SEPTEMBER 15, 2005





SPECTER: Good morning, ladies and gentlemen.

Good morning, Judge Roberts.

ROBERTS: Good morning, Mr. Chairman.

SPECTER: We will now proceed to the third round of questioning, which will be abbreviated. There are six senators on the other side of the aisle who have requested additional time. There will not be a third round for any of the senators on the other side of the aisle.

We will go into a closed session a little before 11 and we will turn to the outside witnesses hopefully at 11:30. And we project a conclusion late this afternoon, but that will depend on a sequence of events.

I now yield to my distinguished colleague, Senator Leahy, for 20 minutes.

LEAHY: Thank you, Mr. Chairman.

Judge, you're really going to miss us, aren't you? You're going to miss doing this every day. I mean, it's -- you're not even going to answer that one, are you?


ROBERTS: Well, it's a once in a lifetime experience, Senator.

LEAHY: When we left off the other day, you and I were discussing the Supreme Court's decision and Christine Franklin -- the Title IX case. This, for those who may have forgotten, was the case of very, very serious sexual abuse of a young girl by her teacher. It makes your skin crawl just to hear the facts of it. Now, Justice White's opinion for the Supreme Court rejected your technical legal arguments. You had argued she should not be allowed to sue for damages.

He wrote, quote, From the earliest years of the republic, the court has recognized the power of the judiciary to award appropriate remedies to redress injuries actionable in federal court. He went on to note that, To disallow damages, remedy in this case would be to abdicate our historic judicial authority, to award appropriate relief in cases brought in our court system.

And then most tellingly, Justice White wrote that your argument that Christine Franklin's remedy should be limited to backpay and injunction, a position you had reiterated a couple days ago -- he said that that conflicts with sound logic. He went on to say that it's clearly inadequate. And he wrote that backpay does nothing for in prospective relief in the court where there's no remedies at all.

Now, the reason I raise this case, not that it's one of those rare ones where you are on the losing side, but I raised it because I thought it was a case about what our courts should do, including doing justice and remedying rights and protecting Americans. So my question to you is this: Do you now recognize that the Supreme Court's view in the case set forth in Justice White's opinion was the right one, and the positions of the United States in your brief were the wrong ones?

ROBERTS: Well, as a judge, looking at it, obviously when you lose a case, as you point out, 9-0 it's a pretty clear signal that the legal position you're advocating was the wrong one.

The position the administration took in that case was the same position that the Court of Appeals had taken. In other words, what the Supreme Court did was reverse the lower court.

So I'm just explaining why the position we took prior to the decision may have looked different than it did after the...

LEAHY: I understand that. I thought I, sort of, laid that out earlier.

But my question is: Do you now accept that Justice White's position was right and the government's position was wrong?

ROBERTS: I certainly accept the decision of the court -- the 9-0 decision, as you say -- as a binding precedent of the court.

Again, I have no cause or agenda to revisit it or any quarrel with it.

The issue, of course, is the one of: What remedies are available for an implied cause of action? The reason I think that the lower courts came out the one way and the Supreme Court came out one other way is that you're dealing with an implied cause of action. In other words, it hasn't been spelled out.

LEAHY: I think the Supreme Court was looking -- acting, as they felt, within the law, for an area that would actually bring justice.

That was basically my point. It may have been implied, but they looked within the case. They looked within the law. And they found an area to bring justice.

And I realize hard cases sometimes make not the best law, but I think this case is a hard case but it made good law. Would you agree?

ROBERTS: I have no quarrel with the court's decision, Senator.

LEAHY: You have been involved a great deal in the development of the Supreme Court authority limiting the ability of individual Americans to ensure they actually receive the rights and protections that Congress has mandated under spending clauses.

In the Reagan administration, you advocated legislative responses to Maine v. Thiboutot. That's how the Supreme Court tell us it's pronounced. It's not how those of us who live -- the way those of French Canadian descent might say it.

That was a case that recognized broad access to courts to vindicate your rights under federal law. You criticize the damage supposedly caused by that case in a 1982 memo.

And then you wrote briefs and argued before the Supreme Court in the '80s and '90s. We've talked about some of these, South Dakota v. Dole, Wilder v. Virginia Hospital, Sutter v. Artisam, Gonzaga University v. Doe, and you call for the narrowing of Congress spending powers, eliminating the right of individuals to sue to compel the protections Congress required under federal law.

I worry about this if an individual loses their right to sue, if the state or the administration or whoever the administration might be doesn't protect their rights. For example, if the only remedy for a state's refusal to live up to its obligations under a spending power enactment, like Medicaid or another such program, is action by the federal government and the federal government doesn't act, where does that leave the rule of law? Where does that leave America's sense of justice if an individual can't -- doesn't step in and seek action?

ROBERTS: Well, two points, Senator. The issue in the spending clause cases that you referred to -- Wilder, the later one, Sutter case, and the Gonzaga case that I argued when I was in private practice -- the issue is one of congressional intent.

The question is: Did Congress intend there to be a private right of action? That's what the courts are trying to figure out.

And if Congress did intend there to be private right of action, if Congress intended this to be actionable, whether through Section 1983 or under the law itself, then there would be a private right of action.

In some cases, Congress doesn't intend that. And in those cases there wouldn't be.

I would say that...

LEAHY: Go ahead.

ROBERTS: I was just going to make the point that in those cases, of course, I was advocating the position for a client.

I did have occasion as a judge to address a spending clause case. It was a case called Barbour v. Washington Metropolitan Area....

LEAHY: But that one the statute was pretty darn clear.

ROBERTS: Well, it was a 2-1 decision; divided decision on a court that doesn't often issue 2-1 decisions. There was a lengthy dissent saying that Congress did not have the authority to require...

LEAHY: Judge Sentelle dissented?

ROBERTS: Judge Sentelle dissented.

LEAHY: I read that. I don't want to go into that; he's not here before us.

But what I worry about, though, is the trend of these (inaudible) that may say that Congress intended these programs, more like Medicaid, a commitment there to be, kind of, an exclusive bargain between the federal government and the state government.

And that raises a question in my mind. I mean, do the courts really think we've made empty promises? I thought of this the other night. Because I remember what you said about the empty promises of the Soviet constitution. But wouldn't it be an indication we were making the same kind of empty promises if individuals can't sue if they're left as innocent bystanders who are harmed, but they have no remedy, if the state is negligent in acting or if the federal government doesn't protect it?

I mean, why shouldn't they be able to sue to get the promises that are made in these bills so it's not like the Soviet constitution: great promises, but empty?

ROBERTS: Well, the issue is not whether they should be able to sue or not. The issue is whether Congress intended them to be able to sue or not.

The issue doesn't even come up if Congress would simply spell out in the legislation, We intend these individuals to have the right to sue in federal court. That would prevent the issue from even coming up.

All of those cases we've been talking about arose because Congress did not address the question and, therefore, the courts...

LEAHY: Congress assumes the states and the federal government are going to do what the law spells out. We don't do it as an empty promise; we assume they're going to do it.

When they don't do it, if you're developmentally disabled, Medicaid kids, foster kids, rape victims and so on, shouldn't they be able to have a voice?

ROBERTS: Well, if Congress wants them to sue, all Congress has to do is write one sentence saying individuals harmed by a violation of this statute may bring a right of action in federal court. There are laws where Congress says that and that question never comes up.

The issue in the various cases that we've been talking about, including in the Barbour case, where I ruled that the individual did have the right to sue -- when I was a judge -- the issue is what did Congress intend? And all too often that issue is not even addressed.

I don't know whether it's because of inadvertence or it's because of inability of Congress to agree and both sides, sort of, say, Well, let's let the courts figure it out.

LEAHY: May be the assumption of those of us who take an oath of office here to uphold the laws that the state government, those officials who take similar oaths of office, or the administrators and the national government takes similar oaths of office are actually going to do what they've sworn to do.

ROBERTS: Well...

LEAHY: Can I move on? Because it also goes to -- and I understand your point on this. And we can probably debate this all morning long. But I hope you understand my concern, which is a concern of a lot of the American people in this area.

Let's go to another precedent that I know moved me a great deal, Gideon v. Wainwright. As a young law student, my wife and I had an opportunity to have lunch with Hugo Black shortly after that. One of the most memorable times I had.

He's a former senator. He recognized the Sixth Amendment's guarantee to counsel in a criminal, with a fundamental right to a fair trial. He called it an obvious truth. In an adversary system of criminal justice, any person held in a court who's too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for them.

A wonderful book, Gideon's Trumpet, that Anthony Lewis wrote.


LEAHY: Doesn't Gideon stand for the principle that it would be meaningful -- such a fundamental right as the right to counsel -- it requires assurances that it can be exercised?

ROBERTS: Yes, I think so.

I've often said that a lot of these difficulties, particularly in the areas of the legal errors being raised and collateral review -- a lot of those difficult questions could be avoided if people had competent counsel from the very beginning.

LEAHY: Well, doesn't the same principle embodied in Gideon, that the Constitution guarantees a person's ability to exercise fundamental constitutional rights -- doesn't that apply to other constitutional rights?

I mean, to be meaningful, we have these rights; they've also got to be real in people's lives.

ROBERTS: Well, I think the basic instinct and genius behind the Gideon decision was without counsel to protect people's rights, they were going to forfeit them, they were going to waive them, due to ignorance or inability to appreciate the proceedings. That's why you need counsel at that stage.

It's not because you have a right to counsel in the abstract. It was the recognition that having counsel is a way to ensure the protection of your other rights that you may not even be aware of.

LEAHY: That could be with a lot of our rights. They've got to be meaningful. You can't just say, You have them. And I'm really struck by your discussion of the Soviet constitution. I totally agree with you on that, but we have 280 million Americans of all different economic and educational backgrounds and everything else.

We have wonderful rights. Our Bill of Rights is, I think, one of the most amazing things ever written by democratic people.

But the rights are only there if they're meaningful in people's lives; that they can be enforced.

And ultimately, that may come right down to the courts. I mean, Hugo Black's opinion is a pretty strong opinion. You suggest I may have over-read your memo on Grenada. You said it really talked about veterans' rights but, actually, your memo -- what struck me, it doesn't say veterans' rights, it says war powers on it.

The Constitution invests the power of declaring war in Congress not the president. I still have a hard time squaring that with your inherent authority arguments you advance in that Grenada memo.

Maybe I could ask it this way: Do you continue to believe that the president has inherent authority to invade a sovereign nation, absent attack by a foreign power?

ROBERTS: Senator, that is a very abstract hypothetical. There are situations that arise when an executive may determine that that type of action is necessary. That may be challenged. I don't think abstract questions like that should be answered.

There have been situations in our past where that authority has been claimed both abstractly and concretely. Certainly Congress has the power to declare war but, as you know, of course, there have been several incidents in our history -- the Korean War, the Vietnam War, others -- where there has been authorization for the use of force, not a declaration of war.

You know the history when Madison's original proposal gave Congress the authority to make war and he thought that should be changed so that the executive would have the authority to respond to an invasion and I appreciate that part of your question.

LEAHY: But you also have George Washington -- if you're going to quote people back to that time -- George Washington spoke of no offensive expedition of importance can be undertaken until after Congress shall deliberate (inaudible) and authorize such a mission.

So I'll go to the flip side: Can Congress stop a war?

ROBERTS: Well, that's, of course, a difficult question.

Now Congress has always exercised the power of the purse with respect to activities of that sort and regulated the funding for that type of activity. And that's, of course, always been the core of Congress' authority.

But the question to actually terminate hostilities that the executive has determined to initiate either with the authorization of Congress or a situation of congressional silence or acquiescence, to go back to the Youngstown decision, the issue of what Congress' authorities are to terminate, short of exercising its power with respect to the purse, those are unsettled, and I think have to be addressed in the context of a particular case.

And the memo to which you refer, again, I was a lawyer for the executive and any cautious lawyer for the executive, without regard to the administration, would be on the alert for any type of suggestion that there are limits on that power.

LEAHY: To show you how cautious you were, you wrote, There's no clear line separating what the president may do on his own and that requires a formal declaration of war.

But you conclude the exercise of presidential power in connection with the Grenada incident fell comfortably on the legitimate side of the line. What's a situation that falls on the illegitimate side of the line where a declaration of war would be needed?

ROBERTS: Well, you take the history, anyway -- if you have a situation like the Korean War taking place without a declaration of war, the war in Vietnam taking place without a declaration of war, I think it's difficult to articulate in the abstract where the line would be, other than the fact that throughout our history, there have been those significant types of engagements that I suspect all of the people involved in them thought we're at war that did not have a congressional declaration of war.

So, again, where the line is drawn or how it would be drawn in a particular case or even what the role of the courts would be -- as you know, in these areas, there's often an initial dispute, Is this a judiciable question that the court should entertain in the case of litigation and a conflict between the executive and legislative concerning something like whether a declaration of war was required? that would be a question the court should to address before the reaching the merits.

LEAHY: Let me switch gears again.

Senator Grassley is not here right now, and Senator Specter and I have worked for several years to shed some light on the FISA court, the foreign intelligence court.

A lot of Americans are affected by their decisions. Most Americans don't know how it works, don't know whether their civil liberties are being curtailed or violated. We added some sunshine provision. The attorney general now submits a biannual report to four congressional committees, details how many people are the target of electronic surveillance and so on. It's still inadequate in the fact it doesn't get public reporting.

If you're confirmed as chief justice, you're the overseer of the FISA court. Most people don't even look at that role of the chief justice. I think it's probably one of the most important ones if you're going to talk about the liberties and how they're protected.

Would you be willing to work with members of Congress to add more transparency, or do you believe there's enough transparency in the work of the FISA court now?

ROBERTS: Senator, you said you think this is something most Americans aren't aware of. I suggest probably most judges aren't aware of...

LEAHY: Well, that's probably so.

ROBERTS: It is a specialized court. I will tell you when I became aware of it, it's a surprising institution. It's an unusual set-up.

LEAHY: Certainly different than what we think in our system of...

ROBERTS: That was exactly my reaction.

On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way.

I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties.

That I think is very important.

Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.

LEAHY: And I'd hope -- my time is up. I apologize. But I'd hope that, if you are confirmed, that you might be willing -- and I think Senators Grassley, Specter, and myself could put together some suggestions -- at least keep an open mind on it.

ROBERTS: Certainly, Senator.

LEAHY: Because in an electronic age, in a digital age when more and more information is being pulled in on Americans that we sometimes don't even know about, it is frightening. We want security, but we want to be like -- as Benjamin Franklin said, a people who'd give up their liberties for security deserve neither. Thank you.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Leahy.

Senator Kennedy, for 20 minutes?

KENNEDY: Thank you very much, Mr. Chairman.

Good morning, Judge Roberts. ROBERTS: Good morning, Senator.

KENNEDY: In response to a question that was asked by Senator Biden the other day, you appropriately pointed out that there were different responsibilities at the local level, state level and national level in dealing with the challenges our country faces in domestic policy.

I want to talk about what you understand are the powers that we have at the national level. And I want to start off on the issue of racial discrimination, discrimination on the basis of race in our society.

We've talked about this in different ways over the past few days. And our founding fathers did not get it right in the Constitution. We've had the Civil War, the struggles of Dr. King.

Do you believe that we have the authority and the power to pass legislation to free ourselves from the stains of racial discrimination?


KENNEDY: Now let me ask you about gender discrimination. You find out over the history of this country, as you're very familiar, how women have been discriminated against in all forms, in all shapes.

And now I want to ask you whether you believe that we have the power and the authority to pass legislation to free our nation from discrimination against women in our society.

ROBERTS: Yes, Senator, I do.

I'm familiar with the various legislative enactments in the area that protect right to work and so forth, free from discrimination and...

KENNEDY: Now, let me ask you about those that are faced with disabilities.

Do you think the 50 million Americans that are faced with disabilities in one form or another -- challenges, I like to say -- do you think that we have the authority and the power to free this country, free our nation from the forms of discrimination against those who have a disability?

ROBERTS: I do, Senator.

Now, there are issues that come up, as you know, in several of the cases before the Supreme Court on the particular applications of that, cases concerning the question of do you have the authority under Section 5 or the Fourteenth Amendment to abrogate state sovereign immunity if the claim of disability discrimination concerns a state as a defendant.

And as you know, in the Garrett case, there was conclusion that the authority was not there. Later, in the Lane case, under Title II of the Americans with Disabilities Act, the conclusion was that sufficient record had been established that there was the authority.

So while, as a general matter, there is the authority, in a particular case it may come up against other provisions in the Constitution, in that case the recognition of state sovereign immunity, and that presents an issue that the courts have to address.

KENNEDY: You mentioned the Lane case. That was decided 5-4. We're going to hear later today from Beverly Jones, who was a plaintiff in that case. I've listened to her, I've met with her before. An extraordinary woman, mother of two, trying to provide for her family, court reporter. And it was either an issue or question whether she was going to crawl up the flight of stairs to have access to the courtroom and have someone bring up her wheelchair or whether she was effectively going to be denied that opportunity to have access to a courtroom in Tennessee. Four justices indicated in their dissent that this kind of issue or question ought to be resolved by states effectively. Fifty states ought to be making that judgment.

I strongly believe that this country, in its march toward progress, in dealing with the disability -- with Americans with Disabilities Act, the Rehabilitation Act, the work that was done with IDEA over the long period of time -- that we have come to the point where we as a country want to invite all of those with forms of disability to be a part of the mainstream.

But that was a 5-4 decision. And I appreciate the fact that I gather from your, at least answer, I guess, in the Lane v. Tennessee that you're at least sympathetic to the judgment that Justice O'Connor made in indicating that accommodation for those with disabilities in that case was appropriate.

ROBERTS: Well, it's certainly the precedent of the court in that area and I have no quarrel with it.

The issue, of course, is whether or not Congress has the authority under Section 5 of the 14th Amendment to abrogate the states' sovereign immunity. It's not a policy judgment by the court about leaving things to the states or federal government but a legal determination of whether the state's sovereign immunity's been abrogated.

And the court determined in that case that Congress did have that authority and that it could authorize the suit against the state institution.

KENNEDY: Well, we're going to come back to, sort of, the, kind of, legalist determinations that make and extraordinary difference in terms of people's lives. We welcome guidance and invitation about which particular provisions of the Constitution that we ought to utilize in order to strike down these forms of discrimination. Let me ask you a broader question: Do you think having a diverse society where everyone has an equal chance to participate is an American value and is fundamental to the strength of our society?

ROBERTS: I do. I agree with that statement, Senator. Yes.

KENNEDY: I do too.

And I want to just review very quickly what I consider to be a sort of a pattern in different judgments that you have made over a period of 20 years. We haven't got a lot of time, and I'm not going to bother going through the memorandas, unless you would like to.

But for someone who is black or brown or a woman or disabled and looked at a pattern over 20 years where you were actively involved in the Reagan administration against affirmative action -- I'm leaving out the whole issue of quotas. All of us oppose quotas. We are talking about affirmative action and you expressed strong reservations about affirmative action.

In 1991 in the FCC case, you as the advocate for the U.S., the acting solicitor general, refused to take the position of the FCC, your own client. And the FCC filed briefs in favor of its own affirmative action program and your office opposed the FCC.

This is, as I understand, extremely unusual.

Part of the difficulty that we have, Judge Roberts, is we don't have your records on affirmative action. They were in the Reagan Library. And at some time they became misplaced. And we don't have those records, to be able to give a complete review of these documents, although what I'm stating here is factual.

And we don't have the information that we requested from the Solicitor General's Office, who, as you appropriately mentioned yesterday, was America's lawyers in this particular case, in this solicitor case, where the FCC with its affirmative action program that recognized that with all of the broadcasting and the television station that there were no minority-owned stations.

And they had a modest program. They petitioned you, who regularly was going to intervene on behalf of the FCC, and then you made a judgment that you would not -- that you'd enter a brief in opposition to it.

The Supreme Court came out in favor of the FCC. I know that the standard altered and changed subsequently on that case.

And then in 2001, you took a private case to basically see that the Department of Transportation's affirmative action program, that applied, in this case, to the highways, which has been overwhelmingly supported by the Congress year in and year out, would be effectively undermined.

The point I'm asking here is, given these series of actions over a period of time, what do you think in your record would give some sense of hope to women, to minorities, blacks and browns, to those that are disabled, that are not looking for a handout, but just looking for a chance in this diverse society to be able to have an equal opportunity?

ROBERTS: Well, Senator, I think there's a great deal in my background that you could look to in that respect.

For example, you could look to the cases in which I argued in favor of affirmative action. I've argued on both sides of that issue.

In the Rice v. Cayetano case, for example, before the Supreme Court, I argued in favor of affirmative action for native Hawaiians. I lost that case but I was arguing on the side of affirmative action.

There are other episodes in my background that people could look to. For example, I regularly participate in -- when I was at my law firm -- a program sponsored by the firm, a legal reasoning program for minority and disadvantaged students going on to law school, to help them prepare for the rigors of law school, so not simply that they would be chosen, selected and admitted into law school but be in a better position to be able to succeed once they got there.

With respect to the FCC case that you mentioned in the Metro Broadcasting case, I think a fuller understanding of the situation there is necessary.

The United States had already taken a position before the FCC opposed to the FCC program. And that put the Solicitor General's Office in the position where they had the position of the United States, which was opposed to it, and the FCC position which had prevailed before the District of Columbia Court of Appeals.

I authorized the FCC to defend its position in court. That was a discretionary decision; I didn't have to do that. But I thought the Supreme Court in a situation where the FCC, part of the United States, and the formal position of the United States before I had ever gotten involved in the case were at loggerheads, that the court should have both views and decide the case.

They did decide it in favor of the FCC, 5-4. And as you noted in the other case that I participated in, later the Supreme Court overturned that decision.

The long and short of it is as you look at my record on the question of affirmative action, yes, I was in an administration that was opposed to quotas. Opposition to quotas is not the same thing as opposition to affirmative action. That was something that President Reagan emphasized repeatedly.

I argued against quotas in the FCC case. I argued in favor of affirmative action in the Hawaiian case.

In terms of my own personal involvement, I've been active in programs that promote the interests of minorities and disadvantaged to participate fully in our society.

KENNEDY: Well, as you know, in the Hawaiian case, that was not an affirmative action case. You gave that response to Senator Durbin in the written answers when you were promoted to the circuit court. And in the case itself, it indicates that it was not an affirmative action.

All right. Let me go -- we'll agree to disagree.

I've just got a short time left.

On the EEOC, there's the quote that you have -- this is the Equal Opportunities Commission that was set up in 1964 a part of the 1964 act. And it was basically set up at the strong suggestion and recommendation of Everett Dirksen, who played a key role, in order to try and deal with the discrimination on women, on race, on ethnicity, national origin.

And so they set up a commission in order to be able to take the various complaints.

They didn't think they'd have many complaints. First year, they had 9,000 complaints and has been doing extraordinary work ever since.

You mentioned in your memoranda that we should -- you're familiar, I think, with these words. They've been written up in the journals and you can probably recognize them. We should ignore the assertion that the EEOC is unAmerican, the truth of the matter notwithstanding.

Is there anything -- is there some reason that you would make a comment like that...

ROBERTS: Well, Senator, you do have to read the memo, I think, in its entirety to put it in context. That was not my language. That was the language -- the unAmerican reference was the language that was employed by an individual who had a case before the EEOC. He actually won his case before the EEOC but he didn't like the difficulty and the time involved.

He wrote to the president. He said two things: one, that his treatment at the hands of the EEOC was unAmerican; and, two, that the president had promised in the campaign to abolish the EEOC, and he wanted to hold the president to that promise.

It was my responsibility to figure out how to respond to this complaint that had been received. And how we responded was by protecting the EEOC from interference by the president in any political way, by protecting the EEOC from this sort of complaint.

We did not go to the president and say, You've got to do something about the EEOC. We didn't pass on the objection at all.

And the point of the letter -- when you read the whole memorandum, you see two points.

The first is that I was unable to determine, in the short time I had to respond, whether or not the president had made such a pledge to abolish the EEOC. I simply didn't know. And I said that in the paragraph, if you read it. And that's what the truth of the matter notwithstanding is referring to: the question of whether or not the president had promised to abolish the EEOC.

I say right in the memo that we cannot determine that. And whether his treatment was unAmerican or not is beside the point; we don't interfere with the activities of the EEOC. That was the conclusion and that's what we did in that case.

KENNEDY: Well, Mr. Chairman, I'd ask that the memo be included in there.

SPECTER: Without objection, it will be included.

KENNEDY: You say that The assertion of the EEOC is unAmerican, the truth of the matter notwithstanding.

ROBERTS: You do need to read the prior clause.

KENNEDY: I'll include, but I want to come -- because I'm in the final few minutes, and I will. I've read it a number of times and I'll include it in the record and let the record... SPECTER: When Senator Kennedy's line of questioning is finished and he's used his time, you'll have the memo and you can respond.

ROBERTS: Thank you.

KENNEDY: At the outset of my questions, I talked about Earl Warren. And you were enormously complimentary about Earl Warren, about him understanding not only the law, but also understanding the importance of a chief justice, bringing other justices together in a very important way in terms of dealing with a societal issue and a question. And I think we're a fairer country and a fairer land because of this. This was really the bringing together of the mind and the heart. Oliver Wendell Holmes said, It's dangerous to think about legal issues can be worked out like mathematics.

And another nominee who was here not too long ago had this to say about the head and the heart: What you worry about is someone trying to decide an individual case without thinking out the effect of that decision on a lot of cases. That is why I always think law requires both a heart and a head.

If you do not have a heart, it becomes a sterile set of rules removed from human problems and it will not help. if you do not have a head, there is the risk that in trying to decide a particular person's problem in a case, that may look fine for that person, but you cause trouble for a lot of other people, making their lives yet worse.

In the remaining moment, recalling Justice Warren, just thinking through what other nominees have said about the importance of a heart and a legal mind and you as a chief justice together, in telling the American people how you were inspired by Chief Justice Warren at a very important and critical time in our nation's history, what could you tell them now that could give them the assurance that you might be a similar kind of chief justice should you be approved by the Senate?

ROBERTS: Well, Senator, my point with respect to Chief Justice Warren was that he appreciated the impact that the decision in Brown would have. And he appreciated that the impact would be far more beneficial and favorable and far more effectively implemented with the unanimous court, the court speaking with one voice, than a splintered court.

The issue was significant enough that he spent the extra time in the reargument of the case to devote his energies to convincing the other justices -- and, obviously, there's no arm-twisting or anything of that; it's the type of collegial discussion that judges and justices have to engage in -- of the importance of what the court was doing and an appreciation of its impact on real people and real lives.

I recognize as a judge and I recognized as a lawyer that these cases have impact on real people and real lives.

I always insisted when I was a lawyer about getting out into the field and seeing. If I was arguing a case involving native villages in Alaska, I went to the villages. If I was arguing a case about an assembly line, I went to the assembly line. You had to see where the case was going to have its impact and what it's impression was going to be on people.

Now, none of those cases were as important as Brown v. Board of Education but the basic principle is the same: I think judge's do have to appreciate that they're dealing with real people with real cases.

We, obviously, deal with documents and texts, the Constitution, the statutes, the legislative history, and that's where the legal decisions are made. But judges never lose sight or should never lose sight of the fact that their decisions affect real people with real lives, and I appreciate that.

KENNEDY: My time is up, Mr. Chairman. Thank you.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Kennedy.

As I said when Senator Kennedy was questioning you about the EEOC, I did not want to take his time to have him present the memo to you, limited time that he had. And it's been made a part of the record.

Senator Kennedy, if you would make the memo available now to -- Senator Kennedy, if I could have your attention? KENNEDY: Yes, excuse me.

SPECTER: If you'd make the memo available to Judge Roberts now so that he can comment now without having taken your time to do that.

KENNEDY: Mr. Chairman?

SPECTER: Senator Kennedy?

KENNEDY: As you know, this has been redacted. And as I think in fairness to him, in fairness to the committee, if we can get out the other redactions, it will be a more accurate kind of complete record.

SPECTER: Well, if it's possible for Judge Roberts to deal with the redactions...

ROBERTS: I think the redactions simply identify the individual, who was making the compliant who had his case.

The only thing I would emphasize is that the language that was quoted was part of a sentence. And the question of what the truth of the matter is referring to goes to the first part of the sentence that was not read, which is the assertion, the assertion that the president promised to abolish the EEOC. That was the matter that I could not determine in the time available whether that was correct or not.

So I said the truth of that matter notwithstanding.

And I also emphasize that any reference to the phrase unAmerican is always in quotes to make it clear that that's what the writer of the letter said and certainly not what I said and it was certainly not my view then or now.

SPECTER: Senator Kennedy, do you want to follow up on that?

KENNEDY: Well, I think we've been over the -- after all is said and done about finding out what President Reagan wanted to abolish or not abolish, it really wasn't the issue or the question.

And the question isn't about whether the use of the unAmerican is obviously unacceptable. And they're dismissing that.

But Judge Roberts said, The assertion the EEOC is 'unAmerican,' quote, and he's quite right saying that they were dismissing that word. But then he adds, the truth of the matter notwithstanding.

I think it's not unreasonable to assume that he somehow was disparaging the EEOC. That's all.

I'm glad to let the record stand, Mr. Chairman.

SPECTER: Any counter-reply?

ROBERTS: Well, I'm glad to let the record stand just as long as the whole memorandum and the entire sentence that's being discussed is in the record.

SPECTER: We've finally come to one point of agreement.


Senator Feinstein for 15 minutes.

FEINSTEIN: Thank you very much, Mr. Chairman.

I want to just say one thing. I don't really know what I'm going to do with respect to voting for you or voting against you. I had one impression of you when we had our hour in private. And to a great extent, I think I came out of that meeting with a different sense of you.

And, of course, the impression that I have today is of this very cautious, very precise man, young, obviously with staying power. I mean, you've gone through this in a remarkable way. I'm convinced you will be there, God willing, for 40 years.

And that even concerns me more because it means that my vote means more. And I come from a different side than the Republicans do with different concerns, I think; different life experiences.

Last night, we gave you the Plyler memo, Senator Durbin asked a number of questions, I asked a few. And you read that memo, I hope, last night.

ROBERTS: I did, Senator, yes.

FEINSTEIN: Do you believe you were wrong?

ROBERTS: Senator, on the underlying question...

FEINSTEIN: Could you say you were wrong if you believed you were wrong?

ROBERTS: Well, I can say that -- the reason I'm hesitating -- and this is what was brought out in the Congressional Research Service memo that you attached to it -- these issues come up all the time in related questions.

I have no quarrel with the court's decision. As you know, it was a 5-4 decision on the legal question, not the question. I certainly believe every child should be educated.

FEINSTEIN: Regardless of immigration status?

ROBERTS: My own view is that if you have a child, he or she should be educated. We'll worry about status later.

FEINSTEIN: Just say yes, regardless of immigration status.

ROBERTS: As a personal view, yes. It's a separate issue as a legal question, as you know.

And the court in Plyler split 5-4. Among the dissenters, the people who agreed with the position that the administration -- or the position discussed in the memorandum, were Justices White and Justice O'Connor.

And I would not take their subscribing to the position of the dissent in Plyler v. Doe as suggesting that they in any way have less than fully developed and sensitive concerns about children and education. Justices White and O'Connor don't and they're not subject to criticism on that score simply because their understanding of the law came out in the dissent in Plyler against Doe.

So I would just try to make sure that people appreciate that saying that this is what you think the determination was, because the issue there was the Texas legislature, the representative of the people of Texas had reacher a certain determination about funding and how they wanted to fund particular activities, and that was what the litigation was about.

It's not a question of whether you believe in educating children or not. I don't think Justice O'Connor didn't believe that children should be educated, but she was in the dissent in that case.

FEINSTEIN: I understand. Let me give you just two human dynamics.

One of the people in public life that I most respect is a mayor in my state of a small immigrant community called Orange Cove. His name is Victor Lopez. I have known him for about 10 years.

I've watched him -- and I'm a former mayor -- try to build a town from nothing. I was there -- there weren't sidewalks; there weren't schools. He has managed to do it. He has given his people a sense of pride -- they're all agricultural workers -- a sense of pride and dignity.

To me, that's the American dream. It's the federal job to keep illegal immigrants out, but once they're here, it's our job to see that they have certain basic rights, I think, among them education. Another interesting twist to this is in 1986, an amnesty was passed. Plyler was in '82. If the decision had gone the other way, you could have seen the enormous problem would have happened in '86 when all the children -- then legal, absolutely -- still would have been denied school.

So I think that's an interesting twist.

Now, Duke Law School Professor Catherine Fisk examined nine cases heard by you while you were on the Court of Appeals. Her review concluded that you ruled in favor of a corporation each time.

Consequently, she made this prediction, quote: You're going to be a fairly reliable vote against workers' rights across the board, end quote.

Would you respond to that, please?

ROBERTS: I think the conclusion is wrong. I would suggest that any examination of nine cases is too small of a statistical sample to draw any conclusions of that sort.

I know that i have ruled against corporations on a regular basis on the D.C. Circuit. I think I just saw a study, a more comprehensive one, that suggested I tended to rule against corporations more than the average judge.

I don't want to --- I just skimmed the article, but it's quite often the case, for example, part of a lot of the business on the D.C. Circuit involves regulatory issues. Agencies regulating corporations: Are you ruling in favor of the corporation or the agency? And I know I regularly rule in favor of the agency. Sometimes I rule against the agency.

I'd like to think it depends upon the particular law and the particular facts.

But I haven't seen that study. But again, nine cases -- I'm sure you could find nine cases going the other way as well.

FEINSTEIN: Thank you. I want to move on.

A number of people on our side are very concerned about executive power and what we perceive, either rightly or wrongly, to be a greatly expanded executive authority in recent years, causing enormous concern in a number of different ways.

Let me go back into your past. In trying to get Senate documents, one of the documents withheld was a draft memo titled Establishment of NHAQ, The Nicaraguan Humanitarian Assistance Office. This office was used by President Reagan to give aid to the Nicaraguan Contras following the passage of the Boland amendment. And that was a prohibition on providing funding to the Contras.

What involvement did you have with the Nicaraguan Humanitarian Assistance Office?

ROBERTS: I'm not familiar with the memorandum. If it was withheld, it was probably withheld from me as well, and I don't recall any involvement.

So I don't recall any -- I do know there was an issue -- an issue was raised. I have seen memoranda that I know have been released about private fund-raising activities. And I do know that I gave advice in order to make sure that they didn't engage in lobbying activities in order to be consistent with the Boland amendment. I've seen those, but beyond that, I'm not recalling anything.

FEINSTEIN: Do you believe that the administration's provision of funds to the Contras exceeded the executive's power in light of the Boland amendment's prohibition on funding the Contras?

ROBERTS: You know, it's not something -- I just, sort of, know what I've read in the papers about it. And, you know, it seemed to me that it did. But again, that's just based on -- it's not based on a study or a legal analysis. Just sort of -- I think a lot of it...

FEINSTEIN: Well, it's a pretty simple question.

I mean, when the Congress passes a law that says Don't fund and the executive finds a covert way to fund -- and, as you know, one of the great redeeming qualities of President Reagan was that he did an admission of wrongdoing, and I think the American people accepted that. He was able to admit a mistake, which I tend to think is hard to do in this arena. But in a way, it's a sign of a big person to be able to come forward and say, I was wrong.

So on its face, what you're saying, if I understand you, you do believe that the provision of funds exceeded the executive power in this instance.

ROBERTS: Well, again, I haven't done a legal study, but based on what I know, which is just what every citizen knows from reading this -- I think all of this took place after I was no longer in the government or at least, came to light after that -- it seemed to be inconsistent with the law.

FEINSTEIN: Let me ask you a general question, then.

If an executive exercises power in direct violation of an act of Congress, is such an act unconstitutional?

ROBERTS: Well, the answer depends, Senator. And this is where you get back to the Youngstown analysis, where Justice Jackson said there are three categories: You can act with Congress' support, be unclear what Congress' position is, and he recognized a third category where an executive may act in the face of a congressional prohibition.

And there are certain areas where the executive does have authority to the exclusion of Congress. Without stating a legal view, for example, one that law professors regularly talk about is the pardon power. In other words, that's given expressly to the president under the Constitution.

And if Congress were to pass a restriction on the pardon power, does the president nonetheless have the authority to act under the Constitution? That's a difficult question, but it may be that the president's authority would trump Congress' authority.

So I can't answer a question in the abstract without knowing exactly what the record is and what the situation is. What Justice Jackson said in Youngstown, though, is obviously true, that if the president is acting in the face of congressional opposition, his power is at its lowest ebb. As Jackson put it, It includes his powers, less whatever powers Congress has.

So if it's in an area in which Congress has legitimate authority to act, that would restrict the executive's authority.

FEINSTEIN: Which this case was. All right.

Senator Kennedy engaged you in, I think, a substantive discussion on the civil rights issue. And you did let a little bit of the man come through. And I commend you for that. Thank you very much.

Let me talk about Gonzaga for a minute. Because if I understand it, you argued that the spending clauses are not the supreme law of the land but should be viewed as contracts between the federal government and the states, right?

ROBERTS: No. It was not a dispute about it being the supreme law of the land. There's no dispute about that, that when Congress passes legislation under the supremacy clause, it's the supreme law of the land.

The question is what remedies are available.

It's a very simple problem. You folks give money to the states and you say, You can spend this money on educational programs. But if you accept our money, you have to do this, this and this.


ROBERTS: And the question is: Well, what happens if somebody comes into court and says, They accepted the money; Congress said, 'If you take our money, you have to do this'; They didn't do it, they violated my rights under this provision, what happens then?

Now, in many cases, Congress will say, f these rights are violated, you can sue in court. And you can make that state institution -- in this case not a state institution, but a private university; that same thing; they've accepted the funds -- you can make them pay damages.

But in other cases the argument is, Well, the condition was imposed by the federal government and the federal government should enforce any violations. And you don't necessarily have the right to sue for damages. That's the question. It's an issue that would never come up if Congress would say in its law, If you violate this provision, you can sue in federal court, or, you can't sue in federal court, or, as in this case, We're going to set up an office in the Department of Education that is going to police compliance. And if you violate this provision, that office is going to come down on the university and make them comply, make them do whatever they need to do to get back into compliance.

There's no dispute that the university in this case is bound by the condition. The question is does an individual who's harmed by their violation get to sue about it?

And that sometimes it comes out that they can, as in the Wilder case. Sometimes it comes out that they can't; the determination is that Congress did not intend there to be a private lawsuit to enforce that. And that was the conclusion in the Gonzaga case.

FEINSTEIN: Well, let me ask you: Do you believe that state obligations created by Congress through the spending clause are enforceable by citizens in the courts?

ROBERTS: Well, the answer there is it depends on that law.

In Gonzaga, what the court determined was that provision at issue there was not enforceable by private citizens in the courts. It was enforceable by the federal government. The federal government can cut off the funds. More likely the federal government can enforce the division through proceedings against the university.

In the Wilder case, a different statute, the court determined the condition in that case, the Medicaid funding case, was enforceable; a private citizen could go into court. Because the view of Congress' intent in that case came out differently than it did in the Gonzaga case.

FEINSTEIN: Thank you.

Let me just finish this quickly. I'm not a lawyer and I don't really know how to ask this question but let me try.

When is it a contract and when is the law? Because if it's a contract, that affects a whole host of laws that we pass that are very important -- Medicaid, Title IX, No Child Left Behind, even the Internet Protection Act: all of these things. So when does a contract attach?

ROBERTS: It's always a contract. And sometimes if the intent of Congress is that private parties be allowed to sue, it's more than a contract. But it's always at least a contract.

FEINSTEIN: So the intent has to be a specific intent?

ROBERTS: No, the courts don't require that. They don't require that you specifically say, You have the right to sue. But the court has to look at it and try to figure out did you intend -- when you put this provision in, did you intend private parties to be able to sue for damages or did you expect the Department of Education to enforce that and have the authority to cut off the funds or to impose other conditions because the university is violating it.

And as I said, some cases come out one way and some cases come out the other way. But in each of those cases, what the court is trying to do is figure out what you, the Congress, meant in that statute.

FEINSTEIN: I think my time is up.

Thank you very much.

Thank you.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Feinstein.

Senator Feingold, recognized for 20 minutes.

FEINGOLD: Thank you, again, Mr. Chairman, for your willingness to allow us this additional round.

And I thank you, Judge Roberts, for all your patience throughout this whole process.

ROBERTS: Thank you, Senator.

FEINGOLD: A topic we touched on in our meeting in my office July was the issue of judges going to judicial education conferences, sometimes fancy resorts, which are put on by ideologically oriented groups and paid for by private corporations sometimes that even have cases pending before the judges in attendance. And when we spoke, of course, you had be nominated for the associate justice position and our conversation concerned your personal interest in attending such events. As I remember, your answer was that you said you'd rather spend your free time with your family, which I thought was a pretty good answer.

But now you've been nominated for chief justice, and one of your duties is to head a judicial conference which, among other things, sets the ethics policies for the federal judiciary.

And this is one area where I think Chief Justice Rehnquist might have taken a different course. He took a number of steps to essentially leave this ethical question up to the personal decision of individual judges and appointed a judge to head the Committee on Codes of Conduct who had been prominently featured in a 20/20 expose of these junkets. Not surprisingly, the committee weakened the judicial ethics rules on this question of privately financed trips.

Chief Justice Rehnquist strongly opposed congressional efforts to put a halt to these judicial junkets that I believe sometimes reflect poorly on the independence and impartiality of the judiciary.

So I'd like to know, Judge Roberts, if confirmed, whether you will use your power as chief justice to set a high ethical tone for the federal judiciary by putting in place new codes of conduct that would prohibit judges from participating in privately funded, quote, judicial education, unquote, that lets special interests essentially lobby federal judges.

ROBERTS: Well, I don't think special interests should be allowed to lobby federal judges. Stated that way, I think the answer is clear.

I don't know enough about how these things operate. As I said, I've not been on one of them. I don't know how the funding is set up. I don't know what the situation is.

If confirmed, I'm certainly happy to examine it.

I know that there is a conflict of interest or ethical standard review group, I think, within the judicial conference. I believe they addressed that question and issued an opinion on it recently. But, again, I'm just, sort of, recollecting something I read.

I would say more generally, though, and this doesn't -- maybe it's off topic, in which case feel free to cut me off -- but I do think it's important for judges and justices to get out, particularly get out of Washington a little bit.

I've always enjoyed going to the law schools, participating in the moot courts or, you know, functions where you get to visit with the law students. I've done that a few times -- not a lot, a few times. I wouldn't call that by any stretch of the imagination a junket.

But I do think it's important for the justices to get out around the country and particularly visit the law schools. That's probably not the same sort of thing you're talking about.

FEINGOLD: Fair enough. And I think you would agree that there's nothing wrong with judges or senators golfing. That's not the question.

ROBERTS: May not be good for the game of golf, but...


FEINGOLD: In 2000, Chief Justice Rehnquist wrote a letter supporting repeal of a provision of the Ethics Reform Act of 1989 that bans honoraria for judges. Do you believe that the law should be changed to permit judges to take honoraria for speeches or appearances?

ROBERTS: There again, Senator, that's not an issue I've looked at.

I know the law prohibits that. I know that there was a case about that and the Supreme Court decided that to some extent that prohibition was unconstitutional as applied to lower-level officials but constitutional as applied to others. It's not a question that I've addressed.

FEINGOLD: Just to return, for the record, for a moment: the item that the judge referred to in terms of judicial conference policy is actually the policy that I was concerned about that I thought was a step backward, and I just wanted that reflected in the record.

I'm also, Mr. Chairman, wanting to put an item in the record. I'm not going to ask more questions about Judge Roberts's memo recommending against the president stating the HIV could not be transmitted through casual contact.

But I do want to make sure the record is complete. I would like to submit for the record Judge Roberts's memo on that issue from September 1985, Centers for Disease Control documents from 1982 and 1985, and a number of news stories from August and September 1985 reporting the CDC's conclusion that HIV could not be spread through casual contact.

I would not that there are several articles in this collection from The Washington Post on September 4, 1985, the date of the article that Senator Coburn submitted yesterday, that I think makes this clear as well.

Mr. Chairman, if those items could be entered in the record. Mr. Chairman?

SPECTER: Yes, without objection, so ordered.

FEINGOLD: Turning again to the death penalty, when you worked in the Reagan administration, you expressed strong opposition to federal courts reviewing criminal convictions and state courts via writs of habeas corpus.

As you know, prisoners who believe they were wrongly or unfairly convicted in state courts may seek to have the federal courts hear their claims via a writ of habeas corpus. Habeas corpus is a fundamental part of our legal system that has long protected individual freedom.

In a 1981 memo, you argued that the availability of federal habeas relief to state prisoners, quote, goes far to making a mockery of the entire criminal justice system.

In that same memo, you said, quote, The question would seem to be not what tinkering is necessary in the system, but rather, why have federal habeas corpus at all, unquote.

Then, in 1983, as Senator Leahy brought up yesterday, you suggested that if the Supreme Court wanted to reduce its case load, it should quote, advocate the role of fourth or fifth guesser in death penalty cases, unquote. Not on First Amendment cases or antitrust cases but death penalty cases.

I know that you've said that your memos in the Reagan administration reflected the views of the administration and not your own, but in this area, at least, your memos clearly indicate, I think, that these were your views.

With the 1981 memo, for example, there's a cover note in your handwriting directing that the memo be sent to John Rose (ph), an assistant attorney general at the time, with a cover note that reads, quote, The attached memorandum contains some thoughts on habeas corpus reform, for whatever you think they're worth. Judge Friendly and Justice Rehnquist would never have forgiven me if I'd remained mute, unquote.

That sounds a lot like a memo advocating your views not those of the department.

With regard to the memo from 1983 that I mentioned, you were analyzing the chief justice's proposal to create another intermediate appellate court to take the pressure off the Supreme Court's docket. And you said, and I quote, My own view is that it is a terrible idea. And you went on to say that the fault lies with the justices themselves who take too many cases, including death penalty cases.

And you sent a personal letter to Judge Friendly in 1981 that said, quote, This is an exciting time to be at the Justice Department, when so much that has been taken for granted for so long is being seriously reconsidered. To cite just one example, serious thought is being given to reform of habeas corpus. I do not know what will eventuate, as you noted. What has come to pass as the great writ is regarded by many lawmakers with no idea of the problems as unalterable perfection, unquote.

Now, that discussion in a personal letter sounds like your own opinion as well.

A decade later, when you were at the solicitor general's office during the first Bush administration, you signed several briefs that sought to strictly limit federal habeas review. And in 1992, while in private practice, you testified before the House Republican Task Force on Crime in favor of further habeas restrictions.

The comments in your memos from the 1980s, I'm sorry to say, don't even show the slightest concern about innocent lives possibly being lost if federal habeas were eliminated.

Does the possible hostility toward the habeas process that was expressed in those memos, particularly in death penalty cases, reflect your current view on federal habeas or have your views changed or evolved?

ROBERTS: Well, as you know, the law has changed and evolved dramatically since the early '80s. And, at least with respect to my personal letter to Judge Friendly -- I guess I thought it was a personal letter...


... the situation has changed dramatically, as you know.

What I was referring to in the early '80s was a situation where there were no limits on repetitive habeas corpus petitions; four, five, six, dozens of different petitions could be filed repetitively.

Congress saw that as a problem. Congress acted to address the very concerns that I was raising there and passed legislation.

The Supreme Court saw it as a problem. The Supreme Court acted in a number of cases, the Keeg case and others, in limiting the availability of successive and repetitive habeas petitions.

Actually, what happened is the Supreme Court, I think, started down that path and Congress made the decision that this is something they should look at in a more comprehensive way. So Congress passed laws that restrict when people can file repetitive and successive petitions.

Those are the very concerns that I was talking about. They were concerns that had motivated the first person I worked for as a lawyer, Judge Henry Friendly, to write on the subject. He wrote a famous article on habeas reform entitled Is Innocence Irrelevant?, because he thought these successive petitions had made sort of a game out of the whole process in which the question of innocence was totally lost in these successive petitions.

And the references to the great writ -- yes, of course the writ of habeas corpus has an established heritage as a basis for complaining about illegal confinement, but all the stuff we're talking about there, the fourth and fifth successive petitions, raising new issues that should have been raised in the first petition -- and as you know, that's what Congress' legislation focused on.

FEINGOLD: But, Judge, did you not at the time, as I read in your statement, advocate the abolition of federal habeas review?

ROBERTS: No. The purpose of what I was saying was to certainly reform and abolish the system as it existed then, where people could file repetitive and successive petitions. And I'll tell you why.

The main problem, and I think it's a particular concern in death cases, is that nobody along the way feels that they're making a responsible decision. If people get in a situation where they know, OK, if you're on a jury and you sentence someone to death, if you, think, 'Well, he's going to file habeas petitions in state court and they're going to look at it then'; and the person who considers the state habeas petition says, 'I know there are going to be successive federal habeas petitions, they look at the issue then'; everybody is pointing fingers in opposite directions.

When Congress reformed this system, I think it helped to make clear that the decisions that are going to be made on the first habeas petition is going to be critical, and so, hopefully, it's looked at a lot more carefully than in the prior system when you knew that wasn't the end of the process, it wasn't even the beginning of the end; the conviction was just the end of the beginning.

FEINGOLD: Would you agree that had the view that you advocate in your memos prevailed in the early 1980s, the abolition of the writ, and federal habeas review of state court convictions was removed entirely, had that happened, innocent people would have been executed and serious constitutional errors would have gone unaddressed?

ROBERTS: Well, that wasn't my position.

FEINGOLD: But I'm asking...

ROBERTS: No, my...

FEINGOLD: ... had that view prevailed, not necessarily your personal view, but the abolition of the writ, isn't it the case that innocent people would have been...

ROBERTS: I'm not in favor now and was not in favor then of not allowing any federal habeas review.

FEINGOLD: I'm asking you whether you wouldn't agree that, as a matter of fact, had the writ been eliminated, that some innocent people would have been executed.

ROBERTS: Well, they certainly wouldn't have been able to assert their claim of innocence in federal habeas. And people do succeed at that stage. I certainly think it serves a valuable purpose.

But that, again was not -- you know the situation with respect to habeas 23 years ago was quite different than it is today. And the reason it's changed, I think, is because Congress responded to those sorts of concerns.

FEINGOLD: I take those comments as very important. And I know you can't comment on this, but there are further efforts now to further limit this right that could come before you.

And I know you can't comment on it. But I think it's of great significance that you have acknowledged that some of those changes that were made in the '90s have significantly affected your view about the propriety of the habeas process.

On a different subject, after the passing of Chief Justice Rehnquist, a number of news articles discussed his legacy and noted that early in his tenure as justice, he had been a dissenting voice, but the court seemed to shift in his direction over time.

And recently, Professor Cass Sunstein recalled that over lunch with a group of Supreme Court clerks, when he was an associate justice, Chief Justice Rehnquist described his own role on the court. He said the court was like a boat, that it tilted way over to one side and his task was to put it upright again.

Do you believe that the chief justice has the duty to influence the overall philosophical direction of the court through his personal leadership or through opinion-writing assignments or any other means? And do you think it is appropriate for the chief to do that?

ROBERTS: I don't think using opinion-writing assignments as a way to try to promote a particular view or agenda is a good idea. And I don't think Chief Justice Rehnquist did that.

I do think, if you go back and look at every year that he was the chief justice and just pick out what you think are the 10 or 12 biggest cases of that year, I think you will find that those cases are distributed very evenly among the nine justices. And one reason I think relations among the justices were so collegial under Chief Justice Rehnquist's leadership, at a time when, of course, the court had very marked philosophical differences and sharp dissents in some areas, but everybody got along well, is was because the chief made a priority of being fair in his opinion assignments. I think that's the more important priority.

FEINGOLD: Can you imagine ever changing you vote in order to be able to assign the majority opinion to yourself or to another justice. And do you think such practice is appropriate?

ROBERTS: No, I don't, in answer to both questions.

FEINGOLD: So you would not do that.

ROBERTS: I wouldn't do that.

I think that does -- again, sort of, trying to use that assignment power in a tactical way -- it causes tension on the court and I think undermines the ability of the chief justice to the extent he has the ability, and it's obviously limited, to act as a force to help bring about some cohesiveness and collegiality.

FEINGOLD: Thank you for that answer.

On a different subject, some people blame plaintiff's lawyers for various problems with the economy and the legal profession. Do you believe that lawyers that represent injured persons in product liability and medical malpractice cases are harming America?


FEINGOLD: Having worked on the defense side for most of your nongovernment career, can you be fair in your rulings to plaintiffs seeking redress for injury?

ROBERTS: I'm going to disagree with your premise. I've represented plaintiffs' interests. I think if you look, for example, at the antitrust cases I've argued: more of them have been on the plaintiff's side than on the defendant's side.

One of my co-clerks when I clerked for Justice Rehnquist is a very prominent personal injury lawyer and I think he does a wonderful job. I know there are abuses in this area. There are abuses in the area of defense representation as well. I certainly don't have any biases one way or another.

FEINGOLD: Thank you, Judge.

Judge, you argued an important case before the Supreme Court concerning who's protected under the Americans with Disabilities Act. It was called Toyota v. Williams.

Ms. Williams suffered from hand, wrist and arm pain while working in an engine assembly line. She was diagnosed with carpal tunnel syndrome and her physician placed her on a permanent work restriction. Her pain continued and she did not think that her employer was addressing her physician-ordered work restrictions appropriately so she sued under the ADA.

You represented Toyota in the case before the Supreme Court. And this was a case of statutory interpretation, so I assume you're quite familiar with the legislative history of that act.

Do you agree with the statement of one of the justice's during oral argument that the act was primarily intended to protect people who are, quote, wheelchair-bound, unquote?

ROBERTS: The act contains a definition of disability, and that's what the issue was about. And that definition does not contain that type of restriction.

So I don't want to comment on issues that might come before me but the case was about the definition. The definition was not restricted in that way.

The only point I would make, and I'm sure you appreciate this, is that a lot of times the statements during oral argument are certainly not expressions of either the justices' view. They're often playing a Devil's advocate.

And I don't even remember that question. I don't know if it was directed at me or the other counsel, but it may well have been intended to elicit a response to flesh out more fully what the definition was.

FEINGOLD: More generally, do you believe that the ADA or any other civil rights statute should be interpreted narrowly or broadly when it comes to the issue of who it protects? ROBERTS: Well, I have to say I think it should be interpreted consistent with Congress' intent. And you look at a lot of different factors in trying to flesh that out.

If you folks here in Congress had a particular, in any statute, a narrow focus, then to give that focus a broader impact I think would be wrong.

If you had a broad focus, as, of course, you often do when you're dealing with statutes designed to address discrimination, giving that interpretation a narrow focus would be wrong. The effort in every case is to try to give it the right focus and that's the focus that you intended when you passed the law.

FEINGOLD: Thank you, Judge.

And I appreciate all your answers.

Mr. Chairman, I yield back the remainder of my time.

ROBERTS: Thank you, Senator.

SPECTER: Thank you very much, Senator Feingold.

Senator Sessions has asked for recognition briefly...

SESSIONS: Just a minute or two.

SPECTER: ... to clarify one point which he thinks requires that clarification.

SESSIONS: Thank you.

Judge Roberts, I commend you on your good humor, and even when they read a memo that suggested you said the EEOC was unAmerican when actually all you were doing was quoting a complaint and that you defended the EEOC and its rights and independence aggressively in that memo.

But I wanted to ask you about this Texas case. As I understand it, Texas decided that they would not fund education for illegal aliens that are here in the country. And that was challenged as being unconstitutional and went to the Supreme Court.

I know you have said that you, as a parent and as a person who believes in education, you absolutely believe in education for all children in some way, form or fashion. But you don't mean to suggest or prejudge, do you, the constitutionality of the right of the state of Texas to make that decision? That would be a matter of, I think, some importance perhaps again in the years to come.

ROBERTS: Well, no, Senator. And I did try to be very careful when separating the personal views with respect to the importance of education from the legal question there.

And the legal question, of course, was a close one. It divided the court 5-4. And, as I noted, among the dissenters were Justices White and O'Connor. And I don't think their legal position reflected any less than wholehearted view concerning the importance of education.

SESSIONS: Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Sessions.

Senator Schumer is recognized for 15 minutes.

SCHUMER: Thank you, Mr. Chairman.

First, just a little housekeeping.

I think tomorrow is the day that it's due for us to submit written questions. And you'll have no problem getting those back to us before we have to vote, which I think by the agreement of the chairman and the ranking member will be next Thursday. Will you?

ROBERTS: Well, it depends how many there are.


My answers will be fuller the fewer questions there are.


But I will certainly, obviously, make every effort to get them in as soon as possible.

SCHUMER: Thank you.

Next question: We've had a great debate here, in this Senate and with the administration, about the documents. There were 16 cases, I think, led by Senator Leahy, that the eight of us requested, when you were principal deputy solicitor general.

Now, we know the administration has said they will not relinquish those documents. I just want to know -- and I'm not asking your view on the law -- do you have a personal objection if they were to give us those documents? Because you wrote them.

ROBERTS: Senator, I don't think it's appropriate for me to take a position. If the client is asserting a privilege, I don't think the attorney should be stating a position on it, because in these situations the privilege is that of the client, and for the attorney to take a position could -- might -- put pressure on the client, and I think that's inappropriate.

SCHUMER: I may not get this. Aren't they the attorney and you the client this time?

ROBERTS: Well, when the memos were prepared, I was the attorney.

SCHUMER: So you won't take a position on that?

ROBERTS: I don't think it's appropriate for a lawyer to do so.


Now, yesterday, as I told you, I was, sort of, confounded by the refusal to answer certain questions.

I don't think any of us expected you to answer every question or give us the answer the way we wanted. But we did hope that you would answer enough questions with enough specificity so that we and the American people would get a clear picture of the kind of chief justice you will be, not just rely on your assurances.

So I want to try this another way because I really want to find out.

You're one of the best litigators in America. You know how to convince people. That's what you've been paid to do for a long time.

So let me ask you, if you were sitting here, what question would you ask John Roberts so that you or us could be sure that we weren't nominating what I call an ideologue, someone who you might define as somebody who wants to make law not interpret law?

And then how would you answer the question you asked yourself?


ROBERTS: I'd begin by saying, That's a good question, sir.


I think, with respect, I would ask a lot of the questions that have been asked, a lot of the questions that were asked in the questionnaire that I completed earlier.

And it begins with the most important question: What is your view of the proper role of the judge in our system? And people have different answers to that question. I've given an answer to that question.

How do you approach particular cases in areas of particular interest? And I've been asked that question and I've given an answer. I've explained, for example, in the area of executive power, as issues arise, what would the framework that I would use be.

And I've talked about the Youngstown opinion and Justice Jackson's framework there.

I've talked about how I would approach cases involving the right to privacy under the liberty clause.

I've talked about how I would approach cases involving government enforcement in the...

SCHUMER: How about something that you haven't talked -- a question that hasn't been asked, since some of us are still unsure?

ROBERTS: But in other areas people talk about personal views on issues. And there, again, I think it's important. There may be some nominees who want to share personal views on issues.

My reaction has been to emphasize -- and I think this tells you about what kind of a judge I hope I am on the Court of Appeals and what kind of a justice I would be if confirmed -- and my reaction has been that I set those personal views aside, and so don't consider them pertinent.

Other nominees might take a different approach in response to those types of questions.

People have asked about particular decisions, and I've talked about decisions in which I've been involved. We've talked, with Senator Grassley, about the Totten case, in which I was involved; others about the Barbour case, involving Congress' power under the spending clause.

People have asked very probing questions about my legal positions: What was the position you were advocating in this case? And why?

I think it's fair to talk about the record...

SCHUMER: Any question that you would ask that's been left out?

ROBERTS: There have been a lot of questions asked and a lot answered. I can't think of any that, you know, I expected people to ask me about this and it hasn't been asked.

SCHUMER: So I guess we did a better job than we think we did, right?

ROBERTS: I think the committee has been very effective over the last several days in learning a lot about me. I think in the process of meeting with the senators before -- and I was quite serious when I said I appreciated how accommodating everyone had been in sitting down with me -- I think people learned a lot about me.

I think you can learn a lot about me from looking at the 50 opinions I've written. You can learn about...

SCHUMER: Let me, if I might -- I want to go back to the commerce clause which bothers me, as you know.

Again, apart from anybody's view, do you agree that the Congress has the power under the commerce clause to regulate activities that are purely local so long as Congress finds that the activities exert a substantial economic effect on interstate commerce?

ROBERTS: If the question -- and this is where the issue comes up -- is whether or not the court has addressed it, the activities are commercial. If the activities are commercial in nature, you get to aggregate them under Wickard against Filburn that we've talked about; you don't have to look at just that particular activity, you'd look at the activity in general.

Where the dispute and issue has come in is whether the activities are commercial. That's where the disagreement -- or the point I was trying to make in the infamous or famous toad case. If you should look at this as commercial activity, then you can...

SCHUMER: Do you believe Congress deserves a great deal-- this is in reference to some of the things Senator Specter talked about -- that Congress deserves a great deal of deference when it decides something is commercial and has finding to that effect?

ROBERTS: I do, Senator. And I think that is the basic theme that runs through the court's commerce clause jurisprudence.

There is, again, of course, the Lopez and Morrison decisions. But there's also the Raich decision. And again, I think it's very important -- and what the Raich decision said you've got to consider Lopez and Morrison in the context of this broad sweep, not just as sort of the only decisions.

SCHUMER: OK. Let me ask you, then, this hypothetical: And that is that it came to our attention, Congress', through a relatively and inexpensive, simple process, individuals were now able to clone certain species of animals, maybe an arroyo toad. Didn't pass over state lines; you could somehow do it without doing any of that.

Under the commerce clause, can Congress pass a law banning even noncommercial cloning?

ROBERTS: I appreciate it's a hypothetical, and you will as well, so I don't mean to be giving bindings opinions.

But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce.

Obviously if you were successful in cloning an animal, that's not going to be simply a local phenomenon. That's going to be something people are going to...

SCHUMER: We can leave it at that. That's a good answer, as far as I am concerned.

OK. What I'd like to do is say a few concluding words here with a final request. First, I want to thank you for holding up so well during the three days of grueling questions. Many of us on this committee, probably every one of us, some more than others, has been wrestling with how to vote on your nomination since well before the hearings started. And, of course, now that process has accelerated.

I, for one, have waken up in the middle of the night thinking about it, being unsure how to vote.

Now, I think my colleague from Delaware was on to something when he called this a roll of the dice.

But this is a vote on the chief justice of the Supreme Court. You will in all likelihood affect everyone of our lives in many ways for a whole generation. So this isn't just rolling the dice, it's betting the whole house.

And I thought I'd share with you the thoughts of some of us with important questions. There are pros and cons.

On the pro side, first of all, is your brilliance. You have an amazing knowledge of the law. You spent three days here talking of so many aspects of it without any paper in front of you, without a single aide coming over and whispering in your ear or passing you a note.

Your knowledge of law and the way you present it is a tour de force. You may very well possess the most powerful intellect of any person to come before the Senate for this position.

Second on the pro side is that you seem to be a lawyer above all. You've devoted your entire life to the law and it's clear that you love it.

Most people in that position tend not to be ideologues. They'll follow the law wherever it takes them regardless of the consequences, and you have repeatedly professed that to be true for you.

But given that you spent most of your legal life representing others and your limited tenure on the court of appeals didn't allow you to rule on very many non-technical cases, there's not a long enough track record to prove that point.

The third, and perhaps the most important, at least to me, is your judicial philosophy and modesty and stability. Such a theory respects precedent, the Congress and other judges' opinions. Modest jurists tend not to be ideologues. And many of us on this side of the aisle would like the court to maintain -- and in cases related to the commerce clause like Morrison increase -- its modesty.

But in complicated decisions like this one, there's always a counterpoint, even on the modesty question.

Yesterday, you said that the decision of Brown v. Board could be described as modest. Brown v. Board was breathtaking. It was wonderful. It reversed 80 years of accepted but bad law, yes. But modest?

So I ask myself, could overturning Wickard or Roe also be modest by your definition?

Nonetheless, I think the philosophy of modestly is an appealing, important and unifying philosophy to many of us.

Let me go to the con side here.

First, is the question of compassion and humanity. I said on the first days of these hearings it's important to determine not just the quality of your mind but the fullness of your heart, which to I think a good number of us at least on side of the aisle really mean the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.

It didn't seem much, for instance, to concede that the wording illegal amigos was unfortunate, yet you refused to say so.

America has moved in the 21st century what Senator Kennedy called the cramped view of civil rights professed in the early Reagan administration. But you wouldn't admit now in 2005 that any of those views you argued for in the early '80s were misguided with the hindsight of history. That's troubling.

Second is the refusal of the administration to let us see any documents you wrote when you served as deputy solicitor general, when you were not simply following policy, which you've reminded us in your earlier days there and in the counsel's office, but making it.

This would have given us tremendous insight into who you are, into knowing who you are and what kind of justice you'd make.

But, for what seems to be self-serving reasons, they were refused.

Now this was not your decision. But you carry its burden and I think we all have to consider it when weighing how to vote.

Third, and most important, on the con side, is your refusal to answer so many of our questions.

I know you feel you were more forthcoming than most any other nominee to the high court. I must disagree. You certainly were more forthcoming than a few. Now, for instance, I don't know Justice Scalia's opinion on Doctor Zhivago, but most answered more relevant questions than you did.

Your refusal to comment on any issue that you thought may come before the court -- we learned a lot about your views on older, completely discredited cases, like Lochner and Plessy and Korematsu. But they're not of much help to us.

What we need to know are the kinds of things that are coming before the court now. And it makes it hard to figure out what kind of justice you will be, particularly in light of the fact we have little else to go on.

You did speak at length on many issues and sounded like you were conveying your views to us but when one went back and read the transcript each evening, there was less than met the ear that afternoon.

Perhaps that's the job of a good litigator, but in too many instances it didn't serve the purpose of the hearing.

Having said that about documents and questions, obtaining documents and answering questions are a means to an end, not an end in itself. In some cases, like Miguel Estrada's nomination, we had no knowledge of his views so we couldn't vote. But here there's clearly some evidence.

So now we must take the evidence we have and try to answer the fundamental question: What kind of justice will John Roberts be?

Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly?

Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society, like Justice Rehnquist? Or will you use your enormous talents to use the court to turn back a near-century of progress and create the majority that justices Scalia and Thomas could not achieve?

That's the question that we on the committee will have to grapple with this week. And over the next week, if you have any more information that could help us answer this question, I think every one of us would welcome it.

Thank you, Judge.

FEINSTEIN: Mr. Chairman...

SPECTER: Thank you, Senator Schumer.

FEINSTEIN: Mr. Chairman...

SPECTER: Wait just a minute. I'll recognize you in a moment.

Judge Roberts, Senator Schumer has postulated quite a number of questions in his last soliloquy.


But they are summarized in what kind of a justice you'd be. And I think you're entitled to respond to that if you care to do so.

FEINSTEIN: That was my -- that was going to be my request. I think it's very important, getting the response.

SPECTER: Well, in that case, go ahead and make your request.


FEINSTEIN: Yes. I think...

SPECTER: Better the request comes from you than from me, Senator Feinstein.


FEINSTEIN: I think that Senator Schumer really summed up the dilemmas. And not only he has them on our side.

I would very much like if you would respond, particularly to the con side. The pro side speaks for itself. And many of us are struggling with exactly that: What kind of a justice would you be, John Roberts?

SPECTER: No time limit, Judge.

ROBERTS: Well, I appreciate the comments very much, Senator Schumer. And I very much appreciate the pro side of the ledger. On the con side, the issue of documents, it's hard for me to comprehend that there could be more documents. The number has been ranging from 80,000 to 100,000. And there is a lot of paper out there.

I have tried to be as fully responsive as I thought consistent with my obligations as a sitting judge and a nominee.

And I appreciate that this is not a new issue. You've gone back and read the transcripts and, of course, participated. I've gone back and read the transcripts.

It comes up at every nomination. In some instances members of the committee want more information that the nominee feels that he or she can give in good conscience. That's nothing new.

I've tried to be as fully expansive as I can be and drawn the line where as a practical matter I think it's necessary and appropriate.

The basic question, Senator Feinstein, Senator Schumer, what kind of a justice would I be? That is the judgment you have to make.

I would begin, I think, if I were in your shoes, with what kind of a judge I've been. I appreciate that it's only been a little more than two years, but you do have 50 opinions. You can look at those.

And, Senator Schumer, I don't think you can read those opinions and say that these are the opinions of an ideologue.

You may think they're not enough. You may think you need more of a sample. That's your judgment. But I think if you've looked at what I've done since I took the judicial oath, that should convince you that I'm not an ideologue.

And you and I agree that that's not the sort of person we want on the Supreme Court.

Beyond that, I have the few days that I've been here, all the documents, the questionnaire. You have not just my opinions, but my briefs. I think those also help show what kind of a judge I would be.

You, of course, appreciate that that's presenting a position and I'm just an advocate, but advocates deal with the law in different ways. You can look at other people's briefs, I think, and conclude that that person may not be a good judge because of the way they argue the law. I would hope you'd look at my briefs and my arguments before the Supreme Court and conclude that that's a person who respects the law, respects the court before whom he is arguing, and will approach the law in a similar way as a judge.

SPECTER: Thank you, Judge Roberts.

CORNYN: Mr. Chairman?

SPECTER: Senator Cornyn?

CORNYN: If I might have three minutes, I just want to ask the witness to explain the rationale, as he understands it, for the privilege...

SPECTER: Senator Cornyn, you're recognized for three minutes.

CORNYN: Thank you.

Mr. Chairman, it strikes me as odd, having been on the committee last year when we had an unfortunate theft of internal documents that were written by staffers of individual senators, which were then published to the outside world -- there was bipartisan outrage over that. And we, as I recall, referred that matter for investigation and possible prosecution.

But surely if the legislative branch is entitled to confidential communications between our lawyers and us so we can do our jobs and get candid advice, the executive or the president is entitled to the same sort of confidential and candid communications.

And, Judge, this is the question. I don't want anybody to be under the misapprehension that, number one, it's within your power to produce additional documents. It's hard to imagine there are, in addition to the 100,000 that have already been produced.

But I want to give you a chance to articulate the reasons why the law recognizes this importance of a confidential, candid communication between a client and the lawyer that cannot be readily overrun or trumped.

And would you give that a shot, please?

ROBERTS: Well, I mean, certainly the basic attorney-client privilege goes back centuries. And there have been eloquent expressions of its value in the Supreme Court; I think of the Upjohn opinion from 1982 in the Supreme Court and other classic expressions.

And the idea is if we want people to benefit from the advice that lawyers can give, we have to ensure that they feel perfectly free to communicate and exchange their views with their lawyer without fear that that would be reviewed and used to their prejudice.

Carried forward to the point that we're talking about now, you have to have a candid exchange among lawyers in presenting cases to the court in order to effectively represent your client, whether your client is the government of the United States or a private company. And that type of a debate, which often involves pointing out inconsistencies in the decision, even flaws in your own legal position. So this is the argument. But this part of the argument is really quite weak and we have to be worried about that.

Those sorts of things, you do need to thrash out and discuss and elaborate on. And yet, if that was then revealed to your adversary or to the court, it would obviously prejudice the presentation.

And if those things were going to be regularly revealed, people wouldn't make those types of analysis and judgments. They wouldn't say, This is a weak argument. What are we going to do about that? Should we really make that argument?

They would not commit those to writing and the adequacy of the legal counsel and advice would suffer. And the role of the advocate before the court in vindicating the rule of law on which the courts rely would also suffer.

CORNYN: Mr. Chairman, it may already be part of the record but if it's not, I would ask unanimous consent at this point in the record that we would make the letter of former solicitor generals appointed both by Democrat presidents and Republican presidents who agreed that the solicitor general memos should remain protected by the privilege part of the record.

SPECTER: Without objection, so ordered.

Senator Durbin, you're recognized for 20 minutes.

DURBIN: Thank you very much, Mr. Chairman.

Judge Roberts, again, thank you. And it may be nearing the end of the process which I'm sure is a great relief to you and your wife and friends.

Let me first address Senator Cornyn's point. The memos that were stolen from offices of the senators on this committee, stolen by a Republican staffer who was discharged, that case was turned over to the Justice Department.

I sent a letter to the attorney general yesterday applauding the fact that the Justice Department had, in fact, successfully prosecuted, in Massachusetts, a person who had hacked in and stolen the telephone records of Paris Hilton. And I asked the attorney general to please ask our special counsel in this case to take a look at the precedent of the Paris Hilton case and see if he can perhaps protect our records as much as we want to protect that poor young lady's telephone records.


The second aspect I'd like to raise is this: Many of these documents we're talking about have been given before. Justice Rehnquist offered similar documents to the committee for consideration.

So it's not unprecedented for us to ask nor for the government to produce them on a voluntary basis, no theft involved.

If I could clear up a couple other things that have been raised, I read and reread the sentence which you and Senator Kennedy debated about the EEOC. And I want to read it again conceding the fact that the word unAmerican is in quotes and clearly refers to something else.

But the sentence in your memo reads in its entirety as follows: We should ignore that assertion in every event as well as the assertion that the EEOC is 'unAmerican' the truth of the matter notwithstanding.

Now, those are your words but for the quoted unAmerican.

What did you mean when you say the truth of the matter notwithstanding? It suggests that you agree with that conclusion?

ROBERTS: The first part of the sentence refers to that assertion. And that assertion was assertion that President Reagan had promised to abolish the EEOC. That was the issue that I said in the memorandum I had been unable to determine whether that was accurate or not. It was the truth of that matter, of that assertion, that I couldn't verify.

The reference to unAmerican was not my language, it was the language of the person who complained and said, You need to do something about the EEOC. And our response was, What we're going to do is make sure that the EEOC is not interfered with because of your complaints.

Now, he may have felt that he was being treated in an unAmerican way and wanted something done about it, but it was not my view, and again the language was in quotes to make it clear that it wasn't my view.

DURBIN: I don't question the fact the language was in quotes but I think there is at least some ambiguity in what was said. It might have been said more precisely if it didn't have -- if the conclusion that we're suggesting doesn't reflect your views.

If I could, I'd like to return to a discussion that we had yesterday about a very fundamental question. I asked you yesterday about a case that you handled as an attorney involving a large HMO, in which you advanced a very narrow reading of an Illinois state law.

Had your position prevailed, millions of American families stood the risk of losing coverage for their health insurance. You did not prevail, and as you mentioned, a closely divided court -- which again underlines the importance of each new justice as we consider them -- but your position did not prevail.

Let me read what you said to me in response. You said you'd told me you had no reservations about taking the case. And here's what you said, quote, 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, end of quote.

I want to follow up on this. You have taken some pride in the pro bono cases that you have taken, and I'm glad you have. I think that is part of being a professional, accepting pro bono cases. You were asked the other day about your participation in the 1996 case of Roemer v. Evans, a landmark case that struck down a Colorado law that would have taken away the rights of gay and lesbian Americans. You gave some legal advice to the lawyer in this case who was trying to uphold the rights of those with different sexual orientation.

So I'll ask you, if the other side had come to you first and said, Mr. Roberts, we would like you to defend this state amendment that took away the rights of gays and lesbians, would you have taken the case?

ROBERTS: It's a hypothetical question.

Of course, I think I probably would have, Senator. I actually have done pro bono assistance for states on a regular basis through the National Association of Attorneys General. And, if I'm remembering right, the state would have been the other party in that case -- I think that's right.

And, through the state and local legal center, I've participated in moot courts with the states on a regular basis.

And a big part of my practice was representing states. So, if a state -- in that case, Colorado -- had come to me and said, We have a case in the Supreme Court; would you defend it? I might -- again, I can't answer without knowing the full details and all that, and I'd have to look at the legal issues. And I would not, and never have, presented legal arguments that I thought were not reasonable arguments. It doesn't necessarily mean they're going to prevail, and I've certainly lost my share of cases.

But it is not been my general view that I sit in judgment on clients when they come to me. I viewed that as the job of the court when I was a lawyer. And just as someone once said, you know, it's the guilty people who really need a good lawyer.

I also view that I don't evaluate whether I as a judge would agree with the particular position when somebody comes to me for what I did, which was provide legal advice and assistance, particularly before the Supreme Court.

DURBIN: I have a long series of hypotheticals I won't get into, such as, all right: Would you have represented the D.C. government against the welfare families? You took pride -- you spoke to me of your pride in representing the poor people in the District of Columbia on their welfare rights.

I could ask you whether you would have taken the side of the board of education in the Brown case. Would you have taken the side of the state of Virginia in Loving? I could have gone through all those hypotheticals.

And the purpose of my original question was this: All of us are trying to get down to, what are your core values. Where would you draw a line, saying, I do have principles and values. There are certain things I would not use my legal skills to do because they conflict with those values ? If this is just a process, a legal contest and you'll play for any team that asks you to play, it raises a question about where would you draw the line, if you would ever draw the line.

And I think that is why I've asked this question and I want to give you an opportunity now to tell us.

Senator Feinstein asked a little earlier today about the Plyler case. You came a little bit further than you did last night in saying -- and I think is a very safe assertion -- children deserve an education. That is not exactly -- that isn't a headline.

But I think that what I'd like to get to is the original question here. As a lawyer, do you have standards and values as to the causes and beliefs that are so important to you where you would draw a line?

ROBERTS: Well, let me try to answer it this way, Senator.

People become lawyers for different reasons, all perfectly good and noble and legitimate.

People who are interested, for example, in protecting the environment often will go into the law and practice environmental law because they think that's an effective way to advance a cause in which they passionately believe.

People who are committed to the cause of civil rights may become lawyers and become civil rights lawyers and present and press those causes because they're causes in which they passionately believe.

I became a lawyer -- or at least developed as a lawyer -- because I believe in the rule of law.

The point I was trying to emphasize in my opening statement that all of these other areas -- you believe in civil rights, you believe in environmental protection -- whatever the area might be -- believe in rights for the disabled -- you're not going to be able or effectively to vindicate those rights if you don't have a place that you can go where you know you're going to get a decision based on the rule of law.It was the point I was making with respect to the Soviet constitution: filled with wonderful sounding rights; absolutely meaningless because people who suffered under that system had no place they could go in court and say, My rights have been violated.

So that's why I became a lawyer, to promote and vindicate the rule of law.

Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust: I've defended corporations; I've sued corporations.

In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system.

I viewed that as -- I appreciate that the some may say, Well, that sounds like you're a hired gun, to be disparaging. You're going to take the side of whomever comes in the door first.

I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.

That's why when the chief justice welcomes new members to the Supreme Court bar, he welcome welcomes them as members of the bar and officers of the court, because that is the important role that they play.

That has significance for what types of arguments they can present and how they can present them.

DURBIN: Well, if I might say, Judge, if you've made one point many times over during the course of the last three days, it's that as a judge you will be loyal and faithful to the process of law, to the rule of law.

I think that is without question from what you've said. I accept that on its face.

But the questions which we continue to ask you really try to go beyond that. Because I said at the outset that I thought one of the real measures as to whether or not you should be on the Supreme Court goes back to a point Senator Simon had made: Would you restrict freedom in America or would you expand it? When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you are trying, from my point of view, to expand freedom in America. That, to me, is a positive thing. That's my personal philosophy and point of view.

But then when you say, If the state would have walked in the door first to restrict freedoms, I would have taken them as a client too, I wonder, where are you?

Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? Is it important enough for you to say in some instances, I will not use my skills as a lawyer because I don't believe that that is a cause that is consistent with my values and belief ?

That's what I've been asking.

ROBERTS: I had someone ask me in this process -- I don't remember who it was, but somebody asked me, you know, Are you going to be on the side of the little guy?

And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath.

The oath that a judge takes is not that, I'll look out for particular interests, I'll be on the side of particular interests. The oath is to uphold the Constitution and laws of the United States. And that's what I would do.

DURBIN: Would you at least concede that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system? And that many times the powerless, the person who has struggled and clawed their way to your courtroom, went through a wall of adversity which the power never had to face? Is that part of your calculation?

ROBERTS: Absolutely. And it's, again, what's carved above the doors to the Supreme Court: Equal justice under law. And the judicial oath talks about doing justice without regard to persons, to rich and to poor. And that, of course, is critically important. You do have to appreciate that there are going to be interests who, for one reason or another, don't have the same resources as people on the other side.

The idea is not to give the case to the side with the best resources, the side with the best lawyers, the side with the most opportunity to prepare it and present it. It is to decide the case according to the law and according to the Constitution.

And as case after case in the Supreme Court shows, that's often the prisoner who's sitting in his cell and writes his petition out longhand. Sometimes the Constitution is on that person's side and not on the side of the corporation with the fancy printed brief.

But the judge's obligation is to appreciate that the rule of law requires that both of those be treated equally under the law.

DURBIN: Judge Roberts, thank you very much.

Mr. Chairman, thank you.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Durbin.

Judge Roberts, questions will be submitted to you within 24 hours. And you've already stated your commitment to answer the questions and you can't be totally open-ended because you don't know how many question there will be, but I have a strong inclination that however many questions there are you will be able to answer them in appropriate course.

We're now going to move into a closed session.


SPECTER: Senator Graham, you are recognized.

GRAHAM: Yes, Mr. Chairman, just for a couple of minutes.

I'm trying to compile questions from the past where the answers were very similar to the answers of Judge Roberts about, I can't comment, I can't give you -- I can't answer your question because it may compromise my integrity to judge in the future. And I would ask permission of the committee to get a chance to organize this because there are so many volumes.

And what I would like to be able to demonstrate to the committee is that the pattern that he has displayed in terms of saying, I can't give you an answer because it may disqualify me is not unique to the Senate and very similar to past nominations. And we've got some examples of that.

But if I may, and I know we've been here and Lord knows this guy's been through the wringer, I just want to comment a little bit an unhealthy area I think we find ourselves in in the last hour.

Most of us are lawyers, and I would hate to be judged by the people I've represented in the past totally.

I've represented some people that are not very nice.


But I gave them my all.

I've represented people on Air Force bases that were so unpopular, Judge Roberts, that no one would eat with me, because it was my job as the area defense counsel to represent that person. Your heart -- nobody can question your intellect, because it would be a question of their intellect to question yours...


... so we're down to the heart. And is it all coming down to that?

Well, there are all kind of hearts. There are bleeding hearts and there are hard hearts. And if I wanted to judge Justice Ginsburg on her heart, I might take a hard-hearted view of her and say she's a bleeding heart. She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?

Well, she has a different value system than I do. But that doesn't mean she doesn't have a good heart.

And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is, Adopt my value system, we're doing a great disservice to the judiciary.

Thank you.

SPECTER: Thank you very much, Senator Graham.

We're now going to go into executive session, under Senate Rule 26, to review the FBI report -- which is standard for all the judicial nominees: Supreme Court or Court of Appeals or district court -- and to consider any other investigative issue that members of the committee may have.

During Senator Biden's tenure as chairman, the practice was initiated of conducting routine closed sessions with each nominee for the Supreme Court, to ask the nominee on the record, under oath, about all investigative charges against the person, if there were any. These hearings are routinely conducted for every Supreme Court nominee, even where there are no investigative issues to be resolved.

In so doing, those outside the committee cannot infer that the committee has received adverse, confidential information about a nominee.

The committee and Judge Roberts will now proceed to Dirksen 226, which is right down the hall.

Senator Leahy?

LEAHY: I understand that, also following our practice, the Republican counsel and the Democratic counsel, who normally work together on such issues, will brief the committee.

SPECTER: Senator Leahy, that is correct.

LEAHY: Thank you.

SPECTER: We expect to return to hear our first outside witness, the American Bar Association, just as soon as we conclude this. We want to move ahead as promptly as we can. So those witnesses should be available.

We will now adjourn to 226 in this building.