the scrutiny of scholars and other judges.
That's a very important discipline. It means, it's quite a bit different than saying, What do you think about this, whatever opinion you might give.
CORNYN: I'm also, of course, intrigued by how poorly senators, presidents, and others who try to predict how a life-tenured judge or justice on the Supreme Court is likely to look at issues next year, 10 years, 20 years down the road.
CORNYN: And it just occurs to me that there's a long list of examples where life tenure and the lack of electoral or political accountability has cause judges to change the way they perhaps have looked at things over time and, I guess, how badly presidents have guessed sometimes about how a judge will decide cases in the future.
And I think one of my favorites is Teddy Roosevelt and Oliver Wendell Holmes, when he said, I could carve more backbone in a banana than demonstrated by this justice. He was pretty hot.
So in addition to the ethical, the constitutional, the practical limitations, it just seems to me that we're engaged in a little bit of a futility here because when you're confirmed, and I expect that you will be confirmed, the designers of our Constitution expected and created a system where you would be immunized, or at least insulated, I should say, from political or other pressures.
I know there were questions about -- I want to move quickly to your participation in a lawsuit. You say it was a Hamdi case? Hamdan case?
ROBERTS: I'm sorry. Hamdi was the one in the Supreme Court.
CORNYN: Sometimes I confuse those.
ROBERTS: It's a common source of confusion.
CORNYN: And we've had a little back and forth. I think Senator Feingold asked about the ethics about your participation. Senator Graham, I thought, made a very good point in talking about, if a president wanted to disqualify a judge in a case, just call the judge up and tell him you're being considered for a federal appointment, which certainly can't be right.
CORNYN: But do you know for a fact that Justice Breyer, when he was being considered about a possible nomination to the Supreme Court, sat and decided seven cases while sitting on the D.C. Circuit Court of Appeals. Are you familiar with that statistic?
ROBERTS: No, I'm not, Senator.
CORNYN: OK. Well, our research reveals that that is, in fact, what happened. And so if Justice Breyer could participate fully in the court's decision-making process while being considered by President Clinton for nomination to the Supreme Court, it strikes me that we should not have a different standard -- and I'm not asking you to comment on that, because you said you're not familiar with Justice Breyer's record.
But if that's true, and I believe it is -- that he sat on seven different cases involving the United States government and the executive branch while he was being considered for the Supreme Court -- we shouldn't hold John Roberts to a different standard.
And that's my view.
We've got about five minutes. Let me just ask you, just as a practical matter: I worry when I see that the Supreme Court's opinions are so fractured and divided as you alluded to, I believe, on the question of the Ten Commandments.
The only one that agreed with both decisions, that the Ten Commandments could be displayed in Texas but not in Kentucky, was Justice Breyer.
And there were 10 opinions in those two cases, which led the former Chief Justice Rehnquist to quip: Well, that's more opinions than we have justices -- 10 opinions for nine justices in that case, which decided the constitutionality of the Ten Commandments.
Well, it strikes me that one of the goals of the court ought to be -- of any court ought to be -- to write decisions that can be read and understood by a person of reasonable intelligence and, frankly, Judge, I have to tell you that lawyers struggle -- no doubt circuit court judges, trial court judges, such as in the court you serve on now, struggle to try to figure out just what in the world the law actually is.
And it breeds additional litigation, a lot of money, a lot of time spend just litigating issues that the court could, if it had the will, clearly decide.CORNYN: And in some ways I think it leads some observers to wonder whether the Supreme Court is firmly grounded in the reality of how their decisions will actually be read and understood and implemented, either by lower courts or by litigants who are trying to figure out what is the law, so how can I conform my behavior and how can I make plans in a way that I can rely upon is legal.
I'd be interested in your observations.
ROBERTS: Well, Senator, I hope we haven't gotten to the point where Supreme Court opinions are so abstruse that the educated lay person can't pick them up and read them and understand them.
You shouldn't have to be a lawyer to understand what the Supreme Court opinions mean.
One of the reasons I've given previously for admiring Justice Jackson is he was one of the best writers the court has ever had. And I think you didn't have to be a lawyer to pick up one of his opinions and understand exactly what his reasoning is and why he's saying that. And if he's citing and relying on precedents, he can cite them and explains them. They're not written in jargon or legalese.
But an educated person whose life, after all, is being affected by these decisions can pick them up and read them, and you don't have to hire a lawyer to tell you what it means.
I hope we haven't gotten to a point where that's an unattainable ideal.
Now I'm not suggesting that I've always lived up to that. And I'd hate to have somebody go back and look at my opinions and critique them under that exacting standard.
But I do think that's something that it's worth shooting for, at least in most cases, that opinions should be accessible to educated people without regard to whether they're lawyers or not.
CORNYN: I think your experience as both a lawyer practicing before the Supreme Court and advising clients as well as being a circuit court judge and trying to apply those as an intermediate appellate court will help you understand that and the importance of that.
In the last few seconds we have here, you know, I was reflecting on the Ten Commandments cases, and I was thinking that as crazy as it struck me that they would uphold it in Texas, but strike it down in Kentucky, you know, I wondered -- I'm glad they didn't take out their blue pencil and try to edit the Ten Commandments, because several of them, Thou shalt not murder, thou shalt not steal, thou shalt not give false testimony against your neighbor, it's hard for me to see how those violate the establishment clause. But maybe that's another topic for another day.
CORNYN: Thank you very much, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Cornyn.
Senator Leahy and I have been discussing the schedule. And there had been a request for 30 additional minutes, all to be done tomorrow. And a schedule has been structured which will conclude shortly before 8 o'clock this evening. And we'll take a little time in the morning and then move ahead to the public witnesses so that what we'll be having is Senator Durbin will have his 20 minutes from 5:35 until 5:55. Senator Brownback will then have his 20 minutes. And Senator Coburn will have his 20 minutes of time yielded back.
The Republicans met and decided we would not take the third round in order to expedite the process.
And tomorrow morning, Senator Kennedy is willing to negotiate 30 down to 20 if it's tomorrow morning.
So he'll be on at 9 o'clock. And Senator Feinstein will be on this evening from 6:30 to 6:45 and again, tomorrow morning, from 9:20 to 9:35. And I'll post these so everybody knows exactly where everybody stands.
And Senator Feinstein will have the advantage to some extent of an overnight transcript which she had been concerned about.
And then I believe we will proceed next week to -- we have an exec set for the 20th but with agreement among the Democrats that we can hold it on the...
LEAHY: Is the 20th the -- the 20th a Tuesday?
SPECTER: It's a Tuesday.
LEAHY: My proposal -- and I would commit to you on this, that just so people watching understand, the judge knows this, under our rules, when we have a mark-up, an exec, when the nomination would come up, any senator has the right, for any reason whatsoever, no reason, to put it over for one week which for this is now for Tuesday which would put it over to the following Tuesday.
My proposal, and the chairman has been accommodating of what we've been trying to do, and I would commit to him that we would move the exec to Thursday of next week, which would give everybody plenty of time to read all the transcripts, everything else.
LEAHY: On Thursday, we would waive -- and I'm sure nobody on your side is going to ask to put it over by one day. So we will debate it whatever appropriate time that is on Thursday. We will vote on Thursday within the committee. Then, of course, it's out of our hands and it's up to the leadership to schedule what time they want on the floor. I understand they want to do it some time...
SPECTER: I think Senator Frist, the leader, will want to bring it to the floor on Monday, the 26th. He will make the final judgment on that. And Senator Leahy and I have talked between ourselves on the exec. We're going to set the pattern for 10-minute statements and ask that that pattern be followed. All senators have rights as they choose.
I personally am opposed to a third round, but in the face of requests by many of my colleagues on the other side of the aisle for a third round, and in light of this being a lifetime appointment for chief justice and all the other factors, I want to accommodate people as best I can.
And I don't want to run too far into tomorrow, because I want to finish the public witnesses tomorrow. We may have to run very late, but it's easy to run later with the public witnesses because we've got 31 and six panels, and they'll all be fresh.
And Judge Roberts, whom I conferred with before discussing the matter with Senator Leahy, is a very, very good sport. And the one question he answered positive and affirmatively was whether he could take it until 8:00 this evening, and he said he could. And I don't think it advisable to take him beyond that time. So he'll spill over a little bit into tomorrow morning.
LEAHY: Mr. Chairman, I know you have been fair in listening to us. We all -- and I think Judge Roberts would be the first to say this. This is a very serious thing we're talking about, the chief justice of the United States. We should take time to do it right.
I commend Mrs. Roberts, who has sat through this.
And, of course, you, Judge, can't see her, but a look of love and devotion is probably what is sustaining you through these long hours, from Mrs. Roberts. And I commend her for doing it. But I also want to applaud the chairman. He has been fair. We've discussed -- I said yesterday or the day before -- they blur -- that the chairman and I, I think, have each other's home numbers on speed dial, we talk so much.
He has fulfilled every one of his commitments. We have worked hard to fulfill ours. We all take this seriously.
A number of people have announced how they're going to vote. And that's fine. Everybody has a right to do it. Every member of the Senate is going to think of this seriously, and he or she is going to vote if they're going to vote.
I just want to make sure that, when anybody votes, that they know what they have.
And with that, Mr. Chairman, I commend you again for running a very fair, very open and very honest hearing.
SCHUMER: Mr. Chairman...
SPECTER: Thank you for your cooperation, Senator Leahy.
In just a moment I'll recognize you, Senator Schumer.
I don't want anybody to feel they've been shortchanged by the spilling over a little. I feel my duty is to have this matter resolved by October 3rd and that, if confirmed, Judge Roberts can take the seat as chief justice on October 3rd.
And that's what I'm looking for. And, to the extent possible, I want people on this committee to feel good about what we're doing and have sufficient time.
SCHUMER: Mr. Chairman, I just wanted to go over the schedule. So we will start the third round this evening, of 15-minute rounds, and then continue tomorrow?
SPECTER: Well that's correct, except for Senator Leahy, who's taking 10 and 10 as ranking, and Senator Kennedy is going to take 20 -- but all tomorrow morning, giving up 10 minutes for the morning.
FEINSTEIN: I get 15 tomorrow morning?
SPECTER: You have 15 tomorrow morning and have 15 this evening.
SCHUMER: Same here.
SPECTER: And the same for Senator Schumer.
SCHUMER: Mr. Chairman, I just want to thank you. I think you're being -- I want to commend you and Senator Leahy. You're being fair and we're getting a full opportunity to ask questions.
SPECTER: I understand you're waiving the fourth round, Senator Schumer.
Senator Durbin, you're recognized.
SPECTER: Senator Durbin, you're recognized for 20 minutes.
On to business, Judge Roberts.
DURBIN: Thank you very much, Mr. Chairman, and thank you for your fairness.
Judge Roberts, good to see you again.
Mrs. Roberts, friends and family.
Yesterday and again today, you've continued to prove your legal talents. I remember law students with your talents when I was in law school. I had to get to know them in the first year, because they were then off to the law review and I was off to buy another Gilbert's outline. I didn't see them again.
But today, I've noticed the questions have changed some. The questions now are more -- they've gone beyond your resume and beyond your legal skills. And I think it relates to the fact that so frequently, when asked, you have said, appropriately, that you will be driven and inspired by the rule of law, which is an appropriate term, but a hard and cold term by itself.
We know you have the great legal mind and have proven it with the questions here. But the questions that have been asked more and more today really want to know what's in your heart. And I think those are appropriate. When you look down from the bench or read a trial transcript, do you just see plaintiffs and parties and precedents, or more?
Do you see the people behind the precedents? The families behind the footnotes? I think that's what many of us are driving at with these questions.
You've lived a comfortable life. Court cases often involve people who have not. Many times contests between the powerful and the powerless, as someone said in the opening statement, the powerless, just with the rule of law and the Constitution on their side, praying for relief, for their day in court.
Aside from a few pro bono cases, as important as they are -- and I salute you for being involved in them -- what would the powerless, the disenfranchised, minorities and others see in your life experience that would lead them to believe that they would have a fighting chance in your court?
ROBERTS: Well, Senator, I think there are many things that people could look to.
ROBERTS: You said I had a comfortable life. I think that's a fair characterization. I had a middle-class upbringing in Indiana. As part of that, I worked in the steel mills outside of Gary during the summers as soon as I was old enough to do that and throughout my life have been exposed to and mixed with at school, learned and played with people of a wide variety of backgrounds.
Comfortable, yes. But isolated in no sense. I was, I would say, a typical middle class kid growing up in Indiana and had, I think, a great upbringing. I was privileged in the sense of having my parents and sisters contributing to my upbringing and education. And I think people looking at my life would see someone in that experience -- and, obviously, with limitations.
I wasn't raised in other places in the country and might have a different perspective if I were. I wasn't raised in different circumstances and would have different experiences if I were.
As you look at the Supreme Court, the people on there come from widely different backgrounds and experiences and I think that's a healthy thing.
But as far as someone going into court, and looking too see why they would expect to get a fair hearing from me, I think -- and I could answer this with respect to the court I'm on now.
DURBIN: Yes, please.
ROBERTS: It's hard for me to imagine what their case is about, that I haven't been on their side at some point in my career.
If it's somebody who's representing welfare recipients who have had their benefits cut off, I've done that.
If it's somebody who is representing a criminal defendant who's facing a long sentence in prison, I've done that.
If it's a prosecutor who's doing his job to defend society's interest against criminals, I've been on the side of the prosecution.
If it's somebody who's representing environmental interests, environmentalists in the Supreme Court, I've done that.
If it's somebody who is representing the plaintiffs in an anti- trust case, I've been in that person's shoes.
ROBERTS: I've done that.
If it's somebody representing a defendant in any trust case, I've done that as well.
It's one of the, I think, great benefits of the opportunity I've had to practice law as I have is that it has not been a specialized practice. I've not just represented one side or the other. I've represented all of those interests.
And I think those people will know that I have had their perspective. I've been on the other side of the podium with a case just like theirs. And that should, I hope -- and I hope it does now -- encourage them that I will be fair and that I will decide the case according to law but I will have seen it from their perspective.
DURBIN: So let me follow through on that because I think that's what people need to hear. But we need to apply it to your real-life and legal experiences.
Let me talk to you about a case that you were a private attorney and involved in. Today, there are about 45 million uninsured people in America. Too often, Americans with insurance can't receive coverage for medically necessary procedures and have to fight the insurance companies.
In my home state of Illinois we have a law called the Illinois Health Maintenance Organization Act. I think you're familiar with it. It provides that if a patient's primary care physicians deems a proposed procedure to be medically necessary but their HMO disagrees and denies coverage for the procedure, the patient may have the HMO's decision reviewed by an outside physician, the determination of that outside physician binding on the HMO.
You challenged this law on behalf of an HMO that refused to pay $95,000 for the shoulder surgery of Debra Moran of my state of Illinois.
Case went to the Supreme Court in 2002. You argued for Rush Prudential and you argued they weren't subject to the Illinois law and the governing HMOs because you said they weren't really an insurance company.
You claimed that since the HMO was not providing health care, but merely a promise to pay for health care, it was exempt.
Thankfully, from my point of view, you lost the case. If you had won it it would have put millions of American consumers and families at risk of losing coverage for necessary health care.
Judge Roberts, did you have any reservations about taking this case?
ROBERTS: No, Senator, I did not.
The result in the case, I did lose. I lost 5-4 if I'm remembering correctly. In other words, four of the justices on the Supreme Court thought the argument I was making on behalf of my client was correct.
It has always been my position that I do not sit in judgment other than once I have satisfied myself that the legal arguments are reasonable ones, within the mainstream, if you will, that I don't decide whether that's the way I would rule as a judge or whether I would rule the other way.
My practice has been to take the cases that come to me and if the other side in that case had come to me first I would have taken their side.
DURBIN: So you didn't step back at any point in your practice and say, No, I'm not going to do this; I can't be associated with a case or cause even though it may be legal and ethical that might cause so much harm to so many innocent people ?
ROBERTS: That's a judgment for the legal system to make, asserting legal rights. Lawyers aren't judges when they're representing clients. They don't sit there and say -- well, maybe some do, I don't. I think it's a basic fundamental principle of the legal system and the bar that you take clients who have reasonable arguments -- now, I'm not talking about frivolous arguments. I don't take cases in which those are raised.
But the lawyers aren't the judges. The judges are. Now the case you mentioned, you've explained the arguments on one side, there were legal arguments on the other side. And four justices agreed with those.
This isn't an extreme case when it's decided 5-4. And that's one of the very point I was making earlier; that I take cases on all sides of the issue.
ROBERTS: You can go through and find cases. For example, when I was asked to assist an inmate on Florida's death row, I didn't step back and say: Well, is this really a good thing for me to assist this individual guilty of -- convicted of particular murders? I took the case.
IN the various pro bono activities in which my firm was involved, I didn't sit in judgment and say: Is that something I agree with? Is it not something I agree with?
I was a lawyer involved in that area of the law and I felt it my obligation to take the cases that come in.
DURBIN: Many of the organizations that oppose your nomination represent minorities in America. You have the distinction of being opposed by LULAC. This, of course, is the first time this Hispanic organization has ever opposed a Supreme Court nominee.
You're also opposed by MALDF. I personally think that their feelings go beyond the comment, illegal amigos, that you talked about yesterday.
And I want to point you to one particular area that they find troubling when I speak to them and I find troubling, and it goes back to the case of Plyler v. Doe: 1982, Supreme Court case held it unconstitutional to deny elementary education to children on the basis of their immigration status. It was a Texas case.
The court struck down the Texas law and allowed elementary schools 23 years ago to refuse entrance to undocumented children, struck down the law that allowed the schools to refuse entrance.
On the day the case was decided -- and I think the timing is important here, because it appears to be kind of a gratuitous comment; it isn't as if you were asked for an opinion.
On the day it was decided, you co-authored a memo that criticizes solicitor's general's office for failing to file a brief supporting the Texas law, which would have refused education to these children.
Your memo disagreed with the administration's position on the case, so it isn't as if you were arguing the Reagan administration's position. They had taken a different position on the case.
Can you describe your involvement in the case, and I guess more importantly, can you describe now how you feel about this today 23 years later -- I'll just finish and I'll leave you the time you need to answer -- when the largest, fastest growing segment of America's population is Hispanic; when the major Hispanic organizations feel that this showed real insensitivity to who they were and what their children needed?
Can you explain that memo that really wasn't part of the Reagan agenda? Why did you say this?
ROBERTS: Well, I think, Senator, if I'm remembering the memo, and it was 23 years ago, and the case that was decided was, I believe, again, a divided decision by the Supreme Court, if I'm remembering the memo correctly, it was making the point that the position was inconsistent with the attorney general's litigation policy approach, if that's the right memorandum.
DURBIN: It is.
ROBERTS: Well, in that case, again, as a staff lawyer I thought it was my obligation to call to the attorney general's attention activities in the department that I thought were inconsistent with what he had articulated as his approach.
And that's what I would have been doing in that case. And, again, it would have been apparently supporting the state of Texas in its legislative determination in that area.
DURBIN: Well, did you agree with the decision now -- or, pardon me, then? Or do you agree with it now?
ROBERTS: I haven't looked at the decision in Plyler v. Doe in 23 years, Senator.
And there's nothing gratuitous about the memorandum. It obviously came out because the decision came out. That would have been why I was advising the attorney general with respect to it.
Obviously, the importance of the availability of education for all is vital. That's a different question than the legal issues involved in whether a state law should be struck down...
DURBIN: So let me say this. Twenty-three years later, millions of children have benefited from this decision. They have been educated in America. Many have gone on to become citizens. Some are business people, some are professionals, some are serving in our military today because Plyler was decided in a way that you apparently disagreed with 23 years ago.
So my question to you, for the Hispanic groups that oppose your candidacy at this point -- or your nomination, I should say -- what is your feeling? Is this settled law, as far as you are concerned, about our commitment in education...
ROBERTS: Senator, as I said, I have not looked at the decision in Plyler v. Doe in 23 years. It's not an area that I focused on.
And the issue is not my policy view about what is a good idea for educational policy or national policy or whether what the Texas legislators determined was a good idea for Texas policy.
The question was a particular legal issue. And, again, the Supreme Court was divided on that, so it's not as if we're talking about a position outside the mainstream.
And what I was explaining, this was viewed, as the memo states, if it were looked at in full, it was something that I thought was inconsistent with what I understood the attorney general's approach to be, and it was my job to call that to his attention, which is what I did.
DURBIN: OK. I think you have accurately taken refuge in the fact that you were working for someone. The fact that this memo came out the day after the decision I think is an important circumstance.
But let me go back to the beginning, the first question, the first day, with Senator Specter. Wouldn't it be a jolt to the system in America if we decided that we would no longer offer education to these children?
ROBERTS: Of course. Well, of course, Senator.
DURBIN: And so...
ROBERTS: And the decision in Plyler is a precedent of the court. I don't think -- I'm not aware that it's been called into question in the intervening 23 years that have passed since the time I wrote those two paragraphs in the memo.
And that, as a precedent, is entitled to respect under principles of stare decisis. And it's something that is where I would begin if an issue arose in this area. I'm not aware that any is arising in this area, but if an issue were to arise, that's where I would begin...
DURBIN: I just think millions of Americans would like to have heard you say, I think it's a good idea. I'm glad we did it for America. But if you can't say it, you can't.
ROBERTS: Well, Senator, if I could just make the point that the issue is not whether or not I thought it was a good idea. That's not the job of a lawyer presenting legal advice and legal -- the legal implications of an issue to his boss, the attorney general.
ROBERTS: He wasn't interested in whether I thought it was a good idea or not. He was interested in the legal question of whether or not this was consistent with his policy and his approach.
That's not taking refuge; that's explaining the circumstances of a memorandum. And it's not avoiding an expression about whether it's a good idea or not. It's explaining that what we're dealing with...
DURBIN: But you've been unequivocal in your statement supporting Brown v. Board of Education. No one has suggested, in any respectful way, that we should return to the bad old days of separate but equal. I mean, you've accepted that's part of America.
And the point I'm trying to make to you is whether we're talking about millions of uninsured people or millions of Hispanic children, I would think that it would be a basic value, you'd say, this is good for America, for people to have insurance, and bad for them to be denied. It is good for America to see children with education, rather than to see them in the streets, ignorant. It seems so fundamental.
ROBERTS: Senator, I don't think you want judges who will decide cases before them under the law on what they think is good -- simply good policy for America. There are legal questions there.
And I'm sure there are clients that I have represented in court that you would agree with; you would say, That's the right side of the cause to be on, whether it's the environmental interests I represented in the Tahoe case, whether it's the welfare recipients I represented pro bono in the Bivens case, whether it's the cause of the inmate on death row that I assisted in in Florida, whether it's the environmental interest in Glacier Bay that I represented or in the Grand Canyon on a pro bono basis.
I am sure I could go down my list of clients and find clients that you would say, That's the right side. That's the cause of justice. And there are others with whom you'd disagree.
My point is simply this, that in representing clients, in serving as a lawyer, it's not my job to decide whether that's a good idea or a bad idea. The job of the lawyer is to articulate the legal arguments on behalf of the client.
DURBIN: I'm just trying to get to the bottom line about your values. And if it is strictly a question about whether this is a legal and ethical legal question, or an ethical legal question, that can be contested, then there are many positions you can take in the law. Some I wouldn't be comfortable with. Some you may not be comfortable with.
DURBIN: Let me ask you one other question. Senators Coburn and Brownback have, I think, sincerely and accurately expressed their views on the issue of abortion. I think they have been very articulate in saying so.
Many would argue that it's one of the most divisive legal and political issues we faced in our generation.
I would like to ask you this question: Why do you think this issue is so important to so many women in America -- the whole question of Roe v. Wade, the question of reproductive freedom and the question of freedom of choice? Why do you think it's so important?
ROBERTS: Well, I think it's important -- and again, to women on both sides of the issue, and also, I think, to men as well, but obviously it's an issue that directly affects women. It's a fundamental question, as the court has addressed in Roe and in Casey, that obviously affects the lives, directly, of millions of Americans, and the availability of rights under that decision affects women.
But I know there are people who have strongly held views on both sides of the issue. And I know that the responsibility of a judge confronting this issue is to decide the case according to the rule of law consistent with the precedents; not to take sides in a dispute as a matter of policy, but to decide it according to the law.
And your questions earlier about, you know, causes we agree with, causes we don't agree with -- I do want to emphasize that there is a unifying theme in my approach, both as a lawyer and as a judge. And that is the cause that I believe in passionately, the one to which I have devoted my professional career, is the vindication of the rule of law.
And I tried to explain in my opening statement on Monday why that's important: Because, without it, any other rights that you may agree with as a matter of policy are meaningless. You need to have courts that will enforce the rule of law if you're going to have rights that mean anything.
DURBIN: I'm running out of time, but I do want to give you an opportunity. Last night, I passed a memo along to you relative to the Bob Jones University case.
I don't know if you've had a chance to look at it and can tell me whether that is your handwriting on that memo, whether you were, in fact, in a meeting involving the Bob Jones University decision with the Reagan administration.
DURBIN: Did you provide any input in the meeting or have any conversations with Justice Department personnel about the case?
ROBERTS: It is my handwriting. It's a list -- it's apparently a meeting to discuss a number of civil rights issues -- six of them, I see.
I did not participate in any way in the Bob Jones case. That was apparently discussed, according to this memo, at the meeting. The recusal rule that was at issue says that I shouldn't participate by way of consultation or advice, and I did not.
DURBIN: Thank you for clarifying that.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Durbin.
BROWNBACK: Thank you very much, Mr. Chairman.
Judge Roberts, again.
Mr. Chairman, I want to enter into the record something that's been cited to already, but sent yesterday from the ABA: the statement by the ABA that Judge John Roberts is well qualified, as a unanimous opinion by the ABA, for the position of chief justice of the United States.
SPECTER: Without objection, they will be made a part of the record.
BROWNBACK: Thank you.
And, Judge Roberts, I would note, now you've done 18 hours and 30 minutes of testimony. Just for reference, because people like statistics and records, Judge Breyer was 18 hours and he was through. You may have the end in sight, but you're not there yet, and you're going to pass Breyer and perhaps others.
I want to take you back to the First Amendment discussions. And this is an issue in an area that I've just not understood where the court's been going, and I hope you're going to be willing to answer some of this analysis or give me, at least, your thought on how the court got to where they did on these issues.
First Amendment, everybody knows: Congress shall make no law abridging the freedom of speech.
Well-known, well-regarded, highly -- broadly interpreted by the courts to the point that you would get court opinions -- and I just want to quote these. This is actually in a Supreme Court opinion, that the court would in the past four years when this opinion was issued, in -- I think it was 2003 -- the last four years, the court had sternly disapproved -- sternly disapproved -- restrictions upon certain forms of speech such as virtual child pornography. The court said, can't do that, limit that speech. Tobacco advertising: the court said, can't limit that speech. Dissemination of illegally intercepted communications: you can't limit that speech. Sexually explicit cable programming: can't limit that speech.
BROWNBACK: All right, so the court has been, it seems to me, very pronounced in this area -- free speech, can't limit it -- basically to the Congress. Can't limit it.
And to the point, you know, where it goes to the issue of virtual child pornography -- and that was the case of Ashcroft v. Free Speech Coalition. And I want to describe this in a little bit of detail, because I want to back it up and ask another question associated with it.
Ashcroft v. Free Speech Coalition, the court struck down a congressional statute regulating pornography, in this case Child Pornography Prevention Act of 1996, expanded the federal prohibition on pornography to include virtual child pornography -- realistic images which were made without the use of actual children.
But the Congress based its opinion on the basis that pedophiles will use this material to recruit, over the Internet, individuals to draw in children into sexual activity.
And so we found out about that, investigated it, did a number of hearings and said, We've got to stop this stuff.
The court says you can't do it. It's limitation on free speech.
Then, not long ago -- as a matter of fact, the opinion was issued in 2003 -- we had a big debate on campaign finance reform, in front of the Congress. One of the members of our committee, Senator Feingold, was one of the lead sponsors of the McCain-Feingold piece of legislation.
And it came in front of the courts -- McConnell v. Federal Election Commission. And the court largely upheld the McCain-Feingold law, one section of which did this: prohibited corporations, labor unions and other organizations from political advertisement that mentioned a specific candidate or office holder within 60 days of a general election.
You may be -- you're probably very familiar with this. It was a big national debate.
Under the court decision, this congressional action prohibiting speech -- and not just any speech, and not just pornography. This is political speech close to the time when people are making decisions on elections.
The court decided that this congressional action prohibiting political speech was upheld under a First Amendment ostensibly designed to protect this, I would contend, form of political participation and speech.
And I looked at that. I voted on the McCain-Feingold law. I did not think there was any way the court would hold that this is constitutional, because you're limiting political free speech, and right when people are making their decision.
And one of the lead reasons or lead abilities we have in this country is to be able to criticize the government, and certainly at a point in time when it matters the most -- right ahead of elections.
How do you square such a broad interpretation of the First Amendment in these cases and such a limitation on political free speech? Can you explain that to me?
ROBERTS: Well, Senator, I'm not sure that I can put the two together side by side and talk about it, other than to say that I think the court tends to address each case on its own terms.
And in the case of the bipartisan Campaign Reform Act, I do know that we're dealing there with an extraordinarily extensive record in that case. The judicial opinions addressing the issue before the three-judge district court I know went on for several hundred pages, just dealing with the records and the issues involved -- the record that had been developed, including before Congress.
And my reading of the court's opinion in the bipartisan Campaign Reform Act case is that that was a case where the court decision was driven in large part by the record that had been compiled by Congress. I think the determination there was based -- just reading the opinion; it's no great insight -- that the extensive record carried a lot of weight with the justices.
Now, with respect to the other areas, again, I think the court would tend to look at those, sort of put the one case aside and then move on to the next case. And they're dealing there with developments in that area. And again, I...
BROWNBACK: Doesn't this strike you as odd, these two side by side under the same First Amendment?
ROBERTS: Only in the sense, Senator, that obviously they come out different ways.
And your point that the political speech is generally regarded as at the core of what the First Amendment was designed to protect and some of the other speech is not, I certainly appreciate that concern.
But whether, again, whether the particular cases were correctly decided or not is not something I feel it's appropriate for me to say.
BROWNBACK: I looked at those, and I just -- this didn't make much sense. If you're going to read it expansively on the First Amendment, which I agree with, that should be consistently done.
I want to go with an issue that is likely to come in front of you, and I recognize you're not going to give a pre-opinion on it, but I wanted to just make a point in talking about it. And that's the issue of marriage and its definition by the courts, and the taking of the issue of marriage from legislative bodies to the court.
And this is one of the most driving issues in the political environment in the United States today.
BROWNBACK: If the court comes in and trumps this issue and says legislative bodies cannot decide this issue -- here it is as a matter of constitutional law -- it will create this enormous jolt in the system.
In a series of laws, marriage has been decided by legislative bodies in the states. The definition of marriage as the union of a man and a woman has been passed and 45 of our 50 states have either constitutional amendments or statutes on the book that preserve the traditional definition of marriage. It's been in all regions of the country.
I bring it up for you because a federal court has now ruled in Nebraska, one federal judge has said that the Nebraska constitutional amendment -- now all the states are rushing to pass constitutional amendments, but everybody is scared of what the U.S. Supreme Court's going to do -- Nebraska passed a state constitutional amendment by 70 percent vote of the Nebraskan people. And these are good-hearted, good people. They want to try to do what's right.
And one federal judge comes in and then he throws all these federal constitutional issues on it -- violated the First Amendment right to free association, violated equal protection guarantees and then -- I don't know where he got this one -- represented an unconstitutional bill of attainder, which is legislation drafted at a particular individual.
I just hope if you're confirmed on the court that you would look at what happens if the court comes in and stomps on this issue today that has stirred up so much discussion.
And these are issues properly left to legislative bodies and people to shape and to look at and to debate and to consider and move back and forth with in legislative arenas.
But if you come in and you say there is a constitutional right to a broader definition of marriage and you do that and the court says that's the way it's going to be, it takes something out of the system that should be in the discussion.
BROWNBACK: And it should be allowed to mature through there and come up at some point, rather than the fire storm that that will create. And we'll be here years later like in the series of Roe cases where, after 30 years now, there's not more acceptance of the Roe opinion, there's less in America.
Not like Brown v. the Board of Education: After it's resolved and solved over the years, and society looks, OK, that was the right way to go. And we would all say that today.
Roe has gone the other way. And this would create another one if that one is picked up and stomped on by the courts.
I'm going to talk with you on another issue and just get your opinion of the Constitution. And then I'm going to frame it. You would agree, under the Constitution, that the legislative bodies, and particularly under the U.S. Constitution, the Congress has the power to appropriate money?
ROBERTS: Yes. The framers regarded that as the basic legislative power, the power of the purse.
BROWNBACK: And that that power is not given to the judiciary, it is given to the legislative branch of government?
ROBERTS: Yes. Alexander Hamilton, in making his point -- I think it was Hamilton -- that this was the least dangerous branch, emphasized that the courts have neither the power of the sword nor the power of the purse.
BROWNBACK: I want to point out to you, and this is happening in state judiciaries, this is happening and being considered now in the U.S. federal courts -- the court's role in appropriating money.
You'll have in front of you a case, the Solomon amendment that was considered here.
This was a recent 3rd Circuit of Appeals case. Struck down the Solomon amendment on constitutional grounds.
Solomon amendment passed by Congress -- Jerry Solomon, long-term member of Congress, wonderful gentleman, since passed away -- had conditioned university receipts of federal funds on the universities granting equal access to the military for purposes of recruiting students.
BROWNBACK: So he said, you know, you need to allow military personnel access if you want to receive federal funds.
It was considered by Congress, was passed. Third Circuit Court struck down the Solomon amendment on constitutional grounds. The decision's been appealed to you.
I obviously don't want you to declare your position on this. I would ask you, if you can state on this, the obvious one first. We have the role, the power of the purse is in the Congress, not in the judiciary.
May the Congress attach conditions to the receipt of federal funds?
ROBERTS: Well, Congress historically has done that. The spending clause power, for example, South Dakota against Dole, said that if you accept federal highway funds you have to raise the drinking age to 21. And that was upheld by the Supreme Court. So, certainly as a general proposition, the Congress has that authority.
I considered a case involving a waiver of sovereign immunity. The condition on the receipt of federal funds was that Washington's Metro system waive its sovereign immunity with respect to disability claims. And by a 2-1 vote, we upheld that exercise of authority under the spending clause.
BROWNBACK: Well, the Solomon amendment will be in front of you if you're confirmed, and obviously you can't comment on it.
It's just that if the courts start appropriating money through this route, the rub between the systems and the branches of government I think will be absolutely extraordinary.
And there will become more and more innovative ways that the Congress will try to find to limit the judiciary. And it's not healthy for the system, and it's certainly not healthy for the judiciary if it starts into the business -- goes further into the business of appropriating funds.
BROWNBACK: And it bleeds down through the system. It's not just then in the U.S. Supreme Court, it goes through the state court systems as well.
And I would hope that that right of the Congress would be respected with adequate judicial restraint -- as you noted with me this morning, that being the major check on the judiciary.
Well, I think we can limit what the judiciary can review under the Constitution.
I want to get you, in the limited time I have left, just two quick points.
One is on the end-of-life issues. You've had a discussion with several members on end-of-life issues. And this was discussed, for instance, Washington v. Glucksberg is the lead recent case, 1997 case, upheld a state statute banning assisted suicide.
Would you agree that that case held that there is not a constitutional right to die -- a right to die does not exist in the Constitution?
ROBERTS: I think that's an accurate conclusion of the holding in that case.
Again, without expressing views on correctness or not, since that's where the line has been drawn in terms of what nominees can say, my understanding is that that court rejected the conclusion.
It went through the analysis of what liberty interests protected by the due process clause included. And it concluded that there wasn't a right under the liberty clause that trumped the regulation that was at issue in that case.
BROWNBACK: And I believe even the standard that the court held in this case was the rationally related standard, the lowest level of review, that the state can find a rational basis, they can limit these assisted-suicide bans, efforts across the country.
ROBERTS: Once the court concluded that there wasn't a fundamental right that was in conflict with the state regulation, then the court applied the rational relation test to uphold the state law.
BROWNBACK: And you have -- that would be subject to, in your opinion, the continued status of stare decisis as an opinion of the court. And the deference and the dependency that the society has had on that ruling would have the same status as any opinion of the U.S. Supreme Court on the basis of stare decisis, in your opinion.
ROBERTS: It would be subject to the same analysis as any other precedent of the court, yes.
BROWNBACK: Regardless of whether it's a recent opinion, later opinion, this has the same standing because it's an opinion of the courts?
ROBERTS: Some of the court's cases talk about how long an opinion has been standing. Some of the court's cases say that's less of a factor.
But it is a decision of the court, a precedent on that issue. Any question of revisiting it would have to be consistent with the principles of stare decisis.
And we've talked about those principles and how they apply.
BROWNBACK: Yes. I just wanted to make clear that it doesn't matter the length of time the opinion has set, the number of times it's been revisited, stare decisis is a basic principle that applies to any opinion previously held by the court.
BROWNBACK: And I would note, this is an opinion put forward, as you get from a lot of us, that these are issues that are very difficult and they're ones that are actually quite well-suited for the legislative process to discuss, because you have different views of life. Is life sacred per se, or is it subject to some sort of objective review?
It's a very difficult issue here in this body and across the country, and it's one that has a lot of emotion and is a very important issue for the society really itself to talk through, and through a lot of discussions we have.
I want to talk on a separate hat you would carry as chief justice of the United States, and that's as the head of the Judicial Conference of the United States. And this is about court reorganization.
There have been proposals put forward to split the Ninth Circuit Court of Appeals. Ninth Circuit, the far western circuit, a very large circuit. There's discussions in the Congress about splitting that circuit in two because of its size, its case load, a number of other reasons that have been proffered or put forward.
You would agree that under Article 1, Section 8, the Congress has the power to constitute tribunals inferior to the Supreme Court?
ROBERTS: Yes, Senator.
BROWNBACK: And that these inferior courts would include such things as the circuit court and the lower district courts, the federal government?
BROWNBACK: So that Congress would have the power, its power -- Congress has the power under the Constitution to split the Ninth Circuit Court of Appeals.
ROBERTS: I know that Congress did just that with respect to the old Fifth Circuit, which used to run from Florida out through Texas. And they split it into the new Fifth Circuit and the Eleventh Circuit. I don't think any questions have been raised about Congress's authority to do that.
BROWNBACK: And you don't raise those here as the head of the judicial conference to the United States?
ROBERTS: Well, I wouldn't want to assume that...
BROWNBACK: Or the potential head of the...
ROBERTS: ... role just yet.
But I'm not aware of any objections to Congress's authority. I don't think that's the issue.
I know that judges have various views on whether it's a good idea or not. And since it affects them, I know some of the judges have expressed those views.
But the question of congressional authority to do that is not something I've seen raised.
BROWNBACK: I thank you.
Judge Roberts, this will be my last chance to interact with you this way. I do commend you.
And I also just note, too, that a lot of hopes and prayers are riding on you from a lot of people across this country and around the world. It's just such an incredible, important time with so many big issues that I think I can speak for millions of people in saying that.
So Godspeed to you and your family.
ROBERTS: Thank you, Senator.
SPECTER: Thank you very much, Senator Brownback.
Judge Roberts, would you care to take a break at this time?
ROBERTS: No, I'm fine.
SPECTER: OK. Senator Leahy says you're the only one, but that's good.
COBURN: Thank you, Mr. Chairman.
And, Judge Roberts, I'll try not to take my 20 minutes.
I've heard a little trend that I think needs to be dispelled. I've heard it put forth that you might not be fair to women. I've heard it put forth that you might not be fair to minorities or Latinos. I've heard that you might not be fair to those people with AIDS.
And, Mr. Chairman, I'd like to just put into the record about six different documents here that clarifies the record on Judge Roberts' action on affirmative action, on disability rights, on civil rights, on women's rights, his -- actually his involvement in the University of Richmond v. Bell, Title IX, and also his Title VII unemployment discrimination record that I think refutes the underlying tone that I've heard here that is very disturbing to me.
SPECTER: Without objection, Senator Coburn, they'll all be made a part of the record at this point.
COBURN: And the reason it's disturbing to me is I want lawyers who will take the wrong cases for the right people to preserve our country.
And the very fact that you may have taken a case that some other lawyer might not view as right is the very thing that makes the justice system work.
And one of the things that you've reaffirmed is one of the reasons we have people not having equal justice under the law, sometimes they don't have qualified attorneys that will do that.
So, first of all, kudos to you.
COBURN: Number two, the fact that you write positions as a staff lawyer, young -- I remember what I was like when I was 25, and it wasn't very pretty; some people say it's not very pretty now.
I also would remind that you've got another five years from Senator Feinstein. She said you'd be on there 40 years. So, all power to you.
But the fact is I've noticed something that I really don't appreciate. And that is this kind of trend to say that you're not a kind, that you're not a considerate person. The fact that you have a wife that's an attorney and a young daughter that's going to be into this world, that you wouldn't believe that they ought to have equal rights; that you don't believe in hiring practices that are fair; you don't believe in treating people fairly -- on the basis of a flimsy record.
And I want the American people to know that that record doesn't hold up to the smell test that has been presented here today. And it's a little bit disturbing to me, because it's this subtle way of trying to say you're not who you really are.
And you've not been able to defend yourself in that because you can't comment without creating a problem for you in terms of being a fair justice. So you're kind of in a double bind. And I want you to know that I want to defend that because I don't think it's appropriate.
The other thing is, I want to enter into the record both the chronology of cases that Justice Breyer and Justice Ginsburg decided after they met with the White House -- the Clinton White House -- before they were nominated. There was a total of -- on Justice Breyer, one, two, three -- seven cases; on Justice Ginsberg, five cases.
The implication that you're not ethical is the other subtle implication that comes across there. And I find it tremendously uncomfortable that that is the trend where this is going.
The other thing is, I want to address for you and the American public -- Senator Schumer, yesterday, quoted some statements that were made which a lot of people don't agree with and you didn't identify with: Tony Perkins at the Family Research Council and others.
COBURN: The fact that they made them, those statements, whether we agree with them or not, isn't the important thing. The important thing is that the court is losing the confidence of the American people, or they never would have said that.
These aren't bad people. These are people with the perception that says, you know, What's going on here? And let me just list for a minute why they might think that.
We had today a judge in California say you can't use under God in the Pledge; the abortion issue we've talked about; homosexual marriage we've talked about; the fact that the judges have said online pornography is fine, regardless of what the Congress has said; parents who know that their 12-year-old daughter can be given oral contraceptive without their permission -- an IUD, in many places, without their permission, but they can't be given an aspirin?
These very crucial issues, not to say they're right or wrong, but how we got to the decision is causing some Americans to lose confidence.
And, as you and I spoke in my office, one of my greatest concerns -- and I asked you, how do we build that back up? How do we build the confidence of the American people back in the court?
And part of that is the work of getting more consistent, more unanimous opinions. But also it is making sure the court does what it should do and the legislature do what it should do.
And I don't want you to feel committed to me at all, and I don't want to influence. I am very pleased that every time you're going to look at the law, look at the precedents, look at the facts, look at the litigants, and then work with the other justices to try to do what is under the law, the Constitution, our Constitution, and our statutes.
So the only question I would have for you is this one final -- and I will finish, I hope, before 10 minutes are consumed. Where'd our law -- would you teach the American public where our law came from? I mean, there was law before the American Revolution. Where did our law come from? Where'd it come from?
ROBERTS: Well, before the revolution, of course, we were under the British legal system.
COBURN: And before that?
ROBERTS: We go back under the legal system in Britain to the Magna Carta and the dispute between the king and the lords there, as they tried to establish their rights against the king or central government, was a key part of the development of English law since that time.
COBURN: And prior to that? But some of the input to that was what some people, these very people who are worried, these very people who have lost confidence, call natural law.
The ideas came from somewhere, didn't they? Like, don't kill somebody. Don't steal from them. Be truthful. Where did those come from?
Those came from the natural tendencies of what we were taught in beliefs through the years that would best support a society. There is a theological component to that to many people.
But the fact is there's a basis for the laws that we have. And it's proven consistent through the years, even as it comes to America, that if we enforce those tenets, we all are better off.
And I just want to tell you that I believe you've been very strong today, just, first of all, to tolerate this and the amount of time.
Final point, and I have 12 minutes and 25 seconds and I'll be through. You also were accused of -- not accused -- you were also questioned about your advice on a speech that the president was going to make on HIV.
And I'd like to put into the record -- at that time, first of all, the best known and best loved surgeon general of this country didn't make a decision on that issue until 12 months after your memo.
But also, at the same time, The Washington Post, two or three days after that, had published an article talking about the very questions you were raising that may not be true.
COBURN: And so, with unanimous consent, Mr. Chairman, I'd like to have that introduced, this Washington Post article...
SPECTER: Without objection, it will be made a part of the record.
COBURN: ... from September 4, 1985.
And with that, 11 minutes and 34 seconds, I'm done.
And thank you, Judge Roberts.
ROBERTS: Thank you, Senator.
SPECTER: Thank you very much to Senator Coburn, especially for yielding back time.
Senator Feinstein, you're recognized now for 15 minutes.
FEINSTEIN: Thank you very much, Mr. Chairman.
Just to correct the record to begin with, the Gun-Free Schools Act has been re-enacted as part of the Elementary and Secondary Education Act. And I gather those findings were changed in the act, so it is the law. And from my point of view, that's very good.
I would like to kind of finish up some questions I have.
Let me, in trying to sort of get at you the man, as opposed to you the jurist, Senator Paul Simon, in questioning Justice Ginsburg said this:
Theodore Roosevelt in a 1913 speech -- this is after he had been president -- said this: 'Our judges have been, on the whole, both able and upright public servants. But their whole training and the aloofness of their position prevent their having, as a rule, any real knowledge or understanding, sympathy with the lives and needs of the ordinary hardworking toiler.'
I think that's a danger for jurists, and probably no place is it a greater danger than on the United States Supreme Court where you really are isolated and where, when you meet people, they will tend to be people of power and wealth and not people who are unemployed, not people who have many of the problems that Americans face.
Have you reflected on this at all, either in your present tenure in the district court -- excuse me, on the circuit court -- or future tenure? How can you make sure that you stay in touch with the problems real people have out there?
ROBERTS: That is something that I thought about, Senator, at greater length before I came onto the court of appeals, a little more than two years ago.
I think it's a common concern that judges are isolated. There's some natural tendency to that. You find that lawyers that you used to socialize with don't feel they can talk to you anymore. And other people, again, a certain distance develops.
And it is something that my wife and I talked about at the time. And I concluded, and she made the point, that it was a great blessing to me to have our children. They will obviously keep us in touch with things outside of the isolation of the law.
There are a lot of soccer games and swim meets and things of that sort in my future, for the next 15 years. And I'll be seeing people not just involved with the law, not just involved with the court, but other parents and other children in those activities.
And I think that will be a very healthy part of an effort to keep in touch with things outside the isolated marble palaces.
FEINSTEIN: But I would hypothesize that if it's just through your children, it's still going to be a very limited segment of society.
ROBERTS: Well, sure, Senator, but there have always been areas in which I've continued to be active, that keep me involved with other people.
I mentioned, I think yesterday, the street law program that I've been a part of for more than 15 years, which...
FEINSTEIN: And you will continue that?
ROBERTS: I certainly will. I've continued that when I became a judge, and I plan on continuing it as well. It's jointly sponsored by the Supreme Court Historical Society.
And that brings high school teachers -- and I have always found that extremely rewarding, because they have a very different perspective. They're obviously dealing with children a little further along at that stage. But they're not lawyers, and they're here to try to understand the law.
And I have always enjoyed very much their questions and sharing with them why the Supreme Court is so important to the rule of law, and allowing them the opportunity -- they go in and they see the court in action, as it were, and then they go back. And it helps them talk to their students about something that I think is critically important for those students to know.
FEINSTEIN: Do you see yourself mixing with people in some of the harder places in our country?
ROBERTS: Well, it's hard to look ahead and see how that would work. I have -- I know, for example, when I was a lawyer and handling a case about native village rights in Alaska, I went to the native villages. I've always thought that was an important part about understanding the real world consequences of any case: to get on the ground.
When I handled a case involving people on the assembly line, I went to the assembly line and saw what it was like.
I went to these villages that you could only reach by boat or by plane, where they make do with so little because of the remoteness.
And I've always viewed that as an important part of understanding any case that I've been involved in.
FEINSTEIN: The reason I ask that is because I had a Plyler question I was going to ask you, and I got your memo because I was really surprised by it as well.
Let me ask you this question. It's signed by Carolyn Kuhl, and your name is second. Does that mean you wrote the memo or did not write it?
ROBERTS: Senator, I have to just say, I don't know who wrote it. It, obviously, was submitted by both of us. I don't remember.
FEINSTEIN: It is submitted by -- but her name is on top. I was just curious, because clearly the purpose of this memo is to try to get one justice, namely Justice Powell, over on your side.
But the kind of concluding part -- and I just don't understand why you would say this. And, you know, perhaps you'd believe today it was wrong.
Let me quote: As you will recall, the Solicitor General's Office has decided not to take a position before the Supreme Court on the equal protection issue in this case. The briefs for the state of Texas were quite poor. It is our belief that a brief filed by the Solicitor General's Office supporting the state of Texas and the values of judicial restraint could well have moved Justice Powell into the chief justice's camp and altered the outcome in the case. In sum, this is a case in which our supposed litigation program to encourage judicial restraint did not get off the ground and should have.
Now, this concern, regardless of what the briefs were -- whether children should be educated in our country. I come from a huge immigrant state. We're 36 million people. We probably have 12 million, at least, immigrants; maybe 3 million to 5 million people here illegally in our state.
To say that this vast number of children shouldn't be allowed to be educated, I'd be surprised you'd write that kind of...
ROBERTS: Well, Senator, I don't know if it was from both of us. I don't know who wrote it. If my name is on it, it's on it.
But I agree, of course, that children should be educated. The example I just gave of my activities with the Street Law program focuses on the importance of education for children.
The legal issues presented in that case and the question of whether or not it was consistent with the attorney general's litigation approach and program, those are different questions from the basic issue of whether children should be educated.
FEINSTEIN: Could I do this? Could I give this to you? Because I have 15 minutes tomorrow. Could I ask you to read it?
I'd really like to know whether you think this way today. And I'll ask that question tomorrow.
And attached to it is the Congressional Research Service analysis of this. So if you wouldn't mind...
ROBERTS: Not at all. I'd be happy to.
FEINSTEIN: ... I will do this.
Let me ask you a question about strict scrutiny and affirmative action. You mentioned in several of your memos from the Reagan administration addressing affirmative action that the government should be color-blind.
And I would agree. And I wish we were there, but we're not there.
And because America is well-served by educating all her people well, do you personally subscribe not to quotas, but to measured efforts that can withstand strict scrutiny?
ROBERTS: If a measured effort that can withstand scrutiny is, I think, affirmative action of that sort, I think it's a very positive approach.
And I think people will disagree about exactly what the details should be. But the general notion...
FEINSTEIN: Such as Michigan, the University of Michigan.
ROBERTS: In the Michigan case, obviously, you have -- I always forget whether it's the law school -- but I think the law school program was upheld and the university program was struck down because of the differences in the program.
But efforts to ensure the full participation in all aspects of our society by people, without regard to their race, ethnicity, gender, religious beliefs, all of those are efforts that I think are appropriate.
And at the time of the Reagan administration, President Reagan was at pains to make clear -- and I know the attorney general was, as well -- that, in opposing quotas -- and at the time it was a much stricter quote approach that was being proposed, set-asides -- they were not in any way opposed to what they regarded as beneficial affirmative action to bring minorities, women into all aspects of society. That's important, and as the court has explained, we all benefit from that.
FEINSTEIN: I want to go back to hapless toad. It still bothers me.
I asked you some questions about it yesterday. Let me ask you instead -- I'm trying to get at it one way or another -- the factors you would consider in making determinations on the scope of congressional power under the commerce clause.
In Viejo, you addressed whether the survival of the endangered toad substantially affects interstate commerce, rather than looking at whether the cumulative impact of the survival of all endangered species substantially affects interstate commerce.
In the National Association of Home Builders v. Babbitt, a case you call into question in Rancho Viejo, the D.C. Circuit followed the Wickard cumulative test and looked at whether the protection of all endangered species substantially impacts interstate commerce.
The D.C. Circuit noted that although it's difficult to know the commercial impact of an individual species, in the aggregate we can be certain that the extinction of species and the attendant decline in biodiversity will have a real and predictable affect on interstate commerce.
In order to determine whether the Endangered Species Act regulates activity that substantially affects interstate commerce, should the courts look at the impact on interstate commerce of each individual species or the cumulative impact of all species that are protected?
Do you think you can answer that?
ROBERTS: I can, Senator.
But I do need to clarify. At the beginning you said something that -- what I did in the Rancho Viejo case, and that was not what I did.
ROBERTS: The only thing that I did in my opinion -- and, again, there was another opinion that analyzed it and made a determination of whether it was constitutional -- I did not join that opinion determining that it was unconstitutional.
I simply said that we need to look at these other grounds on which to sustain the Endangered Species Act; we should consider it en banc.
There was another court suggesting that our approach was inconsistent with the Supreme Court opinions.
When I was confirmed for the Court of Appeals, everybody wanted to know, will you follow the Supreme Court opinions, and I told you I would. And here we have a court of appeals suggesting you're not following them.
ROBERTS: And I said, well, let's take the case en banc. I did not state an opinion on whether the commerce clause requirement was satisfied or not. I said, let's take it en banc and consider these other grounds.
The other grounds went to precisely the issue and the question that you asked. If we had looked at it under the other grounds, which was the commercial activity surrounding the endangered species -- and, in other words, the issue that one other court of appeals had said, for example, there is commercial activity surrounding endangered species that takes place nationwide, not limited to where the particular species is, and that would satisfy the commercial activity requirement and allow the court to apply Wickard under the Supreme Court's precedents.
FEINSTEIN: Which is tough duty, when you get down to, let's say, a really endangered species, where you have very few of the species remaining. Perhaps they had been in a number of different states.
ROBERTS: That was the problem that was presented, as my opinion tried to set forth, that's the problem that was presented with the approach that the panel took.
And I thought we ought to rehear it and look at these other grounds where you don't have to ask whether there's impact on interstate commerce from the particular species -- the very point you were making.
FEINSTEIN: Let me tell you what's bothering me, is that it sets a prelude for the Clean Water Act and the Clean Air Act.
ROBERTS: Well, in those areas, again, the commercial impact of pollution, those are things that I think are not going to present as difficult an issue remotely as if you look at each individual species.
The whole point of my argument in the dissent was there was another way to look at this that would allow you to not have to look at the interstate impact of the one particular species.
There were grounds that the court in the panel opinion said they did not have to reach because they had taken this other approach that the Fifth Circuit was suggesting was inconsistent with our approach.
And all I said -- and, again, it's important to recognize -- I did not say that even in this case that the decision was wrong, that it was unconstitutional. Another judge dissenting did say that. I did not join that opinion.
I simply said, let's look at these other grounds for decision, because that doesn't present this problem.
FEINSTEIN: Thank you for clearing that up. I appreciate it.
ROBERTS: Thank you, Senator.
FEINSTEIN: Thank you.
SPECTER: Thank you, Senator Feinstein.
Senator Schumer, you're recognized for 15 minutes.
SCHUMER: Thank you, Mr. Chairman. Again, thank you for allowing us to go on with the questioning.
I just want to make a comment, and then I'll get into the questions, because in our last round you had mentioned something that I didn't think you had said before.
You know, you've always said you can't talk about decided cases because people might think there's some bias, but you introduced an argument I've heard you make to me privately but I don't know if you made it here publicly, which is you don't want to try and, quote, get my vote by changing your position, and there shouldn't be a bartering process at these hearings.
I would like to say to you that I don't think there should be either, and I don't think anyone does. I'm not asking you, I don't think any member of this committee, from Mr. Coburn all the way to the other end, is asking you to try and tailor your answers to what you think we want to hear. That would be unfair to you and unfair to us.
SCHUMER: All we're asking is to learn of your views within the ways you feel that you can tell us your views.
So I think this argument that this is a bargaining or bartering process demeans it. I want to know what you think, not what you think I want you to think, so I can make a fair judgment as to how to vote for you. And I think that's probably true of every single member here.
And by the way, since you are before all of us, if you try to earn one person's vote, you might lose another person's vote. So you may as well say what you think and not try to do any bartering.
And I'm sure that's how you think, too, but I don't think that's a fair argument in terms of why people won't answer questions about decided cases or about anything else. That would apply to every question you're asked, that you might -- we may as well not having hearings if the only reason was for to you try and twist yourself into a pretzel to please everybody here.
Now, as I've said, I would like to vote for you. To me, as I said in my opening statement, the test is, are you a mainstream person -- conservative mainstream, but mainstream -- or an ideologue?
Now, I -- this is my view, and I'm not going to ask you yours -- I think there are a couple of ideologues, too, on the court who want to use the law to change America dramatically in their vision.
And so I am going to try a few other ways to try and figure out who you are, so I feel comfortable with it.
Judge Rehnquist, in his hearings to become chief justice 19 years ago, was asked where he sat on the ideological spectrum of the court. Judge Rehnquist replied, On the conservative side. In fact, on the basis of the court's opinions, he said, not their personal preferences -- he had been on the court, I guess, 16 years? You would know better than me. But a good number of years. Thirteen, I guess...
SCHUMER: Yes. He said, quote, I think the chief -- Warren Burger -- and I are probably the most conservative, and it may be that I am more so than he. That doesn't involve any previous case or bias.
So let me ask you the parallel question about the D.C. Circuit upon which you sit now. Where, Judge, do you place yourself on the ideological spectrum of the D.C. Circuit?
ROBERTS: Senator, I think that's a very hard question to answer for a number of reasons.
One, as you know, almost all of our opinions are unanimous. We don't parse ourselves out according to an ideological spectrum.
SCHUMER: Yes. Most are technical and -- yes, many are technical or commercial, you know, governmental, technical. But on the tough ones they're not.
ROBERTS: I don't know where I fall. I do know that I saw recently a study that was done, and it indicated that I agree more with some judges appointed by Democratic presidents than I do with judges appointed by other Republican presidents.
And it's not simply lined up according to the president who appointed you. There are judges there that I've joined, and in opinions where I've found myself where we have had dissents.
There are some -- I know one case we were talking about earlier, the Bombardier case. Judge Rogers and I were in one position -- Judge Rogers appointed by President Clinton -- and Judge Garland was in a different position. I know in another case that was decided that we've talked about, Barber, Judge Garland and I were on one side and Judge Sentelle dissented.
So to the extent there have been divisions, I think you could go and see, and they would be completely non-...
SCHUMER: So you're saying you're somewhere in the middle?
ROBERTS: ... political.
I'm saying that judges don't think of themselves along an ideological spectrum.
SCHUMER: Judge Rehnquist did.
ROBERTS: Well, I don't...
ROBERTS: ... and the judges, I think, on the D.C. Circuit generally don't either.
SCHUMER: So I guess you wouldn't want to place yourself on the current Supreme Court either?
ROBERTS: No. I think that'd be...
SCHUMER: OK, let's try another route. I didn't think that would get too far, although, as I said, Judge Rehnquist did answer it. He is your mentor, and he answered it openly, fully, directly: He and Burger were the two most conservative, and he's more conservative than Burger.
SCHUMER: How about modesty and stability?
Let's try to talk about that.
And when we met, I was very impressed with the concepts of modesty and stability. They suggest to me you respect precedent and well-settled law. You've said that yourself here, particularly in reference to Senator Specter's opening round of questions. And that is a good opportunity for common ground.
I had a history professor, and he said -- Franklin Ford. He had Ford's rule of history: We're no smarter than our fathers. Pretty good rule. And that's sort of a modest concept in history, not in jurisprudence.
So I'd like to find out a little bit more about modesty. So I'd ask you -- these can be well-settled; they can be 50 or 100 years ago. And please don't go on at length, but can you give me a few Supreme Court cases that are modest -- or represent modesty, is a better way to put it, at least in your view? And a few Supreme Court cases that would represent immodesty?
I guess I would think the clearest juxtaposition would be the cases from the Lochner era. If you take Lochner on one hand and, say, West Coast Hotel, which kind of overruled and buried the Lochner approach on the other. And the immodesty that I see in the Lochner opinion is in its reweighing of the legislative determination. You read that opinion, it's about limits on how long bakers can work. And they are saying, We don't think there is any problem with bakers working more than 13 hours.
Well, the legislature thought there was, and they passed a law about it. And the issue should not have been, Judges, do you do think this was a good law, or do you think bakers should work longer or not? It should be, Is there anything in the Constitution that prohibits the legislature from doing that?
SCHUMER: How about another one? Or a modest one. You know, could be either way.
ROBERTS: You know, people talk about Brown v. Board of Education. And let me explain why I think that is an example.
ROBERTS: It's obviously a dramatic departure in American history and, in many respects, very bold. Yet I think it's more appropriately understood as a restrained decision compared to the decision that came before in Plessy v. Ferguson.
And you can see this if you'll look at the arguments of the lawyers, because what John W. Davis was arguing on the side of the board was to the court: You need to be worried about the social consequences of upsetting this decision. People have lived their lives this way. If you overturn this, it's going to be disruptive, the consequences are going to be bad.
Thurgood Marshall, on the other side, was making a legal argument, addressed to the obligation of the court to apply the rule of law. And he said -- focused on the discrimination involved in the separation.
He made an argument -- and it was a very clever approach to the case, because he based his decision on precedent, as well -- saying,
You've had this recent case in Sweatt v. Painter. Don't talk to me about Plessy v. Ferguson. You are beginning the process of departing from that. Your recent decision here, if you're going to be consistent, you have to come out this way.
So, again, it seems odd, I know, to talk about things like modesty in such a bold decision, but it is, in my view, a more appropriate judicial- restrained decision.
SCHUMER: Let me ask you, this is a general question I was going to ask you that leads to this.
In other words, if a decision of the court issued many years ago is immodest, in your view, modesty could compel overruling?
ROBERTS: Well, I think you take...
SCHUMER: That's what you argued just a minute ago with Brown, I think.
ROBERTS: Well, sometimes the appropriate restrained approach -- now, with Brown, my point was the notion of precedent was one that Thurgood Marshall appreciated in arguing to the court that it shouldn't be simply a debate, he didn't want to debate it on John W. Davis's terms about Plessy, should it be overruled or not. He said, here's another precedent of the court. So he was arguing from precedent as well.
But when you have the conflict, a past error, decision that was fundamentally immodest, let's say, and then years and years of it being on the books, stability argues, Keep it on the books, and even modesty, with its respect for precedent, argues, Keep it on the books, how do you draw that?
Can you just elaborate a little bit on how you weigh those two different concepts of, quote, modesty ?
ROBERTS: Well, I think a modest approach requires beginning with the body of precedent. That's what judges do. And that's a recognition, just as Professor Ford said, that we're not necessarily -- we're not smarter than our fathers who laid down this precedent.
SCHUMER: Professor Ford.
ROBERTS: Professor Ford.
My point with respect to Brown was that Thurgood Marshall appreciated that, and then he was making an argument from precedent just as the way Davis was. And they kind of, I think, gave the court some comfort in departing from Plessy that they had already taken the initial step in Sweatt v. Painter.
SCHUMER: Let me go to -- I think Senator Durbin alluded to it, because this is one that was a little troubling, and maybe you can talk about it.
In the memo you wrote about Wallace v. Jaffrey, which had just been decided, involved church and state -- I am not interested right now in the specific holding. You wrote, Rehnquist tried to revolutionize establishment clause jurisprudence and ended up losing the majority, which is not to say the effort was misguided.
Then you wrote -- because you were speaking approvingly of Rehnquist's attempt to revolutionize a well-settled area of law.
You also in the same memo criticized the opinion of Louis Powell, same case, criticizing as, quote, a lame concurring opinion focusing on stare decisis.
SCHUMER: To at least the reader of this, it seems very immodest -- praising the revolutionary decision and sort of criticizing, saying it was lame opinion focusing on stare decisis.
Now, I know you wrote this 20 years ago, and I know you wrote it for your boss, Ronald Reagan, who you admire. I admire him too, but probably for different reasons.
But those words -- Ronald Reagan didn't command to you say, I approve of Rehnquist's view to revolutionize Powell. I know you had to come out on that side.
Just please explain to me if you still stand by, not the holdings of the case, whether Wallace v. Jaffrey was correctly decided, but the language that you used, the thinking that you used.
How does that square with modesty? Or had you not developed the theory of modesty when you were there as a young clerk or young member of the, I guess at that point, Solicitor General's Office.
SCHUMER: No. Wherever you were.
ROBERTS: If it's 20 years ago, it would have been...
SCHUMER: It's 1985.
ROBERTS: It would have been in the White House Counsel's office.
SCHUMER: White House Counsel's office. Excuse me.
ROBERTS: And the memo that you are referring to, obviously it's speculation about what happened in the case.
SCHUMER: I know. How does it square with modesty? Did modesty arise in your way of thinking after that?
ROBERTS: It's not a question about me being a judge. It's a question about my describing what I was obviously speculating was going on in that particular case.
SCHUMER: You approved of it. You said the revolutionary aspects were not, which is not to say the effort was misguided. And then you said lame -- there is no real way to interpret that except pejoratively -- concurring opinion that focused on stare decisis.
ROBERTS: Saying that the effort was not misguided referred to what I had been speculating was the chief justice's effort to reformulate the approach in that case. It's the Lemon test, and we've talked about the Lemon test before and the pluses and minuses.
I've described it, I think it was today, maybe yesterday. It is a survivor. I noted when we argued the Lee v. Weitzman case that six of the justices had taken the position critical of the Lemon test -- six of the sitting justices. They never took it at the same time. It's still the test that applies. It would be the precedent that I would begin...
SCHUMER: I'm just going to cut you off, I apologize, because I have 16 seconds, and the chairman has said I have to ask the questions before.
Just assure me and maybe some more of us that modesty isn't a concept that you use when you want to slow things down because the courts are moving too fast, but you don't use when you think things should be sped up; that it's a general approach that sort of says to judiciary: Go slow in every aspect.
Try to convince me of that, if you can.
ROBERTS: Well, I'll try, Senator.
It is a neutral principle. Your suggestion that I apply it in cases where I want to but don't is, of course, a grievous insult to any judge -- the notion that they are result-oriented; that they would apply a particular approach one way in one sort of cases and a different way in another case.
That's not how I approach judging...
ROBERTS: ... and not how I would approach judging, whether I'm back on the Court of Appeals or somewhere else.
It is a neutral principle. It reflects the -- and it's obviously not an original concept with me.
ROBERTS: There are judges, you go back throughout our history, that have articulated and recognized the principle of judicial restraint, that there are limits on what the judge can do.
And those judges have always explained that this applies whether or not I'm in favor of a particular result or not. It's a reflection of their institutional authority and their role, that their job is to interpret the law, not to make the law. And that applies without regard to what law you'd like to have made or not.
SCHUMER: Thank you.
Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Schumer.
Thank you, Judge Roberts.
Thank you all.
We will reconvene tomorrow morning at 9:00 a.m. That concludes our hearing.
ROBERTS: Thank you, Mr. Chairman.