<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:23539.wais]
S. Hrg. 109-158
CONFIRMATION HEARING ON THE NOMINATION OF JOHN G. ROBERTS, JR. TO BE
CHIEF JUSTICE OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
----------
SEPTEMBER 12-15, 2005
----------
Serial No. J-109-37
----------
Printed for the use of the Committee on the Judiciary
CONFIRMATION HEARING ON THE NOMINATION OF JOHN G. ROBERTS, JR.
TO BE CHIEF JUSTICE OF THE UNITED STATES
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512ÿ091800
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S. Hrg. 109-158
CONFIRMATION HEARING ON THE NOMINATION OF JOHN G. ROBERTS, JR. TO BE
CHIEF JUSTICE OF THE UNITED STATES
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
SEPTEMBER 12-15, 2005
__________
Serial No. J-109-37
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
David Brog, Staff Director
Michael O'Neill, Chief Counsel
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
C O N T E N T S
----------
SEPTEMBER 12-14, 2005
STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 15
prepared statement........................................... 743
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 46
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 48
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 40
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 24
prepared statement........................................... 816
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 43
prepared statement........................................... 819
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 32
prepared statement........................................... 843
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 26
prepared statement........................................... 846
Graham, Hon. Lindsey O., a U.S. Senator from the State of South
Carolina....................................................... 35
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 13
prepared statement........................................... 883
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 7
prepared statement........................................... 893
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 10
prepared statement........................................... 931
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 21
prepared statement........................................... 946
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 19
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 4
prepared statement........................................... 1008
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 37
prepared statement........................................... 1284
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama.... 29
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 2
PRESENTERS
Bayh, Hon. Evan, a U.S. Senator from the State of Indiana
presenting John G. Roberts, Jr., Nominee to be Chief Justice of
the United States.............................................. 52
Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana
presenting John G. Roberts, Jr., Nominee to be Chief Justice of
the United States.............................................. 50
Warner, Hon. John, a U.S. Senator from the State of Virginia
presenting John G. Roberts, Jr., Nominee to be Chief Justice of
the United States.............................................. 52
STATEMENT OF THE NOMINEE
Roberts, John G., Jr., of Maryland, Nominee to be Chief Justice
of the United States........................................... 55
Questionnaire................................................ 57
----------
SEPTEMBER 15, 2005
WITNESSES
Bellia, Patricia L., Professor of Law, Notre Dame Law School,
South Bend, Indiana............................................ 514
Botelho, Hon. Bruce, former Attorney General, State of Alaska,
and Mayor of Juneau, Alaska, Juneau, Alaska.................... 492
Braceras, Jennifer Cabranes, Commissioner, U.S. Commission on
Civil Rights and Visiting Fellow at the Independent Women's
Forum, Boston, Massachusetts................................... 460
Bradley, Kathryn Webb, Senior Lecturing Fellow, Duke Law School,
Durham, North Carolina......................................... 479
Browner, Carol M., former Administrator, U.S. Environmental
Protection Agency, and Principal, The Albright Group,
Washington, D.C................................................ 477
Edelman, Peter B., Professor of Law, Co-Director, Joint Degree in
Law and Public Policy, Georgetown University Law Center,
Washington, D.C................................................ 512
Engler, John, former Governor of Michigan, and President,
National Association of Manufacturers, Washington, D.C......... 535
Fried, Charles, former Solicitor General of the United States,
Beneficial Professor of Law, Harvard Law School, Cambridge,
Massachusetts.................................................. 510
Furchtgott-Roth, Diana, Senior Fellow, Hudson Institute,
Washington, D.C................................................ 526
Greenberger, Marcia, Co-President, National Women's Law Center,
Washington, D.C................................................ 490
Henderson, Wade, Executive Director, Leadership Conference on
Civil Rights, Washington, D.C.................................. 462
Jackson, Roderick, Coach, Ensley High School, Birmingham, Alabama 494
Jones, Beverly, Lafayette, Tennessee............................. 498
Jones, Nathaniel, Judge (retired), U.S. Circuit Court of Appeals
for the Sixth Circuit, Of Counsel, Blank Rome LLP, Cincinnati,
Ohio........................................................... 466
Kirsanow, Peter, Partner, Benesch, Friedlander, Coplay & Aronoff,
and Commissioner, U.S. Commission on Civil Rights, Cleveland,
Ohio........................................................... 464
Lewis, Hon. John, a Representative in Congress from the State of
Georgia........................................................ 458
Lindberg, Denise Posse-Blanco, Judge, Third Judicial District
Court, State of Utah, Salt Lake City, Utah..................... 483
Mahoney, Maureen E., Partner, Latham & Watkins, Washington, D.C.. 476
Pearl, Karen, Interim President, Planned Parenthood Federation of
America, New York, New York.................................... 536
Polakoff, Dale, Rabbi and President, Rabbinical Council of
America, Great Neck, New York.................................. 531
Reich, Robert B., former Secretary of Labor and University
Professor and Maurice B. Hexler Professor of Social and
Economic Policy, Brandeis University, Waltham, Massachusetts... 529
Resnik, Judith, Arthur Liman Professor of Law, Yale Law School,
New Haven, Connecticut......................................... 516
Stetson, Catherine E., Partner, Hogan & Hartson, Washington, D.C. 488
Strauss, David, Harry N. Wyatt Professor of Law, University of
Chicago Law School, Chicago, Illinois.......................... 520
Tallman, Ann Marie, President and General Counsel, Mexican
American Legal Defense and Educational Fund, Los Angeles,
California..................................................... 481
Thistlethwaite, Susan, President, Chicago Theological Seminary,
Chicago, Illinois.............................................. 533
Thornburg, Dick, former Attorney General of the United States,
former Governor of Pennsylvania, and Counsel, Kirkpatrick &
Lockhart Nicholson Graham, Washington, D.C..................... 455
Tober, Stephen L., Chairman, American Bar Association Standing
Committee on the Federal Judiciary, Portsmouth, New Hampshire;
accompanied by Thomas Z. Hayward, Jr., Past Chairman, American
Bar Association Standing Committee on the Federal Judiciary,
Chicago, Illinois and Pamela A. Bresnahan, D.C. Circuit
Representative, American Bar Association, Washington, D.C...... 451
Turner, Reginald M., Jr., President, National Bar Association,
Detroit, Michigan.............................................. 485
Wright, Henrietta, Of Counsel, Goldberg, Godles, Wiener and
Wright, and Chairman of the Board, Dallas Children's Advocacy
Center, Dallas, Texas.......................................... 496
Yoo, Christopher S., Professor of Law, Vanderbilt University Law
School, Nashville, Tennessee................................... 518
----------
QUESTIONS AND ANSWERS
Responses of John G. Roberts, Jr. to questions submitted by
Senator Biden.................................................. 549
Responses of John G. Roberts, Jr. to questions submitted by
Senator Brownback.............................................. 556
Responses of John G. Roberts, Jr. to questions submitted by
Senator Feingold............................................... 559
Responses of John G. Roberts, Jr. to questions submitted by
Senator Feinstein.............................................. 563
Responses of John G. Roberts, Jr. to questions submitted by
Senator Kennedy................................................ 574
Response of John G. Roberts, Jr. to a question submitted by
Senator Kyl.................................................... 616
Responses of John G. Roberts, Jr. to questions submitted by
Senator Leahy.................................................. 617
Responses of John G. Roberts, Jr. to questions submitted by
Senator Feinstein on behalf of Senator Mikulski................ 621
Responses of John G. Roberts, Jr. to questions submitted by
Senator Schumer................................................ 626
Responses of Thomas Z. Hayward, Jr. and Stephen L. Tober to
questions submitted by Senator Leahy........................... 641
SUBMISSIONS FOR THE RECORD
Ability Center of Greater Toledo, Karen Boaden, Director of
Finance, Sylvania, Ohio, letter................................ 646
Advance USA, Dr. Carl Herbster, President, Independence,
Missouri, letter............................................... 648
Alliance for Justice, Nan Aron, President, Washington, D.C.,
letter and prepared statement.................................. 649
Alliance of Women Democrats, Patricia Olney Brenham, Texas,
letter......................................................... 678
American Association of People with Disabilities, Andrew J.
Imparato, President and CEO, and John Lancaster, Executive
Director, National Council on Independent Living, and Robert
Bernstein, Executive Director, Bazelon Center for Mental Health
Law, Washington, D.C., letter and attachment................... 679
American Association of University Women, Washington, D.C.,
letter......................................................... 683
American Bar Association, Model Code of Judicial Conduct, excerpt 690
American Broadcasting Companies, Inc., August 29, 1985,
transcript..................................................... 692
American citizens and religious leaders, joint letter............ 693
American Civil Liberties Union, Caroline Fredrickson, Director
and Christopher E. Anders, Legislative Counsel, Washington,
D.C., letter................................................... 701
American Federation of Labor and Congress of Industrial
Organizations, John J. Sweeney, President, Washington, D.C.,
letter......................................................... 711
Americans United for Separation of Church and State, Washington,
D.C., report................................................... 713
Bellia, Patricia L., Professor of Law, Notre Dame Law School,
South Bend, Indiana, prepared statement........................ 732
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware:
selected 1993 answers by Judge Ginsburg...................... 747
statements on proper scope of questioning during Ginsburg
Hearing.................................................... 756
Black Women's Health Imperative, Feminist Majority, NARAL Pro-
Choice America, National Abortion Federation, National Family
Planning & Reproductive Health Association, National
Partnership for Women & Families, National Women's Law Center,
Planned Parenthood Federation of America, Inc., Washington,
D.C., joint letter............................................. 758
Botelho, Hon. Bruce, former Attorney General, State of Alaska,
and Mayor of Juneau, Alaska, Juneau, Alaska, prepared statement 760
Braceras, Jennifer Cabranes, Commissioner, U.S. Commission on
Civil Rights, and Visiting Fellow at the Independent Women's
Forum, Boston, Massachusetts, prepared statement............... 766
Bradley, Kathryn Webb, Senior Lecturing Fellow, Duke Law School,
Durham, North Carolina, prepared statement..................... 771
Browner, Carol M., former Administrator, U.S. Environmental
Protection Agency, and Principal, The Albright Group,
Washington, D.C., prepared statement........................... 777
Cases involving the United States (selective) of Justice Stephen
Breyer and Justice Ruth Bader Ginsburg......................... 781
Center for Constitutional Rights, New York, New York, letter..... 784
Center for Individual Freedom, Jeffrey Mazzella, President,
Alexandria, Virginia, letter................................... 790
Centre for New Black Leadership, Phyllis Berry Myers, Washington,
D.C., letter................................................... 791
Community Rights Counsel, Defenders of Wildlife, Earthjustice,
Endangered Species Coalition, Friends of the Earth, National
Environmental Trust, Sierra Club, Washington, D.C., joint
letter......................................................... 792
Concerned Women for America, Janet M. LaRue, Chief Legal Counsel,
Washington, D.C., statement.................................... 802
Congressional Black Caucus of the United States Congress, Melvin
L. Watt, Chair, CBC, and Eleanor Holmes Norton, Judicial
Nominations Chair, Washington, D.C., letter and attachment..... 808
Dean, John W., III, White House Counsel, Beverly Hills,
California, prepared statement................................. 814
Earthjustice, Washington, D.C., statement........................ 824
Edelman, Peter B., Professor of Law, Co-Director, Joint Degree in
Law and Public Policy, Georgetown University Law Center
Washington, D.C., prepared statement........................... 829
Enfoque a la Familia, Yuri Mantilla, Director de Relaciones
Gubernamen-tales Internacionales, Colorado Springs, Colorado,
letter (in Spanish)............................................ 837
Engler, John, former Governor of Michigan, and President,
National Association of Manufacturers, Washington, D.C.,
prepared statement............................................. 838
Feminist Majority Foundation, Arlington, Virginia:
article, July 1, 2005........................................ 851
article, July 20, 2005....................................... 852
Former heads of the Office of the Solicitor General, Washington,
D.C., joint letter............................................. 853
Fraternal Order of Police, Chuck Canterbury, National President,
Washington, D.C., letter....................................... 855
Fredette, Roland H., Flore L. Fredette, Henry P. Fredette, and
Rosilene R. Fredette, Atlanta, Georgia, joint letter........... 857
Fried, Charles, former Solicitor General of the United States,
Beneficial Professor of Law, Harvard Law School, Cambridge,
Massachusetts, prepared statement.............................. 858
Frist, Hon. William H., M.D., a U.S. Senator from the State of
Tennessee and Majority Leader of the United States Senate,
prepared statement............................................. 865
Furchtgott-Roth, Diana, Senior Fellow, Hudson Institute,
Washington, D.C., prepared statement........................... 867
Gillers, Stephen, Emily Kempin Professor of Law, New York
University School of Law; David Luban, Frederick Haas Professor
of Law and Philosophy, Georgetown University Law Center; and
Steven Lubet, Professor of Law and Director of the Program on
Advocacy and Professionalism, Northwestern University School of
Law, joint letter and attachment............................... 874
Greenberger, Marcia, Co-President, National Women's Law Center,
Washington, D.C................................................ 886
Hazard, Geoffrey C., Jr., University of Pennsylvania Law School,
prepared statement............................................. 896
Henderson, Wade, Executive Director, Leadership Conference on
Civil Rights, Washington, D.C., statement...................... 897
Hispanics for a Fair Judiciary, Raul Yzaguirre, Civil Rights
Advocate, Washington, D.C., statement.......................... 909
Human Rights Campaign, Joe Solmonese, President, Washington,
D.C., prepared statement....................................... 910
Jackson, Roderick, Coach, Ensley High School, Birmingham,
Alabama, prepared statement.................................... 916
Johanson, Niles, San Diego, California, letter................... 920
Jones, Beverly, Lafayette, Tennessee, prepared statement......... 921
Jones, Nathaniel, Judge (retired), U.S. Circuit Court of Appeals
for the Sixth Circuit, Of Counsel, Blank Rome LLP, Cincinnati,
Ohio........................................................... 924
Judicial Conference of the United States, Code of Conduct for
United States Judges, excerpt.................................. 928
Kirsanow, Peter, Partner, Benesch, Friedlander, Coplay & Aronoff,
and Commissioner, U.S. Commission on Civil Rights, Cleveland,
Ohio, prepared statement....................................... 935
Kleinsmith, Barbara, Brea, California, letter.................... 945
Lambda Legal, Jon W. Davidson, Legal Director, letter and
attachment..................................................... 949
Law professors from across the United States, joint letter....... 956
Lawyers' Committee for Civil Rights Under Law, Washington, D.C.,
letter and attachment.......................................... 972
Leadership Conference on Civil Rights:
Wade Henderson, Executive Director, and Nancy Zirkin Deputy
Director, Washington, letter............................... 993
Dr. Dorothy I. Height, Chairperson, and Wade Henderson,
Executive Director, Washington, letter..................... 997
League of United Latin American Citizens, Washington, D.C., press
release........................................................ 1007
Legal Momentum, Washington, D.C., article and attachment......... 1011
Lewis, Hon. John, a Representative in Congress from the State of
Georgia, prepared statement.................................... 1016
Lindberg, Denise Posse-Blanco, Judge, Third Judicial District
Court, State of Utah, Salt Lake City, Utah, prepared statement
and attachment................................................. 1018
Lugar, Hon. Richard G., a U.S. Senator from the State of Indiana,
prepared statement............................................. 1025
Mahoney, Maureen E., Partner, Latham & Watkins, Washington, D.C.,
prepared statement............................................. 1029
Members of the Congressional Hispanic Conference, Washington,
D.C., letter................................................... 1033
Members of the Congress of the United States, Washington, D.C.,
letter......................................................... 1035
Mexican American Legal Defense and Educational Fund, Los Angeles,
California, prepared statement................................. 1042
Morbidity and Mortality Weekly Report, Atlanta, Georgia:
report, November 5, 1982..................................... 1065
report, August 30, 1985...................................... 1070
Morgan, Thomas D., Oppenheim Professor of Antitrust & Trade
Regulation Law, George Washington University Law School,
Washington, D.C., letter....................................... 1076
Nader, Ralph, Washington, D.C., statement........................ 1079
Nager, George, Attorney and Counsellor at Law, Hempstead, New
York, letter................................................... 1088
Nathanson, Jeanette, Carmel Valley, California, letter........... 1090
National Association for the Advancement of Colored People,
Washington, D.C., letter and attachments....................... 1091
National Association of Manufacturers, John Engler, President and
CEO, Washington, D.C., letter.................................. 1099
National Association of Social Workers, Washington, D.C.,
statement...................................................... 1100
National Association of Women Lawyers, Stephanie A. Scharf,
Chair, Committee for Evaluation of Supreme Court Nominees,
Chicago, Illinois, letter and attachment....................... 1106
National Center for Lesbian Rights, Washington, D.C., article.... 1111
National Council of Women's Organizations, Washington, D.C.,
media release and attachment................................... 1116
National Coalition for the Protection of Children & Families,
Rick Schatz, President and CEO, Cincinnati, Ohio, letter and
attachment..................................................... 1118
National Council of Jewish Women, Phyllis Snyder, Washington,
D.C., statement................................................ 1120
National Employment Lawyers Association, Janet E. Hill,
President, San Francisco, California, letter................... 1125
National Lawyers Guild, New York, New York, article.............. 1129
National Organization for Women, Kim Gandy, President,
Washington, D.C., letter....................................... 1131
National Partnership for Women & Families, Debra L. Ness,
President, Washington, D.C., statement......................... 1133
NARAL Pro-Choice America, Nancy Keenan, President, Washington,
D.C., statement................................................ 1137
National Women's Law Center, Nancy Duff Campbell, Co-President,
Marcia D. Greenberger, Co-President, Washington, D.C., letter.. 1152
New York Times:
August 30, 1985, article..................................... 1153
May 1, 2001, article......................................... 1155
Noel, Georgette Forney, President, and Rev. D. Lorne Coyle,
Chairman of the Board, Sewickley, Pennsylvania, letter......... 1157
Notes on Judge Roberts's record on various topics................ 1158
O'Sullivan, Darlene & Patrick M., letter......................... 1165
Parents, Families and Friends of Lesbians and Gays, San Diego,
California, article............................................ 1166
People for the American Way, Ralph G. Neas, President,
Washington, D.C., report and attachment........................ 1169
Pearl, Karen, Interim President, Planned Parenthood Federation of
America, New York, New York, statement......................... 1179
Polakoff, Dale, Rabbi and President, Rabbinical Council of
America, Great Neck, New York, statement....................... 1186
Rainbow PUSH Coalition, Rev. Jesse L. Jackson, Sr., Founder and
President, Chicago, Illinois, statement........................ 1190
Randall, John C., Fairlawn, Ohio, letter......................... 1192
Reich, Robert B., former Secretary of Labor and University
Professor and Maurice B. Hexler Professor of Social and
Economic Policy, Brandeis University, Waltham, Massachusetts,
statement...................................................... 1193
Religious Coalition for Reproductive Choice, Rev. Carlton Veazey,
President and Chief Executive Officer, Washington, D.C., letter 1198
Religious Freedom Action Coalition, William J. Murray, Chairman
and Peggy S. Birchfield, Executive Director, Wahsington, D.C.,
statement and attachment....................................... 1200
Religious Institute on Sexual Morality, Justice, and Healing,
Rev. Debra W. Haffner, Director, Norwalk, Connecticut, letter.. 1202
Resnik, Judith, Arthur Liman Professor of Law, Yale Law School,
New Haven, Connecticut, statement.............................. 1204
Reynolds, William Bradford, Assistant Attorney General, Civil
Rights Division, Washington, D.C., memorandum.................. 1232
RightMarch.com, William Greene, Washington, D.C., statement...... 1233
Roberts, John G., Jr.:
August 9, 1982, memorandum................................... 1234
February 10, 1983, memorandum................................ 1237
June 7, 1983, memorandum..................................... 1240
February 29, 1984, memorandum................................ 1242
September 13, 1985, memorandum and attachments............... 1243
Duke Law Journal, April 1993, article........................ 1260
Rotunda, Ronald D., George Mason University Foundation Professor
of Law, George Mason University School of Law, Arlington,
Virginia, statement............................................ 1269
Service Employees International Union CLC, Andrew L. Stern ,
International President, Washington, D.C., letter.............. 1289
Sierra Club, Carl Pope, Washington, D.C., letter................. 1295
Stetson, Catherine E., Partner, Hogan & Hartson, Washington,
D.C., statement................................................ 1300
Strauss, David, Harry N. Wyatt Professor of Law, University of
Chicago Law School, Chicago, Illinois, prepared statement...... 1304
Tallman, Ann Marie, President and General Counsel, Mexican
American Legal Defense and Educational Fund, Los Angeles,
California, prepared statement................................. 1309
Thistlethwaite, Susan, Rev., President, Chicago Theological
Seminary, Chicago, Illinois, prepared statement................ 1324
Thornburg, Dick, former Attorney General of the United States,
former Governor of Pennsylvania, and Counsel, Kirkpatrick &
Lockhart Nicholson Graham, Washington, D.C., prepared statement 1331
Tober, Stephen L., Chairman, American Bar Association Standing
Committee on the Federal Judiciary, Portsmouth, New Hampshire,
Washington, D.C., prepared statement........................... 1340
Turner, Reginald M., Jr., President, National Bar Association,
Detroit, Michigan, prepared statement.......................... 1362
Union for Reform Judaism, Robert Heller, Chairperson, Union for
Reform Judaism Board of Trustees, and Jane Wishner,
Chairperson, Commission on Social Action of Reform Judaism,
Washington, D.C., letter....................................... 1380
Unitarian Universalist Association of Congregations, Robert C.
Keithan, Director, Washington, D.C., letter and attachment..... 1382
Warner, Hon. John, a U.S. Senator from the State of Virginia,
prepared statement............................................. 1386
Washington Post:
August 31, 1985, article..................................... 1391
Boyce Rensberger and Cristine Russell, September 4, 1985,
article.................................................... 1392
September 4, 1985, article................................... 1400
Dr. Jay Siwek, September 4, 1985, article.................... 1402
Michael Specter, September 4, 1985, article.................. 1405
Don Colburn, September 4, 1985, article...................... 1408
Victor Cohn, September 4, 1985, article...................... 1413
September 4, 1985, article................................... 1416
Sandy Rovner, September 4, 1985, article..................... 1418
Waxman, Hon. Henry A., a Representative in Congress from the
State of California, letter.................................... 1421
Wilberforce Forum, Mariam Bell, National Director of Public
Policy, Washington, D.C., letter............................... 1427
Valley, Dustin, Worthington, Ohio, letter........................ 1428
Women's Sports Foundation, East Meadow, New York, statement...... 1429
Wright, Henrietta, Of Counsel, Goldberg, Godles, Wiener and
Wright, and Chairman of the Board, Dallas Children's Advocacy
Center, Dallas, Texas, prepared statement...................... 1432
Yoo, Christopher S., Professor of Law, Vanderbilt University Law
School, Nashville, Tennessee, prepared statement............... 1437
NOMINATION OF JOHN G. ROBERTS, JR., OF MARYLAND, TO BE CHIEF JUSTICE OF
THE UNITED STATES
----------
MONDAY, SEPTEMBER 12, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 12:00 p.m., in
room 325, Russell Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. Good afternoon, ladies and gentlemen. We
begin these hearings on the confirmation of Judge John Roberts
to be Chief Justice of the United States, with first the
introduction by Judge Roberts of his beautiful family, and then
a few administrative housekeeping details before we begin the
opening statements, which will be 10 minutes in length by each
Senator. At the conclusion of the opening statements, we will
then turn to the introductions by Senator Lugar, Senator
Warner, and Senator Bayh, and then the administration of the
oath to Judge Roberts and to his opening statement.
So, Judge Roberts, if you would at this time introduce your
family, we would appreciate it.
Judge Roberts. Thank you very much, Mr. Chairman. I am very
happy to have my mother and father here, Jack and Rosemary
Roberts; my sisters Kathy Godbey, Peggy Roberts, and Barbara
Burke; Barbara's husband, Tim Burke, is also here; my uncle,
Richard Podrasky; and representing the cousins, my cousin, Jean
Podrasky. My wife, Jane, is right here front and center, with
our daughter, Josephine, and our son, Jack. You will see she
has a very tight grasp on Jack.
[Laughter.]
Chairman Specter. Thank you very much, Judge Roberts.
Judge Roberts had expressed his appreciation to have the
introductions early, said the maximum time of the children's
staying power was 5 minutes, and that is certainly
understandable. Thank you for doing that, Judge Roberts.
And now before beginning the opening statements, let me
yield to my distinguished ranking member, Senator Leahy.
Senator Leahy. Mr. Chairman, I want to thank you for all
the consultations. I think we have each other's home phones on
speed dial, we have talked to each other so often. And I have
every confidence the Chairman will conduct a fair and thorough
hearing.
Less than a quarter of those of us currently serving in the
Senate have exercised the Senate's advice and consent
responsibility in connection with a nomination to be Chief
Justice of the United States. I think only 23 Senators have
actually been involved in that. We are fortunate that a veteran
of these proceedings is chairing this.
We are at a time of great stress in our Nation because of
what has happened in New Orleans and throughout much of the
Gulf Coast regions. I think the hearts and prayers of certainly
my State of Vermont but all Americans are for those people, and
I would hope that they understand that while we were having
these hearings, they are first and foremost in our thoughts and
prayers. I am sure they are with you, Judge.
This is the only time we are going to find out what he is,
and so it is all the more important that we have a good
hearing. Again, Mr. Chairman, I appreciate our meetings on
this. I appreciate the meeting earlier this morning with you
and Judge Roberts. I think that you have set exactly the
perfect tone for a hearing of this nature.
OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM
THE STATE OF PENNSYLVANIA
Chairman Specter. Thank you very much, Senator Leahy. And
now we will begin the opening statements, as I have said, of 10
minutes' duration.
This hearing, Judge Roberts, is being held in the Senate
Caucus Room, which has been the site of many historic hearings,
going back to 1912 with the sinking of the Titanic; 1923,
Teapot Dome; 1954, Army-McCarthy; 1973, Watergate; 1987, Iran-
contra; and this chamber still reverberates with the testimony
of Judge Bork in 1987, and it still reverberates with the
testimony of Justice Clarence Thomas and Professor Anita Hill
in 1991.
This is a very unique hearing--the first one in 11 years in
the Senate for a Supreme Court Justice, and the first one in 19
years for a Chief Justice. And you would be, if confirmed, the
17th Chief Justice in the history of the country and the second
youngest since Chief Justice Marshall was sworn in, in 1800.
Your prospective stewardship of the Court, which could last
until the year 2040, or longer--the senior Justice now is
Justice Stevens, who is 85, and projecting ahead 35 years, that
would take us to the year 2040 and would present a very unique
opportunity for a new Chief Justice to rebuild the image of the
Court away from what many believe it has become, a super-
legislature, and to bring consensus to the Court with the
hallmark of the Court being 5-4 decisions--a 5-4 decision this
year allowing Texas to display the Ten Commandments, and a 5-4
decision turning Kentucky down from displaying the Ten
Commandments; a 5-4 decision 4 years ago striking down a
section of the Americans With Disabilities Act; and last year,
a 5-4 decision upholding the Americans With Disabilities Act on
the same Congressional record.
Beyond your potential voice for change and consensus, your
vote will be critical on many, many key issues, such as
Congressional power, Presidential authority, civil rights,
including voting rights and affirmative action, defendants'
rights, prayer, many decisions for the future, and perhaps
institutional changes in the Court, looking for the day when
the Court may be televised.
This hearing comes at a time of turbulent partisanship in
the United States Senate. Turbulent partisanship. Earlier this
year, the Senate faced the possibility of a virtual meltdown,
with filibusters on one side of the aisle and on the other side
of the aisle the threat of the constitutional or nuclear
confrontation. This Committee, with the leadership of Senator
Leahy, has moved to a bipartisan approach. We had a prompt
confirmation of the Attorney General. We reported out bills
which have become legislation, after being stalled for many
years, on bankruptcy reform and class action. We have confirmed
contentious circuit court nominees. We have reported out
unanimously the PATRIOT Act and, after very deliberate and
complex hearings, reported out asbestos reform. So it has been
quite a period for this Committee.
And now we face the biggest challenge of the year, perhaps
the biggest challenge of the decade, in this confirmation
proceeding. I have reserved my own judgment on your nomination
until the hearings are concluded, and it is my firm view that
there ought not to be a political tilt to the confirmation of a
Supreme Court Justice, thought to be Republican or Democratic.
We all have a responsibility to ask probing questions to
determine qualification beyond academic and professional
standing.
These hearings, in my judgment, ought to be in substantive
fact and in perception for all Americans, that all Americans
can feel confident that the Committee and the full Senate has
done its job.
There are no firmly established rules for questions and
answers. I have expressed my personal view that it is not
appropriate to ask a question about how the nominee would vote
on a specific case, and I take that position because of the key
importance of independence, that there ought not to be
commitments or promises made by a nominee to secure
confirmation. But Senators have the right to ask whatever
questions they choose, and you, Judge Roberts, have the
prerogative to answer the questions as you see fit or not to
answer them as you see fit.
It has been my judgment, after participating in nine--this
will be the tenth for me personally--that nominees answer about
as many questions as they think they have to in order to be
confirmed. It is a subtle minuet, and it will be always a
matter of great interest as to how we proceed.
I do not intend to ask you whether you will overrule Roe v.
Wade. I will ask you whether you think the Constitution has a
right of privacy, and I will ask questions about precedents as
they bear on Roe v. Wade. I am very much concerned about what I
conceive to be an imbalance in the separation of powers between
the Congress and the Court. I am concerned about what I bluntly
say is the denigration by the Court of Congressional authority.
When the Supreme Court of the United States struck down a
portion of the legislation to protect women against violence,
the Court did so because of our ``method of reasoning.'' And
the dissent noted that that had carried the implication of
judicial competence, and the inverse of that is Congressional
incompetence. And after 25 years in this body, on fact
finding--and there was an extensive record made in the case, in
the legislation to protect women against violence, the Court
simply disregarded it.
And then the issue of States' rights, the Supreme Court of
the United States has elevated States' rights, but in a context
that it is impossible to figure out what the law is. The
Americans With Disabilities Act had a very extensive record,
but when the case came up in 2001, Garrett, a woman who had
breast cancer, the Supreme Court said that the section of the
Act was unconstitutional. Four years later, in Lane v.
Tennessee, you had a paraplegic crawling up the steps access to
a courtroom. The Court said that that was constitutional, again
5-4, on what really turned out to be inexplicable decisions.
You have a very extensive paper trail, and there will
obviously be questions on that subject, and we will be
concerned about what your views are today contrasted with what
your views may have been in the past. Phyllis Schlafly, the
president of the Eagles Forum, said that they were smart-alecky
comments by a bachelor who did not have a whole lot of
experience. So she is putting on an understandable gloss on
that subject. But I know that will be a matter of considerable
interest.
In one of your earlier memoranda, you came forward with an
intriguing thought, one of many in those early memoranda, as
your conceptualization power was evident, that Justices ought
to be limited to a 15-year term. And with that idea in play, if
time permits, it is something I would like to explore,
voluntary action on the part of a Justice or perhaps the
President could make that a condition.
Between now and the year 2040, or in the intervening years,
technology will present many, many novel issues, and there,
again, if time permits, I would like to explore that.
I am down to 10 seconds, and I intend to stop precisely on
time, and this Committee has a record for maintaining that
time. That is it.
[Laughter.]
Judge Roberts. Thank you, Mr. Chairman.
Chairman Specter. I now yield to my distinguished
colleague, Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE
STATE OF VERMONT
Senator Leahy. Thank you, Mr. Chairman. Thank you for the
way you have conducted the whole run-up to this hearing.
A few days ago, William Rehnquist passed away. He had 33
years of service on the Supreme Court. Last week, many of us
paid our respects for his service at the monumental building
across the street in which he devoted himself to protecting the
independence of the Federal judiciary. I know, Judge Roberts,
that was a particularly difficult time for you because of your
close relationship with him. But I think of the facade of that
Court with its marble from Vermont, and I think of how much our
State served as a refuge for the Chief Justice, especially in
the summer months.
Today, the devastation and despair facing millions of our
fellow Americans in the Gulf region is a tragic reminder of why
we have a Federal Government and why it is critical that our
Government be responsive. We need the Federal Government for
our protection and security; to cast a lifeline to those in
distress; to mobilize vital resources, beyond the ability of
any State or local government, all for the common good.
The full dimensions of the disaster are not yet known.
Bodies of loved ones need to be recovered, families need to be
reunited, survivors need to be assisted. Long-term health risk
and environmental damage have to be assessed.
But if anyone needed a reminder of the need for and role of
the Government, the last few days have provided it. If anyone
needed a reminder of the growing poverty and despair among too
many Americans, we now have it. And if anyone needed a reminder
of the racial divide that remains in our Nation, no one can now
doubt that we still have miles to go.
I believe that the American people still want and expect
and demand a Government that will help ensure justice and equal
opportunity for all, and especially for those who, through no
fault of their own, were born into poverty. The American people
deserve a Government as good as they are with a heart as big as
theirs are. We are all Americans, and all Americans should have
an opportunity to earn a fair share of the bounty and blessings
that America has to offer.
And, Judge, we have been given a great Constitution. As you
know as well as anybody here, it begins, ``We the People of the
United States, in Order to form a more perfect Union, establish
Justice, ensure domestic Tranquility, provide for the common
defence, promote the general Welfare and secure the Blessings
of Liberty to ourselves and our Posterity, do ordain and
establish this Constitution for the United States of America.''
It is a framework for our Government, the foundation of our
rights and liberties.
In fact, Vermont joined the union the same year the Bill of
Rights was ratified. Those of us from the Green Mountain State,
the Nation's 14th State, have historically been very protective
of our fundamental rights and liberties. Many feel that we did
not join the union until we were sure the Bill of Rights was
going to go through. We understand the importance of the
Constitution and the Bill of Rights.
In these hearings we are going to be discussing
constitutional issues that may seem legalistic, but they are
vital issues. They affect every one of us every day. When we
discuss the Constitution's Commerce Clause or Spending Power,
for example, we are asking about Congressional authority to
pass laws to ensure clean air and water and children's and
seniors' health, safe food and drugs, safe work places, even
wetland protection and levees that should protect our
communities from natural disasters.
Our constitutional values remain constant. We want to
realize the American promise of fairness and equality and
justice. The Constitution says ``We the People.'' When the
Constitution was written, though, ``We the People'' did not
include Native Americans, or African-American slaves, but only
free people. It took more than four score years and a civil war
before the Constitution was amended to include all citizens,
all persons born and naturalized in the United States. Even
then half of the people did not have one of democracy's
defining rights: women were not yet guaranteed the right to
vote. That did not happen until 1920, and decades later still
it took an historic constitutional ruling, a unanimous ruling
by the United States Supreme Court in the case of Brown v.
Board of Education, and then landmark legislation by the
Federal Government for America to begin to provide a measure of
equality to many who were held back for so long because, and
only because, of the color of their skin.
I have long been a proponent of First Amendment freedoms
and open Government because the public's right to know what
their Government is doing promotes accountability.
Federal Judges are not elected. They serve for life if they
are confirmed. The people never have the opportunity for
effective oversight of their work. Judiciary is the most
isolated branch of our Government from public accountability.
So this is the only opportunity to examine what kind of justice
John Roberts will dispense if promoted to the Supreme Court,
the direction he would lead the Federal Judiciary.
This hearing is the only chance that ``We the People'' have
to hear from and reflect on the suitability of the nominee to
be a final arbiter of the meaning of the Constitution. Open and
honest public conversation with a nominee in these hearing
rooms is an important part of this process. This hearing is
about the fundamental rights of all Americans, and you are the
first nominee of the 21st century. If you are confirmed, you
will serve not just for the remaining 3 years of the Bush
administration, but you could serve through the administrations
of the next seven or eight Presidents. Judge Roberts, you will
be deciding matters that affect not only all Americans today
but also our children and our grandchildren.
In one of these hearings nearly 20 years ago, I noted how
critical it is for the Senate to engage in a public exploration
of the judicial philosophy of Supreme Court nominees. I said:
``There can hardly be an issue closer to the heart of the
Senate's role than a full and public exposition of the
nominee's approach to the Constitution and to the role of the
courts in discerning and enforcing its commands. That is what I
mean by judicial philosophy.'' That truth has not changed.
What is more difficult to see, though, is the arc of the
law in the years ahead, as Justices will vote on which cases to
accept and then how to decide them. Ours is a Government of
laws. When we are faced with a vacancy on the Supreme Court, we
are reminded that it is our fellow citizens, 9 out of our 280
million Americans, who interpret and apply those laws. The
balance and direction of the Supreme Court is now at issue with
the two vacancies of Chief Justice William Rehnquist and
Justice Sandra Day O'Connor. Chief among emerging concerns are
whether the Supreme Court will continue its recent efforts to
restrict the authority of Congress to pass legislation to
protect the people's interest in the environment and safety,
and in civil rights, and whether the Supreme Court will
effectively check the greatly enhanced Presidential power that
has been amassed in the last few years.
In other words, Judge Roberts, the issue is whether you
would be the protector of the rights of all Americans, not just
Republicans, not just Democrats, not just Independents, but all
Americans, whether you can serve as the check and balance that
all Americans expect.
The light of the nominations process is intense. It is
intense because it is the only time that light is going to
shine. The afterglow lasts for the rest of a Justice's career.
``We the People'' have just this one chance to inquire whether
this person should be entrusted with the privilege and
responsibility of interpreting our Constitution, and dispensing
justice from the Nation's highest court. Two hundred eighty
million Americans. The President stated his choice. Now there
are only 100 Americans standing in the shoes of all other
Americans, and on behalf of the American people, it is the job
of the 100 of us in the Senate to do all we can to make sure we
get it right.
Mr. Chairman, there is time left over, but I have said all
I intend to say.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Leahy for
your statement. Thank you for your leadership, and your
leadership on observing the time so meticulously.
Senator Hatch.
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Thank you, Mr. Chairman.
I want to begin by saying that my thoughts and prayers are
with the family of Chief Justice William Rehnquist. He
concluded his life on Earth just the way he lived it,
independently and with dignity. I am glad that his family was
with him when he passed away. He was a good man and a great
Judge.
Judge Roberts, I know that you and Chief Justice Rehnquist
remained close friends. He would have been proud to have a
former clerk serve with him as a colleague on the Court, and
now you have been nominated to succeed him as Chief Justice.
When President Bush nominated you 2 years ago to your
current post on the U.S. Court of Appeals, you had two hearings
before this Committee, and additionally answered approximately
100 written questions from various Senators. The American Bar
Association twice unanimously gave you its highest ``well-
qualified'' rating. That process covered a lot of ground,
including many of the same issues which are sure to be raised
here. You acquitted yourself so well that the Senate confirmed
you without dissent. Do not be surprised now, however, if it
seems like none of that scrutiny and evaluation had ever
happened.
Let me mention one example relating to my home State of
Utah to show how the confirmation process has changed.
President Warren G. Harding nominated former Utah Senator
George Sutherland to the Supreme Court on September 5th, 1922.
That same day the Judiciary Committee Chairman went straight to
the Senate floor, and after a few remarks, made a motion to
confirm the nomination. The Senate promptly and unanimously
agreed. There was no inquisition, no fishing expedition, no
scurrilous and false attack ads. The judicial selection
process, of course, has changed because what some political
forces want judges to do is change from what America's founders
established.
America's founders believed that separating the branches of
Government with the Legislature making the law and the
Judiciary interpreting and applying the law is the linchpin of
limited Government and liberty. James Madison said that no
political truth has greater intrinsic value. Quoting the
philosopher Montesquieu, Alexander Hamilton wrote in the
Federalist No. 78 that, ``There is no liberty if the power of
judging be not separated from the Legislative and Executive
powers.''
Well, times have changed. Today some see the separation of
powers not as a condition for liberty, but as an obstacle to
their own political agenda. When they lose in the legislature
they want the Judiciary to give them another bite at the
political apple. Politicizing the Judiciary leads to
politicizing judicial selection.
The confirmation process has sometimes been, it seems to
me, unbecoming of the Senate and disrespectful of nominees. I
applaud President Bush for resisting this trend and for
nominating qualified men and women who as judges will not
legislate from the bench, and you are a perfect example of
that.
The conviction that judges interpret and apply but do not
make the law, helps us sort out the information we need, the
questions we ask, the standards we apply, and the decisions we
make. With that in mind, I believe that there are three facts
that should guide us in this hearing.
First, what judges do limits what judicial nominees may
discuss. Judges must be impartial and independent. Their very
oath of office requires impartiality and the canons of judicial
ethics prohibit judges and judicial nominees from making
commitments regarding issues that may come before them. I will
be the first to admit that Senators want answers to a great
many questions, but I also have to admit that a Senator's
desire to know something is not the only consideration on the
table. Some of have said that nominees who do not spill their
guts about whatever a Senator wants to know are hiding
something from the American people. Some compare a nominee's
refusal to violate his judicial oath or abandon judicial ethics
to taking the Fifth Amendment.
These might be catchy sound bites, but they are patently
false. That notion misleads the American people about what
judges do and slanders good and honorable nominees who want to
be both responsive to Senators and protect their impartiality
and independence.
Nominees may not be able to answer questions that seek
hints, forecasts or previews about how they would rule on
particular issues. Some Senators consult with law professors to
ask these questions a dozen different ways, but we all know
that is what they seek.
In 1993, President Clinton's Supreme Court nominee, Judge
Ruth Bader Ginsburg, explained better than I can why nominees
cannot answer such questions no matter how they are framed. She
said, ``A judge sworn to decided impartially can offer no
forecasts, no hints, for that would show not only disregard for
the specifics of the particular case, it would display disdain
for the entire judicial process.''
Nominees may not be able to answer questions asking them to
opine or speculate about hypotheticals outside of an actual
case with concrete issues and real facts. Since 1792, as long
as the Judiciary itself has existed, the Supreme Court has held
that judges do not have the authority to render such advisory
opinions. We should not be surprised then when nominees decline
to provide what judges themselves may not provide. So the first
fact that should guide us here is that, no matter how badly
Senators want to know things, judicial nominees are limited in
what they may discuss. That limitation is real, and it comes
from the very nature of what judges do.
The second fact is that nominees themselves must determine
where to draw the line. Judges, not Senators, take the oath of
judicial office. Judges, not Senators, are bound by the canons
of judicial ethics. Judge Roberts will be a Federal judge for
many years to come. This process will only determine which
courtroom he will occupy. He must determine how best to honor
his judicial obligations. Different nominees may draw this line
a little differently, but they draw the same kind of line
protecting their judicial impartiality and independence.
Justice Stephen Breyer drew that line in 1994. As he put
it, clients and lawyers must understand that judges are really
open-minded. Justice Anthony Kennedy drew that line in 1987. He
said that the public expects that a judge will be confirmed
because of his temperament and character, not his position on
the issues.
Recently one of our colleagues on this Committee dismissed
as a myth the idea that Justice Ginsburg refused to discuss
things related to how she would rule. Anyone watching C-SPAN's
recent replays of Justice Ginsburg knows that this is not a
myth, it is a reality.
I was on this Committee in 1993. Justice Ginsburg was not
telling mythological tales when she refused nearly 60 times to
answer questions, including mine, that she believed would
violate what she said was her rule of ``no hints, no forecasts,
no previews.'' Those were her words, not mine. Justice Ginsburg
did what every Supreme Court nominee has done, she drew the
line she believed was necessary to protect her impartiality and
independence.
Finally, the third fact that should guide us is that the
Senate traditionally has respected the nominee's judgment about
where to draw the line. In response to some of my questions,
Justice Ginsburg said, ``I must draw the line at that point and
hope you will respect what I have tried to tell you.'' Did I
wish she had drawn the line differently? Of course. But I
respected her decision. This is the historical standard.
In 1967, our colleague, Senator Kennedy, a former Chairman
of this Committee, made the same point at a press conference
supporting the Supreme Court nomination of Thurgood Marshall.
Senator Kennedy said, ``We have to respect that any nominee to
the Supreme Court would have to defer any comments on any
matters which are either before the Court or very likely to
appear before the Court.'' This has been a procedure which has
been followed in the past and is one which I think is based
upon sound, legal precedent.
Justice Marshall drew his line, yet we confirmed him by a
vote of 69-11. Justice Sandra Day O'Connor drew her line, yet
we confirmed her by a vote of 99-0. Justice Kennedy drew his
line, yet we confirmed him by a vote of 97-0. Justice Ginsburg
drew her line, yet we confirmed her by a vote of 96-3. Justice
Breyer drew his line, yet we confirmed by a vote of 87-9.
We must use a judicial rather than a political standard to
evaluate Judge Roberts's fitness for the Supreme Court. That
standard must be based upon the fundamental principle that
judges interpret and apply, but do not make the law.
Judge Roberts, as every Supreme Court nominee has done in
the past, you must decide how best to honor your commitment to
judicial impartiality and independence. You must decide when
that obligation is more important than what Senators, including
this one, might want to know. As the Senate has done in the
past, I believe we should honor your decision and make our own.
Judge Roberts, you have a tremendously complex and
important and honorable record, from law school through the
various positions in Government that you held, to the judge on
the U.S. Circuit Court of Appeals for the District of Columbia
to now. We have a great deal of respect for you. We expect you
to make a great Justice, and I just want to congratulate you on
your nomination.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Hatch.
I know Senator Warner is with us, one of the introducers,
and, of course, he is welcome to stay. But the timing, we will
move to him at about 3:20, approximately.
Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you very much, Mr. Chairman.
Judge Roberts, I join in welcoming you and your family to
this Committee and to this famous room--the site of so many
historic hearings.
Today, our Nation's flags are at half mast to honor the
memory of Chief Justice Rehnquist and his deep dedication to
his beloved Supreme Court. We know that Judge Roberts was
especially close to him, and our thoughts and prayers go to the
Rehnquist family and all who knew him.
As we are all aware, the Senate's action on this nomination
is profoundly important. It is a defining opportunity to
consider the values that make our Nation strong and just, and
how to implement them more effectively, especially the guiding
principle of more than two centuries of our history--that we
are all created equal.
Our commitment to this founding principle is especially
relevant today. Americans are united as rarely before in
compassion and generosity for our fellow citizens whose lives
have been devastated by Hurricane Katrina.
That massive tragedy also taught us another lesson. The
powerful winds and floodwaters of Katrina tore away the mask
that has hidden from public view the many Americans who are
left out and left behind. As one Nation under God, we cannot
continue to ignore the injustice, the inequality, and the gross
disparities that exist in our society.
Across the years, we have experienced times of great
turmoil and great triumph as each succeeding generation
struggled to live up to our founding principle and give it
meaning for everyone. Americans have shed blood, campaigned,
and marched. They have worked in countless quiet ways, as well,
to see that every one of our citizens is part of our democracy
and has an equal opportunity for a good education, a good job,
and a good life.
Today, grandparents who were denied the right to vote
expect their grandsons and granddaughters to be able to cast a
ballot without discrimination or intimidation. And our society
is better because of that progress.
Today, fathers and mothers expect their daughters to have
the same opportunities as their sons to attend college, play
sports, and earn fair pay. And our society is better because of
that progress.
Today, parents expect their disabled children to live in
hope--to receive an education that draws out their talent,
enables them to reach for their dreams like all other
Americans. And our society is better because of that progress.
Too many have sacrificed too much, worked too hard, come
too far, to turn back the clock on that progress. Americans
today expect their elected representatives to carry on the
great unfinished business of making America the land of
opportunity for all, and we expect our courts to defend our
progress as their constitutional responsibility.
The challenge today is especially difficult because of the
vast global economic changes and major new threats to our
national security, and we need the ingenuity and innovation and
commitment of every American.
Our military leaders are the first to say that highly
qualified, racially diverse Armed Forces are essential to
defend our country and the cause of freedom at home and abroad.
Every citizen counts, and we must continue to remove
barriers that hold back millions of our people. We must draw
strength from our diversity as we compete in a new world of
promise and peril.
So the central issue before us in these hearings is whether
the Supreme Court will preserve the gains of the past and
protect the rights that are indispensable to a modern, more
competitive, more equal America. Commitment to equality for all
is not only a matter of fairness and conscience. It is also our
path to sustained national strength and purpose.
We also are a Government of the people in which citizens
have a strong voice in the great issues that shape our lives.
Our system of checks and balances was drawn up in full
awareness of the principle that absolute power corrupts
absolutely and was designed to make sure that no branch of
Government becomes so powerful that it can avoid
accountability. The people have a right to know that their
Government is promoting their interests, not the special
interests, when it comes to the price of gasoline and the
safety of prescription drugs, the air we breathe and the water
we drink, and the food and other products we buy. The people
have a right to keep Government from intruding into their
private lives and most personal decisions.
But the tragedy of Katrina shows in the starkest terms why
every American needs an effective national Government that will
step in to meet urgent needs that individual States and
communities cannot meet on their own.
Above all, the people and their Congress must have a voice
in decisions that determine the safety of our country and the
integrity of our individual rights. We expect Supreme Court
Justices to uphold those rights and the rule of law in times of
both war and peace.
All this--and more--will be before the Supreme Court in the
years ahead, and its judgments will affect the direction and
character of our country for generations to come.
Judge Roberts, you are an intelligent, well-educated, and
serious man. You have vast legal experience and you are
considered to be one of the finest legal advocates in America.
These qualities are surely important qualifications for a
potential Supreme Court Justice. But they do not end the
inquiry or our responsibility. This Committee and the full
Senate must also determine whether you have demonstrated a
commitment to the constitutional principles that have been so
vital in advancing fairness, decency, and equal opportunity in
our society.
We have only one chance to get it right, and a solemn
obligation to do so. If you are confirmed, you could serve on
the Court for a generation or more, and the decisions you make
as a Justice will have a direct impact on the lives of our
children, our grandchildren, and our great-grandchildren.
Because of the special importance of an appointment like
yours, the Founders called for shared power between the
President and the Senate. The Senate was not intended to be a
rubber stamp for a President's nominees to the Supreme Court--
and, as George Washington himself found out, it has not been.
Judges are appointed ``by and with the advice and consent
of the Senate,'' and it is our duty to ask questions on great
issues that matter to the American people, and to speak for
them. Judge Roberts, I hope you will respond fully and candidly
to such questions, not just to earn our approval, but to prove
to the American people that you have earned the right to a
lifetime appointment to the highest court in the land.
Unfortunately, Mr. Chairman, there are real and serious
reasons to be deeply concerned about Judge Roberts's record.
Many of his past statements and writings raise questions about
his commitment to equal opportunity and to the bipartisan
remedies we have adopted in the past. This hearing is John
Roberts's job interview with the American people. He will have
a fair chance to express his values, state his views, and
defend his record. The burden on him is especially heavy
because the Administration, at least so far, has chosen not to
allow the Senate to have access to his full record. We can only
wonder what they don't want us to know.
In particular, we need to know his views on civil rights,
voting rights, and the right to privacy--especially the removal
of existing barriers to full and fair lives for women,
minorities, and the disabled.
From the start, America was summoned to be a shining city
on a hill. But each generation must keep building that city.
Even in this new century, some Americans are still denied a
voice at the ballot box because of their color, denied a
promotion because of their gender, denied a job because of
their age, denied hope because they are gay, or denied an
appropriate education because they are disabled. Long-
established rights to privacy are under heavy siege.
We need a Chief Justice who believes in the promise of
America and the guarantees of our Constitution, a person who
will enter that majestic building near here and genuinely
believe the four inspiring words inscribed in marble above the
entrance: ``Equal Justice Under Law.''
I look forward to hearing from Judge Roberts about whether,
if he joins the Supreme Court, he will uphold the progress we
have made and will guarantee that all Americans have their
rightful place in the Nation's future.
Thank you, Mr. Chairman.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Kennedy.
Senator Grassley?
STATEMENT OF HON. CHUCK GRASSLEY, A U.S. SENATOR FROM THE STATE
OF IOWA
Senator Grassley. Judge Roberts, I welcome you and
congratulate you on your nomination. I think it is fitting that
you have been nominated to replace a mentor of yours, Chief
Justice Rehnquist. You obviously have a tough act to follow,
and that is because Chief Justice Rehnquist was a great Supreme
Court Justice. He believed in the strict application of the law
and the Constitution and was a consistent voice for judicial
restraint. And we will all miss his leadership.
Judge Roberts, we had a good personal meeting in my office
a little over a month ago, and based on our discussions and
what I have reviewed, you appear to be extremely well
qualified. At our meeting, I was encouraged by your respect for
the limited role of the courts as an institution in our
democratic society. I look forward to asking more questions
about your record and qualifications, as well as your judicial
approach. I also look forward to asking you about what you
think are priorities for the Federal judiciary, as you now lead
that branch.
Of course, as we reflect on the enormous build-up to this
day and the packed hearing room filled with media lights and
cameras, it is worth recalling the fact that judicial nominees
never appeared before the Senate until 1925. Ever since then,
for the most part, the hearings were not public spectacles. In
1962, for example, when Byron White was nominated to the
Supreme Court by President Kennedy, the hearing before the
Judiciary Committee lasted all of 15 minutes and eight
questions. And it seems to me that the Senate sure got it right
within Justice White. And Justice White went on to serve then
for a generation.
Of course, all this was before we had televised hearings,
which has encouraged ratcheting up the rhetoric to play to
various constituencies. Furthermore, Judge Roberts, you are the
first nominee of the Internet age, with millions of eyes
scrutinizing thousands of downloaded pages of writing, not to
mention the hundreds of website blogs characterizing the
documents that have been produced in an accurate or, more
likely, inaccurate way, and opinion on every record that you
have been involved with, and doing it by the minute.
So to some extent, there is no turning back from what we
have created here, and you just happen to be the latest victim
of such scrutiny.
During the Ginsburg nomination, Senator Biden, then
Chairman of the Judiciary Committee, urged that we not treat
these hearings, in Senator Biden's words, as ``make-or-break
trials'' of ``dramatic importance.'' And I sure agree with what
he said then.
Rather, the hearing provides a unique opportunity for us to
ensure that each person appointed to the Federal bench will be
a true judge and not some sort of super-legislator. The courts
should not be made up of seats designated conservative,
liberal, moderate. Rather, we have a responsibility to fill the
Federal bench with individuals who will faithfully interpret
the laws and the Constitution, individuals who will withhold
any personal, political, or ideological tendencies from their
decisionmaking process. And this is even more important when we
are confirming you now to the Supreme Court as opposed to when
we confirmed you to the circuit court.
There are a number of qualities that I look for in a
Supreme Court nominee. I believe that the nominee should be
someone who knows he or she is not appointed to impose his or
her views of what is right or wrong. As Chief Justice Marshall
said over 200 years ago, the duty of the judge is to say what
the law ``is,'' not what it ``ought to be.'' Moreover, the
nominee should be someone who not only understands, but truly
respects the equal roles and responsibilities of the different
branches of Government and the role of our States in the
Federal system. If we confirm a nominee who is all of this,
none of us--on the political right or the political left--will
be disappointed, because it will mean in the end that the
people, through their elected representatives, will be in
charge. On the other hand, if we confirm individuals who are
bent on assigning to themselves the power to ``fix society's
problems'' as they see fit, a bare majority of these nine
unelected and unaccountable men and women will usurp the power
of the people--hijacking democracy to serve their own political
prejudices. We do not want to go down that road, and we should
not go down that road.
Why is it, then, so important to have Supreme Court
Justices practice judicial restraint? Because that means the
policy choices of the democratically elected branches of
Government will only be overturned if and when there is a clear
warrant to do so in the Constitution itself. We want Supreme
Court Justices to exercise judicial restraint so that cases
will be decided solely on the law and the principles set forth
in the Constitution, and not upon an individual Justice's
personal philosophical views or preferences. Felix Frankfurter
identified this as the highest example of judicial duty. A
fundamental principle of our country is that the majority has a
legitimate right to govern. This approach hardly means that the
courts are less energetic in protecting individual rights. But
the words of the Constitution constrain judges every bit as
much as they control legislators, executives, and our citizens.
Otherwise, we are no longer a Nation of laws, but a Nation of
politicians dressed in judges' robes.
During my tenure in the Senate, I have participated in a
number of these Supreme Court nomination hearings, and I
believe it is nine to date. I am hopeful that we will see a
dignified confirmation process that will not degenerate into
what we saw during the Bork and Thomas hearings. Rather, we
need to see the same level of civility as we saw during the
O'Connor, Ginsburg, and Breyer hearings.
Moreover, I am hoping that we will not see a badgering of
the nominee about how he will rule on specific cases and
possible issues that will or may come before the Court. That
has not been the practice, as you know, in the past. And let me
remind my colleagues that Justices Ginsburg and Breyer refused
to answer questions on how they would rule on cases during
their confirmation hearings. The fact is that no Senator has a
right to insist on his or her own issue-by-issue philosophy or
seek commitments from nominees on specific litmus-test
questions likely to come before that Court. To do so is to give
in to the liberal interest groups that only want judges who
will do their political bidding from the bench, regardless of
what is required by the law and the Constitution. The result is
then a loss of independence for the Supreme Court and a
lessening of our Government's checks and balances.
Some have suggested that since you have been nominated now
to be Chief Justice, you deserve even more scrutiny than before
when you were just nominated for Associate. Some are saying
that we should prolong the hearings and turn over even more
stones than we have already turned over thus far. Well, the
Chief Justice has been described as ``first among equals.'' The
plain truth is that there really isn't anything substantively
different in your role, and your vote will count just the same
as other Justices of the Court. So my own questioning and
analysis of your qualifications will not really be much
different from your previous appointment.
But it is true that the Chief Justice has additional duties
as the head of the Federal judiciary. The Chief Justice has to
be someone who has a good management style, who can run the
trains on time, and who can foster collegiality on the Court.
So, Judge Roberts, I think that since you have appeared before
the Court 39 times to argue cases on appeal, and that the
current Justices know and respect you, that bodes very well in
terms of your smoothly transitioning into the Court, into the
new role now of Chief Justice.
I congratulate you.
[The prepared statement of Senator Grassley appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Grassley.
Senator Biden?
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Thank you, Mr. Chairman.
Judge Roberts, welcome. Mrs. Roberts, welcome to you. I
might note at the outset I have never heard of or seen a
Federal judge who was not independent. It is amazing what that
life tenure does. So I do not think you have any worry, Judge,
about having to cash in your independence. It has never
occurred in my memory or in my study.
And, Judge, I want to point out to my friends that it is
true judges did not come before the Committee in the past, but
in the past you needed unanimous consent of the entire Senate
to get before the Senate. So, you know, there are some good
things and some bad things that have changed.
Judge, as you know, there is a genuine intellectual debate
going on in our country today over whether the Constitution is
going to continue to expand the protections of the right to
privacy, continue to empower the Federal Government to protect
the powerless. And it is a big debate. All you have got to do
is turn to any website--American Enterprise Institute, left,
right, center. It is a gigantic debate. It has not occurred, as
you and I both know, and my colleagues know, in the last 70
years. It has not been this contentious--not just the politics
but the debate, the intellectual debate.
For 70 years, there has been a consensus, Judge, on our
Supreme Court on these issues of privacy and protecting the
powerless, and this consensus has been fully embraced, in my
view, by the American people. But there are those who strongly
disagree with the consensus, as is their right, and they seek
to unravel the consensus. And, Judge, you are in the unenviable
position, as we talked about in my office, of being right in
the middle of this fundamentally important debate. And, quite
frankly, Judge, we need to know on which side of that divide
you stand, for whoever replaces Justice Rehnquist, as well as
Justice O'Connor, will play a pivotal role in this debate. And
for tens of millions of the American people, this is no
academic exercise, for the position you will take in this
debate will affect their lives in very real and personal ways
for at least, God willing, the next three decades. And there is
nothing they can do about it after this moment.
Judge, I believe in, as our Supreme Court's first great
Chief, who has been mentioned here today, Justice Marshall,
said in 1819, and I quote: ``A Constitution intended to endure
for ages to come, and consequently, to be adapted to the
various crises of human affairs.'' That is the Constitution I
believe in, and that is the way I think we should look at the
Constitution.
At its core, the Constitution envisions ever-increasing
protections for human liberty and dignity for all its citizens,
and a national Government empowered to deal with these
unanticipated crises. Judge, herein lies, in my view, the crux
of the intellectual debate I referred to at the outset, whether
we will have an ever-increasing protection for human dignity
and human liberty, or whether those protections will be
diminished, as suggested by many in their reading of the
Constitution that says there are no unenumerated rights. That
is a very narrow reading of the Constitution.
In 1925, the Constitution preserved the rights of parents
to determine how to educate their kids, striking down a law
that required children to attend public school. In 1965, the
Constitution told the State to get out of married couples'
bedrooms, by striking down a State law prohibiting married
couples from using contraception. In 1967, the Constitution
defended the right of a black woman to marry a white man. In
1977, the Constitution stopped a city from making it a crime
for a grandmother to live with her grandchildren.
And, fortunately, even when the Supreme Court at first took
the Constitution away from the promise and hope of our
Constitution's ennobling phrases, in the end it has kept the
faith. In 1873, for example, the Court said States could forbid
women from being lawyers. It took 100 years to undo this
terrible mistake, but the Court eventually got it right. In
1896, the Supreme Court said separate but equal is lawful. It
took 58 years for the Supreme Court to outlaw racial
segregation, throwing the doctrine into the dust bin of
history, but it got it right. In the early 1900s, the Court
rendered the Federal Government powerless to outlaw child
labor, to protect workers. It took until 1937 for the Supreme
Court to see the error of its ways, but it finally got it
right.
In every step we have had to struggle against those who saw
the Constitution as frozen in time, Judge, but time and again
we have overcome, and the Constitution has remained relevant
and dynamic, thanks to the proper interpretation, in my view,
of the ennobling phrases, purposely placed in what I refer to
as our civic bible, the Constitution.
Once again, when it should be even more obvious to all
Americans, we need increased protections for liberty as we look
around the world and we see thousands of people persecuted
because of their faith, women unable to show their faces in
public, children maimed and killed for no other reason than
they were born into the wrong tribe. Once again, when it should
be obvious we need a more energetic national Government to deal
with the challenges of the new millennium, terrorism, the
spread of weapons of mass destruction, pandemic disease, and
religious intolerance, and once again our journey of progress
is under attack, and it is coming from, in my view, the right.
There are judges, scholars and opinion leaders who belong
to this group of people who are good, honorable and patriotic
Americans. They believe the Constitution provides no protection
against Government intrusion into highly personal decisions
like the Schiavo case, decisions about birth, about marriage,
about family, about religion. There are those who would slash
the power of our national Government, fragmenting it among the
States in a new reading of the Tenth and Eleventh Amendments.
Incredibly, some even argue, as you well know--people will not
believe this--but some are arguing today, in the Constitution-
in-Exile group, who argue that the national Government has no
power to deal with what is going on in the Gulf at this moment.
Judge, I do not believe individuals could for very long
have accomplished what we did had we read our Constitution in
such a narrow way.
Like the Founders, I believe our Constitution is as big and
as grand and as great as its people. Our constitutional journey
did not stop with women being barred from being lawyers, with
10-year-olds working in coal mines, or with black kids forced
into different schools than white kids, just because in the
Constitution nowhere does it mention sex discrimination, child
labor, segregation. It does not mention it. Our constitutional
journey did not stop then, and it must not stop now, Judge.
We will be faced with equally consequential decisions in
the 21st century. Can a microscopic tag be implanted in a
person's body to track his every movement? There is actual
discussion about that. You will rule on that, mark my words,
before your tenure is over. Can brain scans be used to
determine whether a person is inclined toward criminality or
violent behavior? You will rule on that.
And, Judge, I need to know whether you will be a Justice
who believes that the constitutional journey must continue to
speak to these consequential decisions, or that we have gone
far enough in protecting against Government intrusion into our
autonomy, into the most personal decisions we make. Judge, that
is why this is a critical moment.
There are elected officials in this Government, such as Mr.
DeLay, a fine, honorable, patriotic man, and others, who have
been unsuccessful in implementing their agenda in the elected
branches, so they have now poured their energies--as the left
would--they have now poured their energy and resources into
trying to change the Court's view of the Constitution, and now
they have a once-in-a-lifetime opportunity, the filling of two
Supreme Court vacancies, one of which is the Chief, and the
other is for Associate Justice, the first time that has
happened in 75 years.
Judge, I believe with every fiber of my being that their
view of the Constitution and where the country should be taken
would be a disaster for our people. Like most Americans, I
believe the Constitution recognizes a general right to privacy.
I believe a woman's right to be nationally and vigorously
protected exists. I believe that the Federal Government must
act as a shield to protect the powerless against the economic
interests of this country. And I believe the Federal Government
should stamp out discrimination wherever it occurs, and I
believe the Constitution inspires and empowers us to achieve
these great goals.
Judge, if I look only at what you have said and written, as
used to happen in the past, I would have to vote no. You
dismissed the constitutional protection to privacy as ``a so-
called right.'' You derided agencies like the Securities and
Exchange Commission that combat corporate misconduct, as
``constitutional anomalies.'' And you dismissed gender
discrimination as ``merely a perceived problem.'' This is your
charge, Judge, to explain what you meant by what you have said
and what you have written. That is what I said when I was
Chairman. That is what this is about.
The Constitution provides for one democratic moment, Judge,
one democratic moment before a lifetime of judicial
independence. This is that moment, when the people of the
United States are entitled to know as much as they can about
the person we are entrusting with safeguarding our future and
the future of our children and grandchildren. Judge, as you
know, and we talked about it, this is that moment, and this is
what this hearing is about.
I thank you.
[The prepared statement of Senator Biden appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Biden.
Senator Kyl.
STATEMENT OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF
ARIZONA
Senator Kyl. Thank you, Mr. Chairman.
Before discussing Judge Roberts's nomination, I would like
to take a moment to express my respect and admiration for the
Justice whom he will be replacing on the Supreme Court, William
Rehnquist, who began his career as a lawyer in Phoenix. In
1994, until last year, he made an annual return to Arizona to
teach a course of Supreme Court history at my alma mater, the
University of Arizona.
Chief Justice Rehnquist provided steady leadership at the
Supreme Court through several turbulent decades, showing in the
process how much of a difference one person with great
integrity can make. We mourn his loss.
In spite of the fact that he is not from Arizona, Judge
Roberts clearly is eminently qualified to serve as Chief
Justice of the United States Supreme Court. Enough has already
been said about his credentials, that I will not catalog them
here. Rather, the principal matter that I would like to address
today is the proper scope of this Committee's questioning of
the nominee. With all due respect to my colleagues, a seat on
the Supreme Court is not a political, let alone a legislative
office, and not every question that a Senator might think of is
legitimate.
This Committee's precedents, the rules of judicial ethics,
and a sound respect for the unique role of the Federal
Judiciary in our society, all counsel in favor of some basic
limits on the types of questions that a Senator should ask of a
judicial nominee. One is not qualified for the Court by virtue
of his position on issues, but rather, by his ability to judge
fairly.
Most importantly, it is not appropriate for a Senator to
demand a nominee's views on issues that are likely to come
before the Court. This standard was reiterated 4 years ago by
the late Lloyd Cutler, White House Counsel to former Democratic
Presidents Carter and Clinton. In a hearing before this
Committee on the subject of the Senate's role in evaluating
judicial nominees, Mr. Cutler stated quite clearly what the
proper limits are, and I quote: ``We viewers must refrain from
asking candidates for particular pre-commitments about
unresolved cases or issues that may come before them as
judges.'' And he continued, ``The ultimate question is simply
whether or not potential candidates have the qualities of
integrity, good judgment and experience to become judicial
officers of the United States. It would be a tragic development
if ideology became an increasingly important consideration in
the future. To make ideology an issue in the confirmation
process is to suggest that the legal process is and should be a
political one. That is not only wrong as a matter of political
science, it also serves to weaken public confidence in the
courts.''
Just imagine, Mr. Chairman, expecting litigants to appear
before a court knowing in advance what the ruling will be.
Limits on the questioning of judicial nominees are
reflected even in the questionnaire that this Committee submits
to nominees. Question 27(b) of the Committee's questionnaire
makes clear that it is unacceptable for anyone involved in the
process of selecting the nominee to seek assurances about his
positions on cases, questions or issues that might come before
him as a judge.
Let me quote the question. ``Has anyone involved in the
process of selecting you as a judicial nominee, including but
not limited to any member of the White House staff, the Justice
Department, or the Senate or its staff, discussed with you any
specific case, legal issue or question in a manner that could
reasonably be interpreted as seeking any express or implied
assurances concerning your position on such case, issue or
question? ''
Judge Roberts answered in the negative to that question,
and I think it would be ironic indeed if the Committee were now
to demand that the nominee take stands on questions that may
come before him as a member of the Court.
As Senator Hatch noted earlier, the confirmation hearings
of the two most recent nominees, Justices Ginsburg and Breyer,
confirmed this same principle. Those hearings were held under
the chairmanship of our colleague, Senator Biden, who presided
at the time. One of the comments that he made at the time of
Justice Ginsburg's hearing was, and I quote: ``You not only
have a right to choose what you will answer and not answer, but
in my view, you should not answer a question of what your view
will be on an issue that clearly is going to come before the
Court.''
Not only would it violate this Committee's standards and
procedures for a nominee to answer questions about issues that
may come before him as a judge, it would also be unethical for
the nominee to answer such questions. Some have argued that
nominees cannot talk about cases, but that they can still talk
about issues. Well, the Code of Judicial Ethics draws no such
distinctions. The American Bar Association Model Code of
Judicial Conduct dictates, and I quote, ``that a judge or
candidate for election or appointment to judicial office, shall
not, with respect to cases, controversies or issues that are
likely to come before the Court, make pledges, promises of
commitments that are inconsistent with the impartial
performance of the judicative duties of the office.''
The import of this ethical rule is unambiguous. If a
nominee is asked to commit himself to a particular stance on an
issue that is likely to come before him as a judge, that
nominee is obligated to decline to answer the question. Any
other approach would violate the Code of Judicial Conduct.
Judge Roberts, I expect you to adhere to the Code of
Judicial Ethics, and I want you to know that I will defend your
refusal to answer any question that you believe is improper
under those circumstances.
I would also like to emphasize that the standards for
questioning that apply in this Committee are not simply quaint
relics of the past to be abandoned at no cost to the future.
Rather, these rules are fundamental to preserving the nature
and role of an independent Judiciary. A judicial nominations
process that required candidates to make a series of specific
commitments in order to navigate the maze of Senate
confirmation, would undermine the very concept of a fair and
independent Judiciary. Constitutional law would become a mere
extension of politics, but in a less accountable and less
democratic arena.
If the Supreme Court operated this way, if it simply
enforced political commitments made during the confirmation
process, why would we give the power of judicial review, the
power to strike down laws made by other more accountable and
democratic branches of the Government? Granting this kind of
power to the Supreme Court, the power to override democratic
majorities, makes sense only if what the Court is deciding is
applying and upholding the rule of law and our Constitution.
When the Court adheres to that neutral and unbiased role,
rather than making policy like the other branches, it is
enforcing principles that the people themselves have deemed so
important that they should be installed in the constitutional
firmament, and placed above the reach of transient majorities
or the political compromises reached by elected
representatives.
The Court's legitimate authority derives not from
commitments made during confirmation, but from its obligations
embodied in the Constitution. I raise this matter not to
suggest that all questions about a nominee's understanding of
the law are improper. Indeed, I think that an examination of
the Court's role, and the source of legitimacy of its
authority, reinforces the importance of inquiring into a
nominee's judicial philosophy, of determining whether he is
devoted to upholding and enforcing the laws and the
Constitution as they were adopted by the people.
Our proper role this week is to determine whether Judge
Roberts has the character, the legal ability and the judicial
philosophy to fulfill that responsibility.
Chairman Specter. Thank you very much, Senator Kyl.
Now, Senator Kohl.
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Thank you, Mr. Chairman.
Judge Roberts, let me also extend my welcome to you this
afternoon and to your family. Judge Roberts, if confirmed you
will succeed Justice Rehnquist and serve as only the 17th Chief
Justice in the history of the United States, and the youngest
in 200 years. You are nominated to a position of awesome power
and responsibility. The decisions you and the other Justices
make will shape the lives of every person in America for
generations.
Yet for only a few days this week will the people, through
their Senators, be able to question and to judge you. That
means that we on this Committee who will be questioning you
have an awesome power and responsibility as well.
Judge Roberts, our democracy, our rights and everything we
hold dear about America are built on the foundation of our
Constitution. That remarkable document has endured throughout
our history. In the hands of the Supreme Court, the
Constitution has established a right to equal education
regardless of race, has guaranteed an attorney and a fair trial
to all Americans, rich and poor alike. It has allowed women to
keep private medical decisions private. It has allowed
Americans to speak, vote and worship without interference from
their Government.
You will lead the Court in its most solemn duty to
interpret the Constitution and the rights it grants to all
Americans. The Court has the last say in what will be the scope
of our rights and the breadth of our freedoms. The Court even
has power over which constitutional questions it will hear and
which cases the Court will decide. That is why the Supreme
Court is so vital to our lives, and who decides these issues,
Judge Roberts, is therefore of unsurpassed importance.
Moreover, you will enjoy even greater authority as Chief
Justice of the United States than your fellow Associate
Justices. You will not only lead an entire branch of our
Government if you are confirmed, but also you will have a less
evident but an even more important power because it will be
your sole responsibility to determine which Justices write
which opinions when you are in the majority. Who writes the
opinion governs the principle the case stands for, and whether
the precedent it sets is broad and important or narrow and less
consequential.
If you are confirmed for this lifetime position, your
decisions and those of your colleagues will be the final word
on the rights and freedoms of all Americans for decades to
come. You will have no constraints on the decisions you reach,
other than your understanding of the Constitution and your
heart. That is why it is so essential that we, the democratic
representatives in a democratic country, take this week to
probe that understanding and that heart.
This process of lifetime tenure is unique in our system of
Government. The President, Senators and Governors make
decisions every day. Our choices and our opinions are
transparent to the public, and every few years we are
accountable for the decisions we make and the votes we cast. If
the people do not like our votes or disagree with our record,
then they vote for someone else and we are gone. Just as we
want and need to know much more about you, we presume that you
want the country to know a lot more about what is in your mind
and in your heart. People in high places of public trust in
this country have a responsibility to share their thoughts
about important issues like civil rights, privacy, property
rights, separation of church and state, civil liberties, and
much more.
We hope you understand the need to be totally forthcoming
in your answers to questions on these issues. Evasions,
avoidance and hiding behind legal jargon simply will not
suffice.
So the panel will ask you about some of the most important
issues that you will face should you be confirmed, for example,
the right to privacy. In early writings you questioned this
freedom, calling it a ``so-called right to privacy.'' So we
expect you to discuss with us your current thinking on this
basic question.
This past term the Court decided a ground-breaking case
concerning the Government's power of eminent domain. The
Supreme Court held that the Government may take private land
not only for public use, but also for private development.
Public opinion is opposed to this outcome, and so we look
forward to hearing your views on this important issue.
The Supreme Court's decisions may be most important when
they address the breadth of our civil rights. Some people think
that your early writings were cavalier and dismissing many
civil rights protections. For example, you were active in
efforts to narrowly define voting rights protections, and your
narrow interpretation of Congressional power to address civil
rights and other important issues while a judge on the D.C.
Circuit does give us some pause.
The American people deserve to know how you will approach
cases involving voting rights, gender discrimination, violence
against women, and affirmative action, among many others.
Finally, some speculate that if confirmed, you will seek to
weaken the separation between church and state. Your critics
point to positions you took as a Government attorney, critical
of Supreme Court decisions on prayer in school. And so we need
to hear your views about the Establishment Clause of the
Constitution as well.
Judge Roberts, if confirmed, we can expect that you will
serve 25 to 30 years as Chief Justice of the United States. You
will likely become the most influential Justice of your
generation. During these decades you will help shape the nature
of our country and our democracy. It will be your job to give
life and meaning to the broad and lofty promises of the
Constitution--such essential principles as due process, equal
protection and free speech, and to stand up for the civil
rights and the liberties of the underrepresented and the
unpopular.
Before we decide whether to entrust you with this power, we
ask you to stand before the public and explain your views,
express our hopes, and expound on your approach to the bedrock
principles that guide us as a Nation.
We have an obligation to find out where you will take us
before we decide whether we want you to lead us there, and most
importantly, you have an obligation to tell us.
This would be an appropriate time to share my perspective
on how I will judge a nominee. In judging this and other
Supreme Court nominations my test has been judicial excellence.
To me judicial excellence involves four elements.
First, a nominee must possess the competence, character and
temperament to serve on the Supreme Court. He or she must have
a keen understanding of the law and the ability to explain it
in ways that the American people will understand.
Second, judicial excellence means that a Supreme Court
Justice must have a sense of the values which form the core of
our political and economic system. We have a right to require
the nominee to understand and respect our constitutional
values.
Third, judicial excellence requires a sense of compassion.
The law is more than an intellectual game, and more than a
mental exercise. As Justice Black said, ``The Court stands
against any winds that blow as havens of refuge for those who
might otherwise suffer because they are helpless, weak,
outnumbered or because they are nonconforming victims of
prejudice and public excitement.''
A Supreme Court Justice must understand this. He or she
must recognize that real people with real problems are affected
by the decisions rendered by the Court. They must have a
connection with and an understanding of the problems that
people struggle with on a daily basis. Justice, after all, must
be blind, but it should not be deaf.
And finally, judicial excellence requires candor before
confirmation. We are being asked to give the nominee enormous
power, so we want to know how he or she will exercise this
power, and how they see the world, and we need and we deserve
to know what is in your mind and in your heart.
Judge Roberts, I am convinced that you satisfy the
requirements of competence, character and temperament. I
enjoyed meeting you a few weeks ago and appreciated our
discussion. Your legal talents are undeniably impressive. Yet,
while we are now familiar with your abilities, we still know
precious little about your philosophies and views on crucial
issues that you will face on the Supreme Court in the years
ahead.
We look forward to these hearings as an opportunity to
learn more and measure whether you meet our test of judicial
excellence.
[The prepared statement of Senator Kohl appears as a
submission for the record.]
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Kohl.
Senator DeWine.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, thank you very much.
Judge Roberts, I congratulate you on your nomination,
applaud you on your extraordinary legal career, and welcome you
and your wife, Jane, and your children Jack and Josie to our
hearing. Over the next several days we will be spending a lot
of time together, you and the 18 Members of this Committee and
the American people.
This is the time really for a national conversation, a
conversation about the document that binds us all together as a
Nation and as a people. That document of course is our
Constitution. For more than 215 years we have been having an
extended conversation about the meaning of our Constitution.
Sometimes the conversation has been civil, sometimes it has
been passionate, and sometimes, tragically, it has been
violent.
The New Deal and the court battles that were fought about
the scope of the Federal Government's power to combat the Great
Depression was really a debate about the meaning of the
Constitution. The civil rights movement and the vigorous and
often violent resistance to the efforts to bring about equality
for all Americans, was and remains a debate about the meaning
of our Constitution. The Civil War, the most violent and
bloodiest time in our history, was really a war about the
meaning of our Constitution.
We have seen a President resign, elections decided, and
popular laws overturned all because of our Constitution. But
our Constitution is more than just a symbol of our Nation's
history. It is also a light for the rest of the world. As a
Nation we were among the first to sit down and draft a document
that quite literally constitutes our Government, but we were
not the last. Since our Founders embraced the idea of a written
Constitution, others have followed suit. In fact, after the
fall of the Soviet regime, we witnessed an explosion of
constitution writing in Eastern Europe. There are now more than
170 written constitutions in the world, more than half of which
have been drafted just in the last 30 years. To paraphrase
Thomas Paine, the cause of America truly is indeed the cause of
all mankind.
That is why our gathering today is so significant. We are
charged with providing our advice and consent on the
President's nominee to the Supreme Court. Our job is important.
But if confirmed, Judge Roberts, your job, your job will be
even more important. It would be your job, as the 17th Chief
Justice of the United States, to correctly construe that
Constitution, to preserve the balance of power sewn into it,
and to protect those rights and values that are so much a part
of our history and our tradition.
Former Chief Justice John Marshall once warned that, and I
quote, ``People made the Constitution, and people can unmake
it.'' It will be your job, in other words, to ensure that our
Constitution is never unmade.
As of late, however, many Americans believe that the
Supreme Court is unmaking the very Constitution that our
Founders drafted. Many Americans are concerned when they see
the Court strike down laws protecting the aged, the disabled
and women who are the victims of violence. Many Americans worry
when they see the Court permit the taking of private property
for economic development. Many are troubled when they see the
Court cite international law in its decisions, and many fear
that our Court is making policy when it repeatedly strikes down
laws passed by elected members of Congress and elected members
of State legislatures.
I must tell you, Judge, I too am concerned. Judges are not
members of Congress. They are not elected. They are not members
of State legislatures. They are not Governors. They are not
Presidents. Their job is not to pass laws, implement
regulations, nor to make policy. Perhaps no one said this
better than Justice Byron White. During his confirmation
hearing in 1962, White was asked to explain the role of the
Supreme Court in our constitutional form of Government.
Nowadays, in response to this type question, we probably would
hear some grand theories about the meaning of the Constitution
and its history.
Justice White, however, said nothing of the kind. When he
was asked about the role of the Supreme Court in our system of
Government, he gave a simple answer. Justice White said the
role of the United States Supreme Court was simply to decide
cases.
To decide cases. So simple. It sounds too obvious to be
true, but, you know, I think that is the right answer. Judges
need to restrict themselves to the proper resolution of the
case before them. They need to avoid the temptation to set
broad policy. And they need to pay proper deference to the role
of the Executive, the Congress, and the States, while closely
guarding the language of the Constitution.
We would do well to keep this example in mind. The
Constitution does not give us all the answers. It does,
however, create the perfect process for solving our problems.
The Congress and the President have a role in this process, the
States have theirs, and when there are disputes, the courts are
there to decide cases.
There is a reason that judges need to take on this limited
role. As my esteemed colleague from Iowa, Senator Grassley,
explained during Justice Souter's confirmation hearing, a judge
should not be--and I quote--``pro this and anti that. He should
rather be a judge of cases, not causes.''
Judge Roberts, causes come and go, but cases do not. In
years or decades, one cause may fade, another will merge. But
judges will remain deciding cases and interpreting our
Constitution. Our next Chief Justice is not merely for today.
He is a Chief Justice for the future, a future that will
present constitutional issues that are now simply unknown.
The career of Chief Justice Rehnquist certainly proves this
point. When he joined the Court in 1972, there was no Internet,
no need to protect our children from the proliferation of
online pornography; and at the time, there was no war on
terror, no presidential order to detain terrorists as enemy
combatants, and no terrorist prison at Guantanamo Bay. But yet,
Chief Justice Rehnquist dealt with all of these issues while on
the Court.
When faced with new and unexpected issues, a Justice is
left only with the tools that every good judge must use: the
facts of the case, the language of the Constitution, and the
weight of precedent. This is a simple, unlimited approach to
deciding cases, the kind of approach that Justice White would
have understood and, I believe, that our Founders would have
admired.
While preparing for this hearing, I came across a statement
from a sitting Federal judge that I think neatly sums up this
philosophy. ``Deciding cases,'' this judge said--and I quote--
``requires an essential humility grounded in the properly
limited role of an undemocratic judiciary in a democratic
republic, a humility reflected in doctrines of deference to
legislative policy judgments and embodied in the often
misunderstood term `judicial restraint.' ''
Judge Roberts, as you know, those words are yours. And in
my opinion, they are very wise words indeed. You, sir, have the
talent, experience, and humility to be an outstanding member of
the United States Supreme Court. And I expect that these
hearings will show that you have the appropriate philosophy to
lead our Nation into the future as the 17th Chief Justice of
the United States.
I thank the chair.
[The prepared statement of Senator DeWine appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator DeWine.
Senator Feinstein?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman.
Good afternoon, Judge Roberts and Mrs. Roberts and the
Roberts family. This must be a moment of enormous pride for
you. I hope that, despite the toughness of this hearing, you
really realize that this family member of yours is taking over
not just the position of an Associate Justice, but the Chief
Justice of the United States, at a time of unique division and
polarization in this country. And so many of us are going to be
pressing him to see if he has what we think it takes to do
this.
And Fred Thompson, welcome back. I hope you miss us just a
little bit from time to time. Somehow I am not quite sure that
is the case.
[Laughter.]
Senator Feinstein. Judge Roberts, thank you very much. We
spent a very interesting hour together. I came away from it
feeling that you are certainly brilliant, talented, and well-
qualified. I do not think there is a question about that. But
as we take a look at you, 50 years old, to be Chief Justice of
the United States, I think it is really essential for us to try
to determine whether you can be the kind of leader that can
generate consensus, find compromise, and, above all, really
embody the mainstream of American legal thinking. For me, the
most important thing is to see that the Chief Justice really
cares about the fact that justice is provided to all Americans.
It has been said here before, but it is really important--young
and old, rich and poor, powerful and weak, all races, creeds,
colors, et cetera.
This is going to be a big session. The Court is going to
consider some very critical cases among many others: The
standard of review for abortion cases, the health of the
mother; the constitutionality of an Oregon law which permits
physician-assisted suicide for terminally ill but legally
competent individuals; and whether two oil industry leaders and
competitors can be allowed to work together to fix the price of
gas once they have entered into a joint venture. In addition,
the rights of enemy combatants, the so-called partial-birth
abortion law, whether Congress has the authority to protect our
Nation's environment through legislation. The Endangered
Species Act is winding its way through the appellate courts. It
looks like they differ, and if the courts keep going the way
they are going, many of us feel that they will take away from
the Congress the grounds on which we base legislation in the
environment. This is an enormous macro-question that you are
going to be right in the middle of as a pivotal force.
Chief Justice Rehnquist, I believe, will be remembered not
only for his distinguished tenure, which it certainly was, but
also for applying a much more restrictive interpretation of the
Constitution, which has limited the role of Congress. In recent
years, the Court has adopted a politically conservative
States'-rights view of several constitutional provisions. As a
result, congressional authority to enact important legislation
has been significantly curtailed. This has occurred through its
restrictive interpretation of the Spending Clause, the Commerce
Clause, the 14th Amendment, the 11th Amendment, all of which
Congress uses to enact certain laws.
Based on these federalism grounds, the Court has wiped out
all, or key parts, of legislation addressing issues such as
gun-free schools--should schools be allowed to prohibit guns
within 1,000 feet; religious freedom; overtime protections; age
discrimination; violence against women; and discrimination
against people with disabilities. In fact, over the past
decade, the Rehnquist Court has weakened or invalidated more
than three dozen Federal statutes. Almost a third of these
decisions were based on the Commerce Clause and the 14th
Amendment. If you, Judge Roberts, subscribe to the Rehnquist
Court's restrictive interpretation of Congress's ability to
legislate, the impact could be enormous. It would severely
restrict the ability of a Congress to tackle nationwide issues
that the American people have actually elected us to address.
Now, as the only woman on this Committee, I believe I have
an additional role in evaluating nominees for the Supreme
Court, and that is to see if the hard-earned autonomy of women
is protected. Like any population, women enjoy diverse
opinions, beliefs, political affiliations, priorities, and
values. And we share a history of having to fight for many of
the rights and opportunities that young American women now take
so much for granted. I think they do not really recall that
during the early years of the United States, women actually had
very few rights and privileges. In most States, women were not
allowed to enter into contracts, to act as executor of an
estate; they had limited inheritance and child-custody rights.
It actually was not until 1839 that a woman could own property
separate from her husband, when Mississippi passed the Married
Woman's Property Act.
It was not until the 19th century that women began working
outside their homes in large numbers. Most often, women were
employed as teachers or nurses and in textile mills and garment
shops. As women entered into the workforce, we had to fight our
way into nontraditional fields--medicine, law, business, and
yes, even politics.
The American Medical Association was founded in 1846, but
it barred women for 69 years from membership, until 1915. The
American Bar Association was founded in 1876, but it barred
women and did not admit them until 1918. That is 42 years
later. And it was not until 1920 when, after a very hard fight,
women won the right to vote--not even 100 years ago.
By virtue of our accomplishments and our history, women
have a perspective, I think, that has been recognized as unique
and valuable. With the retirement of Justice Sandra Day
O'Connor, the Court loses the important perspective she brought
as a woman and the deciding vote in a number of critical cases.
For me--and I said this to you privately, and I will say
more about it in my time on questions--one of the most
important issues that needs to be addressed by you is the
constitutional right to privacy. I am concerned by a trend on
the Court to limit this right and thereby to curtail the
autonomy that we have fought for and achieved--in this case,
over just simply controlling our own reproductive system,
rather than having some politicians do it for us. It would be
very difficult--and I said this to you privately and I have
said it publicly--for me to vote to confirm someone who I knew
would overturn Roe v. Wade because I remember--and many of the
young women here do not--what it was like when abortion was
illegal in America.
As a college student at Stanford, I watched the passing of
the plate to collect money so a young woman could go to Tijuana
for a back-alley abortion. I knew a young woman who killed
herself because she was pregnant. And in the 1960s, then, as a
member of the California Women's Board of Terms and Parole,
when California had what was called the Indeterminate
Sentencing Law, I actually sentenced women who committed
abortions to prison terms. I saw the morbidity, I saw the
injuries they caused. And I do not want to go back to those
days.
How the Court decides future cases could determine whether
both the beginning-of-life and the end-of-life decisions remain
private or whether individuals could be subject to Government
intrusion or perhaps the risk of prison.
And I will be looking to understand your views on the
constitutional provision for providing for the separation of
church and state. Once again, history. For centuries,
individuals have been persecuted for their religious beliefs.
During the Roman Empire, the Middle Ages, the Reformation, and
even today, millions of innocent people have been killed or
tortured because of their religion.
A week ago, I was walking up the Danube River in Budapest
when I saw on the shore 60 pair of shoes covered in copper--
women's shoes, men's shoes, small, tiny children's shoes. They
lined the bank of the river.
My time is already up? May I just finish this one
paragraph?
Chairman Specter. Yes.
Senator Feinstein. During World War II, it turned out that
Hungarian Fascists and Nazi soldiers forced thousands of Jews,
including men, women, and children, to remove their shoes
before shooting them and letting their bodies float down the
Danube. These shoes represent a powerful symbol of how religion
has been used in catastrophic ways historically.
The rest of my comments we will have to wait for.
Thank you very much, Mr. Chairman.
[The prepared statement of Senator Feinstein appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Feinstein.
Senator Sessions?
STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE
OF ALABAMA
Senator Sessions. Thank you, Mr. Chairman. And Judge
Roberts, recalling the words of former Senator Alan Simpson
when Justice Scalia was here, welcome to the pit.
[Laughter.]
Senator Sessions. Congratulations on your nomination to be
our Nation's 17th Chief Justice. You are one of our Nation's
premier lawyers. Some have called you the finest appellate
lawyer of your generation. You have won the respect of your
colleagues, adversaries, and judges for your integrity,
professionalism, and legal skill. And I salute President Bush
for choosing you for this important position.
But as you have already seen, our confirmation process is
not a pretty sight. Time and again you will have your legal
positions, your predecisional memoranda, even as a young
lawyer, distorted or taken out of context. These attacks are
driven most often by outside groups. They will dig through the
many complex cases you have dealt with in an effort to
criticize your record. They will produce on cue the most dire
warnings that civil liberties in America will be lost forever
if you are confirmed as a Federal judge. It is really a form
attack sheet. All they have to do is place your name in the
blank space. These tactics, I think, are unfair and sometimes
have been dishonest.
My advice to you is this: Keep your famous good humor, take
your time, and explain the procedural posture of the cases and
exactly how you ruled as a judge or the position you took as a
lawyer. Americans know these matters are complex and they will
appreciate your answers.
The American commitment to the rule of law is one of our
most exceptional characteristics as a people. It is the
foundation of our liberties and our productive economic system,
it is a product of centuries of development. In his magnificent
speech in March of 1775 in the House of Commons urging King
George not to go to war against the Colonies, Edmund Burke
described America's commitment to the rule of law by saying,
``In no country perhaps in the world is the law so general a
study,'' adding, ``I hear they may have sold as many of
Blackstone's Commentaries on the Law in America as in
England.''
But activism by a growing number of judges threatens our
judiciary. And frankly, that is what I am hearing as I talk to
my constituents and hear from the American people. Activism is
when a judge allows his personal views on a policy issue to
infect his judgments. Activist rulings are not based on
statutes or the Constitution, but reflect whatever a judge may
think is decent or public policy.
This should not be. But even some members of our body have
encouraged this thinking. Indeed, Judge Roberts, one Senator in
recent weeks, the man did not know whose side you are on before
he voted. His statement provides a direct glance, I think, into
the philosophy of activism. When we have an activist judiciary,
the personal views of a judge become everything. Who the judge
is and whose side the judge is on, not the law and the facts,
will determine the outcome of a case. Since judges hold their
offices for as long as they live or choose to serve, and are
unaccountable to the citizenry, activist rulings strike at the
heart of democracy. Five members of the Court may effectively
become a continuing constitutional convention on important
questions such as taking of private property, the definition of
marriage, the Pledge of Allegiance, or a moment of silence
before a school day.
If a Congress acts wrongly, new members may be elected and
a result changed by a simple majority. A Supreme Court decision
founded on the Constitution can be changed by the people only
by constitutional amendment, which requires a two-thirds vote
of both houses and three-fourths of the State legislatures.
This result-driven philosophy of activism does not respect
law. It is a post-modern philosophy that elevates outcomes over
law. Today many believe the law does not have an inherent moral
power and that words do not have and cannot have fixed
meanings. Judges are thus encouraged to liberally interpret the
words to reach the result the judge believes is correct.
Activist Supreme Court judges have done this in recent years by
saying they are interpreting the plain words of the
Constitution in light of evolving standards of decency. This
phrase has actually formed the legal basis for a number of
recent decisions. But as a legal test, it utterly fails because
the words can mean whatever a judge wants them to mean. It is
not objective, cannot be consistently followed, and is thus by
definition not law, but a license.
Such vague standards provide the Court a license to
legislate, a power the Constitution did not provide judges.
Indeed, recently this license has led some judges to conclude
they may look beyond American standards of decency to the
standards of foreign nations in an attempt to justify their
decisions. The arrogant nature of this concept is further
revealed by a Supreme Court ruling in 2003, when the Supreme
Court explicitly declared that the Constitution prohibits the
elected representatives of the people--us--from relying on
established morality as a basis for the laws they pass. The
Court thus declares itself free to, in effect, amend the
Constitution by redefining its words to impose whatever it
decides is evolving standards of decency. Yet at the same time,
it prohibits legislatures from enacting laws based on objective
standards of morality.
While these unprincipled decisions are becoming too
frequent, I do not want to suggest that such is the common
practice in courts in America. Having practiced full-time in
Federal court for 14 years, I witnessed this first-hand. Day
after day, if the law and facts were on my side, I would win
consistently. If they were not, I would lose. This was true
regardless of whether a judge was a Democrat, a Republican, a
liberal, or a conservative. Certainly our Founders were so
adamant that judges be unbiased and committed to the law that
they drafted a Constitution that gave them a lifetime appoint
and provided that Congress could not even reduce their pay.
My fear today is that many have come to believe that to
expect objectivity in judges is hopelessly naive. Liberals and
conservatives openly make this point. On one committee, one
that Senator Kyl quoted Lloyd Cutler as testifying at, we
focused on the question of whether or not ideology could be a
factor in a judge's rulings and that we should in effect admit
that people have political views and that those political views
will infect their rulings and therefore we should openly talk
about that. A writer in the conservative National Review
complained that Republicans are hurting the conservative cause
by insisting on ``abiding by those outdated norms,'' in effect
suggesting conservatives should get their guys in there to
promote their ideas.
While many advocates on the left and right would like a
Court that promotes their agenda, I do not want that and
neither do the American people. What we must have, what our
legal system demands, is a fair and unbiased umpire, one who
calls the game according to the existing rules and does so
competently and honestly every day. This is the American ideal
of law. Ideals are important because they form the goals to
which we all strive. We must never abandon our ideal of
unbiased judges, judges who rule fairly without regard to
politics.
Two important bipartisan commissions, the Miller Center of
Public Affairs at the University of Virginia, and the Citizens
for Independent Courts, have issued reports that deplore any
policies that would tend to politicize the courts. These
hearings, therefore, provide this Nation an excellent
opportunity to discuss these important concepts. Our Nation
cries out for judges who love the law and who work every day to
uphold its moral authority. The people rightly demand judges
who follow, not make, law.
From everything I have seen and from what I have read,
Judge Roberts, you are just the man to fill that need. Straight
from central casting. We unanimously confirmed you 2 years ago
to the Court of Appeals. I am confident that after this
exhaustive process you will be confirmed to the august position
of Chief Justice of the United States Supreme Court.
I look forward to participating in the hearing with you and
congratulate you on being nominated to the position.
Chairman Specter. Thank you very much, Senator Sessions.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Mr. Chairman, thank you, and, Judge
Roberts, welcome. Welcome to you and your entire family.
First, I want to say, Mr. Chairman, how much I appreciate
the evenhanded way that you and Senator Leahy have approached
the preparations for the hearing.
Judge Roberts, I also want to thank you in advance for the
long hours you will put in with us this week. I wish you well,
and I truly do admire your record and your impressive career.
This is a confirmation proceeding, however, not a
coronation. It is the Senate Judiciary Committee's job to ask
tough questions. We are tasked by the Senate with getting a
complete picture of your qualifications, your temperament, and
how you will carry out your duties. Obviously, nominees to the
Supreme Court must be subject to the highest level of scrutiny,
and so as the nominee to be the Chief Justice of the United
States, you will be subject to the ultimate level of scrutiny.
Our colleagues in the Senate and the citizens of this country
are entitled to a hearing that will actually help them decide
whether you should be confirmed. And I am sure you understand
that.
This is a lifetime appointment to preside over the Supreme
Court and lead the entire Federal judiciary. You are obviously
very talented, and you also look healthy. So I am sure--
[Laughter.]
Senator Feingold. I am sure you appreciate the importance
of this hearing for the future of our country.
Some have called for a dignified process. So have I. But at
times, it sounds like what some really want for the nominee is
an easy process. That is not what the Constitution or the
traditions of the Senate call for. If by dignified they mean
that tough and probing questions are out of bounds, I must
strongly disagree. It is not undignified to ask questions that
press the nominee for his views on the important areas of the
law that the Supreme Court confronts. It is not undignified to
review and explore the nominee's writings, his past statements,
the briefs he has filed, the memos he has written. It is not
undignified to ask the nominee questions he would rather not
answer should he prefer to remain inscrutable or, worse yet,
all things to all people.
This process is not a game. It is not a political contest.
It is one of the most important things that the Senate does--
confirm or reject nominees to the highest court in the land--
and we as Senators must take that responsibility very
seriously.
The most recent nine Justices of the Supreme Court served
together almost as long as any other Court in history, more
than 11 years. Because the Court has been so stable for so
long, and Chief Justice Rehnquist presided over it for 19
years, Members of Congress and lawyers and the public have come
to know the views of the Justices pretty well. Many Court
watchers have become pretty good at predicting the outcome of
cases. That predictability is about to be tested because we
will now have a new Chief Justice and because a member of the
Court who was the deciding vote in many cases has also
announced her retirement.
I do not think, however, that the public is required to
wait until a new Chief Justice is seated on the Court to get
some idea of how that new Chief Justice thinks, how that new
Chief Justice will approach controversial issues that might
come before the Court, and how that new Chief Justice also
might run the Court. This hearing is our only opportunity to
hear from this nominee how he would approach the important
issues facing the Court.
In fact, I was struck as I was preparing for this hearing
by remarks written years ago by Senator Grassley, my friend and
colleague from Iowa and a senior member of this Committee, in
the Committee Report on the nomination of Justice O'Connor. The
current nomination to the position of Chief Justice makes his
remarks even more apt. Senator Grassley said the following: ``I
do not agree that commenting on past Supreme Court decisions is
a commitment to hold a certain way on future cases, and I feel
that in order that we as Senators fulfill our duty, it is
incumbent upon us to discover a nominee's judicial philosophy.
In that we had a very limited number of judicial opinions
rendered by Judge O'Connor on constitutional questions, it was
my hope,'' Senator Grassley said, ``by asking specific
questions regarding past Supreme Court decisions, that the
Committee might obtain a clearer understanding of her
philosophy. My purpose was to satisfy my questions regarding
Judge O'Connor's record in that I felt it was less complete
than many other Supreme Court nominees who have had extensive
experience either on the Federal bench or in leadership
positions in the profession of law.''
In some ways, Mr. Chairman, the record of our current
nominee to the Court raises similar questions. He has a long
record as a lawyer, but he has been on the Federal bench for
only 2 years, and we have little in the way of his own writings
on the issues before the Court to evaluate.
So, like Senator Grassley, I am interested in this
nominee's views on a number of cases. I don't think that
getting his reaction to those decisions will commit him to vote
a certain way in a future case. After all, it is not that past
case he will be deciding, but a different one. Even the current
Justices, whose views on specific cases are well known, since
they either wrote or joined one opinion or another, do not have
to recuse themselves from a future case just because we know
what they think of a crucial precedent in that case.
So I am looking for Judge Roberts to be forthcoming with
this Committee about his views. So, to show the Senate's role
in this process the respect it deserves, he should make every
effort to be responsive.
Chief Justice Rehnquist himself acknowledged the importance
of the Senate's role when he wrote the following in his last
annual report on the Federal judiciary: ``Our Constitution has
struck a balance between judicial independence and
accountability, giving individual judges secure tenure but
making the Federal judiciary subject ultimately to the popular
will because judges are appointed and confirmed by elected
officials.''
Now, that suggests to me that it is not only permissible,
but critical, that the Senate seek to learn as much as it can
about the views of nominees and that nominees be as forthcoming
as they possibly can be without compromising their
independence.
Now, we do have a mountain of material from the nominee's
early years as a lawyer in the Justice Department and White
House Counsel's office of the Reagan Administration. In memo
after memo, his writing was highly ideological and sometimes
dismissive of the views of others. I do, however, recognize
that this is a different time, and he has been nominated to
play a different kind of role than he played in those early
Reagan years.
So, frankly, I will be looking for a somewhat different
John Roberts than the John Roberts of 1985. As I have a chance
to ask questions about topics such as executive power, civil
liberties, voting rights, the death penalty, and other
important issues, I hope to see how his views have developed
and changed over the years. Of course, the best evidence of
this would be some more recent writings of the nominee. But the
administration has steadfastly refused a reasonable request for
documents pertaining to a small fraction of the cases in which
he participated as Deputy Solicitor General during the
administration of President George H.W. Bush. I find this
refusal very troubling in light of the ample precedent for
releasing such documents in this kind of proceeding and the
weakness of any claim that the release would damage the
litigating position of the United States over 12 years later.
I also must say, candidly, the refusal gives rise to a
reasonable inference that the administration has something to
hide here. The administration has done this nominee no service
by maintaining its intransigent position.
Mr. Chairman, it goes without saying that the Supreme Court
is one of the most important institutions in our constitutional
system and that the position of Chief Justice of the United
States is one of the most important positions in our
Government. The impact of this nominee on our country, should
he be confirmed, will be enormous. That means our scrutiny of
this nominee must be intense and thorough. In my view, we must
evaluate not only his qualifications but also his ability to
keep an open mind, his sensitivity to the concerns of all
Americans and their right to equal protection under the laws,
not only his intellectual capacity but his judgment and wisdom,
not only his achievements but his fairness and his courage to
stand up to the other branches of Government when they infringe
on the rights and liberties of our citizens.
Judge Roberts, I look forward to the opportunity to
question you, and I thank you, Mr. Chairman, again for the
opportunity to speak today.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Feingold.
We will take a 15-minute break, and Senator Graham will be
recognized for his opening statement at 2:15.
[Recess 2:00 to 2:15 p.m.]
Chairman Specter. We will resume our opening statements.
Senator Graham, you are recognized for your opening
statement.
STATEMENT OF HON. LINDSEY O. GRAHAM, A U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Mr. Chairman. Thanks for the
seventh-inning stretch, too. We all very much appreciate it.
Judge Roberts, playing a little bit off of what my
colleague Senator Feingold said, I don't think you expect it to
be easy. And having to listen to 18 Senators proves the fact
that it is not going to be easy. But I hope that we will live
up to our end of the bargain to make it fair. And ``fair'' is
something that comes around in September in South Carolina, or
it can be an idea. The idea of treating you fairly is very
important to me because not only are you on display but the
Senate is on display. And Senator Kennedy said something that I
disagree with, but he is very passionate in his statement. He
said the central issue is whether or not you will embrace
policies, a certain set of policies or whether or not you will
roll back certain policy decisions.
I respectfully disagree with Senator Kennedy. To me, the
central issue before the Senate is whether or not the Senate
will allow President Bush to fulfill his campaign promise to
appoint a well-qualified strict constructionist to the Supreme
Court, and in this case, to appoint a Chief Justice to the
Supreme Court in the mold of Justice Rehnquist.
He has been elected President twice. He has not hidden from
the public what his view of a Supreme Court Justice should be
and the philosophy that they should embrace. In my opinion, by
picking you, he has lived up to his end of the bargain with the
American people by choosing a well-qualified strict
constructionist. You have been described as brilliant,
talented, and well qualified, and that is by Democrats. The
question is: Is that enough in 2005 to get confirmed? Maybe
not.
Professor Michael Gerhardt has written an article in 2000
called ``The Federal Appointments Process,'' and I think he has
given some advice to our Democratic friends in the past, and
maybe recently, about the confirmation process that we are
engaged in today. And he has written, ``The Constitution
establishes a presumption of confirmation that works to the
advantage of the President and his nominee.''
I agree with that. Elections matter. We are not here to
debate how to solve all of the Nation's problems. We are not
here to talk about liberal philosophy versus conservative
philosophy and what is best for the country. We are here to
talk about you and whether or not you are qualified to sit on
the Supreme Court, whether or not you have the intellect, the
integrity, and the character. And it has been said in the past
by members of this Committee--Senator Kennedy, and I believe is
recognized by most Senators--that we are not charged with the
responsibility of approving Justices if their views always
coincide with our own. We are really interested in knowing
whether the nominee has the background, experience,
qualifications, temperament, and integrity to handle the most
sensitive, important, and responsible job, and that is, being
on the Supreme Court.
If you are looking for consistency, you have probably come
to the wrong place, because the truth of the matter is that we
are all involved in the electoral process ourselves, and we
have different agendas. Your memos are going to be talked
about. The memos you wrote while you were working for President
Reagan and Bush I in my opinion reflect a conservative lawyer
advising a conservative President about conservative policies.
And to some, those policies make no sense. Those policies are
out of the mainstream. But this hearing is about whether or not
you are qualified and whether or not Reagan conservativism is
in the mainstream.
Does affirmative action require quotas? From a
conservative's point of view, no. From a conservative point of
view, we do not want Federal judges setting the value of
someone's wages from the bench. And you wrote about that. Now,
some people want that, but conservatives do not.
Environmental policies. We want a clean environment. We do
not want to ruin the economy in the process. We want to be able
to build levees to protect cities. Conservatives have a
different view of a lot of issues versus our friends on the
other side. The election determines how that shakes out.
We are here to determine whether or not you and all you
have done in your life makes you a fitting candidate to be on
the Supreme Court. Before we got here, the Senate was in
disarray. May 23rd of this year, I engaged in a compromise
agreement with seven Democrats and seven Republicans to keep
the Senate from blowing itself up. You are the first nomination
that we have dealt with in any significant manner after that
agreement. There is plenty of blame to go around, Judge
Roberts. On our watch, I am sure we did things in Committee
that were very unfair to Democratic nominees, particularly by
President Clinton. And at the time of that agreement, there
were ten people being filibustered for the first time in the
history of the Senate in a partisan manner that were going to
be on the court of appeals.
We were in chaos. We were at each other's throats. And
since May 23rd, we have done better. The Senate has gotten back
to a more traditional role when it comes to judges, and as
Senator Specter described the Committee, we have done some good
things here on this Committee and in the Senate as a whole.
I hope we will take the chance to start over because the
public approval of the Senate now is in the 30s. And that is
not your fault, Judge Roberts. It is our fault. We have an
opportunity as Senators to show that we can disagree based on
philosophy but give you a fair shake. The question is whether
we will rise to the occasion. I am hopeful we will based on the
statements being made.
What is the standard for a Senator to confirm a Supreme
Court nominee? Whatever the Senator wants it to be. And,
really, that is the way it should be. But there should be some
goals, in my opinion. The way we conduct ourselves, one of the
goals we should have is to make sure we don't run good people
away from wanting to be a judge. I do not know what it is like
to sit at home and turn on the television and watch a
commercial about you in the presence of your wife and your kids
that say some pretty unflattering things about you. That is
just not a problem you have faced. I am sure Democratic
nominees have faced the same type problem.
We should not in our standard, trying to come up with a
standard, invalidate elections. The President won. The
President told us what he is going to do, and he did it. He
picked a strict constructionist to be on the Supreme Court. If
anybody is surprised, they were not listening to the last
campaign.
Roe v. Wade--it divides America. If you believe in polling,
most Americans would like to see the decision stand, even
though we are divided 50/50 on the idea of abortion on demand.
My good friend from California has expressed a view about Roe
v. Wade, which I completely understand and respect. I can just
tell you, Judge Roberts, there are plenty of women in South
Carolina who have an opposite view about abortion.
If we were to base our votes on that one principle, Justice
Ginsburg would not be Justice Ginsburg. In her writings, she
embraced the idea of Federal funding for abortion. She
indicated that an abortion right was based on the Equal
Protection Clause of the Constitution. I dare say that 90
percent of the Republican Caucus is pro-life. I dare say that
90 percent of the Democratic Caucus is pro-choice. Justice
Ginsburg got 96 votes, even though she expressed a view of the
Federal Government's role in abortion that I completely
disagree with, and I think most conservatives disagree with.
There was a time not too long ago, Judge Roberts, where it
was about the way you lived your life, how you conducted
yourself, what kind of lawyer you were, what kind of man or
woman you were, not whether you had an allegiance to a specific
case or a particular cause. Let's get back to those days. Let's
get back to the days where the Ginsburgs and the Scalias can be
pushed and pressed, but they can be honored for their
commitment to the law and the way they lived their life. Let's
get back to the good old days where we understood that what we
were looking for was well-qualified people to sit on the
highest Court of the land, not political clones of our own
philosophy.
The reason I signed the agreement more than anything else
was that I love the law. The role of the law in our society is
so important. You take out the rule of law and you do not have
a democracy. The law, Judge Roberts, to me represents a quiet
place in American discourse. Politics is a loud, noisy, and
destructive place. But the courtroom is a quiet place where the
weak can challenge the strong and the unpopular can be heard. I
know you will honor the rule of law in our country and that you
will be a judge that we all can be proud of.
God bless you and your family.
Chairman Specter. Thank you very much, Senator Graham.
Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. And, Judge
Roberts, welcome to you and Mrs. Roberts, your parents, your
family, your two beautiful children. I join my colleagues in
congratulating you on your nomination to the position of Chief
Justice of the United States. Now, this is indisputably the
rarest opportunity in American Government. In the entire
history of the Republic, we have had but 16 Chief Justices. But
the responsibility is as great as the opportunity is rare.
The decisions of the Supreme Court have a fundamental
impact on people's lives, and the influence of a Chief Justice
far outlasts that of a President. As the youngest nominee to
the High Court's top seat in 204 years, you have the potential
to wield more influence over the lives of the citizens of this
country than any jurist in history. I cannot think of a more
awesome responsibility--awesome not in the way my teenage
daughter would use the word, but in the Biblical sense of the
angels trembling in the presence of God.
But before you can assume that responsibility, we Senators,
on behalf of the people, have to exercise our own
responsibility. Fundamental to that responsibility is our
obligation to ascertain your legal philosophy and judicial
ideology. To me, the pivotal question which will determine my
vote is this: Are you within the mainstream, albeit the
conservative mainstream, or are you an ideologue who will seek
to use the Court to impose your views upon us as certain
judges, past and present, on the left and on the right, have
attempted to do?
The American people need to learn a lot more about you
before they and we can answer that question. You are without
question an impressive, accomplished, and brilliant lawyer. You
are a decent and honorable man. You have a remarkable resume.
There are those who say your outstanding and accomplished
resume should be enough, that you should simply promise to be
fair and that we should confirm. I disagree. To me, the most
important function of these hearings, because it is the most
important qualification for a nominee to the Supreme Court, is
to understand your legal philosophy and judicial ideology. This
is especially true now that judges are largely nominated
through an ideological prism by a President who has admitted he
wants to appoint Justices in the mold of Scalia and Thomas. To
those who say ideology does not matter, they should take their
quarrel to President Bush.
I began to argue that consideration of a nominee's judicial
ideology was crucial 4 years ago. Then I was almost alone.
Today, there is a growing and gathering consensus on the left
and on the right that these questions are legitimate,
important, and awfully crucial. Therefore, I and others, on
both sides of the aisle, will ask you about your views.
Here is what the American people need to know beyond your
resume. They need to know who you are and how you think. They
need to assess not only the sharpness of your mind but the
fullness of your heart. They need to believe that an
overachiever can identify with an underdog who has nothing but
the Constitution on his side. They need to understand that your
first-class education and your advantaged life will not blind
you to the plight of those who need help and who rely on the
protections of the Constitution, which is every one of us at
one point or another. They need to be confident that your claim
of judicial modesty is more than easy rhetoric, that your
praise of legal stability is more than lip service. They need
to know above all that if you take the stewardship of the High
Court, you will not steer it so far out of the mainstream that
it founders in the shallow waters of extremist ideology.
As far as your own views go, however, we only have
scratched the surface. In a sense, we have seen maybe 10
percent of you, just the visible tip of the iceberg, not the 90
percent that is still submerged. And we all know that it is the
ice beneath the surface that can sink the ship.
For this reason, it is our obligation to ask and your
obligation to answer questions about your judicial philosophy
and legal ideology. If you cannot answer these questions, how
are we to determine whether you are in the mainstream? A simple
resume, no matter how distinguished, cannot answer that
question. So for me, the first criterion upon which I will base
my vote is whether you will answer questions fully and
forthrightly. We do not want to trick you, badger you, or play
a game of ``gotcha.'' That is why I met with you privately
three times, and that is why I gave you a list of questions in
advance of these hearings. It is not enough to say you will be
fair. If that were enough, we would have no need for a hearing.
I have no doubt you believe you will be a fair judge. I have no
doubt that Justice Scalia thinks he is a fair judge and that
Justice Ginsburg thinks she is a fair judge. But in case after
case, they rule differently. They approach the Constitution
differently, and they affect the lives of 280 million Americans
differently. That is so, even though both Scalia and Ginsburg
believe that they are fair.
You should be prepared to explain your views of the First
Amendment and civil rights and environmental rights, religious
liberty, privacy, workers' rights, women's rights, and a host
of other issues relevant to the most powerful lifetime post in
the Nation.
Now, having established that ideology and judicial
philosophy are important, what is the best way to go about
questioning on these subjects? The best way, I believe, is
through understanding your views about particular past cases,
not future cases that haven't been decided, but past, already
decided cases. It is not the only way, but it the best and most
straightforward way.
Some have argued that questioning a nominee about his or
her personal views of the Constitution or about decided cases
indicates prejudgment about a future case. It does nothing of
the sort. Most nominees who have come before us, including
Justice Ginsburg, whose precedent you often cite, have answered
such questions. Contrary to popular mythology, when she was a
nominee, Justice Ginsburg gave lengthy answers to scores of
questions about constitutional law and decided cases, including
individual autonomy, the First Amendment, criminal law, choice,
discrimination, and gender equality. Although there were places
she said she did not want to answer, she spoke about dozens of
Supreme Court cases and often gave her unvarnished impressions,
suggesting that some were problematic in their reasoning while
others were eloquent in their vindication of important
constitutional principles. And nominee after nominee, from
Powell to Thomas to Breyer, answered numerous questions about
decided cases, and no one ever questioned their fitness to hear
cases on issues raised during confirmation hearings.
So I hope you will decide to answer questions about decided
cases, which so many other nominees have done. If you refuse to
talk about already decided cases, the burden, sir, is on you,
one of the most preeminent litigators in America, to figure out
a way in plain English to help us determine whether you will be
a conservative, but mainstream conservative, Chief Justice or
an ideologue.
Let me be clear. I know you are a conservative. I do not
expect your views to mirror mine. After all, President Bush won
the election, and everyone understands that he will nominate
conservatives to the Court. But while we certainly do not
expect the Court to move to the left under the President, it
should not move radically to the right.
You told me when we met that you were not an ideologue and
you share my aversion to ideologues. Yet you have been embraced
by some of the most extreme ideologues in America, like the
leader of Operation Rescue. That gives rise to a question many
are asking: What do they know about you that we do not?
Judge Roberts, if you want my vote, you need to meet two
criteria: first, you need to answers questions fully so we can
ascertain your judicial philosophy; and, second, once we have
ascertained your philosophy, it must be clear that it is in the
broad mainstream.
Judge Roberts, if you answer important questions
forthrightly and convince me you are jurist in the broad
mainstream, I will be able to vote for you, and I would like to
be able to vote for you. But if you do not, I will not be able
to vote for you.
Mr. Chairman, I have high hopes for these hearings. I want
and the American people want a dignified, respectful hearing
process, open, fair, thorough, aboveboard, one that brings not
only dignity but, even more importantly, information about
Judge Roberts's views and ideology to the American people. I,
along with all of America, look forward to hearing your
testimony.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Schumer.
Senator Cornyn?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman.
Judge Roberts, let me also join in extending a warm welcome
to you and your family for these hearings. As the 15th speaker
in the order of seniority here, I recall the adage I learned
when I first came to Washington that everything has been said,
but not everyone has said it yet. And perhaps by the time this
hearing is over this week, you will have a fuller appreciation
than you do now for that.
But, of course, you are a known quantity, so to speak, to
this Committee and to this Senate, having been confirmed by
unanimous consent just 2 short years ago. And I want to extend
a compliment to you on your judicial service. You have served
with distinction in your current capacity.
While the importance of your nomination as Chief Justice of
the United States cannot be overstated, it seems as though each
new nomination to the Court brings an element of drama,
somewhat akin to an election. Indeed, we have seen special
interest groups raising money, running television
advertisements, and even trying to coerce you into stating your
opinion on hot-button issues that are likely to come before you
as a judge, as if this were an election.
But, of course, this is not an election, and no reasonable
person expects you to make promises to politicians about how
you are likely to rule on those issues when they come before
the Court as a condition of confirmation.
Still, some in our country have lost sight of the proper
role of an unelected judge where the people are sovereign and
where Government enjoys no legitimacy except by consent of the
governed. They see unelected judges primarily as policymakers
and arbiters of every pressing social issue that might arise,
with the authority to dictate to the people what they think is
good for us.
Well, this ideal of the Supreme Court as a super-
legislature to which we might turn to give us everything that
is good and stop everything that is bad is not a view that I
share, nor, for that matter, did those who wrote and ratified
the Constitution. The Constitution does not guarantee
everything that is good and prohibit everything that is bad, or
it could have been written in two sentences. Rather, it
guarantees some specific things, it prohibits some specific
things, and leaves the rest to be sorted out through the
democratic process.
Alexander Hamilton, as you know, wrote in the Federalist
Papers, which argued for ratification of the Constitution, that
the judicial branch, he predicted, would be known as the least
dangerous branch. He believed that there is no liberty if the
power of judging is not separated from the legislative and
executive powers. Its sole purpose was to interpret and apply
the laws of the land. Its role would be limited.
Regrettably, Justices have not always been faithful to this
constitutional design. All we need to do is to look at the
Supreme Court's track record to see why abdicating our right of
self-government to nine judges isolated behind a monumental
marble edifice, far removed from the life experiences of the
average American, is a bad idea.
For example, the Constitution says in part that the Federal
Government shall not prohibit the free exercise of religion or
abridge freedom of speech. Many Americans, including me, are
concerned that the Supreme Court, by erecting extra-
constitutional and contradictory judge-made standards in this
area of the law, has effectively banned voluntary religious
expression from much of our public life, turning what should be
official neutrality into a policy of official hostility.
To be sure, the Court has been zealous in protecting the
rights of those who express themselves or promote their
products using violence or sex, but voluntary expression of
one's faith, never.
Likewise, many Americans, including me, are baffled that
the Supreme Court recently saw fit to strike down the display
of the Ten Commandments in Kentucky but uphold the
constitutionality of a display in Texas, even while the Ten
Commandments itself is prominently displayed in the chambers of
the United States Supreme Court on its ceiling.
Many Americans, including me, wondered what to read into
the Court's recent dismissal of a suit seeking to deny school
children the right to recite the pledge of allegiance because
it contains the words ``One nation under God.'' A majority of
the Court refused to agree that the pledge was constitutional,
leaving this time-honored tradition of school children across
our Nation in legal limbo.
And, recently, the Court expanded the awesome power of
Government to condemn private property beyond all previous
bounds by reading the public use limitation on eminent domain
right out of the Constitution. Justice O'Connor warned, ``The
specter of condemnation now hangs over all property. Nothing is
to prevent the state from replacing any Motel 6 with a Ritz
Carlton, any home with a shopping mall, or any farm with a
factory.''
On what legitimate basis can the Supreme Court uphold State
laws on the death penalty in 1989, then strike them down in
2005, relying not on the written Constitution, which, of
course, had not changed, but on foreign laws that no American
has voted on, consented to, or may even be aware of? When in
2003 the Court decided Lawrence v. Texas, the Court overruled a
1986 decision on the constitutionality of State laws based on
the collective moral judgment of those States about permissible
sexual activity. What changed in that intervening time? Did the
Constitution change? Well, no. Did the Justices change? Yes.
But should that determine a different meaning of the
Constitution? Are some judges merely imposing their personal
preferences under the guise of constitutional interpretation?
Indeed, this was the same case, as you know, Judge Roberts,
that served as the cornerstone of the Massachusetts Supreme
Court's decision holding that State laws limiting marriage to a
man and a woman amounted to illegal discrimination.
Let me close on an issue that several Senators have already
mentioned today, and that is, your obligation to answer our
questions. Of course, I share with all of my colleagues a
desire and a curiosity, really, to know what you think about
all sorts of issues. All of us are curious. But just because we
are curious does not mean that our curiosity should be
satisfied. You have no obligation to tell us how you will rule
on any issue that might come before you if you are confirmed to
the Supreme Court.
It boils down to a question of impartiality and fairness.
One characteristic of good judges is that they keep an open
mind until they hear the facts and hear the lawyers argue the
case before them. If you pledge today to rule a certain way on
an issue, how can parties to future cases possibly feel that
they would ever have a fair day in court?
Justice Ginsburg, as we have heard already, one of the last
Supreme Court Justices confirmed by the Senate, noted not too
long ago, ``In accord with longstanding norm, every member of
the current Supreme Court declined to furnish such information.
The line each Justice drew in response to pre-confirmation
questioning is crucial to the health of the Federal
judiciary.'' And this has come to be known as ``the Ginsburg
standard,'' although it has been the norm for all nominees who
come before the Committee and before the Senate for
confirmation.
Now, I know some of the members of the Committee will ask
you questions that you cannot answer. They will try to entice
you to abandon the rules of ethics and the long tradition
described by Justice Ginsburg. But that should not concern you,
Judge Roberts. Don't take the bait. Do not head down that road,
but do exactly what every nominee of every Republican President
and every Democratic President has done: decline to answer any
question that you feel would compromise your ability to do your
job. The vast majority of the Senate, I am convinced, will not
punish you for doing so. Rather, I am convinced that the vast
majority of the Senate will respect you for this decision
because it will show you are a person of deep integrity and
independence, unwilling to trade your ethics for a confirmation
vote.
Again, let me say welcome to you again before the
Committee, and thank you for your continued willingness to
serve this great Nation.
Chairman Specter. Thank you, Senator Cornyn.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you, Mr. Chairman.
Judge Roberts, welcome to you and your family.
Congratulations on your nomination. The Committee hearing began
with the Chairman telling us that you had shared the wisdom of
47 individual Senators by visiting their office, some of them
on several different occasions, and many people believe that
that fact alone should earn you confirmation before the United
States Senate.
Twelve years ago, at the nomination hearing of Justice Ruth
Bader Ginsburg, my friend, Illinois Senator Paul Simon, said
something worth repeating. He said to the nominee, and I quote,
``You face a much harsher judge . . . than this Committee and
that is the judgment of history. And that judgment is likely to
revolve around the question: Did she restrict freedom or did
she expand it? ''
I think Senator Simon put his finger on how the United
States Senate should evaluate a nominee for a lifetime
appointment to the Federal bench.
Judge Roberts, if you are confirmed to be the first Supreme
Court Justice in the 21st century, the basic question is this:
Will you restrict the personal freedoms we enjoy as Americans,
or will you expand them?
When we met in my office many weeks ago, I gave you a
biography of a judge I admire greatly. His name was Frank
Johnson, a Federal district judge from Alabama and a lifelong
Republican. Fifty years ago, following the arrest of Rosa
Parks, Judge Johnson ruled that African-Americans in
Montgomery, Alabama, were acting within their constitutional
rights when they organized a boycott of the buses, and he later
ruled that Martin Luther King, Jr., and others could march from
Selma to Montgomery. As a result of those decisions, the Ku
Klux Klan branded Johnson the most hated man in America. Wooden
crosses were burned on his lawn. He received so many death
threats that his family was under constant Federal protection
from 1961 to 1975.
Judge Frank Johnson was denounced as a judicial activist
and threatened with impeachment. He had the courage to expand
freedom in America. Judge Roberts, I hope that you agree
America must never return to those days of discrimination and
limitations on our freedom.
Now, some of the memos you wrote--that I talked to you
about in my office--many, many years ago in the Reagan
administration have raised some serious concerns about where
you stand on civil rights and women's rights, concerns that
have led some of the most respected civil rights groups in
America to openly oppose your nomination.
So it is important for you at this hearing to answer the
questions and to tell us your views on civil rights and
equality and the role of courts in protecting these basic
freedoms. This hearing is your opportunity to clarify the
record, to explain your views. We cannot assume that time or
maturity has changed your thinking from those Reagan-era memos.
The refusal of the White House to disclose documents on 16
specific cases you worked on as Deputy Solicitor General denies
this Committee more contemporary expressions of your values.
Only your testimony before this Committee can convince us that
John Roberts of 2005 will be a truly impartial and open-minded
Chief Justice.
Concerns have also been raised about some of the things you
wrote relative to the right of privacy. We have gone through
Griswold, we know what that Supreme Court decision meant in
1965, 40 years ago, when the Court struck down the Connecticut
statute which made it a crime for married couples to buy and
use birth control. They said there was a fundamental right of
privacy in that Constitution, though you can search every word
of it and not find the word ``privacy.'' But it is far from
settled law in the minds of many. Forty years later, there have
been new efforts to restrict the right of privacy--attempts to
impose gag rules on doctors when they speak to their patients
about family planning. You saw it in the sad debate over the
tragedy of Terri Schiavo, a debate that led some members of
Congress to threaten judges who disagreed with their point of
view with impeachment. And you can find it in the eagerness to
authorize the Government to pry into our financial records,
medical records, and library records.
Whether the Court continues to recognize and protect
America's right to privacy will have a profound impact on every
American from birth to death. In your early writings, that we
have to rely on here, you referred to this right of privacy as
``an abstraction.'' We need to know if that is what you
believe.
We also need to hear your views on another basic issue, and
that is executive power. They do not teach this subject much in
law school. It is not tested on any bar exam. It has not been a
major focus in many Supreme Court hearings. Yet it is very
important today.
Some aspects of your early record when you were an attorney
for a President, suggest you might be overly deferential to the
executive branch. We need to know where you stand. Throughout
history during times of war, Presidents have tried to restrict
liberty in the name of security. The Supreme Court has always
been the guardian of our Constitution. It has usually been up
to the task, but sometimes it has failed--such as in the
notorious Korematsu decision.
We are being tested again. Will we stand by our
Constitution in this age of terrorism? That challenge will fall
especially on our Supreme Court and on you, Judge Roberts, if
you are confirmed.
We also need to know what you think about religious
liberty. Over the past few decades, the Supreme Court has
maintained a delicate yet, what I believe, proper balance
between church and state. Justice Sandra Day O'Connor said it
so well in the recent Ten Commandments decision, and I quote:
``At a time when we see around the world the violent
consequences of the assumption of religious authority by
government, Americans may count themselves fortunate: Our
regard for constitutional boundaries has protected us from
similar travails, while allowing private religious exercise to
flourish. . . . Those who would renegotiate the boundaries
between church and state must therefore answer a difficult
question: Why would we trade a system that has served us so
well for one that has served others so poorly? ''
I asked you a question when you came by to see me, which I
am not sure either one of us could answer at that moment. I
asked you who has the burden of proof at this hearing. Do you
have the burden to prove that you are a person worthy of a
lifetime appointment to the Supreme Court, or do we have the
burden to prove that President Bush was wrong in selecting you?
Your position as Supreme Court Chief Justice gives you
extraordinary power to appoint 11 judges on the FISA court,
which has the authority to issue warrants for searches and
wiretaps of American citizens, all the way to the establishment
of rules of criminal and civil procedure. No one has the right
to sit on that court. No one has the right to be Chief Justice.
But they can earn it through a hearing such as the one which we
have today.
I spoke earlier about the courage of Frank Johnson. A few
months ago, another judge of rare courage testified before this
Committee. Her name is Joan Lefkow. She is a Federal judge in
Chicago, and I was honored to recommend her. Last February, her
husband and mother were murdered in her home by a deranged man
who was angry that she had dismissed his lawsuit. In her
remarks to the Committee, Judge Lefkow said that the murders of
her family members were ``a direct result of a decision made in
the course of fulfilling our duty to do justice without fear or
favor.'' In my view, that is the only proper test for a Supreme
Court justice. Will he do justice without fear or favor? Will
he expand freedom for all Americans, as Judge Frank Johnson,
the condemned judicial activist, once did?
I congratulate you, Judge Roberts, on your nomination and
on your accomplished career. I look forward to these hearings
to give you your chance in the next several days not to rely on
20-year-old memos or innuendos and statements by those who are
not part of the hearing, but in your own words, a chance to
tell us and to tell the American people what you truly believe.
If you believe that you have the burden at this hearing to
establish why you are worthy of this, the highest-ranking
position of a judge in America, I hope that you will be
forthcoming. If you do not answer the questions, if you hold
back, if you believe, as some on the other side have suggested,
that you have no responsibility to answer these questions, I am
afraid that the results will not be as positive. I certainly
hope that they will be positive.
Thank you.
[The prepared statement of Senator Durbin appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Durbin.
I recognize now Senator Brownback, and also recognize today
is his birthday.
STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM THE STATE
OF KANSAS
Senator Brownback. Thank you very much. This is certainly a
long way to spend it. It is seeming like a long birthday. Judge
Roberts, as one of my colleagues was just saying, I hope we are
done before my birthday ends.
I welcome you to the Court, delighted to have you and your
family here. I want to congratulate you on your lifetime of
service thus far, and I look forward to future service that you
will have for this great land.
I recall the enjoyable meeting that you and I had in my
office, as many of the members here have had as well. You said
two things in our meeting that I particularly took away and
hung on to as an indicator of how you would look at the courts
and also what America needs from our courts. One of the
statements was that we need a more modest Court. And I looked
at that and I thought, that is exactly the way the American
people would look at the situation today. We need a more modest
Court--a Court that is a court, and not a super-legislature.
That looks at the Constitution as it is, not as we wish it
might be, but as it is, so that we can be a rule-of-law Nation.
You had a second point that was very apt, I thought, when
you talked about the courts and baseball. The analogy you draw,
I found very appealing. You said it is a bad thing when the
umpire is the most watched person on the field. In today's
American governance, the legislature can pass a bill, and the
Executive can sign it, but then everybody holds their breath,
waiting to see how the Court is going to look at this and how
it is going to interpret it. It seems as if the Court is the
real mover of what the actual law is. And that is a bad thing.
The umpire should call the ball fair or foul, it is in or it is
out, but not become actively involved as a player on the field.
Unfortunately, we have reached a point where, in many respects,
the judiciary is the most active policy player on the field.
I was struck by your statement when you originally were
nominated, that you had ``a profound appreciation for the role
of the Court in our constitutional democracy.'' That is
something I think we all respect and we look for in what we
need to do.
Democracy, I believe, loses its luster when Justices on the
High Court--who are unelected and not directly accountable--
invent constitutional rights and alter the balance of
governmental powers in ways that find no support in the text,
the structure, or the history of the Constitution.
Unfortunately, the Court in recent years, I believe, has gone
into that terrain.
In our system of government, the Constitution contemplates
that Federal courts will exercise limited jurisdiction. They
should neither write nor execute the laws, but simply ``say
what the law is,'' as Chief Justice Marshall said in Marbury v.
Madison. The narrow scope of judicial power was the reason the
people accepted the idea that the Federal courts could have the
power of judicial review; that is, the ability to decide
whether a challenged law comports with the Constitution. The
people believed that the courts would maintain their
independence and, at the same time, would recognize their role
by deferring to the political branches on policy choices.
Legitimacy based on judicial restraint was a concept
perhaps best expressed by Justice Felix Frankfurter, appointed
by President Franklin Delano Roosevelt. He said this: Courts
are not representative bodies. They are not designed to be a
good reflex of a democratic society. Their judgment is best
informed, and therefore most dependable, within narrow limits.
Their essential quality is detachment founded on independence.
History teaches us that the independence of the judiciary is
jeopardized when courts become embroiled in the passions of the
day and assume primary responsibility in choosing between
competing political, economic, and social pressures. Primary
responsibility for adjusting the interests which compete of
necessity belongs to the Congress.
Yet courts today have strayed far beyond this limited role.
Constitutionalists from Hamilton to Frankfurter surely would be
shocked at the broad sweep of judicial activity today. Federal
courts are redefining the meaning of marriage, deciding when a
human life is worthy of protection, running prisons and schools
by decree, removing expressions of faith from the public
square, permitting the Government, under the Takings Clause, to
confiscate property from one person and give it to another in
the name of private economic development, and then interpreting
our American Constitution on the basis of foreign and
international law.
Perhaps the Supreme Court's most notorious exercise of raw
political power came in Roe v. Wade and Doe v. Bolton, two 1973
cases based on false statements which invented a constitutional
right to abortion. The issue had been handled by the people
through their elected representatives prior to that time. Since
that decision, nearly 40 million children have been aborted in
America. Forty million lives that could be amongst us, but are
not. Beautiful innocent faces that could bless our existence,
our families, and our Nation, creating and expanding a culture
of life.
If you are confirmed, your Court will decide if there is a
constitutional right to partially deliver a late-term child and
then destroy it. Partial-birth abortion is making its way to
the Supreme Court. The Federal courts have thus far found laws
limiting partial-birth abortion unconstitutional.
Now, it should be noted again, if Roe is overturned, it
does not ban abortion in America. It merely returns the issue
to the States, so States like Kansas or California can set the
standards they see right and just. Although the principle of
stare decisis will be involved, I would note that the Supreme
Court frequently has overruled prior precedents. A case founded
in my State, Brown v. Board of Education, which overruled
Plessy v. Ferguson, fits within a broad pattern of revising
previous decisions since the founding. I would note for you
that, by some measures, the Supreme Court has overruled itself
in 174 cases, with a substantial majority of those cases
involving constitutional, not statutory, issues.
One final thought. In a just and healthy society, both
righteousness and justice travel together. Righteousness is the
knowledge of right from wrong, good from evil, and that is
something that is written on our hearts. Justice is the
application of that knowledge.
Everybody in our representative form of Government tries to
do both of these, righteousness and justice, within the
boundaries set for each of us. No one branch has unlimited
control. The Supreme Court has boundaries, too. There are
checks and balances on what it can deal with and what it can
do. For instance, the Court cannot appropriate money. That
power is specifically left to the Congress in the Constitution,
no matter how right or just the Court may view the cause.
We all are constitutional officers, sworn to uphold the
Constitution. Yet each branch has separate functions, which the
other branch can check and balance. The total system functions
best when each branch does its job but not the other's.
We have arrived at an important moment with your nomination
to serve as Chief Justice of the United States, that is quite a
title. Will you serve, as Hamilton assured the people, by
exercising judgment rather than will? My review of your many
legal writings over the past quarter-century leads me to
believe that this is the case. I hope that this instinct will
be proven correct during the days to come, that you, Judge
Roberts, will be confirmed to serve as the first Justice among
equals and that the noble legacy of the Justice that you once
served will be honored.
God bless you and your family.
Chairman Specter. Thank you, Senator Brownback.
Senator Coburn?
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Thank you, Senator. First of all, I would
like to thank you and your staff, as well as all the staff of
this Committee. While we were traveling in August, they were
laboring diligently to help prepare us for these hearings.
I also think everybody should know that Senator Brownback
is entering his fifth decade, so he can catch up with the rest
of us.
And finally, I am somewhat amused at the propensity for us
to project your life expectancy. I met with you twice, and as
the only physician on this panel and one of the few non-lawyers
on this panel, I find it somewhat amusing that we can predict
that without a history, a physical exam, or a family history.
But we will let that pass.
I am a physician, and up until the end of this month and,
hopefully, after that, I will continue to practice. This
weekend I had the great fortune of delivering two little girls.
And I have had the opportunity to talk with people from all
walks of life as a physician--those that have nothing and those
that have everything. And I believe the people in our country,
and in my State in particular, are interested and concerned
with two main issues. One is this word of judicial activism
that means such a different thing to so many different people.
And the second is the polarization that has resulted from it,
and the division that occurred in our country that separates us
and divides us at a time when we need to be together.
We each have our own definition of judicial activism.
Essentially, the Court will not become an activist court if it
adheres to its appropriate role and does not attempt to
legislate or create policy. There always will be and should
always be checks on each of the different branches of
Government. Yet look where we are today. Decades of judicial
activism have created these huge rifts in the social fabric of
our country. Whether we are on one side or the other, it is a
tension pulling us apart rather than a tension pulling us
together.
I believe we have seen Federal and State legislators'
responsibility usurped by the Court, especially to make
important decisions, and I think that is what has created a lot
of the division within our country. And I believe it is time
that that stop, and a limited role for the Supreme Court. I
think we are willing to debate as a country what judicial
activism is, but we are also wanting someone who will listen to
both sides of that and, in a measured and balanced way, knowing
what the Constitution says and the restraint that our
forefathers have written about, will take that into
consideration.
I am deeply heartened in that I have read many statements
that you have made, where you indicate a more proper role for
that of the judiciary, and I believe in our discussion, a
super-legislator body is not what the Court was intended to be.
When I ponder our country and its greatness, its
weaknesses, its potential, my heart aches for less
divisiveness, less polarization, less finger pointing, less
bitterness, less mindless partisanship, which at times sounds
almost hateful to the ear of Americans. The problems before our
country are enormous. Our family structures have declined. Our
dependency on Government has grown. The very heritage of our
country, which was born out of sacrifice by those who preceded
us is at risk. We are all Americans. We all want the greatest
future for the generations to come, protection for the innocent
and the frail, support for those less fortunate. But most of
all we want an America that will live on as a beacon of hope,
freedom, kindness and opportunity.
America is an idea. It is not competing ideologies. It is
an idea that has proven tremendously successful, and when we
reduce it to that of competing ideologies, we make it less than
what it is. I believe the genius of our Founders is that they
recognized that individual rights were derived from a creator,
not a king, not a court, not a legislature or a state. Our
Founders were concerned that if our rights derived from the
state or a court, they could be taken away by a state or a
court. Our Constitution enshrines this idea and gives its
meaning in the rule of law. That is why it is important for us
to respect the words of that Constitution.
I would hope, as we conduct these hearings over the next
few days, our tendency as politicians to be insensitive,
bitter, discourteous and political, will surrender to the
higher values that define us as a Nation. We have an
opportunity to lead by example, to restore the values and
principles that bind us together. How we conduct ourselves and
how we treat you, Judge Roberts, can be a great start towards
reconciliation in our country.
I want one America. An America that continues to be divided
is an America that is at risk. Our country waits for its
leaders at all levels to rise to the occasion of rebuilding our
future by placing our political fortunes last and
constitutional principles first, and working diligently to
reconcile each and every American to the freedom and
responsibility that our republic demands.
May God bless our efforts.
Chairman Specter. Thank you very much, Senator Coburn.
We now move to the presenters, Senator Lugar, Senator Bayh
and Senator Warner, and then the administration of the oath to
Judge Roberts, and then Judge Roberts's opening statement.
Welcome, Senator Lugar, as the senior presenter, elected in
1976, Indiana's senior Senator. We have allotted 5 minutes each
to the presenters, and Senator Lugar, you are now recognized.
PRESENTATION OF JOHN G. ROBERTS, JR., NOMINEE TO BE CHIEF
JUSTICE OF THE UNITED STATES, BY HON. RICHARD G. LUGAR, A U.S.
SENATOR FROM THE STATE OF INDIANA
Senator Lugar. Mr. Chairman, let me first ask that a copy
of my full statement appear in the Committee record.
Chairman Specter. Without objection, your full statement
will be made a part of the record.
Senator Lugar. Thank you, Mr. Chairman. It is a genuine
privilege and pleasure to appear before you, Senator Leahy, and
my other distinguished colleagues who serve on this important
Committee.
I am pleased to introduce the President's nominee to serve
as the 109th Justice of the Supreme Court and the 17th Chief
Justice of the United States, John G. Roberts, Jr.
Judge Roberts was born in Buffalo, New York, but moved at
age 8 to Indiana. The Roberts's family settled in Long Beach, a
small Hoosier community on the shores of Lake Michigan. John
attended local schools there in nearby LaPorte, and in 1973 was
graduated first in his high school class of 22, having also
excelled in numerous extracurricular activities, including co-
captaining the football team, despite his self-described status
as a slow-footed halfback.
I know Committee Members will understand my observing that
our State takes a certain pride of its own nomination by the
President to lead the Nation's highest court. Simply put, John
Roberts is a brilliant lawyer, a jurist with an extraordinary
record of accomplishments in public service. This exceptional
blend of professional and personal qualifications is especially
important now, given the further responsibilities Judge Roberts
has been called upon to assume on the passing of the Chief
Justice.
I know Judge Roberts is keenly and humbly aware of the
large shoes he has now been asked to fill, the more so since
the late Chief Justice was his own initial boss when he arrived
in Washington a quarter century ago. All Americans can be
grateful that Judge Roberts not only learned, but has lived the
lessons taught by his mentor and his role model. In my
judgment, he is extremely qualified to carry forward the
tradition of fair, principled and collegial leadership that so
distinguished the man for whom he once worked, and has now been
nominated to replace.
Under the judicial confirmation standards that prevail
throughout most of our history, my remarks could appropriately
end at this point, and the Committee and the Senate as a whole
could proceed to consider Judge Roberts's nomination in light
of his outstanding qualifications. Indeed, nominees almost
never testified in such hearings before 1955, and the last
Supreme Court Justice from Indiana, Sherman Minton, was
confirmed without controversy, despite declining even to appear
before the Committee, following his nomination by President
Truman.
I am not troubled by the fact that the Committee hearings,
including testimony by Supreme Court nominees now seems firmly
established as part of the confirmation process. These
proceedings serve a vital role in our deliberations and are a
vivid course in living history for all Americans. But it is
important we write that history well.
Today's Supreme Court regularly faces issues of enormous
public import and attendant controversy. Many are deeply
divisive with well-funded, well-organized advocacy groups
passionately committed to one or the other side, and for whom
the central exclusive focus is who wins. Media coverage and the
information age, whether on talk radio or countless cable
outlets, featuring talking heads for each side, fuels both the
controversy and the resultant tendency to see the Supreme Court
as a kind of political branch of last resort. When a Court
vacancy occurs, the confirmation process takes on the trappings
of a political campaign, replete with interest group television
ads that often reflect the same oversimplifications and
distortions that are disturbing even in campaign for offices
that are in fact political.
All of this may be understandable. It remains, in my view,
a fundamental departure from the vision of the courts and their
proper role than animated those who crafted our Constitution.
The Founders were at pains to emphasize the difference between
the political branches, the executive and legislative and the
judiciary. Their concern about the potential dangers of
passionate, interest-driven political divisions, which Madison
famously called the ``Mischiefs of Faction,'' influenced their
design of our entire governmental structure, but they were
especially concerned that such mischiefs not permeate those who
would sit on the bench. Otherwise, they warned, the
pestilential breath of faction may poison the fountains of
justice, and would stifle the voice both of law and of equity.
I believe that each of us in the Senate bears a special
responsibility to prevent that from occurring. The primary
focus of these hearings and our subsequent debate and vote on
the floor will be Judge Roberts and his qualifications. But
another focus will be whether the Senate, in discharging this
solemn advice as a consent duty conferred by the Constitution,
is faithful to the trust the Founders placed in us.
I thank you, Mr. Chairman, and all Members of the Committee
for your courtesy in allowing me to introduce Judge John G.
Roberts, Jr., a distinguished son of Indiana, who I believe
will prove to be an outstanding Chief Justice of the United
States Supreme Court.
I thank you very much.
[The prepared statement of Senator Lugar appears as a
submission for the record.]
Chairman Specter. Thank you very much, Senator Lugar.
We now turn to Senator Bayh, elected in 1998, previously
Governor of Indiana. Senator Bayh.
PRESENTATION OF JOHN G. ROBERTS, JR., NOMINEE TO BE CHIEF
JUSTICE OF THE UNITED STATES, BY HON. EVAN BAYH, A U.S. SENATOR
FROM THE STATE OF INDIANA
Senator Bayh. Thank you very much, Chairman Specter,
Senator Leahy, members of the Judiciary Committee.
There is not nearly enough civility in Washington today, so
when I was asked to uphold longstanding and bipartisan
tradition to introduce someone from my State, I did not
hesitate to accept.
I am pleased to join with my friends and our colleagues,
Dick Lugar and John Warner, to introduce to you, John Roberts.
John Roberts grew up in northwest Indiana and still has
family living in our State. He is the proud father of two
lovely children, Jack and Josie, and the husband of Jane.
At only 50, Judge Roberts has had a distinguished legal
career that would make most lawyers envious. He has argued 39
cases before our Supreme Court, and won 25 of them. Most
lawyers are lucky to argue and win one case before our Nation's
highest Court. There is no question that Judge Roberts has
achieved much through hard work and great ability to reach the
pinnacle of the legal profession.
If confirmed as Chief Justice of the Supreme Court, Judge
Roberts could serve for 30 or more years. During that time, the
Court will likely hear cases that affect every aspect of the
law and American life, from civil rights, to women's rights, to
property rights, to States' rights. I look forward to a full
and clarifying discussion of his views on these important
topics and others, because for this nominee and for anyone who
aspires to our Nation's highest Court, it is ultimately their
beliefs, even more than their biography, which determine the
result of the confirmation process.
As a fellow Hoosier, I am proud that someone from our State
would be so talented and so successful to be considered for a
position on the highest Court of our land.
Mr. Chairman, Senator Leahy, my colleagues, I am pleased to
introduce to you a fellow Hoosier, Judge John Roberts.
Chairman Specter. Thank you very much, Senator Bayh.
Senator Warner, welcome back. When you were here earlier
this morning I said you would be recognized at about 3:20. I
want to apologize for being two minutes off.
Senator Warner. It is almost, Mr. Chairman. I will take
till 3:10 to finish my statement if you yield back your time to
me.
Chairman Specter. Your full statement will be made a part
of the record, Senator Warner.
PRESENTATION OF JOHN G. ROBERTS, JR., NOMINEE TO BE CHIEF
JUSTICE OF THE UNITED STATES, BY HON. JOHN WARNER, A U.S.
SENATOR FROM THE STATE OF VIRGINIA
Senator Warner. Members of the Committee and Judge Roberts
and his family, I find this a singular privilege in my now 27
years in this institution.
Speaking of institutions, in 218 years since the
Constitution was ratified, we have had 43 Presidents and this
is the 17th Chief Justice. It seems to me that underscores the
importance of this hearing. Further, the Senate deliberations
in this hearing, followed by subsequent floor debate, provide a
unique opportunity for generations of Americans, particularly
the younger Americans, to acquaint themselves with how our
Government operates.
I am absolutely confident that this distinguished
Committee, before whom I have appeared many, many times in
these years, will comport yourselves in a manner in the finest
traditions of the Senate, and will impart in our audience
across America, particularly the younger ones, a respect for
and an understanding of the institution of the United States
Senate and its responsibilities.
The Constitution, together with the Bill of Rights, is an
amazing document, for it is the reason that our Nation's
Government stands today as the oldest continuous democratic
republic form of government in the world today. Indeed, most
all of the other bold experiments in Government have gone into
the dust bin of history. Little wonder why so many other
nations are forming their governments today, patterning their
government on ours.
But only of the President and the Senate fairly,
objectively and in a timely manner, exercise these respective
constitutional powers, can the judicial branch have the numbers
of qualified judges to properly serve the needs of our
citizens. For this reason, in my view, a Senator has no higher
duty than his or her responsibilities under Article II, Section
II.
Recently 14 Senators, of which I was one, committed
ourselves in writing to support the Senate leadership in
facilitating the Senate's responsibility of providing advice
and consent. In our memorandum of understanding, Senator Byrd
and I incorporated language that spoke directly to the Founding
Fathers' explicit use of the word ``advice.'' Without question
our framers put the word ``advice'' in the Constitution for a
reason, to ensure consultation between a President and the
Senate prior to the forwarding of a nominee to the Senate for
consideration. I commend President Bush for the exemplary
manner in which he conducted the advice and consent
responsibility.
Now, with the beginning of these hearings, the Senate
commences the next phase, the consent phase of this
constitutional process. After the Committee consideration, the
nomination will move to the full Senate for debate, followed by
a vote. Throughout this process, the ultimate question will
remain the same, whether the Senate should grant, or deny,
consent.
Now to this distinguished jurist. I judge his credentials
to be Chief Justice in the same manner as I have applied to all
others since I have been privileged to serve in this
institution. I recounted there are about over 2,000 nominations
that have come in this quarter of a century plus. I can say
without equivocation, I have never seen the credentials of any
nominee with stronger qualifications than Judge Roberts.
Some 2 years ago, when nominated to serve in the Court of
Appeals for the District of Columbia, I was privileged, at his
request, to introduce him. At the time he was relatively
unknown. Today the world knows him.
We were brought together because we were both fortunate to
have been partners at different times in our careers at the law
firm of Hogan & Hartson, a venerable firm known for its
integrity and rigid adherence to ethics. Among the firm's many
salutary credentials, it has been long known for its pro bono
work.
In fact, I will share a personal story. In 1960, I was an
Assistant U.S. Attorney--been there about 4 years. A knock came
on my door, and in walked a very tall, erect man, introducing
himself as having just been appointed to represent an indigent
defendant charged with first degree murder. We had a brief
consultation. The trial followed. Midway in the trial the
defendant pleaded guilty to a lesser offense. That man was
Nelson D. Hartson, Senior Partner and Founder of this firm.
I firmly believe that John Roberts shares in the belief
that lawyers have an ethical duty to give back to the community
by providing free legal services, particularly to those in
need. The hundreds and hundreds of hours he spent working on
pro bono cases are a testament to that. He did not have to do
any of it. The bar does not require it, but he did it out of
the graciousness of his heart and obligation.
Those who know him best can also attest to the kind of
person he is. Throughout his legal career, both in public and
private practice, in his pro bono work, Roberts has worked with
and against hundreds of lawyers. Those attorneys who know him
well typically speak with one voice when they tell you that
dignity, humility and a sense of fairness are the hallmarks of
this nominee.
In conclusion, Mr. Chairman, I take a moment to remind all
present, and those listening and following, that this exact
week 218 years ago, our Founding Fathers finished the final
draft of the U.S. Constitution, after a long hot summer of
drafting and debating. And when Ben Franklin ultimately emerged
from Independence Hall upon the conclusion of the Convention, a
reporter asked him, ``Mr. Franklin, sir, what have you wrought?
'' And he said, ``A republic, if you can keep it.'' And that is
ultimately what this advice and consent process is all about.
But while the Constitution sets the course of our Nation,
it is without question the Chief Justice of the United States
who must have his hand firmly on the tiller to keep our great
ship of state on a course consistent with the Constitution.
I shall follow carefully the deliberations of this
Committee. I will participate in the floor debate. I look
forward to the privilege of voting for this fine outstanding
public servant.
Judge Roberts, I am the last. You are on your own.
[Laughter.]
[The prepared statement of Senator Warner appears as a
submission for the record.]
Chairman Specter. Thank you, Senator Warner. Thank you,
Senator Lugar. Thank you, Senator Bayh.
Judge Roberts, if you will now resume your position at
center stage. Judge Roberts, if you would now stand, please.
The protocol calls for your swearing in at this point. We have
23 photographers in the well, 5 more waiting. We may revise our
procedures to swear you in at the start of the proceeding if
you should come back.
If you would raise your right hand. They have asked me to
do this slowly because this is their one photo op.
Do you solemnly swear that the testimony you will give
before this Committee on the Judiciary of the United States
Senate will be the truth, the whole truth, and nothing but the
truth, so help you God?
Judge Roberts. I do.
Chairman Specter. Thank you. You may be seated.
Judge Roberts, we compliment you on your patience in
listening to 21 speeches, and the floor is now yours.
STATEMENT OF JOHN G. ROBERTS, JR., NOMINEE TO BE CHIEF JUSTICE
OF THE UNITED STATES
Judge Roberts. Thank you very much, Mr. Chairman, and
Senator Leahy, and members of the Committee.
Let me begin by thanking Senators Lugar and Warner and Bayh
for their warm and generous introductions.
And let me reiterate my thanks to the President for
nominating me. I am humbled by his confidence, and if
confirmed, I will do everything I can to be worthy of the high
trust he has placed in me.
Let me also thank you, Mr. Chairman, and the members of the
Committee for the many courtesies you have extended to me and
my family over the past eight weeks. I am particularly grateful
that members have been so accommodating in meeting with me
personally. I have found those meetings very useful in better
understanding the concerns of the Committee as the Committee
undertakes its constitutional responsibility of advice and
consent.
I know that I would not be here today were it not for the
sacrifices and help over the years of my family, who you met
earlier today, friends, mentors, teachers and colleagues, many
of whom are here today.
Last week one of those mentors and friends, Chief Justice
William Rehnquist, was laid to rest. I talked last week with
the nurses who helped care for him over the past year, and I
was glad to hear from them that he was not a particularly good
patient.
[Laughter.]
Judge Roberts. He chafed at the limitations they tried to
impose. His dedication to duty over the past year was an
inspiration to me and I know to many others. I will miss him.
My personal appreciation that I owe a great debt to others
reinforces my view that a certain humility should characterize
the judicial role. Judges and Justices are servants of the law,
not the other way around. Judges are like umpires. Umpires
don't make the rules, they apply them. The role of an umpire
and a judge is critical. They make sure everybody plays by the
rules, but it is a limited role. Nobody ever went to a ball
game to see the umpire.
Judges have to have the humility to recognize that they
operate within a system of precedent shaped by other judges
equally striving to live up to the judicial oath, and judges
have to have the modesty to be open in the decisional process
to the considered views of their colleagues on the bench.
Mr. Chairman, when I worked in the Department of Justice in
the Office of the Solicitor General, it was my job to argue
cases for the United States before the Supreme Court. I always
found it very moving to stand before the Justices and say, ``I
speak for my country.'' But it was after I left the Department
and began arguing cases against the United States, that I fully
appreciated the importance of the Supreme Court in our
constitutional system. Here was the United States, the most
powerful entity in the world, aligned against my client, and
yet all I had to do was convince the Court that I was right on
the law, and the Government was wrong, and all that power and
might would recede in deference to the rule of law.
That is a remarkable thing. It is what we mean when we say
that we are a Government of laws and not of men. It is that
rule of law that protects the rights and liberties of all
Americans. It is the envy of the world, because without the
rule of law, any rights are meaningless.
President Ronald Reagan used to speak of the Soviet
Constitution, and he noted that it purported to grant wonderful
rights of all sorts to people, but those rights were empty
promises because that system did not have an independent
judiciary to uphold the rule of law and enforce those rights.
We do, because of the wisdom of our Founders and the sacrifices
of our heroes over the generations to make their vision a
reality.
Mr. Chairman, I come before the Committee with no agenda. I
have no platform. Judges are not politicians who can promise to
do certain things in exchange for votes. I have no agenda, but
I do have a commitment. If I am confirmed, I will confront
every case with an open mind. I will fully and fairly analyze
the legal arguments that are presented. I will be open to the
considered views of my colleagues on the bench, and I will
decide every case based on the record, according to the rule of
law, without fear or favor, to the best of my ability, and I
will remember that it's my job to call balls and strikes, and
not to pitch or bat.
Senators Lugar and Bayh talked of my boyhood back in
Indiana. I think all of us retain from the days of our youth
certain enduring images. For me those images are of the endless
fields of Indiana, stretching to the horizon, punctuated only
by an isolated silo or a barn. And as I grew older, those
endless fields came to represent for me the limitless
possibilities of our great land.
Growing up, I never imagined that I would be here in this
historic room, nominated to be the Chief Justice. But now that
I am here, I recall those endless fields with their promise of
infinite possibilities, and that memory inspires in me a very
profound commitment. If I am confirmed, I will be vigilant to
protect the independence and integrity of the Supreme Court,
and I will work to ensure that it upholds the rule of law and
safeguards those liberties that make this land one of endless
possibilities for all Americans.
Thank you, Mr. Chairman. Thank you, members of the
Committee. I look forward to your questions.
[The biographical information of Judge Roberts follows:]
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Chairman Specter. Thank you very much, Judge Roberts, for
that very profound statement.
We will stand in recess until 9:30 tomorrow morning, when
we will reconvene in the Hart Senate Office Building, Room 216.
That concludes our hearing.
[Whereupon, at 3:33 p.m., the hearing was recessed, to
resume at 9:30 a.m. on September 13, 2005.]
NOMINATION OF JOHN G. ROBERTS, JR., OF MARYLAND, TO BE CHIEF JUSTICE OF
THE UNITED STATES
----------
TUESDAY, SEPTEMBER 13, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:30 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. It is 9:30. The confirmation hearing of
Judge Roberts will now proceed.
Welcome again, Judge Roberts.
Judge Roberts. Thank you, Mr. Chairman.
Chairman Specter. We begin the first round of questioning
in order of seniority, with 30 minutes allotted to each
Senator.
Judge Roberts, there are many subjects of enormous
importance that you will be asked about in this confirmation
hearing, but I start with the central issue which perhaps
concerns most Americans, and that is the issue of the woman's
right to choose and Roe v. Wade. And I begin collaterally with
the issue of stare decisis and the issue of precedents.
Black's Law Dictionary defines stare decisis as ``let the
decision stand, to adhere to precedents and not to unsettle
things which are established.'' Justice Scalia articulated,
``The principal purpose of stare decisis is to protect reliance
interests and further stability in the law.''
Justice Frankfurter articulated the principle, ``We
recognize that stare decisis embodies an important social
policy. It represents an element of continuity in law and is
rooted in the psychological need to satisfy reasonable
expectations.''
Justice Cardozo in a similar vein, ``No judicial system
could do society's work if each issue had to be decided afresh
in every case which raised it.''
In our initial conversation, you talked about stability and
humility in the law. Would you agree with those articulations
of the principles of stare decisis as you had contemplated
them, as you said you looked for stability in the law?
Judge Roberts. Yes, Mr. Chairman, I would. I would point
out that the principle goes back even farther than Cardozo and
Frankfurter. Hamilton, in Federalist No. 78, said that, ``To
avoid an arbitrary discretion in the judges, they need to be
bound down by rules and precedents.'' So even that far back,
the Founders appreciated the role of precedent in promoting
evenhandedness, predictability, stability, the appearance of
integrity in the judicial process.
Chairman Specter. I move now to Casey v. Planned
Parenthood. Thirty minutes may seem like a long time and a
second round of 20 minutes, but the time will fly, and I want
to get right to the core of the issue.
In Casey, the key test on following precedents moved to the
extent of reliance by the people on the precedent, and Casey
had this to say in a rather earthy way: ``People have ordered
their thinking and living around Roe. To eliminate the issue of
reliance, one would need to limit cognizable reliance to
specific instances of sexual activity. For two decades of
economic and social developments, people have organized
intimate relationships in reliance on the availability of
abortion in the event contraception should fail.''
That is the joint opinion, rather earthy in its context.
Would you agree with that?
Judge Roberts. Well, Senator, the importance of settled
expectations in the application of stare decisis is a very
important consideration. That was emphasized in the Casey
opinion, but also in other opinions outside that area of the
law.
The principles of stare decisis look at a number of
factors, settled expectations one of them, as you mentioned.
Whether or not particular precedents have proven to be
unworkable is another consideration on the other side; whether
the doctrinal bases of a decision have been eroded by
subsequent developments. For example, if you have a case in
which there are three precedents that lead and support that
result and in the intervening period two of them have been
overruled, that may be a basis for reconsidering the prior
precedent.
Chairman Specter. But there is no doctrinal basis erosion
in Roe, is there, Judge Roberts?
Judge Roberts. Well, I feel the need to stay away from a
discussion of particular cases. I'm happy to discuss the
principles of stare decisis, and the Court has developed a
series of precedents on precedent, if you will. They have a
number of cases talking about how this principle should be
applied. And as you emphasized, in Casey they focused on
settled expectations. They also looked at the workability and
the erosion of precedents. The erosion of precedent I think
figured more prominently in the Court's discussion in the
Lawrence case, for example, but it is one of the factors that
is looked at on the other side of the balance.
Chairman Specter. Well, do you see any erosion of precedent
as to Roe?
Judge Roberts. Again, I think I should stay away from
discussions of particular issues that are likely to come before
the Court again. And in the area of abortion, there are cases
on the Court's docket, of course. It is an issue that does come
before the Court. So while I'm happy to talk about stare
decisis and the importance of precedent, I don't think I should
get into the application of those principles in a particular
area.
Chairman Specter. Well, Judge Roberts, I don't know that we
are dealing with any specific issue. When you mention--and you
brought the term up--erosion of precedent, whether you see that
as a factor in the application of stare decisis or
expectations, for example, on the citation I quoted from Casey
v. Planned Parenthood.
Judge Roberts. Well, in the particular case of Roe,
obviously you had the Casey decision in '92 or '93.
Chairman Specter. '92.
Judge Roberts. '92, in which they went through the various
factors in stare decisis and reaffirmed the central holding in
Roe while revisiting the trimester framework and substituting
the undue burden analysis with strict scrutiny. So as of '92,
you had a reaffirmation of the central holding in Roe. That
decision, that application of the principles of stare decisis
is, of course, itself a precedent that would be entitled to
respect under those principles.
Chairman Specter. The joint opinion then goes on, after the
statement as to sexual activity, to come to the core issue
about women being able to plan their lives. The joint opinion
says, ``The ability of women to participate equally in the
economic and social life of the Nation has been facilitated by
their ability to control their reproductive lives.''
Do you agree with that statement, Judge Roberts?
Judge Roberts. Yes, Senator, as a general proposition. But
I do feel compelled to point out that I should not, based on
the precedent of prior nominees, agree or disagree with
particular decisions, and I'm reluctant to do that. That's one
of the areas where I think prior nominees have drawn the line
when it comes to do you agree with this case or do you agree
with that case. That's something that I'm going to have to draw
the line in the--
Chairman Specter. Well, I am not going to ask you whether
you are going to vote to overrule Roe or sustain it, but we are
talking here about the jurisprudence of the Court and their
reasoning.
Let me come to another key phase of Casey where the joint
opinion says, ``A terrible price would be paid for overruling
Roe. It would seriously weaken the Court's capacity to exercise
the judicial power and to function as the Supreme Court of the
Nation dedicated to the rule of law.''
Now, this moves away from the specific holding and goes to
a much broader jurisprudential point, really raising the issue
of whether there would be a recognition of the Court's
authority. And in a similar line, the Court said this: that to
overrule Roe would be ``a surrender to political pressure,''
and added, ``To overrule under fire would subvert the Court's
legitimacy.''
So in these statements on Casey, you are really going
beyond the holding. You are going to the legitimacy and
authority of the Court.
Do you agree with that?
Judge Roberts. Well, I do think the considerations about
the Court's legitimacy are critically important. In other
cases--I'm thinking of Payner v. Tennessee, for example--the
Court has focused on extensive disagreement as a grounds in
favor of reconsideration. In Casey, the Court looked at the
disagreement as a factor in favor of reaffirming the decision.
So it's a factor that is played different ways in different
precedents of the Court.
I do think that it is a jolt to the legal system when you
overrule a precedent. Precedent plays an important role in
promoting stability and evenhandedness. It is not enough--and
the Court has emphasized this on several occasions. It is not
enough that you may think the prior decision was wrongly
decided. That really doesn't answer the question. It just poses
the question. And you do look at these other factors, like
settled expectations, like the legitimacy of the Court, like
whether a particular precedent is workable or not, whether a
precedent has been eroded by subsequent developments. All of
those factors go into the determination of whether to revisit a
precedent under the principles of stare decisis.
Chairman Specter. A jolt to the legal system, a movement
against stability--one of the Roberts doctrines.
Judge Roberts. An overruling of a prior precedent is a jolt
to the legal system. It is inconsistent with principles of
stability and yet--
Chairman Specter. One--go ahead.
Judge Roberts. I was just going to say, the principles of
stare decisis recognize that there are situations when that's a
price that has to be paid. Obviously, Brown v. Board of
Education is a leading example, overruling Plessy v. Ferguson,
the West Coast Hotel case overruling the Lochner era decisions.
Those were to a certain extent jolts to the legal system, and
the arguments against them had a lot to do with stability and
predictability. But the other arguments--that intervening
precedents had eroded the authority of those cases, that those
precedents that were overruled had proved unworkable--carried
the day in those cases.
Chairman Specter. One final citation from the joint opinion
in Roe: ``After nearly 20 years of litigation in Roe's wake, we
are satisfied that the immediate question is not the soundness
of Roe's resolution of the issue, but the precedential force
that must be accorded to its holding.''
Do you think the joint opinion is correct in elevating
precedential force even above the specific holding of the case?
Judge Roberts. That is the general approach when you're
considering stare decisis. It's the notion that it's not enough
that you might think that the precedent is flawed, that there
are other considerations that enter into the calculus that have
to be taken into account, the values of respect for precedent,
evenhandedness, predictability, stability; the considerations
on the other side, whether a precedent you think may be flawed
is workable or not workable, whether it's been eroded.
So to the extent that the statement is making the basic
point that it's not enough that you might think the precedent
is flawed to justify revisiting it, I do agree with that.
Chairman Specter. When you and I met on our first so-called
courtesy call, I discussed with you the concept of a super-
stare decisis. And this was a phrase used by Circuit Judge
Luttig in Richmond Medical Center v. Governor Gilmore in the
year 2000, when he refers to Casey being a super-stare decisis
decision with respect to the fundamental right to choose, and a
number of the academics--Professor Farber has talked about
super-stare decisis, and Professor Estrich has, as it applies
to statutory lines.
Do you think that the cases which have followed Roe fall
into the category of a super-stare decisis designation?
Judge Roberts. Well, it's a term that hasn't found its way
into the Supreme Court opinions yet. I think--
Chairman Specter. Well, there is an opportunity for that.
[Laughter.]
Judge Roberts. I think one way to look at it is that the
Casey decision itself, which applied the principles of stare
decisis to Roe v. Wade, is itself a precedent of the Court,
entitled to respect under principles of stare decisis. And that
would be the body of law that any judge confronting an issue in
his care would begin with, not simply the decision in Roe v.
Wade but its reaffirmation in the Casey decision. That is
itself a precedent. It's a precedent on whether or not to
revisit the Roe v. Wade precedent. And under principles of
stare decisis, that would be where any judge considering the
issue in this area would begin.
Chairman Specter. When you and I talked informally, I asked
you if you had any thought as to how many opportunities there
were in the intervening 32 years for Roe to be overruled, and
you said you did not really know, and you cited a number. And I
said, ``Would it surprise you to know that there have been 38
occasions where Roe has been taken up, not with a specific
issue raised but all with an opportunity for Roe to be
overruled?'' One of them was Rust v. Sullivan, where you
participated in the writing of the brief, and although the case
did not squarely raise the overruling of Roe, it involved the
issue of whether Planned Parenthood units funded with Federal
money could counsel on abortion. And in that brief, you again
raised the question about Roe being wrongly decided, and then I
pointed out to you that there had been some 38 cases where the
Court had taken up Roe.
I am very seldom a user of charts, but on this one I
prepared a chart because it speaks--a little too heavy to lift,
but it speaks louder than just--thank you, Senator Grassley.
Thirty-eight cases where Roe has been taken up, and I don't
want to coin any phrases on super precedents. We will leave
that to the Supreme Court. But would you think that Roe might
be a super-duper precedent in light--
[Laughter.]
Chairman Specter.--of 38 occasions to overrule it?
Judge Roberts. The interesting thing, of course, is not
simply the opportunity to address it, but when the Court
actually considers the question. And that, of course, is in the
Casey decision where it did apply the principles of stare
decisis and specifically addressed it. And that I think is the
decision that any judge in this area would begin with.
Chairman Specter. Judge Roberts, in your confirmation
hearing for circuit court, your testimony read to this effect,
and it has been widely quoted: ``Roe is the settled law of the
land.'' Do you mean settled for you, settled only for your
capacity as a circuit judge, or settled beyond that?
Judge Roberts. Well, beyond that, it's settled as a
precedent of the Court, entitled to respect under principles of
stare decisis. And those principles, applied in the Casey case,
explain when cases should be revisited and when they should
not. And it is settled as a precedent of the Court, yes.
Chairman Specter. You went on then to say, ``It's a little
more than settled. It was reaffirmed in the face of a challenge
that it should be overruled in the Casey decision.'' So it has
that added precedential value.
Judge Roberts. I think the initial question the judge
confronting an issue in this area, you don't go straight to the
Roe decision; you begin with Casey, which modified the Roe
framework and reaffirmed its central holding.
Chairman Specter. And you went on to say, ``Accordingly, it
is the settled law of the land,'' using the term ``settled''
again. Then your final statement as to this quotation, ``There
is nothing in my personal views that would prevent me from
fully and faithfully applying the precedent as well as Casey.''
There had been a question raised about your personal views,
and let me digress from Roe for just a moment because I think
this touches on an issue which ought to be settled. When you
talk about your personal views, and as they may relate to your
own faith, would you say that your views are the same as those
expressed by John Kennedy when he was a candidate and he spoke
to the Greater Houston Ministerial Association in September of
1960, ``I do not speak for my church on public matters, and the
church does not speak for me''?
Judge Roberts. I agree with that, Senator, yes.
Chairman Specter. And did you have that in mind when you
said, ``There is nothing in my personal views that would
prevent me from fully and faithfully applying the precedent as
well as Casey''?
Judge Roberts. Well, I think people's personal views on
this issue derive from a number of sources, and there's nothing
in my personal views based on faith or other sources that would
prevent me from applying the precedents of the Court faithfully
under principles of stare decisis.
Chairman Specter. Judge Roberts, the change in positions
have been frequently noted. Early on in one of your memoranda
you had made a comment on the so-called right to privacy. This
was a 1981 memo to Attorney General Smith, December 11, 1981.
You were referring to a lecture which Solicitor General
Griswold had given 6 years earlier, and you wrote, Solicitor
General Griswold ``devotes a section to the so-called `right to
privacy,' arguing as we have that such an amorphous right is
not to be found in the Constitution.'' Do you believe that the
right to privacy--do you believe today that the right to
privacy does exist in the Constitution?
Judge Roberts. Senator, I do. The right to privacy is
protected under the Constitution in various ways. It's
protected by the Fourth Amendment, which provides that the
right of people to be secure in their persons, houses, effects
and papers is protected. It's protected under the First
Amendment, dealing with prohibition on establishment of a
religion and guarantee of free exercise, protects privacy in
matters of conscience. It was protected by the Framers in areas
that were of particular concern to them that may not seem so
significant today, the Third Amendment, protecting their homes
against the quartering of troops.
And in addition, the Court has, with a series of decisions
going back 80 years, has recognized that personal privacy is a
component of the liberty protected by the Due Process Clause.
The Court has explained that the liberty protected is not
limited to freedom from physical restraint, and that it's
protected not simply procedurally but as a substantive matter
as well. And those decisions have sketched out over a period of
80 years certain aspects of privacy that are protected as part
of the liberty in the Due Process Clause under the
Constitution.
Chairman Specter. So that the views that you expressed back
in 1981, raising an issue about ``amorphous'' and ``so-called''
would not be the views you would express today?
Judge Roberts. Those views reflected the Dean's speech. If
you read his speech, he's quite skeptical of that right. I knew
the Attorney General was, and I was transmitting the Dean's
speech to the Attorney General. But my views today are as I've
just stated them.
Chairman Specter. So they were not necessarily your views
then, but they certainly are not your views now.
Judge Roberts. I think that's fair, yes.
Chairman Specter. With respect to, going back again to the
import of Roe and the passage of time, Supreme Court Chief
Justice Rehnquist changed his views on Miranda in the 1974
case, Michigan v. Tucker, which I am sure you are familiar
with. They did not apply Miranda, without going into the
technical reasons there. But the issue came back to the Court
in U.S. v. Dickerson in the year 2000, and the Chief Justice
decided that Miranda should be upheld, and he used this
language, that it became ``so embedded in routine police
practice to the point where the warnings have become a part of
our National culture.''
Do you think that that kind of a principle would be
applicable to a woman's right to choose as embodied in Roe v.
Wade?
Judge Roberts. Well, I think those are some of the
considerations the Court applied in Casey when it applied stare
decisis to Roe, and those were certainly the considerations
that the Chief Justice focused on in Dickerson. I doubt that
his views of the underlying correctness of Miranda had changed,
but it was a different question in Dickerson. It wasn't whether
Miranda was right, it was whether Miranda should be overruled
at this stage, and the Chief applied and address that separate
question distinct from any of his views on whether Miranda was
correct or not when decided, and that's the approach the Court
follows under principles of stare decisis.
Chairman Specter. Well, that is the analogy I am looking
for in Roe v. Wade. He might disagree with it at the time it
was decided, but then his language is very powerful when he
talks about it becoming ``embedded in routine police practices
to the point where the warnings have become a part of our
National culture.'' The question, by analogy, whether a woman's
right to choose is so embedded that it has become a part of our
National culture. What do you think?
Judge Roberts. Well, I think that gets to the application
of the principles in a particular case, and based on my review
of the prior transcripts of every nominee sitting on the Court
today, that's where they've generally declined to answer, when
it gets to the application of legal principles to particular
cases.
I would repeat that the Court has already applied the
principles of stare decisis to Roe in the Casey decision, and
that stands as a precedent of the Court as well.
Chairman Specter. So you are not bound to follow it, but it
is pretty impressive logic?
Judge Roberts. In the Casey decision at--
Chairman Specter. No, no. I am talking about Chief Justice
Rehnquist on Miranda.
Judge Roberts. I think in that case, the Chief's
explanation of why they weren't going to revisit Miranda is--it
persuaded, I believe, all but one member of the Court. And I'm
sure it had added persuasive effect because of the Chief's
prior views on Miranda itself. It is a recognition of some of
the things we've been talking about, the values of stare
decisis. I don't think, again, that there's any doubt what the
Chief, certainly what he thought. He told us what he thought
about Miranda.
I doubt that those views have changed, but there are other
considerations that come into play when you're asked to revisit
a precedent of the Court, and those are the things we've talked
about, and they're laid out again in Dickerson and other cases
of the Court. Payner v. Tennessee, for example, Agostini, a
variety of decisions where the Court has explained when it will
revisit a precedent and when it will not, and of course the
decisions come out both ways.
In Payne v. Tennessee the Court went through the analyses.
It was a case about whether victims could testify at
sentencing. The precedent said no, and they overruled those.
Chairman Specter. Let me move to two more points before my
time is about to expire, 2 minutes and 35 seconds.
There is a continuing debate on whether the Constitution is
a living thing, and as you see Chief Justice Rehnquist shift
his views on Miranda, suggests that he would agree with Justice
John Marshall Harlan's dissent in Poe, where he discusses the
constitutional concept of liberty and says, ``The traditions
from which it developed, that tradition is a living thing.''
Would you agree with that?
Judge Roberts. I'd agree that the tradition of liberty is a
living thing, yes.
Chairman Specter. Let me move in the final two minutes here
to your participation, pro bono, in Romer, where you gave some
advice on the arguments to those who were upholding gay rights,
and a quotation by Walter Smith, who was the lawyer at Hogan &
Hartson in charge of pro bono work. He had this to say about
your participation in that case supporting or trying to help
the gay community in a case in the Supreme Court. Mr. Smith
said, ``Every good lawyer knows that if there is something in
his client's cause that so personally offends you, morally,
religiously, or if it so offends you that you think it would
undermine your ability to do your duty as a lawyer, then you
shouldn't take it on, and John''--referring to you--``wouldn't
have. So at a minimum he had no concerns that would rise to
that level.''
Does that accurately express your own sentiments in taking
on the aid to the gay community in that case?
Judge Roberts. I was asked frequently by other partners to
help out particularly in my area of expertise, often involved
moot courting, and I never turned down a request. I think it's
right that if it had been something morally objectionable, I
suppose I would have, but it was my view that lawyers don't
stand in the shoes of their clients, and that good lawyers can
give advice and argue any side of a case. And as I said, I was
asked frequently to participate in that type of assistance for
other partners at the firm, and I never turned anyone down.
Chairman Specter. My time just expired.
Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman.
Good morning, Judge.
Judge Roberts. Morning.
Senator Leahy. Looks like you survived well yesterday.
No one doubts you have had a very impressive legal career
thus far, and now you have been nominated to be Chief Justice
of the United States, but I have concerns as I go back over
your career. We have had some discussions about this already,
about some of the themes, and some of the goals you sought to
achieve in your career using what is formidable skill.
My first area of concern involves a fundamental question of
constitutional philosophy, the separation of powers. The last
thing our Founding Fathers wanted was to be ruled by a king
with absolute power, and the next to the last thing they wanted
was to be ruled by a temporary king with absolute power for 4
years. So we have got the political system we talked about a
great deal yesterday of checks and balances. Each of the three
branches of Government constrains the others when they
overreach. Americans have relied on this for our fundamental
guarantees of freedom and democracy and open Government. And
all of us that serve, whether in the executive branch, the
judiciary as you do, the legislative as we do, take an oath to
uphold, a very solemn oath to uphold the Constitution.
But there have been times throughout our history where the
separation of powers has been strained to its limits by
Presidents claiming power way beyond, what was actually almost
imperial powers. So let us focus this now a little bit more on
Presidential power. Let us go to the President's power as
Commander in Chief of the Armed Forces. Certainly he has that
power under the Constitution.
I went back to a time when you were a lawyer in the Reagan
White House. You objected to a bill that would give certain
preference to veterans who had served in Lebanon between August
20th, 1982 and ``the date the operation ends.'' The date would
be as either set by Presidential proclamation or a concurrent
resolution of Congress. And you wrote that the difficulty with
such a bill is that it recognizes a role for Congress in
terminating the Lebanon operation. And you wrote further, ``I
do not think we would want to concede any definite role for
Congress in terminating the Lebanon operation even by joint
resolution presented to the President.'' And then you explained
parenthetically, that even if the President vetoed such a joint
resolution, of course the Congress could override it by a two-
thirds majority.
I find that troubling. I will tell you why. Before I read
your memo I thought everybody agreed there would be only one
answer to the question of whether Congress could stop a war.
Your memo suggested Congress is powerless to stop a President
who is going to conduct an unauthorized war. I really find that
extremely hard to follow, and I imagine most Americans would. I
will give you a hypothetical. Congress passes a law for all
U.S. Forces to be withdrawn from the territory of a foreign
nation by a said date. The President vetoes the law. The
Congress overrides that, and sets into law, you must withdraw
by a certain date. Now, is there any question in your mind that
the President would be bound to faithfully execute that law?
Judge Roberts. Well, Senator, I don't want to answer a
particular hypothetical that could come before the Court, but
I'm happy to comment on the memorandum that you're discussing.
Senator Leahy. No, wait a minute. I mean is this not kind
of hornbook law? I do not know if there would be any cases
coming before the Court. I mean this is kind of hornbook. The
Congress says to the President, you have to get out, and passes
a law which is either signed into law by the President or
overridden--or you override a presidential veto. Why would the
President not have to--charged as he is under the Constitution
to faithfully execute the law, why would he not have to follow
that law?
Judge Roberts. Well, Senator, that issue and similar issues
have in fact come up. There were, for example, lawsuits
concerning the legality of the war in Vietnam, various efforts,
and certainly the arguments would be made on the other side
about the President's authority, and that may well come before
the Court.
Senator Leahy. Judge, with all due respect, the cases in
Vietnam were not based on a specific law passed by Congress to
get out. I mean Congress did cut off the funding.
Judge Roberts. Right.
Senator Leahy. In April 1975 by a one-vote margin on the
Armed Services Committee. I know because I was the newest
member of the Committee at that time, and I voted to not
authorize the war any longer. Are you saying that Congress
could not pass a law that we must withdraw forces?
Judge Roberts. No, Senator, I'm not. What I'm saying is
that that issue or issues related to that could well come
before the Court, and that's why I have to resist answering
your particular hypothetical question.
The memo you refer to, I was working in the White House
Counsel's Office then. The White House Counsel's office is
charged to be vigilant to protect the Executive's authority.
Just as you have lawyers here in the Senate and the House has
lawyers who are experts and charged with being vigilant to
protect the prerogatives of the legislative branch. I believe
very strongly in the separation of powers. That was a very
important principle that the Framers set forth that is very
protective of our individual liberty. It makes sure the
legislative branch legislates, the Executive executes, and the
judicial branch decides the law.
And it makes--it was part of the Framers' vision that each
of the branches would be to a certain extent jealous of what
they regarded as their prerogatives, and to the extent there is
a dispute between the legislative branch and the executive
branch, it's the job, of course, of the judicial branch to
resolve that dispute.
Senator Leahy. But your position in this memo, and
President Reagan's office, seem to indicate that Congress does
not have an ability to end hostilities.
Judge Roberts. With respect, Senator, you're vastly over-
reading the memorandum. It concerned--
Senator Leahy. Tell me why.
Judge Roberts. Well, because it had nothing to do with
terminating hostilities. It had to do with the eligibility for
certain pension benefits, and the question then was whether or
not--who should be determining when the hostilities ceased or
should cease--and there again, a lawyer for the executive
branch, not a judge who would be considering the issue in an
entirely different light, but a lawyer for the executive
branch--a careful lawyer would say there may be a problem
there. Are we conceding anything by saying the legislature gets
to determine when the hostilities end?
Senator Leahy. I do not think it is over-reading it at all,
as you suggest, to say when you write, ``I do not think we
would want to concede any definitive role for Congress in
terminating the Lebanon operation even by joint resolution
presented to the President.''
Judge Roberts. Well, with respect, Senator--
Senator Leahy. You are saying you do not want to concede
any ability to the Congress to stop a war.
Judge Roberts. With respect, Senator, the memorandum is
about legislation for--if I'm remembering it correctly, it was
20 some years ago--pension benefits or certain additional pay
benefits. That's what it was about. And I suspect if you asked
any lawyer for any President of any administration whether they
wanted to concede that general principle, or if as careful
lawyers they would prefer that that provision were rewritten or
not in there, I'm fairly confident that regardless of the
administration, that a lawyer for the Executive would take the
same position.
Now, I am also fairly confident that one of your lawyers
here in the Senate would take the opposite position.
Senator Leahy. Let me ask you this question. Does Congress
have the power to declare war?
Judge Roberts. Of course. The Constitution specifically
gives that power to Congress.
Senator Leahy. Does Congress then have the power to stop a
war?
Judge Roberts. Congress certainly has the power of the
purse, and that's the way, as you noted earlier, that Congress
has typically exercised its--
Senator Leahy. Yes, but we did that in the Boland
amendment, and the Reagan administration, as we found out in
the sorry chapter of Iran-Contra, went around that, violated
the law, worked with Iran, sold arms illegally to Iran--I think
that is part of the axis of evil today--to continue the war,
the contra war in Central America. So the power of the purse,
we have cut off money, the wars sometimes keep going. Do we
have the power to terminate war? We have the power to declare
war. Do we have the power to terminate war?
Judge Roberts. Senator, that's a question that I don't
think can be answered in the abstract. You need to know the
particular circumstances and exactly what the facts are and
what the legislation would be like, because the argument on the
other side--and as a judge, I would obviously be in a position
of considering both arguments, the argument for the Legislature
and the argument for the Executive. The argument on the
Executive side will rely on authority as Commander in Chief,
and whatever authorities derive from that. So it's not
something that can be answered in the abstract.
Senator Leahy. As you said, your answer is that you were
just talking about the question of veterans' benefits and all
after this. I would note that the memo you wrote was not
entitled ``Veterans Benefits,'' it was entitled, ``War Powers
Problem.'' I do not think I overstated.
Let me ask you another question. We spoke about this again
this morning, and I had told you when we met--in fact, I gave
you a copy of the Bybee memo so that this would not be a
surprise to you. The Justice Department's Office of Legal
Counsel issued a secret opinion in August 2002, which argued
the President enjoys ``complete authority over the conduct of
war,'' and ``the Congress lacks authority to set the terms and
conditions under which a President may exercise his authority
as Commander in Chief to control the conduct of operations
during war.'' And then took the argument to the extreme when it
concluded, the President, when acting as Commander in Chief,
was not bound by the Federal law banning the use of torture. In
other words, the President would be above the law in that
regard. You did not write that memo, I hasten to add, but you
have seen it.
I asked Attorney General Gonzales for his view of this
memo, in particular this sweeping assertion of Executive power
which puts a President above the law. He never gave an answer
on that, and that is one of the reasons why many voted against
his confirmation.
So now let me ask you this: do you believe that the
President has a Commander in Chief override to authorize or
excuse the use of torture in interrogation of enemy prisoners
even though there may be domestic and international laws
prohibiting the specific practice?
Judge Roberts. Senator, I believe that no one is above the
law under our system, and that includes the President. The
President is fully bound by the law, the Constitution and
statutes. Now, there often arise issues where there's a
conflict between the Legislature and the Executive over an
exercise of Executive authority, asserted Executive authority.
The framework for analyzing that is in the Youngstown Sheet and
Tube case, the famous case coming out of President Truman's
seizure of the steel mills.
Senator Leahy. And the Supreme Court held that
unconstitutional.
Judge Roberts. Exactly. And the framework that was set
forth in Justice Jackson's concurring opinion, which is the
opinion that has sort of set the stage for subsequent cases,
analyzes the issues in terms of one of three categories: if the
President is acting in an area where Congress is supportive,
expressly supportive of his action, the President's power is at
its maximum; if the President is acting in an area such as you
postulate under the Bybee memo, where the President is acting
contrary to congressional authority; what Justice Jackson said
is the President's authority is at its lowest ebb, it consists
solely of his authority under the Constitution, less whatever
authority Congress has; and then, of course, there's the vast
middle area where courts often have to struggle because they
can't determine whether Congress has supported a particular
exercise or not. The Dames & Moore case, for example, is a good
example of that.
Senator Leahy. Would you consider--go ahead.
Judge Roberts. I was just going to say the first issue for
a Court confronting the question you posed would be whether
Congress specifically intended to address the question of the
President's exercise of authority or not.
Senator Leahy. Yes. I would think that if you pass a law
saying nobody in our Government shall torture, I think that is
pretty specific.
But let me ask you this: is Youngstown settled law? Would
you consider Youngstown settled law?
Judge Roberts. I think the approach in the case is one that
has guided the Court in this area since 1954 or 1952, whatever
it was.
Senator Leahy. The reason I ask that, when Mr. Bybee wrote
this memo, he never cited Youngstown, and I think it was Harold
Koh, the Dean at the Yale Law School, who said this was a
stunning omission. I tend to agree with that. The President
instead went ahead and appointed--nominated Mr. Bybee to a
Federal judgeship.
Judge Roberts. Youngstown is a very important case in a
number of respects, not least the fact that the opinion that
everyone looks to, the Jackson opinion, was by Justice Jackson,
who was of course FDR's Attorney General, and certainly a
proponent of expansive Executive powers.
Senator Leahy. You have also said he is one of the Justices
you admire the most.
Judge Roberts. He is for a number of reasons. What's
significant about that aspect of his career, is here is someone
whose job it was to promote and defend an expansive view of
Executive power as Attorney General, which he did very
effectively, and then when he went on the Court, as you can
tell from his decision in Youngstown, he took an entirely
different view of a lot of issues, in one famous case even
disagreeing with one of his own prior opinions, and wrote a
long opinion about how he can't believe he once held those
views.
I think it's very important that--
Senator Leahy. Are you sending us a message?
[Laughter.]
Judge Roberts. Well, I'm just saying one reason people
admire Justice Jackson so much is that although he had strong
views as Attorney General, he recognized, when he became a
member of the Supreme Court, that his job had changed, and he
was not the President's lawyer, he was not the chief lawyer in
the executive branch, he was a Justice sitting in review of
some of the decisions of the Executive. And he took a different
perspective. And that's, again, one reason many admire him,
including myself.
Senator Leahy. The reason I ask, I thought the memo was
outrageous, and once it became public--not until it became
public, but after it became public, the President disavowed it
and said he is opposed to torture, and I commend him for that.
Many wish there had been--the administration had taken that
position prior to the press finding out about it. But from the
Jackson opinion--and I just pulled it out here--he says: ``the
President has no monopoly of war powers, whatever they are.
While Congress cannot deprive the President of the command of
the Army and Navy, only Congress can provide him an Army or
Navy to command. Congress is also empowered to make rules for
the Government and regulation of land and naval forces, by
which it may to some unknown extent impinge upon even command
functions.''
Do you agree that Congress can make rules that may impinge
upon the President's command functions?
Judge Roberts. Certainly, Senator. The point that Justice
Jackson is making there is that the Constitution vests
pertinent authority in these areas in both branches. The
President is the Commander in Chief, and that meant something
to the Founders. On the other hand, as you just quoted,
Congress has the authority to issue regulations governing the
Armed Forces, another express provision in the Constitution.
Those two can conflict if by making regulations for the Armed
Forces, Congress does something that interferes with, in the
President's view, his command authority, and in some cases
those disputes will be resolved in Court, as they were in the
Youngstown case.
Senator Leahy. In his book All the Laws But One, Chief
Justice Rehnquist, the late Chief Justice, concluded with this
sentence, ``The laws will not be silent in time of war, but
they will speak with a somewhat different voice.'' He offered
as a somewhat different voice, of course, the Supreme Court
decision, an infamous decision, a horrible decision in my
estimation, Korematsu. As we know, in that case the Court
upheld the internment of Japanese-Americans in detention camps,
not because of anything they had done, not because of any
evidence that they were at all disloyal to the United States,
but solely based on their race. Sometimes this country has
legislated very, very cruelly and very wrongly, solely on the
question of race.
Now, the Korematsu majority's failure to uphold the Bill of
Rights I believe is one of the greatest failures in the Court's
history. We cannot, I believe have a Supreme Court that would
continue the failings of Korematsu, especially when we are
engaged in a war on terror that could last throughout our
lifetime, and probably will. This country, all the western
world, all democracies will face terrorist attacks, whether
internal as we had in Oklahoma City, or external, 9/11. I just
want to make sure you are not going to be a Korematsu Justice,
so I have a couple of questions.
Can I assume that you would hold the internment of all
residents of this country who are interned just because they
have a particular nationality or ethnic or religious group, you
would hold that to be unconstitutional?
Judge Roberts. The internment of a group solely on the
basis of their--
Senator Leahy. Nationality or ethnic or religious group.
Judge Roberts. I suppose a case like that could come before
the Court. I would be surprised to see it, and I would be
surprised if there were any arguments that could support it.
Senator Leahy. Let me ask you this. Do you feel that you
would be able to interpret the Bill of Rights the same, whether
we are at war or not?
Judge Roberts. I do, Senator. I read the Chief's book that
you quoted from, and for someone who sits on the court that I
sit on now, we famously look back to one of the first cases
decided in the D.C. Circuit. It was the Aaron Burr trial, and
it's, if anything, a motto--
Senator Leahy. I thought you might--
Judge Roberts. Well, it's sort of the motto of our court,
an opinion that was written out of that, in which the judge
explained that it was our obligation to calmly poise the scales
of justice in dangerous times as well as calm times. That's a
paraphrase, but the phrase, calmly poise the scales of justice
if, if anything, the motto of the court on which I now sit.
That would be the guiding principle for me whether I am back on
that court or a different one, because some factors may be
different, the issues may be different, the demands may be
different, but the Bill of Rights remains the same. And the
obligation of a court to protect those basic liberties in times
of peace and in times of war, in times of stress and in times
of calm, that doesn't change.
Senator Leahy. I hope you feel that way. I often speak of
the First Amendment, it is not there to protect popular speech,
that is easy, it is unpopular speech. And as I mentioned
yesterday, our State really wanted to make sure the Bill of
Rights was going to be there before we joined the Union.
Let me switch gears a bit. In the area of environmental
protection, I feel that you have narrowly construed laws under
the Constitution in a way that closed the courthouse doors to
millions of parents who want to protect their children from
dangerous air pollution or unsafe drinking water, fish
contaminated with mercury, foods covered with pesticides. We
all know that often the President, no matter who is President,
and the local governments do not do enough to protect people in
environmental areas, from environmental dangers, and we have
given them protection, the Congress has.
I thought your Duke Law Journal article, which many have
commented about in the press and otherwise, was somewhat
dismissive regarding these citizen suits to protect the
environment. You wrote that Congress may not ask the courts in
effect to exercise oversight of responsibility at the behest of
any John Q. Public who happens to be interested in the issue.
You discount the interests that many citizens and Congress have
in preserving our environment. A few years ago--you sound very
much like Justice Scalia--I know a few years ago, the Supreme
Court, over the dissent of Justice Scalia, ruled that a citizen
living near a stream that had been polluted by many illegal
discharges of mercury from an upstream company did have the
right to go to court over these illegal mercury discharges. The
Government was not enforcing the laws.
So I ask you this. People, if their President or their
Governor fails to enforce these laws, why should not
individuals have access to courts where polluting companies
could be made to pay for their wrongdoing? What can you tell us
to assure us, parents or children who are worried about this
from birth defects and all, all of us, what can you do to
assure us that they as individuals under Chief Justice Roberts
would not find the courthouse door slammed shut in their face?
Judge Roberts. Well, one thing I would tell them to do is
read the rest of the Duke Law Journal article, because one
thing it makes--point it makes is that environmental interests,
it goes on to say aesthetic interests, those are all protected
under the law, and that one reason courts should insist that
those who bring suit have standing--that's the issue--that are
actually injured, is because standing can encompass certainly
environmental harms. The issue that was being addressed in the
Duke Law Journal article was whether anyone could bring a
lawsuit just because they are interested in the issue, or
whether the plaintiffs had to show that they had been injured.
In other words, in your hypothetical, the people who are
downstream from the mercury pollution, they will be able to
show that they are injured and can bring suit.
The question is whether somebody halfway across the country
who's not injured by that act should be able to bring suit.
That was the issue in the--
Senator Leahy. But I read it also in conjunction with your
brief that you wrote in 1991, when you were Kenneth Starr's
political deputy.
This was in Franklin County v. Gwinnett Public Schools.
Now, in that case, a girl, Christine Franklin, had been
sexually harassed. She had been abused from the time she was in
the 10th grade by a teacher and a sports coach. The school was
aware of the sexual harassment but took no action, in fact they
even encouraged her not to complain. The Office for Civil
Rights at the Department of Education investigated and found
her rights were violated under title IX of our civil rights
law; she had been physically abused; her right to complain
about gender discrimination had been interfered with. You
argued that she had no right to damages for this abuse. Now,
your view was rejected by the Supreme Court. Justice White, in
an opinion joined by Justice O'Connor and others wrote that you
fundamentally misunderstood the law and history of the Court's
role in providing appropriate remedy for such abuse, and that
you had invited them to abdicate their historical judicial
authority to award appropriate relief.
So do you now personally agree with and accept as binding
law the reasoning of Justice White's opinion in Franklin?
Judge Roberts. Well, it certainly is a precedent of the
Court that I would apply under principles of stare decisis. The
Government's position in that case, of course, in no way
condoned the activities involved. The issue was an open one.
The courts of appeals had ruled the same way that the
Government had argued before the Supreme Court, and it arose
because we were dealing with an implied right of action, in
other words, right of action under the statute that courts had
implied. The reason that there was difficulty in determining
exactly what remedies were available is because Congress had
not addressed that question. The remedies that were available,
as we explained, included issues such as restitution, back pay,
injunctive relief, and the open issue, again, was whether
damages were available. The Supreme Court issued its ruling and
cleared that up.
Senator Leahy. But here in this case, I mean it is a pretty
egregious case, you have--and I am sure that you in no way
condone what happened to this young girl, but I mean it was
awful. She would be taken out of class by this teacher, brought
to another room, basically raped. And Justice White made it
very clear, contrary to what you and Kenneth Starr had said,
that she had a right for actions because of that abuse.
Now, do you feel that they were acting, even though it went
differently than what you had argued, do you feel the Court's
opinion is based on sound reasoning?
Judge Roberts. Well, I don't want to say--
Senator Leahy. Do you think it is a solid precedent?
Judge Roberts. It is a solid--it's a precedent of the
Court. It was, as you say, a unanimous precedent. It concerned
an issue of statutory interpretation because it was unclear
whether Congress had intended a particular remedy to be
available or not. That was the question before the Court. The
court of appeals had ruled one way. The Supreme Court ruled the
other way.
The administration's position was based on the principle
that the decision about the remedy of back pay was a decision
that should be made by Congress and not the Court. The Court
saw the case the other, and that issue is now settled, and
those damages actions are brought in courts around the country.
Senator Leahy. But I wonder if we are balancing angels on
the head of a pin. What kind of back pay was this teenage
student going to be seeking? What kind of--
Judge Roberts. Senator, there--
Senator Leahy. What kind of injunction is she going to get
after she graduated? As a parent, and you are a parent, I mean
I just wonder are we saying that we will put up a block for
people who have really justiciable reasons to be in court?
Judge Roberts. No, Senator. Again, there was no issue in
the case about condoning the behavior. I found it abhorrent
then. I find it abhorrent now. That's not the issue. The issue
in the case is did Congress intend for this particular remedy
to be available? Other remedies were available under the
provision at issue, and the question is, was this remedy
available?
Senator Leahy. The back pay.
Judge Roberts. Restitution and injunction to prohibit the
harmful activity. Again, the issue arose because Congress had
not spelled out whether there was a right of action in the
first place or what the components of that right of action
should be. The issue--
Senator Leahy. We will go back to this in my next round, I
can assure you. My time is up.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Leahy.
Senator Hatch.
Senator Hatch. Thank you, Mr. Chairman. I am happy to be
here, and I appreciate your leadership, you and Senator Leahy
on this Committee.
I want to welcome you again, Judge Roberts.
Judge Roberts. Thank you so much.
Senator Hatch. I read an interesting book over the weekend,
Cass Sunstein's book, recent book published by Basic Books. He
discussed various philosophies with regard to judging, and I
would just like to ask you this question. Some of the
philosophies he discussed were whether a judge should be an
originalist, a strict constructionist, a fundamentalist, a
perfectionist, a majoritarian or a minimalist. Which of those
categories do you fit in?
Judge Roberts. Well, I haven't--I didn't have a chance to
read Professor Sunstein's book. He writes a different one every
week, it's hard to keep up with.
[Laughter.]
Judge Roberts. But, you know, I think--
Senator Hatch. I have read a number of them.
Judge Roberts. Like most people, I resist the labels. I
have told people when pressed that I prefer to be known as a
modest judge, and to me that means some of the things that you
talked about in those other labels. It means an appreciation
that the role of the judge is limited, that a judge is to
decide the cases before them, they're not to legislate, they're
not to execute the laws.
Another part of that humility has to do with respect for
precedent that forms part of the rule of law that the judge is
obligated to apply under principles of stare decisis. Part of
that modesty has to do with being open to the considered views
of your colleagues on the bench. I would say that's one of the
things I've learned the most in the past 2 years on the court
of appeals, how valuable it is to function in a collegial way
with your colleagues on the bench, other judges being open to
your views, you being open to theirs. They, after all, are in
the same position you're in. They've read the same briefs. They
heard the same arguments. They've looked at the same cases. And
if they're seeing things in a very different way, you need to
be open to that and try to take another look at your view and
make sure that you're on solid ground.
Now, I think that general approach results in a modest
approach to judging which is good for the legal system as a
whole. I don't think the courts should have a dominant role in
society and stressing society's problems. It is their job to
say what the law is. That's what Chief Justice Marshall said,
of course, in Marbury v. Madison. And, yes, there will be times
when either the executive branch or the legislative branch
exceeds the limits of their powers under the Constitution or
transgresses one of the provisions of the Bill of Rights, and
then it is emphatically the obligation of the courts to step up
and say what the Constitution provides, and to strike down
either unconstitutional legislation or unconstitutional
Executive action.
But the Court has to appreciate that the reason they have
that authority is because they're interpreting the law, they're
not making policy, and to the extent they go beyond their
confined limits and make policy or execute the law, they lose
their legitimacy, and I think that calls into question the
authority they will need when it's necessary to act in the face
of unconstitutional action.
Senator Hatch. I know that I have only mentioned a few of
these so-called descriptions of various philosophical attitudes
with regard to judging, but am I correct in interpreting that
you are probably eclectic, that you would take whatever is the
correct way of judging out of each one of those provisions?
There may be truths in each one of those provisions, that none
of them absolutely creates an absolute way of judging.
Judge Roberts. Well, I have said I do not have an
overarching judicial philosophy that I bring to every case, and
I think that's true. I tend to look at the cases from the
bottom up rather than the top down. And like I think all good
judges focus a lot on the facts. We talk about the law, and
that's a great interest for all of us, but I think most cases
turn on the facts, so you do have to know those, you have to
know the record.
In terms of the application of the law, you begin obviously
with the precedents before you. There are some cases where
everybody's going to be a literalist. If the phrase in the
Constitution says two-thirds of the Senate, everybody's a
literalist when they interpret that. Other phrases in the
Constitution are broader, ``unreasonable searches and
seizures.'' You can look at that wording all day and it's not
going to give you much progress in deciding whether a
particular search is reasonable or not. You have to begin
looking at the cases and the precedents, what the Framers had
in mind when they drafted that provision.
So, yes, it does depend upon the nature of the case before
you I think.
Senator Hatch. Thank you. On the War Powers Act, I remember
when Senator Hefflin, years ago, in the Breyer hearing, said,
``You, of course, have been here at various times. Do you have
any particular thoughts concerning the authority and what ought
to be done relative to this, or do you have feelings that the
War Powers Act is a proper approach to this issue?'' Judge
Breyer's simple answer was, ``I do not have special thoughts
that I would think would be particularly enlightening in that
area.'' He did not get drawn into interpreting the War Powers
Act for the Committee, and I suspect that that is the way that
you feel as well.
Now, my friend, the Chairman, held up a chart with the
number of cases that he said relied on Roe v. Wade. In fact, if
I heard him correctly he called Roe a super-duper precedent.
Now, I am not sure that a super-duper precedent exists, between
you and me, but some have said that Planned Parenthood v.
Casey, a very important case, reaffirmed Roe. But let me just
ask you, am I correct that Casey reaffirmed the central holding
in Roe, but substantially changed its framework?
Judge Roberts. That's what the joint opinion of the three
Justices said, it was reaffirming the central holding, it
revisited and altered the framework.
Senator Hatch. There were only a few votes to simply
reaffirm Roe, were there not, in the Casey case?
Judge Roberts. Well, the plurality opinion is regarded I
think as the opinion of--it's the opinion of the plurality, but
as the leading opinion of the Justices of the majority, it's
the one that judges look to in the first instance. There were
separate opinions that disagreed with some of the ways in which
that plurality revisited Roe. It reaffirmed the central holding
in Roe v. Wade. It dispensed with the trimester framework, and
it substituted for the strict scrutiny that Roe had established
the undue burden analysis that since the time of Casey has
governed in this area.
Senator Hatch. As I recall it, there were only a few votes,
as you have mentioned, to simply reaffirm Roe, but does this
suggest that Casey itself noted the troubling features of Roe
and indicated that Roe's framework has not been workable?
Judge Roberts. Well, the question of the workability of the
framework is I think one of the main considerations that you
look to under principles of stare decisis, along with the
settled expectations, whether a precedent has been eroded. That
was one of the factors that the Court looked at in Casey in
determining I think to alter the framework of Roe, the
trimester framework and the strict scrutiny approach, at least
in the terms that were applied by the joint opinion.
Senator Hatch. Our Chairman asked if former Chief Justice
Rehnquist's opinion in the Dickerson case, upholding Miranda,
would apply to Roe v. Wade, and if I recall correctly, you
properly declined to answer. But am I right that Chief Justice
Rehnquist repeatedly believed that Roe should be overruled?
Judge Roberts. That was his view, yes.
Senator Hatch. Does that not mean that Rehnquist himself
did not believe that his Dickerson holding should apply to Roe?
Would that be a fair conclusion?
Judge Roberts. Based on his published opinions--now, I
don't remember--well, certainly he wrote in Casey, I don't know
if he's written since then, so I just hesitate to ascribe views
from 1992 to current.
Senator Hatch. Okay. The Chairman and Ranking Member have
raised some important issues, and I may turn to some of them
shortly, but I believe, however, that we should start with
first principles before exploring how those principles should
be applied. Many activist groups, and some of my Senate
colleagues, would like nothing more than that you take a series
of litmus tests, that you reveal your positions on issues and
tell us where you stand. I have been on this Committee during
the hearings on 9 Supreme Court nominations. I voted to confirm
all of the nominees, Democrats and Republicans. As I described
yesterday, I agree that this Committee needs answers but only
to proper questions.
The important question is not what your views are on any
particular issue. You are not campaigning for elective office.
The question that needs to be answered is how you view the role
of unelected judges in a representative democracy. I know you
have said you do not have what might be described as a
carefully calibrated, highly defined judicial philosophy, but
as each individual case comes before you with its own unique
facts and issues. Yesterday you gave us your commitment that
you will approach that case within a certain framework. Now I
am more interested in learning more about that framework, that
perspective on what you believe your job as a judge really is,
than I am in how you specifically implement that framework in
specific cases or individual cases.
This is where I do differ with some of my colleagues. I
want to know more about how you get or how you intend to get to
a conclusion, while some appear to only want to know what the
conclusion will be like on issues such as abortion. Some think
that judges exist to defend and promote progress, preserving
the gains of the past and bringing us to a better future of
equality and justice. Now, that does not sound, to use a word
you have used to describe judges, very modest to me. On the
other hand, Senator DeWine noted Justice Byron White, appointed
by President Kennedy, said that judges decide cases, and I
thought that that was an important quote yesterday. Yesterday
you used the analogy of an umpire who calls balls and strikes,
but neither pitches, nor bats.
Please help the Committee sort this out by describing
further the role you believe unelected judges play or should
play in our system of Government. Are they charged, for
example, with using the Constitution to effect cultural and
political reform, or does the Constitution require that this
should be left to the people and their elected representatives?
How can the judiciary sit in constitutional judgment over the
legislative and executive branches while still remaining co-
equal with them? If you could kind of take a crack at those
various questions, I would appreciate it.
Judge Roberts. Well, Justice White's insight that was
quoted by Senator DeWine yesterday, that judges' obligation is
to decide cases, really has constitutional significance. It
goes back to Marbury v. Madison. You know, the Constitution
doesn't have any provision that says, oh, and the judges, by
the way, are to interpret the Constitution and tell us what it
means. What it says it that the judges are to decide cases that
arise under this Constitution, this new Constitution, and under
any new laws that the Congress might pass. And what Chief
Justice Marshall explained in Marbury v. Madison was that,
well, if we've got to decide cases, that's our constitutional
obligation, we've got to decide whether in a particular case
something's consistent with the Constitution or not. So we have
to decide what the Constitution means, and that's what the
Framers intended.
So the obligation to decide cases is the only basis for the
authority to interpret the Constitution and laws. That means
that judges should be careful in making sure that they have a
real case in front of them, a real live dispute between parties
who have actual injury involved, actual interests at stake,
because that is the basis for their legitimacy. And then
they're to decide that case as a judge would, not as a
legislator would based on any view of what's the best policy,
but as a judge would based on the law. That's why the Framers
were willing to have the judges decide cases that required them
to interpret the Constitution, because they were going to
decide it according to the rule of law.
If the people who framed our Constitution were jealous of
their freedom and liberty, they would not have sat around and
said, ``Let's take all the hard issues and give them over to
the judges.'' That would have been the furthest thing from
their mind. Now, judges have to decide hard questions when they
come up in the context of a particular case. That's their
obligation. But they have to decide those questions according
to the rule of law, not their own social preferences, not their
policy views, not their personal preferences, according to the
rule of law.
Senator Hatch. You have explained that it is not the duty
of the judiciary to make the law or to execute it, but to
interpret it. I am not naive. Sometimes interpretation is more
of an art than a science. There are those who would label
``interpretation'' absolutely anything a judge might do, or to
the text of a statute or Constitution. But it seems to me there
comes a point where a judge is using his own creativity and
purpose, and crosses the line between interpreting a text
written by somebody else, and in a sense creating something
new. Now that troubles me, since as I said earlier, I believe
in the separation of powers. If a judge crosses the line
between interpreting and making the law, he has crossed the
line supporting his legitimate authority from the legislative
branch's authority. To me that is a very serious matter.
If we believe, as America's Founders did, that the
separation of powers, not just in theory or in textbook, but in
practice in the actual functioning of Government is the
linchpin of limited Government and liberty.
How do you distinguish between these two roles of
interpreting and making law? And can you assure the Senate and
the American people that you will stay on your side of this
line?
Judge Roberts. I will certainly make every effort to do so,
Senator. I appreciate the point that in some cases the question
of whether you are interpreting the law or making the law, that
that line is hard to draw in some cases. I would say not in
most cases. I think most cases, most judges, know what it means
to interpret the law, and can recognize when they're going too
far into an area of making law, but certainly there are harder
cases. And someone like Justice Harlan always used to explain
that when you get to those hard cases, you do need to focus
again on the question of legitimacy, and make sure that this is
the question that you the judge are supposed to be deciding
rather than someone else.
You go to a case like the Lochner case. You can read that
opinion today and it's quite clear that they're not
interpreting the law, they're making the law. The judgment is
right there. They say: We don't think it's too much for a baker
to work whatever it was, 13 hours a day. We think the
legislature made a mistake in saying they should regulate this
for their health. We don't think it hurts their health at all.
It's right there in the opinion. You can look at that and
see that they are substituting their judgment on a policy
matter for what the legislature had said. So, you know, the
fact that it's difficult to draw the line doesn't relieve a
judge of an obligation to draw the line.
There are those more academic theorists who say it is a
question of degree, and since it's just a question of degree,
you shouldn't try to draw the line, because it's hard sometimes
to interpret the law without making the law. We'll throw our
hands up and say, well, judges make the law, and proceed from
that.
That has not been my experience either as a judge or an
advocate. My experience has been in most cases you can see
where the line is, and you do know when judges are exceeding
their authority and making a law, rather than interpreting it,
and careful judges are always vigilant to make sure that
they're adhering to their proper function and not going into
the legislative area.
Senator Hatch. All of your experience has been either in
the judicial branch from your service as a clerk to then-
Justice Rehnquist, and from your current role on the D.C.
Circuit, or in the executive branch, where you worked in the
White House Counsel's Office, Assistant to the Attorney General
and Deputy Solicitor General. In contrast, I would note that
Justice Breyer brought to the Court his experience as Chief
Counsel to this Committee. As many commentators during the oral
arguments of the Sentencing Guidelines case, Justice Breyer
seemed more than willing to defend congressional prerogatives.
Now, what can you tell us to assure the Committee that your
lack of experience in working in the legislative branch of
Government might contribute to a lack of deference to Federal
statutes as you review those Federal statutes on the bench?
Judge Roberts. Well, I guess the first thing I would say is
look at--begin with my opinions as a judge over the past 2
years on the court of appeals. I think they show a healthy
regard for the prerogatives of the legislative branch that is
appropriate. It is certainly--as an advocate, I've certainly
been arguing deference to the legislature in appropriate cases.
Other cases of course I was on a different side in arguing the
opposite, so I'm familiar with the arguments. I have not only
been in a position where I've been pressing arguments, for
example, for the executive branch. I have been arguing cases
against the executive branch, and frequently arguing cases for
the proposition of deference in favor of the Legislature.
I guess I would just hearken back to the model I was
talking about earlier of Justice Jackson, who went from being
FDR's Attorney General to being a Justice on the Court who I
think always had a healthy regard for the prerogatives of the
legislative branch.
Senator Hatch. You claimed in your questionnaire that
judges do not ``have a commission to solve society's
problems.'' I could not agree more. But this is an interesting
formulation. It is worth remembering. I think that my office
and your office only exist because the American people have
authorized them through the Constitution. In other words, the
power that you have as a judge comes from the people. Now, that
would be a fair assessment, I take it?
Judge Roberts. Yes.
Senator Hatch. Let me explore this question of precedent a
little bit more with you. Obviously, the Supreme Court decides
cases involving a range of issues in requiring application of
different kinds of law, including regulations and statutes, as
well as the Constitution. All of these cases can set precedence
which might be relied upon to decide future cases raising
similar issues. Now, what is your understanding of the role
that precedent plays in these different categories of cases? Is
precedent equally authoritative in, for example, regulatory or
statutory cases as in constitutional cases?
As I understand it, the Supreme Court has long said that
the strength of its prior decisions is related in part to the
difficulty in correcting errors. In constitutional cases there
is no external way to correct an error except by constitutional
amendment. The Supreme Court says, therefore, that precedent is
weakest in constitutional cases.
Now, I have here a list of statements from Supreme Court
decisions going back decades and decades to reflect this. In
1997, Justice Sandra Day O'Connor wrote for the Court in
Agostini v. Felton, that you mentioned earlier, that stare
decisis or precedent is not a command but a policy, and it is a
policy that has--and I am quoting Justice O'Connor here--``at
its weakest when we interpret the Constitution because our
interpretation can be altered only by constitutional amendment
or by overruling our prior decisions.''
In 1944, Justice Reed wrote for the Court in Smith v.
Albright, ``In constitutional questions, where correction
depends upon amendment and not upon legislative action, this
Court throughout its history has freely exercised its power to
reexamine the basis of its constitutional decisions.''
Mr. Chairman, I would like to place this list in the record
if I can at this point.
Chairman Specter. Without objection, so ordered.
Senator Hatch. Now, the bottom line is that precedent is
weakest in constitutional cases. Does this distinction make
sense to you, Judge Roberts, and has it in fact resulted in the
Supreme Court overruling its previous interpretations of the
Constitution with any frequency?
Judge Roberts. The Court has frequently explained that
stare decisis is strongest when you're dealing with a statutory
decision. The theory is a very straightforward one that if the
Court gets it wrong, Congress can fix it. And the Constitution,
the Court has explained, is different. Obviously, short of
amendment, only the Court can fix the constitutional
precedents.
Senator Hatch. Do you believe that Congress is just as
bound by constitutional limits as State legislatures?
Judge Roberts. There are different limits, of course, but,
yes, the limits in the Constitution on Congress are as
important as limitations on State legislatures in the
Constitution.
Senator Hatch. I ask that question because some seem to
argue that overturning a statute that we pass here in the
national legislature is almost presumptively an example of
judicial activism. I have disagree with the Court on some of
these statutes. The Morrison case is a perfect illustration to
me. I am, along with Senator Biden, the author of the Violence
Against Women Act, and I felt that they overreached in that
particular case.
But in any event, some believe that it is judicial
activism, while turning a blind eye to the much more common
practice of striking down State legislation is just an
afterthought.
This argument gets even more complicated when the Supreme
Court uses a provision actually in the Constitution, to strike
down a congressional statute, but provisions not in the
Constitution to strike down State statutes. America's Founders
were clear that the Constitution established a Federal
Government of few and defined powers. It cannot regulate any
activity it choose, but may only regulate in those areas which
the Constitution grants it power to regulate.
One familiar area is found in Article I, Section 8, which
gives the Congress to regulate, ``to regulate commerce among
the various States.'' Now, do not get me wrong, I do not
necessarily agree with the Supreme Court, as I mentioned in the
Morrison case. I do not think they always get it right when
saying that Congress has overstepped its bounds with respect to
regulating interstate commerce.
At the same time some have learned that we are sliding into
a constitutional abyss because the Court has found just twice
in more than 60 years that there is something, anything that it
says the Constitution does not allow Congress to do regarding
Congress and State legislatures and their enactments.
Judge Roberts. Well, the obligation to say what the law is,
including determining that particular legislation is
unconstitutional, is, as Chief Justice Marshall said,
emphatically the duty and province of the judicial branch. You
and I can agree or disagree on whether the Court is right in a
particular case, but if the Court strikes down an Act of
Congress and it's wrong, the Court shouldn't have done that,
that's not an act of judicial activism, it's just being wrong.
The obligation to strike down legislation is with the
judicial branch. They need--I think as Justice Holmes said,
it's the gravest and most delicate duty that the Court
performs, and the reason is obvious. All judges are acutely
aware of the fact that millions and millions of people have
voted for you and not one has voted for any of us. That means
that you have the responsibility of representing the policy
preferences of the people making the determination about when
legislation is necessary and appropriate and what form that
legislation should take.
Our job is a very different one. We have to consider cases
that raise the question from time to time whether particular
legislation is constitutional, and we have to limit ourselves
in doing that to applying the law and not in any way
substituting ourselves for the policy choices you've made. But
it is not, as I would say, it's not judicial activism when the
courts do that. They may be right or they're wrong, and if
they're wrong, they're wrong, but it's not activism.
Senator Hatch. Well, thank you, Judge. You know, our time
is almost gone. We have talked about a lot of substantive
things in this half-hour.
I know that the American Bar Association has three times
unanimously given you its highest rating of ``Well Qualified,''
twice for your appeals court appointment and now again for your
Supreme Court nomination. Now, we are going to hear more from
the ABA about this later in the week, but I wanted to highlight
one thing.
The ABA examines three areas, including judicial
temperament, and the ABA has laid out the criteria it uses for
this. They include such things as compassion, open-mindedness,
freedom from bias, and commitment to equal justice, and you
have come out with the highest rating on all of those areas.
Many people note that you have been at the pinnacle of your
profession, one of the handful of Supreme Court specialists and
a partner at a very prestigious law firm here in Washington,
D.C., and yet you have consistently pursued pro bono work, that
is, work for free, to help people in need, in which you use
your skill and training and legal talent to help others.
Perhaps that does not fit with the stereotype that some would
force upon you, but it is true and it is real and it says a lot
about you as a person.
In the few minutes we have left, please describe some of
the pro bono work you have done, why those particular projects
are important to you, and what you believe your efforts
accomplished. The position that you have been nominated for is
Chief Justice of the United States. Do you plan to use that
role as a bully pulpit to encourage members of the bar to take
seriously their responsibility to undertake pro bono work as
you have done throughout your legal career?
Judge Roberts. Yes, Senator. If I am confirmed, I would
hope to do that, and if I'm not, I would hope to do that back
on the court of appeals. I think it's a very important part of
a lawyer's obligation. I'll mention just a couple of examples.
I handled an appeal here before the D.C. court of appeals
on behalf of a class of welfare recipients who had had their
benefits cut off. Our position was that the benefits had been
cut off in violation of the Constitution, in violation of their
due process rights to notice and an individualized hearing.
These were the neediest people in the District and we pressed
their argument before the court of appeals.
The first case I argued in the Supreme Court was a pro bono
matter for an individual with a double jeopardy claim against
the United States, again, someone who didn't have a lawyer, and
I was very happy to do that.
And as I said earlier, I regularly handled moot courts for
people. I did one for minority plaintiffs in a voting rights
case out of Louisiana. I did one challenging environmental
effects in Glacier Bay and another one in the Grand Canyon.
In addition to those actually involving a case, one of the
pro bono activities that I'm most committed to is a program
sponsored by the Supreme Court Historical Society and an
organization called Street Law. They bring high school teachers
to D.C. every summer to teach them about the Supreme Court and
they can then go back and teach the Court in their classes, and
I've always found that very, very fulfilling.
Senator Hatch. Thank you. My time is up. Thanks, Mr.
Chairman.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy?
Senator Kennedy. Thank you. Thank you, Mr. Chairman, and
that Street Law program is a marvelous program. I commend you
for your involvement in that.
The stark and tragic images of human suffering in the
aftermath of Hurricane Katrina reminded us yet again that civil
rights and equal rights are still the great unfinished business
of America. The suffering has been disproportionately borne by
the weak, the poor, the elderly, and the infirm, and largely by
African-Americans who are forced by poverty, illness, and
unequal opportunity to stay behind and bear the brunt of the
storm's winds and floods. I believe that kind of disparate
impact is morally wrong in this, the richest country in the
world.
One question we must consider today is how we can take
action to unify our Nation, heal racial division, end poverty,
and give real-life meaning to the constitutional mandate that
there be equal protection under law. I believe that the
Constitution is not hostile to the idea that national problems
can be solved at the national level through the cooperative
efforts of the three coequal branches of government, the
Congress, the Executive, and the Courts, but not every
President, not every legislator, and not every judge agrees
that the Federal Government has the power to address and to try
to remedy the twin national problems of poverty and access to
equal opportunity. I am not talking about a handout, but a hand
up, to give all our citizens a fair shot at the American dream.
Judge Roberts, today we want to find out how you view the
Constitution and our ability to protect the most vulnerable. Do
you believe that Congress has the power to pass laws aimed at
eliminating discrimination in our society, or do you believe
that our hands are tied, that the elected representatives of
the people of the United States are without the power to pass
laws aimed at righting wrongs, ending injustice, eliminating
the inequalities that we have just witnessed so dramatically
and tragically in New Orleans?
The American people want to know where you stand. We want
to find out your view of the rule of law and the role of courts
in our system. That is why it is so important, and I hope we
will receive your frank and candid and complete responses to
the questions we ask today.
To start my inquiry, I want to discuss with you the Brown
v. Board of Education case, which you have already mentioned
this morning, which I believe is the most important civil
rights decision in our lifetime. In Brown, decided in 1954, the
year before you were born, the Supreme Court concluded
unequivocally that black children have the constitutional right
to be educated in the same classrooms as white students. The
Court rejected the old doctrine of separate but equal, finding
that it violated the Equal Protection Clause of the 14th
Amendment.
In considering the issues raised by Brown, the Court took a
broad and real-life view of the question before it. It asked,
whether the segregation of children in public school solely on
the basis of race, even though physical facilities and other
tangible factors may be equal, deprives the children of the
minority group of equal educational opportunities. Do you agree
with the Court's conclusion that the segregation of children in
public school solely on the basis of race is unconstitutional?
Judge Roberts. I do.
Senator Kennedy. And do you believe that the Court had the
power to address segregation of public schools on the basis of
the Equal Protection Clause of the Constitution?
Judge Roberts. Yes.
Senator Kennedy. And you are aware that Brown was a
unanimous decision?
Judge Roberts. Yes. That was the--represented a lot of work
by Chief Justice Earl Warren, because my understanding of the
history is that it initially was not and he spent--it was
reargued. He spent a considerable amount of time talking to his
colleagues and bringing them around to the point where they
ended up with a unanimous Court.
Senator Kennedy. And a lot of work by the plaintiffs, as
well.
Judge Roberts. I'm sure.
Senator Kennedy. First, in reaching its decision, the Court
concluded that it must consider public education in the light
of its full development and its present place in American life
throughout the Nation, that is that it must consider the
conditions and impact of its decision in the real present-day
world. The Court specifically declined to rely on the
legislative history of the 14th Amendment. It looked instead to
the facts and situation as they existed in the case and in the
world at the time of the decision.
Judge Roberts, do you agree that the Court was correct in
basing its decision on real world consideration of the role of
public education at the time of its decision, rather than the
role of public education in 1868, when the 14th Amendment was
adopted?
Judge Roberts. Certainly, Senator. The importance of the
Court's approach in Brown is, of course, to recognize that the
issue was whether or not the discrimination violated equal
protection, and you have to look at the discrimination in the
context in which it is occurring. I know there has been a lot
of recent academic research into this, the original intent of
the drafters of the 14th Amendment. Professor McConnell's piece
suggests that it's perfectly consistent with the conclusion in
Brown, and it also, for the very point you mentioned, was an
important one, that the nature of the institution of public
education wasn't formed to the same extent at the time of the
drafting--
Senator Kennedy. In 1868, that is right.
Judge Roberts.--yes, as it was at the time of the decision.
Senator Kennedy. The Brown Court also held that it was
important to look at the effects of segregation on public
education. The Court determined that education was so vital to
a child's development and opportunity for advancement in
society, where the State had undertaken to provide public
education, it must be available to all on equal terms. Thus, it
found that the separate education was inherently unequal. So,
is it fair for me to conclude you accept both the holding and
the reasoning in the Brown case?
Judge Roberts. Well, the reasoning, though, I think it's
important, is focused on the effects, yes, but the conclusion
was that they didn't care if the effects were equal. In other
words, the genius of the decision was the recognition that the
act of separating the students was where the violation was and
it rejected the defense, certainly just a theoretical one given
the actual record, that you could have equal facilities and
equal treatment.
I think the conclusion, if the record had shown--which it
did not--if it had shown perfectly equal treatment in the
African-American school and in the white school, then Chief
Justice Warren's analysis would be the same because the act of
separation is what constituted the discrimination.
Senator Kennedy. If we could move on now, the Brown
decision was just the beginning of the historic march for
progress towards equal rights for all of our citizens. In the
1960s and 1970s, we came together as a Congress, Republicans
and Democrats alike, and passed the historic civil rights
legislation that was signed by the President to guarantee
equality for all of our citizens on the basis of race, then on
gender, then on disability.
We passed legislation to eliminate the barriers to voting
that so many minorities had faced in too many States in the
country. We passed legislation that prevented racial
discrimination in housing.
Those landmark laws were supported by Republicans and
Democrats in Congress, and they were signed into law by both
Republican and Democratic Presidents. Intelligent and dedicated
attorneys in the Justice Department and in the White House and
on Capitol Hill devoted their extraordinary talents and
imagination and perseverance to making these laws effective.
Every one of the new laws was tested in court all the way to
the Supreme Court, and I would like to find out, Judge Roberts,
whether you would agree that the progress that we made in civil
rights over the past 50 years is irreversible.
I would like to find out whether you think that these laws
are constitutional or whether you have any concerns or
questions about them. Do you have any concerns or reservations
about the constitutionality of the 1964 Civil Rights Act that
outlawed racial discrimination in public accommodations,
employment, and other areas?
Judge Roberts. I don't think any issue has been raised
concerning those. You know, I'm cautious, of course, about
expressing an opinion on a matter that might come before the
Court. I don't think that's one that's likely to come before
the Court, so I'm not aware of any questions that have been
raised concerning that, Senator.
Senator Kennedy. So, I'll assume that you don't feel that
there are any doubts on the constitutionality of the 1964 Act.
Do you have any doubts as to the constitutionality of the 1965
Voting Rights Act?
Judge Roberts. That's an issue, of course, as you know,
it's up for renewal and that is a question that could come
before the Court. The question of Congress's power, again,
without expressing any views on it, I do know that it's going
to be--
Senator Kennedy. That's gone up and down the Supreme Court,
the 1965 Act and again the 1982 Act extension.
Judge Roberts. Yes, and the issue would be--
Senator Kennedy. I am just trying to find out, on the
Voting Rights Act, whether you have any problem at all or are
troubled by the constitutionality of the existing Voting Rights
Act that was extended by the Congress--
Judge Roberts. Oh, well, the existing Voting Rights Act,
the constitutionality has been upheld--
Senator Kennedy. Okay.
Judge Roberts.--and I don't have any issue with that. There
is a separate question that would be raised if the Voting
Rights Act were extended, as I know Congress is considering,
and those arguments have been raised about whether or not
particular provisions should be extended or should not be
extended, and since those questions might well come before the
Court, I do need to exercise caution on that.
Senator Kennedy. But with regards to the bipartisan Act
that we passed, your position on the 1982 Act, I know you had
concerns, and I am going to come back to those, but you are not
suggesting that there is any constitutional issue with that?
Judge Roberts. Well, I'm not aware of any constitutional
issue that's been raised about it.
Senator Kennedy. All right.
Judge Roberts. But again, I don't want to express
conclusions on hypothetical questions, whether as applied in a
particular case, whether there would be a challenge in that
respect. Those cases come up all the time--
Senator Kennedy. All right.
Judge Roberts.--and I do need to keep--avoid expressing an
opinion on those issues.
Senator Kennedy. Well, it seems that on voting rights, with
all of its importance and significance, and with the
extraordinary bipartisan balance that came together on that
Act, I am going to come back to it. I know you had some
reservations about it, which we will come to. But that, I am
wondering whether you are hesitant at all in saying that you
believe that it is constitutional.
Judge Roberts. My hesitancy, Senator, is simply this, that
cases do come up--I had one in the D.C. Circuit--concerning
issues under the Voting Rights Act--
Senator Kennedy. All right.
Judge Roberts.--and I don't know what arguments parties
will be raising in those cases. So an abstract question, you
need to know obviously what is the claim, what is the issue,
and decide it according to the rule of law.
Senator Kennedy. How about the constitutionality of the
1968 Fair Housing legislation that outlaws racial
discrimination in housing?
Judge Roberts. Again, I think that my understanding is it's
been upheld and I'm not aware of any issues that are arising
under it. I suppose if there's a particular claim that's
entered under that statute, litigants make all sorts of
arguments and they may raise an argument that it's
unconstitutional as applied in a particular case and the court
would have to decide that question.
Senator Kennedy. Well, I was sort of aiming your answer to
my friend, Orrin Hatch, about the power of the legislature and
the deference that you are going to give when the legislature
makes judgments and findings, particularly in the areas of
voting, that we spend such an extraordinary amount of time. The
Chairman was so involved in that legislation.
Let us go to the Voting Rights Act. As you know, we have
had a chance to go through many of the documents that you
authored during the early and mid-1980s when you worked in the
Department of Justice and in the White House and I am deeply
troubled. Let me point out that we don't have all the documents
that we would like to have. I am working with the documents
that we do have and I want to go through those, get your
reactions, and ask your views today.
I am deeply troubled by the narrow and cramped, and perhaps
even a mean-spirited view of the law that appears in some of
your writings. In the only documents that have been made
available to us, it appears that you did not fully appreciate
the problem of discrimination in our society. It also seems
that you were trying to undo the progress that so many people
had fought for and died for in this country.
At the outset, I want to be clear that I do not think, nor
am I suggesting, that you are a person who is in favor of
discrimination. I don't believe that. I am concerned, however,
that at the time you were writing these laws and memoranda and
notes, you simply did not grasp the seriousness of the impact
of discrimination on our country as a whole.
Let's start with the Voting Rights Act. Most Americans
think that the right to vote is among the most important tools
that they have to participate in our democracy. You do agree,
don't you, Judge Roberts, that the right to vote is a
fundamental constitutional right?
Judge Roberts. It is preservative, I think, of all the
other rights. Without access to the ballot box, people are not
in the position to protect any other rights that are important
to them. And so I think it's one of, as you said, the most
precious rights we have as Americans.
Senator Kennedy. And you will recall that in the 1960s,
millions of our fellow citizens were denied access to the
voting booth because of race, and to remedy that injustice,
Congress passed the Voting Rights Act of 1965 that outlawed
discrimination in voting. Section 2 of that Act is widely
believed to be the most effective civil rights statute enacted
by Congress.
In 1982, Congress took action to extend the Voting Rights
Act and to make it clear that discriminatory voting practices
and procedures are illegal if they are intended to be racially
discriminatory or if they are shown to have a racially
discriminatory impact. It was this latter prohibition, the
prohibition against voting practices that have a discriminatory
impact, that provoked your heated opposition, Judge Roberts.
In our earlier discussion of Brown v. Board of Education,
you agreed that the actual impact of racial segregation on
public education and school children was perfectly valid for
the Court to consider, but when it came to voting rights, you
rejected the consideration of actual impact. You wrote that
violations of Section 2 of the Voting Rights Act, and I quote,
``should not be made too easy to prove since they provide a
basis for the most intrusive interference imaginable by Federal
courts into State and local processes.''
You also wrote, and I quote, ``it would be difficult to
conceive of a more drastic alteration of local government
affairs, and under our Federal system such an intrusion should
not be too readily permitted.''
And you didn't stop there. You concluded that Section 2 of
the Voting Rights Act was, quote, ``constitutionally suspect
and contrary to the most fundamental tenets of the legislating
process on which the laws of this country are based.''
I am deeply troubled by another statement that you made at
the time, and I quote, ``there is no evidence of voting abuses
nationwide supporting the need for such a change.'' No
evidence? I was there, Judge Roberts, both the House and the
Senate had the extensive hearings. We considered detail-
specific testimony from affected voters throughout the country.
But you dismissed the work of Congress out of hand. ``Don't
be fooled,'' you wrote, ``by the House vote or the 61 Senate
sponsors of the bill. Many members of the House did not know
that they were doing more than simply extending the Act, and
several of the 61 Senators have already indicated they only
intended to support a simple extension.''
Judge Roberts, Republicans and Democrats overwhelmingly
supported this legislation, but you thought we didn't really
know what we were doing. Newt Gingrich and James Sensenbrenner
voted for the House bill. Dan Quayle was an original Senate
cosponsor of the bill. We held extensive hearings, created a
lengthy record, yet you thought there was no evidence of voting
abuses that would justify the legislation.
Your comment? Do you believe today that we need Federal
laws to assure that all our citizens have the equal access to
the voting booth, and do you basically support the 1982 Voting
Rights Act signed by President--
Judge Roberts. Senator, you will recall at the time of
the--this was 23 years ago. I was a staff lawyer in the Justice
Department. It was the position of the Reagan administration
for whom I worked, the position of the Attorney General for
whom I worked, that the Voting Rights Act should be extended
for the longest period of its extension in history without
change. The Supreme Court had interpreted in the Mobile v.
Bolden case, Section 2 to have an intent test, not an effects
test.
Keep in mind, of course, as you know very well, Section 5,
the pre-clearance provision, had always had an effects test,
and that would be continued. The reference to discrimination
nationwide was addressing the particular point that the effects
test had been applied in particular jurisdictions that had a
history of discrimination and the question is whether or not
there was a similar history of discrimination that supported
extending the effects test in Section 2.
It was the position of the administration for which I
worked that the proposal was to extend the Voting Rights Act
without change. Your position at the time was that the intent
test that the Supreme Court had determined was in Section 2
should be changed to the effects test, and that was the
position that eventually prevailed.
There was no disagreement--
Senator Kennedy. Judge Roberts, the effects test was the
law of the land from the Zimmer case to the Mobile case. It was
the law of the land.
Judge Roberts. Senator--
Senator Kennedy. That was the law of the land. Court after
court decided about the impact of the effects test. The Mobile
case changed the Zimmer case.
Judge Roberts. Well, Senator, you disagree--
Chairman Specter. Senator, let him finish his answer.
Senator Kennedy. Okay. Well, I would just like to get his
view of whether the Zimmer case was not the holding and the law
of the land prior to the Mobile case.
Judge Roberts. Well, this is the same debate that took
place 23 years ago on this very same issue, and the
administration's position--you think the Supreme Court got it
wrong in Mobile v. Bolden.
Senator Kennedy. No, that's not what I think. It was wrong,
but I also think the law of the land decided in the Zimmer case
upheld in court after court after court after court was the
effects test.
Judge Roberts. Well, and the Supreme Court--
Senator Kennedy. And that is all--
Chairman Specter. Let him finish his answer, Senator
Kennedy.
Judge Roberts. The point is, and again, this is revisiting
a debate that took place 23 years ago--
Senator Kennedy. Well, I am interested today in your view.
Do you support the law that Ronald Reagan signed into law and
that was cosponsored overwhelmingly by the--
Judge Roberts. Certainly. And the only point I would make,
this is the same disagreement and the same debate that took
place then over whether the Court was right or wrong in Mobile
v. Bolden, and the point I would make is two-fold, that those
like President Reagan, like Attorney General Smith, who were
advocating extension of the Voting Rights Act without change,
were as fully committed to protecting the right to vote as
anyone.
Senator Kennedy. Could I--
Chairman Specter. Let him finish his answer, Senator
Kennedy.
Judge Roberts. And the articulation of views that you read
from represented my effort to articulate the views of the
administration and the position of the administration for whom
I worked, for which I worked, 23 years ago.
Senator Kennedy. Well, after President Reagan signed it
into law, did you agree with that position--
Judge Roberts. I certainly--
Senator Kennedy.--of the Administration?
Judge Roberts. I certainly agreed that the Voting Rights
Act should be extended. I certainly agreed that the effects
test in Section 5 should be extended. We had argued that the
intent test--that the Supreme Court recognized in Mobile v.
Bolden--I know you think it was wrong, but that was the Supreme
Court's interpretation--should have been extended. Again, as
you said, the compromise that you and Senator Dole worked out
was enacted into law and signed into law by President Reagan
and the Voting Rights Act has continued to be an important
legislative tool to ensure that most precious of rights which
is preservative of all other rights. There was never any
dispute about that basic proposition.
Senator Kennedy. Well, what I am getting to is after it was
overwhelmingly passed by the House and the Senate, signed into
law, we have the memorandum that you said the fact we were
burned last year--this is the following year, because we did
not sail in with the new voting rights legislation does not
mean we will be hurt this year if we go slowly on housing
legislation. What did you mean when you said that we were
burned last year by not getting the Voting Rights Act?
Judge Roberts. Well, I think the legislative debate between
those who favored extending the Voting Rights Act as is and
those who favored changing the Act because they disagreed with
the Supreme Court decisions, the legislative judgment was that
the administration's proposal didn't succeed because they had
waited--rather than coming out in favor of an extension right
away, they waited for the Congress to come up with its
proposals which turned out to be different than the
administration proposals.
On the housing discrimination, I would note that the
administration did get its ducks in a row, and in a matter of
months after the date of the memo that you just read from had
its housing proposal there and submitted to Congress and it was
enacted.
Senator Kennedy. Nineteen Eighty-Eight Fair Housing Act.
Judge Roberts. The administration's proposal was submitted,
I believe, months after the date of the memo that you read
from.
Senator Kennedy. Let me, if I could, go to the Civil Rights
Restoration Act. In 1981, you supported an effort by the
Department of Education to reverse 17 years of civil rights
protections at colleges and universities that receive Federal
funds. Under the new regulations, the definition of Federal
assistance to colleges and universities would be narrowed to
exclude certain types of student loans and grants so that fewer
institutions would be covered by the civil rights laws. As a
result, more colleges and universities would legally be able to
discriminate against people of color, women, and the disabled.
Your efforts to narrow the protection of the civil rights
laws did not stop there, however. In 1984, in Grove City v.
Bell, the Supreme Court decided, contrary to the Department of
Education regulations that you supported, that student loans
and grants did, indeed, constitute Federal assistance to
colleges for purposes of triggering civil rights protections.
But in a surprising twist, the Court concluded that the
non-discrimination laws were intended to apply only to the
specific program receiving the funds and not to the institution
as a whole.
Under that reasoning, a university that received Federal
aid in the form of tuition could not discriminate in
admissions, but was free to discriminate in athletics, housing,
faculty hiring, and any other programs that did not receive the
direct funds. If the admissions office didn't discriminate, if
they got the funds through the admissions office, they could
discriminate in any other place of the university.
A strong bipartisan majority in both the House and the
Senate decided to pass another law, the Civil Rights
Restoration Act, to make it clear that they intended to
prohibit discrimination in all programs and activities of a
university that received Federal assistance. You vehemently
opposed the Civil Rights Restoration Act. Even after the Grove
City Court found otherwise, you still believed that there was--
and this is your quote--``a good deal of intuitive appeal to
the argument that Federal loans and grants to students should
not be viewed as Federal financial assistance to the
university.'' You realize, of course, that these loans and
grants to the students were paid to the university as tuition.
Then even though you acknowledged that the program-specific
aspect of the Supreme Court decision was going to be overturned
by the congressional legislation, you continued to believe that
it would be ``too onerous'' for colleges to comply with
nondiscrimination laws across the entire university unless it
was ``on the basis of something more solid than Federal aid to
students.''
Judge Roberts, if your position prevailed, it would have
been legal in many cases to discriminate in athletics for
girls, women; it would have been legal to discriminate in the
hiring of teachers; it would have been legal not to provide
services or accommodations to the disabled.
Do you still believe today that it is too onerous for the
Government to require universities that accept tuition payments
from students who rely on Federal grants and loans not to
discriminate in any of their programs of activities?
Judge Roberts. No, Senator, and I did not back then. You
have not accurately represented my position.
Senator Kennedy. These are your words.
Chairman Specter. Let him finish his answer.
Judge Roberts. Senator, with respect--
Chairman Specter. You had quite a long--
Judge Roberts.--you have selected--
Chairman Specter. Wait a minute, wait a minute. Senator
Kennedy just propounded a very, very long question. Now, let
him answer the question.
Judge Roberts. Senator, you did not accurately represent my
position. The Grove City College case presented two separate
questions, and it was a matter being litigated, of course, in
the courts. The universities were arguing that they were not
covered at all by the civil rights laws in question simply
because their students had Federal financial assistance and
attended their universities. That was their first argument.
The second argument was, even if they were covered, all
that was covered was the admissions office and not other
programs that themselves did not receive separate financial
assistance.
Our position, the position of the administration--and,
again, that was the position I was advancing. I was not
formulating policy. I was articulating and defending the
administration position. And the administration's position was,
yes, you are covered if the students receive Federal financial
assistance, and that the coverage extended to the admissions
office. That was the position that the Supreme Court agreed
with. We were interpreting legislation. The question is: What
is the correct interpretation of the legislation? The position
that the administration advanced was the one I have just
described. The universities were covered due to Federal
financial assistance to their students. It extended to the
admissions office.
The Supreme Court in the Grove City case agreed with that
position. So the position the administration had articulated,
the Supreme Court concluded, was a correct interpretation of
what this body, the Congress, had enacted.
Congress then changed the position about coverage, and that
position was, I believe, signed into law by the President and
that became the new law. The memo you read about Secretary
Bell's proposal, if I remember it, was, well, he said, if we're
going to cover all of the universities, then we shouldn't hinge
coverage simply on Federal financial assistance. And the
position I took in the memorandum was that, no, we should not
revisit that question. We should not revisit the question that
Federal financial assistance triggers coverage.
Senator Kennedy. I have the memo here. I have 22 seconds
left. And your quote is this, ``If the entire institution is to
be covered, however, it should be on the basis of something
more solid than Federal aid to the students.'' I think most of
the Members of the Congress feel that if the aid to the
universities, tuition, loans and grants are going to be
sufficient to trigger all of the civil rights laws--your
memorandum here, ``If the entire institution is to be covered,
however, it should be on the basis of something more solid than
Federal aid to the students.'' That is your memorandum.
Judge Roberts. Well, Senator, again, the administration
policy was as I articulated it, and it was my job to articulate
the administration policy.
Senator Kennedy. My time is up, Mr. Chairman.
Chairman Specter. Yes, thank you very much, Senator
Kennedy.
This is a good time for a 15-minute break.
[Recess 11:31 to 11:47 a.m.]
Chairman Specter. We will reconvene our hearing. We will
take three more rounds of questions so that we will go until
approximately--there will be two more rounds of questions until
12:45, and we will then break for lunch. Both Republicans and
Democrats have their policy luncheons, and we will then
reconvene after lunch until 2:15. I have been asked how late we
are going to go, and let's see how it feels. We want to move
ahead with the hearings, but we do not want to wear everybody
out.
Senator Grassley?
Senator Grassley. Judge Roberts, for a second time I would
congratulate you and your family on your nomination. I would
also for a second time thank you for the time you spent in my
office for me to talk privately with you several weeks ago. I
am impressed by your record, your public service, and obviously
you demonstrate your intellect very well, and we ought to be
satisfied with that.
Let me remind everybody that Judge Roberts was confirmed
unanimously to the D.C. Circuit Court just 2 years ago by the
Senate and that the ABA, the American Bar Association, has
recommended him to be, in their words, ``unanimously well
qualified'' for this position on the Supreme Court. So I
believe with everything we have seen demonstrated, you are
obviously as qualified a nominee as I have seen in the 24 years
that I have been on this Committee.
In addition, I want to thank you for a great deal of candor
you have in answering questions and giving information. The
Judiciary Committee has received from you or from Government
agencies that you have been affiliated with thousands of
documents on your record--thousands of documents. And we all
have combed through the documents, the briefs, and opinions
that you have offered to assess your qualifications to the
Supreme Court. I think that we have been provided with a vast
amount of information, more than I think any other candidate to
the Supreme Court.
This confirmation process is very important, however, not
so that we can seek to obtain your commitments on specific
cases but, rather, to more fully understand your approach to
deciding cases. In addition, you have been nominated to be
Chief Justice, so I am going to be interested, in some of my
questioning today or tomorrow, about your priorities for the
Federal judiciary and what you think about the administration
of justice and some of those questions you might anticipate do
not involve cases coming before the Supreme Court. And maybe on
administering that branch of Government, you could be a little
more concrete what you support and do not support. And, of
course, lastly, I appreciate your candor and thoughtfulness.
Our conversation now will not only tell us more about your
judicial method, but will also, I hope, educate the public on
the proper role of a judge in our democratic society. Most
people who will be following these hearings will be, like me, a
non-lawyer, and I think it is important that the bulk of our
society, particularly those who are not in the law, understand
limits on judicial power in our system of checks and balances
of Government.
Judge Roberts, I believe that we should be filling the
Federal bench with individuals who will be fair, who will be
unbiased, devoted to addressing facts and the law before them,
without imposing their own values and political believes in
reaching a decision. You made clear that you agree with that--I
am not asking you, but I think you made clear that you agree
with that with your umpire analogy that you used yesterday. Our
Founding Fathers clearly intended the judiciary to be the least
dangerous branch of Government. Alexander Hamilton, in fact, in
Federalist Paper 78 cautioned against judges substituting their
own belief for constitutional intent when he wrote these words:
``The Courts must declare the sense of the law, and if they
should be disposed to exercise will instead of judgment, the
consequences would be the substitution of their pleasure for
that of the legislative body.''
I think that this standard is important for all judges,
even more so with Supreme Court Justices, and I hope at the end
of our hearings that we feel, as I am beginning to feel now,
that you share that.
So, Judge Roberts, beyond your umpire analogy, what do you
understand to be the role of a judge in a democratic society?
And I would like your reaction to a quote of Justice Cardozo on
the nature of the judicial process, and he said this, not
paraphrasing but direct quote: ``The judge, even when he is
free, is still not wholly free. He is not to innovate at
pleasure. He is not knight-errant roaming at will in pursuit of
his own ideal of beauty or of goodness. He is not to yield to
spasmodic sentiment, to vague or unregulated benevolence. He is
to exercise a discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to the
primordial necessity of order in social life. Wide enough in
all conscience is the field of discretion that remains.''
What do you think Justice Cardozo meant by that passage?
And do you agree with it?
Judge Roberts. I know I agree with it. Now let me figure
out what he meant by it.
[Laughter.]
Judge Roberts. I think what he meant was that judges
operate as judges when they are confined by the law. When I
became a lawyer, the proclamation they read for the graduates,
they referred to the law as ``the wise restraints that make men
free.'' And judges are the same way. We don't turn a matter
over to a judge because we want his view about what the best
idea is, what the best solution is. It's because we want him or
her to apply the law. They are constrained when they do that.
They are constrained by the words that you choose to enact into
law in interpreting the law. They are constrained by the words
of the Constitution. They are constrained by the precedents of
other judges that become part of the rule of law that they must
apply. And that cabining of their discretion, that is what
Hamilton referred to in Federalist 78. He said judges should
not have an absolute discretion; they need to be bound down by
rules and precedents--the rules, the laws that you pass, the
precedents that judges before them have shaped. And then their
job is interpreting the law. It is not making the law. And so
long as they are being confined by the laws, by the
Constitution, by the precedents, then you're more comfortable
that you're exercising the judicial function. It's when you're
at sea and you don't have anything to look to that you need to
begin to worry that this isn't what judges are supposed to do.
Senator Grassley. Well, is there any room in constitutional
interpretation for the judge's own values or beliefs?
Judge Roberts. No, I don't think there is. Sometimes it's
hard to give meaning to a constitutional term in a particular
case. But you don't look to your own values and beliefs. You
look outside yourself to other sources. This is the basis for,
you know, that judges wear black robes, because it doesn't
matter who they are as individuals. That's not going to shape
their decision. It's their understanding of the law that will
shape their decision.
Senator Grassley. Some legal scholars claim that when the
political branches of Government are slow to act, the broad and
spacious terms of the Constitution lend themselves to Court-
created solutions. So you agree with this role of the Court?
Judge Roberts. I have said that it is not the job of the
Court to solve society's problems, and I believe that. It is
the job of the Court to decide particular cases. Now, sometimes
cases are brought and the courts have to decide them even
though the other branches have been slow to act, as you say.
Brown v. Board of Education is a good example. The other
branches and society were not addressing the problems of
segregation in the schools. They were not just slow to act.
They weren't acting. But that didn't mean the courts should
step in and act. But when the courts were presented with a case
that presented the challenge, this segregation violates the
Equal Protection Clause, the courts did have the obligation to
decide that case and resolve it, and in the course of doing
that, of course, change the course of American history.
Senator Grassley. Your reference to Brown would be a good
time to throw in this question. Do you agree with the view that
the courts, rather than the elected branches, should take the
lead in creating a more just society?
Judge Roberts. Again, it is the obligation of the courts to
decide particular cases. Often that means acting on the side of
justice as we understand it, enforcing the Bill of Rights,
enforcing the Equal Protection Clause. But it has to be in the
context of a case, and it has to be in the context of
interpreting a provision that's implicated in that case. They
don't have a license to go out and decide I think this is an
injustice and so I'm going to do something to fix it. That type
of judicial role I think is inconsistent with the role the
Framers intended. When they have to decide a case, it may well
from time to time in particular cases put them in the role of
vindicating the vision of justice that the Framers enacted in
the Constitution, and that is a legitimate role for them. But
it's always in the context of deciding a proper case that's
been presented.
Senator Grassley. Judge Roberts, during the Souter
nomination, I questioned--and I didn't go back and check the
record just to see exactly what I said, but I questioned in
some way about how he would interpret statutory law. Justice
Souter responded to some of my questions by talking about
vacuums in the law, specifically that the courts--and these are
his words--``fill vacuums that are maybe left by Congress.''
This concept was troubling to me then and remains so today,
and if Justice Souter is listening, I would like to say to him,
well, you know, maybe Congress intended to leave some vacuums.
So I would like to know how much filling in of vacuums in
the law left by Congress will you do as a Supreme Court
Justice. Do you think this is the way for the Court to be
activist in that courts will be deciding how to fill in
generalities and resolve contradictions in law?
Judge Roberts. Well, I don't want to directly comment on
what Justice Souter said. He's either going to be a colleague
or continue to be one of my bosses.
[Laughter.]
Judge Roberts. So I want to maintain good relations in
either case. But I do think it's important to recognize in
construing legislation that sometimes a decision has been made
not to address a particular problem. That isn't a license for
the courts to go ahead and address it because that would be
overriding a congressional decision. At the same time, as is
always the case, courts are sometimes put in the position of
having to decide a question that Congress has left deliberately
or inadvertently unanswered. We see that in the issue of what
remedies are available under an implied right of action when
Congress has not spelled them out and the courts sometimes have
to address that sort of question. And if it's presented in a
case, it's unavoidable.
But, again, I resort back to the bedrock principle of
legitimacy in the American system for courts, which is that any
authority to interpret the law, any authority to interpret the
Constitution, derives from the obligation to decide a
particular case or controversy.
Senator Grassley. In your questionnaire to the Committee,
you stated that, ``Precedent plays an important role in
promoting stability of the legal system.'' I think we would all
agree. You also said that a judge operates within ``a system of
rules developed over the years by other judges equally strident
to live up to their judicial oath.'' It is also true that, as
Justice Frankfurter explained, ``The ultimate touchstone of
constitutionality is the Constitution itself, not what we have
said about it. Erroneous interpretations of the Constitution
can be corrected only by this Court.'' I suppose by
constitutional amendment as well. The Court has done so many
times, and most famously--you have referred to it--the Brown
case, which overruled separate but equal, a precedent that
stood for 58 years.
So, Judge Roberts, I would like to ask you a few questions
on the issue of precedence and its value in our legal system.
History has provided many examples of the dangers of Government
by the judiciary, such as the Court's decision in Dred Scott.
Do you share President Lincoln's concerns that I am going to
quote here from his first inaugural: ``If the policy of the
Government upon vital questions affecting the whole people is
to be irrevocably fixed by the decisions of the Supreme Court
the instant they are made in ordinary litigation, the people
will have ceased to be their own rulers''?
Judge Roberts. Well, President Lincoln, of course, was
referring to one of the--perhaps the most egregious examples of
judicial activism in our history, the Dred Scott case, in which
the Court went far beyond what was necessary to decide the
case, and really, I think historians would say that the Supreme
Court tried to put itself in the position of resolving the
dispute about the extension of slavery, and resolving it in a
particular way that it thought was best for the Nation. And we
saw what disastrous consequences flowed from that. And
Lincoln's comment about it--and he had several comments,
because even when he was running for Senate, a big part of the
famous debates were, well, this is what the Supreme Court has
said, are you going to follow it or not? And Lincoln was a very
careful lawyer in his responses. And the reason it was such a
problem is because he was dealing with such an overarching
Supreme Court decision. They didn't even just decide the
particular case. The Court decided to take upon itself, opining
more generally on how the whole issue should be resolved. And,
of course, as I said, it was a disaster.
So, yes, to the extent Lincoln's criticism is how broad and
overreaching the Court opinion was and that that in itself
presented a very difficult problem in terms of adherence to the
decision, I do agree with that.
Senator Grassley. Let me carry that one step further beyond
his quote. You now as an appeals court judge obviously are
bound by Supreme Court precedent. But on the Supreme Court, a
Justice has much more freedom to re-evaluate prior Supreme
Court decisions. I would like to explore the approach that you
would take in your examination of Supreme Court precedents.
Could you tell us what you believe is the appropriate judicial
role describing for us the value of precedent in our legal
system?
Judge Roberts. Certainly, and here, again, we're guided by
the Court. It has precedent on precedents. It has cases talking
about when you should revisit prior precedents and when you
shouldn't. And, of course, some of the cases say you should in
the particular instance and others that you shouldn't. You
begin with a basic recognition of the value of precedent. No
judge gets up every morning with a clean slate and says, well,
what should the Constitution look like today? The approach is a
more modest one. You begin with the precedents. Adherence to
precedent promotes evenhandedness, promotes fairness, promotes
stability and predictability. And those are very important
values in a legal system. Those precedents become part of the
rule of law that the judge must apply.
At the same time, as the Court pointed out in the Casey
case, stare decisis is not an inexorable command. If particular
precedents have proven to be unworkable, they don't lead to
predictable results, they're difficult to apply, that's one
factor supporting reconsideration. If the bases of the
precedents have been eroded--in other words, if the Court
decides a case saying because of these three precedents we
reach this result, and in the intervening years two of those
are overruled, that's another basis for reconsidering the
precedent.
At the same time, you always have to take into account the
settled expectations that have grown up around the prior
precedent. It is a jolt to the legal system to overrule a
precedent, and that has to be taken into account, as well as
the different expectations that have grown up around it.
There are different other aspects of the rules. For
example, property decisions are far less likely to be
reconsidered because of the expectations that grow up around
them. Statutory decisions are less likely to be reconsidered
because Congress can fix it if it's a mistake.
Again, the Court's decisions in cases like Casey and
Dickerson, Payner v. Tennessee, and Agostini, State Oil Company
v. Khan, it's an issue that comes up on a regular basis, and
the Court has developed a body of law that would guide judges
and Justices when they decide whether to revisit a case.
The fundamental proposition is that it is not sufficient to
view the prior case as wrongly decided. That's the opening of
the process, not the end of the process. You have to decide
whether it should be revisited in light of all these
considerations.
Senator Grassley. Given your views on judicial restraint,
can you tell us to what extent you feel obliged to uphold a
decision which you found not to be based on the original intent
of the Constitution? Could you explain what factors or criteria
you might use to evaluate to see whether a decision deviated
from original intent and whether it should be overruled?
Judge Roberts. Well, again, you would start with the
precedents of the Court on that decision. In other words, if
you think the decision was correctly decided or wrongly
decided, that doesn't answer the question of whether or not it
should be revisited. You do have to look at whether or not the
decision has led to a workable rule. You have to consider
whether it's created settled expectations that should not be
disrupted in the interest of regularity in the legal system.
You do have to look at whether or not the bases of the
precedent have been eroded. Those are the main considerations
that the Court has articulated in a case like Dickerson, Payner
v. Tennessee, and the others. These are all the factors that
the Court looks at.
Obviously, a view about the case presents the question, but
the Court has emphasized it's not enough to think that the
decision is wrong to take the next step to revisit it and
overrule.
Senator Grassley. In your confirmation for the D.C.
Circuit, you answered a question, asked by another member,
whether you supported the originalist approach to
constitutional interpretation by saying this, so I hope I am
quoting you accurately: ``I do not have an all-encompassing
approach to constitutional interpretation. The appropriate
approach depends to some degree on the specific provisions at
issue. Some provisions of the Constitution provide considerable
guidance on how they should be construed; others are less
precise. I would not hew to a particular school of
interpretation but would follow the approach or approaches that
seem most suited in the particular case to correctly discerning
the meaning of the provision at issue.''
Could you explain what approaches you are talking about? I
am not sure in your quote what you are getting at. Secondly,
can you give some examples? And, three, I would like to know
when you do not believe that the originalist approach is the
right approach.
Judge Roberts. Well, I think it's very important to define
these terms. Let's take ``the originalist approach.'' I do
think it's the--that the Framers' intent is the guiding
principle that should apply. However, you do need to be very
careful and make sure that you're giving appropriate weight to
the words that the Framers used to embody their intent.
I think in particular of the 14th Amendment and the Equal
Protection Clause. There are some who may think they're being
originalists who will tell you, well, the problem they were
getting at were the rights of the newly freed slaves, and so
that's all that the Equal Protection Clause applies to. But, in
fact, they didn't write the Equal Protection Clause in such
narrow terms. They wrote more generally. That may have been a
particular problem motivating them, but they chose to use
broader terms, and we should take them at their word, so that
it is perfectly appropriate to apply the Equal Protection
Clause to issues of gender and other types of discrimination
beyond the racial discrimination that was obviously the driving
force behind it. That is an originalist view because you're
looking at the original intent as expressed in the words that
they chose, and their intent was to use broad language, not to
use narrow language.
There are some areas where a very strict textualist
approach makes the most sense. Obviously, the example I gave
earlier, two-thirds means two-thirds. You don't say, well,
their purpose was to apply some super-majority requirement, and
now that we have more Senators, three-fifths will give effect
to that intent. Nobody would apply that approach. You stick to
the language.
In other areas, the Court's precedents dictate the
approach. This is not something that is purely a matter of
academic exercise. For example, on the Seventh Amendment, the
right to a jury trial, the Court has been very specific. We
have a historical approach there. The job of a judge is to sort
of look at whatever action is and try to analogize it. What
would that be most like in 1787? And if you got a jury trial
for that, you get one today; and if you didn't, you don't. It's
a purely historical approach.
So the approaches do vary, and I don't have an overarching
view. As a matter of fact, I don't think very many judges do. I
think a lot of academics do. But the demands of deciding cases
and the demands of deciding cases by committee, either a group
of three or a group of nine, I find with those demands the
nuances of academic theory are dispensed with fairly quickly,
and judges take a more practical and pragmatic approach to
trying to reach the best decision consistent with the rule of
law.
Senator Grassley. I am going to go to an issue that Senator
Kennedy left off with regarding the Grove City case. And I have
the memo that was involved in this issue before me. And I see
the memo being a summary of former Education Secretary Bell's
views on this issue. But Senator Kennedy left out what your
assessment was on it, and you wrote these words: ``As a
practical matter, however, I do not think the administration
can revisit the issue at this late date.''
Can you tell us what your position was in this memo? And
Mr. Chairman, I would like to have this entire memo submitted
for the record.
Chairman Specter. Without objection, it will be admitted as
part of our record.
Judge Roberts. The issue was the--in the Grove City case,
the Court had said that receipt of financial aid by students
triggered coverage under the civil rights statutes, limited to
the admissions office, the admissions policies. The Civil
Rights Restoration Act changed that result to say that the
limitation was not to the admissions office but applied more
generally to the institution.
Secretary Bell submitted a proposal. He said, well, if it's
going to apply more generally to the institution, then the
trigger of simply having students who receive financial aid
shouldn't be enough. And the position that we took in response
to Secretary Bell's proposal was no, that we weren't going to
revisit it. We had argued earlier in Grove City that financial
aid was enough to trigger coverage and we weren't going to
revisit that question. The position was that coverage of the
entire institution based on receipt of financial aid was
appropriate.
Senator Grassley. So Senator Kennedy's words were not
quoting you but quoting words that Secretary Bell had in this
memo, and you were reacting to those.
Judge Roberts. Well, it's, again, 23-some years ago. But my
recollection is that that was his proposal. Our response was
that, no, we're not going to do that, we're not going to change
the position we've taken in light of the new legislation.
Senator Grassley. Some outside groups have claimed that you
are hostile to civil rights. Others have suggested, in my view
incorrectly, that you have an off-the-mark view of the Voting
Rights Act. I believe these allegations to be inaccurate, and I
would like for you to set the record straight. As you may know,
I have long been a supporter of the Voting Rights Act. I
appeared at a news conference with Senator Dole and Kennedy and
some others in 1982 with that compromise that you have referred
to. The Voting Rights Act has had a very significant impact on
racial discrimination, probably more than anything else that
Congress has done since the adoption of the Civil War
Amendments.
Your critics take issue with some of your memos which
outline the arguments in the debate over whether Section 2
should have an effects test or an intent test. Specifically,
there was a debate in Congress over concerns that the effects
test could lead to legal requirements that racial quotas be
mandated for legislatures and other elected bodies. Ultimately,
the Voting Rights Act was reauthorized with a provision
expressly prohibiting parts from requiring racial quotas. We
were able to craft a good compromise that gave greater
protection to minority voters while not requiring quotas.
Judge Roberts, could you tell us what your role was as an
assistant to Attorney General Smith in developing the Reagan
policy on the Voting Rights Act?
Judge Roberts. Well, President Reagan's policy and the
Attorney General's policy was to support the longest extension
of the Voting Rights Act in history without change. Some in the
Congress wanted to amend the Voting Rights Act Section 2 to
overturn the Supreme Court's decision in Mobile v. Bolden. And
that's what the debate was about, whether it should be an
intent test under Section 2 or an effects test. Everybody
agreed that Section 5, the pre-clearance provision, which
applied to jurisdictions with a history of discrimination, had
an effects test and should continue to have an effects test.
The debate was about Section 2 and whether it should be an
intent test or an effects test. But there was no disagreement
among President Reagan, Attorney General Smith. Those of us on
Attorney General Smith's staff, like myself, thought that the
protection of the right to vote was critical, that the Voting
Rights Act had been extraordinarily effective in preserving
that right and should be extended. The debate was solely over
whether or not Section 2 should be changed. And Senator Dole,
working with other Members of the Senate, crafted a compromise
that resolved that dispute. As you said, it put an effects test
in Section 2, put in additional language to guard against the
sort of proportional representation that was certainly the
concern of Attorney General Smith and President Reagan, and
that was enacted into law with the President's support.
But there was no disagreement about the critical nature of
the right to vote, the notion that it was preservative of all
other rights, and the question was simply about how it should
be extended, whether extended as is or extended with the change
that was enacted under the compromise.
Senator Grassley. My time is just about out so I will ask a
very short question. During your tenure at the Solicitor
General's office, didn't you sign on to a number of briefs that
urged the Supreme Court to adopt a broad interpretation of the
Voting Rights Act, its new requirements, and to require
expansive remedies when States violate the Act? And didn't some
of those briefs take the same side as the ACLU, the Mexican-
American Legal Defense and Education Fund, and the Lawyers
Committee for Civil Rights Under the Law?
Judge Roberts. Yes. It was the responsibility of the
Justice Department and, before the Supreme Court, of course,
the Office of the Solicitor General to enforce the civil rights
laws, in particular the Voting Rights Act, as vigorously as
possible. And that's what we did.
Senator Grassley. Thank you.
Chairman Specter. Thank you, Senator Grassley.
Senator Biden?
Senator Biden. Thank you very much. Hey, Judge, how are
you?
Judge Roberts. Fine, thank you.
Senator Biden. You know, to continue your baseball analogy,
I would much rather be pitching to Arthur Branch, sitting
behind you there, on ``Law & Order,'' than you. It is like
pitching to Ken Griffey. I am a little concerned here. I would
like you to switch places with Thompson. I know I know as much
as he does; I don't know about you.
[Laughter.]
Senator Biden. But Judge, look. I am going to try to cut
through some stuff here if I can. I said yesterday this
shouldn't be a game of gotcha--you know, we shouldn't be
playing a game, the folks have a right to know what you think,
you are there for life, they don't get to--this is the
democratic moment. They don't get a chance to say, you know, I
wish I'd known that about that guy, I would have picked up the
phone and called my Senator and said Vote No. Or Vote Yes.
Whichever.
And so what I would like to do is stick with your analogy a
little bit because everybody has used it--baseball. By the way,
to continue that metaphor, you hit a home run yesterday. I
mean, you know, everybody--I got home and I got on the train
and people were saying, ``Oh, he likes baseball, huh? ''
Seriously. The conductors, people on the train. And it is an
apt metaphor because, you know, you just call balls and
strikes, call them as you see them, straight up.
But as you well know--I would like to explore that
philosophy a little bit because you got asked that question by
Senator Hatch, about what is your philosophy, and the baseball
metaphor is used again. As you know, in major league baseball,
they have a rule--Rule 2.00 defines the strike zone. It
basically says from the shoulders to the knees. And the only
question about judges is, ``do they have good eyesight or not?
'' They don't get to change the strike zone. They don't get to
say that was down around the ankles, you know, and I think it
was a strike. They don't get to do that.
But you are in a very different position as a Supreme Court
Justice. As you pointed out, some places of the Constitution
define the strike zone--two-thirds of the Senators must vote,
you must be an American citizen, to the chagrin of Arnold
Schwarzenegger, to be President of the United States--I mean
born in America to be a President of the United States. They
are all--the strike zone is set out. But as you pointed out in
the question of Senator Hatch, I think you said unreasonable
search and seizure; what constitutes unreasonable?
So, as much as I respect your metaphor, it is not very apt
because you get to determine the strike zone. What is
unreasonable? Your strike zone on reasonable or unreasonable
may be very different from another judge's view of what is
reasonable or unreasonable search and seizure.
And the same thing prevails for a lot of other parts of the
Constitution. The one that we are all talking about and
everybody here from left, right, and center is concerned about
is the Liberty Clause of the 14th Amendment. It doesn't define
it. All the things we debate about here, and the Court debates,
the 5-4 decisions, they are almost all on issues that are
ennobling phrases in the Constitution that the Founders never
set a strike zone for. You get to go back and decide. You get
to go back and decide, like in the Michael H. case, do you look
at a narrow or a broad right that has been respected? That is a
strike zone.
So, as Chris Matthews last night said, let's play hardball
here. And I was, like, it is a little dangerous to play
hardball with you, like I said. But really and truly, it seems
to me maybe we can get at this a different way.
The explicit references in the Constitution are, you know,
there is nothing anyone would suspect you or any other judge
would do anything about. You wouldn't say, you know, that's a
really bad treaty they're voting on, so you ought to make it
require 75 votes in the Senate. You can't do that. But again,
you know, as Justice Marshall said, and I quoted him yesterday,
he said that--Marshall's prescription that the Constitution
endure through the ages--I might add, without having to be
amended over and over and over again. After the first ten
amendments, we haven't done this very much in the last 230
years.
So, many of the Constitution's most important provisions
are not the precise rules that I have referenced earlier. And
sometimes, the principles everyone agrees on are part of the
Constitution are, as the late Chief Justice, your mentor, said,
``tacit postulates.'' He used that, as you know, in a case just
before you got there, Nevada v. Hall. But he used the phrase
``tacit postulates.'' He said that these tacit postulates are
as much ingrained in the fabric of the document as its express
provisions. And he went on to conclude that--this case is not
particularly relevant, but the point is, I think. The case in
which Chief Justice Rehnquist made this vital point was about
States' rights and language that didn't speak directly to them
in the Constitution. And he concluded the answer was a rule he
was able to infer from the overall constitutional plan.
So Judge, you are going to be an inferer. You are not going
to be an umpire. Umpires do not infer. They do not get to
infer. Every Justice has to infer. So I want to figure out how
you infer. I want to figure out how you go about this. So let
me get right to it.
And I want to use the Ginsburg rule. I notice I am quoted
all the time about Ginsburg--``Judge, you don't answer that
question.'' I might point out that Justice Ginsburg, and I
submit this for the record, commented specifically on 27 cases,
27 specific cases. I will just speak to a couple of them here.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Biden. I thank you very much.
Now, you have already said to the Chairman that you agree
that there is a right to privacy. And you said that the Supreme
Court found such a right, in part, in the 14th Amendment. My
question is do you agree that there is--not what settled law
is. What do you think? Do you agree that there is a right of
privacy to be found in the Liberty Clause of the 14th
Amendment?
Judge Roberts. I do, Senator. I think that the Court's
expressions, and I think if my reading of the precedent is
correct, I think every Justice on the Court believes that to
some extent or another. Liberty is not limited to freedom from
physical restraint. It does cover areas, as you said, such as
privacy, and it's not protected only in procedural terms but it
is protected substantively as well. Again, I think every member
of the Court subscribes to that proposition. If they agree with
Bolling v. Sharpe, as I am sure all of them do, they are
subscribing to that proposition to some extent or another.
Senator Biden. Do you think there is a liberty right of
privacy that extends to women in the Constitution?
Judge Roberts. Certainly.
Senator Biden. In the 14th Amendment?
Judge Roberts. Certainly.
Senator Biden. Now, I assumed you would answer it that way.
Let me suggest to you also that I asked--I asked Justice--or I
am not sure whether I asked or one of our colleagues asked
Justice Ginsburg the question of whether or not it would be a
ball or a strike if in fact a State passed a law prohibiting
abortion. And she said that's a foul ball. They can't do that.
And let me quote her. She said, in response to Senator,
former--I was going to say ``Brownback''--Senator Brown when he
was here, when she was up, of Colorado. She said, quote:
``Abortion prohibition by the State controls women and denies
them full autonomy and full equality with men.'' It would be
unconstitutional.
What is your view, according to the Ginsburg rule?
Judge Roberts. Well, that is in an area where I think I
should not respond.
Senator Biden. Why?
Judge Roberts. Because--
Senator Biden. You said you would abide by the Ginsburg
rule.
Judge Roberts. Then-Judge Ginsburg and now Justice Ginsburg
explained that she thought she was at greater liberty to
discuss her writings. She'd written extensively on that area
and I think that's why she felt at greater liberty to talk
about those cases.
In other areas, where she had not written, her response was
that it was inappropriate to comment. In particular, I remember
her response in the Mayer and the Harris cases. She said those
are the Court's precedents; I have no agenda to overrule them,
and I will leave it at that.
And I think that's important to adhere to that. Let me
explain very briefly why. It's because if these questions come
before me, either on the court on which I now sit or, if I am
confirmed, on the Supreme Court, I need to decide those
questions with an open mind on the basis of the arguments
presented, on the basis of the record presented in the case,
and on the basis of the rule of law, including the precedents
of the Court, and not on the basis of any commitments during
the confirmation process. The litigants have a right to expect
that of the judges or Justices before whom they appear.
And it's not just Justice Ginsburg who adhered to that
rule. I've gone back and read--
Senator Biden. Well, she obviously didn't adhere to it with
regard to--
Judge Roberts. Well, I explained why she felt at liberty to
comment--
Senator Biden. Well, how is that different? That, I would
suggest, Judge, is a distinction without a difference in terms
of litigants, the way you just explained it. Does a litigant in
fact say because a judge wrote about it and then spoke to it as
a judge that somehow I am going to be put at a disadvantage
before that judge on the court? That is a stretch, Judge.
Judge Roberts. Well, that's how Judge Ginsburg explained it
at her nomination hearings. She said she could talk about the
issues on which she had written.
Senator Biden. Did that make sense to you?
Judge Roberts. I think it does make sense that she can be
questioned about the articles that she'd written because they
raised certain questions and she felt at liberty to discuss
those. I think it's something entirely different if you talk
about an area that could come before the Court. This is an area
that cases are pending before the Court and they will be
pending in the future.
Senator Biden. Well, let's try some things she didn't write
about that she talked about. Let's see if you can talk about
them.
One is she talked about Moore v. East Cleveland. You are
much more familiar with the case than I am. That is a case
where the city came along--and I am going to do this shorthand
in the interest of time--and said a grandma living in an
apartment with her blood grandchildren who were cousins, not
brothers, violated the law. And the Chief said, in the minority
opinion, your mentor, he said, the interest that grandmother
may have ``in permanently sharing a single kitchen and a suite
of contiguous rooms with some of her relatives simply does not
rise to [the level of a constitutional right]. To equate this
interest with fundamental decisions to marry and to bear and
raise children is to extend the limited substantive contours
[of the Constitution] beyond recognition.''
Do you agree with his statement?
Judge Roberts. You know, I have no quarrel with the
majority's determination and--
Senator Biden. Not my question, Judge.
Chairman Specter. Let him flesh his answers out.
Judge Roberts. I understand that. And I'm concerned about
ramifications in which the issue could come up. But I have no
quarrel with the majority's determination--
Senator Biden. Justice Ginsburg answered the question. She
never wrote about it. She answered it specifically.
Judge Roberts. Well, I think--
Senator Biden. She went on to say that--and let me quote.
She said, ``Yes, he goes on--'' This is quoting Justice
Ginsburg. ``He goes on to say that `history counsels caution
and restraint,' and I agree with that. He then says--this is
referring to the majority opinion--`but it does not counsel
abandonment,' abandonment of the notion that people have a
right to make certain fundamental decisions about their lives
without interference from the State. And what he next says is
`history doesn't counsel abandonment, nor does it require what
the city is urging here,'--cutting off the family right at the
first boundary, which is the nuclear family. He rejects that.
I'm taking the position I have all the time--'' and she goes on
to say--
She says uh-uh. She thinks your old boss was dead wrong.
She said so. And she said the majority was dead right. Ginsburg
rule. What do you think? She never wrote about it.
Judge Roberts. Senator, I think nominees have to draw the
line where they're comfortable. It's a matter of some--
Senator Biden. Well, you are admitting you are not applying
the Ginsburg rule.
Chairman Specter. Senator Biden, let him finish.
Senator Biden. I don't have much time. But go ahead.
Judge Roberts. It's a matter of great importance not only
to potential Justices but to judges. We're sensitive to the
need to maintain the independence and integrity of the Court. I
think it's vitally important that nominees, to use Justice
Ginsburg's words, no hints, no forecasts, no previews. They go
on the Court not as a delegate from this Committee with certain
commitments laid out and how they're going to approach cases.
They go on the Court as Justices who will approach cases with
an open mind and decide those cases in light of the arguments
presented, the record presented, and the rule of law. And the
litigants before them have a right to expect that and to have
the appearance of that as well.
That has been the approach that all of the Justices have
taken.
Senator Biden. That is not true, Judge. Justice Ginsburg
violated that rule, according to you. Justice Ginsburg said
precisely what positions she agreed on. Did she in fact somehow
compromise herself when she answered that question?
Judge Roberts. She said no hints, no forecasts--
Senator Biden. No, no.
Judge Roberts.--no previews.
Senator Biden. Judge, she specifically, in response to a
question whether or not she agreed with the majority or
minority opinion in Moore v. East Cleveland, said explicitly, I
agree with the majority. And here's what the majority said and
I agree with it.
My question to you is, do you agree with it or not?
Judge Roberts. Well, I do know, Senator, that in numerous
other cases--because I read the transcript--
Senator Biden. So did I, Judge.
Judge Roberts.--she took the position that she should not
comment. Justice O'Connor took the same position. She was asked
about a particular case--
Senator Biden. Aw, Judge, Judge--
Judge Roberts. She said, It's not correct for me to
comment.
Now, there's a reason for that, Senator.
Senator Biden. But you are going from--
Chairman Specter. Wait a minute, Senator Biden. He has not
finished his answer.
Senator Biden. He's filibustering, Senator.
[Laughter.]
Senator Biden. But okay, go ahead.
Chairman Specter. No, he's not. No, he's not.
Judge Roberts. That's a bad word, Senator.
Senator Biden. That's what we do, too. Go ahead. Go ahead
and continue not to answer.
[Laughter.]
Judge Roberts. Senator, my answer is that the independence
and integrity of the Supreme Court requires that nominees
before this Committee for a position on that Court not
forecast, give predictions, give hints about how they might
rule in cases that might come before the Court.
Senator Biden. I got that. Did Justice Ginsburg give a
hint?
Judge Roberts. I'm not going to comment on whether or not a
particular nominee adhered to the approach that they announced.
Senator Biden. Well, let's make it clear. She did not.
Let's stipulate she did not adhere to the approach. I don't
have time because we don't have as much time, but I could list
for you for half an hour the questions she answered, the
questions Kennedy, Souter--all the Justices, almost, with one
exception, answered specific questions, which you are not
answering and--
Judge Roberts. Senator--
Senator Biden. Let me go on to my next question. Violence
Against Women--and I realize it is a bit of a hobby horse for
me since I wrote the legislation, and I know people say they
wrote things. I mean, I actually did write that my little old
self, with my staff. And no one liked it, I might add, at
first--women's groups or anybody else.
But in 1999, you said, in response to a question--you were
on a show. It was 1999. You were talking about a number of
things, and you said, and I quote, ``You know, we've gotten to
a point these days where we think the only way we can show
we're serious about a problem is if we pass a Federal law,
whether it's the Violence Against Women Act or anything else.
The fact of the matter is conditions are different in different
States, and State laws are more relevant. It is, I think,
exactly the right term. More in tune to different situations in
New York as opposed to Minnesota, and that's what the Federal
system is based upon.''
Judge, tell me how a guy beating up his wife in Minnesota
is in any different condition in New York.
Judge Roberts. Senator, I was not speaking specifically to
any piece of legislation there. That was making a very--
Senator Biden. Well, you mention Violence Against Women,
don't you?
Judge Roberts. That was the issue that had come up on the
show, and the general issue that was being addressed is a
question of federalism. I think it was part of the genius of
the Founding Fathers to establish a Federal system with a
national government to address issues of national concern;
State and local government more close to the people to address
issues of State and local concern; obviously, issues of overlap
as well. I was not expressing a view on any particular piece of
legislation. And I think the statement you read--
Senator Biden. Well, let me ask you--
Judge Roberts.--confirms that.
Senator Biden. Okay. Judge, is gender discrimination, as
you have written in a memo, a ``perceived'' problem or is it a
real problem?
Judge Roberts. The memo you talked about, Senator, I've had
a chance to look at it. It concerned a 50-State inventory of
particular proposals to address it. ``Perceived'' was not being
used in that case to suggest that there was any doubt that
there is gender discrimination and that it should be addressed.
What it was referring to was a vast inventory, and I was not
sure if the particular proposals in each case were supported in
every State of the 50-State survey that was involved.
Of course, gender discrimination is a serious problem. It's
a particular concern of mine and always has been. I grew up
with three sisters, all of whom work outside the home. I
married a lawyer who works outside the home. I have a young
daughter who I hope will have all of the opportunities
available to her without regard to any gender discrimination.
There is no suggestion in anything that I've written of any
resistance to the basic idea of full citizenship without regard
to gender.
Senator Biden. Let me ask you a question then, Judge, and I
am glad to hear that. Do you think that if a State law
distinguishes between a right that your daughter may have and
your son may have or your wife may have or your sister may have
and your brother may have that the Supreme Court should engage
in heightened scrutiny, not just look and see whether or not it
makes any sense, but take an extra special look? You and I know
the terms, but the public listening here--the Supreme Court has
said since 1971, you know, when a State passes a law that
treats in any way different a woman than a man, there may be a
rationale for it, but the Supreme Court is going to take a very
close look--not strict scrutiny, which means you can hardly
ever get over that bar, like race, but can take a heightened
look, they are going to look at it more closely. Do you think
that that needs to be done, that the Constitution calls for
that?
Judge Roberts. Yes, Senator, I do. And I, again, always
have. The confusion is in the use of the term. There are those
who use the term ``heightened scrutiny'' to refer to what you
just called ``strict scrutiny,'' which is generally limited to
issues of race or similar issues. The discrimination on the
basis of gender, distinctions on the basis of gender, is
subject to what the Supreme Court has called ``intermediate
scrutiny.'' There has to be a substantial Government interest--
an important Government interest and a substantial connection
in the discrimination. But the Supreme Court's equal protection
analysis has three tiers now--
Senator Biden. I understand. My time is running out. I
would love to hear the explanation of the three tiers, but
let's stick to this one for just a second. Then explain to me
what you meant 10 years after the decision laying out this
level of scrutiny when you wrote in a 1981 memo to your boss,
you wrote that gender ``is not a criterion calling for
heightened judicial review.'' What did you mean by that?
Judge Roberts. Referring to what you called strict
scrutiny.
Senator Biden. He didn't know the difference between
heightened and strict?
Judge Roberts. Well, I was about to lay it out, and you
said you didn't want to hear about it.
[Laughter.]
Judge Roberts. Strict scrutiny is the--
Senator Biden. No, I know what that is. I wonder what you
meant by--
Chairman Specter. Senator Biden, let him finish his answer.
Senator Biden. But I have no time left, Mr. Chairman. I
understand the answer.
[Laughter.]
Senator Biden. I understand the Supreme Court has three
levels of scrutiny. My point was, in the context of this memo,
in the context of this memorandum, the question was whether or
not the Court should, in fact, have a heightened scrutiny.
Judge Roberts. And, Senator, the memorandum is using
``heightened scrutiny'' the way you used ``strict scrutiny,''
which is the scrutiny that's limited to the basis of race. The
gender discrimination is, as you know, subject to what is
called ``intermediate scrutiny,'' and that is not what the memo
is referring to with respect to heightened scrutiny. It's
referring to the strict scrutiny that's restricted to issues of
race and ethnicity.
Senator Biden. Well, I will come back to that in the second
round because that is not my reading of what you said. But let
me get on another issue here, again, in the sex discrimination
area.
The Attorney General for Civil Rights, a former Delawarean,
not viewed as a darling of the left, Bradford Reynolds, decided
that the Federal Government should take action against the
State of Kentucky, and they said that there is a very strong
record that the Kentucky prison system discriminates against
female prisoners. And I am going to finish my whole question.
And you wrote to the Attorney General, ``I recommend you do not
approve intervention in this case.'' And then you set out three
reasons why you shouldn't approve of it--not that there wasn't
discrimination. You said, one, that private plaintiffs are
already bringing suit; secondly, the United States' argument
would have been based upon giving higher scrutiny to claims of
gender classification; and, thirdly, that we need to be
concerned about tight prison budgets, you say, and you go on to
explain that if, in fact, you hold them to the same standard,
they may get rid of the program for the men.
Now, explain to me your thinking there. That seems to me--
Judge Roberts. I'm sorry. What was the date of the memo,
Senator?
Senator Biden. The date of the memo was February 12, 1982.
I will give you a copy, ask them to bring you down a copy of
the memo.
Judge Roberts. I can't elaborate on--I can't elaborate
beyond what's in the memo. I just--
Senator Biden. Well, I hope you don't still hold that view,
man. I mean, if the idea that you're not going to--that a
conservative civil rights--the head of the Civil Rights
Division in the Reagan administration says it is pretty clear
Kentucky is discriminating against women in their prison
system, and you say, in effect, that may be but, look, we
shouldn't move on it, I recommend we don't do anything about
this, and the reason we shouldn't do anything this is three-
fold: one, private citizens already went ahead and filed suit
on this; number two, if, in fact, you go ahead and do this,
they may do away with the system for the men because there's
tight budgets--and I forget the third one. You now have the
memo.
Judge Roberts. Well, I have the memo and see that one of
the areas that you mentioned I say that--and this is to the
Attorney General, and I say the reason we shouldn't do this is
because ``you have publicly opposed such approaches.'' So,
again, it would have been--
Senator Biden. It was only his idea, then? I mean, you were
just protecting him so he wouldn't be inconsistent?
Judge Roberts. I was a lawyer on his staff, and according
to this memorandum--and, again, I don't remember anything
independently of this 23 years ago. But the memorandum
suggests, a staff lawyer to his boss, that this is inconsistent
with what you have said. And, again, I guess I would regard
that as good staff work rather than anything else.
Senator Biden. I regard it as very poor staff work, with
all due respect, Judge, because it seems to me you insert your
views very strongly in here. You don't say you said this. You
say, ``And, by the way, there's other reasons why we shouldn't
do this. Assume you're saying you wouldn't go this route
before, but I want to give you more ammunition here, Brad.
Private plaintiffs have done this; it is inconsistent with
three themes in your judicial restraints effort: equal
protection claim, relief of a well-involved judicial inference,
et cetera; and, by the way, the end result may be with tight
budgets they may do away with this.''
My time is running out. I will come back to this. I hope
you get a chance to study it between now and the time we get
back to the second round.
The next question. You know, I find it fascinating, this
whole thing about Title IX and whether or not by Title IX--you
and I know what we are talking about, but for the public at
large who really has an interest in all of this as well, the
issue was whether or not when a student gets aid, whether or
not it only goes to the admissions piece of it.
Now, you said something that was accurate but I don't think
fulsome to Senator Kennedy, and correct me if I am wrong. You
said, look, we were arguing that it did apply--Title IX did
apply. If a student got aid, it applied to the university. That
was one of the questions, whether or not you have no
application or a narrow application. And you argued that it
should apply to the admissions process.
But there is a second issue in that case, and the second
issue is: Do you apply it narrowly only to do with the
admissions policy or do you apply it to if they are
discriminating in dormitories?
I got your answer on the first part. You thought it should
apply, at least narrowly. Were you arguing that it should apply
broadly? And this was before--let me make it clear. The
district court, I say to my friends--because I had forgotten
this. The district court had ruled that this only applies to
admissions, and there was a question. The Chairman of Reagan's
Commission on Civil Rights said we should get in on the side of
the plaintiff here, and we should appeal this to the Supreme
Court or to a higher court and say, ``No, no, this applies
across the board, this applies if you don't put money in sports
programs, you don't put money in dormitories, et cetera.''
What was your position on Reagan's Civil Rights Chairman,
Clarence Pendleton, suggesting that we appeal the decision of
the circuit court narrowly applying it only to the admissions
office?
Judge Roberts. Senator, I was a staff lawyer. I didn't have
a position. The administration had a position, and the
administration's position was the two-fold position you've set
forth. First, Title IX applies. Second, it applies to the
office, the admissions office.
Senator Biden. Only to the office, right? It applies
narrowly.
Judge Roberts. The question--
Chairman Specter. Now, wait a minute. Let him finish his
answer, Senator Biden.
Senator Biden. The answers are misleading, with all due
respect.
Chairman Specter. Well, they--
Senator Biden. Let me get--
Chairman Specter. Wait a minute, wait a minute. They may be
misleading, but they are his answers.
Senator Biden. Okay, fine.
Chairman Specter. You may finish, Judge Roberts.
Senator Biden. Fire away, Judge. At least I am
misunderstanding your answers.
Judge Roberts. With respect, they are my answers, and, with
respect, they're not misleading. They're accurate. This is a--
Senator Biden. I have now a minute and 45 seconds.
Judge Roberts.--dispute that was 20-some years ago. The
effort was to interpret what this body, Congress, meant. The
administration position was Federal financial aid triggers
coverage. It's limited to the admissions office. The United
States Supreme Court agreed on both counts.
Senator Biden. I understand that.
Judge Roberts. So I would say that the administration
correctly interpreted the intent of Congress in enacting that
legislation.
Senator Biden. Well, let me read what you wrote in that
memo. You said you ``strongly agree.'' Now, when my staff sends
me a memo saying, ``Senator, I recommend you do the following.
. .and I strongly agree,'' that usually is a pretty good
indication what they think. Now, maybe they don't. Maybe they
just like to use the word ``strongly.'' They said ``strongly
agree.'' It usually means they agree. Number one.
Number two, you went on to say, and I quote, that if you
have the broad interpretation, it will be--the Federal
Government will be rummaging ``willy-nilly through
institutions.'' So you expressed not only that you strongly
agree, but you thought that if you gave them this power to
broadly interpret it, to apply to dormitories and all these
others things, that they would willy-nilly--they would rummage
willy-nilly through institutions.
It seems to me you had a pretty strong view back then.
Maybe you don't have it now.
Judge Roberts. Well, and the Supreme Court's conclusion was
that that administration position was a correct reading of the
law that this body passed. So if the view was strongly held, it
was because I thought that was a correct reading of the law.
The Supreme Court concluded that it was a correct reading of
the law.
Senator Biden. Thanks, Judge.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you very much, Senator Biden.
We will recess now until 2:15.
[Whereupon, at 12:48 p.m., the Committee recessed, to
reconvene at 2:15 p.m., this same day.]
AFTERNOON SESSION [2:16 p.m.]
Chairman Specter. We will resume the confirmation hearing.
I have been asked to delay by two minutes the starting time so
the electronic media can make appropriate introductions, and
then I have also been told that my watch is a minute fast, and
so we are going to correct all those miscues.
For 30 minutes, Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman.
There are several preliminary things I would like to do and
then get into a couple of questions that I wanted to ask you,
Judge.
First, to my colleagues, with reference to some questions
that attacked policy positions of the Reagan administration
when you were working there as a lawyer, Judge Roberts, I tend
to agree with you that it wouldn't be appropriate in your role
as a current judge, not to mention your service on the Supreme
Court, to be put in the position of defending policy positions
of the previous administration. But to the extent my colleagues
would like to engage in that debate, probably not in this
forum, I would be happy to accommodate them in that matter.
Judge, as to your role, I appreciate, frankly, your candor
and the clarity of what you have said, and you have said a
great deal here. Obviously, you have drawn the line at issues
that may come before the Court, but I think you have already
added to what we knew about your approach to judging. That is
the key question here, and I appreciate what you have added to
that, and I will get into a little bit more of that in a
moment.
There are a couple of other items that I would like to
clarify. Our colleague, Senator Biden, had engaged you in a
colloquy regarding some testimony given by Justice Ginsburg and
he suggested that Justice Ginsburg was asked about a specific
case called Moore v. City of Cleveland and that even though she
had not written about that case, she volunteered to speak about
it.
Now, I think, appropriately, you are not going to be a
judge or umpire in this case as to whether she did or did not
exceed the rule that she set down. That would be highly
inappropriate. But I would like to correct the record because
that isn't what transpired.
I won't read the entire transcript here, but would ask that
the relevant portions be inserted in the record at the
conclusion of my remarks.
But just to set the background, she is testifying here in
response to questions by Senator Hatch and she said, ``I have
said to this Committee that the finest expression of that idea
of individual autonomy and personhood and of the obligation of
the State to leave people alone and to make basic decisions
about their personal life, Justice Harlan's dissenting opinion
in Poe v. Ullman.'' Senator Hatch said, ``Right.''
And then Judge Ginsburg said, ``After Poe v. Ullman, I
think the most eloquent statement of it, recognizing that it
has difficulties, and it certainly does, is by Justice Powell
in Moore v. City of East Cleveland, the case concerning the
grandmother who wanted to live with her grandson. Those two
cases more than any others, Poe v. Ullman, which was the
forerunner of the Griswold case, and Moore v. City of East
Cleveland, explain the concept far better than I can.'' And
then there are other things that occur in the transcript.
My point here is to note that she was not asked a specific
question about this case. She volunteered it as one of two
cases that had interesting language that expressed what she
wanted to express with regard to the principle of individual
autonomy and personhood.
And then further down in the transcript, she said,
``Senator Hatch, I agree with the Moore v. City of East
Cleveland statement of Justice Powell.'' She goes on to
describe how he reached it. And later, Senator Hatch said,
``You mean with the position of Justice Powell?'' And Justice
Ginsburg said, ``The position I have stated here. You asked me
how I justify saying that Roe has two underpinnings, the equal
dignity of the woman idea and the personhood idea of individual
autonomy and decision making. I point to those two decision
opinions as supplying the essential underpinning.''
And then she said, ``In taking the position I have in all
of my writings on this subject, I must associate myself with
Justice Powell's statements. Otherwise, I could not have
written what I did.''
The point is, this is a matter on which she had written
extensively and, therefore, it is not the case, (A) that she
was asked about the case and was responding, but rather, she
brought the decision up; and (B) she used it to illustrate what
she had already written about extensively. So I think that will
help to clarify the record. We will put those portions of the
transcript in the record and people can judge for themselves
whether she violated the rule which she has laid down, a rule
which you subscribe to with respect to giving hints or ideas
about how you might rule in future cases.
If you would like to comment on any of that, you certainly
may, but I doubt that you would want to do so.
The other item that I would like to insert in the record is
a memorandum, and this was discussed, I believe, in Senator
Biden's questioning, regarding a memorandum dated February 12,
1982 addressing proposed intervention in Canterino v. Wilson,
and there were excerpts of that memorandum read to you and you
were asked to respond. I would like to have the entire
memorandum inserted in the record at this point so that people
can judge for themselves.
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Kyl. Thank you very much, Mr. Chairman.
Now, Judge Roberts, one of the themes in the statements of
my colleagues, particularly on the other side of the aisle,
yesterday was an expression of concern that you might, as a
Supreme Court Justice, undo what they described as progress.
This progress is represented for my colleagues by some of the
Court's decisions over recent decades and also by some
legislation. My colleagues expressed a heartfelt concern for
preserving this progress. Another one of my Democratic
colleagues endorsed a standard that a past member of this
Committee articulated for evaluating nominees. He asked, will
the nominee expand or contract freedom? You recall that.
Progress and freedom. I think any American would find it
quite difficult to quibble with these two ideals. I do not
think that you will find a Member of the Senate who would not
express support for both progress and freedom, and for many of
the specific reforms that have been discussed.
But as I thought about those two words last night and about
my colleagues' genuine concern for protecting what they
understand as progress and freedom, I began to ask myself what
those two words actually mean in the context of your nomination
and the Court's function more generally.
When can we say that a particular decision by the Supreme
Court expands or contracts progress or freedom? Actually, it is
a little more complicated as you stop and think about it. For
example, earlier this year, the Supreme Court issued a decision
that allows the government to take one private individual's
property to transfer that property to another private
individual or entity. The Court's majority held that such an
action is consistent with the Constitution's public use
requirement for takings of property so long as there is some
indirect benefit to the government, so long as, for example,
the government expects to receive more tax revenues from the
second party's use of the property.
All of the most commonly described liberal members of the
Supreme Court joined in the opinion, and I am certain that the
types of involuntary government-engineered development projects
that this decision allows will be viewed by many as progress. I
am not so sure. Is it really progress for one more politically
influential private party to be able to use the government's
power of eminent domain to take another, less politically
connected, individual's property that this is constitutional so
long as the government anticipates increased tax revenues? I
don't think this precedent represents an advance of either
progress or freedom, in other words.
In 1975, the Court issued an important decision giving
public school students the right to a hearing before they are
suspended for disciplinary decisions, and the net effect of
these decisions, as many school administrators and teachers
have told me, has been to make school discipline much harder to
implement and enforce. The procedures, for example, for
removing a disruptive student from the classroom have become
sufficiently involved that in many cases, the school simply
doesn't do it. The student remains in class and the other
students' learning suffers.
The writer David Frum has described this line of Supreme
Court decisions as the ``Bad Kid's Magna Carta.'' Many older
teachers, in particular, can describe the decline in school
discipline and order that followed from these decisions, and I
am not sure that even though many would subscribe to the
decision of the Court, that it really represents an advance of
freedom or progress, especially if most children are less free
in their school environment.
In 2003, the Supreme Court issued a decision that
effectively prevents the government from outlawing child
pornography if that pornography is made with computer-generated
images of children. The effect of these decisions is that a
whole class of child pornography effectively can't be
prohibited. Many of those who work in the criminal justice
system, particularly those familiar with sex offenders and
their mindset, have expressed grave concern about the decision.
They believe that the existence and availability of this kind
of pornography can affect the behavior of certain sex
offenders, that it sends them the message that their impulses
are not shameful, but rather that they are shared by others and
can be indulged.
Again, I have no doubt that some view this decision as an
advance of freedom, and again, I would disagree. A world where
these types of sexual crimes occur with frequency is a world
where parents are constantly afraid for their children, afraid
to let them play outside alone, to go outside of their sight,
even afraid to let them go on the Internet, and I don't see
this as an advance of freedom.
The conclusion that I have, and there are other decisions
we could point to, but what I have come to conclude is that it
is not your function as a judge to decide how best to advance
progress and freedom, that these are decisions that all
Americans need to be involved in making, sometimes through
their elected representatives. The formula for creating
progress and freedom in society is not predetermined, but
rather both of these values require a balance of competing
values. Society needs order and stability on the one hand,
individual autonomy on the other: there are few absolutes.
So really the question here is how you view your role as a
judge with respect to this concept of advancing freedom and
progress, especially since you cannot, for the most part,
choose what cases come before you to decide. What is your take
on your role if you were to become the Chief Justice of the
United States Supreme Court in considering this notion of
advancing freedom and progress through your decision making?
Judge Roberts. Well, Senator, judges and Justices do have a
side in these disputes. They need to be on the side of the
Constitution, and in most of these areas, what the Constitution
provides is that these sorts of policy debates, which approach
is better suited to promote freedom or to promote progress are
vested in the legislative branch. There are areas where the
Constitution sets aside certain areas, in the Bill of Rights
and other protections of liberty, and says that these areas are
beyond the reach of the policymaking branches and judges and
Justices have the responsibility to enforce those provisions in
the Constitution. But outside of that, judges and Justices
should not take sides in these disputes.
I think people on both sides need to know that if they go
to the Supreme Court that they're going to be on a level
playing field, that the judge is going to interpret the law,
that the judge is going to apply the Constitution and not take
sides in their dispute. That's what this body is for in
Congress and in the State legislatures, to resolve those types
of policy disputes. So long as the resolution is consistent
with the Constitution, that's what the judges are there to
ensure, and so long as they ensure that, the Framers' notion
was that freedom and progress would be advanced by allowing
those decisions to be made by the people's elected
representatives.
Senator Kyl. I appreciate that. You said in response to
another question, you used the phrase ``as applied.'' Most of
the lawyers appreciate what you meant by that, but I wonder if
you could elucidate, particularly for those who are not learned
in the law, what the difference is between dealing with a case,
an issue of constitutionality, per se, or an ``as applied''
context, and how it is possible, for example, in Case No. 1 to
uphold the constitutionality of a law on its face, and yet in
Case No. 2, a court comes down a few years later to declare
that in that situation, the statute is unconstitutional as it
is applied to the facts of that case. How can that be?
Judge Roberts. Well, the distinction is a basic one in
constitutional law. If you have a facial challenge to a law, as
we call it, or a per se challenge might be another way to put
it, you're basically saying the law is unconstitutional without
regard to the facts of the case, without regard to the record,
whatever the application might be, whoever the parties
challenging it might be, there's something about the law so
fundamentally flawed that it's unconstitutional however it's
going to be applied. That's a fairly narrow category of cases.
The other category is so-called as-applied challenge. You
have a law that you know is not facially unconstitutional, but
it may be applied in an unconstitutional manner. An easy
example, you have a normal statute that's perfectly
constitutional. If it's applied in a discriminatory manner, it
may be unconstitutional as applied in that case. If it can be
applied in a constitutional manner, you know, so long as the
facts are a certain way, and if the facts turn out in the
record not to meet those requirements, then it can be
unconstitutional as applied, and in those situations you do
need to know what the record is, you do need to know what the
facts are, because the challenge might be, this law may be fine
for other cases, but when you apply it to this case, when you
apply it to this record or these facts, then it's
unconstitutional. So a statute that is constitutional on its
face can always be applied in an unconstitutional way, and so
you can't give a categorical determination that there is no way
in which that statute could ever be unconstitutionally applied.
Senator Kyl. This is another reason why, when you are
asked, ``Well, would you agree that a certain decision is a
good decision and should be maintained as part of our
jurisprudence and so on?'' In addition to not wanting to give a
hint as to how you might rule on a case, to some extent it is
impossible to say because you do not have the facts of the case
before you and the facts of Case A could cause you to render a
different decision than the facts of Case B.
Judge Roberts. Well, that's right, and particular
precedence obviously could be applied to variations on the fact
situation that gave rise to that precedent, and sometimes those
facts lead to a different results, sometimes those facts don't.
And it makes sense to continue to apply it in a particular
manner. But again--and I think most judges are of this view--
that the facts are a critical part of the resolution of any
dispute.
Senator Kyl. I know perhaps to non-lawyers this can cause
frustration, ``just tell me one way or the other,'' but judges
have got to be fair to make sure that they do not treat all
cases the same because the differences of fact could make the
difference between your ruling one way or another in a case,
and every litigant probably feels that their case is a little
bit unique. Judges need to think about that and certainly need
to be willing to consider that this person's case might be
unique, and therefore, it has to be looked at in a different
way than a similar but perhaps not identical case.
Judge Roberts. And of course, that's a lot of how the law
develops, and as lawyers arguing in court, a lot of what I used
to spend my time doing was saying, ``This precedent doesn't
apply,'' and the reason it doesn't apply is because these facts
are different, and so you should reach a different result, or
arguing that this precedent does apply even though these facts
are different. The reasoning still covers that situation, and
then that leads to the next case and so on, and it's that sort
of gradual development of the law that helps shape the rule of
law.
Senator Kyl. Now, you have seen that each one of us have a
couple of soap boxes that we like to mount, and after about 5
minutes of our opinion, then we ask you a question. I have one
of those for you, something that has been bugging me.
There has been a lot of discussion about the Supreme
Court's reliance, or even reference to foreign law to determine
the meaning of the United States Constitution. I just wanted to
note a couple of the cases in which this was done recently.
A case this year, Roper v. Simmons, in which the Supreme
Court reversed a prior precedent and decided that it would be
unconstitutional to execute a man who was 17 at the time that
he brutally murdered a woman by throwing her off a bridge. In
deciding the case, the Supreme Court not only, in my view,
engaged in a questionable analysis of American law, it spent
perhaps 20 percent of its legal analysis discussing the laws of
Great Britain, Saudi Arabia, Yemen, Iran, Pakistan, Nigeria and
China. The Court claimed that we ought not ``stand alone'' on
this issue, and that we should pay attention to what other
nations do when we interpret our Constitution.
In 1999, Justice Breyer argued that the Court should
consider whether a long delay in executing a convicted
murderer, a delay, by the way, caused by his repeated and
arguably frivolous appeals, should be deemed cruel and unusual
under the Eighth Amendment. And he relied on the legal opinions
of courts in Zimbabwe, India, Jamaica and Canada.
The trend, if it is to become one, is greatly troubling to
me and to many of my colleagues. Our Constitution was drafted
by the Nation's Founders, ratified by the States, and amended
repeatedly through our constitutional processes that involve
both Federal and State legislators. It is an America
Constitution, not a European or an African or an Asian one, and
its meaning, it seems to me, by definition, cannot be
determined by reference to foreign law.
I also think it would put us on a dangerous path by trying
to pick and choose among those foreign laws that we liked or
didn't like. For example, many nations have a weak protection
for freedom to participate in or practice one's religion. Iran
and some other Middle Eastern nations come immediately to mind,
but even a modern western nation like France has placed
restrictions on religious symbols in the public square. That
would be highly unlikely to pass muster in U.S. Courts. Should
we look to France to tell us what the Free Exercise Clause
means, for example?
Even nations that share our common law tradition, such as
Great Britain, offer fewer civil liberty guarantees than we do,
and the press has far less freedom. Nations such as Canada have
allowed their judges to craft a constitutional right to
homosexual marriage.
There is a lot more to say on this subject, but I wanted to
hear from you, so my question is this: what, if anything, is
the proper role of foreign law in U.S. Supreme Court decisions?
Of course we are not talking about interpreting treaties or
foreign contracts, but cases such as those that would involve
interpretations of the U.S. Constitution?
Judge Roberts. Well, I don't want to comment on any
particular case, but I think I can speak more generally about
the approach. I know Justices Scalia and Breyer had a little
debate about it themselves here in town, and it was very
illuminating to get both of their views. And I would say as a
general matter that a couple of things that cause concern on my
part about the use of foreign law as precedent--as you say,
this isn't about interpreting treaties or foreign contracts,
but as precedent on the meaning of American law.
The first has to do with democratic theory. Judicial
decisions in this country--judges of course are not accountable
to the people, but we are appointed through a process that
allows for participation of the electorate, the President who
nominates judges is obviously accountable to the people. The
Senators who confirm judges are accountable to the people. In
that way the role of the judge is consistent with the
democratic theory. If we're relying on a decision from a German
judge about what our Constitution means, no President
accountable to the people appointed that judge, and no Senate
accountable to the people confirmed that judge, and yet he's
playing a role in shaping a law that binds the people in this
country. I think that's a concern that has to be addressed.
The other part of it that would concern me is that relying
on foreign precedent doesn't confine judges. It doesn't limit
their discretion the way relying on domestic precedent does.
Domestic precedent can confine and shape the discretion of the
judges.
In foreign law you can find anything you want. If you don't
find it in the decisions of France or Italy, it's in the
decisions of Somalia or Japan or Indonesia or wherever. As
somebody said in another context, looking at foreign law for
support is like looking out over a crowd and picking out your
friends. You can find them, they're there. And that actually
expands the discretion of the judge. It allows the judge to
incorporate his or her own personal preferences, cloak them
with the authority of precedent because they're finding
precedent in foreign law, and use that to determine the meaning
of the Constitution. I think that's a misuse of precedent, not
a correct use of precedent.
Senator Kyl. I appreciate that. We have precious little
time to discuss you personal career and views and I want to
take just a couple of minutes to give you an opportunity to
talk to us about a couple of things.
I see by the record that you have represented at least one
death row inmate on a pro bono basis, and I would love to hear
about how you took that case and how you dealt with that case.
Judge Roberts. I don't want to overly expand my role. It
was consistent with what I've done in other cases. There was a
particular appellate issue that arose. The firm had been
representing the inmate for some time. One of the senior
leading partners at the firm, Barrett Prettyman, had been
heavily involved in his case for many years. A particular
appellate issue came up and I was asked to get involved, and I
was happy to do that, and assist in that way. Again, it was
kind of consistent with the general approach. It was in an area
in which I was--had some experience and was happy to pitch in
and help in that area.
Senator Kyl. There is a story. It may be apocryphal, and if
so, you can disabuse us of it now, but is it really true that
you were required to argue a case before the Supreme Court on 2
days notice, and on that same day argued a case in the District
of Columbia Circuit Court, or is that not a correct story?
Judge Roberts. No. That's the way it happened. I was
scheduled to argue in the D.C. Circuit, and what happened is
the Friday before the Monday argument, the clerk of the court
called. We had a new lawyer who was not yet a member of the
Supreme Court bar in the office, and I think we considered it
kind of a pro forma matter, we were moving his admission pro
hac vice so he could argue that day. And I think this was the
Supreme Court's way of telling us that they didn't consider it
a pro forma matter. So we got notified the Friday night before
the Monday argument that they were not going to grant the pro
hac motion, which is of course to let him argue the case even
though he wasn't a member of the bar, and it fell to me to pick
up that case to be prepared to argue it Monday morning. Then in
the afternoon I went and did the argument in the D.C. Circuit,
which had been previously scheduled.
Senator Kyl. How did you do in the two cases?
Judge Roberts. Well, the Court got it right in each case.
[Laughter.]
Senator Kyl. Enough said. You know, another thing that
fascinated me, in clerking for two of the most incredible
jurists in United States history, Judge Friendly and Justice
Rehnquist--I was going to ask you privately but I just have to
ask you, and perhaps it would be illuminating for folks,
particularly law students. What did you learn from those two
very erudite men?
Judge Roberts. Well, I think different things, you pick up
different things. With Judge Friendly, it was he had such a
total commitment to excellence in his craft at every stage of
the process, just a total devotion to the rule of law and the
confidence that if you just worked hard enough at it, you'd
come up with the right answers. And it was his devotion to the
rule of law that he took the most pleasure in. He liked the
fact that the editorialists of the day couldn't decide whether
he was a liberal or a conservative, and he would be chastised
for the same opinion, depending on which paper had read it, as
either that conservative judge or that liberal judge, and
because he wasn't adhering to a political ideology, he was
adhering to the rule of law.
And his devotion to it went to the extent--and I know other
of his clerks had the same experience. I do remember one time
where he was assigned the opinion, and he kept writing it and
writing it, and he finally decided it was not right. And so he
wrote a dissent. And he circulated the best majority he could
come up with and said, ``I don't agree with it, here's my
dissent.'' And of course, as you might imagine, the other two
judges were persuaded by his dissent, and it came out that way,
a sort of open-mindedness at every stage, the appreciation that
it may not be the argument, it may not be the briefs, it may be
down to the actual writing that reveals what he thinks the
right answer is.
And also he did have an essential humility about him. He
was an absolute genius. I mean there's no doubt about it, and
certainly whatever he was reviewing, the decision of an agency,
the decision of its legislature, the notion of saying, you
know, we defer to them because it's their responsibility, I
think everybody would have agreed we would have a better result
if we just let him make the decision, regardless of what it
was. But he had the essential humility to appreciate that he
was a judge, and that this decision should be made by this
agency or this decision by that legislature.
And when you read his opinions, he doesn't just sort of,
you know, knock the pieces off the board. He marches through in
a very careful way to let you know exactly how he reached the
decision, why he went this way if there was a difference among
the precedents, why he chose that one if there was a question
of who has the responsibility, why he went that way, and lays
it all out in such a way that you can understand the result.
To this day, lawyers will say, when they get into an area
of the law and they pick up one of his opinions, that you can
look at it and it's like having a guide to the whole area of
the law.
With the then-Justice Rehnquist, who I clerked for the next
year, I do remember doing a draft for him once, and coming in
and he had thought that it was sort of the first topic sentence
of each paragraph was good, and the rest of it could be junked.
You know, I pushed back a little bit as I hoped was
appropriate, and he said at that point, he said, ``Well, I'll
tell you what. Why don't we put all this other stuff down in
footnotes? We'll just keep sort of the first sentence of each
paragraph, put the rest down in footnotes.'' And I figured,
well, that was a fair compromise.
So I would go back and rework it, and hand it to him with
some pride, and he looks at it and he says, ``Well, all right.
Now take out the footnotes.''
[Laughter.]
Judge Roberts. So one thing I learned from him was, I hope,
to try to write crisply and efficiently, that a lot of extra
stuff could be dispensed with, and just--so many people
mentioned it during his eulogies and at the sort of gathering
of the clerks, his general approach to the balance between work
and family life. I think that was a very important lesson to
learn at an early age.
Senator Kyl. Judge, thank you. I think that tells us not
only something about you as a person, about your style of
judging, but probably some good lessons for all of us. So thank
you very much.
Chairman Specter. Thank you, Senator Kyl.
Senator Kohl?
Senator Kohl. Thank you, Mr. Chairman.
Judge Roberts, yesterday you described your role as a judge
as just an umpire, as you called it, calling balls and strikes.
That is an interesting analogy for me as I have more than most
some personal experience with umpires and referees. But as all
of us with any involvement in sports know, no two umpires or no
two referees have the same strike zone or call the same kind of
a basketball game, and ballplayers and basketball players
understand that, depending upon who the umpire is and who the
referee is, the game can be called entirely differently.
When we look at real legal cases, I wonder whether or not
your analogy works. For example, in our private conversation, I
asked you whether the words of the Constitution must always be
interpreted in the same way as the authors originally intended.
For example, the 14th Amendment, which guarantees equal
protection under the laws to all citizens, was written at a
time when schools were, in fact, segregated based on race. And
yet in Brown v. Board of Education, the Equal Protection Clause
was interpreted to find segregation schools unconstitutional,
and you, of course, have endorsed that decision.
No one disagrees with that conclusion today, but would a
neutral umpire, as you described yourself yesterday, have
decided back in 1954 to expand the words of the Constitution
outside of the strike zone? Would a neutral umpire have
overturned a 58-year-old Supreme Court precedent and gone
against the understanding of the authors of the 14th Amendment
and also the views of almost half of the State legislatures at
that time in making the decision that they made?
Judge Roberts. Well, Senator, I think the answer to your
question is yes. The research into the original understanding
of the drafters of the 14th Amendment has expanded and changed
quite a bit, and I think a very good case can be made about
their views. But, more importantly, the issue was the
institution of public education wasn't as established at the
time as it was in 1954, the time of the crafting of the
amendment. And, you know, the Framers spoke in broad language,
and whether they specifically addressed the question of public
education or not isn't the limitation. Their intent was not
limited to the particular problem. They chose broad language,
and they should be held to their word. And I think it is
perfectly consistent with an original understanding to argue
and to conclude that their original understanding meant that
segregated schools were unconstitutional, not just in 1954 but
at the time they enacted the amendment. I think a strong case
can be made there.
And what was interesting about the Brown case--maybe it's
my own perspective, but if you look at the arguments in that
case, yes, John W. Davis arguing for the Board was arguing on
the basis of precedent in Plessy v. Ferguson, saying this is
the established law. But so was Thurgood Marshall. He went in
and he was arguing on the basis of more recent precedent,
Sweatt v. Painter, a more recent decision of the Court about
law school separate but equal. And he was saying you need to
build on that more recent precedent in addressing this case.
So the Court was not changing the strike zone. That wasn't
the way Marshall presented his argument. And it wasn't
necessary for them to say we're changing the rules of the game.
What was necessary for them to do and what Marshall was urging
them to do was to get it right when they had gotten it wrong in
Plessy.
Senator Kohl. Judge, back in 1954, clearly the Supreme
Court Justices were willing to step outside the box, to break
new ground, to do something that no one, no Court, no
legislature, no President had done before, and strike out in an
entirely new and positive direction for this country. They were
not umpires simply calling balls and strikes. They were
breaking new ground, and they did so in the best interest of
our country, didn't they?
Judge Roberts. Well, of course, it was a dramatic shift,
and the overruling of Plessy v. Ferguson was exactly that. My
point is simply that if you look at the Brown decision, it is
more consistent with the 14th Amendment and the original
understanding of the 14th Amendment than Plessy v. Ferguson,
and it's based on the conclusion that the separation of the
races in the schools was itself a violation of equal
protection. In other words, it's not a departure from the 14th
Amendment. It was a departure from the--
Senator Kohl. But it was ground-breaking.
Judge Roberts. Certainly.
Senator Kohl. One more observation, Judge, about your
analogy of the judge as an umpire, neutral umpire. You are 50
years old. You bring great life experience to the bench, Judge,
and don't you and all judges bring their own life experiences,
their philosophies to the bench in deciding cases? Or would you
have us believe--and if not, you can correct that--that judges
merely operate as automatons?
Judge Roberts. Not automatons, no, Senator. I appreciate
that, that judges don't. And, of course, we all bring our life
experiences to the bench. But I will say this: that the ideal
in the American justice system is epitomized by the fact that
judges, Justices, do wear the black robes, and that is meant to
symbolize the fact that they're not individuals promoting their
own particular views, but they are supposed to be doing their
best to interpret the law, to interpret the Constitution,
according to the rule of law, not their own preferences, not
their own personal beliefs. That's the ideal.
Senator Kohl. And isn't it also true that, to a large
extent, the greatest men in our history, judicial, executive,
legislative, have been men and women with both great minds and
great hearts?
Judge Roberts. Absolutely.
Senator Kohl. Judge, in the aftermath of Hurricane Katrina,
we all saw that those who suffered the most were those who have
not been able to take advantage of the great opportunities that
our great country has to offer. As we found out, those without
employment opportunities and educational opportunities simply
did not have the means to escape the storm and the flooding.
As you seek to become the head of the judicial branch, as
you seek the position of Chief Justice of the United States of
America, what role would you play in making right the wrongs
revealed by Katrina? And what role do you and the judicial
branch play in making sure that we as a Nation keep on moving
forward towards providing equal opportunity to all Americans?
Judge Roberts. The last part of your question, Senator, is,
of course, really what's carved on the entrance to the Supreme
Court: ``Equal Justice Under Law.'' That is the commitment
physically embodied in the Supreme Court, and it's the
commitment in the Constitution. And I think the most important
thing the Supreme Court can do and the judicial branch can do
is to uphold the rule of law. That is the--I tried to point
this out in my statement yesterday. That is the key to making
all the rights that are in the Constitution, all the rights
that legislators may confer on citizens, that's the key to
making them meaningful. The difference between our system and
our Constitution and the Soviet constitution that President
Reagan used to talk about--it has wonderful rights in it, too.
It didn't mean a thing because there was not an independent
Supreme Court, an independent judiciary to enforce those
rights.
We do have that, and that's the reason that we have been
able to make progress in the area of rights and not had just
empty paper promises.
So to the extent you're talking about the injustices in
society and the discrimination in society, the best thing the
courts can do is enforce the rule of law and provide a level
playing field for people to come in and vindicate their rights
and enforce the rule of law.
Senator Kohl. But in spite of all of our laws and all of
our rules, we still saw what happened down in New Orleans, and
the people who were left behind were people who had not had
educational or employment opportunities. And the question I
asked was whether you as a person who aspires to become the
Chief Justice of the United States see a particular role other
than continuing the role that you observe we are following now,
a particular role for improving our ability to respond to the
needs of those people who live under those circumstances.
Judge Roberts. Well, the courts are, of course, passive
institutions. We hear cases that are brought before us. We
don't go out and bring cases. We don't have the constitutional
authority to execute the law. We don't have the constitutional
authority to make the law. Our obligation is decide the cases
that are presented.
Now, I'm confident, just in the nature of things, that
there will be cases presented arising out of that horrible
disaster of all sorts, and many of those will be Federal cases,
I'm sure. Others will be in the State courts, and, again, the
obligation of the Federal judiciary and the State judiciary is
to make sure they provide a place where people can have their
claims, their litigation decided fairly and efficiently
according to the rule of law. That's the appropriate role for
the judicial branch.
Senator Kohl. All right. Judge, do you believe that
reasonable people can disagree on Roe v. Wade? Regardless of
what you think of the decision, do you believe that there is an
intellectually honest approach on the other side that is worth
respecting?
Judge Roberts. I certainly agree that reasonable people can
disagree about that decision, yes.
Senator Kohl. And you do, obviously, respect people on the
other side of the issue?
Judge Roberts. Yes.
Senator Kohl. In Rust v. Sullivan, as Deputy Solicitor
General, you signed a brief in which you wrote, and I quote,
``The Court's conclusions in Roe that there is a fundamental
right to an abortion and that Government has no compelling
interest in protecting prenatal human life throughout pregnancy
find no support in the text, structure, or history of the
Constitution.''
So does this quote jibe with your statement that you
understand that reasonable people can disagree?
Judge Roberts. I think so, Senator. The position that
you're reading from there was the position of the
administration. I was one of nine lawyers on the brief in that
case. It was reflecting the position that had been advanced in
four prior cases up to that point by the administration, and we
were reiterating that position. This was before the Supreme
Court issued its decision in Casey. That was the view of the
administration and the conclusion.
I don't think there's anything in there that suggests we
think or thought that anybody at that time who disagreed was
unreasonable. That was our legal position. The other side was
obviously presented in those cases.
Senator Kohl. But you are saying here that there is no
support in the text, structure, or history of the Constitution
for that position. That is pretty flat-out, pretty straight,
pretty black and white.
Judge Roberts. And in those cases, the other side argued
that there was. And I don't think there's anything in either of
those views that suggests you don't think that reasonable
people can take different positions on those questions.
Senator Kohl. You have today suggested on numerous
occasions that the things that you represented in writing or in
opinion back in the 1980s and into the 1990s, working for the
Reagan administration and working for the Attorney General and
then finally working as Deputy Solicitor General, were in many
cases the opinions of people for whom you worked, not
necessarily your own. I assume, therefore, there are those
opinions that you are prepared to disavow.
Judge Roberts. My view in preparing all the memoranda that
people have been talking about was as a staff lawyer. I was
promoting the views of the people for whom I worked. In some
instances, those were consistent with personal views; in other
instances, they may not be. In most instances, no one cared
terribly much what my personal views were. They were to advance
the views of the administration for which I worked.
Senator Kohl. Well, I appreciate that, and not that we are
talking about you in an entirely different situation, of
course, our curiosity is which of those positions were you
supportive of or are you still supportive of and which would
you disavow?
Judge Roberts. Well, at this point, of course, we are now
23, 24 years later. I would not--I would have to address each
of those positions anew. I wouldn't try to transport myself
back 24 years and say, What did you think 24 years ago? And
that would require me to look at and examine all those things.
And, of course, it's not how I would look at the issue if I
were a judge. If I were a staff lawyer advancing a particular
view, it's one thing. As a judge, I would want to confront the
issue with an open mind, to fully and fairly consider the
briefs and arguments of all parties, to consider the record--
we've talked today about how important a record is in a
particular case--consider the law and the precedents. And, of
course, the law and the precedents have changed in many of
these areas dramatically over the past 24 years.
I'd have to consider all those before reaching a conclusion
in any of those particular areas.
Senator Kohl. Sure. It would be helpful to many of us to
know which of those positions you took then no longer represent
the position that you would take today. I think that would show
a change as we grow and develop and experience life. That would
be illuminating and enlightening to many of us to hear what
some of those positions you took then no longer are represented
in your thought process today.
Judge, as we all know, the Griswold v. Connecticut case
guarantees that there is a fundamental right to privacy in the
Constitution as it applies to contraception. Do you agree with
that decision and that there is a fundamental right to privacy
as it relates to contraception? In your opinion, is that
settled law?
Judge Roberts. I agree with the Griswold Court's conclusion
that marital privacy extends to contraception and availability
of that. The Court since Griswold has grounded the privacy
right discussed in that case in the liberty interest protected
under the Due Process Clause--that's the approach that the
Court has taken in subsequent cases--rather than in the
penumbras and emanations that were discussed in Justice
Douglas' opinion. And that view of the result is, I think,
consistent with the subsequent development of the law, which is
focused on the Due Process Clause and liberty rather than
Justice Douglas' approach.
Senator Kohl. Well, I am delighted to hear you say that
because, as you know, many, many constitutional scholars
believe that once you accept the reasoning of Griswold and find
that the Constitution does contain a right to privacy and a
right to contraception, you have essentially accepted--scholars
have said this, essentially accepted the basis for the Court's
reasoning and decision on Roe, that a woman has a
constitutionally protected right to choose. These scholars
reason that it follows logically that if a woman's right to
privacy and her control over her body includes the right to
contraception, it also includes a woman's right to choose to
terminate her pregnancy. I am not sure whether you wish to
comment on that. I just wanted to point out to you something
that I am sure you are familiar with, that there is in
constitutional thought a logic connected from Griswold to Roe.
Judge Roberts. Well, I feel comfortable commenting on
Griswold and the result in Griswold because that does not
appear to me to be an area that is going to come before the
Court again. It was surprising when it came before the Court in
1965, I think, to many people. The other area is an area that
is, to quote Justice Ginsburg from her hearings, ``live with
business.'' There are cases that arise there, and so that's an
area that I do not feel it appropriate for me to comment on.
Senator Kohl. I appreciate that.
Judge, as we all know, you were originally nominated to
replace the first woman ever to sit on the Supreme Court,
Sandra Day O'Connor. There was a lot of speculation when she
announced her retirement that the President might choose a
woman to replace her, and she even suggested a little
disappointment, not with you but with the fact that a woman was
not chosen.
Had the President told you that the selection was down to
you and an equally qualified woman for the post but that he
thought a woman was needed, would you have seen that as a
reasonable conclusion on his part?
Judge Roberts. I certainly think Presidents have and will
consider a broad range of issues and characteristics and
qualifications in selecting their nominees, and that's
certainly one for a President to consider.
Senator Kohl. All things being equal in terms of
qualifications, would you be pleased if the President chose a
woman to replace Sandra Day O'Connor?
Judge Roberts. For the upcoming vacancy?
Senator Kohl. Yes.
[Laughter.]
Judge Roberts. I just wanted to make clear we weren't
talking about this one.
I don't think it's appropriate for me to comment in any way
about the President's future selections, other than to say that
I'm happy with his past ones.
[Laughter.]
Senator Kohl. You are not an automaton.
Judge Roberts, in an October 3, 1983, memo, you wrote that
while you served as Associate White House Counsel for the
Reagan administration, you expressed support for judicial term
limits. You did specifically support the idea of limiting
judicial terms to 15 years, and you said, I quote, ``to ensure
that Federal judges would not lose all touch with reality
through decades of ivory tower existence.'' And do you still
support in theory the idea of judicial term limits?
Judge Roberts. You know, that would be one of those memos
that I no longer agree with, Senator.
[Laughter.]
Judge Roberts. I didn't fully appreciate what was involved
in the confirmation process when I wrote that.
You know, the sentiments that were expressed there I think
are certainly something that's worth discussing, perhaps. My
basic point was when the Framers establish a system of life
tenure, people didn't live as long as they do now. You know, I
do think there are concerns, though, that I may be a little
more, a bit more sensitive to now than I was then, and they
have to do with sort of a definite cut-off point. I'm not sure
that's healthy for the institution of the judiciary, for people
to know, for example, well, it's sort of like--as you say, term
limits--that if we wait another year, this judge will be gone
or that Justice will be gone. I'm not sure today from where I
sit that that is a good or healthy thing for the judiciary.
Senator Kohl. So you do not support term limits anymore?
Judge Roberts. I have to say I do not because I do think
that that restriction at the end, so litigants could look and
shape their litigation in light of who they think the judges or
Justices might be, I think that's not a healthy development.
I would note that, if I'm remembering the memo correctly, I
think it was a proposed constitutional amendment, which I am
not sure, but I think that obviously is a policy choice that
the Constitution allows to be pursued through that process.
Senator Kohl. All right. Judge, as you know, confronted
with a legal problem, most American families, unlike wealthy
families and very large businesses, lack the resources to hire
the largest and most preeminent law firms to do their bidding.
Do you agree that for our Nation's working people securing
civil justice is often rendered substantially much more
difficult because it simply does cost too much? Do you have
suggestions for addressing this issue? Do you worry that
captivating national events, such as the O.J. Simpson and
Michael Jackson trials, reinforce the view that in this country
justice can be for sale and available to those who can afford
it?
Judge Roberts. You know, I do think that the availability
of legal services is not as broad and widespread as it should
be. There are so many things and areas where I think lawyers
could make a valuable contribution, but it's too expensive. And
there are a number of responses that I think the bar should be
taking. Obviously, for those at the lowest end of the income
scale, I think there's an obligation to provide pro bono legal
services. I think the big firms, little firms, medium firms--
everybody needs to get involved in that. There's not enough
appreciation about how you can do that.
For example, everybody thinks in terms of bringing a big
case, litigation. You know, lawyers who do estate work can
provide extremely valuable pro bono services. Lawyers who do
tax work can provide extremely valuable pro bono services, the
whole range of services, corporate work. I know lawyers in my
old firm would do a lot of pro bono services helping set up
nonprofit organizations, ensuring that they're complying with
the law. People need to be a little more creative in the ways
in which they can help.
I regard that as an obligation of the bar and I do think--
in fact, in many cases, the situation you get is the people at
the lowest end have access to pro bono services. People at the
highest end can pay. It's the people in the middle who are left
without legal services that could be extremely valuable, and I
do think the bar needs to do more. I think firms need to do
more. Individual lawyers need to do more.
Senator Kohl. Judge Roberts, as you know, over the last two
decades or so, there have been several bills introduced in
Congress to strip the Supreme Court and all other Federal
courts of their jurisdiction over many issues. These bills are
generally sponsored by people who are unhappy with various
court decisions, including decisions on things like school
prayer, remedies for school desegregation, and even a woman's
right to choose.
While you served in the Justice Department and in the White
House Counsel's Office in the Reagan administration in the
1980s, you did state that you believed that bills stripping the
Court's jurisdiction were constitutionally permissible. Do you
still hold this view? Do you think it is the right way for us
to go, to allow legislatures to strip your authority to review
cases?
Judge Roberts. Well, I know the memos to which you're
referring make the point, answer your second question. I said
that they were a bad idea. They were bad policy.
I'd been asked earlier when I was--back in 1981, I believe,
when I was working in the Attorney General's office, to present
to him an affirmative case for the proposition that these
proposals were constitutional. He was getting an opinion that
they were unconstitutional. He had to make that decision for
the Department's position. He wanted me to argue the other side
and I did. I prepared a memorandum presenting the best argument
I could that these proposals were constitutional.
The two memos to which you refer in the White House where I
suggested I thought they were suggest that my memo persuaded
me, if nobody else. The Attorney General adopted instead the
contrary position. And I think my views may have had something
to do with the proximity to my own advocacy at the time.
As I say, I did say they were a bad policy. The reason I
thought they were a bad policy is because they lead to a
situation where there's arguable inconsistency and
disuniformity in Federal law. If you don't have the Supreme
Court with jurisdiction to address that, then you get different
decisions, and that's bad policy.
If I were to look at the question today, to be honest with
you, I don't know where I would come out. I think one of the
questions I would have is whether these concerns I had that I
labeled as policy concerns might more appropriately be
considered legal arguments, in other words, not a policy
dispute but a legal argument.
That's the way the opinion of the Office of Legal Counsel
that the Attorney General agreed with viewed it. They said
these--the fact of disuniformity and inconsistency is a legal
argument against the constitutionality. It's not simply a bad
policy decision. I'm not sure where I would regard that
determination today.
Senator Kohl. Really? Are you saying that you're not sure
where you would come out if you were faced with the decision to
go along with or to fight legislative attempts to take away the
Court's authority?
Judge Roberts. Well, I don't think--on the question of
legislative attempts, I think my view is the same now as it was
24 years ago, which is that these are--it's a bad idea. It's
bad policy.
I was talking about the other question about whether it's
constitutional or not, and on that, of course, I don't think I
should express a determinative view because, as you know, these
proposals do come up and one may be enacted, and if that is the
case, then I'd have to address that question on the court. It
could be on the court I'm on now or another court.
Senator Kohl. Well, in that case, or in this case, your
heart might tell you that it's a bad idea. Your mind might tell
you it is constitutional.
Judge Roberts. Well, I don't know what my mind would tell
me--
Senator Kohl. I mean, theoretically. It is possible.
Judge Roberts. Yes, but I feel comfortable with the
conclusion, as I was 24 years ago, that it's a bad idea.
They're bad policy.
Senator Kohl. All right. Judge, since your nomination,
literally, as you know, tens of thousands of pages of your
writings as a young White House aide have been released and
looked at very carefully. In some of these writings, you took
very pointed positions, as we discussed, some political, some
constitutional, and some that have raised eyebrows.
I also think about myself when I was in my 20s and then
when I was at the age which you are now and who I have become
today and how I have changed, matured, and hopefully grown as I
have gotten older. I am sure when you have had a chance to
review some of your old work as part of this process that there
are things that you wrote back then that make you cringe,
perhaps, today.
Are there positions you took back then as a 20-something
lawyer that you would not take today? Can you give us a couple
of examples of positions that you took then that, as you have
grown and developed, and as you are now sitting before us to be
the Chief Justice of the United States of America, that you are
today not the person that you were back when you were 20-
something?
Judge Roberts. Well, we've talked about the term limits for
judges. More generally, as I look at all of these documents,
and the numbers, somebody said 80,000 pages. It's a little
daunting. I don't know that there are particular issues. I
mean, you have to remember, this is 23, 22, 24 years ago. In
many of these cases, not only have I changed, the law has
changed dramatically in more than two decades.
You know, I'm sure--and again, of the many that have been
released, I will say that it's really only a handful that have
attracted attention for one reason or another, and I do think
if you look at the whole body of work, that I would hope people
would leave that with a favorable impression.
Certainly, there are many areas where it appears that I
knew a lot more when I was 25 than I think I know now when I'm
50. I had a lot of different experiences in the intervening
period that give you valuable perspective. In that intervening
period, for example, I left the government, went out in the
private sector, litigated a lot of cases against the
government. You do get a different view of things when you're
on the other side. I think that's extremely valuable.
I hope, as you suggest, I've grown as a person over that
period, as well, and that that also gives you some perspective
and that type of a perspective might cause somebody to moderate
their tone with respect to some issues and in some areas, and
I'm sure that's the case. I certainly wouldn't write everything
today as I wrote it back then, but I don't think any of us
would do things or write things today as we did when we were 25
and had all the answers.
Senator Kohl. I thank you, Judge Roberts.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kohl.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Judge, good afternoon.
Judge Roberts. Good afternoon.
Senator DeWine. Judge, the good news is that I represent
the halfway point.
[Laughter.]
Senator DeWine. The bad news is, it is the first round.
[Laughter.]
Senator DeWine. Judge, I want to ask you about one of your
more important, probably least understood, not by you, but
least understood by the public, your role if you are confirmed
as the Chief Justice, and that is your job to appoint the
members of the FISA Court.
Judge, as you know, in 1978, Congress passed the Foreign
Intelligence Surveillance Act. This law, of course, set up the
FISA Court. As you well know, this is the court that our
intelligence agents go to when they want to obtain wiretaps or
search warrants against terrorists and foreign spies, a very
important court, a court that meets in secret, a court that
deals with the most important national security matters that we
have really in our country, but also a court that deals with
our precious civil liberties. And Judge, because it is a court
that meets in secret, it doesn't have the public scrutiny,
doesn't have the glare of publicity, and quite candidly, does
not have much oversight.
So I would like to know, besides what is in the statute,
the statute sets out your job to select the 11 judges who sit
on the FISA court and three judges who sit on the FISA Court of
Review. There are certain guidelines in the statute. But
besides that, I wonder if you could tell us what your criteria
will be when you select these men, these women who will serve
on the court, and I wonder if you could give me your personal
assurance that this will be something that will be very
important to you, that you will take a hands-on approach, and
that you will be very personally involved in, because really,
it is a question of the utmost national security. These are
people who are going to make sometimes life and death decisions
for our country.
Judge Roberts. I appreciate that, Senator. If I am
confirmed, that is something that I will address and take very
seriously. I think, as in many areas, my first priority is
going to be to listen, to learn a little bit more about what's
involved.
I'll be very candid. When I first learned about the FISA
Court, I was surprised. It's not what we usually think of when
we think of a court. We think of a place where we can go, we
can watch the lawyers argue and it's subject to the glare of
publicity and the judges explain their decision to the public
and they can examine them. That's what we think of as a court.
This is a very different and unusual institution. That was
my first reaction. I appreciate the reasons that it operates
the way it does, but it does seem to me that the departures
from the normal judicial model that are involved there put a
premium on the individuals involved.
I think the people who are selected for that tribunal have
to be above reproach. There can't be any question that these
are among the best judges that our system has, the fairest
judges, the ones who are most sensitive to the different issues
involved because they don't have the oversight of the public
being able to see what's going on.
Again, to be perfectly honest, it is a very unusual
situation and I do think it places a great premium on making
sure that the best-qualified people for that position are
selected.
Senator DeWine. I appreciate your personal attention to
that. I know how important you know it is, Judge, and I would
just add one more comment, that that court, as all courts do,
but even more so, not only makes decisions, not only decides
whether to issue the warrant or not, but it is the feedback
that the Justice Department gets and that law enforcement
agencies get that tells them what they can do and can't do, and
that feedback is unbelievably important and it affects the
intelligence operations in this country and is just vitally,
vitally important.
Let me move, if I could, to something that is very
important to me and to all of us and that is the First
Amendment. Certainly, Judge, there is no right in our
Constitution that is any more important than the freedom of
speech. In a sense, it is the foundation of our democracy. It
is the right upon which other rights are built. It is the right
that guards our liberty and preserves our freedom.
At the heart of the First Amendment is the idea that people
have a right not only to speak their mind, but also to be
heard. I would like to talk to you a little bit about that and
ask you a question.
The case I think that most eloquently talks about the
public square where we engage in speech is Hague v. CIO, a 1939
case which you are well familiar with, and I want to quote it
very briefly.
``Wherever the title of streets and parks may rest, they
have immemorially been held in trust for the use of the public
and time out of mind have been used for purposes of assembly,
communicating thoughts between citizens and discussing public
questions. Such use of the streets and public places has from
ancient times been a part of the privileges, immunities,
rights, and liberties of citizens,'' end of quote.
Judge, I want to be honest with you and say that as of
late, I feel that we are seeing a disturbing trend when it
comes to speech in the public arena. I want to give you some
examples.
In a recent case, a Wisconsin woman was kicked off a city
bus, and this is what she was kicked off a city bus for doing.
She was trying to distribute a book containing Bible stories to
individuals sitting next to her.
Another case that is repeated time and time again across
this country and has been for many years in towns and cities
and villages across the country, individuals are prohibited
from placing political signs, and it could be not just for
candidates, it could be for a school levy, against a school
levy, on their own property--on their own property--except
during specified times and in specified ways. The government
tells them, so many days before the election. You can't put
that up there until so many days before the election, not just
for candidates, but for bond issues, whatever the issue that
they want to talk about, do their own political speech, on
their own property.
Another example, in many public--people who wish to
exercise free speech in many public places, these individuals
are forced into so-called ``free speech zones,'' which many
times are far away from the event that they wish to protest
about, so far away that they can't ever been seen or ever be
heard, out of sight. Again, we go back to the issue of you have
to be heard.
In one recent case, the New York City Housing Authority
refused to let a woman conduct Bible studies in the community
center of a housing project, even though the community center
was used for a host of activities, even weddings. I must say,
in that case, she actually won the case.
So I am concerned when I see these restrictions. I think at
the core of the First Amendment is the idea that individuals
should be able to speak and be heard in public places.
Now, Judge, I know you can't tell us how you will decide
any particular case. I am not asking you to do that. But it is
important to me that you talk to us a little bit about how you
will evaluate these cases involving the right to speak in
public places, public places such as buses, metro stations,
city sidewalks, public parks, and tell us, if you could, Judge,
what factors will you consider when deciding restrictions on
speech in the public square as we traditionally know it and
what is proper under the First Amendment and which ones are
not. What tools will you use to decide that?
Judge Roberts. Well, again, of course, without commenting
on any of the particular hypotheticals or actual cases--
Senator DeWine. That is right. I am not asking--and they
are all real cases, but I don't want you to talk about that.
Judge Roberts. I do think, though, first as a general
matter and then to get into the law, that it is important that
people keep a basic principle in mind when they're addressing
these types of concerns. It's not a provision in the
Constitution, it's not a provision in the law, but it's a basic
American approach that I think is important, and that's
captured in the expression, you know, it's a free country. And
when you're talking about what people can say, what people
can--signs they can put up, what they can do, I think people,
as a general matter, need to appreciate that it's a free
country and it's a wonderful thing that people can say things
in the public that you may not agree with because you, of
course, have the same right.
Now, the particular mode of analysis that the Supreme Court
uses in addressing these types of public speech issues is to
some extent unsettled. The public forum doctrine, as it's
called, for many years you've tried to characterize an issue.
Is this a public forum? Is it a quasi-public forum? Is it a
private forum? And the different definition sort of carried
with it the conclusion about what could be allowed, and many of
the Justices thought that the reasoning was awfully circular.
I remember years ago I argued one of the cases in the
Supreme Court about post office and what could be done in a
post office area and whether the restriction of that area to
postal business meant they could exclude people who wanted to
engage in political speech. I remember thinking at the time
that the precedents were very unsettled and I'm not sure that
the Court has made much progress since then.
But you do try to focus a little bit on whether you're
dealing with a public forum, one that has traditionally been
open to expression, and if it has, then any restrictions on
expression are going to be subject to a very exacting standard
before they'll be upheld. If it's a more limited public forum,
it's only been open for certain types of speech or the nature
of the forum requires there to be a restriction--that was the
government's argument in the post office case I litigated--then
it's a less-demanding standard in those situations.
Senator DeWine. Judge, let me just follow up with that with
a short question, if you would give me just a reaction to this,
if I could. Do you think the First Amendment is flexible enough
in the year 2005 to account for what I believe, at least, is
the shrinking public square? I know we have the Internet, we
have TV, we have radio, a lot of things that we didn't have
when our Founders wrote the Constitution. But I think there is
a shrinking public square.
What do I mean by this? Someone who wants to run for school
board today, someone who wants to support a school levy, oppose
a school levy, when you and I were growing you--you are younger
than I am, but when we were growing up in the Midwest, you
could go downtown. If you supported a school levy, let us say,
you could go downtown and pass out literature in front of the
hardware store or the grocery store and that was a public place
because there was a sidewalk and you knew everybody in town was
probably going to go by there. And if you lived in a city,
there were communities in the city where you could do the same
thing.
Today, most people--we just don't live that way. Most
people don't. Some do, but most don't. Today, people get in
their car and if they go to the grocery store, they go to a
strip mall and they go to a grocery store that is surrounded
all by private property, and the people who own that strip mall
say you can't come--usually say you can't come on and
distribute any literature of any kind on this facility, and
basically they are upheld in that right because it is private
property. Or they go buy their clothes or everything else or
their hardware, they go in a big mall and that mall clearly--
there is a Supreme Court case right on point that says that
they can be excluded.
So the traditional public forum as we know it has really
shrunk. Does the Court take that into consideration when they
look at the precedents, they look at all the decisions that
have been made? How does that--without citing any case or
talking about any specifics--
Judge Roberts. Well, I do know--
Senator DeWine. It is a different world we live in today.
Judge Roberts. I appreciate the point, and I do know that
even the analysis in this particular area, one of the factors
that the Court considers is the availability of alternative
avenues for expression, and a concern, if they are cutting off
a particular mode of expression, a particular avenue, are there
alternatives available? And I think that's a very important
consideration.
I think you're quite right that this is one of those areas
in which technology is going to figure in a very prominent way,
and the question of whether this type of analysis that grew up
when you're talking about a public square or a town hall type
thing, applies in the Internet situation, and whether there's
changes that do need to be made in the analysis.
Senator DeWine. Since you talked about the Internet, let me
turn to a disturbing trend in regard to the Internet, and that
has, quite frankly, to do with pornography. We have passed
several bills in Congress, the Communications Decency Act to
protect our children. The Supreme Court struck it down. I am
not going to ask you to comment about that. A few years later
we passed the Child Online Protection Act, again, with the
intent to protect our children. Again the Court struck it down.
Unlike the traditional public square, the Internet has
really become a place for the distribution of some, I find,
very troubling materials, and that is pornography. I guess what
bothers me about these cases is they fail to account for
something that to me at least is very relatively simple, and
that is that at the core of the First Amendment is, to me at
least, the protection of political speech, speech on matters of
public concern, I have talked about before. But it seems to me
that pornography is different, particularly pornography that
children can easily access. It seems to me that that should be
treated differently than political speech.
Famous case, Young v. American Mini Theaters. In that case
the Court upheld zoning regulations on adult theaters. Justice
Stevens, hardly a right-winger, had this to say, and I quote:
``Even though we recognize that the First Amendment will not
tolerate the total suppression of erotic materials that have
some arguably artistic value, it is manifest that society's
interest in protecting this type of expression is of a wholly
different and lesser magnitude than the interest in untrammeled
political debate.'' Few of us would march our sons and
daughters off to war to preserve the citizen's right to see
``specified sexual activities'' exhibited in the ``theaters of
our choice.''
Judge, in light of that quotation, here are my questions.
Are there or should there be different levels of speech under
the First Amendment? Should pornography, for instance, be
treated with less regard than Mark Twain's Huck Finn? And how
would you, if confirmed to the Supreme Court, decide what
protection, if any, certain kinds of expression are entitled to
under the First Amendment?
Judge Roberts. Well, Senator, it's my understanding under
the Supreme Court's doctrine that pornographic expression is
not protected to the same extent at least as political and core
speech, and the difficulty that the Court has addressed in
these different areas of course is always defining what is or
is not pornography and what is entitled to protection under the
First Amendment and what is not.
That question is sort of antecedent to the question of what
the level of protection is. We determine whether it's entitled
to First Amendment protection in the first place. In certain
types of speech, like child pornography, the Court has
determined are not entitled to protection under the First
Amendment. There are different categories, and the Court has
struggled over the years in figuring out how to determine those
categories and what belongs in what category, and beyond that,
I don't think I can give a more precise answer.
Senator DeWine. Judge, let me turn to the area of
congressional power. It has been talked about before here, but
I want to talk about it a little bit more. Really, this has to
do with federalism cases. As you know, the Court has handed
down a number of cases that have restricted the power of
Congress to pass important legislation. The Court has struck
down portions of the Violence Against Women Act, the Americans
with Disabilities Act, the Age Discrimination in Employment
Act, and the Religious Freedom Restoration Act, just to name a
few.
In some of these cases the Court restricted Congress's
power under the Commerce Clause. In some it relied on the 11th
Amendment, and in some it cited Section 5 of the 14th
Amendment. The particular provision is not that important for
this discussion. Let me be perfectly frank. I think there are
some problems with these decisions. I think it is wrong for
judges to take on the role of policymaker. I realize that if a
statute is blatantly unconstitutional, a judge has to do their
duty. But I think for the reason I am going to discuss in a
minute, that was not true in these cases.
I want to cite one example, and that is--because of time I
can only go through one--and that is the Garrett case, a 5-4
decision, Board of Trustees v. Garrett. As you know, this case
involved a woman who said that she had been discriminated
against because she was disabled. She was employed by the State
of Alabama. She sued the State under the Americans with
Disabilities Act. The Supreme Court threw out the suit, holding
that there was no evidence that the State discriminated against
the disabled in employment decisions. I think the problem with
Garrett is that the Court ignored findings by Congress.
There were other cases that have been decided, where we did
not have findings, and you are familiar with those. I
understand the Court's decisions. I might like them or not like
them, but I understand them.
This case we made findings. While we were considering the
Americans with Disabilities Act we held 13 hearings and we set
up a task force, a task force that held hearings in every
State. It was attended by more than 30,000 individuals. Based
on these hearings we found 300 examples of disabled individuals
being discriminated against in employment decisions. We found
that two-thirds of all disabled Americans between the ages of
16 and 64 were not working at all, even though a large majority
of them were capable of doing so. We found that this
discrimination flowed from stereotypic assumptions about the
disabled, as well as, quote, ``purposeful, unequal treatment,''
all findings by this elected Congress of the United States.
In Garrett, however, the Court said this was not enough.
They rejected our fact findings, holding that we had not
pointed to any evidence that the States discriminated in
employment decisions against the disabled.
Judge, you have stressed repeatedly in your writings and
your opinions--and I have a great deal of respect for you and
appreciate these writings and opinions--you stressed the
limited role that judges must play in our system of Government.
I applaud you for that approach. It is important for me to
ensure that you still hold to this belief. In your opinion,
what role should a judge play when reviewing congressional fact
findings? In your view, how much deference do congressional
fact findings deserve? I understand you are not going to talk
about this case, or any of the cases I have just cited. I
wanted to lay that kind of as a predicate. I wanted to tell you
where I am coming from.
But just talk in general about when you see fact findings
by Congress, when we have held hearings, when we have
established a record, how do you approach? What are the tools
that you use, Judge, based on the precedents and based on what
you think the role of the judge is?
Judge Roberts. Again, and of course, without getting into
the particulars, the reason that congressional fact finding and
determination is important in these cases is because the courts
recognize that they can't do that. Courts can't have, as you
said, whatever it was, the 13 separate hearings before passing
particular legislation. Courts--the Supreme Court can't sit and
hear witness after witness after witness in a particular area
and develop that kind of a record. Courts can't make the policy
judgments about what type of legislation is necessary in light
of the findings that are made. So the findings play an
important role, and I think it is correct to say under the law
in this area and others, they're neither necessary nor
necessarily sufficient. But I know as a judge that they're
extremely helpful when there are findings.
And judges know when they look at those, that they're the
result of an exhaustive process of a sort that the Court cannot
duplicate. We simply don't have the institutional expertise or
the resources or the authority to engage in that type of a
process. So that is sort of the basis for the deference to the
fact finding that is made. It's institutional competence. The
courts don't have it. Congress does. It's constitutional
authority. It's not our job. It is your job. So the defence to
congressional findings in this area has a solid basis.
Now, the particular area you're talking about under Section
5 of the 14th Amendment, the Garrett case, there are of course
more recent cases that you know of, Tennessee v. Lane and the
Hibbs case in Nevada v. Hibbs, where the Court did defer to the
fact finding in those cases, and particularly in the Hibbs case
focused on the legislative recognition based on its examination
of the factual record developed at hearings about the statute
that was at issue there, and the particular approach that they
were taking to remedy discrimination under the 14th Amendment,
which is the authority that Congress has.
Now, the legal requirement that the Court has articulated
there came of course from the City of Boerne case, that the
remedial approach has to be congruent and proportional. Justice
Scalia signed on to that approach in the City of Boerne case.
In the Lane case he said he had changed his mind and he no
longer agreed with that. Any area of the law where Justice
Scalia is changing his mind, has got to be one that is
particularly difficult, and one that I think is appropriately
regarded as still evolving and emerging. And so I don't know if
the more recent cases in Lane and Hibbs represent a swinging of
the pendulum away from cases like Garrett and Kimmel on the
other side, or if it's simply part of the process of the Court
trying to come to rest with an approach in this area.
But it is an area that the Court has found difficult, and
just as a general matter, I think when you get to this point of
reweighing congressional findings, that starts to look more
like a legislative function, and the courts need to be very
careful as they get into that area, to make sure that they're
interpreting the law and not making it.
Senator DeWine. Judge, I appreciate your answer, and I am
going to move on. I would just say that one of the more
disturbing things to me about Garrett is that the dissent and
the majority opinion got into a dispute, a verbal dispute about
what the facts were, and a dispute about the facts, it seems to
me that is not usually what the Supreme Court gets involved in,
and it seems if there is a dispute in the facts, you would
normally defer to the fact finder, Congress.
Let me take off on Garrett and maybe talk about another way
to get at this. Rather than focus on the problem caused by
Garrett, maybe there is another way to solve some of the
problems that would be raised by this.
Congress still has the power to protect the disabled under
the Spending Clause of the Constitution. We have the power of
the purse. In South Dakota v. Dole we wanted to establish a
national drinking age of 21. You are well aware of that. It was
upheld by the Court. We did it through the power of the purse
in the Dole case. I just wonder if Congress might be able to
use this approach to require the States to waive their immunity
from suit under statutes like the Americans with Disabilities
Act. It seems to me that under the Spending Clause, we have at
our disposal the power to protect the disabled, to protect
other groups, and effectively overturn cases like Garrett and
these other cases that limit legislative power.
You seem to take that approach in a case entitled Barber v.
Washington Metropolitan Transit Authority. That case concerned
a disabled person who was suing a State entity under the
Rehabilitation Act. In that case, you held that the suit could
go forward even though the State entity was immune from suit
under the 11th Amendment. In your view, the State entity had
agreed to waive its immunity in exchange for receiving Federal
mass transit dollars.
I think this case is important. It is important to me, at
least, Judge. It seems to show us what you think about
Congress's power under the Spending Clause, and it also gives
us a model, I think, for how we might be able to protect those
who are discriminated against under the Americans with
Disabilities Act.
Could you just take a moment--I have got 2 minutes left.
Could you take a moment and tell us about the issue in the
Barber case and what was your reasoning for permitting a
disabled person to sue in Federal court for discrimination in
that case?
Judge Roberts. Certainly.
Senator DeWine. It was your case. You were involved in the
case. You were in the majority opinion.
Judge Roberts. It was a divided decision.
Senator DeWine. Right, 2-1.
Judge Roberts. The argument was whether Congress had the
authority under the Spending Clause as a condition of the
receipt of Federal funds that WMATA--the Metro here in D.C.--
receives, that they waive their sovereign immunity to suit
under the disability provisions, and the argument was that
Congress lacked that authority, that they could not impose a
waiver of sovereign immunity as a condition for the receipt of
Federal funds to allow an individual alleging discrimination on
the basis of disability to sue.
There was no issue about whether there was sovereign
immunity in the absence of a waiver, and the WMATA governing
body was opposing the suit on the ground that it had not waived
immunity. And they were arguing that Congress lacked the
authority to condition the receipt of funds on a waiver of
immunity.
It was a divided decision, a 2-1 vote. The dissenter argued
that this was an inappropriate exercise of the Spending Clause
power. The majority concluded that, no, this was within
Congress's authority. It could condition the receipt of Federal
funds on a waiver of sovereign immunity that allowed an
individual alleging he was discriminated against in employment
because of his disability to proceed with the suit. The
arguments we rejected were arguments of germaneness. The idea
was the funds were for transportation, not for employment, and
so that it wasn't a germane condition. The majority rejected
those arguments. The dissent would have ruled the other way.
Senator DeWine. Judge, thank you very much.
Thank you, Mr. Chairman.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator DeWine.
Senator Feinstein?
Senator Feinstein. Thank you very much.
Chairman Specter. We are going to take a 15-minute break
when Senator Feinstein concludes her questioning at about 4:15.
Senator Feinstein. Thanks very much, Mr. Chairman.
Good afternoon, Judge Roberts. I want to follow up on
something that Senator Kohl said in his last question, which
was sort of asking you to do a look-back into some of the
things you have written and said. And you have written--and
this involves women--either in margin notes or in comments or
in memos, and I want to list for you some of the comments and
ask you what do you think of them, what do you think of them
today.
In a memorandum to Fred Fielding, White House Counsel under
President Reagan, about the nomination of a woman to be
recognized for moving from homemaker to lawyer, and your
response to nominating this woman for an award was this: ``Some
might question whether encouraging homemakers to become lawyers
contributes to the common good, but I suppose that's for the
judges to decide.''
In a memo responding to a letter from three Republican
Congresswomen that raised concerns about the pay gap that women
experience, you said, and I quote, ``Their slogan may as well
be `From each according to his ability, to each according to
her gender.' ''
You also wrote that the Congresswomen's concerns ``ignore
the factors that explain that apparent disparity, such as
seniority, the fact that many women frequently leave the
workforce for extended periods of time,'' et cetera.
In another memo, you implied that it is a canard that women
are discriminated against because they receive 59 cents, at
that time, to every $1 earned by men.
In a September 26, 1983, memo to Fred Fielding, you
rejected an alternative proposed constitutional amendment
guaranteeing equal rights to women.
In 1982, you wrote a memo to the then-Attorney General in
which you refer to the task force which was to conduct a
governmentwide review to determine those laws which discrminate
on the basis of gender as ``the Ladies Task Force.''
I mention these examples to highlight what appears to be
either a very acerbic pen or else you really thought that way.
Did you really think that way? And do you think that way today?
Judge Roberts. Senator, I have always supported and support
today equal rights for women, particularly in the workplace. I
was very pleased when I saw, for example, the report of the
National Association of Women Lawyers who went out and talked
and interviewed with women lawyers who've worked with me,
who've appeared before me, and the conclusion was that I not
only always treated women lawyers with respect and equal
dignity, but that I had made special accommodations for life-
work issues to ensure that women could continue to progress,
for example, at my law firm, and had already treated women who
appeared before me in a perfectly professional way.
Senator Feinstein. Then why say those things?
Judge Roberts. Well, let's take the first one you
mentioned. It is to me obvious in the memo that I wrote to Fred
Fielding that it was about whether or not it's good to have
more lawyers. Whether they were from homemakers, from plumbers,
from artists or truck drivers had nothing to do with it. The
point was: Is it good to have more lawyers? That's the way I
intended it, and I'm sure that's the way--
Senator Feinstein. And you don't think it was good to have
more lawyers.
Judge Roberts. I think there were probably--the point that
Mr. Fielding and I had commented on, on many occasions, was
that in many areas there were too many lawyers, and that's a
common joke that goes back to Shakespeare. It has nothing to do
with homemakers. The notion that that was my view is totally
inconsistent and rebutted by my life. I married a lawyer. I was
raised with three sisters who worked outside the home. I have a
daughter for whom I will insist at every turn that she has
equal citizenship rights with her brother.
Senator Feinstein. Okay. I don't want to belabor it. I am
just trying to understand how you think, because you speak
about modesty and humility, and yet none of these comments are
modest or humble.
Judge Roberts. Well, those comments were in the nature of
the tone that was encouraged in our office. It was a small
office. They expected we turn projects around very quickly. We
were expected to be candid, and if making a joke about lawyers
would make for a more enjoyable day on the part of the people
in the office, that's what we did.
Senator Feinstein. So it is fair to say you don't think
that way; is that correct?
Judge Roberts. Well, I don't think in any way that is based
on anything other than full equal citizenship rights on the
basis of gender. I might tell a lawyer's joke that there are
too many lawyers today, but that's all it was back then.
On the memo you quoted with respect to the issue of
comparable worth, the one thing the memorandum made clear is
that the position of the administration was there must be equal
pay for equal work. That wasn't the issue in that case. The
issue there was whether there should be equal pay for different
work and whether judges should determine what type of work was
equal.
Senator Feinstein. I am not arguing that. I am just arguing
what you said--or bringing to your attention what you said
then. But I don't want to belabor it. I think you have answered
the question.
Let me ask you a question on Canterino v. Wilson. This is
about the same time, in 1982. And you pointed out in answers to
prior questions that you were staff and you generally did what
people asked you to do. In this case, William Bradford
Reynolds, the top attorney in the Civil Rights Division,
indicated that there had been substantial, he thought,
discrimination in prisons in Kentucky and that the Justice
Department had done an investigation and they found that male
prisoners were given training for higher-paid jobs, for a
greater variety of jobs, and were given training for longer
periods of time. Your memo contradicted his recommendation to
intervene.
Why would that be if you just follow the policy of the
office?
Judge Roberts. My understanding there was that there was a
question whether intervention in that case--the case was being
pursued by private litigants already--a question whether
intervention by the Federal Government in that case was
consistent with the Attorney General's approach to
institutional litigation. That was an approach that he had laid
out in several speeches, memoranda, and, as a staff member, it
was my job to call to his attention areas where I thought there
may be inconsistencies in areas where he wanted to set policy
priorities.
Senator Feinstein. In response to the Chairman's question
this morning about the right to privacy, you answered that you
believe that there is an implied right to privacy in the
Constitution, that it has been there for some 80 years, and
that a number of provisions in the Constitution support this
right, and you enumerated them this morning.
Do you then believe that this implied right of privacy
applies to the beginning of life and the end of life?
Judge Roberts. Well, Senator, first of all, I don't
necessarily regard it as an implied right. It is the part of
the liberty that is protected under the Due Process Clause.
That liberty is enumerated--
Senator Feinstein. Part of liberty.
Judge Roberts. Yes, and the exact scope of it with respect
to the beginning of life and the end of life, those are issues
that are coming before the Court in both respects. And I don't
think I should go further to elaborate upon whether or not it
applies in those particular situations. Obviously, it has been
articulated by the Court in both contexts, the Cruzan case with
respect to the end of life, the Glucksberg case following
Cruzan. But I don't think it's appropriate for me, given the
fact that cases arise on both of those questions, to go
further.
Senator Feinstein. All right. Let's move right along.
This morning, there was a discussion about stare decisis,
and you pointed out that there were factors in consideration of
stare decisis. And I think one of the things you said was
workability of framework is one of the main principles you look
for in stare decisis.
Well, in its decision in Casey, the Court specifically
affirmed the doctrine of stare decisis as it applies to Roe.
The Court reviewed prudential and pragmatic considerations to
gauge the respective costs of reaffirming and overruling that
case. In doing so, the Court unambiguously concluded that Roe
has in no sense proven unworkable.
Do you agree with this conclusion?
Judge Roberts. Well, that is--that determination in Casey
becomes one of the precedents of the Court entitled to respect,
like any other precedent of the Court, under principles of
stare decisis. I have tried to draw the line about not agreeing
or disagreeing with particular rulings, but that is a precedent
of the Court. It is a precedent on precedent; in other words,
it has examined Roe--
Senator Feinstein. So you agree that the Court said that,
obviously.
Judge Roberts. Well, it said that, and that is a precedent
entitled to respect under principles of stare decisis, like any
other precedent of the Court. But in terms of a separate
determination on my part whether this decision is correct or
that decision is correct, my review of what other nominees have
done is that that is where they draw the line and that is where
I have drawn the line.
Senator Feinstein. So workability is clearly one thing. Is
another one reliance?
Judge Roberts. Certainly, or as it is often expressed in
the Court's opinions, settled expectations. People expect that
the law is going to be what the Court has told them the law is
going to be. And that's an important consideration.
Senator Feinstein. And in Casey, again, the Court stated,
and I quote, ``The ability of women to participate equally in
the economic and social life of the Nation has been facilitated
by their ability to control their reproductive lives,'' and
that this ability to control their reproductive lives was
enough of a reliance to sustain Roe, correct?
Judge Roberts. That's what the Court--I think you're
reading from the plurality, the joint opinion in the case.
Senator Feinstein. That is correct.
Judge Roberts. Yes.
Senator Feinstein. That is correct. Now, unlike my
experience, there are now entire generations of women who know
a world only where their reproductive rights are protected. Do
you agree with the Court that this reliance is sufficient?
Judge Roberts. Well, again, I think that's asking me
whether I think the decision was correct or not on that point.
It certainly was the analysis of the joint opinion in the
Court, entitled to respect as precedent like any other decision
of the Court under principles of stare decisis. And that would
certainly be where I would begin if any of these issues come
before the Court if I were to be confirmed. I would begin with
the precedent that the Court has laid out in this area.
Senator Feinstein. One other question on Casey, and I would
like to quote from something that Justice Ginsburg said in the
transcript in her confirmation hearing in a discussion with
then-Senator Brown. ``The Casey majority understood that
marriage and family life is not always what we might wish them
to be. There are women whose physical safety, even their lives,
would be endangered if the law required them to notify their
partner, and Casey, which in other respects has been greeted in
some quarters with great distress, answered a significant
question, one left open in Roe. Casey held a State could not
require notification to the husband.'' Do you agree?
Judge Roberts. That is what Casey held, yes, and that, as I
said before, the precedent of the Court, like any other
precedent of the Court, is entitled to respect under principles
of stare decisis.
Senator Feinstein. Thank you. One other reading from
Justice Ginsburg's testimony. ``Abortion prohibition by the
State, however, controls women and denies them full autonomy
and full equality with men. That was the idea I tried to
express in the lecture to which you referred. The two strands,
equality and autonomy, both figure in the full portrayal.'' Do
you agree or disagree?
Judge Roberts. Well, I think Justice--then Judge Ginsburg
felt at greater liberty to discuss that precisely for the
reason you noted, that she'd given a lecture on the subject.
Those are issues that come up again and again before the Court.
Consistent with what I understand the approach to have been of
other nominees, I don't think I should express a view on that.
Senator Feinstein. Thank you. I would like to move on. In
Bray, you argued on behalf of the Government as Deputy
Solicitor General that the right to have an abortion is not
specific to one gender. Specifically, your brief stated, quote,
``unlike the condition of being pregnant, the right to have an
abortion is not a fact that is specific to one gender,'' end
quote. In your oral argument, you went on to make this point by
comparing Operation Rescue's attempts to prevent a woman from
exercising her privacy right to make decisions about her
pregnancy to an ecologist's efforts to block an Indian tribe
from using their exclusive fishing rights. Do you think that is
an appropriate analogy?
Judge Roberts. Well, Senator, it was a position and an
argument that the administration made that was accepted by the
Supreme Court by a vote of six to three. The point, underlying
point was that under the statute at issue in Bray, the Ku Klux
Klan Act required under the Supreme Court's precedents that
people engaged in the challenged activity must be motivated by
a discriminatory animus. Obviously, under the Ku Klux Klan Act,
the classic case, racial hostility.
And the issue was, are people opposed, in the Bray case,
opposed to abortion opposed to women, and the determination of
the Court was that, no, that there are people who are opposed
to abortion and that does not constitute opposition or
discriminatory animus against women and, therefore, that the Ku
Klux Klan Act didn't apply. Many other provisions obviously
apply in the case of abortion protestor violence, including
State law and other provisions of Federal law. But the Supreme
Court concluded six to three that there is no discriminatory
animus based on opposition to abortion.
Senator Feinstein. Thank you. I would like to move to
another subject because my time is moving on, and that is what
has been happening in the Court in the last 10 years. As I
mentioned, for 60 years, the Court didn't strike down a single
Federal law for exceeding congressional power under the
Commerce Clause. Yet in the last decade, the Court's
reinterpretation of the Commerce Clause has been used to strike
down more than three dozen cases. The Court's future decisions
will determine whether the Congress will be able to take
necessary action to stop child pornography, combat violent
crime, ensure child support payments, prevent discrimination,
improve our schools, and protect our environment.
My question is, do you agree with the direction in which
the Supreme Court has moved in more narrowly interpreting
congressional authority to enact laws under the Commerce
Clause?
Judge Roberts. Well, of course, I tried to avoid saying
whether I agree or disagree with particular cases. But I would
point out in this area, in particular, I think it's very
important to look at the most recent case, which is the Raich
case, the medical marijuana case, because the argument there
was that these two decisions that you're talking about that
were the first in the 60 years, Lopez and Morrison, the
argument there was based on Lopez and Morrison, Congress lacks
the power in this area.
And what the Supreme Court said in the Raich case, which I
think is very important, it said there are a lot more
precedents on the Commerce Clause besides Lopez and Morrison,
and the appropriate way to regard those is two decisions in the
more than 200-year sweep of decisions in which the Supreme
Court has given extremely broad--it's recognized extremely
broad authority on Congress's part, going all the way back to
Gibbons v. Ogden and Chief Justice John Marshall, when those
Commerce Clause decisions were important in binding the Nation
together as a single commercial unit.
So again, without commenting on whether particular
decisions are correct or not, I do think it's important to
recognize that the Court itself in its most recent decision has
said we need to focus on the broad sweep and not just on those
two decisions.
Senator Feinstein. Let me move to the case of the hapless
toad, known more commonly as Rancho Viejo v. Norton. Do you
believe there is a basis for sustaining the Endangered Species
Act other than the Commerce Clause?
Judge Roberts. Well, the opinion I wrote there noted that
the panel decision that I thought should be reheard en banc
looked at one ground for under the Commerce Clause and the
concluding paragraph in my opinion said that we ought to rehear
the case to look at other grounds that were also under the
Commerce Clause, but they were not the particular prong of the
Commerce Clause analysis that the panel opinion had relied on,
and the reason was that, as I explained in the opinion, another
circuit court has suggested pointedly that the approach in the
panel opinion was inconsistent with the Supreme Court.
And I thought if there was another basis for sustaining the
Endangered Species Act that was not inconsistent in the view of
another circuit court, that we ought to look at that and try to
do it. It really reflects a restrained and minimalist approach.
If there's a ground that doesn't cause another circuit court to
say, you're violating the Supreme Court precedents, we ought to
look at that and see if we could rest the decision there.
Senator Feinstein. I guess the point I am trying to get at
is you are saying that the fact that the toad was almost only
found in California means that it was an impermissible use of
the Endangered Species Act. Well, then that raises a question.
What if the toad strays across the border, or what if this is
the last remaining toad, and--
Judge Roberts. Right, but the one point I would emphasize
is my opinion did not conclude that there was no authority
under the Commerce Clause in just that situation. There was
another dissenting opinion that was filed by another judge who
said this violates the Commerce Clause. I did not join that
opinion. I wrote separately to say that we should hear this en
banc with all the judges because there are other ways of
sustaining this Act that don't implicate the concern that has
caused the other circuit to question our approach that had
caused the dissenting judge to conclude there was no authority,
and I thought we ought to look at those other grounds because
if we could sustain it without implicating that objection, that
would be better all around.
I did not take the position that it was outside the scope
of the Commerce Clause. It was a question of which ground under
the Commerce Clause we ought to look at.
Senator Feinstein. There is a great deal of concern as what
this then means for the implication for all environmental law--
the Clean Water Act, the Clean Air Act. But if I understand you
correctly, what you are saying is that you do not believe that
the Commerce Clause should prohibit legislation in this area,
is that correct?
Judge Roberts. I have not had occasion to decide that. I
did not decide it in the Rancho Viejo case. One of the other
judges did and I did not join that opinion. What I said is we
should consider these other grounds. Now, I didn't have the
opportunity, because there was a dissent from rehearing, to
consider those other grounds.
Those other grounds were what other courts, the Fifth
Circuit in the GDF case, had used to sustain application of the
Endangered Species Act in the cases that came before them. They
didn't get into the question of whether you look at the
regulated activity, the building or the actual what was
prohibited, the taking of the toad. They analyzed the
protection of the endangered species as implicating a
commercial activity, and that allowed them to sustain the Act
without regard to whether it had an interstate effect itself.
Senator Feinstein. Thank you very much. I would like to ask
a question or two on church and state. I mentioned in my
opening statement that for centuries, people have been
persecuted for their religious beliefs, and our country grows
more diverse every day and tensions among different beliefs
have grown. I really believe that there is a brilliance in what
the Founding Fathers did in drafting the First Amendment and
how it protected an individual's right to practice their
belief, whatever it may be, but also protect against using
religion against individuals by prohibiting the government from
becoming and/or imposing religion.
In 1960, there was much debate about President John F.
Kennedy's faith and what role Catholicism would play in his
administration. At that time, he pledged to address the issues
of conscience out of a focus on the national interest, not out
of adherence to the dictates of one's religion, and even said,
``I believe in an America where the separation of church and
state is absolute.''
My question is, do you?
Judge Roberts. Senator, I think the reason we have the two
clauses in the Constitution in the First Amendment reflects the
Framers' experience. Many of them or their immediate ancestors
were fleeing religious persecution. They were fleeing
established churches. And it makes perfect sense to put those
two provisions together, no establishment of religion and
guaranteeing free exercise. That reflected the Framers'
experience.
Senator Feinstein. If you can, answer my question yes or
no.
Judge Roberts. Well, I don't know what you mean by absolute
separation of church and state. For example, recently in the
Ten Commandments case, the Court upheld a monument on the Texas
capitol grounds that had the Ten Commandments in it. They
struck down the posting of the Ten Commandments in a Kentucky
courthouse. Is it correct to call the monument on the Texas
capitol grounds with the Ten Commandments, is that an absolute
separation, or is that an accommodation of a particular
monument, along with others, that five of the Justices found
was consistent with the First Amendment?
So I don't know what that means when you say absolute
separation. I do know this, that my faith and my religious
beliefs do not play a role in judging. When it comes to
judging, I look to the law books and always have. I don't look
to the Bible or any other religious source.
Senator Feinstein. It has been reported that during your
meeting with Senator Wyden, while discussing end-of-life
issues, you cited the dissent of Justice Brandeis in Olmstead.
I would like to quote from it. ``The makers of our Constitution
undertook to secure conditions favorable to the pursuit of
happiness. They recognized the significance of man's spiritual
nature, of his feelings, and of his intellect. They knew that
only a part of the pain, pleasure, and satisfactions of life
are to be found in material things. They sought to protect
Americans in their beliefs, their thoughts, their emotions, and
their sensations. They conferred as against the Government the
right to be left alone, the most comprehensive of rights and
the right most valued by civilized men. To protect that right,
every unjustifiable intrusion by the Government upon the
privacy of the individual, whatever the means employed, must be
deemed a violation of the Fourth Amendment.''
Do you agree with Justice Brandeis?
Judge Roberts. I agree with his expression that it's a
basic right to be left alone and I think that animating
principle is a very important one. With regard to particular
restrictions he was talking about, wiretapping, or I forget how
the interception actually at issue there, I don't think it's
appropriate to comment on.
But as a general statement of the principle, and again, it
reflects just the basic understanding that it's a free country
and the right to be left alone is one of our basic rights. I do
agree with that.
Senator Feinstein. I do think the implication of what you
said to Senator Wyden, and I have discussed this with him, was
that one has the right to make their end-of-life decision.
Judge Roberts. Well, that's an issue that is before the
Court in particular cases and I can't comment on a case that's
coming before the Court. If I am confirmed, I would have to
confront that case with an open mind in light of the arguments
presented, in light of the precedents of the Court, and the
litigants in those cases are entitled to have judges that
haven't expressed views on that particular case.
Senator Feinstein. Well, let me ask you this question,
then. In an interview on PBS after the Court ruled in
Washington v. Glucksberg, a case involving a State statute that
banned assisted suicide, you said, ``I think it's important not
to have too narrow a view of protecting personal rights.'' What
did you mean by that?
Judge Roberts. Well, I went on to explain that the right--
any time there's an assertion of a right, there's quite often
an assertion of a contrary right. I think it was similar to a
point Senator Kyl was making earlier, that, for example, if
you're asserting a right against government regulation, then
the right of the people to regulate through their elected
representatives that's being struck down, that right is being
restricted.
So it's usually not--it's often not, we could view that as
a right on one side and there's nothing on the other side. But
there's often an assertion of a right on the other side. And
what the courts have to do is make sure they provide a level
playing field in which people disputing the impact of the
Constitution, on whose right prevails, have judges who will
decide that case according to the rule of law, and not
according to whether they think one right should prevail or
another.
Senator Feinstein. But do you believe then that the Federal
Court should become involved in end-of-life decisions?
Judge Roberts. Well, Senator, that is exactly one of the
questions that's before the Court, and I can't answer that in
the abstract. I have to answer that on the basis of the
parties' arguments, on the basis of the record in the case, on
the basis of the precedents. An abstract opinion that would
prejudge that case would be inappropriate for a nominee to
express.
Senator Feinstein. Let me ask it another way. Do you
believe that the Court should have a limited role in that
situation?
Judge Roberts. I think courts have a limited role in
general, and that is that they only interpret the law, they
don't make the law, they don't shape the policy. Now, the
application of that basic principle, which is very important to
me, in a particular case is obviously something that hospitable
to wait for the litigation of that case, the arguments in that
case, the arguments of the lawyers about whether it's
consistent with the precedents or inconsistent with the
precedents, but the basic principle, the courts should not be
shaping public policy--that's for the legislators--is a
fundamental principle with which I agree.
Senator Feinstein. Thank you, Mr. Chairman.
Thank you.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator Feinstein.
Since I announced the break at 4:15, I have been advised
that there is a vote at 4:30. So Senator Sessions has
graciously agreed to split his 30-minute round, 15 minutes, and
then we will go vote. So we will now turn to Senator Sessions
for 15 minutes, and we will break at that time and take a 15-
minute break to go vote.
Senator Sessions. Thank you very much, Mr. Chairman.
Judge Roberts, I want to congratulate you on your excellent
testimony. You have validated the President's confidence in
you. Many people said President Bush obviously looked around
and looked around and finally decided to choose the best, and I
think you have proven that correctly. The ABA has rated you
unanimously, American Bar Association, in their formal rating
process, unanimously rated you ``well-qualified,'' the highest
possible rating that they give. They have quite a number of
lawyers that vote on that, so to get a unanimous vote is not
that frequent. And for a higher office, they have a higher
standard, and I think that is particularly worthwhile that you
received that recognition.
I note that some of our legal professional journals have
given you remarkable accolades. The American Lawyer, in 2004,
wrote that you were ``one of the Supreme Court's finest
practitioners.'' And the Legal Times said you are ``one of the
top appellate lawyers of your generation.'' And the Legal Times
also said that you are ``viewed by many as the best Supreme
Court advocate in private law firm practice.'' Those are high
praise, and I think today we have seen why people would think
that of you.
I also would offer for the record, Mr. Chairman, a letter
from former Democratic Attorney General Bill Baxley from
Alabama. He prosecuted the first prosecution of the church
bombing cases in Birmingham successfully. He is a lifelong
Democrat. As he notes, an elected member of the State
Democratic Executive Committee.
Chairman Specter. Without objection it will be made a part
of the record.
Senator Sessions. He said this, ``Senator, I know Judge
Roberts well. I have entrusted three important appellate
matters to him. In each instance I met with him and engaged him
in extensive conversation upon a wide range of topics because
he is a man of such remarkable intellectual brilliance. I
sought him out on private as well as professional topics,
enjoyed more than one meal with him, and was each time
overwhelmed not only by his intelligence, but also his innate
sense of fairness, by his sensitivity to every aspect and angle
of consideration of every issue addressed by him, and by his
somber sense of decency and justice.'' A somber sense of
decency and justice, pretty good phrase.
``My love of my country surpasses politics,'' Mr. Baxley
says. ``It compels me to support Judge Roberts in every
possible way in order that justice might most effectively
prevail in the United States Supreme Court. I am confident in
the ability of Judge Roberts to fairly, and without any agenda
of any kind, address each legal issue which comes before him. I
am equally confident of his ability to lead the Supreme Court
in an administrative capacity. I have no doubt that the diverse
opinions of each Associate Justice sitting on the United States
Supreme Court will receive greater deference and consideration
under his leadership than under any other Chief Justice with
whom they have ever served. This wise and circumspect man
deserves this office.''
So I think we have seen a great bipartisan recognition of
your capabilities, and the respect that you have reaches
broadly.
Also recall, Judge Roberts, that in my opening statement, I
suggested that the pattern around here is to take out old
statements and memoranda and bring them up out of context, and
that particularly the outside groups and sometimes Senators
would get confused, or sometimes these groups I think
deliberately have attempted to paint a picture of you or the
positions you took that are not fair or accurate.
I just would want to go over a few cases and deal with some
of the issues that you have already been questioned with to
make sure that we are square about it.
On the Gwinnett case, the Title IX, the women's education
case, the position you took that would deny the right to sue a
State entity, a government entity for money damages, was that
not a position consistent with the position of the court of
appeals that had written the only opinion on that subject?
Judge Roberts. Yes, that was the court of appeals position.
Senator Sessions. So you, in advocating that position, were
expressing a view that was the view of the highest Federal
court in the land at that time?
Judge Roberts. Yes.
Senator Sessions. With respect to the Grove City case, it
was good that Senator Grassley from Iowa knew about that, and I
think he clarified that question well here.
With regard to Bolden v. City of Mobile, you and Senator
Kennedy had an exchange. Well, I am from Mobile. I was not
involved in the litigation, but know something about that
litigation. When the exchange ended, as I recall, Senator
Kennedy was insisting that the Zimmer case was the established
law, and there are a number of cases had said that effects
tests applied, whereas you were contending that at the time you
took the position you did, that the Supreme Court had ruled
that an intent standard was required, and that Bolden set the
decision on that. I guess the question for us today, who was
right, you or Senator Kennedy?
Judge Roberts. Well--
Senator Sessions. I did not want to ask you, but go ahead.
Judge Roberts. No. I don't--
Senator Sessions. If I say the--
Judge Roberts. It was a renewal of a debate that was had
between the administration and Senator Kennedy 20 plus years
ago, and certainly the issue of whether the Supreme Court had
interpreted Section 2 and what it had said and whether or not
it was correct, was mooted. Senator Kennedy's position
eventually prevailed as a matter of legislation. Through the
good offices of Senator Dole and others, the compromise was
worked out, and the totality of the circumstances test enacted
under Section 2.
Senator Sessions. But the truth is, is it not, that Bolden
v. City of Mobile had been decided by the Supreme Court, and
the Bolden v. City of Mobile said that you had to show, when
you consider a form of a local government, that before you
could throw it out, create a new government for that city, you
had to show that it was designed in a way to intentionally deny
equal rights to the minority citizens.
Judge Roberts. That was my understanding of, and certainly
the administration's understanding of Mobile and its
interpretation of Section 2. And as I said, the debate was
largely mooted by the legislative change that was enacted.
Senator Sessions. I am just trying to get this thing
straight because I do not want anybody to be misinterpreted.
Bolden v. City of Mobile quoted Zimmer. It was the final word
on the matter, and it ruled that before the Federal Government
could throw out a government of a city and require a new
government to be established, there had to be an intent to
discriminate, and that was consistent with the Voting Rights
Act. And then when the Voting Rights Act came up for
reauthorization, the legislature, the Congress passed a law and
changed the law that in effect said the effects test, if it had
the effect of discriminating or keeping African-American
citizens from being elected to office, that that could justify
the removal of the existing form of government and establish a
new government.
Judge Roberts. That's right, and it is in many areas--well,
certainly every area involving interpretation of the statute--
the final say is not with the Supreme Court. The final say on a
statute is with Congress, and if they don't like the Supreme
Court's interpretation of it, they can change it, and that's
what happened in this case.
Senator Sessions. Well, the Voting Rights Act, let me say,
is a tremendous critical, historical event. It transformed the
South. I think Senator Kennedy or others said that
grandchildren and children today are being able to vote because
of this right, and that is true. Not only are they being able
to vote, they are being able to be judges who supervise
elections, sheriffs, mayors, city councilmen, county
commissioners. Alabama has more elected African-American
officeholders than any other State in America, and we are proud
of that. But this was a powerful Act, and it did change the
makeup of county commissions, city commissions, statewide
boards, all over Alabama, all over America, and it was a big
step. But the Congress made that, and you were correct when you
said that your position was consistent with what the Supreme
Court ruled at that time.
With regard to the question of comparable work, I think
Senator Feinstein was clear about this, but I would like to
make it a little bit clearer. You have consistently favored
equal pay for equal work, have you not, and did not President
Reagan also favor that explicitly and openly?
Judge Roberts. Absolutely.
Senator Sessions. It is the question of this comparable
worth theory that apparently one district court found in favor
of, but that every circuit court and every other court that
considered it, rejected it, that said that some body, some
commission, I guess, would decide whether a secretary should be
paid as much as a truck driver and make those kind of value
judgment decisions. Is that not the difference between those
two aspects?
Judge Roberts. That's right. Yeah, there is no question of
equal pay for equal work. It's the idea that someone should
decide that different jobs are of comparable worth and that
therefore they should be paid the same. And the district court
adopted that approach, was reversed by the Ninth Circuit Court
of Appeals in an opinion by then-Judge Anthony Kennedy.
Senator Sessions. That is right. I know he did right on
that, and I think that the Sixth, Seventh, Tenth and Ninth
Circuits all rejected that idea, and frankly, it has not been
heard from since. I am glad that you and President Reagan did
not agree to that at the time. We would have commissions of
incredible complexity trying to decide very important matters.
The National Academy of Sciences, in fact, found and declared
it did not believe that the value of worth of jobs could be
determined by fair and scientific methods. So I think that is
important.
Judge Roberts, I tried a lot of cases in Federal district
court. I have written appeals to the Federal appellate courts
and argued a few times in the court of appeals. I would like
for you to help explain to us how this court system works and
what an appellate judge does. I mean appellate judges do not go
about to set policy in America. They do not go out to supervise
and superintend the legislative and executive branches. They
decide cases that come before them. So is it not true that
normally a case would be initiated in a Federal district court
of a State trial court, and a trial would be held, often with a
jury, and a judgment is rendered?
Judge Roberts. That's what most people, most of us think of
when we think of going to court. You're there. You know, you
bring in the witnesses. They testify, they're cross-examined by
the other side. There's one judge supervising the trial. If
it's a jury case the jury is there. That's where most of the
fact finding takes place. People have different versions of
events, you know, who was there, what did they do? And people
tell different stories, and that is where you try to sort that
out, either before the jury or the single judge.
Senator Sessions. And a judge has to rule, he has to rule
on evidentiary matters or legal matters, and sometimes a judge
is in the midst of trial and maybe he makes an error maybe he
does not make an error. But every word of that trial is put
down, is recorded. And so after the trial if the losing party
is unhappy, they can take an appeal, and when they do that, it
goes to the Federal court of appeals for that circuit, and they
point out to the court of appeals where they think the judge
made an error. And they say, this was wrong and we want a new
trial judge, or remittitur, or some other remedy. Is that not
what happens?
Judge Roberts. That's right. The big difference, when you
get up to the court of appeals, is that the facts are not
really in play any more. Somebody's been determined--they think
you're guilty or they buy your version of events. The court of
appeals usually just looks at the legal issues. Somebody says,
``The judge made a mistake. He shouldn't have let that witness
testify, or he should have recognized that the police had no
authority to conduct that search'' in a criminal case. And
that's appealed to the court of appeals, where in the Federal
system there are three judges, and they're just looking at that
legal question. And they just go back and look at the law, the
precedents, and determine whether or not the law was correctly
applied in the trial court of if mistake had been made and they
need to do it over again.
Senator Sessions. And if they appeal, the lawyers write
sometimes beautiful, carefully written briefs that point out
the reasons why they think an error may or may not have
occurred; is that not correct?
Judge Roberts. As a court of appeals judge, that's exactly
the kind of brief you're looking for, and every now and then
you get one.
[Laughter.]
Senator Sessions. And sometimes when you read the first
brief, you are persuaded, and when you read the second brief
you think maybe it was not as clear as you thought it was when
you read the first one.
Judge Roberts. Not just sometimes, Senator, quite often
that's my reaction. That's part of the adversary system, and
you need to have lawyers doing a good job presenting the best
arguments on either side so you can feel comfortable that
you're making as good a decision as you can.
Senator Sessions. So the lawyers in the case and the
clients and the parties want a judge who will carefully read
those briefs and be fair and careful in analyzing whether or
not they got a fair trial to ensure justice took place.
Judge Roberts. That's what I was always looking for when I
was a lawyer, Senator, yes.
Senator Sessions. Mr. Chairman, I see the clock is going
around in circles down there, I think. What do you want to do
about time?
Chairman Specter. Well, they have not started the vote, and
we all know that that is not totally predictable even when they
say 4:30. Would you care to continue until the vote starts?
Senator Sessions. I would be pleased if the Chairman--do
you know what my time is now?
Chairman Specter. You can run the red to--well, it just
went off.
Senator Sessions. This is like a football referee, put so
much time back on the clock. It says a minute left.
[Laughter.]
Chairman Specter. You can run the red till 7 minutes and 30
seconds.
Senator Sessions. All right, very good.
[Laughter.]
Senator Sessions. Who am I to disagree with the Chairman?
Chairman Specter. Senator Sessions, if you would--
Senator Sessions. I will have 15 minutes after this?
Chairman Specter. You have 15 minutes left, yes. Start the
clock back at 15 minutes.
Senator Sessions. Okay, good. Thank you. The doctor down
here is good at mathematics.
[Laughter.]
Senator Sessions. Businessman, too.
But it is even more complicated than that in doing justice,
and on the Supreme Court if a case comes up to you, you will
probably have briefs from both parties. You will receive the
transcript of the trial that the issue arises from, and you
will study that. And you have several law clerks who will help
you study that. And every one of the 9 Supreme Court Justices
are also studying this same record and all these briefs. Is it
not true that friends of the Court can submit briefs?
Judge Roberts. At Supreme Court level that's very common,
and in some cases there are quite literally hundreds of so-
called ``friends of the Court'' or amicus briefs. Different
organizations that are interested in a particular ruling and
have a particular perspective, a few of them are even helpful.
Senator Sessions. So you review that, and then you
frequently set the case, or normally set the case for oral
argument.
Judge Roberts. If the Supreme Court decides to--this is of
course a very big part of their function. They get some 10,000
petitions every year, people saying, ``I want you to hear my
case.'' You know, all lawyers say they're going to take it all
the way to the Supreme Court, 10,000 people try to do that
every year. These days the Court hears about 80 of those, 80 of
those 10,000. And the selection of which 80 to take is
obviously a big part of the Court's function.
But once they have selected those 80 cases, then they go in
and have new briefs on the merits, and all these amicus briefs
are filed from different organizations presenting their
arguments or their particular perspective, and then it's set
for argument.
Senator Sessions. So the lawyers from both sides then
appear before the Court over in the Supreme Court Building, and
they answer questions and make their presentations as to why
they think the Court should rule the way they would like it to.
Judge Roberts. They usually get an hour for the whole case,
so each side gets a half-hour, and that half-hour is taken up
almost entirely by the Justices' questions. I went back once
and counted the questions during my half-hour, and there were
over a hundred questions. Obviously some of them are rapid-fire
questions, and if you follow the Court, you could probably
guess who was asking those, and others were more elaborate
questions, but more than a hundred in a half-hour.
So the job of the lawyer there is to be totally prepared to
answer all of those questions. And, of course, some of them are
going to lead into traps, and you have to be careful about
that. Others are going to be the very difficult questions that
the Court is eventually going to base its decision on. But it's
a very both exhilarating and demanding process to go through an
oral argument before the Supreme Court.
Senator Sessions. And I think there is little doubt that
you are the best practitioner of it in the country. But with
regard to that, you then finish, and do the judges then meet in
conference to discuss the case?
Judge Roberts. They do. The Justices, each of whom has
prepared the case by not only reading all these briefs and
attending the argument, talking it over with their law clerks,
but also reading back over the cases, the precedents that the
lawyers have been arguing about, they go back and look at
those, and then just the Justices in the conference room--no
clerks, no staff, just the nine Justices sit in the conference
room and talk about it, thrash out the case, eventually get to
a point where they take a vote on what they think the
disposition should be, the decision should either be affirmed
or reversed, or sometimes something else in between, half
affirmed, half reversed, sent back, whatever. And then the
opinion is assigned, and that's still very much part of the
process, the writing of the opinion, because quite often--or
maybe not quite often, but often enough, the Justices find out
that as they try to write a particular opinion, different
problems come up. It doesn't seem as--it's not writing as they
thought it would, and sometimes they have to go back and
revisit the case because the Justice assigned the opinion
decides that it's not--it should come out the other way or
there should be a different reason, a different basis for the
decision.
And then once the Justice who's writing it is comfortable
with the opinion, they send it around to all the other
chambers, and the individual Justices, if they agree with it,
they send a memo around to everybody else that says, ``Please
join me.'' That's just the jargon the Justices use. It means,
``Please join my name to your opinion.'' And sometimes they
will have suggestions. You know, I'd be happy to join your
opinion, but I disagree with this section, or I disagree with
this footnote, or I disagree with this line of reasoning. If
you could change that, I'd be able to join.
Well, if you're a Justice who's getting--this is the first
reaction you've gotten, the first vote back, you might be a
little more willing to make a change to accommodate that
suggestion. If you've got seven votes already in the bank and
somebody says please change this or change that, maybe you're a
little less willing because maybe then some of the others say,
well, now I'm not happy with that change. And it can obviously
get to be a very complicated process as the memos fly back and
forth and the Court tries to come to some consensus around an
opinion.
Often, maybe too often, there's not total agreement, and
somebody will write a dissent and send that around. And others
will join that.
Concurrence, you know, I can't agree with your reason, but
I agree with the result, and so I'm writing separately to give
you my reasons.
And the balance changes. Somebody can write a concurrence,
and all of a sudden they've got five votes, and it's the
majority, and the other majority, the original majority becomes
the concurrence. But it's a--the analysis is done at--and this
has been my experience on the court of appeals as well--a very
high level, and I think it's critically important that it's
just the Justices alone who go into the conference room, just
as on my court now it's just the judges who go into their
conference room, because judges and Justices in that situation
can be a lot more open with their views. And it's been quite
common in my experience over the past more than 2 years to have
a judge say, ``This is how I view the case,'' and then another
judge say, ``Well, what about this?'' And the judge can say,
``Well, I hadn't thought about that'' or ``The record says
this.'' And you get out the record, put it out there and look
at it.
Senator Sessions. But at some point you agree to sign on an
opinion, one way or the other.
Judge Roberts. Right.
Senator Sessions. And that becomes a decision of the judge
and maybe the majority of the Court, or maybe a dissent, but
that is a decision that is made. Isn't that why you should not
in this hearing today blithely start expressing opinions on
complex matters when you haven't been through that process and
start prejudging matters before you have read the briefs,
before you have read the transcript, before you have heard the
arguments, before you have talked to your clerks, before you
have discussed it with other judges? Isn't that the essence of
what justice is, this careful process that leads us to as fair
a result as humanly possible?
Judge Roberts. I think that's perfectly accurate, and if
you've had the experience, as I know every judge and every
Justice has, of having your original view changed when you read
either the other side's brief in a case, after reading the
opening brief, or had your view changed as a result of the
discussion at conference, or had your view changed when you
tried to write the opinion one way and it came out the other
way, then you appreciate the significance of that process. And
it's a total distortion and a perversion of that process to
start out by saying, well, you know, I testified under oath
that I thought this decision was correct, so I'm done, you
know, no need to read the briefs, no need to listen to the
arguments, no need to go into conference and talk with the
other judges on the bench, I've already given my view under
oath. Or even if you are going to be open to reconsideration,
to start with that barrier, I testified under oath that this is
the correct approach, that this is the right result, now maybe
you can persuade me otherwise, well, that's not the burden that
the litigant should have to take. The litigant should be able
to know that all of the judges, all of the Justices that that
person is arguing before have an open mind and are fully open
to the process.
Senator Sessions. You wouldn't want to call Senator Biden
and ask his permission to change the commitment you made, would
you? Just a joke there a little bit.
[Laughter.]
Senator Sessions. You don't want to have to read a
transcript of this hearing about the time when you try to
decide how to rule on a case to make sure you didn't make some
commitment. I mean, I think that is all I wanted to--the point
I would like to make there.
You know, Senator Specter came right out of the chute
asking you about stare decisis and Roe and other related type
matters, and that is an important question. As I understand it,
you committed to Senator Specter that you would bring no hidden
agendas to this matter, that you would consider any case that
came up under Roe or any other case that might impact stare
decisis, and that you would apply a reasonable, professional
analysis to that, drawing on the history of courts and their
opinions in dealing with these cases, and would try to make a
fair and honest and objective decision. Is that what I
understood you to say?
Judge Roberts. That's what I understood my testimony to be,
yes, Senator.
Senator Sessions. And you are not saying one way or the
other how you would rule on Roe or some of the other cases that
have been--
Judge Roberts. No. I feel that it would be very
inappropriate for me as a nominee to tell how I would rule on a
particular case that might come before the Court.
Senator Sessions. Well, I would like to know how you would
rule on a lot of those cases, too, but I didn't ask you when
you came and talked with me, and I don't think it is
appropriate. I don't think those of us who are politically
conservative ought to look to the courts to promote our
conservative agenda through the manipulation of interpreting
words of the Constitution or statutes. I don't think liberals
have a right to ask the Court to promote their agenda by
twisting the plain meaning of words to accomplish an agenda.
What we need is what you said, an umpire, fair and
objective, that calls it like they see it based on the discrete
case that comes before the judge. And I think that is most
important.
I would just say I don't know the answer to those questions
legally, how it will all come out, but I would just offer that
polling data continues to show that young people and numbers in
general are showing that the people are more hostile to
abortion than they used to be. Perhaps it is seeing the
sonograms and those kind of things. Seventy-five percent,
according to a Harris survey, said that they didn't think an
abortion was proper in the second trimester; 85 percent said
they didn't think it was proper in the last trimester.
I just saw an interesting article by Mr. Benjamin Wittes.
He writes for the Washington Post. He declares he is pro-
choice, and he says, ``Let go of Roe.'' And he goes into an
analysis of it. He said, ``I am not necessarily thinking Roe
ought to legally be overturned, but if it does die, I won't
attend its funeral, nor would I lift a finger to prevent a
conservative President from nominating a Justice who might bury
it once and for all.'' This was in Atlantic Monthly, January of
this year. And he goes on to say, ``Roe puts liberals in the
position of defending a lousy opinion. It disenfranchised
millions of conservatives on an issue about which they care
deeply, while freeing those conservatives from any obligation
to articulate a responsible policy that might command majority
support.'' And he goes on, as have others, to say this: ``The
right to an abortion remains a highly debatable position, both
jurisprudentially and morally.'' And he also noted that, ``In
the years since the decision, an enormous body of academic
literature has tried to put the right to an abortion on firmer
legal ground, but thousands of pages of scholarship
notwithstanding, the right to abortion remains a
constitutionally shaky proposition. Abortion policy is a
question that the Constitution, even broadly construed, cannot
convincingly be read to resolve.''
So that is one opinion. I am just saying you will have to
deal with this, and I just don't think that we ought to take
the view that that matter is open and shut, and I hope that
you--we will take you at your word that your mind is open and
you will evaluate the matter fairly according to the high
standards of justice that you can bring to bear to that issue,
and any others like it that come up. Will you give us that
commitment?
Judge Roberts. Absolutely, Senator. I would confront issues
in this area as any other area, with an open mind, in light of
the arguments, in light of the record, after careful
consideration of the views of my colleagues on the bench. And I
would confront these questions just as I would any others that
come before the Court.
Senator Sessions. Well, I am of the view that the
Constitution is a contract with the American people, that
developments will occur that clearly fit within the ambit of a
fair reading of that Constitution that were never contemplated
by the Founders. Things do change, and we have to apply new
circumstances. But wouldn't you agree a judge should never make
an opinion that is beyond what a fair interpretation of the
Constitution would call for?
Judge Roberts. Yes.
Senator Sessions. Judge Roberts, thank you for responding
to my questions and to those of the other members of this body.
You have been open, honest, and direct in providing a great
view of your judicial philosophy and how you approach cases. I
appreciate the fact you have correctly avoided some questions,
some you should not answer. You haven't read the briefs and
heard the arguments and thought about it. But you have
carefully answered the appropriate questions, and we respect
you for it.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions.
The vote is now in process. We will recess until 5:05, at
which point we will call on Senator Feingold for his 30 minutes
of questioning.
We stand in recess.
[Recess 4:50 to 5:14 p.m.]
Chairman Specter. The hearing will resume. We are just a
little late in coming back because we were on the floor trying
to figure out what the Senate schedule is going to be, when we
would vote next. While that is uncertain, I believe it is
reasonable to conclude that we will not vote until 7:30. That
gives us latitude to move ahead with five more rounds, where we
will finish at about 7:30, a little later because we are not
starting quite at 5:00, 7:45.
So we will proceed with Senator Feingold now, and then
Senator Graham from 5:30 to 6:00, Senator Schumer from 6:00 to
6:30, Senator Cornyn from 6:30 to 7:00, and Senator Durbin from
7:00 to 7:30. That is back by 15 minutes because we are 15
minutes slow coming out of the gate.
Senator Leahy. Did you notice the look of sheer,
undisguised glee on the face of Judge Roberts at the idea of
going another three hours at this? Two hours?
Chairman Specter. I consulted with Senator Leahy, Judge
Roberts, and the empirical evidence is overwhelming, without
consultation, that you are fit to go indefinitely.
Judge Roberts. I'm ready to go.
Chairman Specter. Is that judgment satisfactory to you--
Judge Roberts. Absolutely.
Chairman Specter.--Judge Roberts?
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Judge Roberts, the eyes of America are on you this week
thanks to what our generation called the miracle of live
television. Television plays an enormous role in providing
information and bringing the country together in times of
national pride, like the liftoffs and the landings of
spacecrafts and Presidential inaugurations, political conflict
like the 2000 election and the 1999 impeachment trial of
President Clinton, the great tragedy of September 11 and the
devastation wrought by Hurricane Katrina. Americans can watch
virtually every significant event of national importance on
television except for oral arguments and announcement of
decisions at the Supreme Court.
If you are confirmed, you will essentially disappear from
public view. This hearing will, in some ways, be the last time
that the Nation will see you at work. The possibility of
televising trials raises some complicated issues. We have to
consider the safety and rights of criminal defendants and
witnesses and jurors. But such concerns are not so present in
the case of appellate proceedings. There is no doubt that there
is enormous public interest in Supreme Court oral arguments,
but not very many seats in the courthouse.
I think it would benefit the country and the Court if all
Americans had the chance to see the Court conduct its work, so
I would like to know if you, as Chief Justice, will support
televising the Court's public proceedings.
Judge Roberts. Senator, it's not something that I have a
settled view on and I do think it's something that I would
benefit from the views of my colleagues, and I know that some
of them have particular views and some may not. I noticed the
last time there was a formal response by the Court to a request
to televise a particular argument, the Chief Justice referred
the matter to the whole Court and then reported back on it.
I'm also aware that there are--I'm not sure if the right
word is experimental or trial efforts going on in some of the
courts of appeals, the Federal courts of appeals, to televise
arguments there, and I know I've watched them so I appreciate
that opportunity. And I don't know yet if there's been an
evaluation of how that experiment proceeded, whether the judges
thought it went fine, the lawyers, or whatever. I just don't
know.
At the Supreme Court level, I do know they experimented
recently in a few cases with releasing the audio tapes
immediately after the conclusion of the argument. Again, I
listened to those on occasion, not every case, but selected
cases of particular interest. I know that on our court, my
court, I'm sorry, on the court of appeals for the D.C. Circuit,
we broadcast at least within the courthouse simultaneously the
oral arguments, so I know that the technology is there to do
that and I certainly understand the interest and I understand
how--I know it was very well received to have the audio tapes
immediately available in some of those cases--
Senator Feingold. I hope you will seriously consider this.
What has changed from our good conversation we had about this
before is that now you will be the principal decision maker on
this as the Chief Justice, and I hope you will give it serious
consideration.
Judge Roberts, on September 11, 2001, obviously an event
occurred that had a profound effect on all of us in this
country. We all have our own memories of that day. During those
first few hours after the attacks, I kept remembering a
sentence from a case we both probably studied in law school.''
Those words were, ``while the Constitution protects against
invasions of individual rights, it is not a suicide pact.''
I took those words as a challenge to my concerns about
civil liberties at that horrible time in our history. We have
to be careful not to take civil liberties so literally that we
allow ourselves to be destroyed. But then when I actually
tracked down the case itself, not remembering what case it was
from, it was Kennedy v. Mendoza-Martinez, I found that Justice
Arthur Goldberg made this statement, but then went on to rule
in favor of the civil liberties position in this case. He
actually affirmed the importance of civil liberties in wartime.
So I would like to start this part of my questions by
asking you what kind of impact that day had on you and your
belief system and whether it changed your view of the
importance of individual rights and civil liberties and how
they can be protected.
Judge Roberts. Well, I remember the day vividly, Senator. I
think I was one of the last people in the country to find out
about it. I had entered--gone into a hearing. It was actually
in an original action in the Supreme Court. The Special Master
was at G.W. Law School and we had a hearing. I think it was
starting a little before nine that day. We went in there.
I remember just as I was leaving getting a report that a
plane had struck the World Trade Center, but it was--at the
time, I thought it was, like, you know, one of those tour
planes that was--I had no idea what they were reporting. I went
into the proceeding and we conducted the hearing. It lasted
several hours. Nobody notified us and we didn't know about it.
I remember leaving and trying to walk back to my office--I
was at the law firm then--and the street was blocked off and I
figured, well, there's something going on at the White House. I
remember walking down further and it was still blocked off and
still blocked off. I finally went up to one of these guards and
I said, ``What's going on?'' and he looked at me like, ``Where
have you been?'' Only then did I begin to appreciate it. I went
back to my office, because there was no way to get out of town
by then--
Senator Feingold. But at what point did you start thinking
about the implications of this in terms of civil liberties and
the challenges--
Judge Roberts. Well, it was when I went back to the office
and saw the smoke rising from the Pentagon. As you can imagine,
that was a chilling sight. The basic issue of how you address
the question of civil liberties in wartime, in times of crisis,
is a critically important one.
The Bill of Rights doesn't change during times of war. The
Bill of Rights doesn't change in times of crisis. There may be
situations where demands are different and they have to be
analyzed appropriately so that things that might have been
acceptable in times of war are not acceptable in times of
peace. I think everyone appreciates that. But the Bill of
Rights is not suspended and the obligation of the courts to
uphold the rule of law is not suspended.
Senator Feingold. Did you recognize at that moment that
this might become a time when it would be harder to protect
civil liberties?
Judge Roberts. I think--I don't recall recognizing that in
particular, but that is, of course, always the challenge in
times of war and in times of stress, whatever the cause. I
think it is the obligation of the courts to remember, just as
really the model of the D.C. Circuit, from our earliest case,
when the treason trial of Aaron Burr, to calmly poise the
scales of justice. The emphasis is on calmly. It requires a
certain dispassion, a certain separation from the passions of
the moment.
Senator Feingold. That is absolutely right and that is why
I want to follow up on what Senator Leahy asked about earlier--
a different time, a different challenge. As a Nation, we can
now look back at wartime Supreme Court decisions like Korematsu
v. United States with something like bewilderment. We talked
about it earlier. To me, it seems inconceivable that the United
States Government would have decided to put huge numbers of
citizens in detention centers based on their race and that the
Supreme Court would have deferred to the President's decision
to do so.
Do you believe that Korematsu was wrongly decided?
Judge Roberts. It's one of those cases that I don't think
it's technically been overruled yet, but I think it's widely
recognized as not having precedential value. I do think the
result in that case--Korematsu was actually the--considered the
exclusion and not the actual detention, but the exclusion of
individuals based on their ethnic/racial background from vast
areas. It's hard for me to comprehend the argument that that
would be acceptable these days.
Senator Feingold. It is often included, if you list
decisions that are sort of considered some of the worst
decisions in the history of the Supreme Court--
Judge Roberts. Yes.
Senator Feingold.--with Plessy v. Ferguson and Dred Scott
and others. Is that a fair characterization of your view--
Judge Roberts. Yes.
Senator Feingold.--of Korematsu?
Judge Roberts. Yes.
Senator Feingold. Are there any elements of the
Government's response to September 11 that you think 50 or 60
years from now we as a Nation will look back on with regret?
Judge Roberts. Well, I'm sure there are some, Senator, and
when you have the benefit of 50 or 60 years to look back as
opposed to the particular demands of the moment and the
perceived demands, I'm sure it's a different perspective. I'd
hesitate to mention any in particular because so many of these
issues are coming before not only the Supreme Court, but the
court on which I now sit, and I will have to confront those
cases, I think, regardless of what happens here. So I'd
hesitate to identify particular areas of concern.
Senator Feingold. I understand your caution. I don't think
we need to wait 50 or 60 years for some. For example, do you
have any concerns about the practice of extraordinary
rendition, of our Government secretly sending people to
countries that we know use torture?
Judge Roberts. Again, Senator, that is something that could
come before the Court in one form or another and I think I have
to refrain from commenting on it.
Senator Feingold. How about the Federal Government using
immigration laws to round up and detain people for months,
often without regard for whether they had any connection to the
September 11 investigation, which actually in this case the
Justice Department Inspector General later heavily criticized?
Does that trouble you?
Judge Roberts. Well, yes, certainly, at a basic level of
appreciating that this is a reaction in a particular way that
raises serious questions. I'm very hesitant, though, again, to
express a view on legality because those issues could come
before the Court. They are coming before the Court, and they're
coming not only before the Supreme Court, but the court on
which I now sit.
Senator Feingold. Let's go to one that has already come
before the Court, the Hamdi case. It is one of the most
significant recent decisions restraining executive branch
power. In that case, eight members of the Court found that the
Government had gone too far in claiming the right to detain and
hold a U.S. citizen incommunicado within the United States
without access to a lawyer and without being charged with a
crime. The case actually resulted in four different opinions
with four different views on the President's power to detain a
U.S. citizen indefinitely and without trial, ranging from
Justices Souter and Ginsburg, who found that the President does
not have any authority to detain citizens as enemy combatants
because such detentions had not been congressionally
authorized, to Justice Thomas, who would defer entirely to the
executive branch.
Which of the four opinions in Hamdi, a case that has
already been decided, would you say best approximates your
views on the Executive power to designate enemy combatants: the
prevailing opinion, the Souter-Ginsburg opinion, the Scalia-
Stevens dissent, or the Thomas dissent?
Judge Roberts. Well, Senator, that does get into the area
of asking me to comment on which opinions I think are correct
that I don't feel it's appropriate for me to go. I do know that
the approach in this area is the approach set forth by Justice
Jackson in his concurring opinion in the Youngstown case. That
has set the framework for consideration of questions of
Executive power in times of war and with respect to foreign
affairs since it was decided.
And as you know, the issue in those cases and in many of
the cases in the Supreme Court is whether Congress has endorsed
the Executive action, in which case the President has his
powers and the powers of Congress; whether Congress has
prohibited the Executive action, in which case all he has is
whatever residual authority he has less the power of Congress;
or what often happens, that vast middle area where it's
impossible to tell or there's argument about whether Congress
has approved the action or not.
The Dames and Moore case that was decided in 1981 is an
example of that, when to resolve the Iranian hostage crisis the
President abrogated claims and relegated those with claims to
the Iranian Claims Tribunal. The issue there, the Court looked
back at a variety of congressional enactments going way back to
the Civil War to try to determine if this type of exercise of
authority is something Congress endorsed or opposed.
Senator Feingold. But with regard to these opinions, and I
understand you are hesitant to comment on a particular opinion
or the nature of the reasoning, but which of the approaches in
terms of the actual finding of the opinion, do you find closest
to your view?
Judge Roberts. Well, again, I don't remember which of those
opinions follows the Youngstown analysis the most closely. My
understanding of the appropriate approach in this area is that
it is the Youngstown analysis, the one set forth in Justice
Jackson's concurring opinion, and I think that is the most
appropriate way to flesh out the issues. You do need to
understand, because this is an area in which judges need to
understand, there is often conflict between the branches and
you do need to at least set the table correctly to understand,
is the President acting with congressional support, against it,
or do we have to try to determine which of those areas it is?
And I think you do need to lay that analysis out before
deciding the case.
Senator Feingold. Last month when I was home in Wisconsin,
a constituent came up and said to me that he believed the D.C.
Circuit decision in the Hamdan case, a different case, which
you joined in, to uphold the Government's ability to try a
Guantanamo Bay detainee by military commission, should
disqualify you from being on the Supreme Court. This is apart
from the issue that Senator Schumer and I wrote you about,
which I will turn to later.
I want to know, with regard to the substance of the
decision, why do you think someone would think that your
decision in that case--why would somebody come up to me and say
that your decision in that case should disqualify you from
consideration as a Supreme Court Justice?
Judge Roberts. Well, Senator, you've touched upon an area
in which I cannot comment under the--that case is still
pending. It's pending before the Supreme Court. Under the
Judicial Canons of Ethics, Canon 3-A(6), I'm not supposed to
comment publicly in any way about a case that's still pending.
Senator Feingold. I'm not asking you to comment on the
case. I am asking you why you think somebody who I represent
would care enough about this issue that they would say this
should be a disqualifier--in other words, characterize what is
the issue in the case that would make somebody that concerned
that they would make such a statement?
Judge Roberts. Well, the issue involves the same sort of
issues that you began the discussion with, the question of
civil liberties in wartime, and certainly I understand people
having strong views on that particular question. But whether
the decision on the merits was correctly resolved or not, or
anything about it, I'm just absolutely prohibited from talking
about it by those judicial canons. There's even an advisory
opinion that explains that that canon applies to a Senate
confirmation hearing. So my ethical obligation not to comment
publicly on a case that's still pending prevents me from saying
anything more.
Senator Feingold. Of course, I respect your judgment on
these matters, but I believe that it's important that the
nominee indicate a sense of why people in this country might
have some anxiety on this point.
Judge Roberts. Well, certainly--
Senator Feingold. The difficult events that have occurred
since September 11th create a climate sometimes of fear, in
particular, fear of Government power, that I think it is
important not only for Members of Congress but even members of
the Supreme Court to help minimize, and I am just trying to get
a sense if you feel that concern in the Nation.
Judge Roberts. Well, I certainly don't minimize the
significance of a decision by a court of appeals or by the
Supreme Court about the scope of Executive authority in this
area, about its impact on individual liberties, about the
issues of separation of powers and whether the relation between
the Congress and the Executive--whether the Executive is acting
with congressional endorsement and support or in the face of
congressional opposition. Those, of course, are very sensitive
issues and always have been throughout our history. I certainly
appreciate that. Those are significant matters. It's just that
I'm prohibited from talking about the substance of the case.
Senator Feingold. Let me talk to an aspect of the case that
I think you can speak to. Many people were surprised to learn
in your questionnaire submitted to the Committee that you were
interviewed by the Attorney General in connection with a
possible vacancy on the Supreme Court on April 1st of this
year, just 6 days before you sat on the panel that heard oral
arguments in the Hamdan case, and that while the case was still
pending, before a decision was issued, you had additional
interviews in May with the Vice President, the White House
Counsel, Mr. Karl Rove, and other top officials.
I am going to give you an opportunity to explain why you
think it was not necessary for you to recuse yourself from the
case, but first I would like to know: Did the possibility of
recusal because you were under serious consideration for the
Supreme Court occur to you, or was it raised with you at any
point prior to the oral argument in the case?
Judge Roberts. Senator, that, again, is a question I can't
answer for you. I can't address that. There's a motion pending
in the Court seeking to file a petition to recuse, and that
motion is pending. It's a matter I can't talk about outside of
the judicial process.
In addition, because the Hamdan case itself is still
pending, I don't think that's appropriate for me to address
that.
Senator Feingold. Judge, I am a little disappointed with
that answer. As you know, Senator Schumer and I sent you a
letter asking questions about this issue, and then we received
a letter on September 1 from the Assistant Attorney General for
Legislative Affairs at the Department of Justice on your
behalf. It says, ``Your August 24th letter requests that Judge
Roberts answer certain questions regarding the D.C. Circuit's
recent decision in Hamdan v. Rumsfeld. As you know, Chairman
Specter has scheduled hearings on Judge Roberts's nomination to
begin immediately after Labor Day. At that time, Judge Roberts
will be available to respond to questions from all Senators on
the Committee.''
Now, I took that to mean a little more than telling me you
couldn't talk about it. Are you now refusing to answer a
question even about when this issue--
Judge Roberts. Senator--
Senator Feingold.--came to your attention?
Judge Roberts. Senator, we're talking about the canons of
judicial ethics. They're quite clear on the subject. They say I
may not talk about a matter that's pending before the Court.
Senator Feingold. Even when it first came to your
attention?
Judge Roberts. That matter is still--is pending before the
Court. My hands are tied. It's not something I can discuss
under the canons of ethics.
Senator Feingold. I guess I will have to move on. Let's go
to voting rights. I want to follow up to Senator Kennedy's
questions about the Voting Rights Act and, in particular, about
your opposition to amendments to the Act in 1982 when you were
an adviser to the Attorney General in the Reagan
Administration's Justice Department.
In 1982, Congress voted overwhelmingly to amend Section 2
to reinstate the test for vote dilution that many lower courts
had used prior to the City of Mobile case, one that looked, as
we talked about earlier, at the effects of an electoral scheme
on the ability of minorities to elect candidates of their
choice rather than on the intent behind this scheme.
While you were in the Reagan Justice Department, you seemed
to have done almost everything in your power to thwart that
congressional effort. Your view was that the intent test should
stand. This was the policy position of the Justice Department,
as you have indicated, and you wholeheartedly supported it at
the time. Your memos make that very clear.
In one memo, you lamented that the House bill then under
consideration would make it much easier to attack ``such widely
accepted practices as at-large voting.'' Now, those practices,
of course, were among the most commonly used systems to prevent
the election of any minorities to local government bodies. We
know that the effects test put into place in the 1982
amendments to the Voting Rights Act has been very successful in
improving minority representation in Congress and at all levels
of Government.
Do you believe today that those gains have been good for
the country?
Judge Roberts. I think the gains under the Voting Rights
Act have been very beneficial in promoting the right to vote,
which is preservative of all other rights. The issue about how
to extend the Voting Rights Act, again, my position was a
member of the staff in the Justice Department. The
administration position of extending the Voting Rights Act for
the longest period in history, as is, without change, was in no
sense reflective of any disagreement with the proposition that
the Voting Rights Act was extremely valuable in securing not
just the right to vote but all other rights--
Senator Feingold. Well, what I am trying to get at here,
Judge, obviously, is this distinction between effects and
intent. Let's follow up on the fact that you said that these
gains have been good for the country. Do you believe that these
gains we have seen in minority representation would have
occurred if your view supporting the intent approach had
prevailed in 1982?
Judge Roberts. Well, I think some of them would have. I
don't know if all of them would have. It's obviously impossible
to tell, to go back and determine whether a particular
application of a different approach would have had the same
results or different results. I think that's very hard to tell.
Senator Feingold. Do you still believe that the intent test
was the more appropriate standard by which to evaluate vote
dilution claims?
Judge Roberts. Senator, my personal view of the Voting
Rights Act was not something somebody was interested in. You
have people who serve on your staff, and their job is to help
you implement your views as a Senator. I am just--
Senator Feingold. I am not questioning what your view was
then. I am asking what you think now having--and this is pretty
settled area, I think you would agree--having seen all this,
having been intimately involved in it, knowing it as well as
you do. Do you believe that the intent test is still the more
appropriate standard by which to evaluate vote dilution claims?
Judge Roberts. Senator, I haven't studied the Voting Rights
Act to determine whether the intent test or the effects test
would have different results in different cases under Section
2. I'm in no position to make a judgment on that.
Senator Feingold. It would be my sense that you would be a
person who would--with your enormous abilities and background--
to have some sense about that. Obviously, you understand that
requiring a voter to prove any additional factor makes it
harder for the voter to win the case and that to prove the
intent of an entire legislative body can be very difficult,
especially when a voting system was put in place many years
ago. Requiring African-Americans and Latino voters, many of
whom have had limited financial resources, to find evidence of
intent was adding an enormous hurdle for them to overcome. And
the Mobile v. Bolden case itself, which was pursued after the
Supreme Court's decision in 1980 and before Congress amended
the law in 1982, makes it very clear, I think clear to all of
us over the years, how difficult that standard was. African-
Americans from Mobile, Alabama, have been unable to elect any
candidates to the position of city commissioner for every
election cycle for something like seven decades. They
challenged the method of electing city commissioners that
allowed the same majority to choose all the commissioners all
the time in at-large elections. And the evidence was very clear
that, as a practical matter, although African-Americans could
register and vote, they couldn't elect anyone. But to get
relief under the Supreme Court standard which you appear to
have supported, they had to go to enormous effort and financial
expense to prove discriminatory intent, including hiring a
historian who could piece together the motivations of city
officials who had designed the electoral system almost a
hundred years earlier.
In this situation, the administration was not bound by a
Supreme Court decision in deciding what position to take under
the proposed Voting Rights Act amendments. So why at that point
did you want to make Section 2 cases so difficult to prove?
Judge Roberts. Senator, you keep referring to what I
supported and what I wanted to do. I was a 26-year-old staff
lawyer. It was my first job as a lawyer after my clerkships. I
was not shaping administration policy. The administration
policy was shaped by the Attorney General on whose staff I
served. It was the policy of President Reagan. It was to extend
the Voting Rights Act without change for the longest period in
history at that point, and it was my job to promote the
Attorney General's view and the President's view on that issue.
And that's what I was doing.
Senator Feingold. I recognize that. What I am trying to
figure out is given the fact that you have followed this issue
for such a long time, I would think you would have a view at
this point about whether you were right about--or the
Department, let's say, since you were working for them, whether
the Department was right on seeking to keep the intent test or
whether time has shown that the effects tests is really the
more appropriate test.
Judge Roberts. Well, Senator, I haven't followed the issue
or the particular litigation. I had involvement in some
litigation when I was in the Solicitor General's office, in
which we were effective in proving violations under the Voting
Rights Act. Many of those cases arose under issues under
Section 5, pre-clearance issues, and not under Section 2.
I as a judge had a case, a three-judge district court case,
again, arising under the pre-clearance provisions, but I'm
certainly not an expert in the area and haven't followed and
have no way of evaluating the relative effectiveness of the law
as amended or the last as it was prior to 1982.
Senator Feingold. Well, with all respect, I realize I
should move on to another topic, but it just seems given how
strongly you stated some of these memos--and I understand you
were doing your job--I would think you would have a view today
whether or not those strong statements still make sense. But
let me move on.
As you know, 42 U.S.C. 1983 is a Federal law that allows
Americans to sue those who deprive them of their rights under
the Constitution or Federal statutes. Section 1983 is a very
important law because it has enabled individuals who are
deprived of their rights to such things as Medicaid, public
housing, child support enforcement, and public assistance to
enforce those rights in Federal court. And I am a little
concerned that you seem to have consistently argued for making
it harder to bring Section 1983 lawsuits. In briefs you have
filed, you advanced a series of arguments to effectively
reverse decades of Supreme Court decisions and restrict
Americans' ability to enforce Federal statutory rights under
Section 1983.
As Deputy Solicitor General, you co-authored an amicus
brief and argued in front of the Supreme Court in a case called
Wilder v. Virginia Hospital Association. You said that
individual Medicaid providers should not be able to sue under
Section 1983 to enforce a provision of the Medicaid statute
which requires States to reimburse them for services at
reasonable rates. One of the arguments you made is that in
order for a statutory right to be enforceable under Section
1983, the Court must find that the Congress clearly intended
``to authorize private enforcement of that right in Federal
court.'' You repeated this argument in another case you later
argued when you were in private practice, Gonzaga University v.
Doe.
The Supreme Court rejected your arguments in Wilder and
found that the Medicaid providers could sue. In the later
Gonzaga case, the Supreme Court specifically rejected your
argument and found that it was not necessary for plaintiffs in
a Section 1983 case to show that Congress intended to create a
private right of action to bring a lawsuit, and Section 1983
already supplies a cause of action.
What role did you play in deciding that the Government
would participate as amicus in the Wilder case? And what role
did you play in developing the argument that it made? And did
you agree with the position that the Government took in the
case?
Judge Roberts. Well, I'll answer that question, but before
I do so, the position I advanced in the Gonzaga case prevailed.
The argument that we made on behalf of the university--I was
obviously representing the university's position, and they
prevailed before the Supreme Court.
In the Wilder case, the determination to participate as an
amicus was made by the Solicitor General, and I don't recall a
particular role in that case. I worked on the brief. I
presented the argument. We lost that case 5-4. It was a close
issue. All of these issues go to the question of what Congress
intended to do. If Congress had spelled out whether or not a
right should be enforceable in Court, that is what the
determination would be in Court. These issues arise only
because of confusion over whether or not Congress has spelled
out that a right should be enforceable in Federal court for
damages or not. And in the Wilder case, the Court determined 5-
4 that the right should be enforceable in Federal court. We
were as an amicus supporting one of the States. I don't
remember which one it was. And the State was making the
argument that there is--the right is--the issue in all of these
cases is whether the right should be enforceable
administratively as opposed to--
Senator Feingold. Excuse me. I am just about to run out of
time. Let me point out the Supreme Court did not accept the
argument that the plaintiffs had to show that Congress intended
to create a private right of action. And I am wondering now, do
you now agree with the argument that you have consistently
made, both as a Government lawyer in Wilder and while in
private practice in Gonzaga, that individuals should not be
able to sue under Section 1983 to enforce a right unless the
Supreme Court finds that Congress clearly intended to authorize
private enforcement of that particular right in Federal court?
Judge Roberts. Well, the Gonzaga decision, which resulted--
there were various arguments made in the brief. The ruling of
the Court was in favor of the university that I was
representing. And the determination in the Gonzaga case about
what should be shown and what has to be shown is one of the
precedents of the Court that I would follow, as any other,
consistent with rules of stare decisis. That's not an area in
which I have any particular view. I've argued both sides of
that issue. On behalf of plaintiffs, I argued in favor of it,
and on behalf of defendants, against it.
Again, the issue is not the enforceability, as in Gonzaga.
The issue was should individuals be allowed to bring suit as
opposed to action by, in that case, the Department of
Education.
Senator Feingold. Thank you for your answers, Judge
Roberts.
Chairman Specter. Thank you, Senator Feingold.
Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
I imagine the reason that you argue different positions is
because people paid you, is that correct?
Judge Roberts. That's how I made my living, Senator.
Senator Graham. I can relate to that.
[Laughter.]
Senator Graham. I imagine it must be very hard to figure
out what Congress intends. Do you agree with that?
Judge Roberts. Sometimes it's easier than others.
Senator Graham. Yes.
Judge Roberts. And sometimes it's hard to read the tea
leaves.
Senator Graham. I can relate to that also.
I want to read an excerpt from the National Association of
Women Lawyers and their evaluation of you, 8-30-05. ``As a
lawyer and judge, based on interviews the Committee conducted,
Judge Roberts has treated individual women lawyers fairly and
with respect, has fostered careers of women lawyers, has been
helpful in enabling women to address worklife balance issues
while advancing professionally, and has been consistently
described as respectful to female colleagues, female lawyers
appearing before him, and female employees.''
You have been asked about every case I think ever written
by anyone. I would like to talk to you a little bit about life.
The idea of judging you based on this section of the Commerce
Clause and that section of the Commerce Clause is important,
but I think most Americans want to know a little bit about you.
From what I can tell, the people who have worked with you and
against you generally like you, and that you have been
described as brilliant, one of the best legal minds of your
time, well-qualified, the adjectives go on and on, and I want
the record to reflect that comes from people who know you the
best. The best indication of a good lawyer is how people on the
other side think of you, and we will get some excerpts from the
record to put that into the record.
Apparently, from what I can tell, you conduct your life in
a noble, honorable manner, that you have been a good litigant,
and that you have fought for your causes, and you have done so
to earn respect of those on both sides of the aisle.
But there is a greater issue here about who you are.
Justice Rehnquist was your mentor; is that correct?
Judge Roberts. He is certainly someone from whom I learned
a great deal, yes.
Senator Graham. So if I was trying to figure out who John
Roberts is, and a little bit about him, I will ask this
question. Write the legacy of Justice Rehnquist for a minute or
two. What would you say if given that task?
Judge Roberts. Well, you know, I think if you were able to
ask him, he would talk about being a grandfather, being a
father, being a husband.
Senator Graham. I am asking you.
Judge Roberts. But the important point is that those were
important things in his life, and he appreciated the need to
recognize that those are the most important things.
With respect to the law, to which he devoted his
professional life, I think a big part of the legacy that he
leaves is a Supreme Court in which all of the members respected
and admired him because of his fairness in administering the
Court and conducting the important responsibilities like
managing the Conference, and assigning opinions.
You can go back in history and look at what other Chief
Justices did. Some were, in terms of that administrative
responsibility, some were disasters. You look at Harlan Stone.
His idea of running the Conference, he said what he thought,
then the next senior Justice said what he thought, then Justice
Stone critiqued that. Then the next Justice, and then Justice
Stone critiqued that. And the result was the conferences went
on for days, and everybody ended up hating each other.
Senator Graham. So he ran a good ship. I think we all agree
with that. And his colleagues respected him whether they
disagreed with him or not. But the basic question is, when you
write about the legacy of a Supreme Court Justice, you write
more than about being a grandfather and more about running a
tight ship, especially Chief Justice. Would you agree with the
idea that from a conservative point of view, he was the gold
standard?
Judge Roberts. I think he was a very effective advocate on
the bench for a view of the Constitution that is one of limited
and separated powers--
Senator Graham. Do you share that view?
Judge Roberts. I do. I think that the--now, I have to tell
you that whether as a judge on the court of appeals, or if I am
confirmed on the Supreme Court, I will certainly be my own man,
and there are--
Senator Graham. No one is doubting that. No one is doubting
that you will not try to be fair. But the big theme, 30,000-
foot view of you, is that when you look at Judge Roberts, you
are looking at someone in the mold of a Rehnquist. Is that a
fair assessment?
Judge Roberts. Well, you know, I admire the late Chief
Justice very much, but I will have to insist that I will be my
own man, and I hesitate to be put in anybody's mold, and I
would certainly approach the cases according to the judicial
philosophy that I have developed over the years. In many
respects it's similar to his, in its recognition I think of the
limited role that judges should have, and of sufficient and
appropriate modesty and humility, a recognition that--
Senator Graham. The idea of a dramatic departure under your
watch from the Rehnquist era is probably not going to happen,
is that true?
Judge Roberts. Given my view of the role of a judge, which
focuses on the appropriate modesty and humility, the notion of
dramatic departures is not one that I would hold out much hope
for.
Senator Graham. I know people do not like being labeled,
put me in that category, but I am in a business where people
label me all the time. But I ask for it, I run for office. But
we do tend in our business of politics to try to label people,
particularly when we are talking about judges. When the
President introduced you to the United States, to the people of
the United States, he said you were a strict constructionist.
Do you know what he meant by that and why he chose to use those
words?
Judge Roberts. Well, I'd hope what he meant by that is
somebody who's going to be faithful to the text of the
Constitution, to the intent of those who drafted it, while
appreciating that sometimes the phrases they used, they were
drafting a Constitution for the ages to secure the blessings of
liberty for their posterity, they were looking ahead, and so
they often used phrases that they intended to have a--
Senator Graham. Does that term make you feel uncomfortable?
Judge Roberts. No.
Senator Graham. Now, from a 30,000-foot view of things, it
seems to be that we are going to have a referendum on the
Reagan era here, which I welcome. I sort of enjoyed it. He won
49 States. He did pretty good. You were a part of the Reagan
era as a young lawyer. When I use the word, term, ``Reagan
revolution,'' what does it mean to you?
Judge Roberts. Well, it means to me generally a change in
attitude. President Reagan always presented an optimistic view.
He always told us that the best days of our country were ahead
of us, and he reasserted basic fundamental truths in areas like
foreign relations. We were going to stand up to the Soviet
Union. We're proud of our system of Government. That's the
right approach, not the Soviet approach. And people who have
come of age after the Berlin Wall has fallen sometimes don't
understand what it meant at that time.
Senator Graham. When it comes to the law, what does the
term ``Reagan revolution'' mean to you?
Judge Roberts. I think it means a belief that we should
interpret the Constitution according to its terms, that judges
don't shape policy, that judges interpret the law, and that
legislators shape policy. The executive branch executes the
law.
Senator Graham. Does it also mean that when you talk about
affirmative action and you set up a quota system, that is not
right?
Judge Roberts. President Reagan's policy was opposed to
quotas, which were much more rigid at the time. People need to
appreciate, 24 years ago the idea of a quota was a rigid set
aside. We now have the recent Supreme Court decisions talking
about consideration of particular factors as one factor in an
affirmative action program. President Reagan was in favor of
affirmative action, and he was opposed to quotas.
Senator Graham. When it comes to voting rights, as I
understand--and we have talked a lot about it, and we probably
know more than all of us ever dreamed we would know about the
Voting Rights Act--the you were implementing a policy of
President Reagan that wanted to pass the Voting Rights Act in
its form that you received it; is that correct?
Judge Roberts. The proposal was to extend it for the
longest period in history without change.
Senator Graham. And we have been through a long discourse
about the effect and intent test. I think you have explained
yourself very well, that the Supreme Court in the Mobile case
said the intent test applies to Section 2; is that right?
Judge Roberts. Section 2.
Senator Graham. Politics took over after that, did it not?
Because the effect test no longer--that is not the test. Is it
not some compromise between Senator Kennedy and Senator Dole?
Judge Roberts. There was a compromise in the test under
Section 2, which is articulated in a paragraph describing what
the criteria are and including a caution that this should not
be read to promote proportional representation which was some
of the concern that the Attorney General and President Reagan
had.
Senator Graham. So between Dole, Senator Kennedy and
President Reagan, a new test was called the ``Totality of the
Circumstances?''
Judge Roberts. Yes.
Senator Graham. When you said that you--Senator Kennedy
said something I thought was very important, that courts should
not stand in the way of elected officials who are trying to
right wrongs. The point I am trying to make here is that you
were picked by a conservative President because you have
associated yourself with conservative administrations in the
past, advising conservative Presidents about conservative
policies. And there is another selection to be made, and you
are going to get the same type person. You can--I am not even
talking to you now.
[Laughter.]
Senator Graham. To expect anything else, is just unfair. I
do not expect, I did not expect President Clinton to pick you,
not because you are not well-qualified, not because you are a
good person, just a different political, legal philosophy. That
is what we are going to have to come to grips with here.
Justice Scalia--do you consider him conservative?
Judge Roberts. Yes.
Senator Graham. Do you think you are more conservative than
he is?
Judge Roberts. I don't know. I mean I wouldn't--
Senator Graham. He got 98 votes. I think you are
conservative, but I think you are one of the great minds of our
generation, of our time, and I am dying to find out if you get
any votes on the other side. Time will tell.
Let us talk about righting wrongs here. I think it stinks
that somebody can burn the flag and that is called speech. What
do you think about that?
Judge Roberts. Well--
[Laughter.]
Judge Roberts. We had the Flag Protection Act after the
Supreme Court concluded that it was protected speech.
Senator Graham. Show me where the term ``symbolic speech''
is in the Constitution.
Judge Roberts. Well, it's not, and--
Senator Graham. It is not. They just made it up, did they
not? I think it stinks that a kid cannot go to school and say a
prayer if he wants to voluntarily. What do you think about
that?
Judge Roberts. That's something it's probably inappropriate
for me to comment on.
Senator Graham. What do you think Ronald Reagan thought
about that?
Judge Roberts. His view was that voluntary school prayer
was appropriate.
Senator Graham. I think it is not right for elected
officials to be unable to talk about or protect the unborn.
What do you think about that?
Judge Roberts. Well, again, Senator, these are issues that
are likely to come before the Court, and I cannot comment on
those particulars because--
Senator Graham. Why are judges more capable of protecting
or talking about the unborn than elected officials?
Judge Roberts. Well, again, those are issues that come
before the Court on a regular basis in particular cases, and
whether on my current court or the future court, I need to be
able to approach those cases with an open mind and not on the
basis of statements I make during a confirmation hearing.
Senator Graham. The point is that righting wrongs is a very
subjective thing, and you will be asked to decide the fate of
people, with individual needs and individual desires, based on
particular fact patterns and legal briefs. I am confident you
can do that, and that you will do that, and I do not think you
need to make a bargain with me to right all the wrongs that I
see in life to sit on the Supreme Court.
What is it like to go through the nominating process in
2005 from a personal point of view? I have been watching
television, channel flipping, and I see some awful things said
about you. Have you seen those things?
Judge Roberts. I have seen some things, yes.
Senator Graham. How does that make you feel?
Judge Roberts. Well, some of the mischaracterizations, you
know, you get annoyed at them. I don't like them. Some of the
things you see, you get pretty upset about.
Senator Graham. How does it make your family feel?
Judge Roberts. They're--I would say they get upset about
some of the things, as well--
Senator Graham. But you know it is a free country and that
is just the way it is, right?
Judge Roberts. It is and it's an expression I've been using
a lot lately. It is a free country and it's a good thing that
it is.
Senator Graham. Let's not talk about you now, but I would
like you to comment to us, give us some advice here. We are
always trying to advise the President through you. What is the
long-term effect on the quality of candidates that we will be
able to recruit for jobs like the Supreme Court if the current
process continues and grows over time?
Judge Roberts. I think it is a very serious threat to the
independence and integrity of the courts to politicize them. I
think that is not a good development, to regard the courts as
simply an extension of the political process. That's not what
they are.
I've been fortunate for the past 2 years to serve on a
court in which all of the judges, and they come--in the D.C.
Circuit, they come from very active careers and public life,
sometimes very identified politically, but it's a court where
those judges put aside those ties and those views and become
judges all focused on the same mission of vindicating the rule
of law.
And if you look at the decisions on the D.C. Circuit,
you'll see that we are almost always unanimous. We almost
always come out the same way. And to the extent there are
disagreements, they don't shape up along political lines. That
is an ideal. But the more and more that the process becomes
politicized, the less likely that that's going to happen.
Senator Graham. Another line of inquiry that's been
disturbing to me is that we talk about the clients you
represent, whether it be the Ronald Reagan Administration or
some private sector client, and we tend to hold that maybe
unpopular position against the lawyer. There is more and more
of that happening. We have had court of appeals nominees that
were accused of being insensitive to the disabled population
when they won their case nine-to-nothing in the Supreme Court
defending a university from the idea that they were not covered
under the Americans with Disabilities Act.
I really do worry that in the future, that if we up here
start holding who you represent against you, that young lawyers
in the future will pass on the hard cases. What are your
thoughts about that?
Judge Roberts. You know, it's a tradition of the American
Bar that goes back before the founding of the country that
lawyers are not identified with the positions of their clients.
The most famous example probably was John Adams, who
represented the British soldiers charged in the Boston
Massacre. He did that for a reason, because he wanted to show
that the Revolution in which he was involved was not about
overturning the rule of law, it was about vindicating the rule
of law.
Our Founders thought that they were not being given their
rights under the British system to which they were entitled,
and by representing the British soldiers, he helped show that
what they were about was defending the rule of law, not
undermining it, and that principle, that you don't identify the
lawyer with the particular views of the client, or the views
that the lawyer advances on behalf of the client, is critical
to the fair administration of justice.
Senator Graham. Do you believe it is being eroded?
Judge Roberts. I do think there is an unfortunate tendency
to attack lawyers because of the positions they press on behalf
of clients and I think that's unfortunate.
Senator Graham. I am going to give you some examples of a
sitting Supreme Court Justice and her positions and basically
take us back to the good old days where you could have what I
think are extreme positions and still make it.
Are you familiar with the ACLU?
Judge Roberts. Certainly.
Senator Graham. In the conservative world, how does that
rank on the food chain?
[Laughter.]
Judge Roberts. I don't know that I could comment on that,
but it's--they have a consistent position of promoting civil
liberties and a particular view on that.
Senator Graham. If you came to the Reagan administration
and the top thing on your resume was the General Counsel for
the ACLU, do you think they would hire you?
Judge Roberts. It might make it a little harder.
[Laughter.]
Senator Graham. I think that is a good observation. Well,
we have on the sitting Supreme Court now the former General
Counsel for the American Civil Liberties Union, who is a very
nice lady, extremely qualified. I don't agree with her hardly
at all, but a great lawyer. She has written that the age of
consent for women should be 12, that all prisons, to have
gender equality, men and women should be in the same prison
because when you separate them, women prisoners somehow are
discriminated against. She wanted to do away, or argued the
idea that Mother's and Father's Day should be done away with
because it stereotypes men and women, that there is a
constitutional right to prostitution.
I can give you, and I will introduce into the record,
writings from her point of view that most conservatives would
find totally unacceptable. But this person, this lady, the
former ACLU Executive Counsel, is sitting on the Supreme Court
and she got 96 votes. She said that there should be Federal
funding for abortion. Ninety percent of our caucus is pro-life,
is that about right? Pretty close? I can assure you that if a
Republican was going to make their vote based on abortion
thinking, she would have gotten no votes. Most Americans don't
want Federal funding of abortion even though they are divided
on the issue of a woman's right to choose. She has argued that
the Equal Protection Clause guarantees a right to abortion.
Now, I completely differ with that, and I am sure the
conservatives in the Senate at the time of her confirmation
completely differed with that, the idea that the age of consent
should be 12, that bigamy statutes are discriminatory to women.
I can go on and on and on.
The point I am trying to make is that all of that was put
aside, who she represented and what she believed and the
positions she took, and somehow back then they were able to see
in Justice Ginsburg a well-qualified, brilliant legal mind, and
they deferred to President Clinton because he won the election.
Whether that happens to you, I don't know, but for the sake of
the country and the rule of law, I hope it does. I hope you can
be in the ballpark of where she wound up.
My last two questions. In your opening statement, you
articulated the rule of law in a way that I thought was just
outstanding. It was emotional. It made sense. Average people
could understand it, that the courtroom is a quiet place, Judge
Roberts, where you park your political ideology and you call
the balls and you call the strikes and you try to give every
American a fair shake and you put politics in its perspective.
What is your biggest concern, if any, about the rule of law
as it exists in America, and what are the biggest threats to
the rule of law as we know it today?
Judge Roberts. Well, you know, the rule of law is always
vulnerable because the Supreme Court, as has been pointed out
often in history, has only the persuasive power of its opinions
to command respect. There have been famous episodes in the
past, you know, President Jackson, Chief Justice Marshall has
given his opinion, let's see him enforce it, other episodes of
that sort. But over time, the legitimacy of the Supreme Court
has been established and it's generally recognized across the
political spectrum that it is the obligation of the Court to
say what the law is and that the other branches have the
obligation to obey what the Supreme Court says the law is.
The one threat, I think, to the rule of law is a tendency
on behalf of some judges to take that legitimacy and that
authority and extend it into areas where they're going beyond
the interpretation of the Constitution, where they're making
the law. And because it's the Supreme Court, people are going
to follow it even though they're making the law. The judges
have to recognize that their role is a limited one. That is the
basis of their legitimacy.
I have said it before and I will just repeat myself. The
Framers were not the sort of people, having fought a revolution
to get the right of self-government, to sit down and say, let's
take all the difficult issues before us and let's have the
judges decide them. That would have been the farthest thing
from their mind. The judges had the obligation to decide cases
and the authority to interpret the Constitution because they
had to decide cases and they were going to decide those cases
according to the law, not according to their personal
preferences.
Judges have to have the courage to make the unpopular
decisions when they have to. That sometimes involves striking
down Acts of Congress. That sometimes involves ruling that acts
of the Executive are unconstitutional. That is a requirement of
the judicial oath. You have to have that courage. But you also
have to have the self-restraint to recognize that your role is
limited to interpreting the law and doesn't include making the
law.
Senator Graham. What would you like history to say about
you when it is all said and done?
Judge Roberts. I'd like them to start by saying he was
confirmed.
[Laughter.]
Judge Roberts. Whether they say that or not, I would like
it--the answer is the same. I would like them to say I was a
good judge.
Senator Graham. Thank you very much. I have no further
questions.
Chairman Specter. Thank you very much, Senator Graham.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman, and thank you,
Judge. It has been a long day, and I guess we have a little bit
longer to go. But you have been talking something about
baseball. We have been talking about it this morning. I will
start out by pitching you something of a softball, an issue, I
think, on which reasonable Americans can agree, and those are
the recent and abhorrent attacks on the Federal judiciary.
Many Americans have become concerned that the judiciary has
come under escalating and, many would say, inappropriate and
unjustified criticism from certain quarters, not just criticism
of the legal reasoning, it goes way beyond that. The rhetoric
gets pretty hot. And as you know, one of your mentors and our
late Chief Justice Rehnquist was a passionate defender of the
independence of the judiciary. I did not agree with him on a
whole lot of things, but I sure respected that. And he did a
good job, both with our Committee and everywhere else, making
sure that the independence of the judiciary was defended.
So you will be Chief Justice. We have not talked much here
about your role as Chief Justice. The Chief is the leader of
the courts, the head of the judiciary, and I think one of your
important roles is to defend the independence of the judiciary.
So I am going to read you a few statements that were made about
Federal judges in recent months.
Televangelist Pat Robertson has claimed that ``an out-of-
control judiciary is the single greatest threat to democracy,''
that judges are creating a ``tyranny of oligarchy,'' and that
the threat posed by the Federal judiciary is ``probably more
serious than a few bearded terrorists who fly into buildings.''
Do you find that--do you disagree with that statement?
Judge Roberts. I do disagree with that conclusion, Senator.
I think it's perfectly appropriate for people to criticize
decisions of judges. That comes with the territory. It's a
healthy thing. That type of criticism and analysis, saying the
judge got it wrong, the court got it wrong, is healthy and
good. And the only thing I would say is I'm not sure whether
that criticism is along that line or--but personal attacks on
judges for doing their best to live up to the judicial oath,
that is something that I don't think is appropriate.
Senator Schumer. Well, isn't this language--I am asking
about this language. This does not seem to be a legal didaction
about a court case. When somebody says--
Judge Roberts. Oh, it's not an analysis--
Senator Schumer.--judges are probably more serious--the
threat posed by Federal judges is ``probably more serious than
a few bearded terrorists who fly into buildings,'' isn't that
kind of quote abhorrent and inimical to our system?
Judge Roberts. I don't agree with that, and all I'm saying
is that I think people have a right to be critical of judges,
but attacks on judicial independence are not appropriate
because judges--and certainly even judges with whom I disagree
on the results or particular merits, they should not be
attacked for their decisions. The decisions can be criticized,
but attacking the judges I think is not appropriate.
Senator Schumer. Would you be a little stronger than that
in terms of language like this? I mean, ``not appropriate'' is
kind of mild in these kinds of inflammatory statements about
the judiciary that you may soon be entrusted with protecting.
Judge Roberts. Senator, I said yesterday that, if
confirmed, I would be vigilant to protect the independence and
integrity of the Supreme Court and the judicial branch, and
that is true. An independent judiciary is one of the keys to
safeguarding the rule of law. Again, I said that yesterday, and
I believe that. And to the extent the judiciary is attacked, I
will be vigilant to respond and defend it.
Senator Schumer. Let me read you two more and just tell me
how you would characterize them. Conservative lawyer and author
Edwin Vieira suggested that Justice Kennedy, an appointee of
Ronald Reagan, ought to be impeached for his decisions and
quoted Stalin's infamous problem-solving solution of ``no man,
no problem.'' And Tony Perkins of the Family Research Council
said, ``The Court has become increasingly hostile to
Christianity, and it poses a greater threat to representative
government more than anything, more than budget deficits, more
than terrorist groups.''
Do you strongly disagree? Don't those statements turn your
insides a little bit?
Judge Roberts. You know, again, I don't agree with them,
but it's a free country. They're free to say what they wish.
But the issue of impeachment was resolved in the Salmon Chase
hearings. The basic principle was established. You don't
impeach judges if you disagree with their decisions. That's not
what the impeachment provision is.
Senator Schumer. I take it--and just answer. If you became
Chief Justice, you would do whatever you could to dispel these
kinds of notions and oppose people who said things like this
when they say these things?
Judge Roberts. Well, I would do what I can, Senator, to
make it clear to people--and I do think it's an important
educating function that what judges do promotes the rule of law
and that the rule of law preserves liberties for all Americans.
I'm obviously not going to infringe anybody's First Amendment
rights. People are free to say what they--
Senator Schumer. I am not asking that. I am asking just
your First Amendment opinion of these kinds of things, and the
most I guess you said is you disagree.
Judge Roberts. Senator, people from all across the
political spectrum have attacked judges. They do it now. I've
seen some very virulent attacks from all over the political
spectrum, and certainly throughout history. Again, judges can
stand the criticism of their opinions, but personal attacks I
think are beyond the pale.
Senator Schumer. Okay. I would like to go over some other
things here. I have to say I have been pleasantly surprised by
some of your answers today. As you know from our private
meetings and my opening statement yesterday, my principal
concern is ensuring that we do not have people on our Court who
will dismantle the structural protections that have guaranteed
our most fundamental constitutional rights. And what troubles
me and why I think many people are bothered by this right now
is that the President has openly stated that nominees will be
chosen in the mold of Justices who have stated repeatedly their
desire to roll back the clock on some of these basic
protections.
In my view, over the past 60 or 70 years, maybe longer,
three legs have sustained our constitutional rights: the 14th
Amendment's guarantees of equal protection and substantive due
process, the right to privacy, and a broad delegation of
authority to Congress to pass legislation, usually under the
Commerce Clause, necessary to protect our Nation's security,
the environment, Americans' health, and workers' civil rights.
On these first two, you have given answers that I think
show that you want to protect those rights, and I just want to
repeat them and just make sure that you are on the record for
them. To Senator Biden, he asked, ``Do you agree there is a
right to privacy to be found in the Liberty Clause of the 14th
Amendment?'' And you responded, ``I do, Senator. Liberty is not
limited to freedom from physical restraint. It does cover
areas, as you said, such as privacy, and it's not protected
only in procedural terms, but it's protected substantively as
well.'' That accurately states your view.
Judge Roberts. Yes.
Senator Schumer. And on the Griswold case and the right to
privacy there, you said in reference to Senator Kohl's
question, ``I agree with the Griswold Court's conclusion that
marital privacy extends to contraception and availability of
that. The Court since Griswold has grounded the privacy right
discussed in that case in the liberty interest protected under
the Due Process Clause.'' That is your accurate view.
Judge Roberts. Yes.
Senator Schumer. Okay. Just one question. I know this could
take the rest of our time, but if you could answer it
succinctly, just tell me how--I am interested in how you will
divine what that right to privacy means. I mean, this is going
to be an issue in the 21st century that is before us in many,
many different ways, and there are no words in the
Constitution.
Judge Roberts. Well, the Court, for example, I think most
recently in the Glucksberg case, talked about the necessity of
considering our Nation's history, traditions, and practices. As
Justice Harlan always explained in his opinions, you need to do
that with an appropriate sensitivity to the limitations on the
judicial role. Again, you need to recognize that it is not your
job to make policy, either under the Constitution or under the
statutes. You are interpreting the Constitution. And the
appropriate judicial role focuses on those considerations,
tradition and history and practice, as developed in the Court's
precedents. And that's where I would start.
In any case where the issue came up as to whether or not a
particular issue was presented under the Due Process Clause,
you begin with the precedents. You analyze them under
principles of stare decisis, the precedents in this area, just
like precedents in any other area, and analyze them in light of
those different factors.
All the Justices recognize that in this area they are--you
need to be especially careful about the source of the content
that you're giving to the right at issue, because it is an area
in which the danger of judges going beyond their appropriately
limited authority is presented because of the nature of the
sources of authority. You're not construing the text narrowly.
You're not looking at a particular statute with legislative
history.
All of the Justices recognize that it presents particular
challenges.
Senator Schumer. Okay. Thank you.
Now, as I said, there are a few things that I think many of
us were pleasantly surprised about. There are some that we are
troubled about. I think you have answered some questions, but
not answered a whole lot of others. And I am going to get into
that at another point. But I do find it very perplexing--and I
am not going to ask you to comment on this--your use of the so-
called Ginsburg precedent. It seems you cite it when you don't
want to answer something, but a few times here, when Ginsburg
had actually answered those specific questions, you didn't want
to answer them, and you ignored the precedent. And I don't
think that is what precedents are, even in this more unique
role. So I hope you will think about that overnight because I
will get back to that tomorrow.
The other thing that has troubled me is the issue of civil
rights. Many of us consider racism the Nation's poison. De
Toqueville wrote about that in 1832. And we know you wrote
these series of memos 20 to 25 years ago. Some of them are
written in a tone that suggests you may have been insensitive
to discrimination and hostile to equal rights. And I have
talked to people who might have felt just that. People have
said that.
So my question is not the substance, but do you regret the
tone of some of these memos? Do you regret some of the inartful
phrases you used in those memos or reference to ``illegal
amigos'' in one memo?
Judge Roberts. Well, Senator, in that particular memo, for
example, it was a play on the standard practice of many
politicians, including President Reagan, when he was talking to
a Hispanic audience, he would throw in some language in
Spanish. Again, the memos were from me to Fred Fielding. I
think Mr. Fielding always found the tone--
Senator Schumer. You don't regret using that term? Could
you think that some people might find it offensive?
Judge Roberts. It was meant to convey the notion--again, as
I've described--that when politicians speak to a particular
audience in that language, is that offensive to the audience?
It was meant to convey that. It was an issue concerning a
particular radio interview.
You know, the tone was, I think, generally appropriate for
a memo from me to Mr. Fielding, and I know that he never
suggested that it was anything other than appropriate.
Senator Schumer. I would have to disagree with you, but we
will leave it at that.
On a more substantive level, in light of where we are in
2005--admittedly we have progressed in civil rights since
1982--can you identify any policy or piece of legislation you
argued for or supported in the Reagan era that you now believe
went too far, that you now believe would not be good enough for
America? I am not challenging that you were representing
somebody else than, as you have said to us before, but I am
asking in hindsight--it is now 2005, you are almost double the
years on this Earth. Any of those policies that you think now,
using hindsight, shouldn't have been done?
Judge Roberts. Well, Senator, I think some 80,000 pages
have been released of memoranda that I wrote--
Senator Schumer. You can just pick one or two.
Judge Roberts. Well, I don't--you know, I have not gone
back and re-evaluated all those policies, no. I do know,
though, for example, in the area of civil rights, people have
talked about memos I wrote about the administration's policy
against busing or the administration's policy against quotas.
Being against busing and being against quotas is not the same
as being against civil rights. President Reagan was against
busing. President Reagan was against quotas. But he was in
favor of civil rights, and that was the administration position
that I was advancing in those memoranda.
Senator Schumer. I understand you were advancing someone
else's position. I was asking your own view, if there were any
regrets or changes in viewpoint of you personally. But we will
leave it at that if you don't want to mention any.
Okay. I would like to go to the third leg of protection now
and probably spend the rest of my time on this, constitutional
rights, the Commerce Clause. Now, just to briefly encapsulate--
you have said this--you agree that the Constitution gives the
Supreme Court the power to review and invalidate Acts of
Congress as was held two centuries ago in Marbury v. Madison.
Judge Roberts. Yes.
Senator Schumer. And you also said in questions, I guess,
with Senator Kennedy that you agree with the Court's conclusion
that segregation of children in public schools solely on the
basis of race was unconstitutional, as in Brown.
There is a third case that I would like to bring up, and it
is the third leg of the framework in a lot of ways, and that is
Wickard v. Filburn. Do you agree with the principle 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? '' In other words, can Congress regulate
commerce that does not involve an article traveling across
State lines?
Judge Roberts. Well, that's obviously the Court's holding
in Wickard v. Filburn, and reaffirmed recently to a large
extent in the Raich case. But I would say that because it has
come up again so recently in the Raich case that it's an area
where I think it's inappropriate for me to comment on my
personal view about whether it's correct or not. That's unlike
an issue under Marbury v. Madison or Brown v. Board of
Education, which I don't think is likely to come up again
before the Court. This was just before the Court last year, and
so I should, I think, avoid commenting on whether I think it's
correct or not.
Senator Schumer. This is not a recent case. This is Wickard
v. Filburn. It is from 1942, I guess it was. It is a basic
bedrock of our constitutional law, law after law, the civil
rights laws of 1982 and 1965 and 1964 that you talked about
previously, are based on the Commerce Clause, not necessarily
on Wickard.
Judge Roberts. No, not on Wickard.
Senator Schumer. And I understand that, but so much of what
we do is based on the Commerce Clause, and you know that there
is a movement to greatly cut back on the Commerce Clause, led
by Professor Epstein. One of the Justices that the President
said he wanted to appoint more Justices like, Justice Thomas,
doesn't really believe in the holding of Wickard.
And at a time with Hurricane Katrina, in the midst of the
war on terror, where we need a strong national Government, I
find it--I am not asking you--there has been a holding that has
been accepted, and it was accepted in Raich, as well, but just
about everybody with a few exceptions I mentioned that says you
don't need the article to cross State lines to be regulatable
under the Commerce Clause by the Federal Government. That seems
to me to be as little in dispute as Griswold, as Brown, in
terms of its broad acceptance, in terms of a term that you have
used, in terms of the stability of our Government.
I am really surprised that you are unwilling to simply
say--I am not asking you for all the variations on the theme,
but a fundamental bedrock, which is that Congress can regulate
under the Commerce Clause things that don't cross State lines
is something that is in some doubt.
Judge Roberts. Well, Senator--
Senator Schumer. You know, you said that--excuse me. You
said that there would be unanimity, just about, or close to it,
on issue after issue. Obviously, there are dissents. I think
Learned Hand in 1958 said he didn't agree with Marbury, but you
said you had no problems going along with Marbury. In Brown, I
suppose there are still some people who don't believe in Brown
here and there.
And here is a bedrock principle, admittedly under attack by
what I would call an extreme few, that if we didn't
unequivocally back it, not the variations on the theme but the
fundamental, the fundamental principle that Congress can
regulate if the article doesn't actually cross, the Congress
can regulate manufacturing because of its dramatic effect on
interstate commerce. And you are unwilling to give Wickard the
same status that you give Griswold, which was decided 22 years
later, or Brown, which was decided 12 years later. I mean, I
know about Morrison and Lopez, but they don't challenge the
fundamental precept.
I didn't ask you if you fully support Wickard. I asked you
if you support the proposition that under the Commerce Clause,
you don't need the actual article crossing the State line, and
you are not willing to say that is settled law, that that is a
part of our established way of law?
Judge Roberts. Well, Senator, all you have to do is look at
the arguments, the briefs in the Raich case where that was the
issue that was argued, whether or not Wickard v. Filburn was
still good law, whether or not Wickard v. Filburn should be
applied in that situation.
Nobody in recent years has been arguing whether Marbury v.
Madison is good law. Nobody has been arguing whether Brown v.
Board of Education was good law. They have been arguing whether
Wickard v. Filburn is good law. Now, it was reaffirmed in the
Raich case and that is a precedent of the Court, just like
Wickard, that I would apply like any other precedent. I have no
agenda to overturn it. I have no agenda to revisit it. It's a
precedent of the Court.
But I do think it's a bit much to say it's on the same
plane as a precedent as Marbury v. Madison and Brown v. Board
of Education--
Senator Schumer. Or Griswold?
Judge Roberts. Or Griswold. The fact that it was just
reconsidered and reargued last year in the Raich case suggests
that it's not that same type of case, and that's why I'm
uncomfortable commenting on it. I have gone farther than many
other nominees in talking about cases like Marbury, like Brown,
like Griswold, because I thought it was appropriate given the
fact that those issues are not, in my view, likely to come
before the Court again.
Here's an issue that was just before the Court last year,
so I can't say that it's unlikely to come before the Court
again and, therefore, I think it falls in the category of cases
in which I should tell you I recognize it as a precedent of the
Court. I have no agenda to overturn it or revisit it. But
beyond that, I think it's inappropriate to comment.
Senator Schumer. Well, I would say that--well, let us go to
a few more Commerce Clause issues. Again, I think Wickard is as
accepted, is as part--not Wickard per se, but the idea that
crossing State lines is not the only thing that you need for
the Commerce Clause, that you don't have to have the article
cross State lines to be able to regulate it is a bedrock of law
after law after law that the Federal Government has passed.
Your inability to concede that--
Judge Roberts. And I'm not expressing--
Senator Schumer. I understand, but--
Judge Roberts. I'm not expressing any hostility to the
proposition at all. All I'm telling you is that this is a case
that was challenged, the application, in the Raich case last
year. And to say that it's in the same category as Marbury or
Brown, I think is inaccurate.
Senator Schumer. But sir, Griswold came up in Lawrence. I
don't known how many years ago that was. You can make the
argument that even, somehow or other, somebody challenged
precepts that flow from Marbury. I certainly--
Judge Roberts. And so perhaps I should have taken the
approach Justice Scalia took. He wouldn't tell this Committee
whether Marbury was correctly decided.
Senator Schumer. I am glad you didn't do that.
Judge Roberts. Well, and then the reward for not doing that
is to have additional cases that are very current in terms of
the litigation before the Court, and the idea, as well, you
said what you thought about Marbury. What do you think about
the Raich case, which just reaffirmed Wickard v. Filburn? There
are two very different parameters.
My approach has been a practical one, not an ideological
one, but a practical one, but saying--
Senator Schumer. I am sorry. Just explain to me why you can
say it about Griswold, which I am glad you did, but not about
Wickard. Both of them have been litigated, tangentially, at
least, in the last five or six years.
Judge Roberts. Well, Wickard was litigated directly in the
Raich case. I don't think the issue in Griswold is likely to
come before the Court. It was unlikely--
Senator Schumer. Wasn't Lawrence an outgrowth of Griswold
in terms of what the right of privacy is to consenting adults
in their bedroom?
Judge Roberts. Well, that's one of the issues, but the
difference between the issue that was presented in Griswold and
its ramifications of the analysis, those are two very different
issues.
Senator Schumer. Okay. Let me ask you just a little bit
about--a little more on the Commerce Clause. We have all talked
about the hapless toad and the need--the fact that the toad
didn't cross State lines didn't lead you to reject the
Endangered Species Act under the Commerce Clause but to go seek
another possibility. So let me give you a couple of
hypotheticals.
Let us say we figured out that somebody could make
botulism, or a lot of people could make botulism, a deadly,
deadly poison--I think it is one of the seven poisons that the
FBI looks for in terms of doing danger to us--that they could
make it with materials completely within the State. There was
no material that crossed State lines. It is a little bit like
the toad. Would you think that the Federal Government, if
Congress ordained, would have the ability to regulate that
activity?
Judge Roberts. I think that sounds a lot like the Raich
case, where the Court determined the medical marijuana issue
even though the regulation of marijuana as an illicit drug--it
had interstate impact even if the medical provision of it did
not, and so they were willing to look beyond and apply the
Wickard case, which they reaffirmed the suitability, and
conclude that that had a significant effect on commerce, the
regulation in general. You didn't have to look at the specific
regulation.
It would seem to me that that--
Senator Schumer. Would you different that from Viejo?
Judge Roberts. Well, in Viejo, you're dealing with
particular species, and the difficulty--and again, it was what
another court had looked at, not the activity that was
regulated, the interference with the species, but the activity
that was taking place and having that impact, the building of a
housing development.
Other courts, the Fifth Circuit in the GDF case, had argued
that the approach of looking at the housing development rather
than the particular activity was inconsistent with the Supreme
Court's decisions, and what I said is that if there's another
basis on which to evaluate it, and there was, and the panel
opinion noted, we don't have to reach these other grounds
because of our conclusion, that we should focus on those other
alternative grounds and see if we could base and uphold the Act
on those.
Senator Schumer. I understand, and my time is getting close
to the end, so--I'm not sure I agree with the large difference
between Raich Viejo, and the hypothetical that I gave. I think
the Viejo case and the hypothetical I gave were limited, but
let me just conclude with this.
You know, people wonder, what is all the fuss about? The
answer is very simple, and that is that, if certain viewpoints
became majority viewpoints on the Supreme Court, we could see
the dismantling of the entire apparatus to protect our rights
through the narrowing of the Commerce Clause, which I said
Justice Thomas already agrees should be narrow, and we have a
President who may have--he at least has one more nomination--
who said he wants to appoint people in the mold of Thomas.
Not only would the Endangered Species Act go, Title VII
would go. OSHA would be gone. The Controlled Substances Act and
prohibitions against personal possessions of biological weapons
could all be unconstitutional.
Justice Thomas's views on this issue are similar to others.
He is against any substantive due process right under the 14th
Amendment. He believes that the Establishment Clause would
allow the establishment of State religions--of religions in the
States. And so this is a--these are serious, serious things. He
would invalidate campaign finance laws. He would eliminate
affirmative action.
Now, he is just one Justice, but I think it is our job here
in the Senate on both sides of the aisle, if we feel that that
kind of judicial philosophy, that kind of legal reasoning does
not belong in the Court, to find out if nominees ascribe to it,
and if they do, look at them warily.
I am not saying you do. As I said, some of the things you
have said, I found pleasantly surprising today. But I do think
it is our job and I think we are going to continue to do it.
Chairman Specter. Thank you very much, Senator Schumer.
Senator Cornyn?
Senator Cornyn. Thank you, Mr. Chairman.
Judge Roberts, I appreciate your stamina. I particularly
appreciate your responding to the call to public service and I
want to say that I would be remiss if we didn't express--if I
didn't express what I know all members of the Committee and the
Senate feel is the appreciation for your family and their
support--
Chairman Specter. Senator Cornyn, before you proceed, there
has been a request for a short break, so let us take one, 5
minutes.
[Recess 6:43 p.m. to 6:52 p.m.]
Chairman Specter. We will resume. The clock has been reset
at the full 30 minutes, Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Judge Roberts, let me start on a couple of items that I
think will be relatively noncontroversial. Believe it or not--
and maybe people watching this proceeding will not believe it--
but members of this Committee and Members of the Senate
actually do try to work together in a bipartisan basis to pass
legislation that we believe is in the best interest of the
people who sent us here and the American people.
One area of bipartisan agreement, I just want to reiterate
Senator Feingold's comments about cameras in the courtroom. I
am a strong supporter of cameras in the courtroom as long as
they are unobtrusive and they do not disturb the proceedings or
prejudice the rights of the litigants, but I do agree with him
that it is important. And Senator Grassley, I know is--each
Congress introduces legislation on this. I do believe it is
important to let the people of the United States know what
happens in courtrooms. I think they could learn a lot about
their Government. I think it would make them more sensitive to
the nature of the decisions that are made there, give them
confidence that there are dedicated public servants who serve
in the judiciary, who are doing the job of a judge day in and
day out in a dignified and distinguished and professional
manner.
Along the lines of what Senator Kyl mentioned earlier,
there is another area that I think is noncontroversial and
bipartisan, but it is something, frankly, that we need your
help with if you are confirmed as Chief Justice, and that has
to do with the bar to the courtroom presented by excessive cost
and time delays inherent in modern litigation. These
impediments to access to justice are just as effective as if
you had an armed guard at the door of the courthouse or had
somebody put a padlock on the front door, because frankly, not
many people can afford access to the courthouse, to justice, to
jury trials because the costs are just so prohibitive. I
remember that Chief Justice Burger, when he was Chief, took on
the cause of alternative dispute resolution, and this cause of
excessive delay and cost as being an impediment to access to
justice with quite a bit of success.
But it is a cause that needs a lot of work. It needs the
attention of the Chief Justice of the United States and the
prestige that you would bring to that, because frankly, it
worries me a great deal. Just like it concerns me that we see
with the length of time of modern jury trials--of course when
many people think about jury trials, they think about the O.J.
Simpson trial where the jury was empaneled for months on end,
and wonder how in the world can a jury still represent the
conscience of the community and be a cross section of the
community when so many people are precluded from serving
because of the economic or other hardship associated with that.
So these are hard issues that I hope you will take a look at
and work with the Judiciary Committee and the Congress if
necessary, or where necessary, I should say, to try to address,
because I think that would be a great service to the American
people.
As a good lawyer, you know the danger of analogies, and
yesterday we started talking about judges as umpires. And you
were quite eloquent in saying that you wanted to be an umpire,
you did not want to bat or pitch, and I think it was a very
succinct and appropriate way to describe exactly the role that
you thought judges ought to play, not as partisans, but as
impartial and disinterested in the outcome, but nevertheless,
interested in providing access to justice.
I happened to be looking at my computer last night, one of
the blogs, and it is always frightening to put your name in
search and look at the ways it is mentioned. I suggest you do
not do that, if you have not, until this hearing is over,
because this hearing is the subject of a lot of activity and
interest in the blogosphere. But one of these blogs said that
your comparison of a judge to a baseball umpire reminded him of
an old story about three different modes of judicial reasoning
built on the same analogy.
First was the umpire that says, ``Some are balls, and some
are strikes, and I call them the way they are.'' The second
umpire says, ``Some are balls and some are strikes, and I call
them the way I see them.'' The third said, ``Some are balls and
some are strikes, but they ain't nothing till I call them.''
Well, I do not know whether it is a fair question to ask
you, which of those three types of umpires represents your
preferred mode of judicial reasoning, but I wonder if you have
any comment about that.
Judge Roberts. Well, I think I agree with your point about
the danger of analogies in some situations. It's not the last,
because they are balls and strikes regardless, and if I call
them one and they are the other, that doesn't change what they
are. It just means that I got it wrong. I guess I like the one
in the middle because I do think there are right answers. I
know that it's fashionable in some places to suggest that there
are no right answers and that the judges are motivated by a
constellation of different considerations, and because of that
it should affect how we approach certain other issues. That's
not the view of the law that I subscribe to.
I think when you folks legislate, you do have something in
mind in particular, and you put it into words, and you expect
judges not to put in their own preference, not to substitute
their judgment for you, but to implement your view of what you
are accomplishing in that statute.
I think when the Framers framed the Constitution it was the
same thing, and the judges are not to put in their own personal
views about what the Constitution should say, but they are
supposed to interpret it and apply the meaning that is in the
Constitution, and I think there is meaning there, and I think
there is meaning in your legislation, and the job of a good
judge is to do as good a job as possible to get the right
answer.
Again, I know there are those theorists who think that is
futile, or because it is hard in particular cases, we should
just throw up our hands and not try in any case, and I do not
subscribe to that. I believe that there are right answers, and
judges, if they work hard enough, are likely to come up with
them.
Senator Cornyn. Well, as a good lawyer you also know the
danger of an analogy is that people will take it and run away
with it, perhaps use it against you, and I heard today that
yesterday we were talking about baseball, but today we are
talking about dodge ball. Some have suggested that you have
been less than forthcoming about your answers to the questions,
and I just could not disagree with that more, and I want to go
over this just a minute because I think it bears some
repetition.
First of all, you were confirmed by the United States
Senate by unanimous consent just a little over 2 years ago to
the District of Columbia court of appeals, what some have
called the second most important or powerful court in the
Nation. So you have been before the Committee before. You have
been thoroughly investigated, examined and scrutinized, perhaps
more than anyone else in history. The reason I say that is
because since your nomination first as Associate Justice and
now as Chief Justice, there have been more than 100,000
documents produced about your background and record, some in
the Government sector, some in the private sector. Of course,
we have heard today how perhaps a line or a word or a choice of
phrase can be used perhaps out of context to try to create an
impression that may or may not be borne out by looking at the
entire context of your record or even the document.
But I do believe you have been forthcoming. I know before
we had the last two rounds of questions, you had answered 35
questions on civil rights, 10 on following precedents. You
answered 40 questions about the role of a judge, 25 on abortion
and privacy rights, and 11 on Presidential powers. So I would
just disagree with the characterization that someone might
make. I do not think it is fair or accurate that you have been
anything less than completely forthcoming, and that we frankly
know an awful lot about you. And that has not been a bad thing.
I think from my point of view, the more that we have learned
about you, the more confidence many of us have in the judgment
of the President in your selection.
But of course, you are not there yet. We still have a lot
of questions to ask before voting. I want to also talk to you a
little bit about one area of questioning. I believe it was
Senator Biden who was asking you about Justice Ginsburg and the
fact that she answered some questions, but declined others. And
we have talked about the Ginsburg standard. I think Senator
Schumer referred to that as well. What I understand that to
mean, what I mean by that when I say it is that she has
recognized that there is a line that a nominee cannot step over
in terms of prejudging cases or issues that may come back
before the Supreme Court, and that is the line I understand you
to have drawn.
But to Justice Ginsburg, as I believe Senator Graham
pointed out, had an extensive paper trail and record, and she
did feel at some liberty to talk about issues where her views
were already public or where she had already written. Is that
the distinction? Could you explain your understanding of the
distinction she was making or how she handled questions,
perhaps in a way that is different from the way you are
handling questions?
Judge Roberts. My understanding, based on reading the
transcript, not just of Justice Ginsburg's hearing but of the
hearings for every one of the Justices on the Court, is that
that was her approach, that she would generally decline to
comment on whether she viewed particular cases as correctly
decided or not. She at one point said that that was the Court's
precedent, she had no agenda to reconsider it, and that was all
she was going to say. And in areas where she had written, she
thought it was appropriate to discuss more fully because it was
an area that she had already publicly commented on, and I
understand that to be the distinction as to why she commented
on particular areas but not others.
Senator Cornyn. To your knowledge, is the line that you
have attempted to walk in these proceedings about being as
forthcoming as you can, but recognizing that you have a
responsibility not to jeopardize your impartiality, either the
perception or the reality, or the impartiality and independence
of the judiciary; has that been the line that you have
attempted to walk and as you understand previous nominees have
attempted to walk?
Judge Roberts. It is, Senator, with an exception, and the
exception is that I have tried to be--to share more of my views
with respect to particular cases. I know other nominees have
declined, for example, to comment on even a case like Marbury
v. Madison because they thought as a theoretical matter it
could come before the Court. I tend to take a more practical
and pragmatic approach to things, rather than a theoretical or
ideological approach. I think as a practical matter, an issue
about Marbury v. Madison is not likely to come before the
Court, the same with Brown v. Board of Education, so I have
gone farther than many nominees and have been willing to talk
about my views on those particular cases.
But I do think when it gets into an area where the
correctness or incorrectness or my agreement or disagreement
with a particular precedent is an area that is likely to come
before the Court or could well come before the Court, I do have
to draw the line there, and it is not out of any interest to
dodge questions or anything. My views on cases that I think are
not likely to come before the Court, I'm perfectly willing to
discuss. It's based on the concern that the independence and
integrity of the Supreme Court depends upon Justices who go
there and will decide the issues there with an open mind based
on the judicial decisional process, not based on prior
commitments they made during the nomination hearing.
All of the Justices have adhered to that approach for that
reason, and if I am to join their number, I need to be able to
look them in the eye in the conference room and say, ``I kept
the same faith with the independence and integrity of this
Court.''
Senator Cornyn. I think it also may reflect the fact that
you seem to be quite comfortable responding to questions from
the Committee. You have had a lot of experience responding to
questions from the bench and having to distinguish cases,
answer hypothetical questions and the like, and I think we have
gained an appreciation, a greater appreciation for the skills
that you have acquired and your ability, but I understand the
line you are walking, and I think it is really a constitutional
standard that you are trying to observe, and I applaud you for
it.
A couple other areas I want to ask you about, but first let
me ask you this. Judges are not in the business of picking
winners and losers before they have actually heard the case, of
course. I mean that is fundamental to our concept of justice,
that a judge be open-minded, be willing to listen to the facts
and arguments of counsel, and then make a decision.
And the process that you use is by applying neutral
principles. In other words, when you make a decision based on
the Commerce Clause or even based on stare decisis, does that
really have anything to do with the ultimate result? In other
words, do you start with the results you want to reach first
and then go back and try to rationalize it or justify it by the
way you read the Commerce Clause of the Constitution, or apply
the legal doctrine of stare decisis?
Judge Roberts. No, Senator. It's saying a judge is result
oriented, that type of judge. That's about the worst thing you
can say about a judge.
Senator Cornyn. Those are almost fighting words.
Judge Roberts. It's about the worst thing you can say
because what you're saying is, you don't apply the law to tell
you what the results should be. You don't go through the
judicial decisional process. You don't look to the principles
that are established in the Constitution or the law. You look
to what you think the result should be, and then you go back
and try to rationalize it, and that's not the way the system is
supposed to work.
Senator Cornyn. Well, I know that we have heard today about
a number of terms from stare decisis to pro hac vice, to pro
forma, to--the only one we have not heard is res ipsa loquitur
and a number of other Latin phrases that we learned in law
school.
Let me ask you about stare decisis. I have heard
fascinating discussion back and forth about precedent and how
you would deal with a case, let's say for example, Roe v. Wade,
and some have suggested, law professors and maybe others, that
somehow that is a super precedent, or in the words of our
inimitable Chairman, a super-duper precedent. I think we are
introducing new words to the legal lexicon as this hearing goes
on. But in all seriousness, if--well, let me ask you this. Is
stare decisis an insurmountable obstacle to revisiting a
decision based on an interpretation of the Constitution?
Judge Roberts. What the Supreme Court has said, in the
Casey decision, for example, is that it is not an inexorable
command. In other words, it's not an absolute rule, and that's
why they have these various cases that explain the
circumstances under which you should revisit a prior precedent
that you think may be flawed and when you shouldn't, and--
Senator Cornyn. I can--excuse me. I did not mean to
interrupt you.
Judge Roberts. I was just going to say there are
significant cases in the Court's history, in the Nation's
history, where the Court has revisited precedents like Brown v.
Board of Education, like the cases that overruled the decisions
of the Lochner era.
Senator Cornyn. You started to make the point I was going
to try to make next, and that is, stare decisis did not prevent
the United States Supreme Court from revisiting Plessy v.
Ferguson, which established the separate but equal doctrine, or
otherwise Brown v. Board of Education would never be the law of
the land. Stare decisis did not prevent the Supreme Court from
overruling Bowers v. Hardwick in Lawrence v. Texas or Stanford
v. Kentucky in this recent term of the Court, where they said
the death penalty for 17-year-old murderers was
unconstitutional in Roper v. Simmons.
So would you agree with me, Judge, that this is a neutral
principle? In other words, it is not a result-oriented
principle, if there is such a thing, and you have pledged to
apply neutral principles, not result-oriented processes in
arriving at your decisions if confirmed.
Judge Roberts. That's right. It is a neutral principle. The
factors that the Court looks at in deciding whether to overrule
prior precedent or not do not depend upon what the decision is
or what area it's in, other than some areas, things we've
talked about, for example, a statutory decision is much more
likely to be overturned than a constitutional decision just
because Congress can address those issues themselves.
But the principles of stare decisis are neutral and should
be applied in a neutral way to cases without regard to the
substance of the decisions being considered.
Senator Cornyn. When you said this morning in response to
questions about Roe v. Wade that it is settled as a precedent
of the Court, entitled to respect under principles of stare
decisis, you were saying that--just that. In other words, that
it is a precedent of the Court. There has to be a strong case
made for why that issue should be revisited, if at all, but you
were not making any commitment one way or another about the
outcome of any challenge brought under that or any other legal
doctrine, were you?
Judge Roberts. No, Senator, and I've tried as scrupulously
as possible today to avoid making any commitments about cases
that might come before the Court.
Senator Cornyn. I agree you have, and I just wanted to make
sure that we were all on the same page in that understanding.
Senator Schumer asked about the Commerce Clause, and I have
just been fascinated by this debate about the Commerce Clause.
Of course, you know, when this Nation got started, of course
first we had the Articles of Confederation, where the States
were supreme and they could not--the Nation could not function
unless all States agreed. And so the Federal Government was
essentially impotent, which led of course to the Constitutional
Convention and a Federal form of Government, where States and
the Federal Government shared powers.
And now it is interesting to hear--of course we have seen a
growth of national power over the years through a series of
court decisions, and Congress, frankly, has pushed the envelope
and tried to argue that Congress has virtually unlimited power
to legislate, and can crowd out State governments completely
out of any field it wants to.
Isn't it true that there are specific jurisdictional bases
upon which the Congress can legislate? In other words, under
the 14th Amendment, Section 5, under the Commerce Clause? In
other words, the Constitution of the United States was supposed
to be a Constitution of delegated or enumerated powers, and
interstate commerce being one of those enumerated powers. Of
course, there are other provisions like the Necessary and
Proper Clause. There have been a lot of decisions over the
years about whether it is only powers expressed or implied and
the like.
But isn't it true that the Supreme Court in the last decade
has finally said, in Lopez and in Morrison, for example, that
Federal power is not unlimited, that there is some limit and
the fight is really over where those limits are? Would you
agree with that?
Judge Roberts. Yes, Senator, and I do think that a proper
consideration of Lopez and Morrison has to take into account
the more recent Supreme Court decision in Raich, where the
Court made the point that, yes, we have these decisions in
Lopez and Morrison, but they are part of a 218-year history of
decisions applying the Commerce Clause, and they need to be
taken into account in the broad scope. It's an appreciation,
again, the first one in 65, 70 years that recognized a
limitation on what was within the Congress's power. But they're
not sort of--they didn't junk all the cases that came before.
They didn't set a new standard. That's what the Court said in
Raich. It said, yes, we have those two cases, don't over-read
them. Put them in the context and, you know, move on from
there. And as the Court in Raich concluded, they upheld the
exercise of Congress's authority.
Senator Cornyn. Well, I don't think it would come as any
surprise to anyone who's listening to these proceedings outside
of the Beltway that our Government was premised in part on the
notion that all wisdom does not emanate from Washington, D.C.,
and that the States do have areas of competence and authority
to the exclusion of the Federal Government. And one of the
great things, I think, about this hearing is that a lot of
people, I think, are learning and hearing about concepts that
perhaps they had never heard about before, but really, these
are debates that have occurred since the beginning of America
itself and since the formation of our Government.
So I hope that this is an educational experience or maybe
even a refresher course for many of us about some basic
principles upon which our Government was founded. And, of
course, the most important principle from my standpoint is that
articulated in the Declaration of Independence itself that says
that our laws are based on consent of the governed, which means
that most of the debates we have about the laws and the
policies that govern us and affect our families and our jobs
are going to be decided in the political realm, where people
can muster majorities and vote and have laws signed and people
who are in the minority may live to fight another day and turn
that law over in the political forum, and that very few cases,
very few issues will be completely removed from that political
forum. And those are the cases where the Constitution precludes
legislative activity.
But I very much appreciate your expression of the role of a
judge is one having a sense of humility and modesty. That is
not to say from the way I look at it, or I am sure the way you
look at it, that the job of a judge is unimportant. Being a
judge is not easy all the time because you have to make tough
decisions which may not be politically popular, but that is
what goes along with the territory. But I appreciate the
distinction that you have made and articulated for us here in
preserving the vast majority of the debates and issues that
affect each of us in America and our families and our jobs as
one where we can govern ourselves through our elected
representatives, and if we don't like the way that our elected
officials are deciding things, we can throw the rascals out.
But we can't do that when it comes to an appointed, lifetime-
tenure Justice on the Supreme Court. And so I appreciate very
much the distinction that you are drawing.
With that, Mr. Chairman, I will surrender back two and a
half minutes. Thank you.
Chairman Specter. Thank you very much, Senator Cornyn.
Senator Durbin?
Senator Leahy. I thank you, too.
[Laughter.]
Senator Durbin. Thank you, Mr. Chairman.
Judge Roberts, Mrs. Roberts, family and friends, the end is
near--at least for this leg of the race. Welcome to night
court.
[Laughter.]
Senator Durbin. I was struck by a question by Senator
Grassley and your answer earlier today. The question was this:
``Well, is there any room in constitutional interpretation for
the judge's own values or beliefs?'' And your response: ``No, I
don't think there is. Sometimes it's hard to give meaning to a
constitutional term in a particular case. But you don't look to
your own values and beliefs. You look outside yourself to other
sources.''
Judge Roberts, I recently finished a book about Justice
Blackmun and his service on the Supreme Court, and it was a
fascinating book about his life on the Court and his life on
the Federal judiciary. And I found it interesting that near the
end of his term on the Court, a couple cases occurred which
really spoke to the heart of the man. One was DeShaney v.
Winnebago County, involving a poor little boy who had been
beaten and abused, and left retarded, by dereliction of duty by
many of the county officials or State officials in Wisconsin,
and an effort by his mother to hold them accountable. They
failed in the Supreme Court. But Justice Blackmun wrote a
dissent, in which he made reference to ``Poor Joshua.'' And he
said at one point, in response to someone who wrote him
afterwards, about the Court, ``Sometimes we overlook the
individual's concern, the fact that these are live human beings
that are so deeply and terribly affected by our decisions.''
The other thing that occurred in Blackmun's judicial career
was a real change in his view on the death penalty, and I think
most of us are aware of the famous statement which he made:
``From this day forward, I no longer shall tinker with the
machinery of death.''
The last case in which he participated involving the death
penalty was a case that you were involved in, the Herrera case.
You were Deputy Solicitor General at that time. It involved the
case of an individual in Texas who had been accused of killing
two police officers, and who tried to reopen his case offering
evidence that his brother, who had since died, had actually
been the killer. He turned to the Federal court because he had
lost his time for reconsideration of the case by Texas law, and
he argued a claim of actual innocence.
Justice Blackmun, in his statement at the end of this case,
said, ``Of one thing, however, I am certain. Just as an
execution without adequate safeguards is unacceptable, so too
is an execution when the condemned prisoner can prove that he
is innocent. The execution of a person who can show that he is
innocent comes perilously close to simple murder.''
That was a dissent--that addressed your position that you
had espoused as Deputy Solicitor General. Did you read that
Blackmun dissent?
Judge Roberts. Yes, Senator, I did.
Senator Durbin. Were you struck by the language there? And
the reason I ask that question is it has been 11 years since we
have had a Supreme Court nominee before us, and a lot of things
have happened in relation to the death penalty in America. We
have looked closely at defendants who were young, those who
were not mentally sufficient to stand trial, and we also now
have the issue of DNA.
In my State of Illinois, we found 13 people on death row
who were innocent people, and a Republican Governor pardoned
them after the evidence came out.
Tell me in that context, as you look at this and talk about
this, what appeared to be a very sterile and bloodless process
as you answered Senator Grassley, tell me what goes through
your mind and your heart when you think about addressing the
death penalty, what happened in the Herrera case and what we
should look to from the Court in the future when it comes to
the Eighth Amendment and to the death penalty.
Judge Roberts. Well, I think it's important, first of all,
to appreciate that the issue in the Herrera case I think was
misportrayed as an issue of actual innocence. The issue in the
Herrera case is at what point should new claims--in this case,
the claim after his brother died, well, guess what, I didn't do
it, my brother did it, and he's dead now. That is to some
extent a claim of innocence, but it's the sort of claim that
did not have, as the courts determined there, sufficient
factual support to be taken seriously. That's quite different
from a claim, for example, of DNA evidence. Now, that's an
issue that's working its way up, and I don't want to comment on
it, other than to say that it seems to me that that type of
claim--that somebody who just died was the actual murderer is
different from the scientific issue. They're just different
cases. So I don't think that one should be taken as suggesting
a view on the other.
Obviously, any case involving the death penalty is
different. The Court has recognized that. The irrevocability
calls for the most careful scrutiny. It is not an area in which
I've had to consider cases as a judge up to this point, and I
certainly know the magnitude of the concern and the scrutiny
that all the Justices bring to that question. It's just
different than other cases. There's no doubt about that. And
DNA evidence obviously I think is a very important and critical
issue. No one wants an innocent person executed, period. And
the availability of that type of evidence, that opportunity in
some cases, I think is something that's a very significant
development in the law.
Now, as I said, there are cases coming up in there, so I
don't want to say anything further.
Senator Durbin. I understand that. It is unfortunate that
the decision was made by the White House not to provide the
memos and writings on the 16 cases when you served as Deputy
Solicitor General. Herrera was one of the cases. And so we
might have learned a little more about the thinking at that
time that led to your conclusion.
Let me ask you, I have been here most of the day, and you
have been here all day. And I have noted how often you have
distanced yourself from the memos written as a 26-year-old
staff attorney. And I understand that. That is a long time ago.
When we met in my office, that is, I think, exactly what you
said when I referred to one of those memos. But I would like to
ask you this: When you were serving in the Reagan
Administration and the first Bush administration, was there
ever a time when you stood up to your conservative colleagues
and advocated a position that was more favorable to victims of
discrimination or the disadvantaged?
Judge Roberts. There certainly were internal disagreements
and internal disputes about which approach to take, and in many
cases, I'd be on one side; in other cases, I'd be on the other
side, certainly.
Now, again, those are internal deliberations, but there was
debate and disagreement on a regular basis. That's part of the
nature of the job.
Senator Durbin. But there was one case in particular that
hasn't been mentioned today that I would like to ask you about,
and that was the case involving Bob Jones University. That was
one of the most troubling decisions of the Reagan
Administration. It was a decision to argue before the Supreme
Court that Bob Jones University should keep its tax-exempt
status with the IRS even though it had an official policy that
banned interracial dating, and denied admission to any
applicants who engaged in interracial marriage, or were known
to advocate interracial marriage or dating.
When the Reagan Administration took that position, it
reversed the position of three previous administrations,
including two Republicans, all of whom argued that Bob Jones
was not eligible for this tax-exempt status. This sudden
reversal by the Reagan Justice Department, which you were part
of at the time, led to the unusual step of the Supreme Court
appointing a special counsel, William Coleman, as a friend of
the Court, to argue in support of the IRS. In 1983, the Supreme
Court ruled 8-1 against the Reagan Administration and against
Bob Jones University.
Judge Roberts, there was a heated debate within the Justice
Department about whether or not to defend Bob Jones University
and its racist policies. More than 200 lawyers and employees of
the Civil Rights Division, representing half of all the
employees in that division, signed a letter of protest. William
Bradford Reynolds, the head of the Civil Rights Division,
strongly supported defending Bob Jones. Ted Olson, another
person well known in Washington, opposed this defense of Bob
Jones.
Which side were you on? What role did you play in the
decision to defend Bob Jones University policy?
Judge Roberts. Senator, I was ethically barred from taking
a position on that case. I was just coming off of my clerkship
on the Supreme Court, which ended in the summer of 1981.
Supreme Court rules said that you could not participate in any
way in a matter before the Supreme Court for a certain period
of time--I think it was 2 years, or whatever it was--and it was
within that period. This involved an issue before the Supreme
Court. So I was ethically barred from participating in that in
any way.
Senator Durbin. The memo of December 5, 1983, that you
wrote about the Bob Jones University leads one to believe in
reading it that you were present during deliberations on this
policy. Is that true?
Judge Roberts. No, Senator.
Senator Durbin. You were not?
Judge Roberts. I was not involved in the policy because of
the bar on the participation.
Senator Durbin. There appears to be another memo which I am
going to send to you dated September 29, 1982, with your
handwriting on it relative to this same issue, and I don't want
to surprise you with it. I will send it to you and if tomorrow
we get a chance, we can revisit it.
Let me ask you this. When--
Chairman Specter. Senator Durbin, may we have the numbers
there? The staff needs those in order to put the document into
the record.
Senator Durbin. Sure. I would be happy to. This is dated
September 29, 1982.
Chairman Specter. And it has a number on it?
Senator Durbin. No number, but we will give you a copy.
Chairman Specter. Okay. Thank you.
Senator Durbin. We will share it with the Judge. I want you
to have it; this is not a surprise.
Judge Roberts. Sure.
Senator Durbin. I just want you to take a look at it.
We had a nominee for the Ninth Circuit court of appeals,
Carolyn Kuhl. Do you know her personally?
Judge Roberts. Yes.
Senator Durbin. You served in the Justice Department with
her?
Judge Roberts. Right.
Senator Durbin. When she came before this committee,
Senator Leahy asked her several questions and she said when she
testified, quote, ``I regret having taken the position that I
did in support of the Government's change of position [on Bob
Jones]. The nondiscrimination principle and the importance of
enforcement of the civil rights laws by the executive branch
should have taken sway and should have been primary in making
that decision.'' I appreciated her candor on that.
What is your belief? Was the Reagan administration position
on Bob Jones University the right position to take?
Judge Roberts. No, Senator. In retrospect, I think it's
clear. The people who were involved in it, as you say,
themselves think that it was the incorrect position. I
certainly don't disagree with that.
Senator Durbin. Thank you. Let me move to another topic--
Senator Leahy. I am sorry, Senator. I didn't hear the
answer.
Judge Roberts. The answer is, no, I don't think it was the
correct position to take.
Senator Durbin. Thank you. Earlier, Senator Feinstein asked
you about the separation of church and state and I would like
to follow up on this. She asked whether you believed the
separation of church-state was absolute, and I have your answer
here relative to the two recent cases on the Ten Commandments.
It appears now that there is debate within the Court as to
whether or not they will stand behind the Lemon v. Kurtzman
standards under the Establishment Clause, the three-part test,
which I won't go through in detail.
As Deputy Solicitor General of the Bush administration, you
co-authored two legal briefs in which you urged the Supreme
Court to overrule the Lemon standard, Board of Education v.
Mergens and Lee v. Weisman. You argued instead for what has
been characterized in shorthand as the legal coercion test.
So I would like to ask you, what is your view on the
Establishment Clause and the Lemon standard at this point in
time?
Judge Roberts. Well, the Lemon test is a survivor. There's
no other way to put it. When we wrote the brief in Lee v.
Weisman, we had a long footnote explaining that, I think it was
six different members of the current Court had expressed their
criticisms of the Lemon test. They never got together at the
same time and the test has endured.
The approach that we were advocating in Lee v. Weisman did
focus on the question of coercion and argued that in certain
circumstances, a recognition of ceremonial religious
practices--an invocation at a graduation was the one at issue
there--were permissible, and again, that, I think, lost five-
to-four.
And the Lemon test to this day is the test that the Court
applies. I think one of the Justices recently explained, you
know, it's not so much how good the Lemon test is, it's that
nobody can agree on an alternative to take its place, and there
may be something to that. There are cases where the Court
doesn't apply the Lemon test. It seems to follow a different
approach.
The great benefit of the Lemon test, the three-part test
that everybody's familiar with, of course, is that it's very
sensitive to factual nuances. The disadvantage of the Lemon
test, I think, is that it's very sensitive to factual nuances
and you get a situation like with the Ten Commandments case,
and again, I'm not commenting on the correctness or not, but
those are two decisions and there is exactly one Justice that
thinks they're both right.
Nobody would suggest that this is an area of the law where
the Court's precedents are crystal clear, and I think there may
be some inevitability to that. There is a tension of sorts
between the Establishment Clause, on the one hand, and the Free
Exercise Clause on the other, and the Court's cases in recent
years have tried to consider when is an accommodation for
religious belief--when does that go too far and become an
establishment of religion? The Court has a case on its docket
coming up.
I think the animating principle of the Framers that's
reflected in both of the religion clauses is that no one should
be denied rights of full citizenship because of their religious
belief or their lack of religious belief. That is the
underlying principle. That is, I think, what the Framers were
trying to accomplish.
The jurisprudence, again, it's an area where the Court has
adhered through thick and thin to the Lemon test, probably
because they can't come up with anything better, but the
results sometimes, I think, are a little difficult to
comprehend.
Senator Durbin. Now, of course, Justice Rehnquist had a
different point of view, or at least he alluded to one when he
appeared before this Committee in 1986. Senator Simon asked him
a question. He replied as follows. ``I have in my opinions read
the Establishment Clause more narrowly than some of my
colleagues. . . . But I also think, Senator Simon, that these
are almost questions of degree and that there is not a
tremendous amount of difference there as to the broad
principles of the Establishment Clause are uncontroverted, and
those kinds of cases do not get up to us because they are
pretty well settled. It is these kinds of frontier-type cases
that come up and reflect divisions among us and I certainly
have read the Establishment Clause more narrowly than some of
my colleagues.''
Do you feel that you are reading the Establishment Clause
from a narrow point of view or from the traditional Lemon point
of view?
Judge Roberts. Well, I don't think I've had an
Establishment Clause case. The cases where I have argued, I
obviously was representing the position of the administration,
which was that the Lemon test was regarded by the
administration as too manipulable, not determinative, and in
some senses inconsistent. So those--with the understanding of
the Framers. So that was the position that we were advocating
there. I haven't expressed my personal views on the
Establishment Clause in any context.
Senator Durbin. Well, let me read what you wrote in a memo
on June 4, 1985, to Fred Fielding when you were serving as a
staff attorney, related to Wallace v. Jaffree. Here is what you
wrote in reference to Establishment Clause and the Lemon test:
``Thus, as I see it, Rehnquist took a tenuous five-person
majority and tried to revolutionize Establishment Clause
jurisprudence, and ended up losing the majority. Which is not
to say the effort was misguided. In the larger scheme of things
what is important is not whether this law is upheld or struck
down, but what test is applied.''
I know you have said over and over again that you were just
doing what you were paid to do, to tell the administration what
they wanted to hear. Is that what happened here?
Judge Roberts. I don't think I've said that.
Seenator Durbin. Well, that's correct. Strike that from the
record. Let me just say you were a staff attorney reflecting
the views of the administration you worked for. Is that a
correct characterization?
Judge Roberts. It's a correct view. The views of the
administration were quite clear with respect to the moment of
silence, which was the issue in Wallace v. Jaffree. It was the
President's view that it was constitutional, through the
Attorney General, that it was constitutional to observe a
moment of silence.
Now, what the Court held in Wallace, of course, was that
you couldn't look at just the moment of silence. There was a
history there about school-led prayer, and to substitute it and
suddenly say, well, now it is a moment of silence, they didn't
look at it in those terms but looked at it in the long history
and the issue of whether a real moment of silence without that
kind of background and history, whether that would prevail or
not was one that the Court didn't address in Wallace.
Senator Durbin. Let me just wrap this up by asking, and I
think you have alluded to this, is it your belief that what we
are trying to establish in the constitutional protection on the
exercise of religion is not only to protect minorities,
religious minorities, but also non-believers?
Judge Roberts. Yes. The Court's decisions in that area are
quite clear, and I think the Framers' intent was, as well, that
it was not their intent to just have a protection for
denominational discrimination. It was their intent to leave
this as an area of privacy apart--a conscience from which the
Government would not intrude.
Senator Durbin. Thank you. The next topic I would like to
talk about for a moment is Executive power, which has been
addressed earlier. It has not been a major focus in previous
hearings, but obviously is now that we are at war. You have
been asked a lot of questions about it because I think there is
so much at stake. We will probably be involved in this war
effort, as Senator Leahy said early this morning, for some
time.
Throughout American history, even some of our greatest
Presidents, including one from Illinois named Lincoln, tried to
restrict liberty in an effort to provide more safety and
security in our Nation. This administration is no exception. It
has claimed the right to seize an American citizen in the
United States and hold him indefinitely without charging him
with a crime. It has claimed that the courts have no right to
intervene. I think that threatens all of our freedoms.
Just last week, Judge Luttig of the Fourth Circuit court of
appeals authored an opinion upholding the administration's
position. If you are confirmed, you may have the final word on
this question. You and others have compared the role of a judge
to an umpire, and I promised I wouldn't get into the baseball
analogy, so that is one thing I will spare you from.
But let me ask you this. When it comes to the use of
Executive power, you have referred time and again to Justice
Jackson in the Youngstown case. Here is what he said: ``A
judge, like an Executive advisor, may be surprised at the
poverty of really useful and unambiguous authority applicable
to concrete problems of Executive powers as they actually
present themselves.''
So if you are confirmed, you will play a significant role
in determining what limits, if any, the Constitution places on
a President during times of war. That is why the American
people have the right to know what you think about Executive
power.
There was an exchange earlier today between you and Senator
Kyl about a statement I made yesterday about whether, as a
Justice, you will expand freedom in America, and Senator Kyl
seemed to suggest it was a zero-sum approach, that you couldn't
enlarge the freedom of one person or group in America without
taking away the freedom of another group.
It is a curious point of view. It is the same point of view
that Robert Bork had that he tried to defend unsuccessfully
before this Committee many years ago.
But my point to you is this. What is in your background or
experience that can convince the members of this Committee and
the American people that you are willing to stand up to this
President if he oversteps his authority in this time of war,
even if it is an unpopular thing to do?
Judge Roberts. Well, Senator, I would just say that my
demonstrated commitment to the rule of law, you can see that, I
think, in my opinions over the past 2 years, you can see it in
how I approach my job as a lawyer, arguing, and what types of
arguments I make and how I make those arguments and how
faithful they are to the precedents, and you can see it in my
history of public service.
The idea that the rule of law--that's the only client I
have as a judge. The Constitution is the only interest I have
as a judge. The notion that I would compromise my commitment to
that principle that has been the lodestar of my professional
life since I became a lawyer because of views toward a
particular administration is one that I reject entirely. That
would be inconsistent with the judicial oath, and Justice
Jackson is a perfect example of that. He is someone who was a
strong advocate for Executive power when he was FDR's Attorney
General, one of the strongest, and yet he could issue a
decision like the Youngstown decision not only concluding that
President Truman lacked the authority, even in times of war, to
seize the steel mills, but also setting forth the framework
with the language of the sort that you just quoted, setting
forth the framework about how to analyze these decisions in a
way that is particularly sensitive to the role of Congress, as
well. That is the key feature of his framework, the examination
of where Congress is on the spectrum in determining whether the
Executive has that authority.
Senator Durbin. I hate to keep referring back to these
ancient memos, but it is said that if a hammer is the only tool
you have, every problem looks like a nail. And in this case,
this is the only tool we have to try to find out what is going
on in your mind and in your heart. And so in a memo of 1983 to
White House Counsel Fred Fielding, you wrote about ``the
independent prerogative of the Chief Executive to determine
that a given law is unconstitutional.'' You talked about the
power of the Executive to determine that a law is
unconstitutional.
We are going through this debate that Senator Leahy alluded
to earlier about this torture memo and the idea that the
administration would walk away from commitments that have been
made under Geneva Conventions and under the Convention on
Torture, and would instead establish a new standard. So my
question to you is this: Would the anti-torture statute be
unconstitutional simply because it conflicts with an order
issued by the President as Commander in Chief?
Judge Roberts. No, Senator, not simply because of the
conflict, and I have to say I don't know--that's one of the
80,000 memos I don't know about, so I'd have to understand what
the point was, what the issue was, and the language you read in
context before I could respond to that.
But, no, the President has an obligation. He takes an oath,
as we all do, to uphold the Constitution and to make a
determination, and his determination that certain things are
either constitutional or unconstitutional can, of course, in an
appropriate case be tested in court. And the ultimate arbiter
of that under our system is the Federal judiciary.
Senator Durbin. Justice Jackson thought the bottom line on
Executive power was clear in Youngstown. He said, ``No penance
would ever expiate the sin against free government of holding
that a President can escape control of Executive powers by law
through assuming his military role.'' I assume you agree with
that statement by Justice Jackson?
Judge Roberts. Yes, I do. It simply reflects the basic
principle that no man is above the law, not the President and
not the Congress. And that's why courts have the obligation and
have had since Marbury v. Madison to say what the law is. And
if that means that Congress has acted unconstitutionally, they
strike down the law. And if it means that the Executive has
acted unconstitutionally, they have the obligation to block the
Executive action.
Senator Durbin. We can imagine a hypothetical statute that
would clearly intrude on a President's power as Commander in
Chief, ordering the movement of troops and that sort of thing.
On the other hand, the anti-torture statute is clearly within
the area, I believe, where Congress can legislate. As you noted
this morning, Article I, Section 8 of the Constitution
enumerates Congress's powers. Speaking clearly, it says
Congress shall have the power ``To make Rules for the
Government and Regulation of the land and naval Forces.''
I think we have exhausted this topic, and I think we are in
common feeling and agreement about it. I hope we are at least
close.
Let me ask you one last question in the few minutes
remaining here. I have listened to some of the questions asked
about gender and sex discrimination. They have come up
repeatedly during the course of this. And as you look at the
standards that are applied to equal protection for a variety of
different circumstances, there are different standards. I think
you started to explain them at one point today. Maybe you got
through the explanation, I am not sure. But under strict
scrutiny, the suspect classifications include race and national
origin, religion, alienage, and the like. Then there is, of
course, the other standard of what is characterized as middle-
tier scrutiny, which includes quasi-suspect classifications of
gender and illegitimacy.
As you look back at the sweep of history that created these
different standards, can you rationalize the difference between
discrimination based on race and based on gender?
Judge Roberts. Well, I can tell you what the Court has
done. There are Justices who aren't comfortable with the
different tiers. They say there's one Equal Protection Clause.
But the different tiers are fairly well establish as an
approach to the different areas in discrimination. And the
rationale for it is that there are areas in which you think it
is almost never the case that distinctions that are drawn can
be legitimate, distinctions based on race or ethnicity. And so
they're subject to the most heightened scrutiny.
The rational relation test which applies across the board
to any type of law, there it's quite often the case that
distinctions drawn on whatever basis Congress wants are likely
to reflect the different sorts of policy judgments.
Gender issues are in the middle tier because the Court
thinks that there are situations where distinctions can be
justified, and there are other situations--but it's more than
just the rational relation, but not as suspect as the most
heightened level because there may be other justifications.
Cases throughout the Court's history where they have upheld
distinctions under that analysis, like the all-male draft, for
example, that was upheld.
Now, if you had applied strict scrutiny to that type of
classification, perhaps the result would have been different
and the all-male draft would have been struck down. It reflects
the Court's determination that these are not sort of almost
always inherently irrational and discrimination rather than
legitimate governmental distinctions, but that it's entitled to
a heightened degree of scrutiny beyond the rational relation
test. Justice Ginsburg, I think, in her opinion in the VMI case
said that the intermediate scrutiny had to be applied with--I
forget the exact phrase--``exacting rigor'' or something along
those lines, to indicate that it is well beyond the rational
relation test, but it's not as inherently suspect as racial
classifications.
Senator Durbin. Judge Roberts, thank you today for your
patience with the Committee and your responses to my questions.
Judge Roberts. Thank you, Senator.
Senator Durbin. I think we all understand the gravity of
this hearing, as you do, and we thank you very much for
bringing your family and friends to be with you.
Thank you.
Chairman Specter. Thank you, Senator Durbin, and thank you
all for sitting through a very long proceeding today. We are in
our 11th hour. Thank you, Judge Roberts, thank you, Senator
Leahy. You were here all day. And I thank all my colleagues,
most of whom have been here practically all day. Senators have
other responsibilities, and when we set the time and stick to
it, they know when to come in to find the time. There has been,
I think, a spirit of good will generally, dignified generally,
contentious at times, but I think productive.
We will begin tomorrow morning at 9 o'clock, 9:00 a.m.
instead of 9:30, begin at 9:00 a.m., and we will start with the
questioning, 30 minutes to Senator Brownback.
That concludes our day's session.
[Whereupon, at 7:50 p.m., the Committee was adjourned, to
reconvene at 9:00 a.m., Wednesday, September 14, 2005.]
NOMINATION OF JOHN G. ROBERTS, JR., OF MARYLAND, TO BE CHIEF JUSTICE OF
THE UNITED STATES
----------
WEDNESDAY, SEPTEMBER 14, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:02 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. The Committee will now proceed with the
confirmation hearing of Judge Roberts to be Chief Justice of
the United States.
One preliminary statement. I noted after the session
yesterday that there was some comment about my statement when I
asked Senator Biden to allow you to continue to respond or to
respond at all, and he then interjected that you were
misleading the Committee. My statement was, ``While they may be
misleading, they are his answers.'' It was in the subjunctive,
and I was not suggesting that your answers were misleading. But
in that moment, the object was to let you answer.
If somebody wants to characterize them one way or another,
they can do that, and you can respond. And I was not suggesting
in any way, shape, or form that they were misleading. And you
picked it right up and said that they were not misleading.
There are sometimes differences of opinion between the
person asking the question and the person answering the
question, but there was no doubt in my mind as to the fact that
they were not misleading.
We now proceed with the final two Senators on the opening
30-minute round, and I recognize Senator Brownback.
Senator Brownback. Thank you very much, Mr. Chairman, and I
welcome you, Judge Roberts, Mrs. Roberts.
Judge Roberts. Good morning.
Senator Brownback. Glad to have you here this morning. You
are only two away from the end of this round, and we will see
how much further it goes. I hope you had a good night's sleep,
and I thought you had a great presentation yesterday. I want to
compliment you on the number of areas that you answered. My
colleague from Texas went through the number of areas and
commented about that yesterday, and I was very impressed with
the breadth, obviously, of your knowledge and your
forthcomingness, how many of these areas you answered where
prior nominees had not put answers forth. And so I think you
have revealed a great deal, and yet not gone into those areas
of active judicial action where there could be a lot of things
coming forward.
I also want to compliment the Chairman, Chairman Specter,
who originates from my home State, on his stamina. He has been
going through a lot lately, the Chairman has, and yet you have
pressed this Committee so that many of us have difficulty
keeping up with you. And I want to compliment you on that
stamina and the ability that you show. You always set a fast
pace.
Chairman Specter. Well, Senator Brownback, being a Kansan
yourself, you know where that stamina came from, because I am a
Kansan myself.
Senator Brownback. It comes from standing in the wind all
day long. You just have to lean into it. It strengthens you
quite a bit.
I want to go to a few areas that you have not answered
questions on yet. It may be a surprise to some watching that
there are any areas left, but actually there are quite a few.
And with your service on the Court, you are going to get such a
range of issues and topics that are going to come up. It is
noteworthy to me that a majority of Committee members have
asked you about privacy and leading up to questions on Roe,
which I think only strengthens the point that this is an issue
that should be left into the political system and not into the
judicial system where it is today. That is something you will
have to resolve as issues like partial-birth abortion come up
to you, but the very dominance of the question bespeaks of its
interest within the political system and why it is best
resolved within the political system and not the judicial one
on a constitutional basis. But I will get to that later.
I want to take you first to the Takings Clause issue. There
was a recent case that came up that really shocked the system,
and you talked about shocks to the system when the judiciary
acts. This is one that did it in the Kelo v. City of New London
case. In perhaps no other area of the law is stability more
important than in the area of private property and property
rights. Even before the existence of the United States, William
Blackstone, that famous English legal authority, stated this:
``The law of the land postpones even public necessity to the
sacred and inviolable rights of private property.''
Mindful of the sentiment and the excesses of the King, yet
aware of the needs of a new and growing country, the Framers of
our Constitution established a strict limitation on the
Government's ability to take private property. The Takings
Clause of the Fifth Amendment of the Constitution provides that
private property may not ``be taken for public use, without
just compensation.'' We all know those famous words.
Traditionally, this has meant that the Government had to
pay fair value when it sought to confiscate a homeowner's
property in order to build a road or other public good. But now
the notion of public use has taken on a different hue to it. In
the Kelo case, the Supreme Court decided whether a private
economic development plan, which the city government believed
would yield greater economic benefits, qualified as a public
use. So you had private property taken by the State and given
back to private individuals, but it was having a greater
economic use, and whether that was sufficient under the Takings
Clause.
In the words of the Court, this economic development plan
``was projected'' not resulted, but projected ``to create in
excess of a thousand jobs to increase taxes and other
revenues.'' On this basis, the Court upheld the Government
confiscation as a public use, and there was an uproar across
the country. We thought that private property rights were
established and set. And now it appears as if it is not, that
the system is different. You can take private property under
the Government's eminent domain power and give it back to a
private individual.
Justice O'Connor in her eloquent dissent said this:
``Nothing is to prevent the State now from replacing any Motel
6 with a Ritz Carlton, any home with a shopping mall, or any
farm with a factory.''
It is remarkable how this issue has stirred, as I
mentioned, great criticism. I am pleased the Chairman is going
to hold a hearing on it this next week. Judge Roberts, what is
your understanding of the state of the Takings Clause
jurisprudence now after Kelo? Isn't it now the case that it is
much easier for one man's home to become another man's castle?
Judge Roberts. Well, under the Kelo decision, which, as you
explained, was interpreting the public use requirement in the
Constitution, the majority--and, of course, as you mentioned,
it was a closely divided case. The majority explained its
reasoning by noting the difficulty in drawing the line.
Everybody would agree, as you suggest, to build a road or to
build a railroad, to situate a military base, if that is the
only suitable place, that the power of eminent domain is
appropriate in those instances. And I think people agree
further that when you're talking about a hospital or something
like that, that satisfies public use. And I think the reason
the Court gave, really, in the majority opinion was that it's
kind of hard to draw the line.
The dissent, Justice O'Connor's dissent, didn't think it
was that hard. She focused on the question of whether it was
going to be a use open to the public as, you know, a road, a
hospital, use for the public like in a military base, or
private. And she would have drawn the line there and said even
public benefits that derive from different private uses don't
justify that aspect of it.
There was a caveat in the Kelo majority. They said they
were only deciding this in the context of an urban
redevelopment plan. They reserved the question--if it's just
taking one parcel and giving it to everybody else, not part of
a broader plan, that question was still open. And as you say,
there's been a lot of reaction to it. I understand some States
have even legislated restricting their power.
Senator Brownback. And we are considering it here in the
Congress.
Judge Roberts. And I think that's a very appropriate
approach to consider. In other words, the Court was not saying
you have to have this power, you have to exercise this power.
What the Court was saying is there is this power, and then it's
up to the legislature to determine whether it wants that to be
available, whether it wants it to be available in limited
circumstances, or whether it wants to go back to an
understanding as reflected in the dissent, that this is not an
appropriate public use.
That leaves the ball in the court of the legislature, and I
think it's reflective of what is often the case and people
sometimes lose sight of, that this body and legislative bodies
in the States are protectors of the people's rights as well.
It's not simply a question of legislating to address particular
needs, but you obviously have to also be cognizant of the
people's rights and you can protect them in situations where
the Court has determined, as it did 5-4 in Kelo, that they are
not going to draw that line. You still have the authority to
draw--
Senator Brownback. I understand the authority we maintain.
What I'm curious about is your view on whether that right
exists. I would not think Blackstone would agree that that
right exists for the public to take private property for
private use.
Judge Roberts. Well, you know, the first year in law school
we all read the decision in Calder v. Bull, which has the
famous statement that the Government may not take the property
of A and give it to B. And that certainly was quoted in the
dissent, in Justice O'Connor's dissent. The Kelo majority,
though, said if a legislature wants to exercise that power,
basically that the Court's not going to second-guess the
judgment that this is a public use. And I do think that imposes
a heavy responsibility on the legislature to determine what
they're doing and whether it is a public use or if it's simply
transferring from one private party to the next. But--
Senator Brownback. I take it you are not going to respond
whether or not that right exists under the Constitution.
Judge Roberts. Well, the Kelo decision obviously was just
decided last year, and I don't think I should comment whether
it was correct or not. It stands as a precedent of the Court.
It did leave open the question of whether it applied in the
situation that was not a broader redevelopment plan. And if the
issue does come back before the Court, I need to be able to
address it without having previously commented on it.
Senator Brownback. Let me take you to another area that is
stewing here in legislative bodies, certainly across the United
States and certainly in Congress, and that is the issue of
checks and balances of the Court. Any civics student can talk
about checks and balances within the executive, the
legislative, and the judicial branch, and we all know that
Congress, when it passes a bill, can be checked by a veto of
the President. And we know the President's power can be checked
by the power of the purse in the Congress. And when popular
elected branches of Government enact bills contrary to the
Constitution, the courts can strike the law down by exercising
judicial review.
One curiosity, though, especially given the broad sweep of
judicial power in America today and the angst that that stirs
among so many people, is what check there is on the Court. And
it seems to me critical that we have this discussion at this
point in time.
The first check on the judiciary, of course, is the
President's ability to populate the bench, to which you are a
nominee, and our ability to offer advice and consent. A greater
problem arises once a Federal judge is on the bench and what is
in Article III, section 1--and this is getting a lot of
discussion now here in this body, where judges hold office
during good behavior, which I know you will have, effectively
have life tenure. But that is not really an effective check in
the system.
There is also another area that you wrote about when you
were working within the Reagan administration and that was the
ability of Congress to limit the authority and the review of
the courts, of what you would have, and I want to look at that
in particular. It is the power to define jurisdiction that we
would have. It is in Article III, section 2, and I just want to
read this because I do not think it is well understood as the
check and balance, and I want to get your reaction to it. This
is Article III, section 2, ``In all Cases affecting
Ambassadors, other public Ministers and Consuls, and those in
which a State shall be Party, the supreme Court shall have
original Jurisdiction.'' No question there.
It goes on: ``In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law
and Fact, with such Exceptions, and under such Regulations as
the Congress shall make.''
That phrase, you know, is known as the Exceptions Clause.
You wrote about this when you were in the Reagan White House,
about this Exceptions Clause, and you stated this: ``It stands
as a plenary grant of power to Congress to make exceptions to
the appellate jurisdiction of the Supreme Court. The clause, by
its terms, contains no limit''--these are your words, and
``this clear and unequivocal language is the strongest argument
in favor of congressional power and the inevitable stumbling
block for those who would read the clause in a more restrictive
fashion.''
Now, I also understand that you also argued on policy
grounds this is not a good idea for the Congress to do, but
would you agree with those earlier statements that you made
about the nature of this power being a plenary power of the
Congress, which stands as a clear standard in favor of the
Congress ability to be able to limit the jurisdiction of the
Courts?
Judge Roberts. Well, you know, Senator, that that writing
was done at the request of the Attorney General, and he asked
me specifically to present the arguments in favor of that
power. He was receiving from elsewhere in the Department a
memorandum saying that this was unconstitutional, the exercise
of that authority. He wanted to see the other view before
making up his mind for the Department, so I was tasked to
present the arguments in favor of constitutionality. And as you
say, they focus and start with the language in the
Constitution, the Exceptions Clause, which is as you read it,
and I went on to explain that it had been interpreted in the
famous case of Ex parte McCardle around the time of the Civil
War, which seemed to suggest that the Framers meant what that
language says on its face. Also though, a later case, United
States v. Klein suggested that there were limits on the power
of Congress in this area.
It is a central debate among legal scholars, the scope of
that authority. The argument on the other side, the one that
the Attorney General adopted, rather than the argument he asked
me to present, is that it is the essential function of the
Supreme Court to provide uniformity and consistency in Federal
law, and that if you carve out exceptions in its constitutional
area, that you deprive it of that ability and that that itself
violates the constitutional scheme. It's an area in which most
distinguished scholars line up on either side because it does
call into question basic relationships between the Congress and
the Courts.
Senator Brownback. Could that language be any clearer
though in the Exceptions Clause? I mean I understand how legal
scholars maybe can debate what a single word means, but that
language is pretty clear, is it not?
Judge Roberts. The argument on the other side says that
it's intended to apply to--well, for example, we have clear
situations in the lower Federal Courts like the amount-in-
controversy, those cases are excluded. You can have rules about
timing. The question is whether it was intended to address for
constitutional areas or simply more administrative matters.
The argument on the other side says if you get into the
core constitutional areas, that undermines the Supreme Court's
authority that the Framers didn't intend that.
Senator Brownback. Then what check is there on the Court's
power?
Judge Roberts. Well, I think the primary check is the same
one that Alexander Hamilton talked about in the Federalist
Papers, because the exact argument was raising in the debates
about the Constitution. People were concerned about a new
judiciary, what was it going to do? They were concerned that it
might deprive them of their rights. And of course, Hamilton's
famous answer was that judiciary was going to be the least
dangerous branch because it had no power. It didn't have the
sword. It didn't have the purse. And the judges were not going
to be able to deprive people of their liberty because they were
going to be bound down by rules and precedents. They were going
to just interpret the law. And if judges just interpreted the
law, there was no threat to liberty from the judicial branch.
So I would say the primary check on the courts has always
been judicial self-restraint, and a recognition on the part of
judges that they have a limited task, that they are insulated
from the people. They're given life tenure, as you mentioned,
precisely because they're not shaping policy. They're not
supposed to be responsive. They're supposed to just interpret
the law.
Senator Brownback. I guess that is the area that has so
many people concerned: it is that the judiciary does not show
restraint and if you do not restrain yourselves, then who does
within this system? Obviously there are restraints on the
Congress, there are restraints on the President. We like that
system. We want that check and balance system. I think the
Framers put that Exceptions Clause and other things in there
for a clear purpose, for a clear reason.
Let me take you on to another area because that one I think
you are going to see a lot of action as you get pushing back
and forth between the three branches of Government, and a
number of people feeling like the judiciary has not show
judicial restraint in recent years.
I want to take you to the now probably most contentious
social issues of our day, and you have been debating and
discussing it a great deal here already, the issue of abortion.
It is at the root of much of the debate taking place in the
country today. It has inflamed people. It has gotten them
involved in the political process, folks that probably would
not have been previously, because the only way they aware that
they could affect the system was get involved and try to elect
a President and Senate. It was the President's lead applause
line the last election cycle, was ``I will appoint judges who
will be judges, not legislators.'' That it is an applause line
at a political rally should say something about people's angst
towards what the courts have done, and particularly when it
comes to this issue of abortion.
The very root of the issue is the legal status of the
unborn child. This is an old debate, and whether that child is
a person or is a piece of property, is at the root of that
debate. Our legal system says you are one of the two, you are
either a person or you are a piece of property. If you are a
person, you have rights. If you are a piece of property you can
be done with as your master chooses.
I believe everyone agrees that the unborn child is alive,
and most agree that biologically it is a life, it is a separate
genetic entity. But many will dispute whether it is a person.
These may be legal definitions, but that is the way people
would define it.
Could you state your view as to whether the unborn child is
a person or is a piece of property?
Judge Roberts. Well, Senator, because cases are going to
come up in this area, and that could be the focus of legal
argument in those cases, I don't think it would be appropriate
for me to comment on that one way or another.
I will confront issues in this area as I would confront
issues in any area that come before the Court, and that would
be to fully and fairly consider the arguments presented and
decide them according to the rule of law. And I don't think it
would be appropriate for me to express views in an area that
could come before the Court.
Senator Brownback. I would hope that you would agree with
me that this is at the core of the issue, obviously the
competition between the woman's right to choose and the legal
status of the unborn, and it permeates so much of our debate,
and that is why a lot of us believe it should be within the
political system to discuss.
I want to point out one thing to you, and I do not think
this probably needs to be addressed, but I want to point it
out. My State is the proud home State of Brown v. Board of
Education, and I personally knew two of the lawyers that
practiced in that case, and they were noble, noble gentlemen.
In Brown, the Supreme Court overturned Plessy, as you knew
and as you know, which was an 1896 case, so Plessy had stood
for nearly 60 years. We had a discussion about this super stare
decisis issue, and I just want to hold up a quick chart, if I
could. If the notion is that because Roe has not been
overturned in 30 some cases makes it a super precedent, well
Plessy had not been overturned in a series of cases over a
period of 60 years, where the Court at each time looked at it,
discussed it, and decided against overturning it. Yet I do not
think anybody would agree that Plessy should not have been
overturned, and certainly not anybody from my State. But the
notion that by tenure it becomes a super precedent or by number
of times that it has been looked at it becomes a super
precedent, I do not think finds a basis in law, nor in
practicality, as you noted. And some of these decisions up
there, I would point out to you, are pretty onerous statements
that the Court put forward itself in how they upheld Plessy for
a number of years, and yet, thank goodness, that the Court
overruled it in the Brown v. Board of Education case that it
eventually decided.
I want to also point out to you something you talked a lot
about yesterday, and I really appreciate this, that judges
decide cases and cases are built on facts, so that while you
have the facts and you have the law, the facts matter. There is
no one in my State that would not be honored to show you the
school building where Brown v. Board of Education was decided.
We just dedicated it last year. The President was there, 50th
year anniversary. You can see the path where the little girl
walked to the school and had to walk by the all-white school to
get there. You look at that set of facts and you say, ``That's
wrong,'' and you're ennobled that we no longer do that.
I held a hearing earlier this year on the factual setting
of Roe v. Wade and Doe v. Bolton, the factual setting of these
two cases. The two plaintiffs in those cases testified in front
of the Judiciary Subcommittee. I was there and so was Senator
Feingold. Both of the plaintiffs talked about the false
statements of record that those cases were built upon. Listen
to this statement by Sandra Cano. She's of Doe v. Bolton. This
is what she said, June 23rd, 2005 in the Judiciary Subcommittee
that I chaired. Quote: ``Doe v. Bolton falsely created the
health exception that led to abortion on demand and partial
birth abortion.'' This is her statement now. ``I, Sandra Cano,
only sought legal assistance to get a divorce from my husband
and to get my children from foster care. Abortion never crossed
my mind, although apparently was on the mind of the attorney
from whom I sought help.''
Further quote: ``At no time did I ever have an abortion, I
did not seek an abortion, nor do I believe in abortion.'' This
is Sandra Cano, of Doe v. Bolton.
And then she goes on to say, ``Doe v. Bolton is based on
lies and deceit. It needs to be retried or overturned,'' which
she is trying to get it retried. ``It is against my wishes.
Abortion is wrong.'' That is Doe of Doe v. Bolton.
Here is Norma McCorvey, of Roe v. Wade. This is just the
factual setting. ``I believe I was used and abused by the court
system in America. Instead of helping women in Roe v. Wade, I
brought destruction to me and millions of women throughout the
Nation.'' Norma McCorvey.
Quote: ``This is really troubling too. I made up the story
that I had been raped to help justify my abortion.'' Norma
McCorvey.
Facts, facts, in Roe v. Wade and Doe v. Bolton, falsified
statements. And upon this we have based this constitutional
right that has been found, that we now have 40 million fewer
children in the country to bless us with?
I want to take another point on that to you. We have talked
a lot about the disability community, and well we should, and
the protection needed for the disability community. That is
important, because I think it helps people that need help, but
it also helps the rest of us to be much more human and caring.
Senator Kennedy is helping me with a bill because a number
of children never get here that have disabilities. Unborn
children prenatally diagnosed with Down syndrome and other
disabilities--I do not know if you know this, but there was a
recent analysis, and 80 to 90 percent of children prenatally
diagnosed with Down syndrome never get here. Never get here.
They are aborted, and people just say, ``look, this child has
difficulties.'' And we even have waiting lists in America of
people today willing to adopt children with Down syndrome.
We will protect that child, as well we should under
Americans with Disabilities Act and other issues when they get
here. But so much of the time, and with our increased ability
of genetic testing, they don't get here. Diagnosis in the womb,
a system that encourages this child to be destroyed at that
stage, and this is all in the records. We are the poorer for it
as a society.
All the members of this body know a young man with Down
syndrome named Jimmy. Maybe you have met him, even. He runs the
elevator that takes the Senators up and down on the Senate
floors. His warm smile welcomes us every day. We are a better
body for him. He frequently gives me a hug in the elevators. I
know he does Senator Hatch often, too, who kindly gives him
ties, some of which I question the taste of, Orrin, but--
[Laughter.]
Senator Brownback.--but he kindly gives ties.
Senator Hatch. This doesn't have to get personal.
[Laughter.]
Senator Brownback. Jimmy said to me the other day after he
hugged me, he said, ``Shhh, don't tell my supervisor. They're
telling me I'm hugging too many people.''
And yet we are ennobled by him and what he does and how he
lifts up our humanity, and 80 to 90 percent of the kids in this
country like Jimmy never get here. What does that do to us?
What does that say about us?
I would just ask you, Judge Roberts, to consider, and
probably you can't answer here today, whether the individuals
with disabilities have the same constitutional rights that you
and I share while they are in the womb.
Judge Roberts. Well, Senator, I appreciate your thoughts on
the subject very much. I do think, though, since those precise
questions could come before the Court that that is in the area
that I have to refrain from answering.
Senator Brownback. I hope one thinks about people like
Jimmy and a system now that scientifically can figure out the
nature of this child's physical or mental state at an early
point and is having many of them destroyed at that point in
time. That is taking place in our country today.
I have little time left. I want to say one final thing to
you, and I appreciate you and I appreciate your inability to
answer some of these questions. They are tough questions and
they are questions that are live in front of us as a society.
I would just ask you really about your mentor, one of your
mentors, Chief Justice Rehnquist, who I admired greatly,
admired for his demeanor. As you go on, and I anticipate you
will be approved to be the Chief Justice of the United States,
I would ask you just if you could briefly respond, how do you
view his mentorship of you and your taking over, if you are
confirmed, as Chief Justice? What does that mean personally to
you and how will it impact you as Chief Justice?
Judge Roberts. Well, it makes the opportunity a very
special one, as I've said before. The Chief was a mentor to
many people, and like many great mentors, of course, he led by
example, not by precept. His example of how he dealt with other
people, not just other Justices but everybody in the
courthouse, including the law clerks, in an open, friendly,
balanced way was an example for everybody there.
Substantively, his approach to the role of a judge and the
appropriate role of the Court is, I think, a very important
example. He was somebody who appreciated the limits, the
appropriate limits on the judicial role and the judicial power,
and he was always careful and conscious of that. He was always
asking whether or not this was something that it was
appropriate for the courts to do.
I do think it's important for judges at every level to
always ask that question, because as we had talked earlier,
judicial self-restraint is the key check on the authority of
the court, and if you're not asking yourself that question at
every stage, is this an appropriate thing for me to do as a
judge, then there's a great danger that you'll lose sight of
that important judicial self-restraint.
Senator Brownback. God bless you, your service to the
country, and your family.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Brownback.
Senator Leahy has a doctor's appointment this morning but
will be joining us shortly. We now turn to Senator Coburn for
his 30 minutes.
Senator Coburn. Thank you, Mr. Chairman, and again,
welcome. Good morning.
Judge Roberts. Good morning.
Senator Coburn. There were so many legal terms yesterday
bandied around that I was having trouble grabbing hold of, I
thought I would start out with medical terms this morning and
see if you could keep up.
[Laughter.]
Senator Coburn. I also thought it was interesting, since
you have been prophesied to have 35 years, that is 12,675 days,
that the Chairman prophesies that you will be there. You have
passed three of them, and congratulations on number three.
I want to go to something that Senator Kyl talked with you
about, and I was very pleased with your answer. He asked you
about referencing and using preference to select and pick
precedents from foreign law yesterday. I thought you gave a
very reassuring answer to the American public.
You based your answer on two points. One is that the
democratic theory is that in this country, with our law, the
people are involved in that, both through the Senate, the
House, and the President who appoints you. The other point you
made is that relying on foreign precedent does not confine
judges.
I just want to kind of ask a couple of questions. Number
one, the oath that you took for your appellate position and the
oath that you will take states the following, that I, John
Roberts, do solemnly swear that I will administer justice
without respect to persons and do equal right to the poor and
to the rich, and that I will faithfully and impartially
discharge and perform all the duties incumbent upon me, John
Roberts, under the Constitution and the laws of the United
States, so help me, God.
My question relates to the Constitution and what is said in
Article III, that judges both of the Supreme and inferior
courts shall hold their offices during good behavior. My
question to you is, relying on foreign precedent and selecting
and choosing a foreign precedent to create a bias outside of
the laws of this country, is that good behavior?
Judge Roberts. Well, I--for the reasons I stated yesterday,
I don't think it's a good approach. I wouldn't accuse judges or
Justices who disagree with that, though, of violating their
oath. I'd accuse them of getting it wrong on that point, and
I'd hope to sit down with them and debate it and reason about
it.
I think that Justices who reach a contrary result on those
questions are operating in good faith and trying, as I do on
the court I am on now, to live up to that oath that you read. I
wouldn't want to suggest that they're not doing that. Again, I
would think they're not getting it right in that particular
case and with that particular approach and would hope to be
able to sit down and argue with it, as I suspect they'd like to
sit down and debate with me. But I wouldn't suggest they're not
operating in good faith to comply with--
Senator Coburn. Can the American people count on you to not
use foreign precedent in your decision making on the Supreme
Court?
Judge Roberts. You know, I will follow the Supreme Court's
precedents consistent with the principles of stare decisis, and
there are cases in this area, of course. That's why we're
having the debate. The Court has looked at those. I think it's
fair to say, in the prior opinions, those are not determinative
in the sense that the precedent turned entirely on foreign law,
so it's not a question of whether or not you'd be departing
from these cases if you decided not to use foreign law. For the
reasons I gave yesterday, I'm going to be looking--
Senator Coburn. I understand that, and I respect that and I
know that you can't be in a position to make a judgment on
that. But again, for the record, I want to read what the
Constitution says, that judges both of the Supreme and inferior
courts shall hold their offices during good behavior and that
the oath that they take references only the Constitution and
the laws of this country. If anything, I would like to send a
message that that is what their oath says and this judicial
restraint that you have spoken of, I believe includes that oath
and the definition that our Founders believed when they said,
here is what you should base your decisions on, is the
Constitution of the United States and the laws.
The other thing, yesterday, you had an exchange with
Senator Feingold on a case, and I think it was the Gonzaga
case. You talked about congressional intent. I would like you
for a moment to spend a minute giving us your opinion, and you
may refuse to do so if you care to, that would be your
privilege, but one of my observations is that oftentimes, we
don't do a very good job with the laws that we write because we
are not very clear. Sometimes we are lazy. Sometimes we are
politically expedient. But oftentimes, the very problems that
you as a Court make controversial decisions over are because we
have not done a good job.
I would just like your thoughts as to if you were to
critique things that we could do better to make your job easier
and clearer, what would you have to say to that?
Judge Roberts. Well, sitting where I am, I am not terribly
inclined to be critical of the Congress--
[Laughter.]
Judge Roberts.--and wouldn't be in any event. But a lot of
what judges spend their time doing, not always in the momentous
constitutional cases that we've been talking about, but
sometimes in very mundane cases, is the effort to discern
congressional intent, trying to figure out what Congress meant
when it used specific words that were passed by both Houses and
signed by the President into law.
Now, some of that is entirely unavoidable. The complexity
of human endeavor is such that situations are going to arise
that are not clearly answered by even the most specific
language, and that's to be expected and judges have to address
those situations.
But as you suggest yourself in your question, there are
situations where sometimes Congress punts the issue to the
courts. They can't come to an agreement about how a particular
provision should be applied, and so folks who wanted to go one
way and folks who wanted to go the other way just sort of leave
it ambiguous or leave it out and take their chances in court.
Obviously, that's a different situation. I think all judges
would tell you that to the extent Congress can address the
issues and resolve the issues that are the policy questions
entrusted to them, it makes it a lot easier for the courts to
decide the cases that do come up because then it's just a
question of looking at the facts and the law is clear and you
apply the facts to the law. If the law is unclear, that makes
it that much more difficult.
As I said, obviously, a lot of these situations are
unavoidable, but there are certainly--and the Supreme Court has
addressed many of these, the issue of implied rights of action
in the past, and they were doing case after case after case and
they finally adopted an approach in the early 1980s that said,
look, we're not going to imply rights of action anymore.
Congress, if you want somebody to have a right of action, just
say so. But this is not a good thing for the courts to be
doing, deciding whether a particular right of action should be
implied or not.
And after the Court developed that jurisprudence in the
early 1980s, the hope was, and I think it has been realized to
a large extent, that there will be more addressing of that
question in Congress, which is where it should be addressed.
Senator Coburn. And you would agree, we could do a better
job?
Judge Roberts. Well, I'm sure everyone is doing as good a
job as they can--
Senator Coburn. That is the first answer I worry about that
you given through the whole testimony.
[Laughter.]
Senator Coburn. Let me go to another area. As I mentioned
in my opening statement, I am a practicing physician, kind of
an old-time GP. I have delivered 4,000 babies. I take care of
people at the end of life, at the beginning of life. In all 50
States, death is recognized and defined as the irreversible
cessation of the brain and heart activity. Do you have any
reason to dispute that?
Judge Roberts. I don't know the medical terms or
definitions, but no. I mean, if that's the law in the States--
that's not to say that it has any particular legal significance
in cases--
Senator Coburn. Right. I am not asking you about legal
significance. Would you agree that the opposite of being dead
is being alive?
Judge Roberts. Yes. Again--
[Laughter.]
Judge Roberts. I don't mean to be overly cautious in
answering--
Senator Coburn. You know I am going somewhere.
[Laughter.]
Senator Coburn. One of the problems I have is coming up
with just the common sense and logic that if brain waves and
heartbeat signifies life, the absence of them signifies death,
then the presence of them certainly signifies life. And to say
otherwise logically is schizophrenic, and that is how I view a
lot of the decisions that have come from the Supreme Court on
the issue of abortion.
I won't press you on this issue. I know you can't. But for
the listeners of this hearing, if, in fact, life is the
presence of a heartbeat and brain waves, it is important for
everybody in the country to know that at 16 days post-
conception, a heartbeat is present, and that at 41 days, right
now, we can assure ourselves that brain activity and brain
waves are present. And as the technology improves, we are going
to see that come earlier and earlier.
I make that point because so many of the decisions of the
Supreme Court have been made in a vacuum of the scientific
knowledge of what life is, when personhood is, when it begins,
when it doesn't, when it exists, when it doesn't, and it belies
the scientific facts and medical facts that are out there
today, and so that was for your information and my ability to
put forth a philosophy that I believe would solve a lot of the
controversy in this country.
I want to cover one area that was discussed yesterday where
the implication was made that you might have ruled on a case
violating a judicial ethic, and that was the Hamdan v. Rumsfeld
case. Senator Feingold asked you questions about the case. You
invoked the cannon, the code of conduct of U.S. judges that
prohibits you from talking about a pending case. I would like,
Mr. Chairman, a copy of that canon to be placed in the record.
Chairman Specter. Without objection, so ordered.
Senator Coburn. Canon 3 provides that a judge should
perform the duties of the office impartially and diligently.
The judicial duties of a judge take precedence over all other
activities. In performing the duties prescribed by law, the
judge should adhere to the following standards.
Adjudicative responsibilities--there is another one of
those legal words I am having trouble getting my hands around.
A judge should avoid public comment on the merits of a pending
or impending action requiring similar restraint by court
personnel subject to the judge's direction and control. The
official commentary to Canon 3(a)(6) provides the admonition
against public comment about the merits of a pending or
impending action until completion of the appellate process.
I would also note that any criticism of your participation
in this case is unwarranted. Numerous law professors who
specialize in legal ethics have stated that you in no way have
violated any ethics rules simply because you were considered
for another judgeship. The opinion was finalized well before
you met with the President--I believe that is correct--or was
offered this nomination. Is that correct?
Judge Roberts. Yes.
Senator Coburn. The argument, the initial vote, and the
drafting of the opinion all took place before there was a
Supreme Court vacancy at all, is that correct?
Judge Roberts. Yes.
Senator Coburn. You did not write an opinion on that case,
is that correct?
Judge Roberts. I joined Judge Randolph's opinion.
Senator Coburn. Right, but you did not write a separate
opinion on that case?
Judge Roberts. No.
Senator Coburn. And I would like to also enter into the
record the nonpartisan ethicists who agree that Judge Roberts
did not violate any ethics rules--
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Coburn. I want to go to one other area that I have
some concern about. I know my concerns are opposite from some
of those who have a different philosophy of life. Many of the
questions posed to you have focused on our concerns about an
activist judiciary. My opening statement expressed some of
those concerns. However, I am equally concerned about an
activist Congress that goes beyond its bounds, a Congress that
routinely ignores its own constitutional boundaries.
Historically the debate about the role and scope of Congress
has focused on the General Welfare clause.
As we all know, Article I, section 8, clause 1 of the
Constitution gives Congress the power to provide for the common
defense and general welfare of the United States. The Tenth
Amendment also spells out limitations on congressional power.
We had the discussion yesterday on the toad, I believe. The
Tenth Amendment states the power not delegated to the United
States by the Constitution, nor prohibited by it to the States
are reserved to the States respectively or to the people.
I want to give you a quote that James Madison said, because
in his wisdom he anticipated that we would try to stretch the
definition of the Founders. And he wrote with respect to the
words ``General Welfare:'' I have always regarded them as
qualified by the detail of powers connected with them. To take
them in a literal and unlimited sense would be a metamorphosis
of the Constitution into a character in which there is a host
of proofs was not contemplated by its Creators.
In Federalist Paper 45, Madison writes: ``The powers
delegated by the proposed Constitution to the Federal
Government are few and defined. Those which are to remain in
the State Governments are numerous and infinite.''
Do you agree with James Madison's interpretation of the
General Welfare Clause, that the powers of the Congress should
be fundamentally limited, or do you agree with the modern
prevailing wisdom of both political parties, particularly
appropriators, who believe Congress's role is fundamentally
unlimited?
Judge Roberts. Well, I agree with Madison's view in general
that the Constitution does contain limitations on the Federal
authority. The General Welfare Clause, and in particular the
necessary and proper clause, of course, would have been
interpreted in many of Chief Justice John Marshall's early
opinions to recognize though that the scope of authority given
to Congress is broad, and broad enough to confront the problems
that in Chief Justice John Marshall's case were confronted by a
young Nation and helped to bind it together as a Nation and
broad enough today to confront the problems that Congress
addresses. But the notion that the Constitution was one of
limited powers, albeit broad, under the Necessary and Proper
Clause and even the General Welfare Clause is interpreted by
Chief Justice John Marshall in these early opinions, that
recognition doesn't undermine the Framers' essential vision
that we are dealing with a Federal system in which vast powers
reside with the States, and that the Federal Government is one
of limited powers, broad in obviously particular areas and
broad under the Necessary and Proper Clause, but limited powers
nonetheless.
Senator Coburn. Thank you. I just have one other comment.
As you have been before our Committee, I have tried to use my
medical skills of observation of body language to ascertain
your uncomfortableness and ill at ease with questions and
responses. And I have honed that over about 23, 24 years. And
the other thing that I believe is, is integrity is at the basis
of what we want in judges.
I will tell you that I am very pleased, both in my
observational capabilities as a physician to know that your
answers have been honest and forthright, as I watch the rest of
your body respond to the stress that you are under. But I am
also pleased with our President, that he has had the wisdom to
pick somebody of such stature and such integrity. Without
integrity, what you say here means nothing, and that is the
very foundation at which I believe you have based your life,
and I am pleased to have you before us, and I thank you.
Mr. Chairman, I yield back the balance of my time.
Chairman Specter. Thank you very much, Senator Coburn.
Judge Roberts, before taking up the subject of the
confrontation--we now proceed to the 20-minute round for each
Senator. Before taking up the issue of the confrontation and
clash between the Congress and the Supreme Court, I want to
pick up a few strands from yesterday's testimony.
Near the end of my questioning I had commented on the case
of United States v. Dickerson where the Chief Justice had made
a modification of his earlier objections to Miranda and said
that the Miranda warnings ought to be upheld, contrasting his
view in 1974 in a Supreme Court decision with his view in the
year 2000, saying that Miranda should not be overruled because
it has been embedded in routine police practices and become a
part of our national culture, and that has all of the earmarks
of a doctrine of a living Constitution.
Dissenting in Poe v. Ullman, Justice John Marshall Harlan
made one of the famous statements on this issue, saying that
the--commenting on liberty, quote, ``The traditions from which
it is developed,'' that tradition is a living thing. My
question to you is, do you regard the evolution of various
interpretations on liberty as a living thing, as Justice Harlan
did and as Justice Rehnquist appeared to on the Miranda issue?
Judge Roberts. I think the Framers, when they used broad
language like ``liberty,'' like ``due process,'' like
``unreasonable'' with respect to searches and seizures, they
were crafting a document that they intended to apply in a
meaningful way down the ages. As they said in the preamble, it
was designed to secure the blessings of liberty for their
posterity, they intended it to apply to changing conditions,
and I think that in that sense it is a concept that is alive in
the sense that it applies and they intended it to apply in a
particular way, but they intended it to apply down through the
ages.
Chairman Specter. Well, when you talk about intent, I think
that is a pretty tough interpretation. When the Equal
Protection Clause was passed by the Senate in 1868, the Senate
galleries were segregated, blacks on one side and whites on the
other. So that could not have been their intent. The
interpretation which occurs later really is captured by Justice
Cardozo in the case of Palco v. Connecticut, a case which
impressed me enormously back in the law school days, when
talking about the constitutional evolution referred to it as
expressing values which are, ``the very essence of a scheme of
order to liberty,'' ``principles of justice so rooted in the
traditions and conscience of our people as to be ranked as
fundamental.'' Would you agree with the Cardozo statement of
jurisprudence which I just quoted?
Judge Roberts. Well, the general approach of recognizing
the values that inform the interpretation of the Constitution,
it applies to modern times. But just to take the example that
you gave of the Equal Protection Clause. The Framers choose
broad terms of broad applicability, and they state a broad
principle, and the fact that it may have been inconsistent with
their practice may have meant that they were adopting a broad
principle that was inconsistent with their practice, and their
practices would have to change, as they did, with respect to
segregation in the Senate galleries, with respect to
segregation in other areas.
But when they adopt broad terms and broad principles, we
should hold them to their word, and imply them consistent with
those terms and those principles. And that means when they have
adopted principles like liberty, that doesn't get a crabbed or
narrow construction. It is a broad principle that should be
applied consistent with their intent, which was to adopt a
broad principle.
I depart from some views of original intent in the sense
that those folks, some people view it as meaning just the
conditions at that time, just the particular problem. I think
you need to look at the words they used, and if the words adopt
a broader principle, it applies more broadly.
Chairman Specter. Well, I will accept that as an indication
of your view not to have a ``crabbed interpretation'' and
applying the broad principles.
Let me refer you to a statement by Chief Justice Rehnquist
in dissent in the Casey case, which surprises me. I ask you
whether you agree with this. He said, ``A woman's interest in
having an abortion is a form of liberty protected by the Due
Process Clause.'' Do you agree with that?
Judge Roberts. Well, that does get into an area where cases
are coming up. The Chief in that position was referencing of
course the holding in Roe v. Wade, and that was what the issue
was in Casey. But I don't think I should opine on the
correctness or incorrectness of particular views in areas that
are likely to come before the Court.
Chairman Specter. I am going to move now to the
confrontation between Congress and the Court, and what I
consider to be denigrating comments about the Congress. In the
Morrison case, in the face of a overwhelming factual record,
the Court, 5-4 decision, said that parts of the legislation to
protect women against violence unconstitutional because of the
congressional ``method of reasoning.'' And then the dissent
picked up the conclusion that the majority's view was
``dependent upon a uniquely judicial competence'' with the
other side of the coin being congressional incompetence. And
then in the dissent in Tennessee v. Lane Justice Scalia says
that the Court engaged in ill-advised proceedings to make
itself the ``task master'' to see if the Congress has done its
homework. You commented a few minutes ago that you would be
respectful of Congress. Do we have your commitment that you
won't characterize your method of reasoning as superior to
ours?
Judge Roberts. I don't think it's appropriate--
Chairman Specter. In your particular case, maybe yours is,
but--
Judge Roberts. No, no.
[Laughter.]
Chairman Specter. As a generalization--we have gone around
this with other nominees, and after they have gone to the
Court, they have not been mindful as to what they have said
here. But I take umbrage at what the Court has said and so do
my colleagues. There isn't a method of reasoning which changes
when you move across the green from the Senate columns to the
Supreme Court columns. And we do our homework, evidenced by
what has gone on in this hearing, and we do not like being
treated as schoolchildren, requiring, as Justice Scalia says, a
task master.
Will you do better on this subject, Judge Roberts?
Judge Roberts. Well, I don't think the Court should be the
task master of Congress. I think the Constitution is the
Court's task master, and it's Congress's task master as well.
And we each have responsibilities under the Constitution. And I
appreciate very much the differences in institutional
competence between the judiciary and the Congress when it comes
to basic questions of fact finding, development of a record,
and also the authority to make the policy decisions about how
to act on the basis of a particular record. It's not just
disagreement over a record. It's a question of whose job it is
to make a determination based on the record. Now--
Chairman Specter. On the record. In U.S. v. Morrison, the
legislation to protect women against violence, the record
showed that there were reporters on gender bias from the task
force in 21 States and eight separate reports issued by
Congress and its committees over a long course of time leading
to the enactment and the characterization by the dissenters
that there was a mountain of evidence.
What more does the Congress have to do to establish a
record that will be respected by the Court? And this is where
the five-person majority threw it over, not because of the
record but because of the method of reasoning. Isn't that
record palpably sufficient to sustain the constitutionality of
the Act?
Judge Roberts. Well, Mr. Chairman, I don't want to comment
on the correctness of incorrectness of a particular decision.
What I will say--
Chairman Specter. Well, Judge Roberts, let me interrupt you
there for a minute. Why not? The case is over. This isn't a
case which is likely to come before you again. These are the
specific facts based on the rape of the woman--alleged rape by
the three VMI students. I liked your answers yesterday. You
were willing to answer more questions about cases on the
differentiation that they are not likely to come before the
Court. This is not likely to come before the Court again. Isn't
this record sufficient in Morrison to--
Judge Roberts. Well, Mr. Chairman, I must respectfully
disagree. I have been willing to comment on cases that I think
are not likely to come before the Court again. I think the
particular question you ask about the adequacy of findings,
make a determination of the impact on interstate commerce, is
likely to come before the Court again. And expressing an
opinion on whether the Morrison case was correct or incorrect
would be prejudging those cases that are likely to come before
the Court again. And that is the line--it's not just a line
that I'm drawing. It's a line that, as I've read the
transcripts, every nominee who's sitting on the Court today
drew. Some of them drew the line far more aggressively and
wouldn't even comment on cases like Marbury v. Madison.
What I can tell you is that with respect to review of
congressional findings, that my view of the appropriate role of
a judge is a limited role and that you do not make the law, and
that it seems to me that one of the warning flags that should
suggest to you as a judge that you may be beginning to
transgress into the area of making a law is when you are in a
position of re-evaluating legislative findings, because that
doesn't look like a judicial function. It's not an application
of analysis under the Constitution. It's just another look at
findings.
Now, again, I don't feel it's appropriate to comment on
Morrison. I do feel it's appropriate to tell you that I
appreciate the differences between Congress and the courts with
respect to findings, both with respect to the issue of the
capability and competence to undertake that enterprise, and
also with respect to the issue of authority to make a decision
based on the findings.
Chairman Specter. Judge Roberts, we will have to agree to
disagree about that. I don't think the facts of Morrison are
likely to come before the Court, but I ask the questions, you
answer them.
Let me come now to the Americans with Disabilities Act, and
you have 5-4 decisions going opposite ways. Ms. Garrett had
breast cancer. The Court in 2001 said that the title of the
Disabilities Act was unconstitutional, 5-4, on employment
discrimination. Then 3 years later, you have the case coming up
of Lane, the paraplegic crawling up the steps, accommodations,
5-4, and the Act is upheld. The record in the case was very
extensive--13 congressional hearings, a task force that held
hearings in every State, attended by more than 30,000 people,
including thousands who had experienced discrimination. And in
the Garrett case, the Supreme Court of the United States used a
doctrine which had been in vogue only since 1997 in the Boerne
case. You and I discussed this in my office. They came up with
a standard of what is congruent and proportionate. Congruence
and proportionality.
I was interested in your statement when we talked
informally that you did not find those in the 14th Amendment. I
did not either. Now, they plucked congruence and
proportionality right out of thin air, and when Scalia
dissented, he said that the congruence and proportionality test
was a ``flabby test,'' which is a ``invitation to judicial
arbitrariness by policy-driven decisionmaking.''
Now, you said yesterday that you did not think that there
was judicial activism when the Court overruled an Act of
Congress. Isn't this congruence and proportionality test, which
comes out of thin air, a classic example of judicial activism
where the view of congruence--hard to find a definition for
congruence. Proportionality, hard to find a definition for
proportionality. I have searched and cannot find any.
Isn't that the very essence of what is in the eye of the
beholder where the Court takes carte blanche to declare Acts of
Congress unconstitutional?
Judge Roberts. Well, these questions arise, of course,
under, as you know, section 5 of the 14th Amendment, where the
issue is Congress's power to address violations of the 14th
Amendment. And it's an extraordinary grant of power, and the
Court has always recognized it as such. And their decisions in
recent years--it's not just, as you point out, the Garrett case
on the one hand and the Lane case on the other. You have the
Hibbs case recently, which upheld Congress's exercise of
authority. The most recent cases--Lane and Hibbs--uphold
Congress's exercise of authority to abrogate--
Chairman Specter. But, Judge Roberts, they uphold it at the
pleasure of the Court. Congress can't figure that out. There is
no way we can tell what is congruent and proportional in the
eyes of the Court.
Judge Roberts. Well, and that was Justice Scalia's position
in dissent. He had originally--
Chairman Specter. Do you agree with Scalia?
Judge Roberts. Well, again, the congruent and proportional
test--
Chairman Specter. Do you disagree with Justice Scalia?
Judge Roberts. I don't think it's appropriate in an area--
and there are cases coming up, as you know, Mr. Chairman.
There's a case on the docket right now that considers the
congruence and proportionality test.
Chairman Specter. That is why I am raising it with you. I
would like to see a sensible interpretation of the Court in
that case.
Judge Roberts. Well, and if I am confirmed and I do have to
sit on that case, I would approach that with an open mind and
consider the arguments. I can't give you a commitment here
today about how I will approach an issue that is going to be on
the docket within a matter of months.
Chairman Specter. Judge Roberts, I am not talking about an
issue. I am talking about the essence of jurisprudence. I am
talking about the essence of a man/woman-made test in the
Supreme Court which has no grounding in the Constitution, no
grounding in the Federalist Papers, no grounding in the history
of the country, comes out of thin air in 1997, and it is used
in Lane and Garrett, two 5-4 decisions on identical records, on
an identical Act, and the country and the Congress are supposed
to figure out what the Court means. So I am really talking
about jurisprudence.
Judge Roberts, let me move to one other subject in the 2
minutes that I have remaining, and that is, on the ability
which you would have, if confirmed as Chief Justice, to try to
bring a consensus to the Court. We have 5-4 decisions as the
hallmark of the Courts. Not unusual. You commented yesterday
about what Chief Justice Warren did on Brown v. Board of
Education, taking a very disparate Court and pulling the Court
together. As you and I discussed in my office, there are an
overwhelming number of cases where there are multiple
concurrences. A writes of concurring opinion in which B joins;
then B writes a concurring opinion in which A joins and C
joins.
In reading the trilogy of cases on detainees from June of
2004 to figure out what we ought to do about Guantanamo, it was
a patchwork of confusion. I was intrigued by the comment which
you made in our meeting about a dialogue among equals, and you
characterized that as a dialogue among equals when you appear
before the Court, and they are on a little different level over
there. I am way behind you on Supreme Court arguments. It is
39-3. But I would have been an equal of theirs in any event.
Perhaps you are. But I am intrigued by your concept, and I
asked you how you would be able to be the Chief with Justice
Scalia, who is 18 years older than you, and even Justice
Thomas, who is 7 years older than you. Tell us what you think
you can do on this dialogue among equals to try to bring some
consensus to the Court to try to avoid this proliferation of
opinions and avoid all these 5-4 decisions.
My time is up.
Senator Leahy. I would like to hear the answer because that
is a question I was going to ask, too.
Chairman Specter. Well, now we are on Senator Leahy's time.
Go ahead.
Senator Leahy. Oh, no, we are not on my time.
[Laughter.]
Senator Leahy. We are not on my time. We are still on
yours, Mr. Chairman. But I would like to hear this answer.
Chairman Specter. It is permissible to have the answer on
the red light, just not the question.
Judge Roberts. Well, I don't want to be presumptuous about
if I am confirmed, what I would do. I do think, though, it's a
responsibility of all of the Justices, not just the Chief
Justice, to try to work toward an opinion of the Court. The
Supreme Court speaks only as a Court. Individually, the
Justices have no authority.
And I do think it should be a priority to have an opinion
of the Court. You don't obviously compromise strongly held
views, but you do have to be open to the considered views of
your colleagues, particularly when it gets to a concurring
opinion. I do think you do need to ask yourself, what benefit
is this serving? Why is it necessary for me to state this
separate reason? Can I go take another look at what the four of
them think or the three of them think to see if I can subscribe
to that or get them to modify it in a way that would allow me
to subscribe to that, because an important function of the
Supreme Court is to provide guidance. As a lower court judge, I
appreciate clear guidance from the Supreme Court.
I know the last thing Chief Justice Rehnquist said in
Court, on the last day of the term he was reading the
disposition in a case and said, you know, A reaches this
conclusion, is joined by B, and then C has a separate
concurrence joined by D and E, and he ended up by saying, ``I
didn't know we had that many Judges on the Court.'' That
undermines the importance of providing guidance.
I do think the Chief Justice has a particular obligation to
try to achieve consensus consistent with everyone's individual
oath to uphold the Constitution, and that would certainly be a
priority for me if I were confirmed.
Chairman Specter. Thank you very much, Judge Roberts.
Judge Roberts. Thank you, Mr. Chairman.
Chairman Specter. Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman. Thank you for
asking that question because it was one I wanted to ask, too.
Last night, we welcomed you to night court. Welcome to
daytime court.
Judge Roberts. Thank you, Senator.
Senator Leahy. It will probably become night court before
we get done.
[Laughter.]
Senator Leahy. We talked just briefly about the First
Amendment yesterday. It is written primarily in terms of
speech, but in a free and democratic nation, access to
information, I think, is extraordinarily important. Our
Framers, surely understood the ancient maxim, ``knowledge is
power.'' Actually, that was the maxim the administration used
as the model for what was a somewhat Orwellian Total
Information Awareness program until a Republican Congress, and
I supported this, shut it down. It was asking too much
knowledge about individual Americans.
I also spoke about ``we the people.'' If ``we the people''
know what our government is doing and why it is doing it, we
can hold the government accountable, and should. So while I am
not going to go into a specific case, I worry about an
administration that spreads misinformation and declares more
things secret, spending billions of dollars doing so, far more
than any administration in history--probably than all
administrations put together. It punishes the whistleblowers.
It bars the press and cameras from so many different events.
And I believe very strongly that if the people want to know
what is going on, the courts are, if at all possible, supposed
to take their side in making sure they know what is going on,
because our government should not be able to hide things
unnecessarily from the people. No matter who is in power, the
people should know what is going on.
So I would like to know how you would approach such a case.
Let me give you a few examples in the last couple of years. The
administration fought to prevent the media from covering
coffins returning from Iraq. It fought to keep disturbing
images of U.S.-run prisons in Iraq from the media. And just
last weekend, actually after a loss in court, the
administration abandoned its zero-access policy regarding the
scenes of devastation in New Orleans. As you know, most of
America found out what was going on in New Orleans from the
press, not from our government, at least in the first few days.
There have been a number of reasons, excuses, which seem to
change day by day for why these things are being blocked. I am
not going to ask you to evaluate them, but my question is this.
If the government seeks broadly to exclude media from
access to images or events of public interest or concern, does
the First Amendment require the government to justify that
denial of access, and if so, applying what kind of standards?
Not any particular case, but what kind of standards does the
Court have to apply?
Judge Roberts. Senator, I haven't dealt with a lot of First
Amendment access cases. I know I studied one about media access
to prisons, for example, the issue about whether the media had
a right of access to prisons if they wanted to report on it. So
I am not terribly familiar with the precise levels of scrutiny
that apply.
There is, obviously, a balancing of sorts between
particular interests when you are dealing with governmental
operations and there are some perfectly valid reasons for
excluding media. On the other hand, simply disagreement about
whether it's an appropriate issue for the public to see would
not strike me as a very compelling governmental interest, and I
think the courts regularly balance these sorts of things when
they get an issue about a challenge by the media saying their
First Amendment rights are being violated because of a
particular exclusion.
Again, I'm not terribly familiar with the precise legal
standards or how they've developed since the prison access case
that I'm familiar with, but it does require a consideration and
weighing, and the values of the First Amendment obviously are
something that have to be given careful weight by the court for
the very reasons that you have discussed, because the First
Amendment is--it serves a purpose. It's not there just because
the Framers thought this was in general a good idea. It serves
a purpose with respect to the government. It provides access to
information and allows people in a free society to make a
judgment about what their government is up to.
Senator Leahy. Like the Chairman, I was a prosecutor, and
if we move a little bit out of the prison situation, which
raises all other kinds of questions related to the ability to
limit access, let's just go to something that the public might
easily have access to if they could just walk in there.
Suppose the government--I will use something like Katrina.
Suppose they felt that the rescue operations of the government,
whether it is State, local, or Federal, was being handled in an
inept way or evacuees were being mistreated. Does that give the
government a right to bar the media who may want to expose
that?
Judge Roberts. Well, I think as a general--
Senator Leahy. How would you analyze the claim, without
citing a particular case, how would you analyze it? The media
comes and says, look, the government screwed up and we are
trying to get in there to take pictures to show how they
screwed up and they say we can't come in. How would you analyze
a claim like that?
Judge Roberts. Well, you know, I do start with a general
principle in this area, and I think it was Justice Brandeis who
talked about sunlight being the best disinfectant--
Senator Leahy. Disinfectant.
Judge Roberts.--and I think that's a lot of what the
Framers had in mind in guaranteeing freedom of speech and the
other rights that go along with it. They appreciated the
benefits that would come from public awareness. That's an
important principle.
I also, and again, this is not an area that I feel
completely up to speed on the precedents, and I obviously, if I
were in a position as a judge and had to decide a particular
case, would study them and become aware, but my recollection is
that there is great difficulty whenever you try to distinguish
between public rights and media rights and that if it's a
situation in which the public is being given access, you can't
discriminate against the media and say, as a general matter,
that the media don't have access because their access rights,
of course, correspond with those of the public.
And as you said, they're in a position--if there are a
handful of people who might be able to have access, the media
is in a position to make that information or knowledge,
whatever, available on a broader basis and--
Senator Leahy. I raise this not because I am trying to pin
you down on a particular case. I think we are going to see more
and more of this. We are in the digital age. A lot of
information is readily available. At the same time, the bad
part about that is our government can acquire more and more and
more information on us, just as your credit card company or
anybody else does on you. Some of us want to be in a position
to be able to go in and find out what is being collected on us.
To what extent are we giving up our privacy?
Usually, far more than the Congress or anybody else, it has
been the media that has exposed when this has been overdone,
when mistakes or violations have been made, and I would hope
that you would be committed to protecting just as much access
as possible rather than the other way around.
Let me go to an issue we discussed yesterday, or others
did, the issue of capital punishment. We have held in this
Committee a number of hearings that show some real flaws in the
administration of capital punishment; sleeping lawyers, drunk
lawyers, lawyers who didn't bother even to investigate or
didn't have the funds to do it. More than 100 death row inmates
have been exonerated, including some, though, who spent years
on death row in the most horrible conditions for a crime they
never committed.
I think Senator Durbin mentioned the situation out in
Illinois where a Republican Governor had to, and did,
courageously, I thought, extend clemency to a whole lot of
people who had been on death row. Some say, and I think you
have even said this, when people are exonerated, it shows the
system works. Well, let me tell you about the system in that
case.
One of the people was Anthony Porter. He spent 16 years on
death row. He came within 2 days of being executed. The system
didn't work on his behalf. A bunch of kids from Northwestern
University had taken an elective course on journalism, and the
teacher said, why don't you look into this case, and these kids
went out and did it. The kids dug up the information that was
there, available to the police, available to the prosecutor,
available to the Feds. Nobody before had dug it up. They found
it, and the State's Attorney dropped the case. They got
somebody else to confess.
You said 2 years ago, and I remember being at that hearing,
you said about the startling number of innocent men sentenced
to death who were later exonerated, that it somehow showed the
system worked in exonerating them.
I worry about that statement. I really do. It has bothered
me--and, you know, I voted for you for the circuit court and it
was a split vote in our party. But that one really bothered me,
that statement. I found it almost mechanical, and I will tell
you why.
While people may say the fact that innocent people have
been freed after years on death row shows the system is
working, it doesn't. I think Sandra Day O'Connor said a few
years ago, if statistics are any indication, the system may
well be allowing some innocent defendants to be executed. If
that is the case, the system is not working.
Herrera, we discussed that. The court grappled with, but
didn't ultimately decide, whether the Constitution permits the
execution of a person who is innocent. As principal Deputy
Solicitor General, you co-authored the amicus brief for the
U.S. in the Herrera case. You said the claim of innocence does
not state a ground for Federal habeas. Actually, you said,
quote, ``Does the Constitution require that a prisoner have the
right to seek judicial review of a claim of newly discovered
evidence instead of being required to seek relief in the
clemency process? In our view, the Constitution does not
guarantee the prisoner such a right.''
So let me ask you this. Without going into the facts of
Herrera, is it your current personal view that the death row
inmate who can prove his innocence has no constitutional right
to do so before a court before he is executed?
Judge Roberts. Well, Senator, and this is the basis of the
disagreement in Herrera. Herrera was not a case about actual
innocence. It's a question of whether you're entitled to bring
a new claim--
Senator Leahy. But listen to my question. Is a death row
inmate who can prove his innocence, they have no constitutional
right to do so in a court of law before they are executed?
Judge Roberts. Well, prove his innocence. The issue arrives
before you get to the question of proof and the question is, do
you allow someone who has raised several claims over the years
to suddenly say at the last minute, somebody who just died was
the person who committed the murder, and does that mean you
start the trial all over again simply on the basis of that
last-minute claim, or do you require more of a showing at that
stage? That's what Herrera was about.
Now, I don't think, of course, that anybody who is innocent
should be--suffer as a result of a false conviction. If they've
been falsely convicted and they're innocent, they shouldn't
be--
Senator Leahy. Well, does the--
Judge Roberts.--in prison, let alone executed.
Senator Leahy. But does the Constitution permit the
execution of an innocent person?
Judge Roberts. I would think not, but the question is never
do you allow the execution of an innocent person. The question
is, do you allow particular claimants to raise different claims
a fourth or fifth or sixth time, to say at the last minute,
somebody who just died was actually the person who committed
the murder. Let's have a new trial. Or do you take into account
the proceedings that have already gone on.
Senator Leahy. I am looking for broad principles here. You
said--let me read it again--``does the Constitution require
that a prisoner have the right to seek judicial review of a
claim of newly discovered evidence instead of being required to
seek relief in the clemency process? In our view, the
Constitution does not guarantee the prisoner such a right.'' Is
that your view today?
Judge Roberts. Well, that's what the Court held in
Herrera--
Senator Leahy. Is that your view today?
Judge Roberts. Well, I'm not in a position to comment on
the correctness or incorrectness of particular Court decisions.
That's the Court's precedent in Herrera. It agreed with the
administration position, which was not that innocent people
should be subject to imprisonment or execution--
Senator Leahy. That is the position you took. The Supreme
Court is going to revisit this issue in House v. Bell. Because
you stated a position on that, does that require you to recuse
yourself in House v. Bell?
Judge Roberts. No, because the position was stated in a
brief filed on behalf of the administration and we talked
yesterday about the established principle that lawyers do not
subscribe as a personal matter to the views they present on
behalf of clients.
Senator Leahy. Well, in this case, the client is the United
States. I mean, you are stating the position as sort of the,
what do they call it, the Tenth Justice.
Judge Roberts. Well, I was the Deputy Solicitor General on
the brief. I didn't argue the case. The Solicitor General was
the counsel of record in the case. But the position presented
in the brief as an advocate is not necessarily the position of
every lawyer on the brief.
Senator Leahy. I think you were more than just a lawyer on
a brief. You were in one of the most sought-after jobs, picked
because of your positions. I was very impressed when I talked
with you about your use of Latin, for example, and French, and
I am always impressed by somebody with that facility. There is
a Latin phrase--and this is not a ``gotcha.'' I will translate
it: ``Qui facit per alium facit per se.'' He who acts through
another acts for himself. And that is not the case in Herrera?
Judge Roberts. He who acts for another acts for himself?
Well, it's the client acting through the lawyer. And it's the
client who's acting for themselves.
Senator Leahy. You are the client in this case--the
Solicitor General is the client, in effect.
Judge Roberts. No, Senator, I disagree with that.
Senator Leahy. Okay.
Judge Roberts. The Solicitor General represents the
interests of the United States, and those positions represent
that client's position.
In the Herrera case, again, it was the Solicitor General
who was responsible for the position that was advanced. I'm not
suggesting in any way that I disagree with it or agree with it.
I'm just saying that it is a basic principle in our system that
lawyers represent clients, and you do not ascribe the position
of the client to the lawyer. It's a position that goes back to
John Adams and the Revolution.
Senator Leahy. Let me ask you this, then. Let me ask you
something that can be ascribed to a Justice of the Supreme
Court, and it is something that both the Chairman and I have
talked a lot about, and that goes to some of the mechanics. If
you will let me take a moment to explain for the audience the
so-called rule of four. It takes only four Justices to grant
cert, but it takes five to grant a stay of execution. Usually
the courtesy is that if you get four, a fifth one will sign on.
That has not always been followed of late. Of course, we are
dealing with life or death, and Senator Specter has called it a
bizarre and unacceptable outcome and once introduced
legislation to change it.
How would you feel, if you were Chief, and you had four--
four of the Justices now voted for a stay of execution, do you
feel as Chief you would do the courtesy of kicking in the fifth
one?
Judge Roberts. It's an issue that I'm familiar with. I do
know it arose. And I thought the common practice, the current
practice was that if there are four votes to grant cert that
the Court would grant the stay, even though that does require
the fifth vote, so that you don't have a situation--
Senator Leahy. Yes, but that is because one more says,
okay, we got four--
Judge Roberts. Right.
Senator Leahy.--we will put somebody else's name on here.
But that hasn't been followed all the time recently. It usually
was, and that is why both Senator Specter and I have raised
concern. Do you feel the earlier practice of once you have
four--
Judge Roberts. I think that practice makes a lot of sense.
I don't want to commit to pursue a particular practice in an
area that I'll obviously have to look at in the future, but it
obviously makes great sense that if you have four to grant and
that's the rule that you will consider an issue if there are
four to grant. You don't want to moot the case by not staying
the sentence.
Senator Leahy. And I appreciate that because I know we find
a lot of cases where they are perfectly willing to grant cert
on monetary damages, but here you can't get it right, it
doesn't make much difference on appeal after the execution.
You wrote a memo back in 1983, as a White House lawyer,
regarding proposals by then-Chief Justice Warren Burger to
reduce the Supreme Court's caseload. In that memo, you
volunteered the following: ``If the Justices truly think they
are overworked, the cure lies close at hand. For example,
giving coherence to Fourth Amendment jurisprudence by adopting
the good-faith standard and advocating the role of fourth or
fifth guesser in death penalty cases would eliminate about a
half dozen argued cases from the Court's docket each term.''
Are you saying that judges are just too busy to pay
attention to death cases?
Judge Roberts. No, Senator.
Senator Leahy. What are you saying? How do you feel today?
That was 1983. How do you feel now 22 years later?
Judge Roberts. Well, in 1983, of course, they were hearing
about 150 cases a year. They hear about half that now. Again, I
don't want to prejudge questions or even be presumptuous to
look down the road, but it seems to me that there's the
capability there to hear more cases today, not fewer. And I'm
sure there are reasons for the reduction in the caseload that
I'm not familiar with that I might become more familiar with,
but they handled twice as many cases 20 years ago than they do
today. And I think the capability to address more issues is
there in the Court.
Senator Leahy. My time is up, but I think you will find
both the Chairman and the Ranking Member of this Committee
believe they could handle more. Thank you, Judge.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch?
Senator Hatch. I think you have really acquitted yourself
as well as anybody I have seen in the ten nominations for the
Supreme Court that I have been part of. And I just have to--I
want to correct the record a little bit. It isn't the Ginsburg
rule, although that has been referred to by almost all of us,
including me. It is the Thurgood Marshall rule, the Rehnquist
rule, the Kennedy-Souter-Thomas-Ginsburg-Breyer, just to name a
few, rule because in every case, as I stated in my original
remarks, the individual nominee has to draw a line as to what
they can discuss and what they cannot. And you have drawn, I
think, a fair line here throughout these proceedings, and I
commend you for it. And there is just no excuse for being
pushed to try and answer questions about cases that are likely
to come before the Court or presently are before the Court. And
I think the American people are starting to really fully
realize that now as a result of these hearings.
Now, Judge Roberts, as you know, the war on terror is a
unique challenge in American history. As a consequence, many
novel issues regarding Presidential authority to prosecute the
war on terror will doubtless come before the Supreme Court. I
think we all recognize the need to be careful in our
questioning so you are not placed in the position of pre-
committing yourself to any particular viewpoints on Executive
power that would compromise your ability to render a fair
judgment as cases come before the Court.
But let me ask you a general question on terrorism. It is a
question that many in Congress and the administration and the
public have had to struggle with, particularly in the aftermath
of the events of September 11, 2001. The question is this: What
is the best way for our society to protect ourselves against
terrorists not affiliated with a nation state, wear no
uniforms, and really secrete themselves in ways that have never
been done before? On the one hand, there are very specific
international rules embodied in the Geneva Conventions that
specify how enemies captured during traditional warfare are to
be treated. On the other hand, we have the traditional criminal
law protections contained in Title 18 of the United States Code
that define the rights accorded to criminals such as the famous
Miranda warnings--warning, I should say, and the right to
obtain counsel.
What everyone is struggling with is how do we apply these
two traditional methods against nontraditional enemies who
clearly are nontraditional? Let us make no mistake. Their goal
is to destroy our society and way of life, and they will use
weapons of mass destruction if they can. I don't think anybody
doubts that.
Now, let me just ask you this general question. Will you
give us assurance that you will keep an open mind as the
administration and Congress adopt and implement new policies
and legal procedures that govern the apprehension,
interrogation, and detention of suspected terrorists?
Judge Roberts. Yes, Senator, I will. I certainly am not
qualified to comment on the best approaches in the war on
terror or the most effective approaches. That is the
responsibility, obviously, of the other branches. The
responsibility of the judicial branch is to decide particular
cases that are presented to them in this area according to the
rule of law, and that is what I have tried to do, and that is
what I will continue to do, either on the court of appeals or
another court.
Senator Hatch. Well, thank you. Now, also yesterday the
Democratic staff of the Committee released a press release
stating that you failed to distance yourself from what it
called your ``earlier cramped positions on Title IX and women's
rights.'' And after listening to you yesterday, I did not find
your earlier positions cramped at all. In fact, as you
explained here to the Committee, many of the documents that
questioners relied upon reflected the positions of the Reagan
administration for which you worked.
Now, what assurance can you give the Committee that you
will fairly interpret the civil rights laws, including critical
statutes such as Title IX, fully and fairly, consistent with
the purposes Congress intended in passing these laws?
Judge Roberts. Well, I can give the commitment that I
appreciate that my role as a judge is different than my role as
a staff lawyer for an administration. As a judge, I have no
agenda. I have a guide in the Constitution and the laws and the
precedents of the Court, and those are what I would apply with
an open mind, after fully and fairly considering the arguments
and assessing the considered views of my colleagues on the
bench. That's the way I would approach cases in that area, as
in any other area.
The approach of someone who is obviously a staff lawyer in
an administration is very different. The approach of someone
who is an advocate for a client before the Court is obviously
very different. Those are positions that I have held in the
past. I am now a judge, and I have had the experience and I
think my record will establish that that is how I approach
cases across the spectrum of issues that are raised before the
courts.
Senator Hatch. And reasonable people can differ on some of
these issues.
Judge Roberts. Oh, certainly.
Senator Hatch. And the Grove City case, you won that case,
didn't you?
Judge Roberts. The administration's position prevailed
before the Court.
Senator Hatch. That is right. In other words, the position
that you had advocated prevailed. Then we did not like it up
here on Capitol Hill, so we passed the Civil Rights Restoration
Act and we changed it, right?
Judge Roberts. Yes, which, of course, is always the
prerogative of Congress when you're dealing with a question of
statutory interpretation, and that's part of a regular
interchange between the Court and the Congress. Sometimes if
the Court gets something wrong, Congress can fix it. Even if
the Court gets it right but Congress thinks the approach ought
to be changed, Congress is free to legislate for a different
result.
Senator Hatch. So I find it strange to criticize you
because you won a case in the Supreme Court and have not
advocated against women's rights in any way, shape, or form
ever in your career, as far as I can understand. Is that
correct?
Judge Roberts. That's correct, Senator.
Senator Hatch. And, in fact, you are a strong supporter of
women's rights and gender equality?
Judge Roberts. Yes, Senator.
Senator Hatch. Okay. Now, let me just ask you a question
that relates to some of the answers you gave yesterday
regarding the voting rights. Even as the hearing was unfolding,
again, Democratic staffers of the Committee issued a press
release that said that you had missed an opportunity to
distance yourself from what the release called your ``earlier
narrow positions on the reach of the Voting Rights Act.'' Now,
that is not what I heard you say, nor do I believe that is what
the public heard. A Democratic press release said that you had
resorted to vague generalities about the importance of voting.
Now, as I heard you, I heard you explain the vigorous
debate that took place regarding reauthorization of the Voting
Rights Act in the 1980s. By the way, I was part of that debate.
I felt very deeply that the effects test should apply to
section 5 to those States that had a history of discrimination.
But I also felt very deeply at the time that the intent test
should apply to all the other States in section 2, which was
the position I think the administration took that you had to do
some research on and within the administration.
Now, I lost in Committee. I was arguing that all of the
States that did not have a history of discrimination should not
have--be burdened by the effects test, which basically says
that the effects of what happens looks like discrimination, it
therefore is, even if there was never an intent to commit
discrimination. Now, I lost, but I fell that the Voting Rights
Act is the most important civil rights bill in history, and I
felt it then. I voted for the amended bill with the effects
test language in section 2, and have been a strong supporter
ever since.
Would that be fair to describe your feelings about that?
Judge Roberts. Well, yes, Senator. The debate as you
remember was over whether or not Section 2 should be extended
without change as interpreted by the Supreme Court in Mobile v.
Bolden, or whether it should be changed to incorporate the
effects test and later the totality of the circumstances test.
The administration position at the time was to extend the
Voting Rights Act for the longest period in history without
change, and that was the position that I was working on at the
time, and Congress eventually decided, with--Senator Dole and
some of the other Senators developed a compromise position on
Section 2, and that was enacted with the support of the
administration.
The one thing that was clear to me throughout those
extended debates was that the people on both sides of the
issue, in good faith, supported extension of the Voting Rights
Act, and recognized the importance of the Voting Rights Act in
securing civil liberties for all Americans. It wasn't a dispute
about the goal. It wasn't a dispute about the objective. It
wasn't a dispute about the importance. It was a dispute about
whether to extend the Act without change or whether to make
changes in the Act, and that was what the debate was about.
Senator Hatch. And the difference was, is that the
administration vehemently wanted to pass the Voting Rights Act
as it existed that was somewhat difficult to pass originally
when it was originally passed, and that was a decent, honorable
position. But when it was changed through our democratic
process up here on Capitol Hill, I felt for the worse at the
time, but I feel like I was wrong at the time. Then we voted
for it. In fact, it was my friend, Senator Kennedy, who
insisted that I come down to the White House as part of the
bill signing team because he knew how deeply I felt about this.
But there was a legitimate reason to take the administration's
position, and the administration, once the compromise was
reached with Senators Dole and Kennedy, the administration
accepted that as well, and so did you.
That was a point I just kind of wanted to make because I
think it is important to realize that we can sometimes get to a
point where we misconstrue the intentions of decent, honorable
people, and I count myself one of those. Even though I lost in
Committee, I voted for this bill because to me it is the most
important civil rights bill in history, albeit, others are very
important as well.
Now, I just want to tell you that, like I say, I have been
here for 29 years, and I have been through 10 of these. I think
10 if I recall correctly. And in all of that time we have seen
some really sterling, brilliant, wonderful people before this
Committee, but I have never seen anybody who has done a better
job of explaining himself than you have. If people cannot vote
for you, then I doubt that they can vote for any Republican
nominee. You have made a very, very strong presentation here,
and I hope the American people realize that, and I hope my
colleagues on both sides of the aisle realize that, and I look
forward to seeing you as Chief Justice of the United States
Supreme Court, and will do everything in my power to see that
you are confirmed.
With that, I have eight and a half minutes left, I reserve
the balance of my time.
Chairman Specter. Thank you very much, Senator Hatch.
Senator Kennedy.
Senator Kennedy. Thank you very much, Mr. Chairman.
Good morning, Judge.
Judge Roberts. Good morning, Senator.
Senator Kennedy. I would like to, if we could, come back,
and perhaps in a follow-up round, to the issue of civil rights,
because as has been mentioned here by others, it is the
overarching issue, I think, for our country and our society. I
think our Founders did not get it right at the time of the
drafting of the Constitution. We have had a Civil War. This
country went through an extraordinary period of time led by Dr.
King in the 1950s, and then we had that extraordinary moment of
Dr. King here at the Lincoln Memorial, which I think touched
the conscience of the Nation, people from all over the country.
We were stuck for months on the 1964 Act, as you probably
remember. Everett Dirksen opened up the possibility for
reaching a compromise on the public accommodations provision.
We spent 8 hours, a number of us in the Judiciary Committee,
with Nick Katzenbach over in the Capitol Office, and had an
agreement at that time there would be no amendments on the
public accommodations; we could amend other provisions. And the
legislation went forward, and was monumental in its importance
and consequence.
Then we came back and realized that the most important
legislation that we could probably address--we still had a way
to go on housing and employment, but although employment was
included in the `64 Act, but not to a great extent--was in the
Voting Rights Act. And we had extensive hearings. During the
course of those hearings by this Committee, other Committees as
well, we listened to Attorney General Katzenbach, who had been
working with Senator Dirksen, really the architect, under the
leadership of President Johnson, certainly, but the architect
of the `64 Act. And he testified before this Committee about
the Section 2 provisions, and in his testimony on the Section 2
provisions, he said, Section 2 applies to any voting practice
or procedure if its purpose or effect was to deny or abridge
the right to vote on account of race or color.
So many of us, including the civil rights community,
believed that the effects test was operative at that time. That
bill passed the House by 333-85, 77-19 in the Senate.
The next thing that happened is we had the series of cases,
as you recall, and the overarching test case was the Zimmer
case, but we had a number of other cases. It was the Fifth
Circuit that dealt for the most part with the whole range of
southern States where many of these voting challenges had
existed, although I certainly recognize we have a long way to
go in my own State of Massachusetts. But the Fifth Circuit en
banc, effectively in the Zimmer v. McKeithen case--issued the
lead case on the effects test--and that was followed by a
series of cases, for a long period of time.
You are aware of this history?
Judge Roberts. I am remembering it from when we addressed
this debate 23 years ago, yes.
Senator Kennedy. But it sounds familiar. Then we went up to
1980 and we had the Mobile case, which effectively put the
intent test in. And after the Mobile case, as you well
remember, the Justice Department dropped a whole series of
cases that had been prepared under the effects test because
they did not believe that they could make the case on the
intent test, on the whole series.
This sent a very powerful message to individuals across the
South, and other parts of the country, that the additional kind
of a burden to demonstrate intention was going to be so
substantial in terms of resources. To try and determine the
intent of individuals that lived many years ago would be
virtually impossible. That happened. The Justice Department
dropped scores of cases.
It was one of the important reasons that the civil rights
community and many of us believed that it was so important at
the time of the extension of the Voting Rights case in 1982,
that we put the effects test in.
You believed, as I remember, and as we have gone over, that
it should have been a restatement of the existing law, as you
correctly stated yesterday, which was the intent test. Am I
correct so far?
Judge Roberts. That was the administration position.
Senator Kennedy. The administration's position. I remember
William French Smith testifying before this Committee to that
effect at that particular time.
Every civil rights group in 1982 supported the effects
test. Groups like the NAACP Legal Defense, National Urban
League, Lawyers Committee on Civil Rights Under Law, Leadership
Conference on Civil Rights, Mexican American Legal Defense and
Education Fund, National Council of La Raza, League of United
Latin American Voters, League of Women Voters, and
Congressional Black Caucus, the list goes on.
And the House went ahead and passed the legislation with
the effects test by 389-24, 389-24. The legislation included
language which reflected the concern of the Administration
about whether the intent test was going to lead to either
proportional representation or to quotas. That language was
included in the House legislation that passed, and it included
the fact that members of a minority group have not been elected
in numbers equal to the group's proportion of the population,
should not in and of itself constitute a violation of this
section. I thought this addressed, for all intents and
purposes, the concerns that the Administration, and most of in
the civil rights community had with regard to the issue of
proportional representation.
You roughly remember that or are aware--
Judge Roberts. I certainly remember the provision in the
House bill at the time.
Senator Kennedy. So we also now included that language in
the Senate bill. Now, the House bill passed. The Senate bill
had 61 cosponsors prior to the time that we adopted the Dole
amendment. That legislation was on its way. That legislation
was good as done, quite frankly. The Dole amendment was
effectively a restatement of what was in the House bill, and it
had been included. But the Administration after that said,
``Well, if they are going to include that as the Dole
amendment, we will let up in our opposition and we will
eventually support it.''
Now, during the time after the passage of the House bill
and prior to the passage of the Senate bill, even though the
House had passed it, you still strongly maintained the
Administration's position, did you not?
Judge Roberts. Well, I was still working for the
administration, Senator. President Reagan's position was to
extend the Act without change. As you mentioned, that was the
Attorney General's position. I was a Special Assistant to the
Attorney General, and I was doing my best to implement their
views and support their views.
Senator Kennedy. History shows that after the House bill,
the Administration thought it should alter its position. Your
memorandum to Attorney General Reynolds said, ``Brad Reynolds
has expressed some reservation about circulating any written
statement on the question to the Hill. My own view is that
something must be done.'' Maybe that is a staffer, but it is
separating yourself from Brad Reynolds, who was the leader on
this issue at the time. Then you--
Judge Roberts. Well, with respect, Senator, my
understanding--and I looked at that memorandum recently--is
that the issue was whether or not to circulate something
explaining the administration position, and I didn't think Mr.
Reynolds's view was, you shouldn't do that because you didn't
support the position. It was a question whether or not to
circulate something at that time.
And my view was whether or not--I thought if the
administration was advocating its position, it ought to get the
position out.
Senator Kennedy. Well, I think that is good. You are a good
advocate and a strong believer in this.
The reason in this memorandum that you circle--and I have
it right here, and I submit it into the Committee record, in
the last paragraph you said: On the issue of the effects
standard nationwide on the strength of the record will be
constitutionally suspect, but also contrary to the most
fundamental tenets of the legislative process on which the laws
of this country are based.
The reason that I bring this up is to find out what you
believed then and what you believe today, because you have a
phrase in your memorandum that this provision, the effects
test, is constitutionally suspect. Is that still your position?
Because if it is your position on an issue as important as the
Voting Rights Act that and moved the whole democratic process
forward, resulted in the elections of hundreds and thousands of
local leaders of color in all parts of the country, and
Representatives in the House of Representatives, then I think
the American people are entitled to know.
So specifically, specifically, do you believe that the
effects test in the Voting Rights Act, which is currently the
law, is constitutional?
Judge Roberts. Well, Senator, I don't know what the
analysis--you read a clause of a sentence and I would have to
look at the whole memorandum to see exactly what the suggestion
or the issue was in that case.
Chairman Specter. Senator Kennedy, would you make the memo
available to him, please?
Senator Kennedy. Sure. What I am interested in doing is
asking now whether you believe that the effects test is
constitutionally suspect. I am interested in today, quite
frankly, more than what you had--
Judge Roberts. Certainly.
Senator Kennedy.--written before, whether you believe that
it is suspect today or whether you find that it is settled law.
It is fine if you want to, obviously, refer to it, but I am
interested in what is your view today.
Judge Roberts. What we're referring to--what I'm referring
to in this paragraph is the Court's determination, if I'm
looking at this correctly, under Section 5, its determination--
the language you read notes the Supreme Court's conclusion
under Section 5, which is the pre-clearance provision that
applies to jurisdictions with a history of discrimination, and
what the Court had said in that case was that requirement of
pre-clearance was acceptable given the record that the Congress
had established in the Voting Rights Act of 1965 of the
practices in those jurisdictions. And the concern was that if
you extend the effects test nationwide, that the record which
had been established only with respect to particular
jurisdictions in the South wouldn't apply nationwide, and that
would be the basis for a constitutional challenge.
The application of the test under Section 2, which is, as
you know, if we use the shorthand effects test, it's actually
the totality of the circumstances test and it lays forth a
number of considerations. I think there is some argument about
how it closely attracts the effects test under Section 5 or if
it's a different totality of the circumstances approach.
I'm not aware of any case that has questioned the
constitutionality of the application of the totality of the
circumstances case under Section 2 and if an issue on that were
to be presented to me on the Supreme Court, which it may be,
given the pending extension of the Voting Rights Act, I would,
of course, confront that issue as a judge and not as a staff
attorney for an administration with a position, and as a judge,
I would come to the issue with an open mind and I would fully
and fairly consider any arguments that might be presented.
I don't know if an argument is going to be presented about
the application of the totality of the circumstances test
nationwide. Again, I'm not aware of any challenges that have
been presented to it since it was enacted. I don't know if any
will be if or when the Voting Rights Act is extended again, but
if it is, I would confront that as a judge and not as a staff
attorney for an administration with a particular position on
that issue.
Senator Kennedy. Well, Judge, to my knowledge there hasn't
been, in legal circles suspicion about the unconstitutionality
of the effects test as it applies to Section 5. That is as
grounded as it can be. I am asking the specific question that
was the really at issue with the extension, and really the most
important part historically about the Voting Rights Act,
whether you think that that provision is constitutionally
suspect today.
This is the backbone of effective voting in our country and
our society and I think the American people are entitled to
know whether you believe or suspect that that particular
provision, which has passed just overwhelmingly by the House
and the Senate, signed by President Reagan, and has resulted in
this historic march to progress, is constitutionally sound.
That is what I am interested in.
Judge Roberts. I have no basis. I am not aware of any
constitutional challenge that has been brought to Section 2
since it was enacted. I've not--I have no basis for viewing it
as constitutionally suspect and I don't. If an issue were to
arise before the Supreme Court or before the Court of Appeals,
if I head back there, I would consider that issue with an open
mind in light of the arguments. I've got no basis for viewing
it as constitutionally suspect today and I'm not aware that
it's been challenged in that respect since it was enacted. It
may have been, but as I say, I'm not aware of it.
Senator Kennedy. I gather--you've had an extensive answer--
that from that answer, I did hear that it is not
constitutionally suspect as far as your view today.
Judge Roberts. Yes.
Senator Kennedy. Could I move on to the issue of
affirmative action?
Judge Roberts. Certainly.
Senator Kennedy. In the Grutter v. Bollinger case, the
Supreme Court decided very close, in a five-four decision, with
Sandra Day O'Connor the deciding Justice, the Supreme Court
upheld the university practices that considered race as one
factor in its admission decisions. No one is talking today
about quotas. We are talking about affirmative action as
defined in this Grutter decision. The Court found that there
was a constitutional affirmative action program aimed at
achieving a racially diverse student body.
In this decision, the Court expressly gave great weight to
the representation by military leaders--military leaders--that
said a highly qualified, racially diverse officer corps is
essential to the military's ability to fulfill its principal
mission and to provide national security.
What weight would you give to that kind of a comment or
statement or testimony by the military in considering any issue
dealing with affirmative action?
Judge Roberts. Well, the weight it was given was to help
satisfy the test, because the Court, as you know, in Grutter
applied strict scrutiny because it was dealing with
considerations on the basis of race and that required a showing
of a compelling governmental interest to support that
legislative action. The testimony of the military officers, as
the Court explained, helped substantiate the compelling nature
of the interest in having a diverse United student body. That
was the weight that the Court gave it.
There was, of course, the other case. There were two
Michigan cases, the law school case and the university case,
the Gratz case, where the Court did say that it looked too much
like a quota in that case because it was given determinative
consideration as opposed to being one of a variety of factors
that is considered.
The two cases together kind of show where the Court is
coming out, at least in the area of higher education. The Court
permits consideration of race or ethnic background so long as
it is not sort of a make-or-break test.
Senator Kennedy. Do you agree, then, with Justice O'Connor
writing for the majority that gave great weight to the real-
world impact of affirmative policies in universities? The
reason--I have got 35 seconds left--you might say, well, this
may eventually come on up before the Court, but the fact is, we
know how every other Justice has voted because they have all
voted and the American people would like to know where you
stand on this very important public policy issue, particularly
since Sandra Day O'Connor wrote such a compelling decision that
was, I think, in the cause of fairness and justice.
Judge Roberts. Well, Senator, I think I can answer the
specific questions you asked because as you phrased the
question, do you agree with her that it's important to look at
the real-world significance and impact, and I can certainly say
that I do think that that is the appropriate approach without
commenting on the outcome or the judgment in a particular case,
that you do need to look at the real-world impact in this area,
and I think in other areas, as well.
Senator Kennedy. Thank you very much. My time is up. Thank
you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
We will now take a 15-minute break. We will reconvene at
11:25.
[Recess 11:09 a.m. to 11:31 a.m.]
Chairman Specter. We will resume the hearings. We are just
a few minutes tardy because we just finished a vote, and we now
turn to Senator Grassley for his 20-minute second round.
Senator Grassley. Thank you.
Once again, I compliment you on how you have handled
yourself at these hearings. You have done very well. It is
going to be very hard for people to cast a no vote against you.
Judge Roberts, do you believe that every citizen who meets
the qualifications set forth in the Constitution and our laws
should have the opportunity to cast a free and unfettered vote?
And as a follow-up, will you on the Court fairly apply the
Voting Rights Act?
Judge Roberts. Well, I certainly agree that every citizen
who meets the qualifications not only has the right to vote but
should vote. I think it's a problem that we don't have more
people voting. And any issues that come before me under the
Voting Rights Act, I will confront those with an open mind and
decide them after full and fair consideration of the arguments,
in light of the precedents of the Court, and in light of a
recognition of the critical role that the right to vote plays
as preservative of all other rights.
Senator Grassley. Thank you.
The Supreme Court has repeatedly stated that the
legislative history of a particular bill is critical to
interpretation of the statute. Of course, Justice Scalia is of
the opinion that most expressions of legislative history, like
Committee reports or statements by the Senators on the floor,
or in the House, are not entitled to great weight because they
are unreliable indicators of legislative intent. Presumably,
Justice Scalia believes that if the members don't actually
write a report or don't actually vote on a report, then there
is no need to defer to this expression of congressional intent.
Now, obviously, I have great regard for Justice Scalia, his
intellect and legal reasoning. But, of course, as I told you in
my office, I don't really agree with his position.
So I would like to ask you five questions. They are
relatively short, so I will ask them all at once. What is your
opinion, how important is legislative history to you? How have
you utilized it? And will it be any different from your use on
the circuit court versus what you might do on the Supreme
Court? And did you refer to any Committee reports or
congressional debate in any of your 39 briefs before the
Supreme Court? And to what extent do you--and don't start out
with this last one. To what extent do you share Justice
Scalia's view on unreliability of legislative history? Although
that is important, I would like--and I can repeat those, if you
forget what I have asked.
Judge Roberts. Sure. Well, if I leave one out, you can
remind me at the end. But obviously when you are dealing with
interpreting a statute, the most important part is the text.
You begin with the text, and as the Supreme Court has said, in
many cases, perhaps most cases, that's also where you end. The
answer is clear.
I have, though, as a judge, relied on legislative history
to help clarify ambiguity in the text. The Supreme Court stated
once--and I think it's a very important principle--you look to
legislative history to clarify ambiguity. You don't look to
legislative history to create ambiguity. In other words, if the
text is clear, that is what you follow, and that's binding. And
you don't look beyond it to say, well, if you look here,
though, maybe this clear word should be interpreted a different
way.
On the other hand, we confront situations where the text is
not clear, and the legislative history can be helpful in
resolving that ambiguity. It requires a certain sensitivity to
what you're dealing with. All legislative history is not
created equal. There's a difference between the weight that you
give a conference report and the weight you give a statement of
one legislator on the floor. You have to, I think, have some
degree of sensitivity in understanding exactly what you're
looking at, appreciate where those comments were made in the
legislative process, be careful to make sure that they're
dealing with the same language that was eventually adopted. You
have to, for example, be very skeptical about statements by
opponents of the bill. It's quite a common thing saying, well,
this bill would do this, this, and this, and so we shouldn't
pass it. That's not always the best guide as to what the
sponsors really intended in the language. So it does require a
certain sensitivity to what you're dealing with.
But I have quoted and looked to legislative history in the
past to help determine the meaning of ambiguous terms, and I
would expect to follow that same approach on the Supreme Court.
I don't think there's a difference there in terms of what
things you think it is appropriate to look to, to help you do
your job, which is to figure out what Congress intended.
Senator Grassley. And you didn't address Justice Scalia,
but let me put it another way so I don't put you in a bad
position. You would see, at least in some instances, where it
needs to be used, reliability in legislative history.
Judge Roberts. In some instances, I think if you look at it
carefully, you can make an assessment that this is a reliable
guide. And one area I didn't touch on in my arguments, I've
certainly relied on legislative history in presenting arguments
because, of course, in the Supreme Court you need five votes
and not just the one. So you tend to cast your net as widely as
possible. And at argument sometimes, Justice Scalia would not
be as receptive to an argument based on legislative history as
some of the others, but, again, the name of the game is
counting to five when you're arguing up there. And so I've
certainly made arguments based on legislative history.
Senator Grassley. In regard to how you view and use
legislative history, I would like to discuss your opinion in
the Totten v. Bombardier Corporation case interpreting the
False Claims Act. The issue on appeal was whether Bombardier
had met the presentment requirements of the False Claims Act.
To violate the statute according to Section 3729(a)(1), a
company must have presented its false claim to an officer or
employee of the Federal Government. Importantly, Section
3729(c) explicitly provide that the term ``claim'' includes
demands for payment submitted to Government contractors whether
or not they are resubmitted to the Federal Government.
In your opinion, you wrote that those facts of that case
did not consist of a false claims under the False Claims Act
because there can only be a false claim if it is literally
presented to somebody that is a Federal Government employee, I
assume.
It seems to me that to reach this result, you inserted a
resubmission requirement into the law in a place where it
doesn't, in fact, appear, Section 3729(a)(1), and, in fact,
gave short shrift to the legislative history, which spelled out
what Congress intended when it amended the Act in 1986. The
legislative history of the Act and the Senate Committee
report--and I didn't refer to my authorship of the legislation,
but, anyway, in our Senate Committee report explaining that
liability under the False Claims Act attaches to a submission
of, and I quote, ``a false claim to the recipient of a grant
from the United States or to a State under a program financed
in part by the United States.''
The legislative history also states that Congress sought to
ensure that ``a false claim was actionable although the claim
or false statements were made to a party other than the
Government if the payment thereon would ultimately result in a
loss to the United States.''
So my question is whether, on reflection, that is a fair
way to deal with the express wishes of Congress and whether it
is possible that you misunderstood the statute when you decided
the Totten case, and why did you reject legislative history if
you referred to it--and maybe you didn't refer to it. But why
did you reject legislative history regarding the resubmission
requirement in the False Claims Act when you wrote the opinion
in Totten?
Judge Roberts. Well, Senator, the answer to your question
is it's certainly possible that the majority in that case
didn't get it right and that the dissent that was a very strong
dissent did get it right. I think the majority got it right.
There we focused on particular language. The issue in the case
involved, as you know, a subcontractor claim. You have the
United States giving money to--in this case, it was Amtrak, and
then Amtrak using that money to hire a subcontractor--I think
it was Bombardier--to do a particular part of the job.
Everybody agreed that under the precedents that are applied,
Amtrak is not the Government, can't be considered part of the
Government. And the statute, as you noted, required--it was
triggered by the presentment of a false claim to an officer or
employee of the United States. And the majority's reasoning was
that when--the false claim was one made by Bombardier to
Amtrak, and the claim was submitted to Amtrak. And since Amtrak
was not the Government, what Judge Rogers and I concluded was
that that wasn't presentment of a false claim to an officer or
employee of the United States.
There was an extensive discussion between the majority and
the dissent. The view that you have articulated was certainly
presented in a compelling way by Judge Garland, my colleague on
the court of appeals, and we spent a great deal of time on the
case, and I think it's reflected in the opinions. And that view
was laid out. Judge Rogers and I thought that the statutory
language that said the claim had to be presented to an officer
or employee presented too high a hurdle for us to get over in
looking at the legislative history.
But I'm happy to concede that it was among the more
difficult cases I've had over the past 2 years. Anytime Judge
Garland disagrees, you know you're in a difficult area. And the
function of his dissent to make us focus on what we were
deciding and to make sure that we felt we were doing the right
thing I think was well served. But Judge Garland disagreed, and
so it's obviously to me a case on which reasonable judges can
disagree. And I just have to rest on the analysis in the
majority opinion.
Senator Grassley. Let me tell you something you might not
be aware of, and that is that the Bush administration has filed
an amicus brief in the Eleventh Circuit arguing that you had
misread the False Claims Act in the Totten case, and in Atkins
v. McIntyre, the administration has argued that there's no
presentment requirement in Section 3738(a)(2) of the False
Claims Act, and that ``the Totten majority misconstrued the
language and purpose of the False Claims Act in concluding that
the Act does not encompass false claim records statements
submitted to recipients of Federal funds absent resubmission to
a United States officer or employee.'' And I assume if I ask
you if you have an opinion on that you can't answer it.
Judge Roberts. Well, not on that one. I do know the Bush
administration filed an amicus brief in our case as well. I
guess this would be one of those cases I would cite in response
to the question of whether I'm capable of ruling against the
administration. We did in that case. Again, the arguments, I
think, were well presented on both sides, and Judge Rogers and
I gave it our best shot, and the opinion will stand or fall on
its own.
Senator Grassley. Well, I hope sitting in the marble palace
you will remember that I have great pride in the success of the
False Claims Act--$8 billion coming back to the Federal
Treasury.
Judge Roberts, you filed an amicus brief in the case of
United States v. Halper, a case which raised the question of
whether a civil False Claims Act case could implicate the
double jeopardy clause. The Supreme Court agreed with your
arguments and held that the double jeopardy clause protects a
convicted criminal defendant from a second punishment in the
form of a civil sanction that ``may not fairly be characterized
as remedial'' because it is ``overwhelmingly disproportionate
to the damage the defendant has caused.'' As you know, the
Halper decision was later overturned by Hudson.
Judge Roberts, do you consider the False Claims Act treble
damages provisions to be excessive, in the words of the Court,
``overwhelmingly disproportionate,'' and also in the words of
the Court, ``not fairly characterized as remedial''?
Judge Roberts. Well, you've touched on a case that's very
close to my heart, Senator. It was the first case I argued
before the Supreme Court. I was appointed by the Court to argue
it on behalf of Mr. Halper.
It was an unusual case. It arose--the conspiracy at issue
was a slight inflation of--I believe it was Medicare or
Medicaid claims that this individual was submitting. I think he
added $1 or $2 to every claim. And yet under the law at that
time, there was a minimum penalty for each false claim. These
numbers won't be right, but he had something like 300 false
claims for a grand total of maybe $700, but under the statute,
he was assessed a civil penalty of several million dollars
because each of the false claims was a separate penalty.
And the issue was, after having been sentenced criminally,
would a civil penalty of several--and, again, I'm not sure of
the numbers, but several million dollars for $700 or so of
fraud, was that remedial and civil or was it punishment? And
the Court agreed with my submission at the time that that was
punishment. It led to some difficulty, I think, in
administering civil and criminal laws down the line, and as you
said, 8 years later they reversed course and overruled the
Halper precedent.
But the provision that you specifically mentioned, treble
damages, that is a little different. There it's a much closer
connection, obviously just 3 times whatever the damages are. In
the Halper case, it was a much more disproportionate impact,
and that's what led the Court, I think, to conclude that that
looks like punishment. Treble damages is something that's
familiar in the law in a number of areas and is not regarded as
impermissible punishment in this context.
Senator Grassley. Are you familiar with the legal arguments
that some opponents of the False Claims Act have made to the
effect that its qui tam provisions are unconstitutional under
Articles II and III, and if so, do you have an opinion on these
arguments, and before you answer, I would like to remind you
that at least since the first Congress was involved in this, I
would like to assume that the Framers of the Constitution,
because the First Congress enacted several qui tam statutes,
that if that be any deference to you in giving--whether this
factor would make any difference to you when assessing the
constitutionality of qui tam statutes today.
Judge Roberts. I think, if my memory serves, that the
Article III objections, and just so we're on the same page, the
qui tam statutes, of course, are when a private individual
brings suit on behalf of the government for fraud on the
government and in return gets a percentage of the recovery. And
as you noted, it's been under the False Claims Act very
successful in securing recovery of funds on behalf of the
government.
The Vermont case--and I'm not remembering it any more than
that, it was a case from Vermont--I think addressed most of the
Article III issues. The objection was that individual has no
standing, I think, because he doesn't necessarily have an
interest, and what the Court said was that the individual has
standing as a result of the bounty, if you will, the percentage
he gets. That satisfies the standing requirement, so those
objections are out of the way.
I do know that some have raised additional objections under
Article II, which goes to the fact that this might interfere
with the Executive's authority to execute the law. In other
words, you have private individuals bringing suit. I'm not sure
that those issues have been finally resolved, and obviously, if
those cases do come up, I'll want to keep an open mind.
The fact that you mentioned, obviously, about historic
practice, that is something that the Court does look to in
assessing constitutionality. If it's something that the
Founders were familiar with or a practice that they engaged in
and showed no disagreement with, that, while not determinative,
that is a factor that the Court would look at. I don't know if
any of those cases are going to come before the Court, but if
they do, it's one of the considerations that'll have to be
taken into account.
Senator Grassley. Other than the Totten case and the Halper
case, have you ever written or spoken publicly about the issue
of the constitutionality of qui tams or any other provisions of
the False Claims Act, to your memory?
Judge Roberts. I don't remember any, no, Senator.
Senator Grassley. Okay. Judge Roberts, in 1986, while
serving as an Associate White House Counsel, you approved
Reagan administration testimony regarding the Whistleblower
Protection Act of 1986. You probably recall that the Reagan
administration opposed that legislation, which is now law.
Could you explain what role, if any, you had in formulating the
administration's position on the Whistleblower Protection Act?
Judge Roberts. I don't recall any role, Senator. Our
office--the Counsel's office would routinely review testimony
that was about to be given. We were just looking out for
particular constitutional concerns or issues. We generally did
not get into the substance. The substance of that would have
been shaped over in the Justice Department and we would have
really been looking out for anything that we thought infringed
on the constitutional authorities of the President or presented
other consistency issues. But the substance of the testimony is
not something I was involved in.
Senator Grassley. Do you feel that you have any bias
against the False Claims Act or Whistleblower Protection Act
that would impact on your ability to fairly decide cases on
those statutes?
Judge Roberts. No, Senator. I have had some whistleblower
cases, different aspects I do recall coming up in the Court of
Appeals and I think in some cases, we ruled in favor and in
some cases, we ruled against. So I have seen those cases and
had no difficulty fairly and objectively deciding them.
Senator Grassley. Are you against cameras in the courtroom
like Justice Rehnquist was?
Judge Roberts. Well, you know, my new best friend, Senator
Thompson, assures me that television cameras are nothing to be
afraid of--
[Laughter.]
Judge Roberts.--but I don't have a set view on that. I do
think it's something that I would have to--I would want to
listen to the views of, if I were confirmed, to my colleagues--
Senator Grassley. I would suggest then to the Chairman that
we move quickly on that bill before he has got an opinion on
it.
[Laughter.]
Chairman Specter. I intend to do just that, Senator
Grassley, now that I have your support.
Senator Grassley. Thank you.
Chairman Specter. Thank you, Senator Grassley.
Senator Biden?
Senator Biden. Good morning, Judge. How are you?
Judge Roberts. Good morning, Senator. Fine, thanks.
Senator Biden. I went back and looked at something you said
yesterday, which I was reminded of by my son, who has done some
appellate work--nothing like you--and he said, ``I thought I
heard him say this,'' and then I went to the staff and got it.
Yesterday morning you said, ``I went back once and counted
the questions during my half-hour. There were over 100
questions the Court asked.'' So you are not all offended by us
interrupting you like we do. You are used to being interrupted,
aren't you?
Judge Roberts. I am used to being interrupted before the
court, that is for sure, Senator.
[Laughter.]
Senator Biden. Well, we are kind of the court here. We are
kind of the court. You are not entitled to the job, God love
you. You have been nominated and your job is to demonstrate
that there is no presumption, as you well know. So I hope you
won't mind some questions. I promise I won't interrupt if you
give short answers, okay?
Judge Roberts. I'll try, Senator.
Senator Biden. All right. Great. I would like to follow up
on yesterday. I asked you if you agreed there was a right of
privacy to be found in the Liberty Clause of the 14th Amendment
and you said, and I quote, ``I do, Senator. I think that the
Court's expression, and I think if my reading of the press is
correct, I think every Justice on the Court believes that to
some extent or another.'' Is that correct?
Judge Roberts. Yes.
Senator Biden. Now, one of the things that has been
amazing--you are one of the best witnesses that I think has
come before this committee, and I have been here 30-some
years--is that you have convinced the folks who share Senator
Brownback's view that you are going to be just right for them,
and you have convinced the folks that share Senator Kennedy's
view that you are going to be just right for them. And I think
I would like to plumb a little bit more closely this notion of
how you view this right of privacy.
Now, if you take a look at Justice Scalia's comment about
that right to privacy found in the 14th Amendment as it related
to the Casey case, he said the issue is whether abortion is a
liberty protected by the Constitution of the United States. I
am sure it is not because of two simple facts. The Constitution
says absolutely nothing about it and the longstanding
traditions, et cetera.
Then, in that same case, the quote coming from--I have got
to make sure I get the right Justice here--from the O'Connor,
Kennedy, and Souter dissent, they said ``the liberty of the
woman is at stake in a sense unique to the human condition and
so unique to the law. The mother who carries a child to full-
term is subject to anxieties to physical constraints, and to
pain that only she must bear.'' Her suffering is too intimate
and personal for the state to insist without more upon its own
version of the woman's role. Two fundamentally different views
of the right to privacy as it relates to that issue.
In Cruzan, the case relating to whether or not fully
competent adults have the right to refuse unwanted medical
treatment, Justice Scalia said in his opinion, quote, ``that
the Federal court have no business in this field; that American
law has always accorded the State the power to prevent, by
force if necessary, suicide--including suicide by refusing to
take appropriate measures necessary to preserve one's life.''
Justice Kennedy, in Lawrence, as you well--I know you know
all this, but I just want to try to get a sense where you are.
He said, ``Liberty presumes an autonomy of self that includes
freedom of thought, belief, certain intimate conduct. The
instant case involves liberty of a person both in its spatial
and more transcendent dimensions.'' Obviously, fundamentally
different.
And then the same goes when O'Connor said, in Cruzan ``I
agree that a protected liberty interest in refusing unwanted
medical treatment may be inferred from our prior decisions and
that the refusal of artificially delivered food and water is
encompassed within that liberty interest.''
So the point I am making is obvious, that there are very,
very, very disparate views. Can you tell me what side you come
down closer on?
Judge Roberts. Well, Senator, first of all--
Senator Biden. I am not asking you to comment on any case.
Judge Roberts. Well, I can say that it is my view that all
of the Justices--I think if a case like the Glucksberg case in
which a majority subscribe to the view, there is an appropriate
mode of analysis to determine the content of the Liberty Clause
and it does include protection beyond physical restraint and
that that protection applies in a substantive manner.
Now, there are legal theorists, there are judges and
jurists who do not agree with that, who do not agree that there
is a right of privacy protected under the Due Process Clause,
who do not agree that the liberty protected extends beyond
freedom from physical restraint. Their view is that it means
you cannot be basically imprisoned or arrested without due
process and that means only that you get some type of
procedural protection.
That is not my understanding of where the Justices on the
Supreme Court are and it's not my understanding. I believe that
the liberty protected by the Due Process Clause is not limited
to freedom from physical restraint, that it includes certain
other protections, including the right to privacy. As you know,
the Court has tried to map out in a series of cases that go
back to Meyer v. Nebraska and Pierce and all that and in
various instances as the claims have arisen, and that it's
protected not simply from procedural depravation. That is--
Senator Biden. If I may interrupt, that is not the question
I asked you. Thank you for that lesson, and I understand what
you are saying. I am asking you a specific question.
Judge Roberts. Well, and--
Senator Biden. Do you side more within that context with
the views of Scalia and Thomas, which say that consenting
adults do not have, if they are both male or female, do not
have the right to engage in sexual conduct, the State can
determine that--let me put it another way.
My family faced, I am sure many people in this audience's
families have faced a difficult decision of deciding when to no
longer continue the application of artificial apparatus to keep
your father or mother or husband or wife or son or daughter
alive. It is of great moment to the American public. There is a
view expressed by Justice Scalia that there is no right that is
absolute on the part--or no fundamental right that exists for a
family member, assuming the person is not capable of making the
decision themselves, to make that judgment. He says, and I am
speaking in layman's terms, he says the State legislature can
make that decision.
I firmly believe, unless there is some evidence that the
family is incompetent, the husband or the wife, with the advice
of the doctor, should be able to make that decision. What do
you think?
Judge Roberts. Well, Senator, that does get into an area
that is coming before the Court. There is a case pending on the
docket right now that raises the question of whether or not
State legislatures have a prerogative to lay down rules on
certain end-of-life issues--
Senator Biden. It is suicide, isn't it, Judge?
Judge Roberts. Well, in that case, it's the application of
the Federal Controlled Substance law.
Senator Biden. Right.
Judge Roberts. The issue of illness in those cases do come
before the Court. The Glucksberg case raised a similar
question. The Cruzan case that you mentioned, presented it in a
very difficult context of an incompetent individual, no longer
able to make a decision, and the question of how the State law
should apply in that situation. Those cases do come before the
Court.
Senator Biden. Do you think the State--just talk to me as a
father. Do not talk to me--just tell me, just philosophically,
what do you think? Do you think--not what the Constitution
says. What do you feel? Do you feel personally, if you are
willing to share with us, that the decision of whether or not
to remove a feeding tube after a family member is no longer
capable of making a judgment, they are comatose, to prolong
that life should be one that the legislators in Dover, Delaware
should make or my mother should make?
Judge Roberts. No, I'm not going to consider issues like
that in the context as a father or a husband or anything else.
Senator Biden. Well, you did--
Judge Roberts. I think--
Senator Biden. Sorry.
Judge Roberts. I think, obviously, putting aside any of
those considerations, these issues are the most difficult we
face as people, and they are profoundly affected by views of
individuality and moral views, and deeply personal views.
That's obviously true as a general matter. But at the same
time, the position of a judge is not to incorporate his or her
personal views in deciding issues of this sort. If you're
interpreting a particular statute that governs in this area,
your job as a judge is to interpret and apply that according to
the rule of law. If you're addressing claims of a fundamental
right under the liberty, protected by the Due Process Clause,
again, the view of a judge on a personal matter or a personal
level is not the guide to the decision, and--
Senator Biden. Right. Well, Judge, let me ask you then,
with your permission, about your constitutional view. Do you
think the Constitution encompasses a fundamental right for my
father to conclude that he does not want to continue, he does
not want to continue on a life support system?
Judge Roberts. Well, Senator, I can't answer that question
in the abstract because--
Senator Biden. It is not abstract, that is real.
Judge Roberts. Well, Senator, as a legal matter it is
abstract because the question would be in any particular case,
is there a law that applies that governs that decision? What
does the law apply--
Senator Biden. That is the question, Judge.
Judge Roberts. Well, no.
Senator Biden. Can any law trump a fundamental right to
die? Not to commit suicide, a right to decide ``I no longer
want to be hooked up to this machine, the only thing that's
keeping me alive.'' ``I no longer want to have this feeding
tube in my stomach,'' a decision that I know I have personally
made, and many people out here have made, and the idea that a
State legislature could say to my mom, ``Your father wants the
feeding tube removed. He's asked me. The doctors heard it,''
and the State legislature's decided that, no, it can't be
removed. Are you telling me that is even in play?
Judge Roberts. Well, Senator, what I'm telling you is, as
you know, there are cases that come up in exactly that context
so that it is in play, and the sense is that there are cases
involving disputes between people asserting their rights to
terminate life, to remove feeding tubes either on their own
behalf or on behalf of others. There is legislation that States
have passed in this area that governs that, and there are
claims that are raised that the legislation is
unconstitutional. Those are issues that come before the Court,
and as a result, I will confront those issues in light of the
Court's precedents, with an open mind. I will not take to the
Court whatever personal views I have on the issues, and I
appreciate the sensitivity involved. They won't be based on my
personal views. They'll be based on my understanding of the
law.
Senator Biden. That is what I want to know about because
without any knowledge of your understanding of the law, because
you will not share it with us, we are rolling the dice with
you, Judge. We are going to face decisions, you are, and the
American public is going to face decisions about whether or
not, as I said, patents can be issued for the creation of human
life. You are going to be faced with decisions about whether or
not there is a right to refuse extraordinary medical, heroic
medical efforts that you do not want as an individual, and you
are fully capable, mentally, of making that decision. The idea
is that without a specific fact pattern before you, as keeps
getting repeated here, the law is about life, it is about
facts. We are not asking you--there is no fact situation before
you--about whether or not a person, fully mentally capable of
making a decision, chooses to say, ``I no longer want this
feeding tube in my stomach. Please remove it.'' And whether or
not that is a fundamental constitutional right.
Judge Roberts. Senator, that's asking me for a opinion in
the abstract on a question that will come before the Court. And
when that question does come before the Court, the litigants
before me are entitled to have a Justice deciding their case
with an open mind, based on the arguments presented, based on
the precedents presented. I have told you with respect how I
would go about deciding that case. It begins with the
recognition that the liberty protected by the Due Process
Clause does extend to matters of privacy, that it is not
limited to restraints on physical freedom, and that that
protection is protected--it extends in a substantive way, and
not simply procedurally.
I have also explained the sources that judges look to in
determining the content of that privacy protected by the
Liberty Clause. They're the ones that have been spelled out in
the Court's opinion, the Nation's history, traditions and
practices.
And I have explained how judges apply that history,
tradition and practices in light of the limited role of a judge
to interpret the law and not make the law. The limited role of
the judge in light of the prerogatives of the legislature.
Senator Biden. Judge, I understand that. Justice Scalia
says the same thing, and draws a very fundamentally different
conclusion, and O'Connor. So you have told me nothing, Judge.
With all due respect, look, this is--it is kind of interesting,
this kabuki dance we have in these hearings here, as if the
public does not have a right to know what you think about
fundamental issues facing them. There is no more possibility
that any one of us here would be elected to the United States
Senate without expressing broadly, and sometimes specifically,
to our public what it is we believe. The idea that the Founders
sat there and said, ``Look, here's what we're going to do.
We're going to require the two elected branches to answer
questions of the public with no presumption they should have
the job as Senator, President or Congressman, but guess what?
We're going to have a third coequal branch of Government that
gets to be there for life, never, ever, ever again to be able
to be asked a question they don't want to answer. And you know
what? He doesn't have to tell us anything. It's okay as long as
he is''--as you are--``a decent, bright, honorable man. That's
all we need to know. That's all we need to know.''
Look, I only have 3 minutes and 45 seconds left, and by the
way, I would ask permission for the record to introduce the
number of questions asked by Senator Hatch and others, very
specific questions to Justice Ginsburg with very specific
answers on these very questions. I would like to ask for that
to be submitted for the record.
Chairman Specter. Without objection, they will be made a
part of the record.
Judge Roberts. Senator, could I--
Senator Biden. I still have the floor, and I will yield to
you since you can speak after the clock is out and I cannot,
okay? I am sure you understand that. And I am sure if I am ever
before the Supreme Court, you will give me more time and you
will not interrupt me.
[Laughter.]
Senator Biden. Look, here is the point I want to make. I
asked--and I am sure you are not going to answer it--I asked
Justice Ginsburg a question about footnote 6 in the Michael H.
case, and the whole issue there is, as you well know, whether
or not you keep talking--it sounds wonderful to the uneducated
ear, the non-lawyer's ear--that you are going to look at
history and tradition. You and I both know that how you
determine history and tradition determines outcomes.
In that case, as you will recall, there was a question of a
natural father--you could prove by a blood test and DNA that he
was the natural father--of a child he wanted to see, that
happened to be born to a woman who was living with her married
husband, so the child was illegitimate. And so in determining
whether or not there are any visitation rights, there is a
famous footnote there. I am going to do this quickly, I have 2
minutes and 7 seconds.
The Court said, Scalia said in footnote 6, ``Look, you go
back and look at the specific historical precedent, in short--
have bastards ever been protected in the law.'' And then said,
``No, no, no, that's not how you go back. You go back and look
at fatherhood. Was fatherhood ever something that was part of
the traditions and part of the embraced notions of what we hold
dear? Is that worthy of protection?''
Now, Scalia said, ``No, no, no, no, no. I looked up the
record. Bastards have never been protected in English common
law; therefore, there is nothing going on here.'' ``And, by the
way, you should never go back,'' he says, ``and look at the
general proposition has fatherhood achieved a status of
consequence. No, it is `have bastards achieved? ' ''
So, Judge, how do you--I am not asking you about a case.
How do you--do you look at the narrowest reading of whether or
not such an asserted right has ever been protected, or do you
look at it more broadly? What is the methodology you use?
Judge Roberts. I mean, I think you're quite right that that
is quite often the critical question in these cases, the degree
of generality at which you define what the tradition, the
history, and the practice you're looking at. The example, I
think, that I've always found it easiest to grasp was Loving v.
Virginia. Do you look at the history of miscegenation statutes,
or do you look at the history of marriage?
Senator Biden. Thirty-three seconds left. Do you agree with
O'Connor then?
Judge Roberts. Well, I get extra time, you said.
Senator Biden. I know. But I don't. I've got to get it in
now.
[Laughter.]
Chairman Specter. Judge Roberts, when his red light goes
on, you will have as much time as you want.
Judge Roberts. Thank you. The point is that, again, the
Court has precedents on precisely that question, about how you
should phrase the level of generality. And you look at--
Senator Biden. But which precedent do you agree with? There
are competing precedents.
Judge Roberts. Well, you do not look at the level of
generality that is the issue that's being challenged. So, for
example, in Loving v. Virginia, if the challenge is, it seems
to me--and this is what the Court's precedents say. If the
challenge is to miscegenation statutes, that's not the level of
generality because you're going to answer it's completely
circular.
Senator Biden. But that is specific, Judge. The generality
was the right to marry. That is the generality.
Judge Roberts. Well, that's what I'm saying. The dispute is
do you look at it at that level of specificity or broader. And
I'm saying you do not look at the narrowest level of
generality, which is the statute that's being challenged,
because obviously that's completely circular. You are saying
there is obviously that statute that's part of the history. So
you look at it at a broader level of generality.
Now, the only point I was going to make earlier--because I
do think it is an important one. You make the point that we
stand for election and we wouldn't be elected if we didn't tell
people what we stand for. Judges don't stand for election. I'm
not standing for election, and it is contrary to the role of
judges in our society to say that this judge should go on the
bench because these are his or her positions and those are the
positions they're going to apply.
Judges go on the bench and they apply and decide cases
according to the judicial process, not on the basis of promises
made earlier to get elected or promises made earlier to get
confirmed. That's inconsistent with the independence and
integrity of the Supreme Court.
Senator Biden. No one is asking for a promise.
Chairman Specter. Thank you very much, Senator Biden.
Senator Biden. Thank you. Thank you, Judge.
Judge Roberts. Thank you, Senator.
Chairman Specter. Senator Kyl?
Senator Kyl. Thank you, Mr. Chairman. I think this last
exchange is important because it goes back to what we talked
about at the very beginning when some of us in our opening
statements pledged to defend you if you stopped short of
answering every question the way that every Senator felt
important based upon your view that the matter in question
might come before the Court, that the Canons of Judicial Ethics
preclude you from doing that.
A very wise Senator on this Committee once said something.
Let me quote it to you. And, by the way, I contend that he is
still wise.
Senator Biden. I bet I am the wise one.
Senator Kyl. I am sorry?
And this is what he said: ``Judge, you not only have a
right to choose what you will answer and not answer, but in my
view, you should not answer a question of what your view will
be on an issue that clearly is going to come before the Court
in 50 different forms, probably over your tenure on the
Court.''
Now, as I said, that was wise then. It is wise now. It is
the statement of then-Chairman Joseph Biden in the Ginsburg
hearings, and in all sincerity, I do believe Senator Biden to
be wise, and I believe that comment is wise. It is what has
animated your approach to answering probably by now hundreds of
questions that have been asked of you. And you have answered
every question; in some cases, however, you have stopped short
of advising us on what you believe the law to be because you
felt that the matter was going to come before the Court. But
you did not stop there. When permitted, you expanded to tell us
why you thought it was a matter that might come before the
Court and what your general approach to the case would be in
terms of your judicial philosophy, how you would approach
judging the case, but that you did not want to talk about your
view of what the law was, both because the case could come
before the Court and also because it is pretty hard to
formulate in a question all of the factual considerations that
would permit you to know what law would be specifically
applicable to that particular case. And you and I talked a
little bit about the facial challenge to statutes versus the
``as applied'' kind of problem.
So with respect to this last interchange you had with
Senator Biden--and, by the way, I will say again to compliment
my colleagues, if anybody ever contended that Senators were not
both diligent in pursuing what they want to pursue and also
very imaginative, they should watch this hearing because we
have been blessed with the most creative ways of trying to pull
out of you commitments on matters on which Senators would like
you to make commitments.
But as Senator Biden just said--and I am paraphrasing
here--he said without the knowledge of your personal views--he
was talking at the time about end-of-life issues--we are
rolling the dice. And your response to that, as I understand
it, is: My personal views are irrelevant to a case that comes
before me of Jones v. Smith, of X v. Y. What I personally think
about issues has nothing to do with the resolution of the
dispute between those two parties. And were I to let them
intrude, I would not be doing my job as a judge--fairly taking
the facts of their case and then applying the law as I
understand it to be to reach a decision.
Moreover, Judge, isn't it the case that if you were to
state your views on such subjects as they might pertain to a
case that would come before the Court, wouldn't you actually
have to recuse yourself from deciding that case and, therefore,
all of the discussion, all of the effort to get you committed
to a particular point of view, would be for naught, because if
you expressed a particular point of view, you couldn't sit on
the case anyway, or am I incorrect in that?
Judge Roberts. I think that's a concern that other nominees
have raised in the past, particularly given the expression of
views as part of the confirmation process. It's not supposed to
be a bargaining process, and if you start stating views with
respect to particular issues of concern to one Senator, then
obviously everyone is going to have their list. And when that
individual nominee, if confirmed, if the bargain is successful
from his or her point of view and he gets confirmed, he will
have to begin each case not with the parties' briefs and
arguments but with the transcript of the confirmation hearing
to see what he or she swore to under oath was their view in a
particular area of the law or a particular case. And I think
that would undermine the independence of the Supreme Court. It
would undermine the integrity of the judicial process. Every
one of the Justices on the Court today, every one of them
refused to engage in that type of process. And if I am to sit
with them, if I am confirmed, I feel I have to follow the same
approach.
Now, I do think I have been more expansive than most
nominees. I have gone back and read the transcripts, and some
of them would not talk about particular cases even if it were
unlikely that the case was going to come before the Court. And
the reason they gave was, look, it is hard to draw the line. If
I think this case is not going to come before the Court, what
about this one? And maybe that will. And rather than trying to
draw the line, I am just not going to do it. And those Justices
were confirmed.
I have taken what I think is a more pragmatic approach.
If I think an issue is not likely to come before the Court,
I have told the Committee what my views on that case were, what
my views on that case are. You know, perhaps that means I am
in--it is sometimes difficult to draw the line. Perhaps that's
right. But, again, if I make the judgment--and other nominees
may draw the line differently, may have drawn it differently in
the past or differently in the future, the nominee I think has
to be comfortable with the proposition that they're not doing
anything that's going to undermine the integrity of the Court.
Senator Kyl. And I noted yesterday in response to a
question, you said, ``Well, that is the reward for trying to be
more expansive.'' You were talking about Griswold v.
Connecticut, and I thought at the time, boy, he is expressing a
view on a relatively recent case, and at least issues
associated with it are clearly going to come before the Court.
And I wondered, Does that go too far? Does that cross the line?
But your point was the specific issue in the case and the
precise holding of the case are not likely in your view to come
before the Court, and, therefore, you expressed your opinion
about that case and the law underlying the ruling in the case.
So I would agree with you that not only have you attempted
to answer every one of our questions, but you have also
ventured into expressing your personal views on matters that
you didn't think would come before the Court, although, as you
note, it is at least possible that some of them might. So
hopefully you have not gone too far there.
This I think is a great civics lesson. Some of this hearing
should be encapsulated in law school courses to remind us about
the difference between elected officials, who make policy, and
judges, who are not supposed to make policy. I thought the
questioning--I believe it was by Senator Brownback--earlier was
instructive. You noted that the primary check and balance on
the judiciary was its own self-restraint. Many of us believe
that the Court has not exercised appropriate self-restraint in
all cases, and that when it does not, it naturally generates
concern expressed by the citizens of the country as reflected
certainly by their elected representatives. And we do express
that concern. I think the Court has failed to exercise
appropriate restraint in several matters.
One of the things that appeals to me from your approach to
the law is that it appears to be a very traditional approach,
which is that I am not sent there to make law, I am sent there
to take whatever case comes before us and just decide the case.
And that element of self-restraint and modesty is one which I
think should be more the rule than it is today in courts at all
levels. And I would commend that philosophy to all of the
judges.
I think you have expressed it very well, and while I
appreciate my colleagues' desire to try to draw you out on your
personal views about matters, I think you have drawn the line
at an appropriate place. And you have certainly provided us
with a great deal of information in the process--and, again,
partly because you have explained to us, when you could not
completely satisfy a Senator's curiosity, why that was the
case, but still tried to inform us about the basic issues that
might exist in the case, the basic arguments that would be made
on either side, but without giving us a hint as to which one of
those you thought you might come down on the side of.
And I also think it is important that you have totally
eschewed ideology here, saying that your own personal views or
ideology do not have a place in your decisionmaking, and,
therefore, they are pretty irrelevant to the questions that are
asked here.
I have a whole notebook of questions here that, to one
extent or another, have been dealt with, I think, by my
colleagues. And I do not think it serves a purpose to go over
them again. Let me just conclude with kind of a general
comment, but before I do, just try to correct the record on--
not necessarily correct, but add to the record on one very
narrow point. You were discussing, I believe with Senator
Kennedy, the Herrera v. Collins case, and he talked about
innocence claims being heard by the Court, that a prisoner
should have the right to present innocence claims.
I just wanted to ask you: Is it not the case that in
Herrera v. Collins the Court did not address the proper route
for bringing claims based on newly discovered forensic evidence
such as DNA testing? Which is, of course, a relatively new
phenomenon now, but not the issue presented in that case.
Judge Roberts. That's right. There wasn't--I don't know if
they had as much access to that type of evidence back then when
it was argued, but it was certainly not that type of evidence.
It was a new claim that somebody else did it, somebody who had
just died. That was the new claim that they sought to raise at
the last stage there. And I do think any issue arising with
respect to DNA evidence--and those issues are working their way
up through the Court. Those cases would have to be addressed on
their own terms.
Senator Kyl. Thank you.
Well, let me conclude with this point. Some who are
watching might come to the conclusion that there is a lot of
repetition here, and that to some extent there is a lot of
``Senator talk'' expressing concern to you about different
issues that are important to them. Frankly, I think this is a
once-in-a-lifetime opportunity. It is the only time that,
before you take your position on the Court, you will have the
opportunity to be directly lobbied in the political context, in
an appropriate way. We reflect the views of our constituents,
and we have all got different issues on our minds. And there
isn't a one of them that is not a legitimate issue or concern.
I brought up the matter of applying foreign law to American
decisions on our Constitution, for example.
To me it seems appropriate that you hear from us, the
political branch, concerns that we have about the way that the
Court approaches its job. We may be right, we may be wrong. But
it is important for you to hear that. I know that Justices read
the newspapers and so on. But this is a very good forum to have
us express to you concerns that we have about various issues.
And we would not be talking about them if we did not think that
they would come before the Court. So, in a sense, virtually
everything we are talking about, we are trying in some way to
get a point across to you because we believe it is likely to be
decided by you.
And I think that is fine. You need to hear from us what our
concerns are, even though perhaps we are trying to draw you out
in areas that you obviously cannot be drawn out in with respect
to future cases.
It is also important for us to get the feedback from you.
There will not be very many other times that we will have a
group of Senators sit down with the person that will likely be
the Chief Justice of the Supreme Court and have a legal
conversation.
We will have to talk about matters relating to Court
administration. That will be totally appropriate, and I am sure
we will be doing that. But by and large, this is the only
chance we have to have this kind of an interchange with you.
It is illuminating to me, as a student of constitutional
law and someone who has practiced before the Court. I have
learned a lot. Therefore, to those on the outside saying, well,
it looks like a lot of Senators posturing, if they are
listening very closely to your answers, I think they will find
a great deal of meat, of knowledge, of the application of your
wisdom to how you approach judging, and I find it very
consistent with the traditions of our court and the rule of law
in our country and this, therefore, becomes a very good
reminder of what our rule of law is all about, what judging is
based on, and the interrelationship between the representative
bodies of our government and the third branch, which you
represent.
I think this is all very instructive, very informative, and
in my case, at least, with regard to your testimony, very
comforting, because it seems to me that you are following the
great tradition of the Court in your approach to the law, that
you are careful, that you are cautious, and yet you are willing
to look at the circumstances of our contemporary times in
applying your judgment to the law that is before you.
Because I have that confidence, it is my intention to
support your nomination, and because I think it unnecessary to
delve into any other specific questions, I will yield back the
remaining 5 minutes of my time.
Senator Biden. Mr. Chairman?
Chairman Specter. Senator Biden?
Senator Biden. A point of personal privilege, as we say in
this body.
Senator Kyl. On my time, since I had 5 minutes and I
referred to Senator Biden. Please, take my time.
Senator Biden. Thank you. I have been quoted many times
about what I said to Justice Ginsburg. With the permission of
the Chairman, I will just take a second. I would like to read
my whole quote, if I may, and then submit it all for the
record.
Chairman Specter. Senator Biden, you may do that. You can
even have more time. Senator Kyl has given--
Senator Biden. No, no, I don't want to use the time. Let me
just say, here is what else I said. I said, ``Now, I would
hope, as I said to you very briefly, that the way in which you
outline the circumstance under which you would reply and not
reply, that you will not make a blanket refusal to comment on
things because obviously everything we could ask you is bound
to come before the Court. There is not a controversial issue in
this country that does not have a prospect of coming before the
Court.''
Continuing, ``[I]f a nominee, although it is their right,
does not answer questions that don't go to what they would
decide but how they would decide, I will vote against that
nominee regardless of who it is,'' this is continuing the
quote, ``And you can thank Justice Scalia for that.''
At the close of the testimony, I said, ``I would also point
out that my concerns about you not answering questions have
been met. You have answered my questions the second day and
third day. At least from my perspective, you have been as
forthcoming as any recent witness we have had.'' I submit the
entire statement for the record along with the answers to her
questions from Senator Hatch, you, and others.
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Biden. I thank the Chairman for his courtesy and I
thank the witness for listening.
Chairman Specter. It is now 12:30 and a vote, two votes
have been scheduled at this time, so we will take a lunch
recess until 1:45, a quarter of 2:00.
[Whereupon, at 12:30 p.m., the Committee recessed to
reconvene at 1:45 p.m., this same day.]
AFTERNOON SESSION [1:46 p.m.]
Chairman Specter. The Committee will resume.
Senator Kohl, 20 minutes.
Senator Kohl. Judge Roberts.
Judge Roberts. Senator.
Senator Kohl. We spent quite a bit of time yesterday
discussing how you would decide cases, and as we all know, it
is your view that Supreme Court Justices are umpires who are
neutrally deciding cases. I want to discuss with you another
area where I believe your analogy falls somewhat short.
The Supreme Court not only, as you know, has the power to
decide cases and to construe the Constitution, but it also has
the sole and the absolute power to decide which cases it hears,
which cases it decides, which parties get to be heard, and
which parties do not get to be heard. So if you are confirmed,
you will get to choose which cases will be placed on the
Supreme Court's docket with the vote of yourself and only three
other Justices, as you know. Making this choice, your opinions,
your perspectives, and your life experiences obviously matter
quite a bit. Much more than an umpire calling balls and
strikes, you are in that sense a manager who is really setting
the field with players to decide what the menu is going to be
like.
So this power is really quite important, and it is crucial
and it is important that we understand that when we look at
your role in terms of your own description.
In recent times, the Supreme Court has received appeals in
nearly 7,000 cases a year, and as you know, in recent times,
the Supreme Court has heard only about 80 cases a year. In
other words, the Justices choose to hear only about 1 percent
of the appeals that they receive.
My question for you, Judge Roberts, is: Should you be
confirmed, how will you decide which cases will make the cut
and will be heard by the Supreme Court? And what will guide
your complete discretion to choose which cases to hear?
Judge Roberts. I appreciate the question, Senator. It is an
area where I will happily concede that the Justices are not
acting just like umpires in deciding which cases they're going
to hear as opposed to how they're going to decide them. My
perspective has changed a little bit in this area. Certainly
when I was practicing law, a lot of what I spent my time trying
to do was get the Supreme Court to take a case. As you know,
you file these things called petitions for certiorari, which
are really quite extensive arguments about why the Court should
hear your case, having really not that much to do with the
merits, whether it was right or wrong, but just why the Court
needs to issue an opinion in this area. And I thought they
weren't taking enough cases. When I became a court of appeals
judge, I thought you didn't need to have more cases taken up
for review.
But the considerations, some are pretty well established.
The job of the Supreme Court is to ensure the uniformity and
consistency of Federal law, in particular, interpretations of
the Constitution. So the clearest case that the Court should
hear, they should grant certiorari on, as they say, is when two
different courts of appeals are interpreting a law differently.
Obviously, the law should mean the same thing in every part of
the country, and if two different courts take a different view
of the law, that's the kind of case the Court ought to be
taking.
I think the Court should, as a general matter--and, again,
other Justices have expressed this view as well--grant review
in cases in which a lower court strikes down an Act of
Congress. I don't think that's an absolute rule, but certainly
as a general matter, if an Act of Congress is going to be
declared unconstitutional, I think the Supreme Court ought to
be the one determining that as a final matter, and generally
not leave it to a court of appeals.
So those are two categories: when there is a conflict, when
an Act is found to be unconstitutional.
Beyond that--and this is where I agree with you the umpire
analogy does not hold up--there is a lot of discretion in
deciding whether it is the right time to grant review in a
case. The people who practice before the Court talk about the
Court letting an issue percolate a little bit, in other words,
get more than just one or two decisions from the courts of
appeals, wait until others have had a chance to weigh in. The
theory is that makes it more likely the Supreme Court will get
it right if they have the benefit of several decisions from the
lower courts rather than just one. Other cases the Justices
determine that that's not appropriate. It's not appropriate to
wait until the issue develops a little more; they want to look
at it expeditiously. And it's hard to lay down categorical
rules in that area.
I have expressed the view--and it may be a view that I'll
have to be educated on further if I am confirmed, and I am not
stating it as a solid view. I do think there is room for the
Court to take more cases. They hear about half the number of
cases they did 25 years ago. There may be good reasons for that
that I will learn if I am confirmed, but just looking at it
from the outside, I think they could contribute more to the
clarity and uniformity of the law by taking more cases.
I have heard others say they could contribute to the
clarity and uniformity of the law by taking fewer cases, but I
don't subscribe to that view. I think there is room for
additional cases on the docket.
Senator Kohl. I think we agree that it is an enormous
power, that power of decision. It is a very active power. It is
not benign in any way. If Justices, for example, decide not to
hear a case, whatever the merits, that is the final decision.
Is that not correct?
Judge Roberts. That's right. The decision of the court of
appeals stands in that case. Now, it is true that I think the
Justices generally look at their duty and obligation to ensure
consistency in a fairly dispassionate and objective way. In
other words, it doesn't matter how a particular case came out.
If it's different in one part of the country than another, most
of the Justices in my experience readily agree that that's the
kind of case they need to address.
Senator Kohl. I will just refer to two that were taken up
without any reference from any lower court. One was Youngstown
Sheet and Tube, which was, you know, the ability of the
Government to seize a steel mill during a time of war. And, of
course, another one that I'm interested in your comment on is
Bush v. Gore, in which the Court decided to directly insert
itself into a Presidential campaign. I am interested in not
what happened after they decided to do that, but that the
decision they made in terms of its propriety, its impact on the
courts, the Court's standing in the country, you must have
thought about it, I am sure, a great deal when it happened.
I am sure you have an opinion on their decision to enter
that case, and I think we would like to know what that opinion
is.
Judge Roberts. You mentioned first the Youngstown case, and
it is a category--and I think perhaps the Bush v. Gore case,
that perhaps the Justices concluded it fell into that category.
There are certain cases--they don't come along all that often--
that are, by their importance, significant enough for the Court
to take. In other words, they don't fit the description of a
conflict among the Courts of Appeals or an Act of Congress held
unconstitutional, but they are otherwise sufficiently important
that the Court will grant review and take those cases.
Certainly, the Youngstown case was of that sort. It started
out actually in the D.C. Court, the hearing was first there,
and then the Court granted that. But the decision by a
President to seize the steel mills based on--constitutionally,
that's an important enough issue you want the Supreme Court to
issue a final ruling on that.
On the decision in Bush v. Gore and the determination of
whether to grant review in that case, again, that's not
something that--you don't know on what basis the Justices make
a decision to grant review. You just get an order that says
``review is granted.'' In that case you had a decision of a
State court that apparently the Justices thought should be
reviewed, and obviously, expeditious treatment was needed, as I
think it was in the Youngstown case as well. They're capable of
moving expeditiously when an important matter requires them to
do so.
Senator Kohl. I asked you what your opinion of that
decision was at that time.
Judge Roberts. Well, that's an area where I have not been--
I have not felt free to comment, whether or not I agree with
particular decisions or--
Senator Kohl. It is not likely to come up again.
Judge Roberts. I do think that the issue about the
propriety of Supreme Court review in matters of disputed
electoral contests is a matter that could come up again.
Obviously, the particular parameters in that case won't, but it
is a very recent precedent, and that type of decision is one
where I thought it inappropriate to comment on whether I think
they were correct or not.
Senator Kohl. Judge Roberts, one of the most important
constitutional events of our lifetime was the nomination of
Robert Bork to the Supreme Court. Congress chose to exercise
its role to advise, and in this case not to consent, based upon
judicial philosophy and the strongly held opinions of the
nominee. In effect, Congress told the President that we have an
important role to play in the process as well. Do you believe
that the Senate's rejection of Judge Bork in 1987 was a
reasonable and respectable act, or instead do you view it as a
period of unfair partisanship? What were your thoughts about
that case as it unfolded?
Judge Roberts. Senator, I don't think it's appropriate for
me as a nominee to comment on the Senate's treatment of other
nominees, and I would respectfully decline to do that.
Senator Kohl. All right. Judge Roberts, when we met a few
weeks ago in my office, we discussed the Supreme Court's recent
property rights decision. In that case, Kelo v. the City of New
London, the Court found it permissible under the Constitution
for a city to seize private homes against the wishes of their
owners so that a large pharmaceutical company could build a
private industrial park and a research facility. A total of 15
homes were condemned, including a home lived in by an 87-year-
old woman for her entire life, a home that her family had owned
for over 100 years. Many people, including a majority I believe
of people in my State, as well as myself, were quite disturbed
by this ruling which appears to place much private property at
risk by greatly expanding the eminent domain powers in local
government.
We discussed this when you were in my office, and you told
me that you were ``surprised by the decision.'' So could you
expand on it a bit this afternoon and explain why you were
surprised?
Judge Roberts. Well, I did tell you that was my initial
reaction. I remember hearing about the decision driving
actually back from a Judicial Conference with another judge,
and we all learn in law school, one of the first cases you
study is called Calder v. Bull, has a basic proposition the
Government cannot take property from A and give it to B. When I
read the decision, I understood what the majority's position
was, the difficulty of drawing a line between things that are
obviously public use like a railroad, a road, things that are
traditionally the subject of the exercise of eminent domain,
and other activities that are not as clearly within that range
of course.
Justice O'Connor, in her dissent, thought that a line could
be drawn between whether it was available to the public or not,
and that certainly was available. The majority did say that it
was not ruling on the starkest example, in other words, just
determining to take the property from A to B because you think
B could make better use of it. The issue arose, as you noted in
your question, in the context of an urban renewal redevelopment
project, and that may be limited to that context or may not.
I do know there's been extensive legislative reaction to
the decision. I know a number of States have passed laws
already, saying, ``We do not authorize the use of the power of
eminent domain to take--for a use that's going to be from one
private owner to another,'' and that's certainly an appropriate
reaction to the Court's decision in this area.
What the Court is saying, what the majority is saying is
because of the difficulty of drawing a line, this issue is
really left up to the legislature, and if the legislature wants
to draw the line in a particular place, it has that authority.
But it certainly is a decision that was closely divided, 5-4,
and it has gotten a lot of legislative reaction.
The point I would only make is that it's perhaps a good
example of the fact that legislatures, legislators have a
responsibility to protect the rights of the people just as much
as courts, and one way they can protect the rights of the
people in this area, if they think it appropriate, is to
restrict themselves in saying, ``We will not use the eminent
domain power to the broadest extent that the Supreme Court has
said we are authorized to do.''
Senator Kohl. Did I understand from your opinion on whether
or not that case was correctly decided, or are you not--
Judge Roberts. No. Again, that's--particularly since it's
an area they do specifically leave open the question about
whether it applies outside of a redevelopment project. That's
an issue that could come before the Court. It's not one I feel
appropriate to comment on.
Senator Kohl. It would or it would not surprise you if we
had not heard the last of that?
Judge Roberts. It's certainly one of those areas that could
come before the Court again, even in its present form. I know
the author of the majority opinion has said it was an area
where he, as a personal policy matter, wouldn't have exercised
that authority, but, of course, the issue there was the legal
issue, not policy preferences. It could come before the Court
again, yes.
Senator Kohl. You will have a decision to make if it does
rise up to that level. Is it possible that your decision, along
with three other Justices, might be to put that on the docket?
Judge Roberts. That would be one of the decisions that in
the exercise of the cert process, as they call it, short for
the certiorari decision, and that would certainly be an issue
that could come before the Court, and they already have, of
course, four dissenters who may be anxious to revisit it or
not. I don't know. I don't want to presume how they would view
it on an ongoing basis.
Senator Kohl. Judge Roberts, I would like to talk a little
bit about antitrust. I am the Ranking Member on the Antitrust
Subcommittee. To me, antitrust is not some mysterious legal
theory that only lawyers can talk about or understand.
Antitrust is just another word for fair competition. The laws
that we use to protect consumers and competitors from unfair
and illegal trade practice is what antitrust is all about.
Do you agree that government enforcement of antitrust law
is crucial to ensuring that consumers are protected from
anticompetitive practices, such as price fixing and illegal
maintenance of monopolies?
Judge Roberts. Yes, I do, Senator. In fact, when I was in
private practice, one of the cases I handled was the Microsoft
antitrust case on behalf of government officials, the States in
particular. A number of States retained me to argue that case
before the D.C. Circuit en banc. So I certainly appreciate the
role of governments, both State and Federal, in enforcing the
protections of the antitrust laws, because as you know, there
is concurrent authority in that area, the Sherman Act, of
course, on the Federal level and then what people call the
``Baby Sherman Acts'' on the State level.
Senator Kohl. I am glad to hear you say that because on
June 14, 1983, which is more than 20 years ago, in a memo to
the White House Counsel Fred Fielding, you wrote, quote,
``Enforcement of Federal rights is advanced most effectively by
private suits in antitrust cases.'' So isn't it often true that
individual consumers don't have the resources to pursue these
private suits against large corporations, and isn't that why
government enforcement of antitrust is essential? So you would,
perhaps, not be feeling the same way today as you did 22 years
ago when you made that comment?
Judge Roberts. Well, I think it depends on what area you're
talking about. I do think that the system established under the
Sherman Act of private antitrust enforcement, and, of course,
the opportunity to recover additional damages and attorneys'
fees and other aspects, has been an effective tool in enforcing
the law. There are areas, as you mentioned. If the issue is
mostly consumer rights as opposed to business rivals,
government action may be more necessary in those areas as
opposed to the others.
And I know that government antitrust regulators make those
determinations every day, that their resources are best
directed to areas where consumers or attorneys bringing class
actions on consumers' behalf, whatever the reasons were, the
incentive system for private litigation may not be as
effective, and that's often the area where State Attorneys
General, the Justice Department, decide to get involved to
supplement the private enforcement activity.
Senator Kohl. All right. I will just ask one more question
before my time expires and that is on the important role that
the Chief Justice plays as the head of the Judicial Conference,
which is the organization of the entire Federal Judiciary. As
head of the Judicial Conference, the Chief Justice makes policy
recommendations as to legal reform, with respect to legal
reform, reform of court procedures and advocates for the
Federal courts.
What, if you are confirmed, would be your agenda, your
plans, or your policy objectives to advance in connection with
your role as the head of the Judicial Conference?
Judge Roberts. Well, I am familiar with how the Judicial
Conference operates for at least part of its role. I've been on
the Advisory Committee on Appellate Rules. I was there as a
lawyer and I kept on as a judge. In fact, I was slated to be
the Chairman of that Committee starting in October.
So I understand the role in promoting the forum of rules
that apply in the Federal courts, both the appellate rules, the
civil rules, criminal rules, and bankruptcy rules, and evidence
rules, different committees there, and I'm familiar with the
process. They go through the Advisory Committee, a broader
Committee about rules in general. Then they're submitted to the
Judicial Conference for consideration, and it's a very
exhaustive process, but I think also a very responsive one.
Particular problems are identified in practice by
practitioners, by judges. They're submitted to the committees.
They review them. They come up with proposals. It's a very
important part of the functioning of the Federal system and it
affects all the levels, not just the Supreme Court, of course,
but courts of appeals and the trial courts.
Other issues of concern, obviously pressing issues,
concerns with respect to security in light of different
developments. Those are addressed at the Judicial Conference.
Any need for legislative action that the courts feel is
appropriate.
I have to tell you that if I were to be confirmed, as an
initial matter, I think my primary posture is going to be one
of listening because there's obviously much I have to learn
about matters of concern to different judges, different courts
around the country, and that's the good thing about the
Judicial Conference, of course. They bring in judges from
around the country to make sure that you get a national
perspective on what needs to be done and you're not just
focused on issues here in Washington or anywhere else.
But it's an area where I think I will have to listen a lot
at the outset before being presumptuous enough to have a
particular agenda.
Senator Kohl. I thank you, Judge Roberts. I thank you, Mr.
Chairman.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator Kohl.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Judge, good afternoon.
Judge Roberts. Good afternoon.
Senator DeWine. As you know, Judge, our Constitution
created Federal courts with limited powers. In fact, Article
III of the Constitution only gives the Federal courts the power
to decide cases and controversies. This case and controversy
requirement means that Federal courts will only hear real
lawsuits involving real parties with real injuries. We have
talked about this in the last several days.
This has led to the development of a number of different
rules about when people can bring lawsuits in Federal court and
when they cannot. One of these rules, as you well know, is the
principle of standing.
You talked about this in 1993 in a law review article you
wrote in the Duke Law Journal. You said the following, and I am
going to quote briefly from this. ``The legitimacy of an
unelected life-tenured judiciary in our democratic republic is
bolstered by the constitutional limitation of that judiciary's
power in Article III to actual cases and controversies.'' You
went on later to state the following. ``The Article III
standing requirement ensures that the court is carrying out its
function of deciding a case or controversy rather than
fulfilling the executive's responsibility of taking care that
the laws be faithfully executed,'' end of quote.
Judge, could you elaborate on your statements today and
maybe explain briefly what the doctrine of standing is and what
that doctrine is really so important to our constitutional
system?
Judge Roberts. Well, Senator, your question really brings--
ties together a few things we've already touched on.
I don't remember if it was you or someone else who
referenced Justice White's description of his obligation, what
it was, and his answer was, ``To decide cases.''--
Senator DeWine. That was me.
Judge Roberts. And the basis for the institution of
judicial review, as explained by Chief Justice John Marshall in
Marbury v. Madison is similarly grounded on the obligation to
decide cases and controversies, because if you look at the
Constitution it doesn't say in Article III that the judicial
branch is established in order to tell us all what the
Constitution means. It says that the judicial branch is
established to decide cases and controversies arising under
this Constitution and the laws.
And that is the basis for the authority to interpret the
Constitution. As Marshall explained, we have to decide a case.
If the argument is that it's inconsistent with the
Constitution, we have to decide that. Therefore, we have that
authority, and I believe that's consistent with the intent of
the Framers.
But it does mean--and this is the point I was trying to
make in that small little Law Review comment--that judges
should be very careful to make sure they've got a real case or
controversy before them, because that is the sole basis for the
legitimacy of them acting in the manner they do in a democratic
republic. They're not accountable to the people. As judges they
have the obligation to decide cases according to the rule of
law.
So first make sure you've got a real case, and a real case
is not simply, you know, I'm interested in this area, I don't
like what the Government's doing or I don't like this law, and
so I'm going to go to court. What the standing doctrine
requires is that you actually be injured by what the Government
is doing, injured by Congress's action. Now, the injury doesn't
have to be economic. The Supreme Court has explained in cases
like Sierra Club v. Morton, it can be aesthetic, it can be
environmental, it can cover a wide range of injuries, but you
do have to show some injury that separates you from the general
public, so you're just not voicing a gripe, you're trying to
get a case decided. That's the importance of the standing
doctrine.
Senator DeWine. Appreciate the explanation, Judge. Let me
ask you a more personal question. Last time you appeared before
our Committee you were a lawyer in private practice. Since that
time you have spent approximately 2 years on the Court of
Appeals for the District of Columbia, a new experience for even
a experienced practitioner like you. What surprised you about
the last 2 years of judging?
Judge Roberts. Well--
Senator DeWine. If anything.
Judge Roberts. Well, I think I had the biggest surprise on
the first day that I heard cases. Obviously, it's opening day
and the first day of my career, so I prepared as well as I
could. And the arguments were great. And went into the
conference room, and I had my notes and all the books. It's
just the judges, you know, just the three judges. We bring the
record in. We're surrounded by the U.S. reports, by our Court
of Appeals reports, by the United States Code that you folks
have written.
And I was ready. I'm sitting there, and I remember the
Chief Judge, who by tradition sits on a new judge's first day,
and he was there and another judge. And I waited a while, and I
looked and they were still waiting. I waited a while longer,
and they were still waiting. And finally, the Chief Judge
advised me that the tradition was that the junior judge goes
first at these discussions, and so I was kind of put on the
spot right off the bat.
And part of what that conference was like and throughout,
really has--I don't know if I'd say a surprise, but it's been
illuminating to me. The judges really do roll up their sleeves
and try to find the right answer. It's just the judges. But as
we say, ``Well, we think this case is controlled by the Smith
case,'' we get out the Smith case. We open it up and look at
it, reading over each other's shoulders and seeing exactly what
it says. If somebody says, ``Well, but in this case under the
record there was no evidence about this or there was no
objection raised about that,'' well, you get out the record and
you look, and there at page 223, you point to it and say,
``Well, here's where the objection was raised.''
And the judges are very open. It's a very encouraging part
of the process from my point of view. Nobody goes in there with
set views. They want the benefit of the collegial process, the
benefit of each other's views, and you have to be able to
substantiate your position. There's no place for rhetoric.
People are pointing to the law, and I found that a very
encouraging part of the process, what goes on in the conference
room, which was of course a part of the process that I hadn't
participated in before.
Senator DeWine. That is something that we do not see
either.
Judge Roberts. Right.
Senator DeWine. No way of seeing that.
Judge Roberts. Right. And the positive part of that process
to me was that nobody was invested in anything other than
getting the right result, and they are prepared to be
convinced, contrary to initial impressions, and I was as well.
It's, I found, a very encouraging part of the process.
Senator DeWine. Judge, let me ask you--moving to the
administrative law issue. As you know, in the 18th and 19th
centuries we really did not have the governmental agencies that
have such a profound influence, for better or worse, on the
lives of Americans today, daily lives of Americans. Today
administrative agencies set workplace safety rules, establish
environmental regulations, lay down traffic safety standards,
just to name a few things.
As far as I know there is no specific article in the
Constitution dedicated to the administrative state that we live
in today. In your view, what is there in the text or history of
the Constitution that supports the growth of this
administrative state that we live in? Is the growth of the
administrative state an example of the Constitution being
amended simply out of necessity, or is the administrative state
consistent with the Constitution as drafted by our Founding
Fathers? How do we get to where we are from a constitutional
point of view?
Judge Roberts. Well, you know, we all of course begin in
high school civics with the notion of three branches of
Government, the executive, the legislative and the judicial,
and we study that. And then only occasionally do people look at
the real world and say, ``Well, what is this agency? What is
that? Is that legislative or is that judicial or is that
executive?'' Of course, the answer is, well, it's a little bit
of each. It's exercising power delegated by Congress. It's
executing it in a particular way. It's issuing regulations that
have the force and effect of law, and quite often it's
adjudicating particular disputes.
The activities of the administrative agencies are of course
the bulk of what judges on the Court of Appeals for the D.C.
Circuit do, and the principles of administrative law that have
recognized the legitimacy of these agencies, and sought to
ensure that their exercise of authority is consistent with
constitutional provisions by basically--I mean I know the issue
can seem arcane to many people, but the fundamentals of
administrative law really go back to the basic principles of
justice, is someone being given an opportunity to be heard? Is
someone being treated fairly? Is someone who's making a
decision doing it for a rational reason or an arbitrary reason?
These are the same basic principles that have animated the
common law system since the time of Lord Cook, and they are
being applied here as well. The objection is often, ``This
agency made a decision without adequately hearing our
concerns,'' or ``This agency made an adjudicatory decision
without hearing the record evidence,'' or ``They did not
explain.'' That's the basic requirement of administrative law,
explain your decision. That's the limitation on arbitrariness,
and the agency didn't explain why it's doing this.
The notion that even in these arcane areas our legal system
insists upon the observance of these basic requirements of--I
don't want to say due process as a technical term, but that's
the principle that is being applied. That goes a long way to
explaining how these agencies have been accepted into the
constitutional system, because they have been required under
principles of administrative law to comply with these basic
precepts of procedural regularity.
Senator DeWine. Judge, let me turn to the area of
antitrust, a matter that is very important for the businesses
and the consumers of this country. For over 100 years our
antitrust laws have helped consumers by ensuring their economy
is competitive and vibrant. Our antitrust laws are the oldest
in the world, and many people, including me, think they are the
best in the world. In fact, I am proud to say that John
Sherman, Republican Senator from my own home State of Ohio,
wrote the first antitrust law back in 1890.
Over the past 20 years we have achieved a great deal of
consensus I think about how the antitrust laws should be
enforced, Democrat and Republican administrations. As the Chair
of this Committee's Subcommittee on Antitrust, Competition,
Policy and Consumer Rights, I have worked very closely with
Senator Kohl who asked you some questions about antitrust. I
think we have worked in a bipartisan way to ensure that
consumers and competition are protected.
It is a simple goal, but it is not always easy to achieve
or put into practice. For example, recently, the rise and
expansion of the Internet and the technological explosion of
the so-called new economy have led to a marketplace that is
changing faster and more often than we have really ever
experienced before.
Judge, what challenges do you think the courts face in
trying to square our old antitrust laws as they are currently
written with new business strategies and the high-technology
markets, and do you think that these laws give courts enough
guidance to deal with these new economy issues?
Judge Roberts. Well, that was really the basic issue that I
faced in the Microsoft case before the D.C. Circuit en banc.
There was a lot of argument, academic commentary back and
forth, the idea this is a whole new area. You can't apply the
old principles. They don't work in this context. You need to do
something different, the so-called new paradigm and all that.
At least the argument that I tried to make on behalf of the
States was that the basic principles are the same. The Sherman
Act was, as many have said, a charter of economic freedom and
that those basic principles do have to be applied regardless of
changes in the economics of the underlying businesses or the
structure of the markets. Obviously, it requires a great deal
of sensitivity on the part of the judges and it's a really
challenge for the lawyers sometimes to be able to understand
the economics, to be able to explain them to the judges, and
judges appreciate that.
But my basic instinct, and it's nothing more than that, is
that the principles are there and the issue is simply
application in a new context.
Senator DeWine. Good. Thank you. Judge, just one final
comment. Yesterday, Senator Grassley asked you whether you
think that there is, and I quote, ``any room in constitutional
interpretation for the judge's own values or beliefs.'' In
response, you said, and I quote, ``No, I don't think there is.
Sometimes it's hard to give meaning to a constitutional term in
a particular case. But you don't look to your own values and
beliefs. You look outside yourself to other sources,'' end of
quote.
You continued by saying that, and I quote, ``Judges wear
black robes because it doesn't matter who they are as
individuals. That's not going to shape their decision. It's
their understanding of the law that will shape their
decision,'' end of quote.
Now, Judge, I know what you meant by that answer. Judges
should not impose their own preferences from the bench. In
fact, I said pretty much the same thing in my opening statement
on Monday.
But, Judge, putting on a black robe does not mean that a
judge should lose his character. You, sir, have a perfect
resume and certainly an outstanding professional career. But a
Supreme Court Justice is more than just impeccable academic
credentials and impressive accomplishments. President Bush
nominated John Roberts, the man. America has gotten to know
John Roberts, the man. And I am quite sure that the Senate is,
in fact, going to confirm John Roberts, the man.
Over the past several months, we have examined your life,
met with you in private, and now question you about your
beliefs. Throughout this time, your honesty, your integrity,
your wisdom, your judgment, and dare I say, yes, your values
have shown through.
I would just say, sir, please don't check any of that at
the door when you walk into the Supreme Court. By becoming John
Roberts, the Chief Justice, don't ever forget to be John
Roberts, the man.
I think this country needs you to remember how you got here
and who you met along the way. We need you to bring to the
Court your compassion and your understanding for the lives of
others who haven't been as successful as you have been. We need
you to bring to the Court your strong commitment to equal
justice for all. And we need you to always remember that your
decisions will make a real difference in the lives of real
people.
When you put on that black robe and assume your spot on the
Supreme Court, you will surely bring with you your heart and
your soul, the values you learned from your parents and others
that you learned as you grew up in the wide open fields of your
youth. Those values are strong, they are true. The President
saw them when he nominated you and we have certainly seen them
this week, and I must say, sir, that they must never leave you.
Justice Felix Frankfurter gave this same advice to his
colleagues in 1949. ``There comes a point,'' Justice
Frankfurter wrote, ``where this Court should not be ignorant as
judges of what we know as men.''
Great Justices are more than just legal automatons, legal
technicians. They are more than just that. And though they lose
their individuality when they put on a black robe, great
Justices never forget who they are. I wish you well. Thank you,
sir.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you very much, Senator DeWine.
Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman.
Judge, I subscribe to much of what Senator DeWine said. I
want to tell you what I think perhaps a little differently and
personally.
Senator Graham last night pointed out that Justice Scalia
was confirmed by 98 votes of this body, and I thought then and
I think now of how different the days were in 1986. There is so
much water under the dam since then. The nation is divided. It
is polarized. It is about 50-50. We are at war. Executive
authority is very much on people's minds. The law as it relates
to war, the Geneva Conventions, Conventions Against Torture,
all of these things are very much on everyone's minds. We have
seen in the last 10 years 193 five-to-four decisions of the
Court, which suggests that on major questions, the Court is
also very divided.
So in comes this young Justice. I was one on our side who
voted for you for the D.C. Circuit Court. I did so because
there were so many testimonials about what a fine lawyer you
are, what a fine human being you are. And I voted for you, but
there is more in this vote.
Senator DeWine just spoke about the man as opposed to the
legal automaton. Yesterday morning, you spoke, I thought
eloquently, in answering Senator Specter's questions on Roe.
You discussed stare decisis as fully as I have ever heard it
discussed. I am not a lawyer. I learned a lot from listening to
you. You discussed the right to privacy. You were very full and
forward speaking. And then after lunch, it was as if you shut
down and became very cautious.
So my first question, did anybody caution you between the
morning and the afternoon sessions?
Judge Roberts. No, Senator. No.
Senator Feinstein. Has anyone, when you were being
interviewed for this position, ever asked your opinion on Roe?
Judge Roberts. No.
Senator Feinstein. Okay. That is good to know. From 1973 to
2005, 32 years, over three generations of women have come
really to feel that finally they have some autonomy over their
body. Women are all different. Many of them are very pro-life.
Many are pro-choice. People have different religious views,
moral views, so we have this big diverse population of women.
The growth of women's ability to succeed has been enormous, I
mean, I went into the workforce at the same time Sandra Day
O'Connor did with a year's graduate work. The door was closed.
It is now open and women are so lucky.
And it seems to me that the living Constitution is that
each person in this great country, man or woman, rich or poor,
white or black, whatever it might be, can really reach their
full potential. And I guess what has begun to concern me a
little bit is Judge Roberts, the legal automaton, as opposed to
Judge Roberts, the man, because I have heard so many times, ``I
can't really say because it may come before me,'' and yet I
don't expect you to say what you would do with Roe one way or
another.
But I do expect to know a little bit more about how you
feel and how you think as a man, because you are a very young
man to be Chief Justice. You could be Chief Justice for 40
years. That is a very long time.
And because of the division, and because there is also a
lot of fear out there where this new Court, now with
potentially two new Justices, is going to go, we want to know
whether you have got the ability to bring the new Court
together, to end the five-to-four decisions, to see that big
decisions are made so that they represent a much greater
consensus. I am trying to find out and see, are those qualities
really there?
I was interested in a colloquy you had with Senator Biden
on the end of life. He asked a number of legal questions and
then says, okay, just talk to me as a father and tell me what
you think. Now, I have been through two end-of-life situations,
one with my husband, one with my father, both suffering
terrible cancers, a lot of pain, enormous debilitation.
Let me ask this question this way. If you were in that
situation with someone you deeply love and you saw the
suffering, who would you want to listen to, your doctor or the
government telling you what to do? To me, it is that stark
because I have been through it.
Judge Roberts. Well, Senator, in that situation, obviously
you want to talk and take into account the views and the
heartfelt concerns of the loved one that you are trying to help
in that situation because you know how they are viewing this.
You know what they mean when they are saying things like what
their wishes are and their concerns are. And, of course,
consulting with their physician.
But it seems to me that in that situation, you do want to
understand and make sure that you appreciate the views of the
loved one, and only you can do it because--
Senator Feinstein. That wasn't my question.
Judge Roberts. I'm sorry.
Senator Feinstein. I'm trying to see your feelings as a
man. I am not asking you for a legal view--
Judge Roberts. Well, I wasn't trying to give a legal view.
My point was that, obviously, you look to the views of the
person involved, and if it's a loved one, you are the one who
is in a position to make sure that you understand their views
and can help them communicate those--
Senator Feinstein. How would you feel if you were in that
position?
Judge Roberts. An end-of-life situation? You know, I do
think it's one of those things that it's hard to conceptualize
until you're there. I really would be hesitant to say, this is
what I would definitely want done or that is what I would
definitely want done. You do need to confront that and
appreciate all of the different concerns and impulses and
considerations--
Senator Feinstein. And every situation is different.
Judge Roberts. Yes. It's one of those things, I think it's
difficult to put yourself in that position and say, well, with
any degree of confidence, if I were suffering and confronting
the end of life, this is what I would want to do, or that is
what I would want to do. I just--you can theorize it and try to
come up with your views or how you would--
Senator Feinstein. That is right. All I am saying is you
wouldn't want the government telling you what to do.
Judge Roberts. Well, I'm happy to say that as a general
matter--
Senator Feinstein. That there should be a basic right of
privacy.
Judge Roberts. Well, that's getting into a legal question
and you don't want--
Senator Feinstein. Okay. I won't go there. Let me go
somewhere else.
The Commerce Clause, the 14th Amendment, Lopez, which began
a chain of about 36 cases striking down major pieces of
legislation. It is not easy to get a bill passed here. I mean,
there are hearings, there are discussions, there are markups.
There is one House, there is another House, there is a
President. It goes through most of the time scrubbed pretty
good before it gets to the President.
The Gun-Free Schools Zones Act was struck down in 1995, an
impermissible use of the Commerce Clause. In 1996, Moses Lake,
Washington, a shooting in a school. In 1997, Bethel, Alaska,
principal and one student killed. In 1997, Pearl, Mississippi,
two students killed and seven wounded by a 16-year-old. In
1997, West Paducah, Kenntucky, three students killed, five
wounded. Stamps, Arkansas, two students wounded. Jonesboro,
Arkansas, 1998, four students, one teacher killed, ten others
wounded outside Westside Middle School. Edinborough,
Pennsylvania, one teacher killed, two students, and on and on
and on. An impermissible use of the Commerce Clause to prohibit
possession of a weapon in and around schools. Now, at what
point does crime influence commerce?
Judge Roberts. I think it does, and one of the things
that's important to understand about the Lopez decision as the
Court analyzed it, and again, I'm not taking a position on
whether it was correctly decided or not--
Senator Feinstein. Right.
Judge Roberts.--but as the Court analyzed it, one of the
things about the Act is that it did not have what's known as a
jurisdictional requirement. It didn't have a requirement that
the firearm be transported in interstate commerce, a
requirement that I would think it would be easy to meet in most
cases because--
Senator Feinstein. But the firearm is transported in
interstate commerce, maybe not when that student had it, but to
get to the student, the firearm has been transported in
interstate commerce.
Judge Roberts. My point is that the fix in Lopez, all that
the Court was saying was missing in there, or what was
different about Lopez than many of the other cases was that
lack of a jurisdictional requirement. And if the Act had been,
as I understand the Court's analysis, if the Act had required
that, which I think, again, it's fairly easy to show in almost
every case--as you say, these guns are transported in
interstate commerce--then that would have been within the
Congress's power under the Commerce Clause.
I think it was an unusual feature of the legislation that
it didn't have that requirement as so many laws do. As you
know, it often says, you know, in interstate commerce, and
that's, at least as I understand the Lopez decision, what made
it unusual.
Senator Feinstein. That is very helpful. You might get it
back again someday with that fix.
Let me turn to something else that Senator Leahy asked a
number of questions on, and that is the Constitution and
Executive power. I am looking for the section, but the
Constitution very clearly says that any treaty is treated as
the supreme law of the land, right, and that no State or
official can abrogate it--
Judge Roberts. Right.
Senator Feinstein.--which gives it the total weight of law.
Can a President, then, decide not to follow a treaty?
Judge Roberts. As a general matter, the answer is no. The
treaty power--as long as it's ratified according to the
requirements in the Constitution, by two-thirds of the Senate,
you're perfectly correct. It is, under the Supremacy Clause,
the supreme law of the land.
Now, I don't know if there are particular arguments about
Executive authority in that area with which I'm not familiar,
and I don't mean to state categorically, but my general
understanding is that treaties that are ratified--and, of
course, we have treaties that aren't ratified and Executive
agreements that aren't submitted for ratification and so on,
but a treaty that's ratified by the Senate under the Supremacy
Clause is part of the supreme law of the land. Now--
Senator Feinstein. So the Conventions Against Torture and
the Geneva Conventions would apply?
Judge Roberts. Yes. Now, there are questions, of course,
that arise under those and have arisen under those about
interpreting the Conventions and how they apply in particular
cases to non-parties to the Convention and so on, and as you
know, those cases have been coming up and are being litigated.
But that's an issue of what the Convention means in a
particular case, not whether, as a general matter, a treaty is
binding.
Senator Feinstein. Let me take you to yesterday morning and
stare decisis, because you specifically discussed, when you
were asked about Roe and Casey, precedent, workability,
reliance, pragmatic considerations, changed facts or
circumstances, and whether the underlying legal or
constitutional doctrine would still be valid. Are there any
other factors that you think should be considered?
Judge Roberts. Well, the Court has been somewhat
inconsistent on some other factors. They, for example, talk
about in some cases the length of a precedent, the idea that
the longer it's been on the books, the more people have
conformed their conduct to it. In other cases, they've
suggested that's not such an important consideration. In Payne
v. Tennessee, the case that it noted how closely divided the
Court was in the prior case as a factor, but in other cases the
Court has said that's not a major consideration.
So I put those factors on the table simply because in some
cases, the Court looks to them. In others, it doesn't. But I
think the ones I mentioned yesterday are ones that apply in
every case, including the settled expectations, the
workability, whether the doctrinal basis of a decision had been
eroded.
Senator Feinstein. Yesterday, in answering Senator Specter
on this very point, when you referred to Payne v. Tennessee,
you did point out there were other considerations that come
into play and they are laid out again in Dickerson and in other
cases, Payne v. Tennessee, Agostini, and a variety of decisions
where the Court has explained when it will revisit a precedent
and when it will not.
Judge Roberts. Yes.
Senator Feinstein. When do you think it should and should
not?
Judge Roberts. Well, I do think you do have to look at
those criteria, and the ones that I pull from those various
cases are, first of all, the basic principle that it's not
enough that you think the decision was wrongly decided. That's
not enough to justify revisiting it. Otherwise, there'd be no
role for precedent, no role for stare decisis.
Second of all, one basis for reconsidering it is the issue
of workability. If a precedent has turned out not to provide
workable rules, if courts get different results in similar
cases because they--
Senator Feinstein. Or if another case like Casey finds that
Roe is workable--
Judge Roberts. Well, again, that's a different--that is a
precedent of its own--
Senator Feinstein. Right.
Judge Roberts.--that obviously would be looked at under
principles of stare decisis.
The issue of the erosion of precedent, if you have a
decision that's based on three different cases and two of them
have been overruled, maybe that's a basis that justifies
revisiting the prior precedent.
The issue of settled expectations, the Court has explained
you look at the extent to which people have conformed their
conduct to the rule and have developed settled expectations in
connection with it.
Perhaps the discussion earlier we had about the Dickerson
case is as good example of that, where the Chief Justice just
thought Miranda was wrongly decided, but explained that it had
become part of the established rules of police conduct and he
was going to respect those expectations.
Senator Feinstein. Now, yesterday, you said this. ``I agree
with the Griswold Court's conclusion that marital privacy
extends to contraception and availability of that. The Court
since Griswold has grounded the privacy right discussed in that
case in the liberty interest protected under the Due Process
Clause.''
Do you think that right of privacy that you are talking
about there extends to single people as well as married people?
Judge Roberts. The courts held that in the Eisenstadt case,
which came shortly after Griswold, largely under principles of
equal protection, and I don't have any quarrel with that
conclusion in Eisenstadt.
Senator Feinstein. Okay. Do you think that that same right
extends beyond family choices then about a child's education?
Judge Roberts. Well, that's where it actually got started
80 years ago, in the earliest cases. Meyer and Pierce involved
questions about how to raise children, whether you could teach
them a foreign language, whether you could send them to a
private school. And those decisions are really what started
that body of law.
Senator Feinstein. I have another question I could ask, but
you won't answer it, unless--
Senator Leahy. Give it a try, Dianne. Go ahead.
[Laughter.]
Senator Feinstein. Does it cover the right of a woman to
decide whether to continue her pregnancy?
Judge Roberts. Well, Senator, as I've explained, that is an
area--
Senator Feinstein. That could come before you--right. That
message has been well conveyed.
Could I ask you one question? I think I will have time. In
Acree v. Republic of Iraq, this was the case where 17 U.S.
prisoners--Americans--suffered severe beatings, starvation,
mock executions, dark and unsanitary living conditions, et
cetera, during the First Gulf War. And they sued the Government
of Iraq, the Iraqi Intelligence Services, and Saddam Hussein
for their brutal and inhumane treatment. The veterans won their
case in district court in July of 2003. They were awarded $959
million in damages.
After the judgment, the Justice Department intervened in
the suit to contest the district court's jurisdiction. The
specific issue involved a statutory interpretation of the
Emergency Wartime Supplemental Appropriations Act passed in
2003. Justice argued that the statute gave the President the
authority to change Iraq's designation as a state sponsor of
terror and thereby relieve it after the fact of its
responsibilities for prior acts of terror.
You wrote a concurring opinion in favor of overturning the
district court's judgment. Although you agreed with the other
two judges on the panel that the judgment should be reversed,
you alone adopted the Department of Justice's argument that the
statute granted the President total power to absolve Iraq of
liability. You reached this conclusion while acknowledging that
the question of statutory interpretation is close.
May I ask my question?
Chairman Specter. Yes, you may finish your question.
Senator Feinstein. Do you believe that when, as in Acree,
there is a close question of interpretation of a statute
touching upon a foreign policy that the Executive deserves
total deference?
Judge Roberts. Oh, no, Senator. Whether the question is
close or not, I don't think there's any situation where a court
concludes that the Executive deserves total deference, and that
was not the basis of my decision.
The judges were unanimous that the veterans were not
entitled to relief. The panel was chosen from what happened to
be appointees of three different Presidents. The view was
unanimous that they were not entitled to relief. The other two
judges concluded there was no cause of action available to
them. I concluded that there was no jurisdiction and wrote
separately.
The recognition that it was a close question is also
reflected in the view of the other two judges in addressing my
concern. They acknowledged that it was a close question, and I
agreed with that. But you did have legislation that said that
the President can determine that these laws do not apply if he
makes a determination under the criteria set forth in the
statute, and he had done that, and my conclusion that that
extended to the provision that otherwise would have allowed
suit.
The other two judges disagreed. They thought there was
jurisdiction, but then concluded there was no right of action.
So the end result of both of our positions was the same. But it
was not a question of deference. It was a question of
interpreting the legal authority and consequences of an Act
that this body had passed and the President's finding under
that. When it comes to interpreting questions of law, I go back
to Marbury v. Madison. That is emphatically the province and
duty of the judicial branch. We don't defer to the Executive.
We don't defer to the legislature in making that final decision
about what the law is.
Senator Feinstein. If you get confirmed, maybe you will
defer to the legislative a little bit. Thank you.
Thank you, Mr. Chairman.
Judge Roberts. Just to clarify, we certainly defer in the
standards of review to make sure that we're not--but the final
decision about what's constitutional or not rests with the
judicial branch. The policy judgments, we certainly defer to
the legislature.
Senator Feinstein. Thank you.
Chairman Specter. Thank you, Senator Feinstein.
Senator Sessions?
Senator Sessions. Thank you, Mr. Chairman. And thank you
for your leadership as we move forward expeditiously, I think,
today and I think in a helpful way. I think the hearings have
been very good and, Judge Roberts, I salute you for your
excellent manner and your forthrightness and professionalism as
you answer these questions.
You know, I hope we are moving away, Senator Feinstein,
from divisiveness. In some ways, we do have a divided country.
But in other ways, I think we have the potential to move
together, and I frankly believe that one thing that causes
divisiveness and frustration and angst is when the Supreme
Court were to render an opinion that really is more a political
or social policy decision rather than a legal decision. And
when they say it amounts to the Constitution, a constitutional
provision, then that Supreme Court opinion can only be changed
by two-thirds of both Houses and three-fourths of the States.
Do you understand that danger, Judge Roberts, in opinions?
And is that perhaps one reason you think a judge should show
modesty?
Judge Roberts. Well, it's part of what I mean when I say a
certain humility should characterize the judicial function.
Judges need to appreciate that the legitimacy of their action
is confined to interpreting the law and not making it. And if
they exceed that function and start making the law, I do think
that raises legitimate concerns about legitimacy of their
authority to do that.
Senator Sessions. Well, I would observe that the American
people are beginning to believe that is occurring, and I think
it does threaten legitimacy of the Court in a way that all of
us who love the law should be concerned. And I do love the law,
and I am a big critic of the courts on these kinds of activist
cases. But I have practiced full-time before Federal judges,
and as I said earlier, I believe day after day justice is done.
You have said that before your court you are impressed with
the objectivity and fairness that the judges bring. Is the
ideal of blindfold justice, a neutral umpire, is that a
romantic, naive ideal, or is that something that you believe we
can and should strive to achieve in America?
Judge Roberts. Well, I do know that there are sophisticated
academic theorists, people who spend a lot more time theorizing
in this area than I do, and a lot smarter than I am addressing
these issues who--some of whom conclude that in particular
cases it's difficult to do, it's difficult to avoid making the
law while you're interpreting it, and they kind of throw up
their hands and suggest that we shouldn't even try, therefore.
I don't agree with that. I think as a practical matter, as
a pragmatic matter, judges every day know the difference
between interpreting the law and making the law. Every day
judges put aside their personal views and beliefs and apply the
law. Whether the result is one they would agree with as a
legislator or not agree with, the question is what the law is,
not what they think it should be.
I've seen that on the court of appeals. I've seen that as a
practicing lawyer before the court. That is the ideal. I'm sure
judges, I'm sure Justices don't always achieve it in every case
because it's a human endeavor and error is going to infect any
human endeavor. But that is the ideal, and I think good judges
working hard can not only achieve it but also achieve it
together in a collegial way and benefit from the insight and
views of each other.
Senator Sessions. Well, I thank you for that, and I would
share those views. And I absolutely believe the strength of our
Nation is our good legal system.
We have talked about the Commerce Clause, and there has
been a lot of criticism of some of the cases. I think there
have only been two significant Commerce Clause cases maybe in
the last 40 years: Lopez and Morrison. Senator Feinstein and
you had a nice exchange about Lopez. I would certainly agree
with your analysis. Had the Congress placed in there a
requirement that the firearm had been traveled in interstate
commerce, I believe that statute would have been upheld. We
could pass it again with that simple requirement, and virtually
every firearm will have traveled in interstate commerce. A few
States have manufacturers. When I was a Federal prosecutor, I
prosecuted a lot of those cases. As a young prosecutor, I was
sort of an expert at it in the 1970s, and I proved sometimes
the interstate commerce by simply putting an agent on saying
there was no gun manufacturer in Alabama, or it said ``Made in
Italy'' on it. I remember I got that affirmed one time as proof
beyond a reasonable doubt that it was not made in Alabama. So
Lopez, I believe, is a good decision.
Also with regard to crime, I would note that we have always
had that nexus with interstate commerce. As a Federal
prosecutor, it is not prosecution for theft. It is prosecution
for interstate transportation of stolen property. That is the
Federal crime. Theft is prosecuted only by the State courts,
unless it is theft from an interstate shipment. That is a
Federal crime. It is not stealing an automobile. It is
interstate transportation of a stolen motor vehicle. ITSMV is
the Federal crime.
The Hobbs Act, the Extortion Act to use against
politicians, you have to have an interstate nexus.
And I have had cases where bribery was proven but we were
not able to prosecute it federally because it did not have an
interstate nexus. RICO, even arson cases have to have it there.
So I just want to make sure that if--
Let me ask you this. In general, would you not agree that
if someone in Pennsylvania picks up a rock and murders their
neighbor, that is a crime unreachable by Federal prosecution
under traditional interpretations of Commerce Clause and the
reach of the Federal Government?
Judge Roberts. Well, again, barring special circumstances
of the sort you were talking about, that's generally something
addressed by State authorities.
Senator Sessions. But we need to get this thing straight.
We have some people complaining we are federalizing too many
crimes and then complain that we are striking down some that go
too far. States should prosecute these cases locally and
effectively and should do that, schools and guns and that kind
of thing. And in the Violence Against Women Act, there was a
Commerce Clause case where a woman was raped and then sued the
people who assaulted her and raped her. She wanted to sue in
Federal court under the Violence Against Women Act. And what
the Court held there was, as I read it, that the Court limited
Congress's power to provide for civil damages, money damages.
She could sue that rapist in State court, but not for money
damages in Federal court. Is that the holding of that case?
Judge Roberts. That's my understanding of what the Court
held in the Morrison case, yes.
Senator Sessions. And I don't think it is an utterly
extreme position. It certainly did not gut the Violence Against
Women Act. It has so many more provisions than just that. If
the action had been against a private business, could the
damages have been rendered in that case?
Judge Roberts. I'm not sure I know the answer to that,
Senator.
Senator Sessions. I will take the follow-up on the Garrett
case that several people have mentioned. It involved the
University of Alabama in a lawsuit against the State
institution, claiming violation of the disabilities act. The
State defended on the grounds that you could sue the State of
Alabama for backpay; you could sue the State of Alabama to get
your job back; you could sue the State of Alabama and get an
injunction against the State to not discriminate again in the
future; but under the Sovereign Immunity doctrine that protects
a State from lawsuits, you couldn't sue them for money damages.
Now-Senator Cornyn as attorney general of his State and
attorneys general like Attorney General, now-Judge Bill Pryor,
who defended Alabama, raised that defense. And I do not think
it is a bogus defense. I think it is a legitimate concern.
Judge, do you recall where the doctrine that is so famous
in the law--that the power to sue is the power to destroy--do
you remember where that came from in legal our legal history?
Judge Roberts. I remember tax opinions talking about it,
the power to tax being the power to destroy, but--
Senator Sessions. I think the doctrine has been applied to
the States, so we attorneys general are familiar with it under
the sovereign immunity that the States have. If you are
empowered to sue the State of Alabama in Federal court, then
you have virtually the power to destroy that State financially,
if there is no real limit on it. And so we have always provided
and the States have provided a sovereign immunity that the
States will only allow themselves to be sued under certain
circumstances and you cannot just sue them unnecessarily.
I know Senator Mark Pryor, our Democratic colleague, signed
on the brief for the State of Alabama in the Garrett case
taking this position, and the Supreme Court ruled with it. I
also would note that it did not in any way destroy the
disabilities act. It applied to only--State employees only make
up about 3.7 percent of the employees in the Nation that might
be covered by that.
So I think that there have been some healthy trends in
reestablishing that there is some limit to reach of the
Commerce Clause. Would not you agree?
Judge Roberts. Well, the interesting thing, the Court's
most recent decision is the medical marijuana decision in the
Raich case. And the Court there looked at the Lopez and
Morrison decisions and tried to put them in context and said--
because the argument there was based on Lopez and Morrison,
saying this is beyond Congress's power, and the Court said
those are only two of our cases and they need to be put in the
broad sweep of Commerce Clause precedents for over 200 years.
Yes, they are two cases and it had been, I think, 65, 70 years
since the Court had focused on limitation under the Commerce
Clause and concluded that it was beyond Congress's power. But
the Raich case concluded this was within Congress's power. They
said don't--it's not as if Lopez and Morrison are junking all
that came before. They just need to be considered in a broad
context.
And of course there's decision after decision, going back
to Gibbons v. Ogden, one of Chief Justice John Marshall's early
opinions, about the scope of Congress's power and the
recognition under the constitutional scheme that it is a broad
grant of power, and the recognition that this body has the
authority to determine when issues affecting interstate
commerce merit legislative response at the Federal level. I
think that's--
Senator Sessions. Well, I think you are--just to go on to
another subject, but I think you are correct. These are some
difficult areas and the courts need to give a lot of attention
to. But some recognition that there are limits to Federal reach
is, I think, legitimate for a court.
Judge, are you aware of the salary that you will be paid
when you become--if you are so fortunate?
Judge Roberts. In a vague way, yes.
Senator Sessions. And I suppose you were when you were
affirmed to the court of appeals?
Judge Roberts. Yes.
Senator Sessions. So you are not going to be back next week
asking for a pay raise, are you?
Judge Roberts. Not next week, no.
[Laughter.]
Senator Sessions. The Chief was always over here knocking
on our door about pay raises. But, you know, we have a deficit
in our country--
[Laughter.]
Senator Sessions.--and you are paid the same--I guess the
Chief may be paid more than Senators, but for the most part
judges are paid what Members of Congress are paid. And I
frankly am dubious that we should give ourselves big pay raises
when we can't balance the budget.
I also chair the Court Subcommittee, Courts and
Administration, and as Chief you have a serious responsibility
with regard to managing and providing guidance to the Congress
on the needs of the court system. I know that--I am sure that
you will do that with great skill and determination. But let me
ask you, will you also seek to manage that court system--and I
hesitate, but I will use the word ``bureaucracy'' at times--
effectively and efficiently and keep it a lean and effective
management team and maintain as tight a budget as you can
maintain?
Judge Roberts. Well, if I am confirmed, Senator, the answer
is yes. I am aware that there is, for example, the
Administrative Office, and they provide valuable services to
judges around the country. As a consumer of their services for
the past 2 years, I have, certainly, particular views about
where I think they're effective and helpful to judges and other
areas where, like any bureaucracy, where I think they can do
better. It is an area where my first priority is going to be to
listen, because I'm sure there are many considerations of which
I'm not aware that are very important for the Chief Justice to
take into account. And after listening, I'll try to make the
best decisions I can about administering that system.
Senator Sessions. Well, there are a lot of problems. Judges
are not happy with the General Services Administration and
sometimes GSA is not happy with the judges, and sometimes
judges overreach and want to be treated awfully specially. So I
think you have a challenge there. I would look forward to
working with you. If you will help us make sure that your court
system is lean and efficient and productive, we will try to
make sure that you have sufficient resources to do those jobs.
One more thing I would just like to inquire about, and that
deals with stare decisis, the deference you give to a prior
decision of the Supreme Court. And you mentioned a number of
factors, and I recognize those as valid and worthy of great
consideration. But it almost strikes me that it is a bit
circular. In other words, the Court is creating a wall around
its opinions to try to avoid seeing them overruled. Isn't it
true that your first oath is to enforce the Constitution, as
God gives you the ability to understand it, and that sometimes
decisions have to be reversed if they are contrary to a fair
and just reading of the Constitution?
Judge Roberts. Yes, Senator. The oath we take is to uphold
the Constitution and laws of the United States. That's true.
And the way judges go about that is within a system of
precedent and, consistent with rules of stare decisis, no judge
starts the day by opening a blank slate and saying what should
the Constitution mean today? We operate within those systems of
precedence. That's the best way that judges have determined to
interpret the Constitution and laws, consistent with principles
of stare decisis.
Senator Sessions. Judge, I will just conclude with noting
that I remember when the court in the Ninth Circuit ruled that
striking down the Pledge of Allegiance, then-Majority Leader
Tom Daschle came to the floor, as now-Minority Leader Harry
Reid did the same afternoon, and they criticized the opinion
and criticized the Ninth Circuit and expressed concern about
activism in that circuit, which I have done often myself.
But I responded that my concern was not so much with the
circuit but with the confusing number of opinions from the
Supreme Court and that I had no doubt that there was Supreme
Court authority that would justify the Ninth Circuit rendering,
or ruling, that they did. And I say that because we have just
received word today that a judge in San Francisco has upheld--
has ruled that the Pledge's reference to one Nation under God
violates the Constitution and should be stricken down. So that
case is going to be winding its way forward.
I am not going to ask you to comment on it because it will
obviously come before you. But will you tell us whether or not
you are concerned about the inconsistencies of these opinions,
and will you work to try to establish a body of law in the
Supreme Court that recognizes the Free Exercise rights of
American citizens in regard to religion and to avoid a state
establishment of a religion?
Judge Roberts. Well, we talked about this in the Committee
hearings on a couple of occasions, and I think everyone would
agree that the religion jurisprudence under the First
Amendment, the Establishment Clause and the Free Exercise
Clause could be clearer. The Ten Commandments cases are the
example right at hand. You have two decisions of the Supreme
Court. Only one Justice thinks both are right. That is an area
in which I think the Court can redouble its efforts to try to
come to some consistency in its approach.
Now, it obviously is an area that cases depend in a very
significant way on the particular facts, and any time that's
the case the differences may be explained by the facts. You do
have the two provisions, as your question recognized, the
Establishment Clause and the Free Exercise Clause. And as I've
said before, I think that both of those are animated by the
principle that the Framers intended, the rights of full
citizenship to be available to all citizens without regard to
their religious belief or lack of religious belief. That I
think is the underlying principle, and hopefully, the Court's
precedents over the years will continue to give life to that
ideal.
Senator Sessions. Thank you, Judge Roberts. You have, by
your testimony, validated the high opinions that so many have
of you. I am confident you would make a great Chief Justice.
Judge Roberts. Senator, thank you.
Chairman Specter. Thank you, Senator Sessions.
Senator Feingold.
Senator Feingold. Thank you, Mr. Chairman.
Judge, let me start off by talking about a couple of new
topics. In September 1985 when you were in the White House
Counsel's Office, you recommended deleting the following line
from the Presidential briefing materials, quote: ``As far as
our best scientists have been able to determine, the AIDS virus
is not transmitted through casual or routine contact.'' You
said at the time that the conclusion was in dispute. We now
know of course that the line is completely accurate, but I
would say we also knew that then.
The Centers for Disease Control guidelines issued the month
before you wanted to delete that line said the following,
``Casual person-to-person contact as would occur among
schoolchildren appears to pose no risk.'' Major news
organizations had reported the CDC's conclusion. In fact, the
CDC had said as early as 1982 that it was unlikely that HIV
could be spread through casual contact.
Judge Roberts. I'm sorry. As early as when?
Senator Feingold. As 1982, that it was unlikely that HIV
could be spread through casual contact. Why did you recommend
that that line be deleted?
Judge Roberts. Well, for the reason I gave in the
memorandum. This was a statement by the President, and I just
wanted to--didn't want the President giving out medical advice
if it was the subject of some uncertainty. I obviously was not
a medical expert, and you said the CDC had issued a report a
month before. Well, earlier in your commentary--I don't know
what the 1982 issue was--but I just thought it was--it's purely
a matter of caution and prudence to have the President make a
pronouncement on a--you have to remember this was at the very
beginning of the AIDS coming into public consciousness, and I
was just concerned that the President not be giving out medical
statements if people weren't absolutely sure that it was
correct.
Senator Feingold. Let me follow that a little bit. It
certainly was an early time and also a critical time. I am
wondering what you did to check or have someone check on these
facts. I mean you must have known that the issue was so
important the President was saying something like this, that it
could have given great reassurance to people all over the
country, as well as helping children infected with the AIDS
virus to live happier and more normal lives to know that this
was the medical conclusion. So I am just wondering why you
would not check it out a little bit.
Judge Roberts. I mean I--the flip side of that, Senator, of
course, is if it turned out to be wrong, it could have been
disastrous to have the President announcing--because the
President wasn't a medical expert either--and I'm sure my
suggestion would have caused the people drafting the
President's speech to go back, and if they thought they were
convinced and they were sure, then that's what would have gone
in there. It was just a question of concern. I wanted to make
sure that they were 100 percent confident that what the
President was going to be saying about a medical issue was they
had complete confidence in it. I don't know actually whether
they took it out or left it in, but at least it caused them to
focus--
Senator Feingold. I do not want to belabor it, but I think
that was a great opportunity for Presidential leadership and
reassurance, and I would just respectfully disagree with your
judgment there.
Judge Roberts. Well, my judgment--just so I could--it
wasn't my medical judgment. The impact of my suggestion was,
obviously to cause to people who wanted that in there to go
back and make sure they were sure that they wanted the
President of the United States issuing a medical statement.
Senator Feingold. I think it was pretty certain at that
time what the medical view as, as indicated by the medical
community of our Government, but I will leave it at that.
Do you believe that the Congress has the power under the
Constitution to prohibit discrimination against gays and
lesbians in employment?
Judge Roberts. I don't know if that's an issue that's going
to come before the courts. I don't know if Congress has taken
that step yet, and until it does, I think that's an issue that
I have to maintain some silence on. I think personally I
believe that everybody should be treated with dignity in this
area, and respect. The legal question of Congress's authority
to address that though is one that could come before the
courts, and so I should be--
Senator Feingold. Can you imagine an argument that would be
contrary to that view?
Judge Roberts. Well, I don't know what arguments people
would make. I just know that I shouldn't be expressing an
opinion on an issue that could come before the Court.
Senator Feingold. Let us go to something else then. I would
like to hear your views about the Second Amendment, the right
to bear arms. This is an amendment where there is a real
shortage of jurisprudence. You mentioned the Third Amendment,
where there is even less jurisprudence, but the Second
Amendment is close. So I think you can maybe help us understand
your approach to interpreting the Constitution by saying a bit
about it.
The Second Amendment raises interesting questions about a
constitutional interpretation. I read the Second Amendment as
providing an individual right to keep and bear arms as opposed
to only a collective right. Individual Americans have a
constitutional right to own and use guns, and there are a
number of actions that legislatures should not take in my view
to restrict gun ownership. The modern Supreme Court has only
heard one case interpreting the Second Amendment. That case is
U.S. v. Miller. It was heard in 1939. The Court indicated that
it saw the right to bear arms as a collective right. In a
second case, in U.S. v. Emerson, the Court denied cert and let
stand a lower court opinion that upheld a statute banning gun
possession by individuals subject to a restraining order
against a Second Amendment challenge. The appeals court viewed
the right to bear arms as an individual right. The supreme
court declined to review the appeals court decision.
So what is your view of the Second Amendment? Do you
support one of the other of the views of what was intended by
that amendment?
Judge Roberts. Well, I mean you're quite right that there
is a dispute among the circuit courts. It's really a conflict
among the circuits. The Fifth Circuit--I think it was in the
Emerson case if I'm remembering it correctly--agreed that--with
what I understand to be your view, that this protects an
individual right. But they went on to say that the right was
not infringed in that case. They upheld the regulation there.
The Ninth Circuit has taken a different view. I don't
remember the name of the case now, but a very recent case from
the Ninth Circuit has taken the opposite view that it protects
only a collective right, as they said. In other words, it's
only the right of a militia to possess and not an individual
right.
Particularly since you have this conflict, cert was denied
in the Emerson case, I'm not sure it's been sought in the other
one or will be, that's the sort of issue that's likely to come
before the Supreme Court when you have conflicting views. I
know the Miller case side-stepped that issue. An argument was
made back in 1939 that this provides only a collective right,
and the Court didn't address that. They said instead that the
firearm at issue there--I think it was a sawed-off shotgun--is
not the type of weapon protected under the militia aspect of
the Second Amendment.
So people try to read into the tea leaves about Miller and
what would come out on this issue, but that's still very much
an open issue.
Senator Feingold. I understand that a case could come
before you. I am wondering if you would anticipate that in such
a case that a serious question would be, which interpretation
is correct?
Judge Roberts. Anytime you have two different courts of
appeals taking opposite positions, I think you have to regard
that as a serious question. That's not expressing a view one
way or the other. It's just saying, I know the Ninth Circuit
thinks it's only a collective right; I know the Fifth Circuit
thinks it's an individual right; and I know the job of the
Supreme Court is to resolve circuit conflicts, so I do think
that issue is one that's likely to come before the Court.
Senator Feingold. I would like to revisit the Hamdi issue.
I asked you which of the four opinions in the case of Hamdi v.
Rumsfeld best approximates your view on the Executive's power
to designate enemy combatants, and you refused to answer that
question because the issue might return to the Court. I want to
press you a bit on that. In Hamdi there were four different
opinions. And by the way, I checked it because you mentioned
Youngstown, and all four opinions cited the Youngstown Sheet
and Tube v. Sawyer case. Both Justice Thomas's dissent and
Justices Ginsburg's and Souter's concurring opinion, cited
Justice Jackson's opinion in the Youngstown case. And they came
to completely different conclusions.
So your answer that you would apply that principle does not
help me very much in understanding your view of this. We know
where all 8 other members of the Court stand on these opinions.
In their opinions, they either wrote or joined one of them, yet
all 8 of them will hear the next case that raises similar
issues. No one is suggesting that their independence or
impartiality in the next case has been compromised.
Mr. Hamdi, of course, has left the country, so the precise
facts of his case will never return to the Court. Of course, if
a member of the Court expressed a view outside of the Court on
a specific case that was headed to the Court, that might be
cause for recusal, as Justice Scalia recognized when he recused
himself from the Pledge of Allegiance case a few terms ago
after discussing it in a speech. But obviously, Justice Scalia
can participate in the next case involving the questions at
issue in Hamdi even though we know exactly what he thinks about
that decision.
So I guess I want to know why are you different? I am not
asking for a commitment on a particular case. I recognize that
your views might change once you are on the Court and hear the
arguments and discuss the issue with your colleagues, but why
should not the public have some idea of where you stand today
on these crucial questions concerning the power of the
Government to jail them without charge or access to counsel in
a time of war? They know a great deal about how each of the
other Justices approach these issues. Why is your situation
different?
Judge Roberts. Well, because each of the other 8 Justices
came to their views in those cases through the judicial
process. They confronted that issue with an open mind. They
read the briefs presented by the arguments--by the parties, and
the arguments the parties presented. They researched the
precedents as a judge. They heard the argument in the case.
They sat in the conference room, just the 9 of them on the
Court, and debated the issues and came to their conclusions as
part of the judicial process.
You're now asking me for my opinion outside of that
process, not after hearing the arguments, not after reading the
briefs, not after the participating with the other judges as
part of the collegial process, not after sitting in the
conference room and discussing with them their views, being
open to their considered views of the case, not after going
through the process of writing an opinion, which I have found
from personal experience and from observation, often leads to a
change in views, the process of the opinion writing. You
can't--the opinion turns out it doesn't write. You have to
change the result. The discipline of writing helps lead you to
the right result.
You're asking me for my views, you know, right here without
going through any of that process.
Senator Feingold. What would be the harm, Judge, if we got
your views at this point, and then that process caused you to
come to a different conclusion, as it appropriately should?
What would be the harm?
Judge Roberts. Well, the harm would be affecting the
appearance of impartiality in the administration of justice.
The people who would be arguing in that future case should not
look at me and say, ``Well, there's somebody who under oath
testified that I should lose this case because this is his view
that he testified to.'' They're entitled to have someone
consider their case through the whole process I've just
described, not testifying under oath in response to a question
at a confirmation hearing.
I think that is the difference between the views expressed
in the prior precedent by other Justices in the judicial
process and why--as has been the view of all of those
Justices--every one of those Justices who participated in that
case took the same view with respect to questions concerning
cases that might come before them, as I am taking here.
Senator Feingold. I understand your view. I think it is
narrow. I had the experience of having one of my bills go
before the Supreme Court, and I know I did not have, as we say
in Wisconsin, a snowball's chance with a couple of the Justices
because of what they had ruled previously, but I did not think
that made the process in any way tainted. I knew that they
simply were not going to agree with the statute, but I
recognize your limitations.
Let me ask you about something else, the Hamdan matter.
Yesterday you refused to answer any questions regarding your
conduct in the Hamdan v. Rumsfeld case. But today you answered
questions from Senator Coburn regarding this matter. So I want
to follow up in order to make sure the record is complete.
You interviewed with the Attorney General of the United
States concerning a possible opening on the Supreme Court on
April 1, 2005. Is that correct?
Judge Roberts. Yes. The specifics of the details I've
discussed in the response to the Committee's questionnaire.
Senator Feingold. That was 6 days before the oral argument
in the Hamdan case, is that not right?
Judge Roberts. I don't remember the exact date of it. I
know it was shortly before that, yeah.
Senator Feingold. You had further interviews on May 3rd
concerning a possible appointment to the Court with numerous
White House officials including Karl Rove, the Vice President
and the White House Counsel before the decision in the Hamdan
case was released; is that correct?
Judge Roberts. The decision was June 15th.
Senator Feingold. The question here is just did you have
further interviews on May 3rd concerning a possible appointment
to the Court?
Judge Roberts. May 3rd, yes. But whatever was--I don't
remember the exact dates, but whatever was--
Senator Feingold. But you had interviews with those
individuals--
Judge Roberts.--in the Senate questionnaire.
Senator Feingold. The questionnaire seems to indicate it
was on May 3rd. You met again with Ms. Miers, the White House
Counsel on May 23rd; is that right?
Judge Roberts. I'm relying on the--if that's what I said in
the questionnaire, yes. I don't have an independent
recollection.
Senator Feingold. You have no reason to doubt that those
facts are correct. You never informed counsel in this case of
these meetings, did you?
Judge Roberts. I did not, no.
Senator Feingold. Mr. Gonzales's advice to the President
concerning the Geneva Conventions was an issue in the case,
isn't that right?
Judge Roberts. I don't want to discuss anything about
what's at issue in the case. The case is still pending, and
pending before the Supreme Court.
Senator Feingold. How about this one. President Bush was
named a defendant in the case, right?
Judge Roberts. Yes. In his official capacity.
Senator Feingold. The Hamdan decision was released on July
15th. Is it your testimony that no work on that decision took
place after July 1?
Judge Roberts. No. I didn't--that was not my testimony. The
opinions in the D.C. Circuit--
Senator Feingold. Is it your testimony now that no work on
that decision took place after July 1?
Judge Roberts. Opinions in the D.C. Circuit are complete
and circulated to the panel a week before they're released.
That was my--the conclusion of when work was complete, and
again, I wasn't the author of the opinion--it would have been a
week before it was released.
Senator Feingold. Did you read over the opinion of the
concurrence after July 1? Was there any editing that took place
after that date?
Judge Roberts. I don't recall, Senator, and--
Senator Feingold. Well, when was the issue of whether you
should recuse yourself from this case, when did that first come
to your attention?
Judge Roberts. I saw, was made aware of an article--I think
it was an article--I don't remember when that took place,
whenever the article was published. And then I understand there
was legal opinions on the other side were requested by I
believe the Chairman, and I know that those were published--
Senator Feingold. You do not recall when this matter first
came up? I would think it would be something you would
remember, when somebody suggested you should have recused
yourself.
Judge Roberts. I don't remember the date of the--
Senator Feingold. How about the approximate time?
Judge Roberts. I think it was sometime in July or--
Senator Feingold. Mr. Chairman, so the record would be
complete, I would like to submit the article from Slate
Magazine by Professors Gillers, Luban and Lubet and a letter
sent to you responding to Professor Rotunda's criticism of
their position, and I also want to submit an article by these
three law professors that was published in the Los Angeles
Times on this topic.
I do not want to take any more time on this, but I think
these--
Chairman Specter. Without objection that will be made a
part of the record.
Senator Feingold. Thank you, Mr. Chairman. I think these
professors very convincingly answer Professor Rotunda's views
and point out that his analysis of the case law is not
particularly persuasive. And I would urge any of my colleagues
who really want to understand the issue with Judge Roberts's
participation in the case, rather than just dismissing it
because it is inconvenient, that they take a look at it and
actually see what the issues were here. But I do appreciate
your answer to those questions.
I will only be able to get to some of my questions on the
next subject, and hopefully in the next round can continue.
But, Judge Roberts, as Senator Leahy mentioned earlier, when
you came before the Committee a couple of years ago, we
discussed the fact that more than 100 people on death row have
been exonerated and released, and, in fact, I believe the
number is now 121 people who we know were sentenced to die for
crimes they did not commit.
I want to follow up on work that Senators Durbin and Leahy
have done in discussing with you the Herrera case. I do differ
with your characterization of the case. The Solicitor General
brief that you signed presented the issue as whether the
Constitution ``requires that a prisoner have the right to seek
judicial review of a claim of newly discovered evidence.'' That
is, the question was not how strong the evidence of innocence
must be, as you seemed to be suggesting earlier, but whether
the Constitution requires that there be some avenue for
presenting evidence of innocence in Federal court. Your brief
argued that it does not.
Now, that brief also, as you know, contained a footnote
that I am going to ask you to comment on. It said, ``There is
no reason to fear that there is a significant risk that an
innocent person will be executed under procedures that the
States have in place. . . . The direct review and collateral
procedures that the Federal Government and the States have in
place are more than ample to separate the guilty from the
innocent.'' Yesterday you talked about the possible effect of
DNA evidence on the legal framework in this type of case.
In light of the many cases of innocent people ending up on
death row that have come to light in the past decade, and aside
from what was the ultimate issue at stake in that case, do you
still agree with your statement from the Government's Herrera
brief?
Judge Roberts. Well, that was the administration position
at the time. It was one that the Supreme Court agreed with; 6-3
I think was the ruling. I know Justice O'Connor was in the
majority.
The issue--and, again, there was obviously argument a the
time about what the issue really was in Herrera. And I thought
it was quite inaccurate to view it as a case involving the
question of whether actual innocence could be presented,
because there was--it was a claim of newly discovered evidence,
and it was a claim that somebody who had just died was actually
the murderer. At the end of exhaustive appeals through the
State system, exhaustive collateral review through the State
system, exhaustive collateral review through the Federal
system, is there an obligation to decide at that point that a
new claim that somebody else committed the crime--
Senator Feingold. I am running out of time, and I just
wonder if you still stand by the statement, if you can just say
yes or no.
Judge Roberts. Well, that was the administration position.
Senator Feingold. All right. Well, let me cut to the quick.
I would like to know whether you think there is a risk that
innocent people may be sentenced to death in today's criminal
justice system. And I must say, Judge, Supreme Court Justices
do have the power of life and death in these matters.
Judge Roberts. Senator, I think there is always a risk in
any enterprise that is a human enterprise like the legal
system. Obviously, the objective of the provision of the rights
to a criminal defendant and trial, the provision of collateral
review at the State level, the provision of collateral review
at the Federal level, the availability of, as you suggested,
clemency--all of that is designed to ensure that the risk is as
low as possible.
There are issues that are going to be presented about the
availability of DNA evidence which may or may not help reduce
the risk even further. There is always a risk. And, obviously,
when you're dealing with something like capital punishment, the
risk is something that has to be taken extremely seriously at
every stage of the process.
As we talked about more than 2 years ago at the prior
hearing, I think the most effective way of minimizing that risk
is to ensure that people facing that sanction have the best
counsel available at every stage. As you know from looking at
this problem, the issue that comes up are questions that
weren't raised that should have been raised if the person had a
more capable lawyer, avenues that weren't pursued that should
have been pursued if that lawyer had the resources. And that's
where I think the risk of wrongful conviction is going to be
most effectively addressed, ensuring the availability of
competent counsel at every stage of the proceeding.
Senator Feingold. Thank you, Judge.
Judge Roberts. Thank you, Senator Feingold.
Senator Graham?
Senator Graham. Thank you, Mr. Chairman.
Judge Roberts, your intellectual stamina impresses me
because--you can't see this on television--it must be 150
degrees in here.
[Laughter.]
Senator Graham. And I just don't know how you are doing it,
but I am tremendously impressed.
Mr. Chairman, I would like permission to introduce into the
record some law professor's opinion that being interviewed for
the Supreme Court vacancy when Judge Roberts was interviewed
did not require him to recuse himself, and I will do that at--
Chairman Specter. Without objection, it will be made a part
of the record.
Senator Graham. But let's think about that in kind of
political terms, and I know that is not really your job. If we
took this to its logical conclusion, say I was President--and I
don't think that is going to happen, so you don't need to be
overly worried about it. But you could pick someone to be Chief
Justice from the people sitting on the Court; is that correct?
Judge Roberts. Yes.
Senator Graham. So if you had a judge you did not
particularly like, the best thing you could do is go talk to
him about the job and they could not decide anything. Would
that be the logical conclusion of this?
Judge Roberts. I think that would be the logical conclusion
of some--
Senator Graham. Well, I will remember that if I am
President. On the record now, I don't think I should have the
right to do that. That is part of the process.
Some big themes here. Were you proud to work for Ronald
Reagan?
Judge Roberts. Very much, Senator, yes.
Senator Graham. During your time of working with Ronald
Reagan, were you ever asked to take a legal position that you
thought was unethical or not solid?
Judge Roberts. No, Senator, I was not.
Senator Graham. We talked about the Voting Rights Act. The
proportionality test in the Reagan administration's view was
changing the Voting Rights Act to create its own harm. Is that
correct?
Judge Roberts. The concern that the Attorney General had,
and the President, was that changing section 2 to the so-called
effects test would cause courts to adopt a proportionality
requirement, that if elected representatives were not elected
in proportion to the racial composition in a particular
jurisdiction, that there would be a violation shown that would
have to be redressed.
Senator Graham. Do you think it would be fair to try to
suggest that because you supported that position that you are
somehow racially insensitive?
Judge Roberts. No, Senator, and I would resist the
suggestion that I am racially insensitive. I know why the
phrase ``Equal Justice Under Law'' is carved in marble above
the Supreme Court entrance. It is because of the fundamental
commitment of the rule of law to ensure equal justice for all
people without regard to race or ethnic background or gender.
The courts are a place where people need to be able to go to
secure a determination of their rights under the law in a
totally unbiased way. That's a commitment all judges make when
they take a judicial oath.
Senator Graham. Knowing this will not end this line of
inquiry, but at least trying to put my stamp on what I think we
have found from this long discussion, basically the Supreme
Court decided in section 2 that the intent test was
constitutionally sound. Is that correct?
Judge Roberts. That was its determination in Mobile v.
Bolden.
Senator Graham. And Senator Kennedy disagreed because he
wanted a different test. And I respect him. He is one of the
great--first, he is not part of the Reagan Revolution. I think
we all can agree with that, so I don't expect him to buy into
it. But I respect him greatly for his passion about his causes.
He took it upon himself to try to change a Supreme Court
ruling, to go away from the intent test to the effects test.
And he was able to reach a political compromise with the
administration. And I just want that to be part of the record.
To say that Ronald Reagan or Judge Roberts by embracing a
concept approved by the Court equates to that administration or
this person being insensitive to people of color in this
country I think is very unfair and off base.
You said something yesterday that was very compelling to
me. I asked you could you express or articulate what you
thought might be one of the big threats to the rule of law. And
I believe you said, ``Judges overstepping their boundaries,
getting into the land of making the law, putting their social
stamp on a cause rather than interpreting the law because that
could over time in the eyes of the public, undermine the
confidence in the court.''
Is that a correct summary?
Judge Roberts. Yes, Senator.
Senator Graham. Well, we have before us today, Judge
Roberts, a legal opinion, just issued, hot off the presses,
that says the Establishment Clause of the Constitution
apparently is violated if an American expresses--recites the
Pledge of Allegiance. You will be on the Court, I hope, and you
will use your best judgment of how to reconcile the Ninth
Circuit opinion. And I am not asking you to tell us how you
might rule. I am making a personal observation that this is an
example, in my opinion, of where judges do not protect us from
having the Government impose religion upon us but declare war
on all things religious. And that is my personal view and
opinion. That is why most Americans sometimes are dumbfounded
about what is going on in the name of religion. No American
wants the Government to tell them how to worship, where to
worship, or if to worship. But when we exercise our right to
worship, it bothers me greatly that judges who are unelected
confuse the concept between establishment and free exercise.
And I will move on. I think it is one of the cases that is
undermining the confidence in the judiciary, and I am glad you
are sensitive to that.
The war on terror. In my past legal life, I have spent most
of my legal career associated with the military, and I am proud
to be a military lawyer. I am the only reservist in the Senate.
I sat as an Air Force Court of Criminal Appeals judge. I
handled the easy cases because I don't have a whole lot of time
and I help when I can. But I understand, I think, very well
what it means to abide by the judicial canons of ethics, not to
tip your hand, not to compromise yourself to get promoted or to
get put on the court, promoted in the military or to get put on
the court, trying to please your boss, trying to please a
Senator. And my respect for you has gone up because you are
unwilling to compromise your ethics, and I hope the Senate will
understand that in the past other people were not required to
do so.
Are you familiar with the Geneva Convention?
Judge Roberts. Yes, Senator.
Senator Graham. Do you believe that the Geneva Convention
as a body of law, that it has been good for America to be part
of that Convention?
Judge Roberts. I do, yes.
Senator Graham. Why?
Judge Roberts. Well, my understanding in general is it's an
effort to bring civilized standards to conduct of war, a
generally uncivilized enterprise throughout history; an effort
to bring some protection and regularity to prisoners of war in
particular. And I think that's a very important international
effort.
Senator Graham. As Senator Kyl said, this will be the only
time we will actually get to talk, and I do not want to
compromise your role as a judge, but I do want you to help me
express some concepts here that America needs to be more
understanding of. And I want to work with my Democratic friends
to see if we can find some way to deal with this.
We are dealing with an enemy that is not covered by the
Geneva Convention. Al Qaeda, by their very structure and
nature, are not signatories to the Geneva Convention and are
not covered under its dictates. An enemy combatant--are you
familiar with that term in the law?
Judge Roberts. Yes, Senator, I am.
Senator Graham. What would an enemy combatant be under
American jurisprudence? Who would they be?
Judge Roberts. Well, I really have to--
Senator Graham. Fair enough, fair enough.
Judge Roberts. Those cases are both pending, the ones that
I have decided are pending before the Supreme Court, and those
issues are likely to come before it.
Senator Graham. Fair enough. The Geneva Convention does not
cover al Qaeda but our President has said that anyone in our
charge, terrorist or not, will be treated humanely. I applaud
the President because in fighting the war on terror, we need
not become our enemy. Our strength as a Nation is believing in
the rule of law, even for the worst of those that we may
encounter.
I admire Mr. Adams for representing the Redcoats. I cannot
imagine how tough that must have been. But his willingness to
take on the unpopular cause in the name of the rule of law has
made us stronger.
When the President said that we will treat everyone
humanely, even the worst of the worst, I think he has brought
out the best in who we are. But we are in a war, Judge Roberts,
where the Geneva Convention does not apply, and we have before
the courts a line of cases dealing with the dilemma this
country faces. When you capture an enemy combatant, non-citizen
foreign terrorist, there are three things I think we must do:
we must aggressively interrogate them without changing who we
are; we must have the ability to keep them off the battlefield
for a long period of time to protect our Nation; and we must
have a system to hold them accountable for some of the most
horrible crimes imaginable.
Justice Jackson was one of your favorite Justices; is that
correct?
Judge Roberts. I think that's a fair description, yes.
Senator Graham. He has indicated in the Youngstown Steel
case that the Presidency or the executive branch is at its
strongest when it has concurrence with the legislative branch.
Is that a fair summary of what he said?
Judge Roberts. Yes, he divided up the area basically into
three parts, and considering the executive's authority, and
said when it has the support of Congress, it's at its greatest.
And obviously when it's in opposition to Congress, it's at its
lowest ebb, as he put it. And he described a middle area in
which it was sometimes difficult to tell whether Congress was
supporting the action or not.
Senator Graham. This is me speaking, not you.
Congress is AWOL, ladies and gentlemen, in the war on
terror when it comes to detention, interrogation, and
prosecution of enemy non-citizen combatants. Justice Scalia has
written eloquently that Congress has the power to get involved
in these issues, and Congress is solid.
What is the case--is it the Razul case where the Supreme
Court in a 5-4 decision has given habeas corpus rights to non-
citizen foreign terrorists?
Judge Roberts. I think that's correct, Senator, yes.
Senator Graham. That is an amazing departure from what we
have been as a Nation for 200 years. I have been to Guantanamo
Bay twice. The people running the prison tell me that 185 of
the detainees have lawyers in Federal court. Justice Scalia
says we have set up a situation where 94 different
jurisdictions can hear habeas cases involving non-citizen
foreign terrorists. The people running the jail say this
process is undermining our ability to get good information. A
habeas corpus petition hearing, would it allow a defense
attorney to call a military commander in to answer for how this
person was captured?
Judge Roberts. I don't know, Senator, and I hesitate to
opine on that without knowing.
Senator Graham. Well, the truth is that we have set up a
situation where our military leaders and our military
commanders and soldiers in the field can be called from all
over the world, all over the country, to answer for why such
person is detained.
We had a conversation in our office--in my office. You said
something to the effect, as Justice Scalia said in his
dissenting opinion, that this would be an area where the courts
would welcome some congressional involvement. And right now we
have the executive branch carrying the load totally by
themselves. We have got several cases before the Court dealing
with detention policy, interrogation policy, and prosecution
policy.
Do you believe that this is an area, if the Congress acted,
as Justice Jackson said, that it would strengthen the hand of
the Executive in the legal situation?
Judge Roberts. My observation during our meeting, Senator,
was not an expression of legal determination, and it doesn't
necessarily mean a view that Congress's action or involvement
would be determinative or would even be within the scope of
legal authority, depending on what the issue and the arguments
were.
I do know that when you are in the middle area where it's
difficult to determine whether Congress is supporting the
President's action or is opposed to the President's action,
that the Court often has to try to read the tea leaves of
related legislation. If you look at the Dames and Moore
decision coming out of the Iranian hostage crisis, what the
Court did in that case, applying the middle tier, was look at a
vast array of legislation. And it was a very difficult
enterprise to try to figure out what Congress's view was. My
point was simply that if we'd know what Congress's view was, it
might make it easier to apply it in a particular case, and you
wouldn't have to go through that process of trying to determine
what position Congress was in, if that turned out to be
pertinent under the particular legal challenge.
Senator Graham. Thank you. Justice Scalia said in a very
direct way, the courts are ill-equipped to deal with these
issues. In the Youngstown Steel case, Justice Jackson says,
``When the President acts pursuant to an express or implied
authorization of Congress, his authority is at the maximum, for
it includes all that he possesses in his own right plus all
that Congress can delegate. A seizure executed by the President
pursuant to an Act of Congress would be supported by the
strongest of presumptions and the widest latitude of judicial
interpretation, and the burden of persuasion would rest heavily
upon any who may attack.''
Do you agree with that?
Judge Roberts. That was read from the Jackson--I do. I
agree with the basic proposition that the President's authority
is at its greatest when he has the support of Congress.
Senator Graham. To my colleagues, I think it is imperative
for this body to get involved in the war on terror when it
comes to detaining, interrogating, and prosecuting enemy
combatants who are not citizens. It is important that all three
branches of Government, in my opinion, feel comfortable with
the policies of this Nation, that we will be stronger if the
judicial branch, the legislative branch, and the executive
branch are working together to come up with policies that will
allow for aggressive interrogation, appropriate detention, and
serious prosecution in a way that is within the values of our
Nation. So that is why I will be introducing legislation on all
those topics, and I will not ask you any further what you may
or may not do about the legislation if it ever gets to the
floor of the Senate and passed.
The Kelo case. Of all the things that have been decided--
and I haven't been to my office since the recent case about the
Pledge, so it may have trumped it--I have gotten more phone
calls about the Kelo than anything the Supreme Court has done
lately. And for those who may be tuning in, the Kelo basically
said that the Government can take your property, give it to
someone else, another private person, because it could be used
at a higher and best use and it might generate more taxes.
I am not going to ask you to tell me how you will decide
the Kelo, but I just want you to know--as Senator Kyl
indicated, this is the only time you can hear from us--that my
phone is ringing off the hook and that every legislature that I
know of is going into session as quickly as they can to correct
that. So I want to leave with you--and when you meet your new
colleagues, please let them know that some of the things they
do, that we watch, and that the courts are able to do their job
because the public defers to the Court and respects the Court.
But there is a limit.
The Office of Chief Justice of the United States is
different, as you are the first among equals. What do you
believe as Chief Justice you can bring to the table that you
could not as just a normal member of the Court?
Judge Roberts. Well, if I am confirmed, I think one of the
things that the Chief Justice should have as a top priority is
to try to bring about a greater degree of coherence and
consensus in the opinions of the Court. I know that has been--
it was a priority of the last Chief Justice. I actually believe
that is something that should be a matter of concern for all of
the Justices. But as the Chief, with responsibility for
assigning opinions, I think he has greater scope for authority
to exercise in that area, and perhaps over time can develop
greater persuasive authority to make the point. Again, coming
from the Chief, it may be a point that other Justices would
receive--be more receptive to than they might coming from one
of their colleagues, that we are not benefited by having six
different opinions in a case, that we do need to take a step
and think whether or not we really do feel strongly about a
point on which a Justice is writing a separate concurrence
which only he or she is joining, or whether the majority
opinion could be revised in a way that wouldn't affect anyone's
commitment to the judicial oath to decide the cases as they see
fit, but would allow more Justices to join the majority so the
Court speaks as a Court. That is something that the priority
should be, to speak as a Court.
Senator Graham. So your goal as Chief Justice is, where you
can and as often as you can, to find consensus and unite the
Court. Is that true?
Judge Roberts. I think the Court should be as united behind
an opinion of the Court as it possibly can. Now, obviously, in
many cases it is not going to be possible.
Senator Graham. I applaud you because we are a divided
Nation, and the more united we can become at any level of
Government, the stronger we will be. So I applaud you for that
attitude.
Chairman Specter. Thank you very much, Senator Graham.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman, and, Judge
Roberts, it is nice to talk to you so early in the day.
Yesterday you stated that you ``agree with the Griswold
Court's conclusion that marital privacy extends to
contraception and availability of that.'' And you noted that
the Court's later decisions have based the constitutional right
to privacy on the liberty component of the Due Process Clause
of the 14th Amendment.
Now, Justice Thomas at his confirmation hearing answered in
a way very similar to the way you did. During his confirmation
hearing, here is what he said: ``I believe the approach that
Justice Harlan took in . . . Griswold in determining the--or
assessing the right to privacy was an appropriate way to go.''
Now, we all know that Justice Harlan's approach located the
right to privacy in the liberty interest of the Due Process
Clause of the 14th Amendment. And Justice Thomas also said at
his confirmation hearings, along the same lines, that he agreed
with the Court decision in Eisenstadt v. Baird where the Court
held that single people have the same right to privacy as
married people on the issue of procreation.
However, since he has been confirmed onto the Court,
Justice Thomas has not applied the right to privacy to key
protections. For instance, in Lawrence in 2003, he declared
that there is no general right to privacy in the Constitution.
Now, yesterday you said that, ``Liberty is not limited to
freedom from physical restraint. It does cover areas,'' as you
said, ``such as privacy. It's not only protected in procedural
terms, but protected substantively as well.'' You said that you
agreed that, ``There is a right to privacy to be found in the
Liberty Clause of the 14th Amendment.'' So that seems directly
to contradict Justice Thomas's view once he got on the Court,
as I outlined, in Lawrence.
I assume that you disagree with Justice Thomas's view that
there is no general right to privacy, as he stated in Lawrence.
Judge Roberts. Well, I think that question depends
obviously on the modifier and what you mean by ``general.'' I
noted in going over the nomination hearings of Justice Breyer,
he also said that the privacy interest is within the--is
protected as part of the liberty--protected by the Due Process
Clause. I think that is the general approach. Now the--
Senator Schumer. Let's talk about Justice Thomas. He said
there is no general right of privacy. You seemed to say
yesterday--you didn't seem to say. You said that there was a
right to privacy. Let's forget that Justice Thomas said it. You
would disagree that there is no general right to privacy in the
Constitution.
Judge Roberts. Well, I wouldn't use the phrase ``general''
because I don't know what that means. I don't know if by saying
``general'' they are trying to describe the particular scope to
the right to privacy or not. I think there is a right to
privacy protected as part of the liberty guarantee in the Due
Process Clause.
Senator Schumer. A substantive right to privacy.
Judge Roberts. Protected substantively, yes.
Senator Schumer. Is it your reading of Justice Thomas's
case in Lawrence that he does not believe in that?
Judge Roberts. No. I think his statement obviously focuses
on general, and his conclusion in that case was that the right
to privacy protected under the Due Process Clause that you
noted he acknowledged at his hearings did not extend to include
the activity at issue in Lawrence.
Senator Schumer. Well, this is obviously very important
because Justice Thomas seemed to be more full in his view of
privacy at his confirmation hearing than later when he was on
the Court, at least if you read his decisions. And you are not
willing to say that your view is different than the view
Justice Thomas stated in Lawrence.
Judge Roberts. I'm not willing to state a particular view
on the Lawrence decision, and that's consistent with the
approach that I've taken.
Senator Schumer. Let me ask you a broader question. Do you
disagree with Justice Thomas's interpretation of the right to
privacy in any decided case?
Judge Roberts. Well, Senator, I'm not going to comment on
whether I think particular cases were correctly decided or not
in areas--
Senator Schumer. I didn't ask that.
Judge Roberts. Well, I don't know which cases you're
talking about.
Senator Schumer. Any. Any one you want.
Judge Roberts. Well, that would be commenting on whether
that decision was correctly decided or not. If I'm agreeing or
disagreeing with one of the Justices' views in that case, that
would be commenting on whether that view was correct or not. If
it was in a dissent, it would be disagreeing; if it was in the
majority, it would be agreeing. And because those are in areas
that could come before the Court, like every other nominee to
come before this Committee who is on the Court today, I think
it's inappropriate to comment on the correctness or
incorrectness of those decisions in areas that could come
before the Court.
Senator Schumer. So you are not--you do not have to answer
this. It is obvious you will not state where you disagree with
Justice Thomas, and it could well be that what he said at his
hearing and you said at your hearing might lead to--might lead
you to rule in the same way on privacy?
Judge Roberts. Well, again, my view on privacy is as I've
expressed, that there is a right to privacy, protected as part
of the liberty under the Due Process Clause.
Senator Schumer. Would you say there is a general right to
privacy?
Judge Roberts. I don't know what ``general'' means.
Senator Schumer. Substantive right to privacy.
Judge Roberts. Well, substantive, yes, I have said that,
that the protection extends to substantive protection. But when
you say general, I don't know what that means. I don't know if
that means--
Senator Schumer. Didn't Justice--excuse me. Didn't Justice
Thomas disagree with the substantive right to privacy in
Lawrence?
Judge Roberts. His conclusion was that the liberty
protected by the Due Process Clause did not extend to that
right, yes.
Senator Schumer. Thank you. So it would seem to me you
disagree with him. I think you just said it without saying it.
Judge Roberts. No, Senator, you're asking me whether the
right to privacy protected under the Liberty Clause extends to
a particular right, the right at issue in Lawrence.
Senator Schumer. I think what I am asking you, is there a
substantive right to privacy? I didn't apply it to a particular
case.
Judge Roberts. I have said there is a substantive right to
privacy.
Senator Schumer. And in Lawrence, Justice Thomas seemed to
say there is no substantive right to privacy.
Judge Roberts. No. As I understand it--and, again, his
testimony as a nominee was that there was. What he said is--the
quote you read in Lawrence said there's no general right to
privacy. Now, I don't know--
Senator Schumer. But his holding was that there was no
substantive right to privacy under the Liberty Clause, wasn't
it? Wasn't that the whole thrust of his argument?
Judge Roberts. No, I think, Senator, that his conclusion in
Lawrence was that whatever right there was, it did not extend
to the activity that was at issue in Lawrence.
Senator Schumer. The bottom line is you are unwilling to
differentiate yourself from Justice Thomas's view in Lawrence.
Judge Roberts. Well, it's consistent with the approach I've
taken, that I don't think it's appropriate to protect--as
necessary to protect the independence and integrity of the
Court to comment on whether that decision was correctly decided
or not. And that is consistent with the approach that every
member of the Court has taken--
Senator Schumer. I just didn't ask you that. I asked you if
you would--I asked you if you disagreed with his particular
holding, and--but let me ask you a few other questions here,
because I think you are cutting back a little on what you said
yesterday, at least if you look at the whole picture here and
your unwillingness to disagree with Justice Thomas.
But let me ask you this about judges in general. You sit on
a court, correct?
[Judge Roberts nods head.]
Senator Schumer. Okay. And sometimes you dissent.
[Judge Roberts nods head.]
Senator Schumer. And that's routine, not just for your but
for every judge.
Judge Roberts. It's rare on our court, I'm happy to--
Senator Schumer. Yes, it is. It is. That is true. I have
noticed that. But it happens in courts all the time.
[Judge Roberts nods head.]
Senator Schumer. Okay. And in doing so, the dissenting
judge is criticizing the majority opinion, right?
[Judge Roberts nods head.]
Senator Schumer. Disagreeing with it?
[Judge Roberts nods head.]
Senator Schumer. And I take it this happens on the Supreme
Court quite often.
[Judge Roberts nods head.]
Senator Schumer. And, in fact, there aren't that many
unanimous Supreme Court cases on major cases these days.
Judge Roberts. Well, actually, at one point the statistics
always showed that more cases were unanimous than anything
else.
Senator Schumer. But there are a lot of dissenting
judgments.
Judge Roberts. There are a lot.
Senator Schumer. And every Justice on the Supreme Court has
dissented in many cases.
[Judge Roberts nods head.]
Senator Schumer. Meaning they disagreed with the opinion of
the Court, right?
[Judge Roberts nods head.]
Senator Schumer. And nothing is wrong with that. There is
nothing improper, nothing unethical.
[Judge Roberts nods head.]
Senator Schumer. Okay. Let's go to commentators. Non-judges
are free to criticize and disagree with Supreme Court cases,
correct?
Judge Roberts. Yes.
Senator Schumer. In speeches, law review articles. This is
a healthy process, wouldn't you say?
Judge Roberts. I agree with that, yes.
Senator Schumer. And you did this occasionally when you
were in private practice?
Judge Roberts. Yes.
Senator Schumer. Okay. Nothing unseemly about that.
Judge Roberts. No.
Senator Schumer. Okay. And how about lawyers representing
clients? Lawyers representing clients criticize cases in legal
briefs all the time. That is what they do for a living.
Judge Roberts. Yes.
Senator Schumer. And that is part of being a good lawyer.
And you have signed your name to briefs explicitly criticizing
and disagreeing with Supreme Court decisions.
Judge Roberts. On occasion, yes.
Senator Schumer. In Rust v. Sullivan, for example, your
brief said that, ``Roe was wrongly decided and should be
overturned.'' Right?
Judge Roberts. Yes.
Senator Schumer. Okay. But in this hearing room, you don't
want to criticize or disagree with any decided cases. That
seems strange to me. It seems strange, I think, to the American
people, that you can't talk about decided cases, past cases,
not future cases, when you have been nominated to the most
important job in the Federal judiciary. You could do it when
you worked in the White House. You could do it when you worked
in the Justice Department. You could do it when you worked in
private practice. You could do it when you gave speeches and
lectures. As a sitting judge, you have done it until very
recently. You could probably do it before you just walked into
this hearing room. And if you are confirmed, you may be doing
it for 30 years on the Supreme Court. But the only place and
time that you cannot criticize any cases of the Supreme Court
is in this hearing room when it is more important than at any
other time that the American people and we, the Senators,
understand your views.
Why this room should be some kind of cone of silence is
beyond me. The door outside this room does not say, ``Check
your views at the door.'' So your failure to answer questions
is confounding me. You have done it in instance after instance
after instance after instance. What is the difference between
giving your views here in this hearing room and what judges do
every day, what professors do every day, what lawyers do every
day? In each case, they have to state their opinion. They have
to do it as part of their job, if you will, writing a brief,
rendering an opinion, writing an article. In each case they are
stating their views, which might bias them. You have done it.
Yet only here you cannot state your views. If the
argument--and by the way, there is a very good countervailing
reason that you should state your views, because, as the
Founding Fathers so constructed, this is the one time you go
before an elected body before a lifetime appointment. And it
seems to me this is something of an argument of convenience.
Senator Specter said it well. He said you will answer as many
questions as you have to to get confirmed. That may be the
actual fact, but it is not the right thing to do, in my
judgment.
And so please tell us why is the bias, why is the fact that
you have already stated an opinion any different when you sit
in this room, in terms of jeopardizing your future as a judge,
than it is when you are doing all these other things that you
have done? And let me just remind you--I am going to give you a
chance to answer this, but I think it is bothering a lot of
people in this room and out of this room. Justice Ginsburg,
people who have sat in your very chair, just about every single
Justice, with one or two exceptions, has given their opinions
of existing cases.
Justice Ginsburg said on Roe v. Wade, ``My view is that if
Roe had been less sweeping, people would have accepted it more
readily.'' Do you think she was unable to keep an open mind in
cases implicating Roe? Do you? Do you think she was unable to
keep an open mind? Just answer me about her, not about what you
think--
Judge Roberts. Senator, I'll explain why she expressed her
views on that particular issue. It was an explanation that she
gave at the time, that she had written extensively on that
subject and she thought that her writings were fair game for
discussion. She took a different view--
Senator Schumer. But she--excuse me, I just--because I want
to--She would be expressing an opinion which might yield bias
whether she wrote before or not. She did it over and over
again. She praised Learned Hand's First Amendment decision in
Masses Publishing. I don't think she was unable to keep her
mind open on courts in that line. As Joe Biden said, in Moore
v. East Cleveland, she candidly--and I don't think she had
writings on that one. She expressed that the opinion has
difficulties. And other Justices have done it. Justice Bryer
talked about the topic at issue later in U.S. v. Booker,
Justice Powell about Miranda, Justice Souter about Miranda. It
didn't bias him in the Dickerson case. Not all of these people
had previously written.
You can make a distinction to every single example I give.
You can say, well, she wrote on that one. But when you add it
all up, you are being less forthcoming. I know you are doing
what you feel is right, but you are being less forthcoming with
this Committee than just about any other person who has come
before us. You are so bright and you know so much, but there is
another aspect to this, which is letting us know what you
think. And you have set up your own little construct. It is not
really the Ginsburg precedent or it isn't Canon 5, which you
cited repeatedly at your court of appeals hearing.
And so let me ask you this one question and then you can
answer it in general. Has there been any judge that you are
aware of who has had to recuse himself or herself because of
what they said at a confirmation hearing? Can you name for me a
judge who you think was biased or not able to render justice
because they gave their opinion at a confirmation hearing,
sitting at this table as you do?
Judge Roberts. I think, because the Justices have followed
the approach that I am following, and as I said, I've gone back
and read every one of the transcripts for the Justices, they
have avoided commenting on whether they think decisions were
correctly decided or not. If you look at what Justice Ginsburg
said when she was asked whether she thought the Mayer and
Harris cases were correctly decided, you will see she said, I'm
not going to comment on that. She said, I know what the
precedents are, I have no agenda to overrule them, and that's
all I'm going to say.
Senator Schumer. She commented on many other cases, as you
went through with Senator Biden yesterday and as we have gone
through a little bit here. She commented on many different
cases, didn't she?
Judge Roberts. My understanding--
Senator Schumer. There were reasons, but she did comment on
other cases, didn't she?
Judge Roberts. My understanding of the cases she felt it
appropriate to comment on, as I've said, were the ones where
she had already written on it. And she said, I think my
writings are appropriate.
Senator Schumer. There are no cases she commented on where
she hadn't written?
Judge Roberts. I thought she adhered to her view. Her view
was no hints, no forecasts, no previews. That's exactly what
she said. That's an exact quote from her hearing transcript.
Senator Schumer. I have to say, sir, I disagree with you. I
have looked at her testimony. She didn't comment on some cases
and commented on others. If you look at how many she commented
on and how many she didn't, it is a far different balance than
you, who have commented on Marbury, Brown, Griswold, and not
much else. And each time, even when we talked yesterday about
Wickard v. Filburn--and it is a 1942 case, it is at the root of
a large, it is a trunk of a large tree of constitutional law--
you were unwilling to comment. And of course you say it might
come before the Court. But that is a prediction. Some may, some
may not. Maybe a Brown case would come before the Court. Maybe
a Griswold case would come before the Court. And if you had
wanted to, you could have easily said those may come before the
Court and not answer those. It is sort of your own little way
of doing it.
I just have one more question here. The President, as I
said--and this motivates some of us--he said he wants to
nominate judges in the mold of Thomas and Scalia. I want to ask
you, are you in the mold of Thomas and Scalia? The President
said he wanted to nominate people that way.
Judge Roberts. Well, Senator, I'll give the same answer I
gave yesterday to Senator Graham when he asked if I would be in
the mold of the Chief Justice. And the answer is I will be my
own man on the Supreme Court. Period.
Senator Schumer. I appreciate that.
Do you think they are activist judges?
Judge Roberts. I'm not going to criticize them with respect
to any general description of that sort. I'm sure there are
cases where I would agree with them, there are cases where I
would disagree with them, as with all of the Justices.
Senator Schumer. Right. Okay. Now--by the way, I will note,
I don't think I have time here, but you did criticize in a memo
back when you were working in Attorney General Fred Fielding's
office, Brennan and Marshall as activist judges. Now, I don't
think that was the official position of the Reagan
administration, so it seemed to be your opinion. Can you tell
me in 30 seconds, so I can just ask one more question, how is
it different not to want to characterize Justices Thomas and
Scalia but it was okay to characterize Justices Marshall and
Brennan as activist?
Judge Roberts. Well, that was a--it was a reflection of the
views of the Attorney General at the time, and that was part of
the administration's position.
Senator Schumer. But was it official Reagan policy?
Judge Roberts. I don't think it was official policy. It was
an expression that the Attorney General had made on various
occasions.
Senator Schumer. Let me just say, sir, in all due respect--
and I respect your intelligence and your career and your
family--this process is getting a little more absurd every
time--the further we move. You agree we should be finding out
your philosophy and method of legal reasoning, modesty,
stability, but when we try to find out what modesty and
stability mean, what your philosophy means, we don't get any
answers.
It is as if I asked you what kind of movies you like. Tell
me two or three good movies. And you say, I like movies with
good acting. I like movies with good directing. I like movies
with good cinematography. And I ask you, no, give me an example
of a good movie. You don't name one. I say give me an example
of a bad movie. You won't name one. Then I ask you if you like
``Casablanca,'' and you respond by saying, Lots of people like
``Casablanca.''
[Laughter.]
Senator Schumer. You tell me it is widely settled that
``Casablanca'' is one of the great movies.
Chairman Specter. Senator Schumer, now that your time is
over, are you asking him a question?
Senator Schumer. Yes. I am saying, sir, I am making a plea
here. I hope we are going to continue this for a while, that
within the confines of what you think is appropriate and
proper, you try to be a little more forthcoming with us in
terms of trying to figure out what kind of Justice you will
become.
Chairman Specter. We will now take a 15-minute break and
reconvene at 4:25.
Judge Roberts. Mr. Chairman, could I address some of the--
Chairman Specter. Oh, absolutely. Absolutely. I didn't hear
any question, Judge Roberts, but you--
Judge Roberts. Well, there were several along the way. I
will be very succinct.
Chairman Specter. You are privileged to comment. This is
coming out of his next round, if there is one.
Judge Roberts. Oh, well, then.
[Laughter.]
Senator Schumer. I guess there will be.
Judge Roberts. First, ``Dr. Zhivago'' and ``North by
Northwest.''
[Laughter.]
Senator Schumer. Now how about on the more important
subject of what cases--
Judge Roberts. On the more important subject, I--
Chairman Specter. Let him finish his answer. You are out of
time.
[Laughter.]
Judge Roberts. The only--
Senator Schumer. Not out of movies.
Judge Roberts. The only point I would like to make, because
you raised the question how is this different than Justices who
dissent and criticize and how is this different than
professors. And I think there are significant differences. The
Justice who files a dissent is issuing an opinion based upon
his participation in the judicial process. He confronted the
case with an open mind, he heard the arguments, he fully and
fairly considered the briefs, he consulted with his colleagues,
he went through the process of issuing an opinion. And in my
experience, every one of those stages can cause you to change
your view. The view you ask, then, of me, well, what do you
think, is it correct or not, or how would you come out, that's
not a result of that process. And that is why I shouldn't
respond to those types of questions.
Now, the professor, how is that different? That professor
is not sitting here as a nominee before the Committee. And the
great danger of courts that I believe every one of the Justices
has been vigilant to safeguard against is turning this into a
bargaining process. It is not a process under which Senators
get to say I want you to rule this way, this way, and this way.
And if you tell me you'll rule this way, this way, and this
way, I'll vote for you. That is not a bargaining process.
Judges are not politicians. They cannot promise to do certain
things in exchange for votes.
And if you go back and look at the transcripts, Senator, I
would just respectfully disagree. I think I have been more
forthcoming than any of the other nominees. Other nominees have
not been willing to tell you whether they thought Marbury v.
Madison was correctly decided. They took a very strict
approach. I have taken what I think is a more pragmatic
approach and said if I don't think that's likely to come before
the Court, I will comment on it. And, you know, again, perhaps
that's subject to criticism, because it is difficult to draw
the line sometimes. But I wanted to be able to share as much as
I can with the Committee in response to the concerns you and
others have expressed, and so I have adopted that approach.
Senator Schumer. Thank you.
Chairman Specter. 4:25. We are anxious to try to conclude
your testimony, Judge Roberts, as early as we can. I know you
will agree with that.
Judge Roberts. Thank you, Mr. Chairman. Sorry--thank you
for the accommodation.
[Recess 4:13 to 5:10 p.m.]
Chairman Specter. We found out as soon as we had completed
the recess that a vote had been called, and the Senators have
been over voting, which accounts for the slight hiatus here,
but we are now going to proceed.
It is the turn of Senator Cornyn for a 20-minute round.
Senator Leahy. I am sure, Mr. Chairman, the Judge just
missed us terribly, could not wait for us all to get back here.
Judge Roberts. Glad we're back.
Chairman Specter. He may have missed us just under the
theory that the sooner we start, the sooner we end.
Judge Roberts. Thank you.
[Laughter.]
Chairman Specter. But that principle may not apply here.
Stare decisis would suggest that it does not.
Senator Cornyn.
Senator Cornyn. Thank you, Mr. Chairman.
Judge Roberts, my observation is that you have been
completely bipartisan when it comes to refusing to answer
questions either from this side of the aisle or that side of
the aisle, that you feel would compromise your independence as
a judge or violate your code of conduct as a judge. I have to
tell you though that there are people who may be keeping score
of how many questions you are answering propounded by this side
and that side. And I guess one way to sort of run the score up
would be to keep asking questions that you know you cannot
answer, and thus to claim some grievance or advantage when it
comes to making that comparison, but I hope we do not do that.
I want to talk to you a little bit--well, first of all,
before we go there, I know one of the questions involved the
Code of Judicial Conduct and whether you were proscribed by
that and the differences between what you have felt at liberty
to testify to, and Justice Ginsburg did. But I notice that in
the commentary to Canon 5, the Model Code of Judicial Conduct,
the last sentence says, ``This section applies to any statement
made in the process of securing judicial office, such as
statements to commissions charged with judicial selection and
tenure, and legislative bodies confirming appointment.'' Is
that your recollection of the Code's scope?
Judge Roberts. Yes, Senator.
Senator Cornyn. I would ask unanimous consent that that be
made a part of the record.
Chairman Specter. Without objection, it will be made a part
of the record
Senator Cornyn. Thank you, Mr. Chairman.
I will not dwell on this any more about the numbers of
questions asked, but I know we are now up to about 66 questions
that you have responded to on the role of a judge and your
judicial philosophy, 48 on civil rights and discrimination, 44
on abortion and privacy.
Let me ask you this, if we keep asking the same question
over and over and over again, but try to approach it from a
slightly different way to get you to answer a question that you
do not feel you can ethically answer, are you going to give us
a different answer, or are you going to give us the same
answer?
Judge Roberts. I hope my answer would be the same, Senator.
Senator Cornyn. I am sure that is the case. We talked about
the Code of Judicial Conduct and your ethical obligation. We
have talked about the practical aspects of being a judge and
the importance. And I guess this is not just practical. It is
really a constitutional duty that judges have to maintain
judicial independence, even from the legislative branch, by
making commitments of performance in office as a condition to
your confirmation.
But I want to also ask you what I would call, I guess for
lack of a better phrase, practical reasons why it is hard if
not impossible, even if a judge wanted to, to be able to
accurately predict how you might decide a particular matter. I
was interested to hear Senator Biden earlier ask you about
right-to-die issues, and you said, ``I can't answer the
question in the abstract,'' and he said, ``That's not abstract,
that's real.'' And you said, ``Well, Senator, as a legal matter
it is abstract because the question would be in any particular
case, is there a law that applies that governs that decision?''
That prompted me to think of in addition to, as I think
Senator DeWine asked you about, the case or controversy
limitation in Article III of the Constitution, that limits the
manner in which you might reach a particular issue, so it
requires a case or controversy. He talked about standing and
the importance of litigants actually having a stake in the
outcome so they are willing to fight hard in the adversarial
process.
Could you explain, for example, why the adversarial process
is so important? And it is important for judges to make sure
that people have an actual stake in the outcome, rather than,
let us say--well, I know Senator Brownback, Senator Coburn, all
of us get letters from constituents that say, ``What is your
position on the Base Realignment and Closing Commission?'' And
why we just cannot write judges letters and ask what your
opinion is just sort of for an advisory capacity.
Judge Roberts. Well, that actually goes back very far in
our history, as you know, to the early States when John Jay, I
believe, as the first Chief Justice, was asked for his opinion
on a matter, and he made the determination that it would be
inappropriate to give that kind of advice. It was really one of
the leading historical episodes that contributed to
implementing the separation of powers. I think he appreciated
that if he started just giving advice on legal questions that
were of concern to the President, that he would be acting more
like an Attorney General and it wouldn't be separated from the
Executive. And then he would be in a position of giving the
President advice, while at the same time ruling on the legality
of his conduct. I think the reason John Jay decided that was
not appropriate for these new judges on the new Supreme Court
to give advisory opinions is because he appreciated that they
were in the Judicial Department, as the Constitution put it,
not in the Executive Department, or if the advice, request for
advice had come from the Legislature. It's an important part of
the separation of powers that our courts don't give advisory
opinions.
Now, some State courts do have a different system of
separation of powers, and in some State courts the Supreme
Court will give an advisory opinion, but the Federal rule has
always been that you have to have a constitutional case or
controversy.
Senator Cornyn. Is that a constitutional limitation?
Judge Roberts. It's in Article III, yes.
Senator Cornyn. I mean it is not something you can take or
leave?
Judge Roberts. No. The requirement of an actual case or
controversy is derived from the Constitution. There are some
aspects of standing doctrine that are, they say, prudential, in
other words, that it's up to the Court whether to apply them or
not, but the core requirement, that the litigants have a stake
in the issue, a case or controversy, is a constitutional
requirement.
Senator Cornyn. In getting back to Senator Biden's question
about right to die, and what you believe or what your position
would be if that were to come before the Court. It just
occurred to me you would have to determine whether there was in
fact a case or controversy, whether there was actually a person
that had standing, that is, with a concrete stake in the
outcome that brought the lawsuit, so as to preserve that
adversarial process. It would, I imagine, if you are sitting as
an appellate judge, either in the circuit court or Supreme
Court, you would want to look and see what the evidence is, and
maybe, for example, whether it would make any difference in a
right-to-die case whether someone had a living will or not, and
what the evidence was in the court below before you could
really sort of make a pronouncement from on high, that, yes,
right to die trumps everything.
Judge Roberts. Well, it's hard to know whether it trumps
something until you know what the other something is, and that
includes what the legislation might be. I've had many questions
before this Committee about the importance of deferring to the
legislature in areas in which Congress is given authority under
the Constitution.
Well, as a judge, before I would propound the idea of
right, that it does not matter what the issue is on the other
side, I would like to know if a legislature had addressed that
issue. Now, sometimes, as you know, legislatures can exceed
their constitutional bounds and there are rights under the
Constitution that individuals have that trump efforts by the
legislature to address those or infringe upon them, but you
need to know what the issue is in terms of the conflict between
an asserted right and an asserted power of the legislature. I
do not think members of a legislative body would accept the
principle that you would decide a case like that without even
knowing what the legislature had enacted or what the issue was
or why they had decided that this was an appropriate area of
legislation. That is not deciding the controversy. It is just
saying we need to have the issue narrowed in a way that courts
are familiar with addressing.
Senator Cornyn. Well, then, of course, juries in many
instances are the fact finder, and their determination is
usually binding on not only the court below, but also appellate
courts reviewing that, and I guess citizens would feel that
they were engaged in a futile exercise of serving on juries and
listening to evidence and trying to decide disputed facts if
the judge on appeal was just going to say, you know, ``Let us
throw that out the window. We do not really care because this
is a result we want to reach in a particular case.''
Judge Roberts. Well, judges, when they sit down to decide a
case, when the cases come into the chambers, judges don't sit
and decide, well, what do I think about issues under the Fourth
Amendment or the Fifth Amendment or the Seventh Amendment. They
want to know what the case is about, and that begins with
knowing what the factual dispute is about and what the record
is. Then they want to know what law applies in resolving that
question. And they want to know what the arguments are. That's
why we have briefs on one side, then briefs on the other. And
I'm sure you've had the same experience that I've had, which is
that you find the opening brief can be very persuasive; then
you move on to the second one, and you see it in an entirely
different light. And maybe your view of the case will change
again as you consult with your colleagues on the bench or as
you hear the oral argument.
I know I spent a lot of time doing those briefs and
arguments, and I certainly hope they had some impact on a case
from time to time. And then when you sit down with the judges,
all of these things, your view of the case is going to change
in some way at every stage. And to say that it's the same thing
when you sit down and ask an abstract question as when you have
been through the judicial process and reached a decision,
including having to reduce it to writing, the requirement that
judges write opinions is an important discipline on the
decisional process, because--and those opinions are going to be
submitted to the public, and everyone is going to be able to
see your reasoning. And so it has to be coherent and reasonable
and something that can stand the glare of publicity and the
scrutiny of scholars and other judges.
That's a very important discipline. It means--it's quite a
bit different than saying, well, what do you think about this
and whatever opinion you might give.
Senator Cornyn. I am also, of course, intrigued by how
poorly Senators, Presidents, and others who try to predict how
a life-tenured judge or Justice on the Supreme Court is likely
to look at issues next year, 10 years, 20 years down the road.
And it just occurs to me that there is a long list of examples
where life tenure and the lack of electoral or political
accountability has caused judges to change the way they perhaps
have looked at things over time, and I guess how badly
Presidents have guessed sometimes about how a judge will decide
cases in the future. And I think, you know, one of my favorites
is Teddy Roosevelt and Oliver Wendell Holmes, when he said, ``I
could carve more backbone in a banana than demonstrated by this
Justice.'' He was pretty hot.
So, in addition to the ethical, the constitutional, the
practical limitations, it just seems to me that we are engaged
in a little bit of a futility here because when you are
confirmed--and I expect that you will be confirmed--the
designers of our Constitution expected and created a system
where you would be immunized or at least insulated, I should
say, from political or other pressures.
I know there were questions about--I want to move quickly
to your participation in a lawsuit. Let me see. It was the
Hamdi case?
Judge Roberts. Hamdan was the one that--
Senator Cornyn. Hamdan.
Judge Roberts. Hamdi was the one in the--
Senator Cornyn. Supreme Court, right. Sometimes I confuse
those.
Judge Roberts. It is a common source of confusion.
Senator Cornyn. And we have had a little back and forth. I
think Senator Feingold asked about the ethics of your
participation. Senator Graham I thought made a very good point
in talking about if a President wanted to disqualify a judge in
a case, well, just call the judge up and tell him, ``You are
being considered for a Federal appointment,'' which certainly
cannot be right.
But do you know for a fact that Justice Breyer, when he was
being considered about a possible nomination to the Supreme
Court, sat and decided seven cases while sitting on the First
Circuit Court of Appeals? Are you familiar with that statistic?
Judge Roberts. No, I'm not, Senator.
Senator Cornyn. Okay. Well, our research reveals that that
is, in fact, what happened, and so if Justice Breyer could
participate fully in the court's decisionmaking process while
being considered by President Clinton for appointment to,
nomination to the Supreme Court, it strikes me that we should
not have a different standard. And I am not asking you to
comment on that because you said you are not familiar with
Justice Breyer's record. But if that is true--and I believe it
is, that he sat on seven different cases involving the U.S.
Government and the executive branch while he was being
considered for the Supreme Court, we shouldn't hold John
Roberts to a different standard. And that is my view.
We have about 5 minutes. Let me just ask you just as a
practical matter, I worry when I see that the Supreme Court's
opinions are so fractured and divided as you alluded to, I
believe, on the question of the Ten Commandments. The only one
that agreed with both decisions that the Ten Commandments could
be displayed in Texas but not in Kentucky was Justice Breyer.
And there were ten opinions in those two cases, which led the
former Chief Justice Rehnquist to quip, ``Well, that's more
opinions than we have Justices.'' Ten opinions for nine
Justices in that case which decided the constitutionality of
the Ten Commandments.
Well, it strikes me that one of the goals of the Court
ought to be--of any court ought to be to write decisions that
can be read and understood by a person of reasonable
intelligence and, frankly, Judge, I have to tell you that
lawyers struggle, no doubt circuit court judges, trial court
judges such as in the court you serve on now struggle to try to
figure out just what in the world the law actually is. And it
breeds additional litigation, a lot of money, a lot of time
spent just litigating issues that the Court could, if it had
the will, clearly decide.
And in some ways, I think it leads some observers to wonder
whether the Supreme Court is firmly grounded in the reality of
how their decisions will actually be read and understood and
implemented, either by lower courts or by litigants who are
trying to figure out what is the law, so how can I conform my
behavior and how can I make plans in a way that I can rely upon
is legal.
I would be interested in your observations.
Judge Roberts. Well, Senator, I hope we haven't gotten to
the point where the Supreme Court's opinions are so abstruse
that the educated lay person can't pick them up and read them
and understand them. You shouldn't have to be a lawyer to
understand what the Supreme Court opinions mean. One of the
reasons I've given previously for admiring Justice Jackson is
he was one of the best writers the Court has ever had, and I
think you didn't have to be a lawyer to pick up one of his
opinions and understand exactly what his reasoning is and why
he is saying that, and if he is citing and relying on
precedents, he cites them and explains them. They are not
written in jargon or legalese, but an educated person whose
life, after all, is being affected by these decisions can pick
them up and read them, and you don't have to hire a lawyer to
tell you what it means. I hope we haven't gotten to a point
where that is an unattainable ideal.
Now, I'm not suggesting that I've always lived up to that,
and I'd hate to have somebody go back and look at my opinions
and critique them under that exacting standard. But I do think
that's something that it's worth shooting for, at least in most
cases, that opinions should be accessible to educated people
without regard to whether they're lawyers or not.
Senator Cornyn. Well, I think your experience as both a
lawyer practicing before the Supreme Court and advising
clients, as well as being a circuit court judge and trying to
apply those as an intermediate appellate court, will help you
understand that and the importance of that.
In the last few seconds we have here, you know, I was
reflecting on the Ten Commandments cases, and I was thinking
that, as crazy as it struck me that they would uphold it in
Texas but strike it down in Kentucky, you know, I wondered--I
am glad they did not take out their blue pencil and try to edit
the Ten Commandments, because several of them--Thou shalt not
murder; Thou shalt not steal; Thou shalt not give false
testimony against your neighbor--it is hard for me to see how
those violate the Establishment Clause. But maybe that is
another topic for another day.
Thank you very much, Judge.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator Cornyn.
Senator Leahy and I have been discussing the schedule.
There had been a request for 30 additional minutes, all to be
done tomorrow. A schedule has been structured which will
conclude shortly before 8 o'clock this evening, and we will
take a little time in the morning and then move ahead to the
public witnesses. So that what we will be having is Senator
Durbin will have his 20 minutes from 5:35 until 5:55. Senator
Brownback will then have his 20 minutes and Senator Coburn will
have his 20 minutes from time yielded back. And the Republicans
met and decided we would not take a third round, in order to
expedite the process.
Tomorrow morning, Senator Kennedy is willing to negotiated
30 down to 20 if it is tomorrow morning, so he will be on at 9
o'clock. And Senator Feinstein will be on this evening from
6:30 to 6:45 and again tomorrow morning from 9:20 to 9:35. I
will post these so everybody will know exactly where everybody
stands. Senator Feinstein will have the advantage, to some
extent, of an overnight transcript, which she had been
concerned about.
Then I believe we will proceed next week to--we have an
exec set for the 20th, but with agreement among the Democrats
that we can hold it on the--
Senator Leahy. Is the 20th?
Chairman Specter. It is a Tuesday.
Senator Leahy. My proposal, and I would commit to you on
this, that--just so people watching can understand--the Judge
knows this--that under our rules, when we have a markup in
exec, when the nomination would come up, any Senator has the
right, for any reason whatsoever or no reason, to put it over
for one week, which, where this is now set for Tuesday, would
put it over to the following Tuesday.
My proposal, and the Chairman has been accommodating of
what we have been trying to do, is that I would commit to him
that we would move the exec to Thursday of next week, which
would give everybody plenty of time to read all the transcripts
and everything else. On Thursday we would waive--and I am sure
nobody on your side is going to ask--to put it over by 1 day,
so we will debate it, whatever appropriate time that is, on
Thursday. We will vote on Thursday within the Committee. Then,
of course, it is out of our hands. It is up to the leadership
to schedule what time they want it on the floor. I understand
they want to do it sometime--
Chairman Specter. I think Senator Frist, the leader, will
want to bring it to the floor on Monday, the 26th. But he will
make the final judgment on that. And Senator Leahy and I have
talked between ourselves, on the exec we are going to set the
pattern for 10-minute statements and ask that that pattern be
followed. All Senators have rights as they choose.
I personally am opposed to a third round. But in the face
of requests by many of my colleagues on the other side of the
aisle for a third round, and in light of its being a lifetime
appoint for Chief Justice and all the other factors, I want to
accommodate people as best I can. And I don't want to run too
far into tomorrow because I want to finish the public witnesses
tomorrow. We may have to run very late, but it is easier to run
later with the public witnesses because we have 31 and six
panels and they will all be fresh. And Judge Roberts, whom I
conferred with before discussing the matter with Senator Leahy,
is a very, very good sport. The one question he answered
positively and affirmatively was whether he could take it until
8 o'clock this evening, and he said he could. I don't think it
advisable to take him beyond that time. So we will spill over a
little bit into tomorrow morning.
Senator Leahy. Mr. Chairman, as I have noted, you have been
fair in listening to us. We all think so, obviously. And I
think Judge Roberts would be the first to say this. This is a
very serious thing. We are talking about the Chief Justice of
the United States. We should take time to do it right. I
commend Mrs. Roberts, who has sat through this. And of course
you, Judge, cannot see her, but the look of love and devotion
from Mrs. Roberts, is probably what is sustaining you through
these long hours, and I commend her for doing it.
But I also want to applaud the Chairman. He has been fair.
We have discussed--I said yesterday or the day before; they
blur--that the Chairman and I, I think, have each other's home
numbers on speed dial, we have talked so much. He has fulfilled
every one of his commitments. We have worked hard to fulfill
ours. We all take this seriously. A number of people have
announced how they are going to vote, and that is fine.
Everybody has a right to do it. Every member of the Senate is
going to think of this seriously and will vote as they are
going to vote. I just want to make sure that when anybody votes
that they know what they have.
With that, Mr. Chairman, I commend you again for running a
very fair, very open, very honest hearing.
Senator Schumer. Mr. Chairman?
Chairman Specter. Thank you for your cooperation, Senator
Leahy.
Just a moment and I will recognize you, Senator Schumer.
I don't want anybody to feel they have been short-changed
by the spilling over a little. I feel my duty is to have this
matter resolved by October 3rd. And I think, if confirmed,
Judge Roberts can take the seat as Chief Justice on October
3rd. That is what I am looking toward.
And to the extent possible, I want people on this Committee
to feel good about what we are doing and have sufficient time.
Senator Schumer?
Senator Schumer. Mr. Chairman, I just wanted to go over the
schedule. So we will start the third round this evening of 15-
minute rounds and then continue tomorrow?
Chairman Specter. That is correct, except for Senator Leahy
was taking 10 and 10 as ranking, and Senator Kennedy is going
to take 20, but all tomorrow morning, giving up 10 minutes for
the morning.
Senator Feinstein. I get 15 tomorrow morning.
Chairman Specter. You have 15 tomorrow morning and 15 this
evening.
Senator Schumer. Same here.
Chairman Specter. And the same for Senator Schumer.
Senator Schumer. Mr. Chairman, I just want to thank you. I
think you are being--I want to commend you and Senator Leahy.
You are being fair and we are getting a full opportunity to ask
questions.
Chairman Specter. Do I understand you are waiving the
fourth round, Senator Schumer?
Senator Leahy. As well as the fifth.
Chairman Specter. Senator Durbin, you are recognized for 20
minutes. On to business, Judge Roberts.
Senator Durbin. Thank you very much, Mr. Chairman. And
thank you for your fairness. Judge Roberts, good to see you
again, and Mrs. Roberts, friends and family.
Yesterday and again today, you have continued to prove your
legal talents. I remember law students with your talents when I
was in law school. I had to get to know them in the first year
because they were then off to the Law Review, and I was off to
buy another Gilbert's Outline. I didn't see them again.
But today I have noticed that the questions have changed
some. The questions have gone beyond your resume and beyond
your legal skills. And I think it relates to the fact that so
frequently, when asked, you have said, appropriately, that you
will be driven and inspired by the rule of law, which is an
appropriate term but a hard and cold term by itself. We know
you have the great legal mind and have proven it here. But the
questions that have been asked more and more today really want
to know what is in your heart, and I think those are
appropriate.
When you look down from the bench or read a trial
transcript, do you just see plaintiffs and parties and
precedents, or more? Do you see the people behind the
precedents, the families behind the footnotes? I think that is
what many of us are driving at with these questions.
You have lived a comfortable life. Court cases often
involve people who have not. Many times, contests between the
powerful and the powerless, as someone said in the opening
statement, are contests where the powerless just have the rule
of law and the Constitution on their side, praying for relief
for their day in court.
Aside from a few pro bono cases, as important as they are--
and I salute you for being involved in them--what would the
powerless, the disenfranchised, minorities, and others see in
your life experience that would lead them to believe that they
would have a fighting chance in your Court?
Judge Roberts. Well, Senator, I think there are many things
that people could look to. You said I had a comfortable life. I
think that's a fair characterization. I had a middle-class
upbringing in Indiana. As part of that, I worked in the steel
mills outside of Gary during the summers, as soon as I was old
enough to do that, and throughout my life have been exposed to
and mixed with at school, learned and played with people of a
wide variety of backgrounds. Comfortable, yes, but isolated, in
no sense.
I was, I would say, a typical middle-class kid growing up
in Indiana and had, I think, a great upbringing. I was
privileged in the sense of having my parents and sisters
contributing to my upbringing and education. And I think people
looking at my life would see someone in that experience, and
obviously with limitations. I wasn't raised in other places in
the country. I might have a different perspective if I were. I
wasn't raised in different circumstances and would have
different experiences if I were. If you look at the Supreme
Court, the people there come from widely different backgrounds
and experiences, and I think that's a healthy thing.
But as far as someone going into Court and looking to see
why they would expect to get a fair hearing from me, I think--
and I can answer this with respect to the court I am on now.
It's hard for me to imagine what their case is about that I
haven't been on their side at some point in my career. If it's
somebody who's representing welfare recipients who have had
their benefits cut off, I've done that. If it's somebody who's
representing a criminal defendant who's facing a long sentence
in prison, I've done that. If it's a prosecutor who's doing his
job to defend society's interest against criminals, I have been
on the side of the prosecution. If it's somebody who's
representing environmental interests, environmentalists in the
Supreme Court, I've done that. If it's somebody who's
representing the plaintiffs in an antitrust case, I've been in
that person's shoes; I've done that. If it's somebody
representing a defendant in an antitrust case, I've done that
as well.
It's one of the, I think, great benefits of the opportunity
I've had to practice law as I have, is that it has not been a
specialized practice. I have not just represented one side or
the other. I've represented all of those interests. And I think
those people will know that have had their perspective. I've
been on the other side of the podium with a case just like
theirs, and that should, I hope--and I hope it does now--
encourage them that I will be fair and that I will decide the
case according to the law, but I will have seen it from their
perspective.
Senator Durbin. So let me follow through on that because I
think that is what people need to hear, but we need to apply it
to your real life and legal experiences. Let me talk to you
about a case where you were involved in as a private attorney.
Today, there are about 45 million uninsured people in
America. Too often Americans with insurance can't receive
coverage for medically necessary procedures and have to fight
the insurance companies. In my home State of Illinois, we have
a law called the Illinois Health Maintenance Organization Act.
I think you are familiar with it. It provides that if a
patient's primary care physician deems a proposed procedure to
be medically necessary but their HMO disagrees and denies
coverage for the procedure, the patient may have the HMO's
decision reviewed by an outside physician, the determination of
that outside physician binding on the HMO.
You challenged this law on behalf of an HMO that refused to
pay $95,000 for the shoulder surgery of Debra Moran of my State
of Illinois. The case went to the Supreme Court in 2002. You
argued for Rush Prudential, and you argued they weren't subject
to the Illinois law governing HMOs because, you said, they
weren't really an insurance company.
You claimed that since the HMO was not providing health
care but merely a promise to pay for health care, it was
exempt. Thankfully, from my point of view, you lost the case.
If you had won it, it would have put millions of American
consumers and families at risk of losing coverage for necessary
health care.
Judge Roberts, did you have any reservations about taking
this case?
Judge Roberts. No, Senator, I did not. The result in the
case, I did lose. I lost 5-4, if I'm remembering correctly. In
other words, four of the Justices on the Supreme Court thought
the argument we were--I was making on behalf of my client was
correct. It has always been my position that I do not sit in
judgment other than once I've satisfied myself that the legal
arguments are reasonable ones, within the mainstream, if you
will, that I don't decide whether that's the way I would rule
as a judge or whether I would rule the other way.
My practice has been to take the cases that come to me, and
if the other side in that case had come to me first, I would
have taken their side.
Senator Durbin. So you didn't step back at any point in
your practice and say, ``No, I am not going to do this. I can't
be associated with a case or a cause, even though it may be
legal and ethical, that might cause so much harm to so many
innocent people''?
Judge Roberts. That's a judgment for the legal system to
make. They're asserting legal rights. Lawyers aren't judges
when they're representing clients. They don't sit there and
say--or maybe some do. I don't. I think it's a basic
fundamental principle of the legal system and the bar that you
take clients who have reasonable arguments--now, I'm not
talking about frivolous arguments. I don't take cases in which
those are raised. But the lawyers aren't the judges. The judges
are.
Now, the case you mentioned, you've explained the arguments
on one side. There were legal arguments on the other side, and
four Justices agreed with those. This isn't an extreme case
when it's decided 5-4. And that's one of the very points I was
making earlier, that I take cases on all sides of the issue.
You can go through and find cases. For example, when I was
asked to assist an inmate on Florida's death row, I didn't step
back and say, Well, is this really a good thing for me to
assist this individual guilty of--convicted of particular
murders? I took the case. When the various pro bono activities
in which my firm was involved, I didn't sit in judgment and
say, Is that something I agree with? Is it not something I
agree with?
I was a lawyer involved in that area of the law, and I
thought it my obligation to take the cases that come in.
Senator Durbin. Many of the organizations that oppose your
nomination represent minorities in America. You have the
distinction of being opposed by LULAC. This, of course, is the
first time this Hispanic organization has ever opposed a
Supreme Court nominee. You are also opposed by MALDEF. I
personally think that their feelings go beyond the ``illegal
amigos'' comment that you talked about yesterday. And I want to
point you to one particular area that they find troubling, when
I speak to them, and I find troubling. And it goes back to the
case of Plyler v. Doe, a 1982 Supreme Court case, that held it
unconstitutional to deny elementary education to children on
the basis of their immigration status. It was a Texas case
where the Court struck down the Texas law and allowed
elementary schools, 23 years ago, to refuse entrance to
undocumented children.
On the day the case was decided--and I think the timing is
important here, because it appears to be kind of a gratuitous
comment. It isn't as if you were asked for an opinion. On the
day it was decided, you coauthored a memo that criticized the
Solicitor General's office for failing to file a brief
supporting the Texas law which would have refused education to
these children. Your memo disagreed with the administration's
position on the case, so it isn't as if you were arguing the
Reagan administration's position. They had taken a different
position on the case.
Can you describe your involvement in the case? And I guess
more importantly, can you describe now how you feel about this
today, 23 years later, when the largest--
Judge Roberts. Well--
Senator Durbin. I will just finish, and I will leave you
the time you need to answer. When the largest, fastest-growing
segment of America's population is Hispanic, when the major
Hispanic organizations feel that this showed real insensitivity
to who they were and what their children needed? Can you
explain that memo that really wasn't part of the Reagan agenda?
Why did you say this?
Judge Roberts. Well, I think, Senator, if I'm remembering
the memo--and it was 23 years ago, and the case that was
decided was, I believe, again, a divided decision by the
Supreme Court. If I'm remembering the memo correctly, it was
making the point that the position was inconsistent with the
Attorney General's litigation policy approach, if that's the
right memorandum.
Senator Durbin. It is.
Judge Roberts. Well, in that case, again, as a staff
lawyer, I thought it was my obligation to call to the Attorney
General's attention activities in the Department that I thought
were inconsistent with what he had articulated as his approach.
And that is what I would have been doing in that case. And,
again, it would have been apparently supporting the State of
Texas in its legislative determination in that area.
Senator Durbin. Well, did you agree with the decision then?
Or do you agree with it now?
Judge Roberts. I don't--I haven't looked at the decision in
Plyler v. Doe in 23 years, Senator, and there is nothing
gratuitous about the memorandum. It obviously came out because
the decision came out. That would have been why I was advising
the Attorney General with respect to it.
Obviously, the importance of the availability of education
for all is vital. That's a different question than the legal
issues involved and whether a State law should be struck down.
Senator Durbin. Twenty-three years later, millions of
children have benefited from this decision. They have been
educated in America. Many have gone on to become citizens. Some
are business people. Some are professionals. Some are serving
in our military today because Plyler was decided in a way that
you apparently disagreed with 23 years ago. So my question to
you: For the Hispanic groups that oppose your nomination, what
is your feeling? Is this settled law as far as you are
concerned about our commitment in education in this country?
Judge Roberts. Senator, as I said, I have not looked at the
decision in Plyler v. Doe in 23 years. It's not an area that
I've focused on. And the issue is not my policy view about what
is a good idea for educational policy or national policy or
whether what the Texas legislators determined was a good idea
for Texas policy.
The question was a particular legal issue, and, again, the
Supreme Court was divided on that, so it is not as if we are
talking about a position outside the mainstream. And what I was
explaining, this was viewed, as the memo states, if it were
looked at in full, it was something that I thought was
inconsistent with what I understood the Attorney General's
approach to be, and it was my job to call that to his
attention, which is what I did.
Senator Durbin. Okay. I think you have taken refuge in the
fact that you were working for someone. The fact that this memo
came out the day after the decision I think is an important
circumstance.
But let me go back to the beginning, the first question,
the first day with Senator Specter. Wouldn't it be a jolt to
the system in America if we decided that we would no longer
offer education to these children?
Judge Roberts. Of course. Well, of course, Senator.
Senator Durbin. And so--
Judge Roberts. And then the decision in Plyler is a
precedent of the Court. I don't think it--I'm not aware that
it's been called into question in the intervening 23 years that
have passed since the time I wrote those two paragraphs in the
memo. And that is a precedent that is entitled to respect under
principles of stare decisis. And it's something that is where I
would begin if an issue arose in this area. I'm not aware that
any is arising in this area, but if an issue were to arise,
that's where I would begin, with the precedent that--
Senator Durbin. I just think that millions of Americans
would like to have heard you say I think it is a good idea, I
am glad we did it for America. But if you can't say it, you
can't.
Judge Roberts. Well, Senator, if I could just make the
point that the issue is not whether or not I thought it was a
good idea. That's not the job of a lawyer presenting legal
advice and legal--the legal implications of an issue to his
boss, the Attorney General. He wasn't interested in whether I
thought it was a good idea or not. He was interested in the
legal question of whether or not this was consistent with his
policy and his approach.
That's not taking refuge. That's explaining the
circumstances of a memorandum. And it's not avoiding an
expression about whether it's a good idea or not. It's
explaining that what we're dealing with--
Senator Durbin. But you have been unequivocal in your
statements supporting Brown v. Board of Education. No one has
suggested, in any respectable way, that we should return to the
bad old days of separate but equal. I mean, you have accepted
that is part of America. And the point I am trying to make to
you is, whether we are talking about millions of uninsured
people or millions of Hispanic children, I would think that it
would be a basic value. You would say this is good for America,
for people to have insurance, and bad for them to be denied. It
is good for America to see children with education rather than
to see them in the streets ignorant. It seems so fundamental.
Judge Roberts. Senator, do you--I don't think you want
judges who will decide cases before them under the law on what
they think is good, simply good policy for America. There are
legal questions there. And I'm sure there are clients that I
have represented in court that you would agree with. You would
say that's the right side of the cause to be on, whether it's
the environmental interests I represented in the Tahoe case,
whether it's the welfare recipients I represented pro bono in
the Bivens case, whether it's the cause of the inmate on death
row that I assisted in in Florida, whether it's the
environmental interests in Glacier Bay that I represented or in
the Grand Canyon on a pro bono basis. I'm sure I could go down
my list of clients and find clients that you would say that's
the right side, that's the cause of justice, and there are
others with whom you disagree.
My point is simply this, that in representing clients, in
serving as a lawyer, it's not my job to decide whether that's a
good idea or a bad idea. The job of the lawyer is to articulate
the legal arguments on behalf of the client.
Senator Durbin. I am just trying to get to the bottom line
about your values. If it is strictly a question about whether
this is a legal and ethical--an ethical legal question that can
be contested, then there are many positions you can take in the
law. Some I wouldn't be comfortable with, some you may not be
comfortable with.
Let me ask you one other question. Senators Coburn and
Brownback have, I think, sincerely and accurately expressed
their views on the issue of abortion. I think they have been
very articulate in saying so. Many would argue that it is one
of the most divisive legal and political issues we faced in our
generation. I would like to ask you this question. Why do you
think this issue is so important to so many women in America,
the whole question of Roe v. Wade, the question of reproductive
freedom, and the question of freedom of choice? Why do you
think it is so important?
Judge Roberts. Well, I think it's important, and again, to
women on both sides of the issue and also, I think, to men as
well, but obviously it's an issue that directly affects women.
It's a fundamental question, as the Court has addressed in Roe
and in Casey, that obviously affects the lives directly of
millions of Americans, and the availability of rights under
that decision affects women. But I know there are people of
strongly held views on both sides of the issue. And I know that
the responsibility of a judge confronting this issue is to
decide the case according to the rule of law consistent with
the precedents, not to take sides in a dispute as a matter of
policy, but to decide it according to the law.
And to the extent that your questions earlier about, you
know, causes we agree with, causes we don't agree with, I do
want to emphasize that there is a unifying theme in my
approach, both as a lawyer and as a judge. And that is the
cause that I believe in passionately, the one to which I have
devoted my professional career, is the vindication of the rule
of law. And I tried to explain in my opening statement on
Monday why that's important. Because without it, any other
rights that you may agree with as a matter of policy are
meaningless. You need to have courts that will enforce the rule
of law if you're going to have rights that mean anything.
Senator Durbin. I am running out of time, but I do want to
give you an opportunity. Last night I passed a memo along to
you relative to the Bob Jones University case. I don't know if
you have had a chance to look at it and can tell me whether
that is your handwriting on that memo, whether you were in fact
in a meeting involving the Bob Jones University decision with
the Reagan administration. Did you provide any input in the
meeting or have any conversations with Justice Department
personnel about the case?
Judge Roberts. It is my handwriting. It's a list. It's
apparently a meeting to discuss a number of civil rights
issues, six of them, I see. I did not participate in any way in
the Bob Jones case. It was apparently discussed, according to
this memo, at the meeting. The recusal rule that was at issue
says that I shouldn't participate by way of consultation or
advice, and I did not.
Senator Durbin. Thank you for clarifying that.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Durbin.
Senator Brownback?
Senator Brownback. Thank you very much, Mr. Chairman, Judge
Roberts, again.
Mr. Chairman, I want to enter into the record something
that has been cited to already but sent yesterday from the ABA,
the statement by the unanimous opinion of the ABA that Judge
John Roberts is well qualified for the position of Chief
Justice of the United States.
Chairman Specter. Without objection, they will be made a
part of the record.
Senator Brownback. Judge Roberts, I would note now you have
been here for 18 hours and 30 minutes of testimony. Just as a
reference, because people like statistics and records, Justice
Breyer was here for 18 hours and he was through. You may have
the end in sight, but you are not there yet, and you are going
to pass Justice Breyer and perhaps others.
I want to take you back to the First Amendment. This is an
area that I have just not understood where the Court has been
going. I hope you are willing to explain some of this
jurisprudence, or at least give me your thoughts on how the
Court got to where they did on these issues.
The First Amendment, everybody knows, requires that
Congress shall make no law abridging the freedom of speech. It
is well-known, well-regarded, and broadly interpreted by the
courts. In the four years, the Court had sternly disapproved of
restrictions upon certain forms of speech such as virtual child
pornography. The Court said you can't do that, limit that
speech. Tobacco advertising. The Court said you can't limit
that speech. Dissemination of illegally intercepted
communications. You can't limit that speech. Sexually explicit
cable programming. You can't limit that speech.
So the Court has been, it seems to me, very pronounced in
this area of free speech, basically telling the Congress you
can't limit it. The Court even extended this to the issue of
virtual child pornography. The case of Ashcroft v. Free Speech
Coalition. I want to describe this in a little bit of detail
because I want to then ask another question associated with it.
In Ashcroft v. Free Speech Coalition, the Court struck down a
congressional statute regulating pornography, in this case the
Child Pornography Prevention Act of 1996, and expanded the
Federal prohibition on pornography to include virtual child
pornography, realistic images which were made without the use
of actual children.
Congress based its opinion on the chance that pedophiles
would use this material to recruit individuals over the
Internet to draw in children into sexual activity. We found out
about that, investigated it, held a number of hearings, and
said we have to stop this stuff. But now, the Court says you
can't do it; it is a limitation on free speech.
Then, not long ago--as a matter of fact, the opinion was
issued in 2003--we had a big debate on campaign finance reform
in front of the Congress. One of the members of our Committee,
Senator Feingold, was one of the lead sponsors of the McCain-
Feingold legislation. It came in front of the courts, McConnell
v. Federal Election Commission, and the Court largely upheld
the McCain-Feingold law, one section of which did the
following: prohibited corporations, labor unions, and other
organizations from political advertisement that mentioned a
specific candidate or office-holder within 60 days of a general
election. You are probably very familiar with this legislation.
This was a big national debate. Under the Court's decision,
this congressional action prohibiting speech--and not just any
speech, and not just pornography--political speech close to the
time when people are making decisions on elections--was
constitutional.
The Court decided that this congressional action
prohibiting political speech could be upheld under a First
Amendment ostensibly designed to protect this form of political
participation and speech. I looked at that. I voted for the
McCain-Feingold law. I did not think there was any way the
Court would hold that this provision is constitutional because
it limits political free speech right when people are making
their decision.
One of leading abilities we have in this country is to be
able to criticize the Government, particularly at a point when
it matters the most right before elections. How do you square
such a broad interpretation of the First Amendment in these
cases and such a limitation on political free speech? Can you
explain that to me?
Judge Roberts. Senator, I'm not sure that I can put the two
together side by side and talk about it other than to say that
I think the Court tends to address each case on its own terms,
and in the case of the Bipartisan Campaign Reform Act, I do
know that we're dealing there with an extraordinarily extensive
record in that case. The judicial opinions addressing the issue
before three-judge District Court I know went on for several
hundred pages, just dealing with records and the issues
involved, the record that had been developed, including before
Congress.
My reading of the Court's opinion in the Bipartisan
Campaign Reform Act case is that that was a case where the
Court's decision was driven in large part by the record that
had been compiled by Congress. I think the determination there
was based--just reading the opinion, there's no great insight--
that the extensive record carried a lot of weight with the
Justices.
Now, with respect to the other areas, again, I think the
Court would tend to look at those, sort of put the one case
aside and then move on to the next case, and they're dealing
there with developments in that area, and again I--
Senator Brownback. Does this not strike you as odd, these
two decisions side by side under the same First Amendment?
Judge Roberts. Only in the sense, Senator, that obviously
they come out different ways, and your point that the political
speech is generally regarded as at the core of what the First
Amendment was designed to protect, and some of the other
speeches is not. I certainly appreciate that concern, but
whether--again, whether the particular cases were correctly
decided or not is not something I feel is appropriate for me to
discuss.
Senator Brownback. I looked at those and they just did not
make much sense. If you are going to read the First Amendment
expansively, which I agree with, that reading should be
consistently applied.
I want to go to an issue that is likely to come before you,
and I recognize you are not going to give a pre-opinion on it,
but I just want to make a point in talking about it. That is
the issue of marriage and its definition by the courts, and
taking the issue of marriage from legislative bodies to the
Court. This is one of the most driving issues in the political
environment in the United States today.
If the Court comes in and trumps the Congress and State
legislatures on this issue and says legislative bodies cannot
decide this issue because it is as a matter of constitutional
law, it will create an enormous jolt in the system and
potentially change a series of marriage laws that have been
passed by legislative bodies. Forty-five of our 50 States have
passed either constitutional amendments or statutes that
preserve the traditional definition of marriage as the union of
a man and a woman. It has been addressed in all regions of the
country.
I bring it up to you because a Federal court has now ruled
on this issue. In Nebraska, one Federal judge has said that the
Nebraska constitutional amendment violates the U.S.
Constitution. Now all the States are rushing to pass
constitutional amendments, but everybody is scared of what the
U.S. Supreme Court is going to do. Nebraska passed its State
constitutional amendment by a 70 percent vote of the Nebraskan
people. These are good-hearted, good people. They want to try
to do what is right.
One Federal judge comes in and throws all these Federal
constitutional issues on it saying it: violated the First
Amendment right to free association; violated equal protection
guaranties; and then--I do not know where he got this one--
represented an unconstitutional bill of attainder, which is
legislation drafted at a particular individual.
I just hope if you are confirmed on the Court that you
would look at what happens if the Court comes in and stomps on
this issue that has stirred up so much discussion.
These are issues properly left to legislative bodies and
people to shape, to look at, to debate and to consider, and
left to movement back and forth within the legislative arenas.
If you come in and you say there is a constitutional right to a
broader definition of marriage, and the Court says that is the
way it is going to be, it takes something out of the system
that should be there--discussion--it should be allowed to
mature there.
And we will be here years later like we are in the series
of Roe cases, where after 30 years now there is not more
acceptance of the rule opinion, but there is less acceptance in
America. This will not be like Brown v. Board of Education,
where after it was resolved society says, ``Okay, that was the
right way to go,'' and we would all say that today. Roe has
gone the other way, and this would create another issue like
that in Roe if it is picked up and stomped on by the courts.
I want to talk with you on another issue and just get your
opinion of another area of the Constitution.
You would agree under the Constitution that Congress has
the power to appropriate money?
Judge Roberts. Yes. The Framers regarded that as the basis
legislative power, the power of the purse.
Senator Brownback. And that that power is not given to the
judiciary, it is given to the legislative branch of Government?
Judge Roberts. Yes. Alexander Hamilton, in making his
point--I think it was Hamilton--that this was the least
dangerous branch, emphasized that the courts have neither the
power of the sword nor the power of the purse.
Senator Brownback. I want to point out to you--that this is
happening in State judiciaries; this is happening and being
considered now in the U.S. Federal courts. You will have in
front of you a case regarding the Solomon amendment that was
considered here. A recent Third Circuit Court of Appeals case
struck down the Solomon amendment on constitutional grounds.
Jerry Solomon, a long-term Member of Congress, a wonderful
gentleman, who has since passed away, had conditioned a
university's receipt of Federal funds on the university's
granting equal access to the military for purposes of
recruiting students. This amendment was passed by Congress.
It basically said, you need to allow military personnel
access if you want to receive Federal funds. It was considered
by Congress, and it was passed. The Third Circuit struck down
the Solomon amendment on constitutional grounds. The decision
has been appealed to you.
I obviously do not want you to declare your position on
this. I would ask you, if you can state the obvious one first,
that we have the role of the power of the purse here in the
Congress, not in the judiciary. May the Congress attach
conditions to the receipt of Federal funds?
Judge Roberts. Well, Congress historically has done that.
The Spending Clause power, for example, South Dakota v. Dole
said that if you accept Federal Highway funds, you have to
raise the drinking age to 21, and that was upheld by the
Supreme Court. So certainly as a general proposition the
Congress has that authority. I consider it a case involving a
waiver of sovereign immunity. The condition on the receipt of
Federal funds was that Washington's Metro system waive its
sovereign immunity with respect to disability claims, and by a
2-1 vote we upheld that exercise of authority under the
Spending Clause.
Senator Brownback. The Solomon amendment will be in front
of you if you are confirmed, and obviously you cannot comment
on it. It is just that if the courts start appropriating money
through this route, the rub between the systems and the
branches of Government I think will be absolutely
extraordinary, and Congress will find more and more innovative
ways to limit the judiciary. It is not healthy for the system
and it is certainly not healthy for the judiciary if it goes
further into the business of appropriating funds. It bleeds
down through the system. It is not just in the U.S. Supreme
Court. It goes through the State court systems as well, and I
would hope that that right of the Congress would be respected
with adequate judicial restraint, as you noted this morning,
that being the major check on the judiciary, though I think we
can limit what the judiciary can review under the Constitution.
I want to make--in the limited time I have left--just two
quick points. One is on the end-of-life issues. You have had a
discussion with several members on end-of-life issues. This was
discussed Washington v. Glucksberg the leading recent case from
1997, which upheld a State statute banning assisted suicide.
Would you agree that that case held that there is not a
constitutional right to die--a right to die does not exist in
the Constitution?
Judge Roberts. I think that's an accurate conclusion of the
holding in that case. Again, without expressing views on
correctness or not, since that's where the line has been drawn
in terms of what nominees can say, my understanding is that
that court rejected the conclusion. It went through the
analysis of what liberty interest protected by the Due Process
Clause included, and it concluded that there wasn't a right
under the Liberty Clause that trumped the regulation that was
at issue in that case.
Senator Brownback. I believe the standard that the Court
held in this case was the rationally--related standard, the
lowest level of review--that if the State can find a rational
basis, they can limit these assisted suicide laws, efforts
across the country.
Judge Roberts. Once the Court concluded that there wasn't a
fundamental right that was in conflict with the State
regulation, then the Court applied the rational relation test
to uphold the State law.
Senator Brownback. That would be subject to, in your
opinion, the continued status of stare decisis as an opinion of
the Court, and the deference and the dependency that the
society has had on that ruling, would have the same status as
any opinion of the us Supreme Court on the basis of stare
decisis in your opinion?
Judge Roberts. It would be subject to the same analysis as
any other precedent of the Court, yes.
Senator Brownback. Regardless whether it is a recent
opinion or a later opinion, this has the same standing because
it is an opinion of the Court's?
Judge Roberts. Some of the Court's cases talk about how
long an opinion has been standing. Some of the Court's cases
say that is less of a factor, but it is a decision of the
Court, a precedent on that issue. Any question of revisiting it
would have to be consistent with the principles of stare
decisis, and we have talked about those principles and how they
apply.
Senator Brownback. Yes. I wanted to make clear that it
doesn't matter the length of time the opinion has set or the
number of times it has been revisited, stare decisis is a basic
principle that applies to any opinion previously held by the
Court.
Judge Roberts. Yes.
Senator Brownback. I would note this is an opinion put
forward, as you get from a lot of us, that these are issues
that are very difficult, and they are ones that are actually
quite well suited for the legislative process to discuss
because you have different views of life. Is life sacred, per
se, or is it subject to some sort of objective review? It is a
very difficult issue here in this body and across the country,
and it is one that has a lot of emotion, and it is a very
important issue for the society itself to talk through.
I want to talk about a separate hat you would carry as the
Chief Justice of the United States, and that is as the head of
the Judicial Conference of the United States. I'd like to ask
you about court reorganization. There have been proposals put
forward to split the Ninth Circuit Court of Appeals, the far
western circuit, a very large circuit. There are discussions in
the Congress about splitting that circuit in two because of its
size, its caseload, and a number of other factors that have
been proffered or put forward.
You would agree that under Article I, section 8, that
Congress has the power to constitute tribunals inferior to the
Supreme Court?
Judge Roberts. Yes, Senator.
Senator Brownback. And that these inferior courts would
include such things as the circuit court and the lower district
courts of the Federal Government?
Judge Roberts. Yes.
Senator Brownback. So that Congress would have the power
under the Constitution to split the Ninth Circuit Court of
Appeals?
Judge Roberts. I know that Congress did just that with
respect to the old Fifth Circuit, which used to run from
Florida out through Texas, and they split it into the new Fifth
Circuit and the 11th Circuit. I don't think any questions have
been raised about Congress's authority to do that.
Senator Brownback. And you do not raise those here as the
head of the Judicial Conference of the United States?
Judge Roberts. Well, I wouldn't want to--
Senator Brownback. Some potential role there.
Judge Roberts.--just yet, but I'm not aware of any
objections to Congress's authority. I don't think that's the
issue. I know the judges have various views on whether it's a
good idea of not, and since it affects them, I know some of the
judges have expressed those views. But the question of
congressional authority to do that is not something I've seen
raised.
Senator Brownback. I thank you. Judge Roberts, this will be
my last chance to interact with you this way. I do commend you.
I also just note to you that a lot of hopes and prayers are
riding on you from a lot of people across this country and
around the world. It is just such an incredible important time
with so many big issues that I think I can speak for millions
of people in saying that. So godspeed to you and your family.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you very much, Senator Brownback.
Judge Roberts, would you care to take a break at this time?
Judge Roberts. No, I am fine.
Chairman Specter. Sure?
Judge Roberts. Yes.
Chairman Specter. Senator Leahy says you are the only one,
but that is good.
[Laughter.]
Chairman Specter. Senator Coburn.
Senator Coburn. Thank you Mr. Chairman.
Judge Roberts, I will try not to take my 20 minutes. I have
heard a little trend that I think needs to be dispelled. I have
heard it put forth that you might not be fair to women. I have
heard it put forth that you might not be fair to minorities or
Latinos. I have heard that you might not be fair to those
people with AIDS. And, Mr. Chairman, I would like to just put
into the record about six different documents here that clarify
the record on Judge Roberts's action on affirmative, on
disability rights, on civil rights, on women's rights,
actually, his involvement in the University of Richmond v.
Bell, Title IX, and also his Title VII employment
discrimination record that I think refutes the underlying tone
that I have heard here that is very disturbing to me.
Chairman Specter. Without objection, Senator Coburn, they
will all be made part of the record.
Senator Coburn. And the reason it is disturbing to me is I
want lawyers who will take the wrong cases for the right people
to preserve our country. And the very fact that you may have
taken a case that some other lawyer might not view as right is
the very thing that makes the justice system work. And one of
the things that you have reaffirmed is one of the reasons we
have people not having equal justice under the law is sometimes
they do not have qualified attorneys that will do that.
So, first of all, kudos to you. Number two, the fact that
you write positions as a staff lawyer, young--I remember what I
was like when I was 25, and it was not very pretty. Some people
say it is not very pretty now. I also would remind you that you
got another 5 years from Senator Feinstein. She said you would
be on there 40 years, so all power to you.
But the fact is I have noticed something that I really do
not appreciate, and that is this kind of trend to say that you
are not a kind, not a considerate person, the fact that you
have a wife that is an attorney and a young daughter that is
going to be into this world, that you wouldn't believe that
they ought to have equal rights, that you don't believe in
hiring practices that are fair, you don't believe in treating
people fairly. On the basis of a flimsy record--and I want the
American people to know that that record doesn't hold up to the
smell test that has been presented here today. And it is a
little bit disturbing to me because it is this subtle way of
trying to say you are not who you really are. And you have not
been able to defend yourself in that because you cannot comment
without creating a problem for you in terms of being a fair
Justice. So you are kind of in a double bind, and I want you to
know that I want to defend that, because I don't think it is
appropriate.
The other thing is I want to enter into the record both the
chronology of cases that Justice Breyer and Justice Ginsburg
decided after they met with the White House, the Clinton White
House, before they were nominated. There was a total of, on
Justice Breyer, seven cases, on Justice Ginsburg, five cases.
The implication that you are not ethical is the other subtle
implication that comes across there. And I find it tremendously
uncomfortable that that is the trend where this is going.
The other thing I want to address for you and the American
public, Senator Schumer yesterday quoted some statements that
were made, which a lot of people do not agree with, and you did
not identify with, Tony Perkins at the Family Research Council
and others. The fact that they made those statements, whether
we agree with them or not, is not the important thing. The
important thing is that the Court is losing the confidence of
the American people or they never would have said that. These
are not bad people. These are people with a perception that
says, you know, what is going on here?
Let me just list for a minute why they might think that. We
had today a judge in California say you can't use ``under God''
in the Pledge. The abortion issue we have talked about.
Homosexual marriage we have talked about. The fact that the
judges have said online pornography is fine, regardless of what
the Congress has said. Parents who know that their 12-year-old
daughter can be given oral contraceptives without their
permission and an IUD in many places without their permission,
but they cannot be given an aspirin.
You know, these very crucial issues--not to say they are
right or wrong, but how we got to the decision is causing some
Americans to lose confidence. And as you and I spoke in my
office, one of my greatest concerns--and I asked you, How do we
build that back up? How do we build the confidence of the
American people back in the Court? And part of that is the work
of getting more consistent, more unanimous opinions, but also
it is making sure the Court does what it should do and the
legislature does what it should do. And I don't want you to
feel committed to me at all. And I don't want to influence. I
am very pleased that every time you are going to look at the
law, look at the precedents, look at the facts, look at the
litigants, and then work with the other Justices to try to do
what is under the law, the Constitution, our Constitution, and
our statutes.
So the only question I would have for you is this one final
one, and I will finish, I hope, before 10 minutes are consumed.
Where did our law--would you teach the American public where
our law came from? I mean, there was law before the American
Revolution. What did our law come from? What did--where did it
come from?
Judge Roberts. Well, before the Revolution, of course, we
were under the British legal system.
Senator Coburn. And before that?
Judge Roberts. Go back under the legal system in Britain to
the Magna Carta and the dispute between the King and the lords
there as they tried to establish their rights against the King
or the central government, was a key part of the development of
English law since that time.
Senator Coburn. And prior to that? Some of the input to
that was what some people--these very people who are worried--
these very people who have lost confidence--call natural law.
The ideas came from somewhere, didn't they? Like don't kill
somebody, don't steal from them, be truthful. Where did those
come from? Those came from the natural tendencies of what we
were taught in beliefs through the years that would best
support a society. There is a theological component to that to
many people. But the fact is there is a basis for the laws that
we have, and it has proven consistent through the years, even
as it comes to America, that if we enforce those tenets, we all
are better off.
And I just want to tell you that I believe you have been
very strong today, just, first of all, to tolerate this and the
amount of time.
A final point, and I have 12 minutes and 25 seconds, and I
will be through. You also were accused of--not accused. You
were also questioned about your advice on a speech that the
President was going to make on HIV. And I would like to put
into the record, at that time, first of all, the best-known and
best-loved Surgeon General of this country did not make a
decision on that issue until 12 months after your memo, but
also at the same time, the Washington Post 2 or 3 days prior to
that had published--or after that, had published an article
talking about the very questions you were raising that may not
be true. And so with unanimous consent, Mr. Chairman, I would
like to have that introduced, the Washington Post article,
September 4, 1985.
Chairman Specter. Without objection, it will be made part
of the record.
Senator Coburn. And with that, 11 minutes and 34 seconds, I
am done and thank you, Judge Roberts.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you very much, Senator Coburn,
especially for yielding back time.
Senator Feinstein, you are recognized now for 15 minutes.
Senator Feinstein. Thank you very much, Mr. Chairman. Just
to correct the record, to begin with, the Gun-Free Schools Zone
Act was amended as part of the Omnibus Fiscal Year 1997
Appropriations bill and the jurisdictional requirement was
added to the Act.
So it is the law. And from my point of view, that is very
good.
I would like to finish up some questions I have. Let me, in
trying to sort of get at you the man, as opposed to you the
jurist, ask you something that the late Senator Simon, Paul
Simon, asked Justice Ginsburg. He asked this: ``Theodore
Roosevelt, in a 1913 speech--this is after he had been
President--said this: `Our judges have been on the whole both
able and upright public servants, but their whole training and
the aloofness of their position on the bench prevent their
having, as a rule, any real knowledge of or understanding
sympathy with the lives and needs of the ordinary hard-working
toiler.'
``I think that is a danger for jurists, and probably no
place is at a greater danger than on the U.S. Supreme Court,
where you really are isolated, and where, when you meet people,
they will tend to be people of power and wealth, and not people
who are unemployed, not people who have many of the problems
that Americans face. Have you reflected on this at all, either
in your present tenure or future tenure? How can this nominee
make sure that she stays in touch with the problems real people
have out there? ''
Judge Roberts. That is something that I thought about,
Senator, at greater length before I came onto the court of
appeals as little more than 2 years ago. I think it's a common
concern, that judges are isolated. There's some natural
tendency to that. You find that lawyers that you used to
socialize with don't feel they can talk to you anymore, and
other people, again, a certain distance develops. And it is
something that my wife and I talked about at the time. And I
concluded, and she made the point, that it was a great blessing
to me to have our children. They will obviously keep us in
touch with things outside of the isolation of the law. There
are a lot of soccer games and swim meets and things of that
sort in my future for the next 15 years and I'll be seeing
people not just involved with the law, not just involved with
the Court, but other parents and other children in those
activities. And I think that will be a very healthy part of an
effort to keep in touch with things outside the isolated marble
palaces.
Senator Feinstein. But I would hypothesize that if it is
just through your children, it is still going to be a very
limited segment of society.
Judge Roberts. Well, sure, Senator, but there have always
been areas in which I've continued to be active that keep me
involved with other people. I mentioned, I think yesterday, the
Street Law Program that I've been a part of for more than 15
years, which--
Senator Feinstein. And you will continue that?
Judge Roberts. I certainly will. I continued that when I
became a judge and plan on continuing it as well. It's jointly
sponsored by the Supreme Court Historical Society, and that
brings high school teachers. And I've always found that
extremely rewarding because they have a very different
perspective. They're obviously dealing with children a little
further along at that stage, but they're not lawyers. And
they're here to try to understand the law. And I have always
enjoyed very much their questions and sharing with them why the
Supreme Court is so important to the rule of law, and allowing
them the opportunity. They go in and they see the Court in
action, as it were, and then they go back. And it helps them
talk to their students about something that I think is
critically important for those students to know.
Senator Feinstein. Do you see yourself mixing with people
in some of the harder places in our country?
Judge Roberts. Well, it's hard to look ahead and see how
that would work. I have as--I know, for example, when I was a
lawyer and handling a case about native village rights in
Alaska, I went to the native villages. I've always thought that
was an important part about understanding the real-world
consequences of any case--to get on the ground. When I handled
a case involving people on the assembly line, I went to the
assembly line and saw what it was like. I went to these
villages that you could only reach by boat or by plane, where
they make do with so little because of the remoteness. And I've
always viewed that as an important part of understanding any
case that I've been involved in.
Senator Feinstein. The reason I ask that is because I had a
question about the Plyler case which question I was going to
ask you. And I have your memo, because I was really surprised
by it as well. Let me ask you this question. It is signed by
Carolyn Kuhl, and your name is second.
Judge Roberts. Oh.
Senator Feinstein. Does that mean you wrote the memo or did
not write it?
Judge Roberts. Senator, I'd have to just say I don't know
who wrote it. It obviously was submitted by both of us. I don't
remember.
Senator Feinstein. You submitted it, right. But her name is
on top. I was just curious because clearly the purpose of this
memo is to try to get one Justice, namely Justice Powell, over
on your side. But the concluding part--I just don't understand
why you would say this, and perhaps you would believe today it
was wrong. Let me quote: ``As you will recall, the Solicitor
General's Office had decided not to take a position before the
Supreme Court on the Equal Protection issue in this case. The
briefs for the State of Texas were quite poor. It is our belief
that a brief filed by the Solicitor General's Office supporting
the State of Texas and the values of judicial restraint could
well have moved Justice Powell into the Chief Justice's camp
and altered the outcome in the case. In sum, this is a case in
which our supposed litigation program to encourage judicial
restraint did not get off the ground, and should have.''
Now, this concerns, regardless of what the briefs were,
whether children should be educated in our country. I come from
a huge immigrant State. We are 36 million people. We probably
have at least 12 million immigrants. Maybe three to five
million people here illegally, in our State. To say that this
vast number of children shouldn't be allowed to be educated, I
would be surprised you would write that kind of--
Judge Roberts. Well, Senator, I don't know if it was from
both of us. I don't know who wrote it. If my name is on it,
it's on it. But I agree, of course, that children should be
educated. The example I just gave of my activities with the
Street Law Program focuses on the importance of education for
children. The legal issues presented in that case and the
question of whether or not it was consistent with the Attorney
General's litigation approach and program, those are different
questions from the basic issue of whether children should be
educated.
Senator Feinstein. Well, could I do this? Could I give this
to you? Because I have 15 minutes tomorrow. Could I ask you to
read it?
Judge Roberts. Certainly.
Senator Feinstein. I would really like to know whether you
think this way today. And I will ask that question tomorrow.
And attached to it is the Congressional Research Service
analysis of it. If you wouldn't mind--
Judge Roberts. Not at all. Happy to.
Senator Feinstein.--I will do this.
Let me ask you a question about strict scrutiny and
affirmative action. You mention in several of your memos from
the Reagan administration addressing affirmative action that
the Government should be color blind. And I would agree. And I
wish we were there, but we are not there. And because America
is well-served by educating all her people well, do you
personally subscribe not to quotas but to measured efforts that
can withstand strict scrutiny?
Judge Roberts. A measured effort that can withstand strict
scrutiny is, I think, a--affirmative action of that sort, I
think, is a very position approach. And I think people will
disagree about exactly what the details should be, but the
general notion--
Senator Feinstein. Such as Michigan, the University of
Michigan--
Judge Roberts. In Michigan. In the Michigan case,
obviously, you have--I always get the--whether it's the law
school--I think the law school program was upheld and the
university program was struck down because of the differences
in the program. But efforts to ensure the full participation in
all aspects of our society by people without regard to their
race, ethnicity, gender, religious beliefs--all of those are
efforts that I think are appropriate. At the time of the Reagan
administration, President Reagan was at pains to make clear,
and I know the Attorney General was as well, that in opposing
quotas--and at the time, it was a much stricter quota approach
that was being proposed, set-asides--they were not in any way
opposed to what they regarded as beneficial affirmative action
to bring minorities, women into all aspects of society. That's
important, and as the Court has explained, we all benefit from
that.
Senator Feinstein. I want to go back to the ``hapless
toad.'' It still bothers me. I asked you some questions about
it yesterday. Let me ask you instead, because I am trying to
get at it one way or another, the factors you would consider in
making determinations on the scope of congressional power under
the Commerce Clause. In Viejo, you addressed whether the
survival of the endangered toad substantially affects
interstate commerce.
In National Association of Home Builders v. Babbitt, a case
you call into question in Rancho Viejo, the D.C. Circuit
followed the Wickard cumulative test and looked at whether the
protection of all endangered species substantially impacts
interstate commerce. The D.C. Circuit noted that although it is
difficult to know the commercial impact of an individual
species, in the aggregate we can be certain that the extinction
of species and the attendant decline in biodiversity will have
a real and predictable effect on interstate commerce.
In order to determine whether the Endangered Species Act
regulates activity that substantially affects interstate
commerce, should the courts look at the impact on interstate
commerce of each individual species, or the cumulative impact
of all species that are protected?
Judge Roberts. Senator, first of all--
Senator Feinstein. Do you think you can answer that?
Judge Roberts. I can, Senator. But I do need to clarify. At
the beginning you said something that, what I did in the Rancho
Viejo case, and that was not what I did. The only thing that I
did in my opinion--and again, there was another opinion that
analyzed it and made a determination of whether it was
constitutional. I did not join that opinion determining that it
was unconstitutional. I simply said that we need to look at
these other grounds on which to sustain the Endangered Species
Act. We should consider it en banc.
There was another court suggesting that our approach was
inconsistent with the Supreme Court opinions. When I was
confirmed for the court of appeals, everybody wanted to know
will you follow the Supreme Court opinions? And I told you I
would. And here we have a court of appeals suggesting you're
not following them, and I said, well, let's take the case en
banc. I did not state an opinion on whether the Commerce Clause
requirement was satisfied or not. I said let's take it en banc
and consider these other grounds.
The other grounds went to precisely the issue and the
question that you asked.
If we had looked at it under the other grounds, which was
the commercial activity surrounding the endangered species, in
other words, the issue that one other court of appeals had
said, for example, there is commercial activity surrounding
endangered species that takes place nationwide, not limited to
where the particular species is, and that would satisfy the
commercial activity requirement and allow the Court to apply
Wickard under the Supreme Court's precedents--
Senator Feinstein. Which is tough duty when you get down
to, let's say, a really endangered species where you have very
few of the species remaining. Perhaps they had been in a number
of different States.
Judge Roberts. That was the problem that was presented--as
my opinion tried to set forth, that's the problem that was
presented with the approach that the panel took, and I thought
we ought to re-hear it and look at these other grounds where
you don't have to ask whether there is impact on interstate
commerce from the particular species, the very point you--
Senator Feinstein. Let me tell you what is bothering me, is
that it sets a prelude for the Clean Water Act and the Clean
Air Act.
Judge Roberts. Well, in those areas, again, the commercial
impact of pollution, those are things that I think are not
going to present as difficult an issue remotely as if you look
at each individual species. The whole point of my argument in
the dissent was there was another way to look at this that
would allow you to not have to look at the interstate impact of
the one particular species. They were grounds that the Court in
a panel opinion said they did not have to reach because they
had taken this other approach that the Fifth Circuit was
suggesting was inconsistent with our approach. And all I said--
and, again, it is important to recognize, I did not say that
even in this case the decision was wrong, that it was
unconstitutional. Another judge dissenting did say that. I did
not join that opinion. I simply said let's look at these other
grounds for decision because that doesn't present this problem.
Senator Feinstein. Thank you for clearing that up. I
appreciate it.
Judge Roberts. Thank you, Senator.
Senator Feinstein. Thank you.
Chairman Specter. Thank you, Senator Feinstein.
Senator Schumer?
Senator Schumer, you are recognized for 15 minutes.
Senator Schumer. Thank you, Mr. Chairman. Again, thank you
for allowing us to go on with the questioning.
I just want to make a comment and then I will get into the
questions, because in our last round you had mentioned
something that I did not think you had said before. You know,
you have always said you cannot talk about decided cases
because people might think there is some bias, but you
introduced an argument I have heard you make to me privately,
but I don't know if you made it here publicly, which is you
don't want to try and, quote, get my vote by changing your
position, and there shouldn't be a bartering process at these
hearings. I would like to say to you that I don't think there
should be either, and I don't think anyone does. I am not
asking you, I don't think any member of this Committee, from
Mr. Coburn all the way to the other end, is asking you to try
and tailor your answers to what you think we want to hear. That
would be unfair to you and unfair to us.
All we are asking is to learn of your views within the ways
you feel that you can tell us your views. So I think this
argument that this is a bargaining or bartering process demeans
it. I want to know what you think, not what you think I want
you to think, so I can make a fair judgment as to how to vote
for you. And I think that is probably true of every single
member here.
And, by the way, since you are before all of us, if you try
to earn one person's vote, you might lose another person's
vote. So you may as well just say what you think and not try to
do any bartering. And I am sure that is how you think, too, but
I don't think that is a fair argument in terms of why people
won't answer questions about decided cases or about anything
else. That would apply to every question you are asked that you
might--we may as well not have hearings if the only reason was
for you to try and twist yourself in a pretzel to please
everybody here.
As I have said, I would like to vote for you. To me, as I
said in my opening statement, the test is: Are you a mainstream
person, conservative mainstream but mainstream, or an
ideologue? Now, this is my view, and I am not going to ask you
yours. I think there are a couple of ideologues, too, on the
Court who want to use the law to change America dramatically in
their vision. And so I am going to try a few other ways to try
and figure out who you are so I feel comfortable with it.
Justice Rehnquist in his hearings to become Chief Justice
19 years ago was asked where he sat on the ideological spectrum
of the Court. Justice Rehnquist replied, ``On the conservative
side. In fact, on the basis of the Court's opinions,'' he said,
not their personal preferences--he had been on the Court I
guess, 16 years? You would know better than me. But a good
number of years--13, I think.
Judge Roberts. Thirteen.
Senator Schumer. Yes. He said, ``I think the Chief''--
Warren Burger--``and I are probably the most conservative, and
it may be that I am more so than he.'' That doesn't involve any
previous case or bias. So let me ask you the parallel question
about the D.C. Circuit upon which you sit now. Where, Judge, do
you place yourself on the ideological spectrum of the D.C.
Circuit?
Judge Roberts. Well, Senator, I think that's a very hard
question to answer for a number of reasons. One, as you know,
almost all of our opinions are unanimous. We don't parse
ourselves out according to an ideological spectrum.
Senator Schumer. Most are technical--yes, many are tech or
commercial, you know, governmental, technical. But on the tough
ones they are not.
Judge Roberts. I don't know where I fall. I do know that I
saw recently a study that was done that indicated I agree more
with some judges appointed by Democratic Presidents than I do
with judges appointed by other Republicans Presidents, and it's
not simply lined up according to the President who appointed
you. There are judges there that I've joined in opinions where
I've found myself--where we have had dissents. There are some--
I know one case we were talking about earlier, the Bombardier
case, Judge Rogers and I were in one position, Judge Rogers
appointed by President Clinton, and Judge Garland was in a
different position.
I know in another case that was decided that we have talked
about, Barber, Judge Garland and I were on one side and Judge
Sentelle dissented.
So to the extent there have been divisions, I think you
could go and see and they would be completely non--
Senator Schumer. So you are saying you are somewhere in the
middle--
Judge Roberts.--political. I am saying that judges don't
think of themselves along an ideological spectrum.
Senator Schumer. Justice Rehnquist did.
Judge Roberts. Well, I don't.
Senator Schumer. Okay.
Judge Roberts. And the judges, I think, on the D.C. Circuit
generally don't either.
Senator Schumer. So I guess you wouldn't want to place
yourself on the current Supreme Court either.
Judge Roberts. No, I think that would be--
Senator Schumer. Okay. Let's try another route. I didn't
think that one would get too far, although as I said, Justice
Rehnquist did answer it. He is your mentor, and he answered it
openly, fully, directly. He and Burger were the two most
conservative, and he is more conservative than Burger.
How about modesty and stability? Let's try to talk about
that. And when we met, I was very impressed with the concepts
of modesty and stability. They suggest to me you respect
precedent and well-settled law. You have said that yourself
here, particularly in reference to Senator Specter's opening
round of questions. And that is a good opportunity for common
ground. I had a history professor, Franklin Ford. He had Ford's
rule of history: ``We are no smarter than our fathers.'' A
pretty good rule. And that is sort of a modest concept in
history, not in jurisprudence.
So I would like to find out a little bit more about
modesty. So I would ask you--and these can be well settled,
they could be 50 or 100 years ago, and please don't go on at
length--can you give me a few Supreme Court cases that are
modest, or represent modesty, is a better way to put it, at
least in your view, and a few Supreme Court cases that would
represent immodesty?
Judge Roberts. Sure. I guess I would think the clearest
juxtaposition would be the cases from the Lochner era. If you
take Lochner on the one hand and, say, West Coast Hotel, which
kind of overruled and buried the Lochner approach on the other,
and the immodesty that I see in the Lochner opinion is in its
re-weighing of the legislative determination. You read that
opinion, it's about limits on how long bakers can work. And
they're saying we don't think there's any problem with bakers
working more than 13 hours.
Senator Schumer. Right.
Judge Roberts. Well, the legislature thought there was, and
they passed a law about it, and the issue should not have been,
Judges, do you think this was a good law or do you think bakers
should work longer or not? It should be: Is there anything in
the Constitution that prohibits the legislature from doing
that?
Senator Schumer. How about another one?
Judge Roberts. Well--
Senator Schumer. Or modest ones. You know, it could be
either way.
Judge Roberts. You know, people talk about Brown v. Board
of Education, and let me explain why I think that is an
example. It's obviously a dramatic departure in American
history, and in many respects very bold. Yet I think it's more
appropriately understood as a restrained decision compared to
the decision that came before in Plessy v. Ferguson. And you
can see this if you look at the arguments of the lawyers,
because what John W. Davis was arguing on the side of the Board
was to the Court, ``You need to be worried about the social
consequences of upsetting this decision. People have lived
their lives this way. If you overturn this, it is going to be
disruptive, the consequences are going to be bad.''
Thurgood Marshall, on the other side, was making a legal
argument addressed to the obligation of the Court to apply the
rule of law, and he said, focused on the discrimination
involved in the separation. He made an argument, and it was a
very clever approach to the case because he based his decision
on precedent as well, saying ``You have had this recent case in
Sweatt v. Painter. Don't talk to me about Plessy v. Ferguson.
You are beginning the process of departing from that. Your
recent decision here, if you are going to be consistent, you
have to come out this way.''
So again it seems odd I know to talk about things like
modesty in such a bold decision, but it is in my view a more
appropriate judicial restrained decision.
Senator Schumer. Let me ask you. This is a general question
that I was going to ask you that leads to this. In other words,
if a decision of the Court issued many years ago is immodest,
in your view, modesty could compel overruling?
Judge Roberts. Well, I think if you take--
Senator Schumer. That is what you argued just a minute ago
with Brown I think.
Judge Roberts. Well, sometimes the appropriate restrained
approach--now, with Brown my point was the notion of precedent
was one that Thurgood Marshall appreciated in arguing to the
Court that it shouldn't be simply a debate. He didn't want to
debate it on John W. Davis's terms about Plessy, should it be
overruled or not? He said, ``Here's another precedent of the
Court.'' So he was arguing from precedent as well.
Senator Schumer. Right. But when you have the conflict, a
past error decision that was fundamentally immodest, let us
say, and then years and years of it being on the books,
stability argues keep it on the books, and even modesty, with
its respect for precedent argues keep it on the books. How do
you draw that? Can you just elaborate a little bit on how you
weigh those two different concepts of ``modesty?''
Judge Roberts. Well, I think a modest approach requires
beginning with the body of precedent. That is what judges do,
and that's a recognition just as Professor Ford said, that
we're not necessarily, we're not smarter than our fathers who
laid down this precedent.
Senator Schumer. Professor Ford.
Judge Roberts. Professor Ford, yes. My point with respect
to Brown was that Thurgood Marshall appreciated that and then
he was making an argument from precedent, just as the way Davis
was, and they kind of I think gave the Court some comfort in
departing from Plessy, that they had already taken the initial
step in Sweatt v. Painter.
Senator Schumer. Let me go to--I think Senator Durbin
alluded to it, because this is one that was a little troubling
and maybe you can talk about it. In the memo you wrote about
Wallace v. Jaffre which had just been decided, involved church
and state--I am not interested right now in the specific
holding--you wrote, ``Rehnquist tried to revolutionize
Establishment Clause jurisprudence and ended up losing the
majority, which is not to say the effort was misguided.'' Then
you wrote, because you were speaking approvingly of Rehnquist's
attempt to revolutionize a well-settled area of law. You also
in the same memo criticize the opinion of Lewis Powell, same
case, criticizing as, ``a lame concurring opinion focusing on
stare decisis.''
To at least the reader of this it seems very immodest,
praising the revolutionary decision and sort of criticizing,
saying it was lame opinion for focusing on stare decisis.
I know you wrote this 20 years ago, and I know you wrote it
for your boss, Ronald Reagan, who you admire--I admire him too
but probably for different reasons--but those words, Ronald
Reagan did not command you to say, ``I approve of Rehnquist's
view to revolutionize [Powell].'' I know your establishment
clause jurisprudence had to come out on that side. Just please
explain to me, if you still stand by, not the holdings in the
case, not whether Wallace v. Jaffre was correctly decided, but
the language that you used, the thinking that you used, how
does that square with modesty, or had you not developed the
theory of modesty when you were there as a young clerk or a
young member of the, I guess at that point, Solicitor General's
Office.
Judge Roberts. No, no.
Senator Schumer. Wherever you were.
Judge Roberts. If it's 20 years ago it would have been--
Senator Schumer. It is 1985, yes.
Judge Roberts. It would have been in the White House
Counsel's Office.
Senator Schumer. White House Counsel's Office. Excuse me.
Judge Roberts. And the memo that you are referring to is,
obviously, it's speculation about what happened in the case.
Senator Schumer. I know. How does it square with modesty?
Did modesty arise in your way of thinking after that?
Judge Roberts. It's not a question about me being a judge.
It's a question about my describing what I was obviously
speculating was going on in that particular case.
Senator Schumer. But you approved of it. You said the
revolutionary aspects were not--``which is not to say the
effort was misguided.'' And then you said ``lame''--there is no
real way to interpret that except pejoratively--``concurring
opinion that focused on stare decisis.''
Judge Roberts. Saying that the effort was not misguided
referred to what I had been speculating was the Chief Justice's
effort to reformulate the approach in that case, and it's the
Lemon test, and we've talked about the Lemon test before, and
the pluses and minuses. I've described it I think it was today,
maybe yesterday. It is a survivor. I noted when we argued the
Lee v. Weisman case, that every--six of the Justices I think
had taken the position critical of the Lemon test, six of the
sitting Justices. They never took it at the same time. It is
still the test that applies, and it would be, the precedent
that I would begin with--
Senator Schumer. Just going to cut you off. I apologize,
because I have 16 seconds, and the Chairman said I have to ask
the questions before.
Just assure me and maybe some more of us, that modesty is
not a concept that you use when you want to slow things down
because the courts are moving too fast, but you do not use when
you think things should be sped up, that it is a general
approach that sort of says to judiciary, ``Go slow in every
aspect.'' Try to convince me of that if you can.
Judge Roberts. Well, I'll try, Senator. It is a neutral
principle. Your suggestion that I apply it in cases where I
want to but don't--is of course a grievous insult to any judge,
the notion that they're result-oriented, that they would apply
a particular approach one way in one sort of cases and a
different way in another case. That's not how I approach
judging and not how I would approach judging whether I'm back
on the court of appeals or somewhere else.
It is a neutral principle. It reflects the--and it's
obviously not an original concept with me.
Senator Schumer. No, it's not.
Judge Roberts. There are judges, you go back throughout our
history, that have articulated and recognized the principle of
judicial restraint, that there are limits on what the judge can
do. And those judges have always explained that this applies
whether or not I'm in favor of a particular result or not. It's
a reflection of their institutional authority in their role,
that their job is to interpret the law, not to make the law.
And that applies without regard to what law you would like to
have made or not.
Senator Schumer. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Schumer.
Thank you, Judge Roberts.
Thank you all.
Judge Roberts. Thank you, Mr. Chairman.
Chairman Specter. We will reconvene tomorrow morning at
9:00 a.m. That concludes our hearing.
[Whereupon, at 7:00 p.m., the hearing was recessed, to
resume at 9:00 a.m. on Thursday, September 15, 2005.]
NOMINATION OF JOHN G. ROBERTS, JR., OF MARYLAND, TO BE CHIEF JUSTICE
OF THE UNITED STATES
----------
THURSDAY, SEPTEMBER 15, 2005
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 9:01 a.m., in
room SH-216, Hart Senate Office Building, Hon. Arlen Specter,
Chairman of the Committee, presiding.
Present: Senators Specter, Hatch, Grassley, Kyl, DeWine,
Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy,
Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin.
Chairman Specter. Good morning, ladies and gentlemen. Good
morning, Judge Roberts.
Judge Roberts. Good morning, Mr. Chairman.
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 11:00, and
we will turn to the outside witnesses hopefully at 11:30. And
we project a conclusion late this afternoon, but that will
depend upon the sequence of events.
I now yield to my distinguished colleague, Senator Leahy,
for 20 minutes.
Senator Leahy. Thank you, Mr. Chairman.
Judge, you are really going to miss us, aren't you? You are
going to miss doing this every day. It is--you are not even
going to answer that one, are you?
[Laughter.]
Judge Roberts. Well, it's a once-in-a-lifetime experience,
Senator.
Senator Leahy. When we left off the other day, you and I
were discussing the Supreme Court's decision in the Christine
Franklin Title IX case. This, for those who may have forgotten,
is 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 arguments, your technical legal arguments. You had argued
she should not be allowed to sue for damages. He wrote, ``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 a 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
back pay and injunction, a position you had reiterated a couple
days ago, he said that conflicts with sound logic. He went on
to say it is clearly inadequate. And he wrote that back pay
does nothing for her and that prospective relief accords her no
remedies at all.
Now, the reason I raise this case is not that it is one of
those rare ones where you were on the losing side, but I raise
it because I felt 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 as 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?
Judge 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 were 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--
Senator Leahy. Well, I--
Judge Roberts. I'm just explaining why the position we took
prior to the decision may have looked different than it did
after the decision.
Senator Leahy. And 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 that the
Government's position was wrong?
Judge Roberts. Well, I certainly accept the decision of the
Court, the 9-0 decision, as you say, as a binding precedent of
the Court and, again, have no cause or agenda to revisit it or
any quarrel with it. The issue, of course, was the one of what
remedies are available for an implied cause of action. The
reason I think that the lower courts came out the other way and
the Supreme Court came out one way is that you're dealing with
an implied cause of action. In other words, it hasn't been
spelled out and--
Senator Leahy. But I think the Supreme Court was looking
and 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?
Judge Roberts. I have no quarrel with the Court's decision,
Senator.
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 is how the
Supreme Court tells me it is pronounced. It is not how those of
us who live with those of French-Canadian descent might say it.
But you strongly criticize--that was a case that recognized
broad access to courts to vindicate your rights under Federal
law. You criticized the damage supposedly caused by that case
in a 1982 memo. And then you wrote briefs and argued before the
Supreme Court in the 1980's and the 1990's. We talked about
some of these--South Dakota v. Dole, Wilder v. Virginia
Hospital, Suter v. Artist M., Gonzaga University v. Doe. And
you called for the narrowing of Congress's spending powers and
limiting 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, 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 then step in and seek action?
Judge Roberts. Well, two points, Senator. The issue in the
Spending Clause cases that you refer to--Wilder, the later one,
the Suter 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 a private right of
action, if Congress intended this to be actionable whether
through 1983 or under--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--
Senator Leahy. But--no, go ahead.
Judge Roberts. I was just going to make the point that in
those cases, of course, I was advocating a position for a
client. I did have occasion as a judge to address a Spending
Clause case. It was a case called Barber v. Washington
Metropolitan Area--
Senator Leahy. But that one, the statute was pretty darn
clear, the Metro case.
Judge 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 the Metro--
Senator Leahy. Judge Sentelle dissented?
Judge Roberts. Judge Sentelle dissented.
Senator Leahy. I read that. I don't want to go into that.
He is not here before us. But what I worry about, though, is
the trend of these to say that Congress intended these
programs, more like Medicaid, commitments there to be kind of
an exclusive bargain between the Federal Government and the
State government. And that raises a question in my mind. Do the
courts really think we have 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 are 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 that it is not
like the Soviet constitution, great promises but empty?
Judge 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
intended 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 have been talking about arose because
Congress did not address the question, and, therefore, the
courts--
Senator Leahy. Yes, but 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 are going to do
it. When they don't do it, if you are developmentally disabled,
Medicaid kids, foster kids, rape victims and so on, shouldn't
they be able to have a voice?
Judge 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 have been talking
about, including in the Barber case, where I ruled that the
individual did have the right to sue when I was 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 an inability of Congress to
agree, and they both sort of--both sides sort of say, well,
let's let the courts figure it out.
Senator Leahy. Well, maybe it is an 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 in the national government who
take similar oaths of office are actually going to do what they
have sworn to do.
Judge Roberts. Well--
Senator Leahy. Let me--can I move on? Because it also goes
to--and I understand your point on this, and we could probably
debate this all morning long. But I hope you understand my
concern, which is a concern of lot of American people in this
area.
Let's go to another precedent that moved me a great deal,
Gideon v. Wainwright. As a young law student, I had an
opportunity--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 was a former Senator. He recognized the Sixth
Amendment's guarantee to counsel in a criminal case was a
fundamental right to a fair trial. He called it an obvious
truth that in an adversary system of criminal justice, any
person hauled into court who was too poor to hire a lawyer
cannot be assured a fair trial unless counsel is provided for
him. There is a wonderful book, ``Gideon's Trumpet,'' that
Anthony Lewis wrote.
Doesn't Gideon stand for the principle that to be
meaningful such a fundamental right as the right to counsel
requires assurances that can be exercised?
Judge Roberts. Yes, I think so. I have often said that a
lot of these difficulties, particularly in the area of 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.
Senator 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, if we
have these rights, they have also got to be real in people's
lives.
Judge Roberts. Well, I think the basic instinct and genius
behind the Gideon decision was that 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, and that is why you need counsel at that
stage. It is not simply 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.
Senator Leahy. That could be with a lot of our rights. I
mean we have got to be meaningful. You cannot just say you have
them. I am 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 a democratic people. But the rights are only there
if they are meaningful in people's lives, if they can be
enforced. And ultimately it may come right down to the courts.
Judge Roberts. Well, I think--
Senator Leahy. I mean Hugo Black's opinion is a pretty
strong opinion.
You suggested I may have over-read your memo following the
Lebanon operation. You said it was really talking about
veterans' rights, but actually your memo, what struck me, it
does not say veterans' rights, it says ``War Powers'' on it.
The Constitution vests the power of declaring war in Congress,
not the President. I still have a hard time squaring that with
your inherent authority argument you advanced in that 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?
Judge 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 of the use of force, but 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.
Senator Leahy. You also have George Washington, if you are
going to quote people back at that time. George Washington ``no
offensive expedition of importance can be undertaken until
after Congress shall have deliberated upon the subject and
authorized such a measure.'' So I will go to the flip side, can
Congress stop a war?
Judge 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 has of course always been
the core of Congress's authority. But the question to actually
terminate hostilities that the Executive has determined to
initiate, either with the authorization of Congress on in the
situation of congressional silence or acquiescence, to go back
to the Youngstown decision. The issue of what Congress's
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.
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 alert for any type of
suggestion that there are limits on that power, just as--
Senator Leahy. Showing how cautious you were, you wrote, in
another memo regarding the invasion of Grenada, ``There's no
clear line separating what the President may do on his own and
what 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 is a situation that falls on the illegitimate side
of the line where a declaration of war would be needed?
Judge Roberts. Well, you know, 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 were a 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 the
legislative concerning something like whether a declaration of
war was required. That would be a question the Court would have
to address before reaching the merits.
Senator Leahy. Let me switch gears again. Senator Grassley,
who 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 the decisions. Most Americans do not know how it works, do
not know whether civil liberties are being curtailed or
violated. We added some sunshine provisions. The Attorney
General now submits a biannual report to four congressional
committees, details how many people are targeted for electronic
surveillance and so on. It still is inadequate in that it
doesn't get public reporting. If you are confirmed as Chief
Justice, you are the overseer of the FISA Court. Most do not
even look at that role of the Chief Justice. I think it is
probably one of the most important ones if you are going to
talk about our liberties and how they are protected. Would you
be willing to work with Members of Congress to add more
transparency, or do you believe there is enough transparency in
the work of the FISA Court now?
Judge Roberts. Senator, you said you think this is
something most Americans aren't aware of. I'd suggest probably
most judges aren't aware of it. 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.
Senator Leahy. Certainly different than what we think in
our system of courts.
Judge 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 people 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.
Senator Leahy. I realize my time is up and I apologize, but
I hope that if you are confirmed that you might be willing--and
I think Senators Grassley, Specter and myself could put
together some suggestions--to at least keep an open mind on.
Judge Roberts. Certainly, Senator.
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 do not even know about, it is
frightening. We want security, but we want to keep in mind--as
Benjamin Franklin said, that people who give up their liberties
for security deserve neither.
Thank you.
Thank you, Mr. Chairman.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator Leahy.
Senator Kennedy for 20 minutes.
Senator Kennedy. Thank you. Thank you very much, Mr.
Chairman.
Good morning, Judge Roberts.
Judge Roberts. Good morning, Senator.
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 with the issue of racial
discrimination, discrimination on the basis of race in our
society. We have talked about this in different ways over the
past few days, and our Founding Fathers did not get it right in
the Constitution. We have had the Civil War and 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?
Judge Roberts. Yes.
Senator Kennedy. Now let me ask you about gender
discrimination. We find out over the history of this country,
as you are very familiar, how women have been discriminated
against in all forms and 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?
Judge Roberts. Yes, Senator, I do. I'm familiar with the
various legislative enactments in the area that protect the
right to work and so forth, free from discrimination.
Senator Kennedy. 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 disability?
Judge 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 of the 14th 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 the 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 the sufficient record
had been established that there was the authority.
So while as a general matter, there is the authority in a
particular case that may come up against other provisions in
the Constitution, or--in that case the recognition of State
sovereign immunity, and that presents an issue that the courts
have to address.
Senator Kennedy. You mentioned the Lane case. That was
decided 5-4, 5-4. We are going to hear later today from Beverly
Jones, who was a plaintiff in that case. I have listened to her
and met with her before. She is an extraordinary woman, mother
of two, trying to provide for her family, and a court reporter.
The 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
an issue or question ought to be resolved by the States,
effectively, 50 States ought to be making that judgment. I
strongly believe that this country, in its march towards
progress in dealing with disabilities, with Americans with
Disabilities Act, the Rehabilitation Act, the work that was
done with IDEA over a 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 main stream. But
that was a 5-4 decision.
And I appreciate the fact you at least mention Lane v.
Tennessee, that you are at least sympathetic to the judgment
that Justice O'Connor made in indicating that accommodation for
those with disability in that case was appropriate.
Judge 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 State's
sovereign immunity. It's not a policy judgment by the Court
about leaving things to the States or the Federal Government,
but a legal determination of whether the State's sovereign
immunity has 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.
Senator Kennedy. We are going to come back to the kind of
legalist determinations that make an 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?
Judge Roberts. I do, I agree with that statement Senator,
yes.
Senator Kennedy. I do too, and I want to just review very
quickly what I consider to be sort of a pattern in different
judgments that you have made over a period of 20 years. We have
not got a lot of time and I am not going to bother going
through the memoranda unless you would like to. But for someone
who is a minority, a woman, disabled, and looks at a pattern
over 20 years where you were actively involved in the Reagan
administration against affirmative action--I am leaving out the
whole issue of quotas, all of us oppose quotas, we are talking
about affirmative action--and you expressed strong reservations
about the affirmation action. Then 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
do not have your records on affirmative action. They were in
the Reagan Library and at some time they became misplaced and
we do not have those records to be able to give a complete
review of these documents, although what I am stating here is
factual. We do not have the information that we requested from
the Solicitor General's Office, who, as you appropriately
mentioned yesterday, is America's lawyer.
In this particular case, the FCC--with its affirmative
action program that recognized that with all of the
broadcasting and the television stations there were very few
minority-owned stations and they had a very modest program--
petitioned you to intervene on behalf of the FCC. But you made
a judgment that you would 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
ensure 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 am 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, to those
that are disabled that are not looking for a hand-out, but just
looking for a chance in this diverse society to be able to have
an equal opportunity?
Judge 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.
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, that if 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.
Senator Kennedy. As you know, the Hawaiian case 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. The case itself indicates that it was not an
affirmative action case. All right. Well, let me go--we will
agree to differ.
Judge Roberts. Sure.
Senator Kennedy. I have just a short time left.
On the EEOC, there is the quote that you have. This is the
Equal Employment Opportunity Commission that was set up in 1964
as 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 trying to deal with the discrimination of
women, of race, of ethnicity, and national origin. And so they
set up a Commission in order to be able to take the various
complaints. They did not think they would have many complaints.
The first year they had 9,000 complaints, and it has been doing
extraordinary work ever since.
You mentioned in your memorandum that we should--you are
familiar I think with these words; they have been written up in
the journals and you can probably recognize them. ``We should
ignore the assertion that the EEOC is un-American, the truth of
the matter notwithstanding.''
Is there some reason that you would make a comment like
that, ``the truth of the matter'' ?
Judge Roberts. Well, Senator, you 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 ``un-American'' 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, and he said two things, one, that his
treatment at the hands of the EEOC was un-American, and two,
that the President has 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 that 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 to 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 un-
American 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.
Senator Kennedy. Well, Mr. Chairman, I would ask that the
memo by included in the record.
Chairman Specter. Without objection, it will be included.
Senator Kennedy. You say that the assertion that the EEOC
is un-American--the ``truth of the matter notwithstanding'' was
your comment though.
Judge Roberts. You do need to read the prior clause, prior
sentence.
Senator Kennedy. I have read it a number of times and I
will include it in the record and we will let the record stand.
Chairman Specter. When Senator Kennedy's line of
questioning is finished and he has used his time, he will have
the memo and you can respond.
Judge Roberts. Thank you.
Senator 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 the 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
are 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 that
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?
Judge 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 any
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 it. 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
its 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 judges 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 is 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.
Senator Kennedy. My time is up, Mr. Chairman. Thank you.
Judge Roberts. Thank you, Senator.
Chairman 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, the limited time that he had, and it has 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?
Senator Kennedy. Yes, excuse me.
Chairman Specter. If you would make the memo available to
Judge Roberts now so that he can comment on it now without
having taken your time to do that.
Senator Kennedy. Mr. Chairman.
Chairman Specter. Senator Kennedy?
Senator Kennedy. As you know, this has been redacted, and
so I think in fairness to him and in fairness to the Committee,
if we can get out the other redactions, it would be a more
accurate and complete record.
Chairman Specter. Well, if it is possible for Judge Roberts
to deal with the redactions, that would be fine.
Judge Roberts. I think the redactions simply identify the
individual--the individual who was making the complaint, 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 emphasized that any reference to the phrase ``un-
American'' 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 was certainly not my view then or now.
Chairman Specter. Senator Kennedy, do you want to follow up
on that?
Senator Kennedy. Well, I think we have been over this.
After all is said and done, about finding out what President
Reagan wanted to abolish or not abolish, that really wasn't the
issue or the question. And the question is about whether--the
use of ``un-American'' is obviously unacceptable and they are
dismissing that. But Judge Roberts said the assertion the EEOC
is ``un-American''--and he is quite right saying that they were
dismissing that word. But then he adds, ``The truth of the
matter notwithstanding.'' I think it is not unreasonable to
assume that he somehow was disparaging the EEOC. That is all. I
am glad to let the record stand, Mr. Chairman.
Chairman Specter. Any counter-reply?
Judge Roberts. Well, I am glad to let the record stand,
just so long as the whole memorandum and the entire sentence
that is being discussed is in the record.
Chairman Specter. We have finally come to one point of
agreement.
Senator Feinstein for 15 minutes.
Senator Feinstein. Thank you very much, Mr. Chairman.
I want to just say one thing, Judge Roberts. I don't really
know what I am 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
have gone through this in a remarkable way. I am convinced you
will be there, God willing, for 40 years. And that concerns me
even more because it means that my vote means that much more.
And I come from a different side than my Republican colleagues
do, with different concerns, I think, and different life
experiences.
Last night, I 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.
Judge Roberts. I did, Senator, yes.
Senator Feinstein. Do you believe you were wrong?
Judge Roberts. Well, Senator, on the underlying question--
Senator Feinstein. Could you say you were wrong if you
believed you were wrong?
Judge Roberts. Well, I can say that the--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.
Senator Feinstein. Regardless of immigration status?
Judge Roberts. My own view is that if you have a child, he
or she should be educated, and you worry about status later.
Senator Feinstein. Just say yes, regardless of immigration
status.
Judge 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 Justice 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 v.
Doe.
So I would just try to make sure that people appreciate
that saying that this is what you think the legal determination
was--because the issue there was the Texas Legislature, the
representative of the people of Texas, had reached 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 about whether you believe in
educating children or not. I don't think Justice O'Connor
didn't believe that children should be educated, yet she was in
the dissent in that case.
Senator Feinstein. I understand. Let me just give you 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 am a former mayor, and I have watched him
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--they are all agricultural workers--a
sense of pride and dignity.
To me, that is the American dream. It is the Federal
Government's job to keep illegal immigrants out, but once they
are here, it is 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 1982. If the decision had gone the
other way, you could have seen the enormous problem that would
have happened in 1986 when all these children, then legal
absolutely, still would have been denied school. So I think
that is an interesting twist.
Now, Duke Law School Professor Katherine Fisk examined nine
cases heard by you while you have been on the court of appeals.
Her review concluded that you ruled in favor of a business each
time. Consequently, she made this prediction: you're going to
be a fairly reliable vote against workers' rights across the
board.
Would you respond to that, please?
Judge 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've 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 is quite often the case, for example, 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
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 am sure you could fine nine cases going the other
way as well.
Senator 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 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 NHAO,'' 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?
Judge Roberts. Senator, 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, you know, I
don't recall any--
Senator Feinstein. Okay. Fair enough.
Judge Roberts. I do know that there was an issue--an issue
was raised. I have seen memoranda that I know have been
released about private fundraising 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.
Senator 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?
Judge Roberts. You know, it's not something I've--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--
Senator Feinstein. Well, it's a pretty simple question. I
mean, when the Congress passes a law that says don't fund
something and the Executive finds a covert way to fund it, and
as you know, one of the great redeeming qualities of President
Reagan was that he gave an admission of wrongdoing, and I think
the American people accepted that. He was able to admit a
mistake, which I tend to think, you know, is hard to do in this
arena. But in a way, it is a sign of a big person to be able to
come forward and say, ``I was wrong.'' So on its face, what you
are saying, if I understand you, is you do believe that the
provision of funds exceeded the Executive power in this
instance.
Judge 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--I think it all 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.
Senator 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?
Judge 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, being unclear what Congress's position is--
and he recognized a third category where you can act--the
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. You know, 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 in the Constitution.
And restrictions, 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.
Senator 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?
Judge Roberts. No.
Senator Feinstein. Okay.
Judge Roberts. It was not a dispute about it being the
supreme law of the land. There is 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.
Senator Feinstein. Right.
Judge 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 if these rights are
violated, you can sue in court and you can make that State
institution--in this case, not a State institution, a private
university. The 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 each 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 are 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
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.
Senator 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?
Judge 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 provision through
proceedings against the university.
In the Wilder case, a different statute, the Court
determined the condition in that case, the Medicare--or
Medicaid funding case was enforceable, a private citizen could
go into court because the review of Congress' intent in that
case came out differently than it did in the Gonzaga case.
Senator Feinstein. Thank you. Well, let me just finish this
quickly. I am 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 it the law? Because if it is 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?
Judge 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.
Senator Feinstein. So the intent has to be a specific
intent.
Judge Roberts. It doesn't--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 a university is violating it? And as I've
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.
Senator Feinstein. I think my time is up. Thank you very
much. Thank you.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator Feinstein.
Senator Feingold, you are recognized for 20 minutes.
Senator Feingold. Thank you again, Mr. Chairman, for your
willingness to allow us this additional round, and thank you,
Judge Roberts, for all your patience throughout this whole
process.
Judge Roberts. Thank you, Senator.
Senator Feingold. A topic we touched on in our meeting in
my office in July was the issue of judges going to judicial
education conferences at sometimes fancy resorts, which are put
on by ideologically oriented groups and paid for by private
corporations that sometimes even have cases pending before the
judges in attendance. And when we spoke, of course, you had
been 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 would
rather spend your free time with your family, which I thought
was a pretty good answer.
But now you have been nominated for Chief Justice, and one
of your duties is to head the 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 would 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 ``judicial education'' that lets special
interests essentially lobby Federal judges?
Judge 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 have 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 am just sort of recollecting something I read.
I would say more generally, though--and maybe it is off
topic, in which case feel free to cut me off. But I do think it
is 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 is
probably not the same sort of thing you are talking about.
Senator Feingold. Fair enough, and I think you would agree
that there is nothing wrong with judges or Senators golfing.
That is not the question.
Judge Roberts. It may not be good for the game of golf,
but...
[Laughter.]
Senator 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?
Judge 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.
Senator Feingold. Just to return for the record for a
moment, the item that the judge referred to in terms of a
Judicial Conference opinion 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 also, Mr. Chairman, want to put an item in the record. I
am not going to ask more questions about Judge Roberts's memo
recommending against the President stating that 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 note 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?
Chairman Specter. Without objection, so ordered.
Senator 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 reviewing writs of habeas corpus. As you know,
prisoners who believe they were wrongly or unfairly convicted
in State court can 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 ``goes far to making a mockery of the entire criminal
justice system.'' In that same memo, you said, ``The question
would seem to be not what tinkering is necessary in the system
but, rather, why have Federal habeas corpus at all? ''
Then in 1983, as Senator Leahy brought up yesterday, you
suggested that if the Supreme Court wanted to reduce its
caseload, it should ``abdicat[e], the role of fourth or fifth
guesser in death penalty cases.'' Not in 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 is a cover note in your handwriting
directing that the memo be sent to Jon Rose, an Assistant
Attorney General at the time, with a cover note that reads,
``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 remained mute.'' 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''--``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, ``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.''
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 1993, 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 1980's, I am 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?
Judge Roberts. Well, as you know, the law has changed and
evolved dramatically since the early 1980's, and at least with
respect to my personal letter to Judge Friendly--I guess I
thought it was a personal letter--
[Laughter.]
Judge Roberts. But the situation has changed dramatically,
as you know. What I was referring to in the early 1980's 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 in past legislation. The Supreme Court saw it as
a problem. The Supreme Court acted in a number of cases, the
Teague 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
are 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.
Senator Feingold. But, Judge, did you not at the time, as I
read in your statement, advocate the abolition of Federal
habeas review?
Judge 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 the responsible decision. If people
get in a situation where they know, okay, 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, after that--and the person who
considers the State habeas petition says, ``I know there are
going to be successive Federal habeas petitions, they'll 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 are going to be critical, and so
hopefully it's looked at a lot more carefully than in the prior
system when you knew, well, 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.
Senator Feingold. Well, would you agree that had the view
that you advocated in your memos prevailed in the early
1980's--the abolition of the writ and the entire removal of
Federal habeas review of State court convictions had that
happened, innocent people would have been executed and serious
constitutional errors would have gone unaddressed?
Judge Roberts. Well, that wasn't my position.
Senator Feingold. No, but I am asking--
Judge Roberts. No, my--
Senator 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--
Judge Roberts. Oh, I'm not in favor now and was not in
favor then of not allowing any Federal habeas review.
Senator Feingold. I am asking you whether you wouldn't
agree that as a matter of fact--
Judge Roberts. Yes.
Senator Feingold.--had the writ been eliminated, that some
innocent people would have been executed?
Judge Roberts. Well, they certainly wouldn't have been able
to assert their claim of innocence in Federal habeas--
Senator Feingold. Would not have--
Judge Roberts.--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.
Senator 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 is of
great significance that you have acknowledged that some of
those changes that were made in the 1990's 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. 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
had 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 that it is
appropriate for the Chief to do that?
Judge 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 because the Chief made
a priority of being fair in his opinion assignments. I think
that is the more important priority.
Senator Feingold. Can you imagine ever changing your vote
in order to be able to assign the majority opinion to yourself
or to another Justice? And do you think that such a practice is
appropriate?
Judge Roberts. No, I don't, in answer to both questions.
Senator Feingold. So you would not do that.
Judge Roberts. I wouldn't do that. I think that, 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 that
ability--and it's obviously limited--to act as a force to help
bring about some cohesiveness and collegiality.
Senator Feingold. Thank you. Thank you for that answer.
On a different subject, some people blame plaintiffs'
lawyers for various problems with the economy and the legal
profession. Do you believe that lawyers who represent indigent
persons in product liability and medical malpractice cases are
harming America?
Judge Roberts. No.
Senator Feingold. Having worked on the defense side for
most of your non-Government career, can you be fair in your
rulings to plaintiffs seeking redress for injury?
Judge 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 side than on the defendant 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 the other.
Senator Feingold. Thank you, Judge.
Judge, you argued an important case before the Supreme
Court concerning who is 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 permanent work
restrictions. 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 are quite
familiar with the legislative history of that Act.
Do you agree with the statement of one of the Justices
during oral argument that the Act was primarily intended to
protect people who are ``wheelchair-bound''?
Judge 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, you know, 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.
Senator 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?
Judge Roberts. Well, I have to say I think it should be
interpreted consistent with Congress's 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.
Senator Feingold. Thank you, Judge, and I appreciate all
your answers.
Mr. Chairman, I yield back the remainder of my time.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you very much, Senator Feingold.
Senator Sessions has asked for recognition briefly to
clarify one point which he thinks requires that clarification.
Senator Sessions. Thank you.
Judge Roberts, I commend you on your good humor, and even
when they read a memo to suggest you said that the EEOC was un-
American, 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, and perhaps again in the years to come.
Judge Roberts. Well, no, Senator, and I did try to be very
careful in 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.
Senator Sessions. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions.
Senator Schumer is recognized for 15 minutes.
Senator Schumer. Thank you, Mr. Chairman.
First, just a little housekeeping. I think tomorrow is the
day that it is due for us to submit written questions, and you
will 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?
Judge Roberts. Well, it depends how many there are.
[Laughter.]
Judge Roberts. My answers will be fuller the fewer
questions there are, but I will certainly--
[Laughter.]
Judge Roberts. I will certainly obviously make every effort
to get them in as soon as possible.
Senator Schumer. Thank you. Next question: We have had a
great debate here in the 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 wanted to know--and I am 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.
Judge 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 would, could,
might put pressure on the client and--
Senator Schumer. I may not get--
Judge Roberts.--I think that's inappropriate.
Senator Schumer. I may not get this. Aren't they the
attorney and you the client this time?
Judge Roberts. Well, when the memos were prepared, I was
the attorney.
Senator Schumer. I see.
Judge Roberts. And they were the client.
Senator Schumer. So you won't take a position on that.
Judge Roberts. I don't think it's appropriate for a lawyer
to do so.
Senator Schumer. Yesterday, as I told you, I was sort of
confounded by the refusal to answer certain questions. I do not
think any of us expected you to answer every question or answer
the--give us the answer the way we want it. 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 are one of the best litigators in America. You
know how to convince people. That is what you have 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 were not 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?
[Laughter.]
Judge Roberts. I'd begin by saying, ``Well, that's a good
question, Senator.''
[Laughter.]
Judge Roberts. 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 a 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 the framework that I would use
would 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 antitrust--
Senator Schumer. How about something that you have not--a
question that has not been asked since some of us are still
unsure?
Judge Roberts. But in other areas people talk about--and it
is personal views on issues, and there again, I think it is
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 about--with Senator Grassley about the Totten case in
which I was involved, others about the Barber case involving
Congress's power under the Spending Clause.
People have asked very probing questions about my legal
positions. What did you--what was the position you were
advocating in this case and why? I think it's fair to talk
about the record.
Senator Schumer. Any question that you would ask that has
been left out?
Judge 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.
Senator Schumer. So I guess we did a better job than we
think we did, right?
Judge 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--
Senator 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?
Judge Roberts. If the question--and this is where the issue
comes up--is whether or not as the Court has addressed it, the
activities are commercial. If the activities are commercial in
nature, you get to aggregate them under Wickard v. Filburn that
we have talked about. You do not have to look at just that
particular activity. You look at the activity in general. Where
the dispute and issues come in is whether the activities are
commercial. That is where the disagreement--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--
Senator Schumer. Do you believe Congress deserves a great--
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 findings to
that effect?
Judge 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 is also the Raiche decision, and again I
think it is very important to--and what the Raiche decision
said is you've got to consider Lopez and Morrison in the
context of this broad sweep, not just as sort of the only
decisions.
Senator Schumer. Okay. Let me ask you then this
hypothetical, and that is: that it came to our attention,
Congress's, through a relatively and inexpensive simple process
individuals were now able to clone certain species of animals,
maybe an arroyo toad; did not 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 non-commercial
cloning?
Judge Roberts. I appreciate it's a hypothetical and you
will as well, so I don't mean to be giving binding 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--
Senator Schumer. You can leave it at that. That is a good
answer as far as I am concerned.
What I would 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 3 days of grueling questions. Many of us on
this Committee, probably every one of us, some more than
others, have been wrestling with how to vote on your nomination
since well before the hearing started, and of course now that
process is accelerated. I, for one, have woken up in the middle
of the night thinking about it, being unsure how to vote. 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 every one of our lives
in many ways for a whole generation, so this is not just
rolling the dice. It is betting the whole house.
I thought I would share with you some of 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 3 days here talking on
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 your way of
presenting 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 have devoted your entire life to the law, and it
is clear that you love it. Most people in that position tend
not to be ideologues. They will 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 have spent most of your legal life representing others, and
that your limited tenure on the Court of Appeals did not allow
you to rule on very many non-technical cases, there is 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 of 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 is 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 modesty 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 is important to determine not just the quality of
your mind, but the fullness of your heart, by which I think a
good number of us, at least, on both sides 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 did
not 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 beyond what Senator
Kennedy called ``the cramped view of civil rights professed in
the early Reagan administration.'' But you would not admit now
in 2005 that any of those views you argued for in the early
`80's were misguided, with the hindsight of history. That is
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
have 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 actually knowing who
you are and what kind of justice you would make. But for what
seemed 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 do not know Justice Scalia's opinion
on ``Dr. Zhivago,'' but most answered more relevant questions
than you did. Your refused 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 are not of much help to us. What
we need to know are the kinds of things that are coming before
the Court now, and not knowing 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 is the job of a good
litigator, but in too many instances it did not 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 could not vote. But here
there is 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 who 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 is 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.
Senator Feinstein. Mr. Chairman?
Chairman Specter. Thank you, Senator Schumer.
Senator Feinstein. Mr. Chairman?
Chairman Specter. Wait just a minute. I will recognize you
in a moment.
Judge Roberts, Senator Schumer has postulated quite a
number of questions in his last soliloquy, but--
[Laughter.]
Chairman Specter.--they are summarized in what kind of a
Justice you would be, and I think you are entitled to respond
to that if you care to do so.
Senator Feinstein. That was going to be my request. I think
it would be very important.
Chairman Specter. In that case, go ahead and make your
request.
[Laughter.]
Senator Feinstein. Yes. I think--
Chairman Specter. Better the request comes from you than
from me, Senator Feinstein.
Senator Feinstein. I think that Senator Schumer really
summed up the dilemmas, and not only for himself but for our
side. I would very much like you to respond, particularly to
the con side. The pro side speaks for itself. Many of us are
struggling with exactly that, what kind of a Justice would you
be, Judge Roberts?
Chairman Specter. No time limit, Judge.
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 is hard for me
to comprehend that there could be more documents. The numbers
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
have gone back and read the transcripts and of course
participated. I have gone back and read the transcripts. It
comes up at every nomination. In some instances Members of the
Committee want more information than the nominee feels that he
or she can give in good conscience. That is nothing new. I have
tried to be as fully expansive as I can be, and drawn the line
where as a practical matter I think it is necessary and
appropriate.
The basic question, Senator Feinstein and 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 have been. I appreciate that it has
only been a little more than 2 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 is 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 would 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.
Chairman Specter. Thank you, Judge Roberts.
Senator Cornyn. Mr. Chairman?
Chairman Specter. Senator Cornyn.
Senator Cornyn. If I might have three minutes. I would just
want to ask the witness to explain the rationale as he
understands it for the privilege--
Chairman Specter. Senator Cornyn, you are recognized for
three minutes.
Senator Cornyn. Thank you. Mr. Chairman, it strikes me as
odd, having been on the Committee last year when we had an
alleged theft of internal documents that were written by
staffers of individual Senators, and which were then published
to the outside world, and 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 do not want anybody to
be under the misapprehension that, number one, it is within
your power to produce additional documents. It is 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. Would you
give that a shot, please?
Judge 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 1981 in the Supreme Court and other
classic expressions. And the idea is that 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 are 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 debate, which
often involves pointing out inconsistencies in the decision,
even flaws in your own legal position, say, ``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 analyses 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.
Senator Cornyn. Mr. Chairman, it may already be part of the
record, but if it is 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 agree that these Solicitor General
memos should remain protected by the privilege, part of the
record.
Chairman Specter. Without objection, so ordered.
Senator Durbin, you are recognized for 20 minutes.
Senator Durbin. Thank you very much, Mr. Chairman.
Judge Roberts, again, thank you, and you may be nearing the
end of the process, which I am 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 he wants to protect
that poor young lady's telephone records.
[Laughter.]
Senator Durbin. The second aspect I would like to raise is
this. Many of these documents we are talking about have been
given before. Justice Rehnquist offered similar documents to
the Committee for consideration, so it is 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 ``un-American'' 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 any event, as well as the assertion that the EEOC
is `un-American', the truth of the matter notwithstanding.''
Now, those are your words but for the quotes ``un-
American.'' What did you mean when you say ``the truth of the
matter notwithstanding? '' It suggests that you agree with that
conclusion.
Judge Roberts. The first part of the sentence refers to
that assertion, and that assertion was the assertion that
President Reagan had promised to abolish the EEOC. That as 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 ``un-American'' 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 ``un-
American'' way and wanted something done about it. But it was
not my view, and again, the language was in quotes to make
clear that it wasn't my view.
Senator Durbin. I do not 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 the
conclusion that we are suggesting does not reflect your views.
If I could I would 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, it was 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 told me
you had no reservations about taking the case, and here is 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 am 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
Romber 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 will ask you, if the other
side had come to you first and said, ``Mr. Roberts, we would
like you to defend the State amendment that took away the
rights of gays and lesbians.'' Would you have taken the case?
Judge 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
Legal Center, I participate in moot courts for 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 have to look at the legal
issues. And I would not, and never have, presented legal
arguments that I thought were not reasonable arguments, doesn't
necessarily mean they're going to prevail, and I have certainly
lost my share of cases.
But it has 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 a particular position when somebody comes to me for
what I did, which was provide legal advice and assistance,
particularly before the Supreme Court.
Senator Durbin. I have a long series of hypotheticals that
I will not get into, such as, would you have represented that
D.C. Government against the welfare families? 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 of those
hypotheticals. The purpose is, 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 lines, 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 will
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 have 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 this is a very safe assertion--
``Children deserve an education.'' That is not a headline. But
I think that what I would 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?
Judge 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 is 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 are 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'll see, yes, I've
advanced cases promoting the cause of the environment. As I was
discussing earlier, I've been on both sides of the 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. And I viewed that as--I appreciate
that to some they may say, well, that sounds like you're a
hired gun, to be disparaging, you are going to take the side of
whoever comes in the door first. I think that's a disparaging
way to capture what is, in fact, an ennobling truth about our
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
welcomes them as members of the bar and as 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.
Senator Durbin. Well, if I might say, Judge, if you have
made one point many times over the course of the last 3 days,
it is 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 have 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 is 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 is what I have
been asking.
Judge Roberts. Well, and the--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 is going to win in court before me.
But if the Constitution says that the big guy should win, well,
then, the big guy is going to win, because my obligation is to
the Constitution. That's the oath. The oath that a judge takes
is not that I will 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.
Senator 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 powerful never had to face? Is that part of your
calculation?
Judge Roberts. Absolutely, and it is, 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 and present. 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.
Senator Durbin. Judge Roberts, thank you very much.
Mr. Chairman, thank you.
Judge Roberts. Thank you, Senator.
Chairman Specter. Thank you, Senator Durbin.
Judge Roberts, questions will be submitted to you within 24
hours, and you have already stated your commitment to answer
the questions. And you can't be totally open-ended because you
don't know how many questions there will be.
Senator Graham. Mr. Chairman?
Chairman Specter. I have a strong inclination that however
many questions there are, you will be able to answer them in
appropriate course.
We are now going to move into a closed session. Senator
Graham?
Senator Graham. Yes, Mr. Chairman.
Chairman Specter. You are recognized.
Senator Graham. Just for a couple minutes. I am 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 answer your question because it may
compromise my integrity,'' the judge in the future. And I would
ask for 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 I have got
some examples of that.
But if I may--and I know we have been here--and Lord knows
this guy has been through the wringer--I just want to comment a
little bit about 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 have represented in the past,
totally. I have represented some people that are not very nice.
But I gave them my all. I have 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.
[Laughter.]
Senator Graham. So we are down to the heart. And is it all
coming down to that? Well, there are all kinds 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 is a bleeding heart. She
represents the ACLU. She wants the age of consent to be 12. She
believes there is 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 are doing a
great disservice to the judiciary.
Thank you.
Chairman Specter. Thank you very much, Senator Graham.
We are now going to go into executive session under Senate
Rule XXVI to review the FBI report, which is standard for all
judicial nominees, Supreme Court or court or 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. Mr. Chairman, I understand, also following
our practice, the Republican counsel and the Democratic
counsel, who normally work together on such issues, will brief
the Committee.
Chairman Specter. Senator Leahy, that is correct.
Senator Leahy. Thank you.
Chairman 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, and we will now adjourn
to 226 in this building.
[Whereupon, at 11:07 a.m., the Committee proceeded to
executive session.]
[Whereupon, at 11:38 a.m., the Committee reconvened in open
session.]
Chairman Specter. The Committee went into executive session
and reviewed the background investigations on Judge Roberts,
which were routine. Senator Leahy and I have been delegated to
report that there are no disqualifying factors. We had Judge
Roberts in for a very short discussion and we returned to the
hearing room to move ahead with our hearing.
Senator Leahy?
Senator Leahy. I concur with that. The practice of this was
begun with the prior Chairman. I think it is good to have it as
a routine. We do this through the Supreme Court nominees we
meet, go over the background. I agree with the Chairman, there
was nothing in the background of a disqualifying nature and it
was pretty routine. I mention this because I don't want anybody
to read more into what is just, if anything, a housekeeping
chore in this case.
Chairman Specter. Thank you very much, Senator Leahy.
We have six panels of witnesses, a total of 31 witnesses.
It is our hope and expectation that we can conclude our work
today. And while Senators have rights to question, we
customarily have a 5-minute rule. To the extent that we can
move ahead promptly, it would be appreciated.
We start first with the American Bar Association. The
Chairman of the ABA Standing Committee on the Federal Judiciary
is Mr. Steve Tober, undergraduate and law degrees from Syracuse
University, law review, deeply involved in the New Hampshire
and New England legal communities, former Chairman of the
Committee to Redraft New Hampshire's Rules of Professional
Conduct.
Thank you for joining us, Mr. Tober, and thank you for your
service. And now we look forward to your testimony.
All witnesses will be limited to 5 minutes, which is
standard under our rules.
STATEMENT OF STEPHEN L. TOBER, CHAIRMAN, AMERICAN BAR
ASSOCIATION STANDING COMMITTEE ON THE FEDERAL JUDICIARY,
PORTSMOUTH, NEW HAMPSHIRE; ACCOMPANIED BY THOMAS Z. HAYWARD,
PAST-CHAIRMAN, AMERICAN BAR ASSOCIATION STANDING COMMITTEE ON
THE FEDERAL JUDICIARY, CHICAGO, ILLINOIS; AND PAMELA A.
BRESNAHAN, D.C. CIRCUIT REPRESENTATIVE, AMERICAN BAR
ASSOCIATION, WASHINGTON, D.C.
Mr. Tober. Thank you, sir.
Mr. Chairman and members of the Committee, my name is
Stephen L. Tober, of Portsmouth, New Hampshire, and it is
indeed my privilege to chair the ABA Standing Committee on the
Federal Judiciary. I am joined by Thomas E. Hayward, Jr., of
Chicago, sitting to my right, my immediate predecessor, and by
Pamela Bresnahan, who was the 2004-2005 District of Columbia
Circuit member, also of the 2004-2005 committee.
For more than 50 years, the ABA Standing Committee has
provided a unique and comprehensive examination of the
professional qualifications of candidates for the Federal
bench. It is comprised of 15 distinguished lawyers who
represent every judicial circuit in the United States and who
individually volunteer hundreds of hours in public service to
our profession. This Committee conducts a thorough, non-
partisan, non-ideological peer review, and it does so by using
long-established standards that measure the nominees'
integrity, professional competence, and judicial temperament.
In the sense that a major portion of the investigation consists
of scores and scores of interviews with judges and lawyers, it
is very much the voice of the bench and bar of this Nation.
Over the course of its history, the ABA Committee has never
proposed a candidate of its own, nor do we do so now. Its
function, rather, is to receive the name of each nominee,
investigate and evaluate the professional qualifications of
each nominee, and then vote. While factors used in considering
lower Federal court nominations obtain here as well, the
committee's investigation of a nominee for the United States
Supreme Court is further based on the premise that such an
individual must possess exceptional professional
qualifications. The significance, range, and complexity of
issues that such a nominee will face on that Court demands no
less.
As a result, our approach to a Supreme Court nomination has
two procedural differences. First, all circuit members of the
Committee conduct confidential interviews within their
circuits; and second, the Committee works with at least two
reading groups composed of a team of academicians and a team of
practitioners who analyze the nominee's writings in detail and
report their findings to the full committee.
After the comprehensive investigation is completed and
assembled, each member of the Standing Committee reviews the
report thoroughly and individually evaluates the nominee, using
three rating categories: well-qualified, qualified, and not
qualified. Needless to say, to merit an evaluation of well-
qualified, the nominee must possess legal ability, experience,
and reputation of the highest standing.
With respect to Judge Roberts's nominations to the Supreme
Court, the Standing Committee has rated him twice. When he was
first nominated by the President to be Associate Justice, on
July 29th, the 2004-2005 committee, chaired by Tom Hayward,
undertook a complete evaluation and measured the nominee's
integrity, professional competence, and judicial temperament.
That evaluation included interviews with more than 300 judges,
lawyers, and community members throughout the Nation; a review
of his decisions and selected substantive memoranda from the
National Archives by both our reading groups and individual
circuit members; and an in-person detailed interview with Judge
Roberts. Based upon that evaluation, the 2004-2005 Committee
found that Judge Roberts was unanimously well-qualified to be
Associate Justice of the Supreme Court.
When the President thereafter nominated Judge Roberts to be
Chief Justice, on September 6th, the 2005-2006 committee, which
took office in mid-August with seven new members, performed a
supplemental evaluation. That supplemental effort was focused
solely upon the nominee's qualifications to perform the
administrative and leadership skills incumbent upon the Office
of Chief Justice of the United States. This new Committee had,
essentially, a handful of days to perform that supplemental
evaluation. Nonetheless, that supplemental effort included
interviews with well over 80 judges, lawyers, and community
members; a review of the materials gathered in the original
report; and an in-person interview with Judge Roberts. Based
upon that supplemental evaluation, and even with the change in
membership, Judge Roberts was found by the 2005-2006 Standing
Committee to be unanimously well-qualified to perform the
administrative and leadership responsibilities required of the
Chief Justice of the United States.
These two ratings, when considered together and in
conjunction with the accompanying letter to your Committee,
which we ask to be made part of this record, provide the Senate
Judiciary Committee with a comprehensive, independent peer
review.
Allow me to summarize: The ABA Standing Committee is fully
satisfied that Judge Roberts meets the highest standards
required for service as Chief Justice of the United States. He
has the admiration and respect of his colleagues on and off the
bench. And he is, as we have found, the very definition of
collegial.
Mr. Chairman, the goal of the ABA Standing Committee has
always been and remains in concert with the goal of your
Committee, to assure a qualified and independent judiciary for
the American people.
Thank you for the opportunity to appear here. We are more
than happy to entertain any questions.
[The prepared statement of Mr. Tober appears as a
submission for the record.]
Chairman Specter. Thank you, Mr. Tober, for your testimony.
Thank you, Ms. Bresnahan, for your contribution; Mr. Hayward,
for your contribution. We thank the ABA for your hard work and
a very comprehensive report. Obviously a great deal of effort
has gone into it, with the very extensive interviews which you
have conducted.
Senator Leahy?
Senator Leahy. They are probably going to feel left out and
disappointed if we don't grill the three of them the way we
grilled Judge Roberts the last few days.
Ms. Bresnahan. I don't think so.
Senator Leahy. But on their behalf, I am willing to waive
that.
Mr. Tober. We will take that risk, Senator.
Chairman Specter. A vote has just begun. I think we can
move ahead into the next panel unless any of the members have
any questions which are important to be asked.
Senator Biden?
Senator Biden. I just want to reiterate, we know how much
work this entailed. I mean, it was an incredible amount of
work. And truly, we thank you. There have been debates in this
Committee in the past about the relevance and importance of the
ABA recommendation. I think it is important, what you do; I
think we all do now. And I want to thank you. It is a whole lot
of work.
And thank you, Steve, for your efforts.
Mr. Tober. Thank you, sir.
Chairman Specter. Senator Hatch?
Senator Hatch. Let me just second that. I have certainly
appreciated over the years the good work you are doing. I have
to say that over the last number of years it has just been
exemplary in every way. I just want you all to know that, and
we appreciate it. We know all the effort and especially, Ms.
Bresnahan, the effort that you have put in on a number of the
judges that have come up in this area. You have worked your
heart out, and I have to say I want to compliment.
Ms. Bresnahan. Thank you, Senator Hatch.
Chairman Specter. Senator Sessions?
Senator Sessions. Mr. Chairman, I would also like to thank
these members for their work and would just point out that, in
the course of making these evaluations, you talked to the
judges, lawyers on both sides, against whom they litigated. You
know from your own personal experience normally who will give a
fair and honest evaluation and place good judgment on a
person's professional skills. So I do think it provides a lot
of advantages for our Committee, and I salute that.
Secondly, let me ask if one of you would comment just as a
professional lawyer who has been involved in the practice for
many years--how do you feel about the tendency that sometimes
occurs to judge a lawyer by their client rather than how they
perform honorably and effectively in court? Would you share
your thoughts about that subject?
Mr. Tober. I guess what I would say, Senator, is that a
lawyer is an advocate in the first instance and an officer of
the court as well. And the roles are distinct, well-defined.
And if we only defended those that didn't need our help, we
wouldn't be doing very much for the American people.
The role of a judge is very different. By definition, that
person should know nothing about the case coming before them,
should have no judgment about the parties either way, and must
be fundamentally fair at the end of the day so that litigants
and lawyers feel they've been treated properly in our system.
The only thing, Senator, that keeps our buildings of justice
standing is the respect of the American people, and that is the
product that comes out of that building from judges.
Senator Sessions. And you would have some concern that if a
judge judged lawyers by their clients and didn't give them the
full fair hearing in court, I guess you would say.
Mr. Hayward. That is true, Senator, and I adopt the
comments of Steve Tober. And I would even add to that. You
should not judge it by who the lawyer represents because the
lawyer, as you have heard over the last several days, is there
as an advocate.
Chairman Specter. Thank you, Senator Sessions.
Senator Leahy. I didn't want by my saying there would be no
questions to suggest that we don't have appreciation. I have
been Chairman of this Committee as have several others here,
and we do know the work, we do know a number of instances where
you have gone back and followed up on things. It is not easy. I
should note for the people who are watching this, you don't get
paid for doing this.
Mr. Tober. That is correct, sir.
Senator Leahy. In fact, we couldn't begin to afford it,
with the fees of some of you, if you did. You do this pro bono.
It is a tremendous service to the Senate, but it also a
tremendous service to the bar overall, and I thank you for it.
Mr. Hayward. Thank you, Senator.
Mr. Tober. Thank you, Senator.
Ms. Bresnahan. Thank you, Senator.
Chairman Specter. It is a high compliment to have no
questions, or few questions.
Senator Sessions. Could I ask one more?
Senator Leahy. We are diminishing the compliment now.
Senator Sessions. With regard to the lawyers and judges and
others you interview, isn't it true that sometimes they are
more willing to confide in you if they have a problem that they
might share with someone else?
Mr. Tober. I believe that is true, Senator. Tom served 6
years before being Chair. I served three as a member. Pam has
been on for three. We all have had experience in talking to
judges, to lawyers, to other community members who feel very
comfortable understanding that what they tell us remains in the
strictest of confidence, and we are able to do a true peer
review because of that. I thank the Senator for the opportunity
to explain that. We do get information of the most important
kind from the process that we engage in.
Chairman Specter. Thank you very much, Mr. Tober, Ms.
Bresnahan, and Mr. Hayward. Thank you.
Mr. Tober. Thank you, Mr. Chairman.
Mr. Hayward. Thank you, Senator.
Ms. Bresnahan. Thank you.
Senator Sessions. I think that makes that report
particularly valuable, Mr. Chairman.
Chairman Specter. I agree with you, Senator Sessions.
We will now call on our second panel, Governor Thornburgh,
Congressman Lewis, Commissioner Braceras, Mr. Wade Henderson,
Commissioner Kirsanow, and Judge Jones.
While the panel is being seated, just a word of
explanation. There is a vote in process, but there is a second
vote behind that so that when we break to vote, it is most
efficient to vote a second time before returning. But we never
know exactly when the first vote is going to end, so our time
is best economized if we arrive there about 20 minutes after
the vote has started so that we can return as promptly as
possible.
Our first witness is the distinguished former Governor of
Pennsylvania, Governor Dick Thornburgh, elected in 1978 and
reelected in 1982, Attorney General for both President Reagan
and President George H.W. Bush, Under Secretary General for
Administration and Management of the United Nations, currently
counsel for the international law firm of Kirkpatrick and
Lockhart and a longstanding friend of mine. It began in 1966
when I campaigned with him in Squirrel Hill when he ran for the
Congress of the United States.
Governor Thornburgh, thank you for joining us.
STATEMENT OF HON. DICK THORNBURGH, FORMER ATTORNEY GENERAL OF
THE UNITED STATES, FORMER GOVERNOR OF PENNSYLVANIA, AND
COUNSEL, KIRKPATRICK AND LOCKHART NICHOLSON GRAHAM, WASHINGTON,
D.C.
Mr. Thornburgh. I appreciate that, Mr. Chairman. Thank you,
Chairman Specter, other distinguished members of the Judiciary
Committee. It is my distinct honor and privilege to be here
today in full support of Judge John G. Roberts's nomination to
be the 17th Chief Justice of the United States.
I have known Judge Roberts as a friend and colleague for
over 15 years and can attest to his outstanding personal
characteristics and undoubted integrity. Perhaps more important
for present purposes, Judge Roberts's extraordinary legal
skills and keen intellect are undisputed.
Before his Senate confirmation by unanimous consent over 2
years ago to be a judge on the D.C. Circuit Court of Appeals,
he was heralded by leading Democrats and Republicans alike as
one of the very best and most highly respected appellate
lawyers in the nation with a deserved reputation as a brilliant
writer and oral advocate. He is also a wonderful professional
colleague, both because of his enormous skills and because of
his unquestioned integrity and fair mindedness, that from his
peers at the D.C. Bar.
I can echo this fanfare because of the deep and lasting
respect I have for Judge Roberts's legal abilities that I saw
firsthand when he served as the Principal Deputy Solicitor
General while I was Attorney General under Presidents Reagan
and George H.W. Bush. In that capacity, Judge Roberts
represented the U.S. Government in all manner of cases before
the Supreme Court, where he was charged to defend, among other
things, legal attacks on the constitutionality of Acts of
Congress. John represented the Government in 39 cases before
the Supreme Court while in the Solicitor General's Office.
He is a truly remarkable lawyer--bright, witty, capable,
respectful, and creative. I had the good sense to enlist him as
my coach for my final appearance before the Supreme Court
myself in 1991 and we won the case.
On the Court of Appeals for the last 2 years, Judge Roberts
has demonstrated in practice the principles he has articulated
as a young attorney working at the Department of Justice.
Reflecting on the role of judicial restraint as a guiding
standard for how courts should approach the judicial
decisionmaking process, Judge Roberts explained in the
materials he drafted for then-Attorney General William French
Smith, and I quote, ``The phrase `judicial restraint' may mean
many things to many people, but at its core, it is a notion
that Federal courts must scrupulously avoid engaging in policy
making, which is committed under our system of government to
the popularly elected and accountable branches of the States.''
``Judicial activism,'' Judge Roberts stated, ``is neither
conservative nor liberal.'' He recognized that throughout
history and to this day, both liberal and conservative
interests have sought to enlist an activist judiciary in the
achievement of goals which were not attainable through normal
political processes. Today, different groups urge judges to
substitute their own policy choices for those of Federal and
State legislatures, but the evils of judicial activism remain
the same regardless of the political ends the activism seeks to
serve. So said Judge Roberts.
Indeed, he sagely recognized that the greatest threat to
judicial independence occurs when the courts flout the basis of
their independence by exceeding their constitutionally limited
role and engage in policy making.
Let me highlight just one of Judge Roberts's D.C. Circuit
opinions, which clearly reflects the correctness of his
approach that cases should be decided upon the text of the
statute, the Constitution, and the particular facts before the
court. I know that most members of this Committee are familiar
with this case, which has been nicknamed the ``french fry
case.''
The facts are straightforward. The D.C. City Code made it
illegal to eat or drink in a Metro station and the local
transit authority imposed a zero-tolerance policy for
violation, since it had received complaints about bad behavior
in certain Metro stations. A 12-year-old girl who stopped at a
fast-food restaurant on the way home from school made the
mistake of eating a french fry while waiting for her friend to
purchase a farecard. She was arrested and hauled off to jail
for booking, and ultimately, some three hours later, delivered
to the custody of her parents.
Was this bad policy? Yes. In fact, after the publicity
surrounding the case, the City Council adopted a new rule
whereby they would merely issue citations to juvenile offenders
rather than arresting them. Was the policy unconstitutional?
Both the District Court judge and the unanimous panel of the
D.C. Circuit agreed that it was not because age, or more
specifically youth, is not a suspect classification under the
Constitution or any Act of Congress and because probable cause
existed to support the arrest, since she did, in fact, eat the
french fry in violation of the city's zero-tolerance policy.
Why discuss such a seemingly silly case? I think that in
the opening paragraph of the decision, which I will quote,
Judge Roberts forcefully establishes his understanding of the
court's limited role while at the same time expressing hope
that the policy is changed at the appropriate level.
He said, ``No one is very happy about the events that led
to this litigation. A 12-year-old girl was arrested, searched,
and handcuffed. Her shoelaces were removed and she was
transported in a windowless rear compartment of a police
vehicle to a juvenile processing center, where she was booked,
fingerprinted, and detained until released to her mother some
three hours later, all for eating a single french fry in a
Metrorail station. The child was frightened, embarrassed, and
crying throughout her ordeal. The District Court described the
policies that led to her arrest as foolish, and indeed, the
policies were changed after those responsible endured the sort
of publicity reserved for adults who make young girls cry. The
question before us, however, is not whether these policies were
a bad idea, but whether they violated the Fourth and Fifth
Amendments to the Constitution. Like the District Court, we
conclude that they did not.''
Judge Roberts has also stated repeatedly his belief that
cases should be decided on the merits, not on the basis of a
judge's personal opinion. As he expressed as recently as this
past July in United States v. Jackson, sentiments do not decide
cases. Facts and the law do. Understanding that most basic
principle highlights the significant difference that exists
between a lawyer acting as an advocate on behalf of a client
and the role of a judge charged with deciding cases fairly and
objectively.
But all too often in the soundbites that attach to reviews
of Judge Roberts's record, one group or another will state that
Judge Roberts doesn't support, for example, the rights of
criminal defendants, environmental enactments, or the civil
rights laws, or most egregiously, that Judge Roberts condoned
the bombing of women's clinics. The supposed bases for these
claims is gleaned, interpreted, and misconstrued by these
critics from their interpretation of arguments that Judge
Roberts made as a lawyer, both in private practice and for the
Government.
The distinguished members of this Committee can easily see
through this argument, for we all know and appreciate that
lawyers are duty-bound to be zealous advocates for their
clients. Cases argued by Judge Roberts as a Government lawyer
or a lawyer in private practice, in my opinion, say little
about how Judge Roberts as a Supreme Court Justice will
approach cases, other than as he has all his professional life.
He approaches matters with great skill, dedication, and
earnestness.
It is Judge Roberts's record as a jurist that is most
impressive and most persuasive. It is a record that speaks of a
judge who understands the role of the judiciary, who approaches
each case independently and objectively, who respects history
and precedent, who interprets the law based on the facts before
him, who does not engage in judicial policymaking, and who will
make this country proud as the next Chief Justice of the United
States.
I sincerely appreciate the Committee's invitation to speak
today and the Committee's careful and deliberate consideration
of Judge Roberts's nomination. He is, in my view, an exemplar
of what we should seek in our next Chief Justice. Thank you.
[The prepared statement of Mr. Thornburgh appears as a
submission for the record.]
Chairman Specter. Thank you. Thank you very much, Governor
Thornburgh.
Congressman Lewis is voting at the moment.
Do we know how much time is left on the vote? Well, the
time has expired, so we are going to go vote and we will return
just as soon as we can. The Committee stands in brief recess.
[Recess 12:03 p.m. to 12:31 p.m.]
Chairman Specter. The hearing will resume.
Our next witness is Congressman John Lewis of Georgia, an
architect of the historic march on Washington in August of
1963; has been the Representative for Georgia's Fifth
Congressional District since November of 1986 when he was
elected, took office in January; a B.A. in religion and
philosophy from Fisk University, graduate of American Baptist
Theological Seminary.
Thank you for crossing the Rotunda today, Congressman
Lewis, and we look forward to your testimony.
STATEMENT OF HON. JOHN LEWIS, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF GEORGIA
Representative Lewis. Thank you very much, Mr. Chairman.
Mr. Chairman and distinguished members of the Committee, I
am honored to be here today. As many of you know, this is not
the first time I have come before this Committee. I was here 14
years ago when the nomination of another Justice to the Supreme
Court moved me to speak out. I am here today with the hope that
this Committee will hear my words and take heed.
When I was growing up in rural Alabama I saw those signs
that said ``White Men, Colored Men,'' ``White Women, Colored
Women.'' I used to ask my parents and my grandparents, ``Why
racism? Why racial discrimination? '' And they would tell me,
``Don't get in trouble. Don't get in the way.''
As a participant in the civil rights movement of the 1960's
I decided to get in the way. I was beaten, arrested and jailed
more than 40 times for peaceful, nonviolent protests against
legalized segregation in the South.
During that time I saw American citizens with their head
cracked open by nightsticks lying in the streets, weeping from
tear gas, trampled by horses and attacked by police dogs,
calling helplessly for medical aid.
Back then, legalized discrimination was enforced by State
and local officials. The Federal Government was our only hope,
and we depended on the Supreme Court to act as referee in the
struggle for justice and civil rights.
I remember on one occasion when the Court issued a decision
on public transportation, and a elderly black woman was
overheard to say, ``God Almighty has spoken from Washington.''
In 1965, Jurist Roberts was only 10-years-old. He may be a
brilliant lawyer, but I wonder whether he can really understand
the depth of what it took to get the Voting Rights Act passed.
The right to vote is precious, almost sacred. It is the most
powerful nonviolent tool we have in a democratic society.
As many of you know, I gave a little blood on the Edmund
Pettus Bridge, but some of my friends and colleagues gave all
they had, their very lives for the right to vote. People stood
day after day in unmovable lines to pass their so-called
literacy tests. They had to interpret certain sections of the
Constitution, count jelly beans in a jar or the number of
bubbles in a bar of soap to register to vote.
I feel that if Judge Roberts is confirmed to be the Chief
Justice of the United States, the Supreme Court would no longer
hear the people's cries for justice. I feel that the leadership
of the Court will promote politics over the protection of
individual rights and liberties. If the Federal Courts had
abandoned us in the civil rights movement in the name of
judicial restraint, we might still be struggling with the
burden of legal segregation in America today.
Jurist Roberts's memos reveal him to be hostile towards
civil rights, affirmative action and the Voting Rights Act. He
has even said that Voting Rights Act violations, and I quote,
``should not be made too easy to prove.'' Under the Court's
decision in Mobile v. Bolden, the Court weakened the Voting
Rights Act. Under this ruling many political subdivisions would
have been permitted to maintain at large election systems,
diluting minority voting strength. This may be less obvious
than the violence and intimidation of 1965, but it is no less
harmful to our Nation's principles of inclusive democracy.
Section 2 has been successful in reducing barriers, and has
increased the number of minority elected officials. There is no
doubt, Mr. Chairman, in my mind, that had Judge Roberts's
narrow reading of the Voting Rights Act prevailed, fewer people
of color would be serving in Congress and at both the State and
local level today.
As our Nation is still reeling from Hurricane Katrina, the
timing of these hearings could not be more significant. What
happened in New Orleans and along the Gulf Coast of Alabama,
Mississippi and Louisiana exposed the issue of race, class and
fairness yet again. We are still a Nation deeply divided by
race and class.
All Americans, every race or every religion or nationality,
whether they are women or men, gay or straight, or people with
disabilities, all of us need equal access to a fair and
independent judiciary to assure equal justice under the law.
The stakes are higher than ever. We cannot afford to
elevate an individual to such a powerful lifetime position
whose record demonstrates such a strong desire to reverse the
hard-won civil rights gains that so many of us sacrificed so
much to achieve. We have come a great distance. We cannot
afford to stand still. We cannot afford to go back. We must go
forward to the creation of one America.
My friends, Members of the Senate, I implore you to get in
the way.
Thank you, Mr. Chairman.
[The prepared statement of Representative Lewis appears as
a submission for the record.]
Chairman Specter. Thank you very much, Congressman Lewis
for those very passionate remarks.
Our next witness is Commissioner Jennifer Braceras, U.S.
Commission for Civil Rights; taught at the Suffolk Law School
as a Visiting Fellow at the Independent Women's Forum; in the
year 2000, Massachusetts Lawyers Weekly rated her as one of the
State's top ten lawyers of the year. Practiced law with the
Boston firm of Ropes & Gray.
Thank you for joining us, Commissioner Braceras, and we
look forward to your testimony.
STATEMENT OF JENNIFER CABRANES BRACERAS, ESQ., COMMISSIONER,
U.S. COMMISSION ON CIVIL RIGHTS AND VISITING FELLOW AT THE
INDEPENDENT WOMEN'S FORUM, BOSTON, MASSACHUSETTS
Ms. Braceras. Thank you.
Chairman Specter, Senator Leahy, members of the Committee,
my name is Jennifer Braceras. I am a resident of Massachusetts
and a member of the Massachusetts Bar and the Hispanic National
Bar Association. I am, as you said, a Visiting Fellow with the
Independent Women's Forum, and I am privileged to serve by
appointment of the President as a Commissioner on the United
States Commission on Civil Rights.
I am honored to be here today to support the nomination of
Judge John Roberts to be Chief Justice of the United States.
Although I do not know Judge Roberts personally, I am generally
familiar with his background and record. His distinguished
career and his testimony before this Committee make clear to
even the most casual observer that Judge Roberts is eminently
well qualified for the post.
Despite these obvious qualifications, however, opponents of
Judge Roberts criticize his record on a variety of matters that
loosely fall under the umbrella of civil rights. These critics
allege that Judge Roberts's confirmation to be Chief Justice
will somehow be harmful to women and minorities. These charges
are at best misplaced, and at worst deliberately misleading
attacks that would have been leveled against anyone nominated
by this President.
There are at least five reasons why such criticisms are
without merit. First, many of the specific criticisms of Judge
Roberts's record involve positions he advocated as a lawyer in
the administrations of Presidents Ronald Reagan and George H.W.
Bush. Some of the subjects that have elicited criticism by
interest groups include school busing, racial quotas, the
revision of the Voting Rights legislation to seek equal
electoral results as opposed to equal access, and the theory of
comparable worth.
Published reports indicate that the positions taken by
Judge Roberts in this capacity as a lawyer for the Reagan and
Bush administrations are broadly consistent with the views of
the American people and fully within the political mainstream.
But even if they were not, the arguments expressed by Judge
Roberts as a young man decades ago are arguments on behalf of
the administrations for which he worked, not the views of a
neutral umpire asked to rule on particular legislation.
Judge Roberts's view of the judicial function does not
contemplate the imposition of his own policy preferences from
the bench. His commitment to judicial restraint should give
Americans of all political viewpoints great comfort.
Second, it is clear from the public record that Judge
Roberts supports the vigorous enforcement of our Nation's anti-
discrimination laws. In his executive branch memos Judge
Roberts repeatedly defended the ``bedrock principle of treating
people on the basis of merit without regard to race or sex.''
And he argued numerous times for the executive branch to
prosecute claims of unequal treatment to the fullest extent of
the law.
Third, as an advocate, Judge Roberts has been on both sides
of controversial civil rights questions. This broad experience
should give the American people faith in Judge Roberts's
ability to understand the complexity of controversial issues.
Fourth, it is clear that Judge Roberts has a strong
commitment to equal opportunity and to the anti-discrimination
principle embodied in the 14th Amendment and codified in the
Civil Rights Act of 1964. He has written--and I quote--``Before
the law, we do not stand as black or white, Gentile or Jew,
Hispanic or Anglo, but only as Americans entitled to equal
justice.''
Certainly there is nothing extreme or unusual about this
field. To the contrary, it embodies the American ideal. It
reflects the aspirations of the 14th Amendment which were given
life by the Court in Brown v. Board of Education and by the
framers of the 1964 Act.
Finally, and perhaps most importantly, irresponsible
rhetoric that a Court led by Judge Roberts would be hostile to
civil rights misinterprets the role of the Court in our
democracy. This rhetoric is based on several deeply flawed
premises. First, such rhetoric presumes that it is the job of
the Court to create new rights in response to evolving
circumstances. It is not. Our Constitution guarantees certain
basic rights which the courts must, of course, enforce.
Legislatures, both State and Federal, may expand upon those
rights or create new ones, provided that they act within the
scope of their constitutional authority. If citizens are in any
way dissatisfied with the scope or reach of current law, it is
to their democratically elected representatives, not the
courts, that they must turn.
Second, Judge Roberts's critics erroneously presume the
Court should interpret all statutory language expansively. That
is also not their role. Their role is to apply statutes as
written.
Chairman Specter. Commissioner Braceras, could you
summarize the balance of your statement, please?
Ms. Braceras. Sure.
Chairman Specter. Your full statement will be made a part
of the record, as will all statements.
Ms. Braceras. The Supreme Court is neither the first nor
the last word on civil rights, or any other issue, for that
matter. Each of the three branches of Government has a role to
play, and Judge Roberts respects and understands these distinct
roles.
In conclusion, I submit that Judge Roberts's critics have
it wrong. Judge Roberts's commitments to the vigorous
enforcement of our Nation's civil rights laws and to the
bedrock principles of judicial restraint, judicial review, and
equal opportunity will make him a Justice of whom all Americans
can be proud. And I urge you to confirm him as the next Chief
Justice of the United States.
[The prepared statement of Ms. Braceras appears as a
submission for the record.]
Chairman Specter. Thank you very much, Commissioner
Braceras.
Senator Leahy has asked for recognition before we complete
the panel. Senator Leahy?
Senator Leahy. Thank you, Mr. Chairman.
A classmate of mine from law school, John Dean, was
supposed to testify, but when we changed the schedule this week
he was unable to join us. I just want to make sure his
testimony is put in the record at the appropriate place.
Chairman Specter. Without objection, it will be made part
of the record.
Our next witness is Mr. Wade Henderson, who is the Director
of the Leadership Conference, a longstanding leader on civil
rights. Before his current position, he was Washington Bureau
Director of the NAACP, serves as the Rauh Professor of Public
Interest Law at the Clarke School of Law, a graduate of Howard
University and the Rutgers University School of Law. I know you
talked to David Brog about a postponement of the hearing, and
then events overtook us, and postponement did take place. Thank
you for joining us today, Mr. Henderson, and the floor is
yours.
STATEMENT OF WADE HENDERSON, EXECUTIVE DIRECTOR, LEADERSHIP
CONFERENCE ON CIVIL RIGHTS, WASHINGTON, D.C.
Mr. Henderson. Well, good afternoon, Mr. Chairman, and
members of the Committee, and thank you, Mr. Chairman, for your
courtesies in giving us an additional week because of the
aftermath of Hurricane Katrina.
Again, my name is Wade Henderson, and I am the Executive
Director of the Leadership Conference on Civil Rights. The
Leadership Conference is the Nation's premier civil and human
rights coalition and has coordinated the national legislative
campaigns on behalf of every major civil rights law since 1957.
The Leadership Conference's 190 member organizations represent
persons of color, women, children, organized labor, individuals
with disabilities, older Americans, major religious groups,
gays and lesbians, and civil liberties and human rights groups.
It is a privilege to represent the civil rights community in
addressing the Committee today.
Based on reasons I will highlight here today, discussed at
greater length in my written testimony, and after a careful
review of John Roberts's available record, including his
testimony before this Committee, the Leadership Conference is
compelled to oppose his confirmation to the position of Chief
Justice of the United States.
In the last several days of testimony, Judge Roberts has
failed to distance himself from the anti-civil rights positions
he has advocated. We have heard nothing demonstrating his
commitment to ensuring that the Federal Government will
continue to play a strong role in protecting civil and human
rights of all Americans. To the contrary, all evidence
indicates that Judge Roberts would use his undeniably
impressive legal skills to bring us back to a country that most
of us wouldn't recognize, where States' rights trump civil
rights, where the Federal courts or Congress can see
discrimination but are powerless to remedy it. This is not the
America in which most Americans want to live.
As we have seen over the past 2 weeks in the wake of
Hurricane Katrina, when the Federal Government's role is
diminished, the least among us suffer most. Our Nation fought a
Civil War over the meaning of equality in our Constitution and
the role of the Federal Government in ensuring that equality,
and then engaged in a great debate about the power of the
Federal Government to enforce the 13th, 14th, and 15th
Amendments. Reconstruction failed, and African-Americans were
returned to a position of near servitude because those who
advocated for weak Federal power won.
It wasn't until decades later when the Court outlawed
State-sponsored segregation in Brown v. Board of Education,
followed by the enactment of a series of civil rights statutes
by Congress in the 1960's that are now the bedrock of our
national commitment to equality of opportunity, that the
Federal Government stepped in as a champion of equal justice
under law.
However, in recent years, we have seen the rise of a
political movement that is an eerie parallel to the post-
Reconstruction period. Today, there are those who in the name
of judicial restraint advocate for a Federal retreat in the
area of civil rights. While our Constitution speaks of
fundamental rights, some oppose the Federal courts or Congress
using the Constitution to protect individuals against
violations of those rights. John Roberts has written that
Federal courts should not be empowered to invalidate ``widely
accepted State practices,'' even if such practices prevent
African-Americans and others from having equal opportunity in
voting. If his view had prevailed, our country's voting rights
revolution would never have happened.
Would Judge Roberts have approved of poll taxes or literacy
tests because those were ``widely accepted practices''? Despite
the strong recommendation from a very conservative member of
the Reagan administration's civil rights team, John Roberts
advised against intervention in a sex discrimination case
against the Kentucky prison system, contending that
discriminatory treatment of men and women in the prison's
vocational program was ``reasonable in light of tight prison
budgets.''
Would Judge Roberts then apply the same argument to equal
educational opportunities for women generally? Could States in
the name of saving money refuse to provide equal health
services to men and women? In John Roberts's view, Congress
could exclude all school desegregation cases from the
jurisdiction of the Federal courts. This is, in effect, a pre-
Brown vision that fits squarely into the objective of
preventing the Federal courts from fulfilling the promise of
the 14th Amendment.
As many commentators have made clear, John Roberts is a
gifted and intelligent lawyer and advocate, but that is not the
test for determining whether he is fit to lead the highest
Court in the land. Rather, the test is whether John Roberts has
demonstrated he has committed to the fundamental principles on
which our country was founded and whether his vision of America
matches the expectations of mainstream Americans. John Roberts
has failed this test. Therefore, the Leadership Conference on
Civil Rights has no choice but to oppose his confirmation.
America can and should do better.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Henderson appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Henderson.
Our next witness is Commissioner Peter Kirsanow of the U.S.
Commission on Civil Rights, had been labor counsel for the City
of Cleveland; he is the Chair of the Board of Directors of the
Center for New Black Leadership, on the Advisory Board of the
National Center for Public Policy Research, a graduate of
Cornell, a law degree from Cleveland State with honors.
Thank you for coming in today, Commissioner, and we look
forward to your testimony.
STATEMENT OF PETER KIRSANOW, PARTNER, BENESCH, FRIEDLANDER,
COPLAY & ARONOFF, AND COMMISSIONER, U.S. COMMISSION ON CIVIL
RIGHTS, CLEVELAND, OHIO
Mr. Kirsanow. Thank you, Mr. Chairman, Senator Leahy,
members of the Committee. I am Peter Kirsanow, a member of the
U.S. Commission on Civil Rights and a partner in the Cleveland,
Ohio, law firm of Benesch, Friedlander, Coplay & Aronoff, in
the labor and employment practice. I am here in my personal
capacity.
The U.S. Commission on Civil Rights was established in 1957
to, among other things, act as a national clearing house for
information related to denials of equal protection and
discrimination, and in furtherance of that function, my
assistant and I reviewed the opinions of Judge Roberts while on
the D.C. Circuit related to civil rights and also his Supreme
Court advocacy related to civil rights, particularly with
respect to prevailing civil rights norms, jurisprudential
norms, with particular attention to the 1964 Civil Rights Act
and the 14th Amendment.
Our examination reveals that Judge Roberts's approach to
civil rights is consistent with mainstream textual
interpretation of the relevant constitutional and statutory
authority and governing precedent. His opinions evince
appreciable degrees of judicial restraint, modesty, and
discipline and, in short, Judge Roberts's approach to civil
rights is exemplary. It is legally sound, intellectually
honest, and with a deep appreciation for the historical bases
for civil rights laws.
Our examination also reveals that several aspects of Judge
Roberts's civil rights record have been mischaracterized and
sometimes the criticisms have been sorely misplaced, for
example, conflating his counsel and advocacy on the part of
clients with his own personal policy preferences. Just three
brief examples.
First, some have contended that during the 1982
reauthorization of the Voting Rights Act, Judge Roberts had
adopted an anti-civil rights approach to the interpretation of
the Act. But the record definitively shows that Judge Roberts
had consistently counseled in favor of reauthorization of the
entire Act as is, and he expressed the administration's concern
that a substantive redefinition of Section 2 could risk
introducing confusion and uncertainty into what had already
been considered one of the Nation's most successful pieces of
civil rights legislation. Judge Roberts continued to advocate
on behalf of his client for vigorous enforcement of Section 2
even after adoption of the effects test.
Second, some have claimed that Judge Roberts's position on
affirmative action is regressive. Most of these criticisms
relate to his questioning of a 1981 U.S. Commission on Civil
Rights report pertaining to affirmative action. A detailed
examination of that report shows that not only was Judge
Roberts's criticism correct but imperative. The Commission's
report was inconsistent with the status of the law in 1981,
when issued, and fails to comport with the post-Adarand
Construction v. Pena, Grutter v. Bollinger affirmative action
norms of today. Judge Roberts had properly advised against
unlawful racial quotas and set-asides untethered to a proof of
discrimination. He supported the--and we heard it earlier--
``bedrock principle of treating people on the basis of merit
without regard to race or sex.''
A third contention unsupported by examination is that Judge
Roberts's arguments before the Supreme Court in civil rights
matters were somehow extreme or out of the mainstream.
Probabilities would dictate that if Judge Roberts had somehow
slipped past the Supreme Court's gatekeepers and got to make
extremist arguments before the Court, the Court would have
dismissed virtually 100 percent of those arguments or, at a
bare minimum, far more than 50 percent, which is the fate of
most arguments before the Court. Again, a review of the record
shows that Judge Roberts's arguments with respect to civil
rights were agreed to by the Supreme Court 71 percent of the
time--hardly indicative of positions outside of prevailing
civil rights norms. And these Justices who agreed with him
included those who might colloquially be described as
conservative, such as Justice Rehnquist, who agreed with him 75
percent of the time, or Justices Scalia and Thomas, each of
whom agreed with him 71 percent of the time. But they also
include Justices colloquially described as liberal, such as
Justice Ginsburg, who agreed with him 60 percent of the time;
Justice Souter, 59 percent of the time; Justice Stevens, 59
percent of the time; and even Justice Thurgood Marshall, the
premier civil rights litigator, probably forever, agreed with
his advocacy position 67 percent of the time, almost as much as
Justices Scalia and Thomas, and more than Justice O'Connor.
Mr. Chairman, it is respectfully submitted that Judge
Roberts's 25-year record with respect to matters pertaining to
civil rights demonstrates an unwavering commitment to equal
protection and a comprehensive understanding of our civil
rights laws that would make him an outstanding addition to the
Supreme Court, particularly in the capacity of Chief Justice.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Kirsanow appears as a
submission for the record.]
Chairman Specter. Thank you very much, Commissioner.
Our next witness and final witness on this panel is Judge
Nathaniel Jones, who served as Executive Director of the Fair
Employment Practice Commission, was an Assistant U.S. Attorney
for the Northern District of Ohio, directed NAACP litigation as
general counsel for 10 years, a graduate of Youngstown State
University, both Bachelor's and law degrees and served on the
Court of Appeals for the Sixth Circuit and is now retired.
Judge Jones, thank you for coming in today and we look
forward to your testimony.
STATEMENT OF NATHANIEL JONES, RETIRED JUDGE, U.S. CIRCUIT COURT
OF APPEALS TO THE SIXTH CIRCUIT, OF COUNSEL, BLANK ROME LLP,
CINCINNATI, OHIO
Judge Jones. Thank you, Mr. Chairman and Senator Leahy and
esteemed members of the Committee. I am honored to have this
opportunity to appear as a witness today to, I hope, assist you
to more effectively evaluate the fitness of John G. Roberts to
be confirmed as Chief Justice of the United States by providing
a historical perspective.
Mr. Chairman, I ask that my full statement be entered into
the record.
Chairman Specter. Without objection, Judge Jones, it will
be a part of the record.
Judge Jones. Thank you. My acceptance of your invitation to
offer testimony was prompted by my conscience and is driven by
a profound obligation to introduce into the record a historical
perspective, and in doing so, I join with my colleague, John
Lewis, whose life is a personification of courage and I wish to
add to his description of the struggle for civil remedies and
civil rights remedies.
You are confronted here, I suggest, with a serious
constitutional and moral responsibility. You are considering
under the Constitution's Advice and Consent Clause the fitness
of a Supreme Court nominee who has in the past argued against
the use of Federal power to eradicate the vestiges of slavery
and the badges of servitude. This record triggers serious
questions and a vigorous inquiry into the whys.
So much of the nominee's advocacy as a Government lawyer
and counselor was in the direction of against the
implementation of civil rights remedies. There has been a lack
of balance.
While I appear in my own right, more importantly, I am
invoking the voices of distinguished legal giants whose voices
have been stilled by time: Dean Charles Hamilton Houston,
Justice Thurgood Marshall, Judge William H. Hastie, Clarence
Mitchell, James A. Nabrit, Judge Spottswood Robinson, Judge A.
Leon Higginbotham, and many others who have my, and I trust
your, deep and enduring respect.
These individuals believed in the Constitution and they
hoped that government would step up and protect the rights of
the minorities and the persons who were victims of majoritarian
excesses. They fashioned a strategy for using the law and the
courts to attack racial segregation. They set the stage for the
development of remedies to remove the stain of racial
segregation that law and the courts imposed upon this land.
You may ask why I invoke their names and speak in the voice
of these towering legal giants and hold up the contributions
they made to advancing civil rights jurisprudence. My reason is
twofold. First, my professional and personal experiences
qualify me to do so. Second, since he was nominated by the
President, serious questions have been raised concerning Judge
Roberts's views about the relevance and legality of remedies
aimed at ending racial discrimination.
Unfortunately, few Americans know or have focused on or are
familiar with the history of the myriad ways the posit of law
and legislatures and courts reinforced and perpetuated racial
discrimination in America. It is up to this Committee,
therefore, to assure that, at the very least, the next Chief
Justice of the United States understands that history and, most
importantly, why remedial action was and continues to be
necessary. Those courageous souls who laid the foundation for
overturning decades of legally enforced racial segregation are
calling out to you, and I echo their voices, to respect their
labors and heed their lessons.
One's fitness to be the Chief Justice transcends stellar
academic achievements and acknowledged professional competence.
The nominee's views and his documented activist attempts to
thwart the Federal court's efforts to dismantle segregation
schemes that the courts themselves permitted to be erected and
sustained bring into play something much more fundamental than
technical skills. The critical question before you is one of
values, not competence.
To understand why this is true, one need to only consider
the most wretched decision the Supreme Court ever handed down
in a case of human rights, Dred Scott v. Sanford. The author of
that decision, Chief Justice Roger Taney, was undoubtedly
highly qualified from a technical and professional standpoint,
yet faced with the fundamental question of whether a former
slave had standing to sue to retain his newly acquired free
status, Justice Taney wrote that black people were not persons
within the meaning of the Framers of the Constitution.
Similarly, Henry Billings Brown, the author of the 1896
Plessy v. Ferguson decision, had impressive professional
credentials and academic, as well. He was a graduate of both
Harvard and Yale, and his prior judicial experience was on the
Sixth Circuit Court of Appeals, but he lacked the values that
sensitized him to understand why the 13th, 14th, and 15th
Amendments had to become a part of the Constitution.
On the other hand, it was Justice John Marshall Harlan, the
lone dissenter, a graduate of a much smaller law school, the
son of slave owners, who gave us the final word, and it is his
word that has rung through the years.
Gentlemen and lady, I would conclude with this observation.
Abraham Lincoln stated in his famous speech in 1862 to the
Congress that, fellow citizens, we cannot escape history. And
it was George Santayana who said, those who cannot remember the
past are condemned to repeat it.
But given the nature of the exchanges that I have observed
taking place this week in connection with the hearings, I would
leave with you the words of Dr. Martin Luther King. He asked
and answered these questions. Cowardice asks the question, is
it safe? Expediency asks the question, is it politic? Vanity
asks the question, is it popular? But conscience must ask the
question, is it right? I leave you with those challenges.
Chairman Specter. Thank you very much, Judge Jones.
[The prepared statement of Judge Jones appears as a
submission for the record.]
Chairman Specter. Our practice in the Committee is to have
five-minute rounds. In setting the witness list, we had many,
many, many, many requests and we have honored as many as we
could with some 30 witnesses, equally divided between Democrats
and Republicans. Usually, there is a tilt to the majority, but
my decision was to divide them equally. We have a very long
road ahead of us. This is the second panel on six. It is my
hope that the questions will be abbreviated. We wanted to see
you and hear you and have your statements and have your views
and look you in the eye.
I personally will have just a few questions which I will
want to ask, and let me start, Congressman Lewis, with you,
with great appreciation for what you have done.
The Voting Rights Act, which we labored through in 1982,
and I was there in Senator Dole's office and Senator Kennedy
was deeply involved and so was Senator Leahy, so many of us
were to get the effects test instead of the intent test so that
we have some realistic enforcement of civil rights. Senator
Kennedy and I have already conferred. He came to me and said,
let us renew the bill this year, the Act this year, if we can.
It is the 40th anniversary. We have a jammed agenda, but we are
going to try to do that. It will be renewed. It doesn't expire
until 2007. I am very much with you on the objectives and what
we have to do.
The memoranda which you referred to, and there are quite a
number of them, go back to Judge Roberts's days as a young
lawyer and he has testified that he was representing a client
and we had real battles with the Reagan administration. There
is no doubt about that. I was involved in them, notwithstanding
the fact that it was my party.
But Congressman Lewis, I would like your views as to how
you regarded what Judge Roberts said in explaining his views at
the time, or what the memoranda said, which he said were not
necessarily his views, and you have to evaluate that, contrast
it with the very close questioning by Senator Kennedy and
others where he did not raise objections. He said he did not
have an agenda to turn back the clock.
Representative Lewis. It is my view, Chairman, that the
Judge was on the wrong side of history. He was on the wrong
side of the Voting Rights Act, not just the letter, but also
the spirit of the Act.
It is very hard and very difficult, almost impossible, to
prove intent. You don't have--I think Vernon Jordan, the former
head of the Urban League, said on one occasion that you won't
have people in the American South, in the 11 Southern States or
the Old Confederacy, from Virginia to Texas, couldn't have
signs saying we are going to discriminate. We are going to keep
black people from getting elected. They are not going to do
that.
I was young, too, a few years ago, 24, 25, but I tried to
do the right thing. I got in the way. And I think Judge Roberts
as a young attorney in the administration of President Reagan
and others failed to go with his gut. Maybe did he go with his
gut, did he go with his heart, or was this his view? You don't
come back years later and say, ``Oh no, oh no, this was not my
view.'' Sometimes you have to fight. Sometimes you have to get
in the way. If you can't get in the way when you are 25 or 30,
you are not going to get in the way when you are 50.
Chairman Specter. Thank you, Congressman Lewis.
I just have a minute-forty left and I want to give Governor
Thornburgh an opportunity to comment. Based on your knowledge
of Judge Roberts, and you worked with him at a time when he was
young, do you think that those memoranda reflected his own
views as to civil rights or what do your insights and your
knowledge of Judge Roberts tell you as to what we might expect
of him as Chief Justice, if confirmed, on these issues?
Mr. Thornburgh. Let me say just three things in response to
that, Senator. I have never seen any evidence of any hostility
to civil rights on the part of Judge Roberts during my
professional and personal association with him, which goes back
some 15 years.
Secondly, I think it is important, and Justice Ginsburg was
quite definite in this in her appearance at the time of her
nomination, to separate out the views that are expressed as an
advocate for a client and the views that might obtain if the
individual was speaking for him or herself.
And thirdly, I don't think any of us could stand--perhaps
my friend, John Lewis, could because of his distinguished
career, but I don't think any of us could stand a complete and
thorough rummaging through the views we expressed when we were
20 or 25 years old. I shudder to think that some of the things
that I had in my craw at the time would stand the test today.
But most importantly, I think it is my conclusion on the
basis of my personal knowledge of Judge Roberts that there is
no hostility there to civil rights. There is a veneration of
the rule of law, and to the extent that the rule of law
permits, it seems to me that he would be a strong supporter of
equal rights and equal treatment and equal justice for all
under the law.
Chairman Specter. Thank you, Governor Thornburgh.
This is a very, very distinguished panel and we could hear
a great deal more, but my time is up and I have to set the lead
on observing the time.
Senator Leahy, do you care to question?
Senator Leahy. Just more a comment. Of course, Governor
Thornburgh is a friend of all of ours. We have worked with him
during his time as the Attorney General.
You mentioned Justice Ginsburg. Just so the record is
clear, her appearance here was a lot different. She answered
questions from numerous Senators on race discrimination and
affirmative action. From several other Senators, she answered
questions on gender discrimination. From several other
Senators, she answered questions on reproductive rights. From
several other Senators, she answered questions on the death
penalty, and then First Amendment and freedom of speech, the
Religion Clause of the First Amendment, separation of powers,
unenumerated rights, the 14th Amendment, the role of the court,
deference to Congress, and then had three or four that she
didn't answer. But she answered specifically from both
Republicans and Democrats very intensive questions.
I only mention that because there seems to be some view
that when Judge Roberts took, I think, too much to heart the
recommendation made by some of the Senators here not to answer
questions, he took it too much to heart and did not answer
those questions.
When my friend, John Lewis, talks about time to get in the
way, he knows of which he speaks. He nearly died doing that. He
was doing it for the right cause, the cause of civil rights,
and I think every African-American and every white American and
every brown American and everybody else, all Americans have to
thank you for what you did.
I yield back my time.
Chairman Specter. Thank you, Senator.
Does anybody else on the other side of the aisle want to
say anything?
Senator Brownback. Can I offer one thought, Mr. Chairman,
just real quickly if I could. I want to welcome the panel and
in particular my friend, John Lewis. We worked a lot on the
African-American Museum of History and Culture that is going to
be here in Washington, D.C., sometime soon. We got that passed
through.
Judge Jones, if I could just ask you a real brief question
on this, because I hear your concerns and I hear the thoughts
and I respect the thoughts that you are putting forward here.
Judge Roberts, when people asked him, I think Senator Durbin
asked him, how do we know what kind of a judge you are going to
be on some of these issues? Obviously, you have got a great
head, but I want to look at your heart. It is hard to see a
man's heart, and Judge Roberts responded and said, well, look
at how I ruled in cases thus far, which there are not a lot of,
I think 52 cases thus far, but he does have one Washington
Metropolitan Transit Authority case where he ruled against the
D.C. Government's claim of sovereign immunity and in favor of a
worker's disability discrimination lawsuit. It is kind of thin,
but we only have 52 cases and that one is there.
And then he also talked about his dedication to rule of law
and that that is really what drew him into the law. If he is
sufficiently dedicated to that rule of law, given the laws that
we have on the books how work and protect civil rights and a
number of other issues, shouldn't that give some solace, that
if his heart is right on defending the rule of law, given that
we have gotten some of the laws better and right now, that he
could be quite a good judge for civil rights cases?
Judge Jones. Thank you for your question, and I would
respond this way. I will respond both as a former litigator, a
civil rights litigator, and as a judge.
As a judge, you look at the record. The record that has
been made here, the part of it that I have observed, shows an
early disposition to take positions contrary to civil rights
enforcement. The burden that is now imposed upon him and
imposed upon this Committee is to be satisfied that the
presumption, or at least the inference that one can draw from
that prior record has been overcome and that he doesn't share
those views at this time. That is a burden and judgment this
Committee has to make.
I would also point out that, if I may just be a little
personal, at the time I left my job as General Counsel of the
NAACP, a position that I had occupied which Thurgood Marshall
also occupied, I have been involved in litigating major civil
rights cases all across the country. I joined the court upon
appointment by President Carter in 1979. At that time, we
thought generally that certain civil rights principles were
settled.
We thought that the issue of school desegregation was
settled in light of Chief Justice Burger's decision in Swann in
which he said that busing and transportation was an appropriate
remedy when you had a finding of constitutional violations that
rigged a school district. We thought the issue of affirmative
action was settled with the Bakke case and Justice Powell's
plurality opinion in which he says you may take race into
account.
But we find that following that case, or those cases which
I thought were settled, I was then sitting as a judge on the
Sixth Circuit Court of Appeals and I was engaged in dealing
with the first wave of attacks against school desegregation and
against affirmative action. The challenges claiming
preferential treatment, claiming forced busing, all of these
buzzwords were coming at the court and we were then faced with
the decision, are these principles settled?
I have now learned that in the boiler room of the Reagan
administration, stoking out and crafting out a lot of the
theories that were being used in the courts to attack these
settled principles, was the nominee. Now, that raises a
question for me and for you, or this Committee, to decide
whether if one is a believer in the rule of law, why one would
not accept Swann as settled law, would not accept Bakke as
settled law, would not accept Weber as settled law.
The whole body of jurisprudence that had been built up to
reaffirm the value of remedial actions when it was clear that
we had this vast history of racial discrimination in this
country--
Senator Brownback. If I could, before my time runs out,
just quickly say I appreciate the thought. I do think we have
to--
Chairman Specter. Quickly, Senator Brownback. We have to
move on.
Senator Brownback. Okay. We do know what Judge Roberts has
ruled, what he has done as a judge, and I would hope people
could look at that in the fair light of what it is in
indicating his judicial temperament and nature.
Thanks, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Brownback.
We are going to break for lunch at the conclusion of this
panel.
Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
I don't think any of us in the course of the time of
questioning Judge Roberts ever suggested that in any way he had
any hostility on the issues of race. I really think the
question was does he get it. Does he get it? Just what the good
judge as pointed out, the march towards progress that we have
seen over the recent years.
So I would ask Mr. Henderson and then John Lewis, how about
this argument: Well, he was just an attorney. He was just
attorney who was speaking for an administration. He was just
taking the administration's position. So we shouldn't be too
harsh on this. Sure, the administration just wanted the
reauthorization of the intent test; he was just following
orders, so to speak, on this.
So why should we not assume that he gets it with regard to
the issues of this Nation's great, great challenge, the poison
of discrimination that is there since the first days of it? And
we have all seen, including in my own State of Massachusetts,
the challenges that we face.
Why can't--what is your response to that?
Mr. Henderson. Well, Senator, I certainly recognize a
legitimate argument that an individual representing a client
often projects the views that best suit the client. But I
remind you, sir, that Judge Roberts never once distanced
himself from positions articulated in many of the memoranda at
issue in a way that would give comfort to the notion that he in
fact had not internalized these views to reflect his own
policies.
Judge Roberts has a vision of judicial restraint, and he
has articulated it himself--which is really a retreat from the
role of the Federal courts in protecting civil rights. And I
guess, you know, from my view, this is really not an academic
debate. It is very personal. I mean, I grew up right here in
the Nation's capital. I was 16 before formal segregation ended
by law. I know what it is like to be on the politically
disfavored side of the color line. And I know that the Federal
courts have played an important role in helping to ensure equal
opportunity for all of American citizens. We are not prepared
to take that risk.
I would simply say that even in today's society, Senator
Brownback mentioned earlier, well, laws have changed, things
have happened, they have improved. Certainly that is true. But
in the words of William Faulkner, you know, the past is never
dead; in fact, it's not even past. And just to confirm that
point, I have a pending complaint right now before the
Department of Justice for a case of public accommodation
discrimination from a hotel in New Orleans over the 4th of July
weekend in an area where I thought change had been made in a
lasting way that would not have permitted that to happen.
I know first-hand what that stigma is about, and I reject
that analysis.
Senator Kennedy. Well, it is true that we did ask him, I
asked him, about whether any of these positions that he had
taken at that time, whether he would reverse any of these. And
we didn't hear a response from him that he might.
Let me ask John Lewis to comment on that and then also--I
have a minute and a half, John, so you know this business. So I
hope you will respond to the earlier question to Wade, but I
hope also--when Judge Roberts was asked about the intent test
and the effects test, and he was asked also by members of the
Committee, well, if we had actually had the intent test, do you
think we would have made the progress we made with the effects
test? He said, I'm not so sure we might not have made that kind
of progress on that.
We know the earth-shattering progress that has been made
with the election of officials locally, State, and at the
Federal level, and the progress that has been made with the
effects test. I am interested in someone who knows and believes
that the Voting Rights Act is the key civil rights issue. What
is your own view on this question? How could anyone view that
if we had had the intent test we would be where we are today?
Wouldn't we be a different land?
Representative Lewis. Well, I tell you, Senator, as someone
who worked in the American South for several years directing an
organization called the Voter Education Project, for 7 years
trying to get people registered, trying to get people to lose
their sense of fear, I tell you, we wouldn't be where we are
today. The American South would be different, the country would
be different if we had to rely on the intent test. I wouldn't
be here as a Member of Congress. And a lot of my colleagues in
the House of Representatives, a lot of the elected officials
all across the South, before the Voting Rights Act in 1965,
there were less than 50 black elected officials in the 11
Southern States, from Virginia to Texas. Today, there are more
than 9,000. We wouldn't have made it. There still would be
people trying to get elected and they wouldn't be elected.
I don't buy this argument that he was just doing his job,
he was just following the rules. By this time you had the 1964
Civil Rights Act, the 1965 Voting Rights Act, the Fair Housing
Act of 1968. By this time if there was someone in the
administration, they should have a mindset. I think this says
something about Judge Roberts's mindset. He didn't stand up and
argue against this attitude. He didn't speak out. He didn't
send a memo saying something different.
Senator Kennedy. My time is up. But thank you.
Chairman Specter. Thank you very much, Senator Kennedy.
Senator Durbin?
Senator Durbin. Thank you, Mr. Chairman. Thank you to the
panel.
Let me first thank my colleague, Senator Kennedy. I think
that during the course of this inquiry of Judge Roberts he has
been laser-focused on civil rights and the Voting Rights Act,
and I think it has done a great service to the operation of the
Committee. I hope that we all appreciate how much work went
into it.
But I do recall, Senator Kennedy, on the first day when you
went into this, I made notes how Judge Roberts said repeatedly,
That was 23 years ago; I was a staff lawyer of the Justice
Department; that was the position for the administration I
worked for; it was my job to articulate administration policy.
We heard that consistently whenever we brought up these memos.
And so I thought to myself, well, in fairness, if we are
going to allow him to use that explanation, what does he feel
today? What can he tell us today? I personally believe in
redemption, in faith and politics. And I think, John Lewis, you
have seen so many in the past who were on the wrong side of
history on civil rights who realized it and conceded that and
moved to a different position.
During the course of this hearing, we asked Judge Roberts
many questions. In fairness to him, one of the few direct
questions he answered was when I asked him about the Bob Jones
University case. And he said, I disagree with the position of
the Reagan administration. I am glad he said that. I wish he
could have told us more.
Then I tried, in my last round of questioning, to get down
to a point of where would you draw the line as an advocate? Are
there some things you would not bring your legal skills to? You
have spoken with pride of Romber v. Evans and the fact that you
counseled gays and lesbians who were about to lose their rights
in Colorado. And just a few hours ago I asked him, sitting at
the same table, Could you have taken the other position, to
restrict the rights? And he said yes.
And so it comes down to a fundamental question. I don't
think I understand if there is a clear, bright line in his mind
when it comes to this issue of freedom and when it comes to
this issue of liberty. And that troubles me. Because I think,
knowing that, I would feel more confident that he could lead
this Court.
But I would like to ask you, John Lewis, on the issue of
redemption, do you feel that even if he was totally wrong 23
years ago or 24 years ago in his memos, that people can change?
Representative Lewis. Well, I think it's possible and
conceivable, Senator, that people can change. But when you
believe and feel and know from your experience, or maybe from
the law and from history that you have been wrong, you show
some sign. And you are not afraid to talk about it. You are not
afraid to go on the record. Judge Roberts has been afraid to
show or demonstrate any signs that he has changed. I wonder
whether it is part of his mindset.
Senator Durbin. I think that is the point, and maybe Wade
Henderson made the same point, that when Senator Kennedy went
directly to the Voting Rights Act, much like Bob Jones
University, he could have made it clear that that position was
just wrong and that history had proven it wrong. And yet for
two successive days it came up short.
Wade Henderson, you have made that point in what you had to
say here. The critical question is values and just not
competence here in what we are dealing with. Judge Jones said
the same.
So I don't want to dwell on this any longer other than to
tell you, for me this is the threshold issue. The issue of race
is the threshold issue. I have to be convinced in my mind that
Judge Roberts comes to this critical job as the head of the
third branch of our Government with a clear understanding of
what we must do in this country, still, to deal with the issues
of race and justice for so many minorities in this country.
Thank you all on this panel. Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Durbin.
Thank you very much--
Mr. Kirsanow. Mr. Chairman, with your permission, if I
could just make one quick clarification.
Chairman Specter. Go ahead.
Mr. Kirsanow. Thank you very much. We have been talking
about redemption, and I don't think that John Roberts needs to
be redeemed in any sense whatsoever. But to the extent one
claims that his position on the Voting Rights Act was somehow
wrong prior to the effects test, let's take a look at the
facts. After the effects test was implemented, what did Judge
Roberts do? He argued Chisholm v. Romer, he argued the Houston
Lawyers Association--he argued for an extension of the effects
test to State judicial elections. If he redeemed himself at
all, he clearly did it right there.
So we have facts here. This is not speculative. In terms of
looking at his heart, if it is conflated with what he has done
on the court--and I don't know that you can necessarily discern
that--we have absolute evidence of what he felt about
enforcement of the effects test.
Chairman Specter. Thank you, Commissioner.
Senator Sessions wants a minute recognition before we break
for a very abbreviated lunch.
Senator Sessions. Thank you, Mr. Chairman. I would just
like to add, I have been listening to some of this as I could.
I would just like to add that we procured explanations from
Judge Roberts on each one of the memorandums he wrote, each one
of the situations that he was called to express an opinion on,
such as the effects test. His ruling was absolutely consistent
with the Supreme Court ruling of the United States at that
time.
So all I would say is I think it is unfair to suggest that
he has a record that indicates that he was somehow wrong on
civil rights at that time. Yes, he opposed quotas; yes, he
supported the extension of the Voting Rights Act completely,
but he did not favor its alteration to overrule a Supreme Court
opinion. So I would just, for the record, like to say I believe
his record does show affirmatively that he is committed to
equal justice under law, which is what he is called upon to do.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Sessions.
Senator Kennedy, you have a unanimous consent request?
Senator Kennedy. Thank you. I ask unanimous consent--the
NAACP Legal Defense and Education Fund prepared some important
testimony--that it be made a part of the record.
Chairman Specter. Without objection, it will be made a part
of the record.
Thank you all very much. We have so many witnesses, we are
going to have an abbreviated--not a lunch hour, but a lunch
half-hour. We will resume at 2 o'clock.
[Whereupon, at 1:30 p.m., the Committee was recessed, to
reconvene at 2:00 p.m., this same day.]
AFTERNOON SESSION [2:16 p.m.]
Chairman Specter. Good afternoon, ladies and gentlemen. We
will resume the confirmation hearing on Judge Roberts. We have
a distinguished panel, and our first witness is Ms. Maureen
Mahoney, a partner in the Washington firm of Latham and
Watkins. She had worked with Judge Roberts in the Deputy
Solicitor General's office. She had been nominated for a
district court judgeship, but with some others, her nomination
was not taken up, a problem we intend to correct. She
successfully represented the University of Michigan in the
Grutter case, and she served as law clerk to Associate Justice
Rehnquist and Seventh Circuit Judge Robert Sprecher.
Thank you for joining us, Ms. Mahoney, and we look forward
to your testimony.
STATEMENT OF MAUREEN E. MAHONEY, PARTNER, LATHAM AND WATKINS,
WASHINGTON, D.C.
Ms. Mahoney. Thank you, Mr. Chairman and members of the
Committee. It is a real honor to be here today.
Over the past few days, I think all of you and really all
of America has gotten to see why so many of us think that Judge
Roberts is probably the finest lawyer of our generation. His
study of the law, his understanding of the law is absolutely
masterful, and he certainly has the legal skills required to be
a superb Chief Justice.
Some have, nevertheless, raised some concerns that he may
come to the Court committed to implement a partisan agenda and
that he may not be fair-minded. I would really like to speak to
those concerns based on my personal experiences with him. As
you indicated, I met him in 1980 after he succeeded me as a
clerk to the Chief Justice, then-Associate Justice Rehnquist.
Since that time, I had the opportunity to be his colleague in
the Solicitor General's office. I also was a fellow appellate
advocate in the private bar and really also a friend. This has
given me a very, very wonderful opportunity to take the measure
of this man, and I cannot think of anyone who would be a finer
Chief Justice.
I would like to make three basic observations to respond to
some of these issues, and the first is that in the Solicitor
General's office, when I worked with him there, he was not
viewed as a partisan operative. Instead, he was viewed as a
brilliant advocate in the finest tradition of the office. And,
in fact, in 2001, this office included lawyers from all across
the political spectrum. They weren't just Republicans or
Democrats, and they all admired him. And in 2001, they sent a
letter to this Committee to confirm that, despite their diverse
political parties and persuasions, ``Mr. Roberts was attentive
to and respectful of all views, and he represented the United
States zealously but fairly. He had the deepest respect for
legal principles and legal precedent.'' This from his
colleagues. He was not a highly partisan person in that role.
The second thing I would like to say to the Committee is
please do not presume that the views that are expressed in
briefs on behalf of the United States that he filed in the
Solicitor General's office necessarily reflect the views that
he will adopt as a Justice on the Supreme Court. I was a deputy
there, too. It was not our job to establish administration
policy with respect to immigration, abortion, affirmative
action--you name it. Our job was to defend the policies of the
administration within the bounds of the law, within the realm
of good logic, good reasoning. That was our job. And, in fact,
a historical example might be useful on this.
Thurgood Marshall served as a Solicitor General of the
United States, and while Solicitor General, he filed a brief on
behalf of the United States advocating against the rule adopted
in Miranda because he said it wasn't good for law enforcement.
When he became a Supreme Court Justice, he dissented in cases
that refused to extend Miranda more broadly. He abandoned the
views that he had previously expressed in a brief because they
weren't his views. They were the views of the United States.
And I fully expect that Judge Roberts also knows the
differences in these roles in our legal system.
Third, I have been particularly troubled about suggestions
in the media that he may harbor bias against women, and I say
this because I know firsthand that he was very interested in
promoting equal opportunity for women. He actually recruited me
to the Office of Solicitor General in 1991. There was a vacancy
for the deputy slot. There are only four deputies in the office
at any given time. This is a highly coveted position. And he
called me, he encouraged me to come and apply for that job. He
supported me. I got the job and, as a result, was one of the
very few women in history to serve in that position.
A year later, a vacancy came open on the Eastern District
of Virginia, the Federal court, and he again encouraged me to
apply. He helped shepherd me through that nomination process,
and as you indicated, for some reason the Committee forgot to
get me confirmed. But, really, these were things that Judge
Roberts did not just for me but for other women who all admire
and respect him and have absolutely no doubt that he harbors no
bias.
In sum, I think that he is particularly well suited to
succeed the Chief Justice. They both share some incredible
traits, really exquisite intelligence, an abiding sense of
modesty, charming wit, and I think that the Chief above all
understood that the role of a judge is to serve, not to rule.
And I think that there is no question that Judge Roberts
learned that lesson well, and he ought to be confirmed as the
next Chief Justice.
Thank you very much.
[The prepared statement of Ms. Mahoney appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Mahoney.
Demonstrating your skills as an appellate advocate, ending
precisely on time.
[Laughter.]
Ms. Mahoney. I was worrying about that.
Senator Sessions. One second over. I was watching.
Chairman Specter. Precisely on time.
Our next witness is Hon. Carol Browner, former
distinguished Administrator of the Environmental Protection
Agency, used to be a member of the Senate family when she
served as legislative director to Senator Albert Gore when he
was here, a graduate of the University of Florida, both
undergrad and law school, and currently is a member of the
Albright Group. Thank you for joining us, Ms. Browner, and the
floor is yours.
STATEMENT OF CAROL M. BROWNER, FORMER ADMINISTRATOR, U.S.
ENVIRONMENTAL PROTECTION AGENCY, AND PRINCIPAL, THE ALBRIGHT
GROUP, WASHINGTON D.C.
Ms. Browner. Thank you, Mr. Chairman and members of the
Committee. Thank you for the opportunity to appear here today,
and I ask that my full statement be placed in the record.
Chairman Specter. Without objection, your statement will be
made a part of the record, as will all statements.
Ms. Browner. Thank you. Mr. Chairman, as you just noted, I
have spent most of my professional life involved in our
country's efforts to protect the air we breathe, the water we
drink, the health of our communities, the health of our
children. Our environmental laws and regulations have allowed
us to make steady progress in this country toward cleaner air,
cleaner water, a healthy environment.
While it is not always a perfect system, a dismantling of
this system could leave our country without any sensible way to
address ongoing environmental problems such as mercury, the
disappearance of our wetlands, and the reality of global
warming.
Briefly, I want to speak to three issues: the Commerce
Clause, the power of Congress to delegate to the executive
branch, and citizen standing.
More than 40 years ago, Congress realized that individual
States often lack the power or the will to do the job of
lessening and reducing pollution. Congress recognized that
pollution doesn't stop at political boundaries. Dirty air blows
across the country without regard for where it originates, and
polluted water inevitably flows downstream. Relying on its
Commerce Claus authority, Congress passed a whole body of
environmental legislation.
The Supreme Court's decisions in Lopez and Morrison have
triggered an effort to undermine Congress's use of its Commerce
Clause authority in a number of environmental statutes,
including the Clean Water Act. In the SWANCC decision, a case
involving wetlands, the petitions argued that Congress lacked
the authority under the Commerce Clause to protect isolated
wetlands. Well, as we have all been recently reminded with
Katrina, wetlands are a very important part of nature's efforts
to protect us from flooding, to cleanse our waters, to provide
important habitat.
While the Court avoided ruling on the Commerce Clause
challenge in SWANCC, it is troubling that the majority did note
``significant constitutional questions regarding the authority
of Congress to protect certain types of wetlands, even those
used by migratory birds.''
I want to quote from Justice Kennedy. Although he joined
with the majority, he noted in Lopez, ``The Court as an
institution and the legal system as a whole have an immense
stake in the stability of our Commerce Clause jurisprudence as
it has evolved to this point.'' While Judge Roberts's
dissenting opinion from denial of rehearing in Viejo, the case
that is now referred to as the ``hapless toad'' case, is not
definitive as to his position on the Commerce Clause, it is
certainly worth noting that a three-judge panel had rejected a
Commerce Clause argument with respect to the Endangered Species
Act.
Lower-court judges have also attempted to restrict the
authority of Congress to delegate certain powers to the
executive branch. In a case I was personally involved with
about my decision to set air pollution standards for ozone and
smog, the lower court struck down a key section of the Clean
Air Act as unconstitutional, citing the non-delegation
doctrine, which had been rejected by courts for more than 50
years. For decades, Congress has asked EPA, told EPA to do this
job, to do it based on the best available science, to do it to
protect the public health. These are sort of fundamental
principles embedded in many of our environmental statutes that
have allowed us to make the kind of progress that we have made
to date.
Finally, Congress has frequently recognized the right of
individual citizens to seek enforcement of our country's
environmental laws. When I was the head of the EPA, I was
frequently asked, Well, wouldn't you like Congress to prevent
those lawsuits from being filed against you, those lawsuits
from being filed against your agency? And my answer was always
no. Citizen suits are an essential part of how we have gone
about this work of clean air and clean water. If Congress tells
an agency of the executive branch to do something and they fail
to do it, the citizens of this country should have the right to
go to our courts and see that Congress's laws are upheld.
A key role and responsibility of Government is to protect
those things we all hold in common--our air, our water, the
public health of our communities. The Nation's environmental
laws are based on a set of shared values, and they rest on
principles embraced by Congress over many, many years. The High
Court should respect the broad authority of Congress under the
Constitution and well-established precedents that allow for a
robust Federal role in protecting our environment. The Court
should continue to recognize the right of Congress to delegate
to the executive branch the day-to-day work, to set pollution
standards, to enforce those standards, and the Court must
ensure the opportunity for individual citizens to step in when
the executive branch fails to do what Congress has directed.
Thank you.
[The prepared statement of Ms. Browner appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Browner.
Our next witness is Professor Kathryn Webb Bradley, senior
lecturing fellow at the Duke University School of Law, graduate
of Wake Forest and the University of Maryland, first in her
class, clerked for Justice White, later became a litigator at
Hogan and Hartson.
We thank you very much for coming in today, Professor
Bradley, and we look forward to your testimony.
STATEMENT OF KATHRYN WEBB BRADLEY, SENIOR LECTURING FELLOW,
DUKE LAW SCHOOL, DURHAM, NORTH CAROLINA
Ms. Bradley. Thank you very much. Mr. Chairman, members of
the Committee, thank you for allowing me to be here today.
I have been a Democrat since I was old enough to vote. But
while the President has not enjoyed my personal support, his
nominee has my full and enthusiastic support today. I have
known John Roberts since 1990 when I was privileged to serve as
law clerk to Justice Byron White. As a law clerk, I watched
then-Deputy Solicitor General Roberts argue several cases
before the Court. While I was fortunate to see many talented
advocates that year, John Roberts stood out in my mind as
simply the best.
What made him so effective was his gift for being able to
take extraordinarily complex concepts and then explain them in
a way that seemed straightforward, even simple, yet never
simplistic. His command of the facts and the law of each case
was impressive, not just because of the level of preparation it
revealed, but because it enabled him to anticipate and respond
to the concerns of the Court about whatever position he was
advocating. Inevitably, his colloquy with the Court left the
impression that he had blazed for the Court a clear trail that
they could comfortably follow to reach the result he sought.
That is not to say that he was successful in every case,
but I do believe that in each case his advocacy aided the Court
in its decisionmaking process, which is precisely what good
advocacy should do.
My admiration for his advocacy skills deepened into a deep
respect for his intellect and his integrity during the time we
were colleagues at Hogan and Hartson, where I worked with him
on a number of appellate and administrative matters. What I
remember most clearly, though, are not the details of the cases
in which I assisted him, but about the times when his guidance
proved invaluable to me. I have time for one of those stories
today.
I was a senior associate involved in the defense of a State
institution in a suit brought under the Fair Labor Standards
Act. The plaintiff had initially filed suit in Federal court,
but dismissed the complaint and refiled in State court after
the Supreme Court issued its decision in Seminole Tribe v.
Flordia. As I began to look at the issues, I wondered whether
we might move to dismiss the State suit on constitutional
sovereign immunity grounds similar to those that had mandated
dismissal of the Federal suit.
But the only helpful legal authority were a few State trial
court cases and one or two articles. So I called John Roberts
and I ran the argument by him.
His response was that while I had a colorable legal
argument, the theory I was suggesting certainly did not fit
within his understanding of the Court's interpretation of the
11th Amendment. We proceeded to file the motion, and when we
lost the motion, we filed an appeal, and at each stage, even
though he was not directly involved in the case, John was
supportive and responsive to my questions. And when our appeal
was stayed, pending the Supreme Court's consideration of Alden
v. Maine, which raised exactly the issue that we were
litigating, at my request, John Roberts conducted a moot court
for the Council for Maine since a decision favorable to Maine
would be favorable to our client.
The Supreme Court's decision in Alden focused new attention
on federalism and received kudos from many conservatives, yet
at no point during the time that I worked with John Roberts on
this issue did I ever hear him voice anything other than his
understanding of the governing precedent and his thoughtful and
considered views about what arguments appropriately could be
made within the existing legal framework. I certainly never saw
any signs at all that he viewed the case as an opportunity to
promote a conservative ideology or advance a particular
political agenda.
I believe the qualities that I have admired in John Roberts
for the last 15 years are precisely those that qualify him to
become the next Chief Justice. The mastery of the law that he
exhibited in oral arguments leaves little doubt that he will be
able to find a principled way through the murkiest of
constitutional waters. His focus on the facts of the case and
the circumstances of his clients, suggest that as Chief Justice
he will approach each case on its individual merits. His
respect for precedent, with his cautious approach to moving
beyond its established bounds, offers reassurance that he will
respect the role of stare decisis. And his collegiality and his
congeniality will enable him to lead the Court as Chief Justice
with grace and style.
I would like to make two final points. First, in part
because of my experience as a Supreme Court clerk, I have
development tremendous respect and an appreciation of the role
of the Court and the role of the rule of law in safeguarding
our democracy.
As a professor of law I make it my business now to try and
instill that respect in the students I teach. I could not in
good conscience come before you today were I not convinced that
John Roberts shares that respect, and will demonstrate it every
day that he serves the Court and this Nation as Chief Justice.
Finally, as both a Democrat and a woman, it is
fundamentally important to me that the individual liberties of
every citizen, including those relating to the right to privacy
and the right to be free from discrimination be fully
protected. I could not be here today if I did not feel
confident in trusting my own rights and those of my children
and their generation to John Roberts for safekeeping.
Thank you.
[The prepared statement of Ms. Bradley appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Bradley.
Our next witness is Ms. Anne Marie Tallman, General Counsel
of the Mexican Legal Defense and Education Fund, actually
President and General Counsel.
Prior to taking that position she had been an executive
with Fannie Mae. She began her career with the law firm of
Kutak Rock in Denver; bachelor's degree in psychology and
political science from University of Iowa, and her law degree
from Boalt Hall.
Thank you for joining us, Ms. Tallman, and the floor is
yours.
STATEMENT OF ANN MARIE TALLMAN, PRESIDENT AND GENERAL COUNSEL,
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, LOS
ANGELES, CALIFORNIA
Ms. Tallman. Thank you very much, Mr. Chairman, members of
the Committee. Thank you for the invitation to testify before
you today on the confirmation of John Roberts for the post of
Chief Justice of the United States.
I am Ann Marie Tallman, President and General Counsel of
MALDEF, the Mexican American Legal Defense and Educational
Fund. We are a nonpartisan civil rights organization
established to promote and protect the civil rights of over 40
million Latinos in the area of education, voting rights,
immigrants rights, access to the courts and employment.
It is in these areas that the writings and decisions of
Judge Roberts placed him in positions opposed not only to equal
justice for Latinos, but opposed to the positions taken by
bipartisan majorities of this Congress, and even by the Reagan
administration that he served.
There has been much discussion about respect for the law.
This hearing is not an abstract discussion. It serves as an
acknowledgement of how the law's application impacts all of us,
living, working and contributing to the richness of our
country, regardless of our station in life.
A Chief Justice must approach his responsibilities with not
only an open mind, but cognizant of how his decisions will
affect real people. If some of John Roberts's written legal
views had been adopted and become settled Federal law,
thousands of undocumented immigrant children would have
effectively been barred from public schools, left largely
illiterate and without hope as members of a permanent
underclass. A national system of identification cards might be
in place, representing an unprecedented intrusion in the
privacy rights of Americans, and placing minorities at much
greater risk of racial profiling and discrimination. An
electoral empowerment of Latinos, African-Americans, Asian-
Americans and Native Americans and the record number of elected
officials of these ancestries in Congress and State and local
government nationwide would likely have not been achieved.
On immigrants rights, as Special Assistant to the Attorney
General, he criticized the Supreme Court decision in Plyler v.
Doe, a case brought by MALDEF. In Plyler the Court, following
two lower courts, struck down a Texas law effectively barring
undocumented children from public schools. Roberts criticized
the Solicitor General's Office for not standing up for what he
described as judicial restraint and supporting the State of
Texas arguments against the application of the Equal Protection
Clause, an action, he wrote, that could well have altered the
outcome of the case.
As Associate White House Counsel he derided, as clinging to
symbolism, the civil liberties and privacy concerns surrounding
national identification cards. In expressing his disagreement
with the Reagan administration's opposition to national
identifiers, he failed to even mention the potential for
discrimination and singling out of Latinos and African-
Americans.
In voting rights, Judge Roberts mischaracterized the
bipartisan efforts by members of this Committee to restore the
effects test to Section 2 of the Voting Rights Act as a radical
experiment, rather than a restoration of Congress's original
purpose.
Finally, a Chief Justice must possess an even temperament
in fulfilling his duties to dispassionately adjudicate with an
open mind. We need men and women on the Court who will
understand our changing Nation. Strikingly, on official White
House Counsel and Department of Justice memoranda, Judge
Roberts displayed a pattern of insensitivity and dismissive
comments that show a lack of respect for Latino immigrants,
Members of Congress who supported equal pay for women, and the
history of the Kickapoo Indian Tribe.
For these reasons, we respectfully urge that you oppose
Judge John Roberts's confirmation to serve as Chief Justice of
the United States.
Thank you very much.
[The prepared statement of Ms. Tallman appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Tallman.
Our next witness is Judge Denise Posse-Blanco Lindberg, a
State Court Judge in Utah. An immigrant from Cuba, Judge
Lindberg and her family fled Castro, coming here when she was
10-years-old. After receiving her bachelor's degree from BYU
she then added three advanced degrees, including a law degree.
Among her many accomplishments are clerkship for Justice
O'Connor. She worked in the D.C. Office of the Law Firm of
Hogan & Hartson, and has been a State Court Judge in Utah since
1998.
Thank you for joining us, Judge Lindberg, and your
testimony begins simultaneously with the re-arrival of Senator
Hatch.
[Laughter.]
Senator Hatch. I would not miss this for the world, I will
tell you.
STATEMENT OF DENISE POSSE-BLANCO LINDBERG, JUDGE, THIRD
JUDICIAL DISTRICT COURT, STATE OF UTAH, SALT LAKE CITY, UTAH
Judge Lindberg. Thank you, Mr. Chairman, members of the
Committee. My name is Denise Posse-Blanco Lindberg, and I am a
State Trial Court Judge from the State of Utah. I am honored to
appear before you today in enthusiastic support for the
nomination of Judge John Roberts as Chief Justice of the United
States.
He brings to this appointment a keen intellect, sound
judgment, honesty, fairness and decency, and exceptional
knowledge of and respect for the law, the courts, and our
constitutional system. He has all the attributes necessary to
be a Chief Justice in the highest traditions of that office.
Over the past 15 years, I have observed his career from at
least three different vantage points; first as a law clerk to
Justice Sandra Day O'Connor; second as his colleague at the
Washington, D.C. law firm of Hogan and Hartson; and as a member
of the Appellate Practice Group, which he headed; and now as a
fellow judge who has reviewed his judicial record.
My first exposure to Judge Roberts came on opening day of
October term 1990 at the Supreme Court when then-Deputy
Solicitor General Roberts presented one of the First Monday
arguments. I expected a professional presentation from members
of the Solicitor General's office, but the skill and
effectiveness with which he argued his case far exceeded my
expectations. Notwithstanding his youth, his composure, his
clear command of the relevant facts in law, and his exceptional
ability to engage with the Court in a discussion of the issues
made a lasting impression on me.
After clerking for Justice O'Connor, I joined Hogan's
appellate practice group and I worked with John on a number of
cases following his return to the firm. I remember many cases
that we worked on, but I specifically remember his support and
guidance during my first solo effort at drafting a brief for a
case before the D.C. Circuit. It was a pro bono matter and he
willingly spent considerable time reviewing drafts, providing
feedback, and that was invariably insightful, helpful, and
courteous. He analyzed issues creatively without distorting
precedent or stretching a point of law beyond what was
permitted by the bounds of law. And on top of that, he was an
incredibly nice, genuine human being who was incredibly bright
but never arrogant.
John's work has always been principled and carefully
circumscribed. I learned much of what I know about appellate
practice from watching John work and being taught by him. He
reveres the law and he treats it and everyone associated with
it with the utmost respect. He has taught by word and deed the
importance of civility in the practice of law.
My final comments come from perspective as a judge. I
reviewed a substantial number of his body of published opinions
and some of the commentary. I have noted at least three
problems with some of that commentary. Some commentators have
failed to acknowledge that judges do not get to choose the
cases that come before them but must instead respond to the
particular facts in light of applicable law.
Others overlook the fact that whenever an appellate judge
writes for the court, that opinion must also reflect the views
of at least one, if not two, other members of the appellate
panel.
Others appear to misunderstand the essential judicial role.
John has correctly noted that judges, quote, ``do not have a
commission to solve society's problems as they see them, but
simply to decide cases before them according to the rule of
law.''
In each opinion that I reviewed, John focused on the case
before him, did not overreach, or did not use it as a vehicle
to further any personal preferences. He was respectful of
precedent. In fact, he demonstrated the very kind of judicial
restraint that this body has indicated is an important
consideration for any nominee to the Court.
To this high office, John brings a remarkable combination
of skills, personality, and respect for constitutional
principles that will make him a highly effective Chief Justice.
His towering intellectual skills and engaging personality will
enable John to work effectively with his colleagues and bring
consensus to a divided Court. Those same traits will make him
an outstanding leader of the Federal judiciary and will allow
him to work very cooperatively with the coordinate branches of
government.
I respectfully urge this Committee to recommend to the full
Senate swift confirmation of John Roberts as Chief Justice of
the United States. Thank you.
Chairman Specter. Thank you very much, Judge Lindberg.
[The prepared statement of Judge Lindberg appears as a
submission for the record.]
Chairman Specter. Our final witness on the panel is Mr.
Reginald Turner, President of the National Bar Association, the
nation's oldest and largest association of African-American
lawyers. A member of the Detroit-based law firm of Clark, Hill,
he has been a White House fellow and worked as an aide to
former HUD Secretaries Cisneros and Cuomo. He has a law degree
from the University of Michigan and an undergraduate degree
from Wayne State University.
We appreciate your being here, Mr. Turner, and the floor is
yours.
STATEMENT OF REGINALD M. TURNER, JR., PRESIDENT, NATIONAL BAR
ASSOCIATION, DETROIT, MICHIGAN
Mr. Turner. Thank you very much, Mr. Chairman. To Chairman
Specter and to all the members of the Committee, the National
Bar Association appreciates this opportunity to address you on
behalf of the network of over 20,000 lawyers of color who are
members of the National Bar Association and on behalf of our 80
affiliates across the Nation and around the world.
Here with me today is the Chair of the National Bar
Association's Judicial Selection Committee, Assistant Dean
Alfreda Robinson from the George Washington University School
of Law, who has worked tirelessly to prepare us for this
moment. We are also joined by Theodore Shaw, the Director-
Counsel of the NAACP Legal Defense and Educational Fund, whose
efforts have contributed to the advancement of civil rights and
civil liberties for well over a decade.
The significance of the confirmation of the Chief Justice
of the United States cannot be overstated. We ask this
Committee to ensure that any nominee is extraordinarily
qualified before giving this esteemed position.
The National Bar Association has established a fair process
and fair criteria for evaluating judicial nominees. We take a
position on a nomination only after a complete and exhaustive
review of the nominee's record. We have reviewed Judge
Roberts's entire record, including his professional and
educational background, and the available records of his years
as a government lawyer. The record is, unfortunately, complex
and troubling. It is also incomplete. Judge Roberts has
impressive educational credentials and a distinguished
employment history, but these credentials alone are not
sufficient to qualify a lawyer or judge to be Chief Justice of
the United States.
Sadly, this Nation was founded on principles and laws that
denied many rights and privileges, including the right to vote
and of citizenship to African-Americans and women. Throughout
our history, however, the Supreme Court has helped to advance
our Nation toward the ideal of equal justice under law, and the
effect of that work on African-Americans is perhaps
unduplicated with respect to any other people in the United
States.
Many of the cases in which the Supreme Court has advanced
equal justice under law have been decided by razor-thin
margins, most typically five-to-four. Accordingly, the stakes
in this appointment could not be higher.
As Senator Edward Kennedy stated earlier during this
hearing, the devastation of Hurricane Katrina has exposed
America's continued racial inequities and economic disparities.
In this country, race and treatment of racial issues by the
judiciary profoundly affect every aspect of American life and
play critical roles in the formulation of American social,
economic, and political agendas.
Accordingly, the National Bar Association must determine
whether a Federal judicial nominee will interpret the
Constitution and laws to effectuate racial equality and
eliminate oppression.
Despite the claims of neutrality and equality, our legal
system is not yet as colorblind as it should be. In Grutter v.
Bollinger, which upheld the use of affirmative action, Supreme
Court Justice Sandra Day O'Connor acknowledged that. She said,
and I quote, ``in a society like our own, race unfortunately
still matters.''
Therefore, a judicial nominee's record should demonstrate
support for constitutional principles, statutes, and legal
documents that serve to extend the blessings of liberty to all
Americans, including people of color.
Unfortunately, the available record on Judge Roberts
precludes us from supporting his nomination. We take the
position on the following grounds.
The record is incomplete, as many important documents have
been withheld from this Committee and from the public. There
are numerous available documents demonstrating that the nominee
does not support civil rights, civil liberties, and equal
justice under law. He has argued for the use of inordinately
restrictive standing analysis to limit access for groups
seeking to promote civil rights and civil liberties. He has
argued for reducing the authority of Federal courts even to
hear cases relating to civil rights and civil liberties, and he
has argued for restriction of the Federal court's ability to
remedy those violations.
In conclusion, on the basis of our thorough review of the
available record on Judge Roberts and for the reasons cited
above, the National Bar Association cannot support this
confirmation.
Earlier, there was a reference to memoranda. It is really
important to note that those memoranda reflecting Judge
Roberts's views, which have not been repudiated during the
course of these hearings, must be considered by this Committee
as reflecting his current views. We thank you.
Chairman Specter. Thank you very much.
[The prepared statement of Mr. Turner appears as a
submission for the record.]
Chairman Specter. A vote has been called and we are in the
latter stages of it. There are a great many questions which we
could benefit from on dialogue. As I have said earlier, we have
invited 30 witnesses. We had many, many, many requests and we
accommodated as many as we could, but it realistically
precludes very much by way of questioning.
We have a Utah judge here. Senator Hatch, do you have a
comment or two?
Senator Hatch. I do, as a matter of fact I just want to
thank you all for appearing, but I just want to chat a little
bit about my good friend and Utah judge here.
Judge Lindberg, given your unique and impressive personal,
academic, and legal background, I think you are in a strong
position to offer an opinion on Judge Roberts. Not only did you
serve there at that law firm, but you have one of the strongest
backgrounds of any woman lawyer in this country, as a woman
with a Puerto Rican mother and a Cuban father who fled Cuba as
a young child and then went on to a distinguished academic
career, earning two Master's degrees and then a Ph.D. and then
who went on to the Brigham Young University School of Law and
got a law degree there with honors, and then knowing something
of the Supreme Court from the inside from your time that you
spent as a law clerk to Sandra Day O'Connor, and then working
at the highest levels of the legal profession, including your
work, as mentioned, as a colleague of Judge Roberts at the law
firm of Hogan and Hartson, and now having spent the last 7
years on the bench yourself in one of Utah's trial courts, I am
very, very pleased to have you here.
I was particularly pleased to listen to your experiences as
a woman, as a minority, as an able jurist in that you believe
Judge Roberts's qualifications to be as good as anybody could
possibly have. That means a lot to me, and I personally want to
pay tribute to you as somebody who has not only excelled in the
legal profession, but deserves the accolades that I have just
given. Thank you for coming. I appreciate you being here.
I appreciate all of you and your testimony. Whether or not
we agree or disagree, we appreciate that you have taken time to
come and discuss these matters with us.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy?
Senator Kennedy. Just briefly, and thank you.
Ms. Tallman, what kind of America would we be if the
Judge's position on the Plyler case had been the findings and
we had that kind of an education policy to many Hispanic
families?
Ms. Tallman. The Plyler decision was a very important piece
of litigation decided before the United States Supreme Court
that has profound impacts on the ability of undocumented
immigrant children, who are in this country by no fault of
their own, the ability of them to be protected under
Constitution, upholding over 100 years of jurisprudence that
prove that aliens were persons under the Constitution and that
education was something that these children should be able to
access. If that decision had been decided differently, because
judicial restraint pursuant to Judge Roberts's view would have
been followed, the Equal Protection Clause may not have been
applied in that case and, as a result, we would have a
permanent underclass of children in this country who would be
unable to access public education.
Senator Kennedy. And your response to his position, well,
that was the position of the administration and he was just
carrying forward the administration's policy? Did you find
out--I asked him about the great decision that Justice Warren,
the great Brown decision, he said, was settled law with regard
to black children--did you find it somewhat troublesome that he
had a different interpretation when it came to children of
Hispanics?
Ms. Tallman. I think the concern that we have on Plyler is
that on the memo that he wrote on the day of the decision, in
June of 1982, his instant reaction was to ignore the Supreme
Court's rationale regarding the important societal impact of
the decision and focus on how it would have resulted in
potentially a different outcome had judicial restraint been
followed. That is his personal view, that he thought judicial
restraint should have been or could have been followed had the
Solicitor General's Office followed a different approach. And I
think that, with his ongoing perspectives of the limited
involvement of the Federal Government in the protection of
people's civil rights, I believe that Judge Roberts's views are
that limited involvement--no remarks during this hearing to
state that he feels strongly about the decision in Plyler, and
his memo on the day of the decision all raise very serious
concerns for us.
Senator Kennedy. Carol Browner, let me just ask you about
the Judge's 1983 position about the nondelegation doctrine, the
constitutional anomaly of independent agencies. This is the
recognition--it is the unified presidency, meaning that these
independent agencies really don't have the authority to carry--
If we carried that concept through to its logical end, where
would we be, for example, on environmental issues, just
generally, on clean air, clean water?
Ms. Browner. Well, I think we would be in complete disarray
and the amount of protections we have been able to provide to
date probably wouldn't be there. I mean, Congress has very
wisely delegated to the Environmental Protection Agency the
difficult work of making sure that all the science is there
before a pollution standard is set, making sure that both
industry and the public at large get to comment on this. There
is a whole process that unfolds. If Congress were not able to
delegate that authority to the executive branch, to the
independent agencies, I suspect that either nothing would
happen or it would happen much more slowly, because Congress
would be left to do that.
We made a decision when I was in the administration to set
tough public health air pollution standards for ozone and fine
particles, sometimes referred to as soot and smog. These are
standards that will prevent tens of thousands of premature
deaths. They are very important. A lower court found that that
was an unconstitutional provision of the Clean Air Act. In the
Supreme Court we did win 9-0, but it is important to protect
that going forward.
Senator Kennedy. My time is just about up. Mr. Chairman,
thank you.
Chairman Specter. Thank you very much, Senator Kennedy.
Thank you all. The time has expired, so we are going to go
to vote. There may be two votes, but we will be back as
promptly as we can to proceed with Panel IV.
Thank you all very much.
[Recess from 2:57 p.m. to 3:16 p.m.]
Chairman Specter. The hearing will resume.
Before turning to our fourth panel, I want to correct the
record on a statement which I made yesterday when I was
questioning Judge Roberts on U.S. v. Morrison and the alleged
rape of a woman. I said by three VMI students, Virginia
Military Institute, and that was incorrect. It was VPI,
Virginia Polytech Institute. I regret the confusion and
apologize to VMI and correct the record.
And now, on to the panel. Our first witness is Ms.
Catherine Stetson, a partner in Hogan and Hartson concentrating
on appellate and Supreme Court litigation. She had been clerk
to Judge Harris on the D.C. District Court and Judge Catell on
the D.C. Circuit.
Thank you for joining us, Ms. Stetson, and the floor is
yours.
STATEMENT OF CATHERINE E. STETSON, PARTNER, HOGAN AND HARTSON,
WASHINGTON, D.C.
Ms. Stetson. Thank you, Mr. Chairman, members of the
Committee. Thank you for the opportunity to testify today. My
name is Kate Stetson. I am a partner in the law firm of Hogan
and Hartson and I am here today to speak in strong support of
the nomination of my friend and my former colleague, Judge John
Roberts, to be Chief Justice of the United States.
You have heard many times over of the Judge's unsurpassed
skill as an advocate. I can speak to that issue, as well, but I
don't believe you need to hear that from me today. What I would
like to do instead is talk to you about my personal experience
working for the Judge and his role in guiding me from early in
my legal career through partnership in my firm.
I came to Hogan and Hartson as an associate in 1997, after
those two judicial clerkships. Those clerkships both gave me a
deep appreciation for good advocacy, but I grew up as a lawyer
on Judge Roberts's watch. It was my 6 years working for him at
Hogan and Hartson, first as an associate and then as his law
partner, that taught me to be an advocate.
No one could have had a better teacher, but having a mentor
and not just a teacher is equally important to any young
lawyer's career and Judge Roberts was a mentor to me, as well.
He counseled me on matters I handled for clients. He acted as a
mock judge for moot courts that I held before my oral
arguments. He demanded a lot from me, he praised me, and he
supported me unstintingly.
I will give you just one example. Several years ago, I gave
my first D.C. Circuit argument. Judge Roberts came and he sat
in the audience and watched, and after the argument was over,
he and I walked back together from the courthouse to our
offices, as we often had done after the Judge's own oral
arguments, and together we discussed and dissected the panel's
questions and my answers. I will remember that day and that
long walk for a long time.
Judge Roberts mentored me in less tangible ways, as well. I
watched him for years interact with colleagues and staff at the
firm, no matter what their position, always in the same decent,
gentlemanly way. Whether he was dealing with clients or with
adversaries, he was unfailingly courteous, never strident,
never engaging in the luster that so often characterizes
discourse among lawyers. I learned a lot from him in those more
subtle respects, as well.
Five years ago, Judge Roberts and his wife, Jane, adopted
their two children, Josephine and Jack. In that same year, my
husband and I had our first child, as well, so all four of us
learned at the same time what a delightful, chaotic, sometimes
frustrating, and always joyful thing it is to be a parent.
When I came back to Hogan and Hartson after maternity
leave, I faced the difficult challenge of being a new mother
and a law firm associate. The transition back to work is hard
for any working mother, and I was no different in that regard.
But the transition back to working with Judge Roberts was
seamless. We just picked up where I had left off a few months
before. Judge Roberts never questioned the balance I chose to
strike between my obligations to my family and to my colleagues
and clients at the firm. He supported me in both of those roles
and he did it quietly and without fanfare.
At the end of the year 2001, I was being considered for
partnership at my firm. I had taken a few months of maternity
leave that year. I was also an associate working on a part-time
schedule. Now, either of those considerations might have
impeded my promotion to partnership at another firm. Neither of
those considerations mattered to Judge Roberts or to my firm.
What mattered to Judge Roberts was that I was a good lawyer.
And so with his strong support, I became a partner at Hogan and
Hartson at the end of that year.
Now, by the time the Judge left for the D.C. Circuit bench,
we had worked on many matters together, issues as diverse and
arcane as patent appeals, ERISA briefs, energy cases,
preemption issues. The issues that we dealt with varied widely
from week to week and from case to case, but a few things were
constant--the Judge's keen intellect, prodigious beyond
description, his depth of preparation for every case, his kind
and quiet sense of humor, and his devotion to the law.
No one is more dedicated and more devoted to the law than
Judge Roberts. It was my honor to work for him for several
years and it is my honor to appear before you today to speak on
his behalf. Thank you.
Chairman Specter. Thank you very much, Ms. Stetson.
[The prepared statement of Ms. Stetson appears as a
submission for the record.]
Chairman Specter. Our next witness is Ms. Marcia
Greenberger, founder and Co-President of the National Women's
Law Center, a graduate of the University of Pennsylvania, both
Bachelor's and law degree. She practiced with the Washington
firm Kaplan and Drysdale, had been Director of the Women's
Rights Project of the Center for Law and Social Policy, which
became the National Women's Law Center. She is also on the
Executive Committee of the Leadership Conference on Civil
Rights.
Thank you for being with us today, Ms. Greenberger, and we
look forward to your testimony.
STATEMENT OF MARCIA GREENBERGER, CO-PRESIDENT, NATIONAL WOMEN'S
LAW CENTER, WASHINGTON, D.C.
Ms. Greenberger. Thank you, Mr. Chairman. Thank you. I am
Marcia Greenberger, Co-President of the National Women's Law
Center, which since 1972 has been involved in virtually every
major effort to secure and defend women's legal rights in this
country. We were directly involved, as a result, in many of the
battles to save women's rights that Judge Roberts worked to
undermine.
I thank you for your invitation to testify and ask that my
written statement and attached report be made a part of the
record.
Some have claimed that because Judge Roberts has been so
supportive of women family members and friends and wonderful
colleagues that he must also support women's legal rights. But
Judge Roberts's record consists of document after document
detailing his past work to undermine women's legal rights on
the job, in schools, and in government programs.
This week, Judge Roberts told Senator Feinstein he could
not identify anything he would change in his writings and
memoranda except the tone he used in support for limiting life
tenure for judges. Judge Roberts provided a clear explanation
for this seeming contradiction. He testified that he forms his
legal views without regard to his life experiences, and this is
his quote, ``a father, husband, or anything else,'' end quote.
Unfortunately, John Roberts's view of the law is entirely
divorced from its real-world consequences on women's lives.
In contrast to Justice Oliver Wendell Holmes, who said
that, quote, ``The life of the law is not logic but
experience,'' for Judge Roberts, the law is pure logic,
untempered by life experience.
The Christine Franklin case discussed again this morning
demonstrates why his judicial philosophy is so harmful. As a
high school student, her teacher and coach sexually harassed
and ultimately raped her. Judge Roberts said he did not condone
the behavior, and I am sure he did not, but that is not the
point. As the political Deputy Solicitor General, he argued
that Title IX should be interpreted to preclude her, and indeed
any student, from recovering even one cent of damages, no
matter how severe her injuries or how egregious the
discrimination.
He said students could still recover back pay or get the
court to order the sexual abuse to stop in the future, but high
school students aren't paid by their schools, and by the time
their cases get through the courts, they have often graduated,
as had Christine Franklin, so they can't benefit from a court
order that a school protect its students in the future.
His argument on the law would have let schools off scot
free and left students without effective protection or any
remedy for the serious injuries they suffer. The Supreme Court
rejected this extreme limitation on Title IX nine-to-nothing,
and pressed repeatedly by Senator Leahy today to say the legal
positions he argued were wrong now in retrospect, Judge Roberts
repeatedly refused to do so. At most, he said he had, quote,
``no cause or agenda to revisit it or any quarrel with it,''
end quote.
Of course, a nine-to-nothing decision is not one likely to
be revisited. As for having no quarrel with it, that is a
careful formulation we have heard time and again in past
confirmation hearings. Justice Thomas used it, for example, in
discussing the Establishment Clause under the Lemon test, which
he attacked once on the Court. He explained, in answer to a
question at his hearing, that having no quarrel with a ruling
does not mean that he agrees with it.
On women's constitutional rights and equal protection of
the law, Judge Roberts testified that he now believes courts
must give heightened scrutiny to government practices that
discriminate on the basis of sex. But Judge Roberts gave no
guidance as to which version of heightened scrutiny he would
apply, one that gives meaningful protection to women against
sex discrimination, as Justice O'Connor and the majority of the
Court have applied to date, or the Thomas-Scalia version that
provides little real protection to women. His written record
reinforces our concern on this point.
The very same concern applies to the right to privacy and
the future of Roe v. Wade. Like Justice Thomas during his
confirmation hearing, Judge Roberts said that there is a right
to privacy and it applies to the marital relationship and the
use of contraceptives in that context, but he refused to say
how much further its protection would go. For Justice Thomas,
we know the answer is not very far. In his first year on the
court, he said Roe v. Wade should be overturned and later said
there is no general right to privacy at all. John Roberts
refused to say he disagreed with Justice Thomas in any way.
Judge Roberts has refused to disavow his past record. We
don't have the Solicitor General records on the Franklin case
or others. He said many times he believes in judicial
restraint, but unfortunately, what we see from the record and
from his testimony is that he has been restrained in protecting
individual rights and freedoms but unrestrained when he has
been seeking to narrow them and that is what led the National
Women's Law Center to oppose his confirmation, because we so
fear turning back the clock for all Americans and most
especially women and the risks are simply too high. Thank you.
Chairman Specter. Thank you very much.
[The prepared statement of Ms. Greenberger appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mrs. Greenberger.
Our next witness is Mayor Bruce Botelho, Mayor of Juno,
Alaska. He has served as State's Attorney General. He has been
a distinguished Chairman of many of the Commissions on Criminal
Justice and Youth; undergrad and law degrees from Willamette
University. Thanks for joining us, Mr. Mayor, and we look
forward to your testimony.
STATEMENT OF HON. BRUCE BOTELHO, MAYOR OF JUNEAU, ALASKA AND
FORMER ATTORNEY GENERAL, STATE OF ALASKA, JUNEAU, ALASKA
Mayor Botelho. Thank you, Mr. Chairman.
It is a distinct honor to appear before this Committee to
support Judge Roberts's confirmation to be Chief Justice of the
Supreme Court, that is, his nomination. I do so not only as a
public official who has observed his work up close, but also as
a liberal Democrat whose views on several social issues are
likely at odds with the majority of this Committee.
I came to know Judge Roberts while serving as Alaska's
Attorney General. In January of 1997 I first hired John to
represent the State in an Indian law case that we had lost
before the Ninth Circuit Court of Appeals. Mr. Roberts prepared
our petition for cert, which was granted. He subsequently
briefed and successfully argued the case before the U.S.
Supreme Court. We ultimately retained him on 8 appellate
matters over the course of the following 7 years.
I had the opportunity to work closely with Judge Roberts on
these cases of immense importance to my State, and it is on the
basis of this working relationship that I urge confirmation of
Judge Roberts.
Mr. Chairman, I was struck by the eloquence, without
exception, of the opening statements offered by members of this
Committee on Monday, but it was Senator Kohl's personal test
for confirmation that particularly resonated with me. Aside
from candor, Senator Kohl said that he would look for a person
who is competent, has strong character and judicial
temperament, someone who knows the law and can explain it to
the common person. He would look for a person who has
compassion for real people who are affected by the Court's
decisions, and he said he would look for a person who
understands the fundamental values of this Nation.
In applying Senator Kohl's approach, I offer this brief
perspective on Judge Roberts. As you have all heard repeatedly,
Judge Roberts possesses extraordinary legal skills. His briefs
are technically perfect. They are clear, persuasive, and they
are a pleasure to read. His writing style is one that is
reachable by our citizens. Likewise, his oral presentation and
argument style is straightforward, responsive and
conversational.
Judge Roberts is a modest, respectful, polite and eminently
approachable person. He has remarkable ability to engage people
of our backgrounds.
I have two anecdotes I would share with you. The first, in
order to get a better understanding of the issues in a
submerged land case that existed between the State and Federal
Governments, he decided that he wanted to explore the area. I
recall with a great deal of fondness his interaction with the
crew members of a small State Fish and Game vessel as we plied
the waters of southeast Alaska. He was intensely interested in
the crew as persons, in what they did, what they thought, and
particularly their sense of the land and water surrounding us.
He truly made them feel that they were part of a team.
And as an aside, Judge Roberts's decision to spend time
traveling to southeast Alaska was emblematic of his passion for
learning everything there was to know about a case, not just to
know the law, but to know the facts firsthand. That is the
first example.
The second one a little more personal and more recent.
Early this summer, I contacted Judge Roberts and asked him
whether he would be willing to meet with a group of Boy Scouts
on their way to the National Jamboree just as part of their
trip. He immediately agreed to do so. The night that his
nomination was announced in July, I e-mailed him to give him
both my congratulations and to tell him that I understood that
under the circumstances he had better fish to fry than meet
with my troop. His reply, which was sent at 2:00 a.m., began,
``Nonsense. I can think of no more valuable use of my time.''
He met with these young men for nearly an hour and he focused
on them in a way that made them feel that they were the most
important people in the world at the moment. And their
collective evaluation, Mr. Chairman, was ``He's a pretty good
guy.''
Judge Roberts works collaboratively. He always sought out
views and our critique at every stage of preparation. He
delighted in engaging and dialogue with my staff, and made
clear his willingness to learn from, as well as to teach his
clients. This collaborative approach to problem solving will be
particularly valuable on the Supreme Court.
Finally, Judge Roberts has an unparalleled reverence for
the role of the law and justice in our society. He was always
faithful to the text and context of the law. His judgment and
common sense were exquisite. He did not enter the debate on any
case we presented him with a predetermined outcome or view. He
subjected ideas to rigorous examination to reach logical sound
conclusions based on the facts and the law. While he, like all
of us, may hold personal views on a wide range of subjects,
Judge Roberts has the capacity to approach every issue with a
freshness and openness. He will decide cases, not causes, and
he will declare the law as reason and justice lead him.
Working with Judge Roberts, I was fortunate to get to know
the most remarkable and inspiring lawyer I have ever met. He
will lead the Court in a way that will instill public
confidence in the fairness, justice and wisdom of its
judiciary.
[The prepared statement of Mayor Botelho appears as a
submission for the record.]
Chairman Specter. Thank you very much.
Our next witness is Mr. Roderick Jackson, the plaintiff in
Jackson v. Birmingham Board of Education, a Title IX case. He
complained about inadequate funding for women's sports, and was
the object of retaliation. A graduate of the University of
Alabama and Alabama State, he is currently the Acting Head
Coach of a girls basketball team at Ensley High School.
Thank you for coming in, Plaintiff Jackson.
STATEMENT OF RODERICK JACKSON, COACH, ENSLEY HIGH SCHOOL,
BIRMINGHAM, ALABAMA
Mr. Jackson. Good afternoon, Mr. Chairman and members of
the Committee. My name is Roderick Jackson, and it is truly a
privilege and honor to be here today, and I ask that you
include my full statement for the record.
Chairman Specter. It will be made a part of the record,
without objection.
Mr. Jackson. It is hard for me to believe that I am
actually here. I am just a teacher and Acting Head Coach of the
Ensley High School girls basketball team in Birmingham,
Alabama.
But my story shows the impact that the Supreme Court can
have on the lives of regular citizens and how key a role the
Court plays in making sure that our civil rights laws truly
guarantee fair treatment for all.
I was born and raised in Birmingham, where I early on
learned the value of taking responsibility for myself, my
family and those in my charge. My father died when I was 2-
years-old, so I had to help support the family, working my way
through school all the way through graduate school. Other than
the 6 years that I served in Army Reserves, I have spent my
life in that community where I grew up.
From 1999 until May of 2001 I was the Head Coach of the
girls basketball team at Ensley High School. We had a good
team. The girls worked hard and they won many games. Six of my
seniors actually received scholarships out of 7. But my team
was not treated fairly. The girls had to practice in the
outdated, unheated old gym with lumpy floors, while the boys
practiced in the new regulation-size gymnasium. My team did not
get enough funds to pay for buses to away games or equipment
that we needed. We could not get access to basic things like
ice when a player became injured.
To me this was just unfair, and I also thought it was
against the law. So I did what I thought was the right thing. I
went through the chain of command at my school in the school
district and asked for equal treatment of my team.
The school ignored the unfairness. Instead of fixing the
problems, they fired me from my coaching job. Being fired was
the beginning of a tough period for me. I not only lost the
satisfaction of coaching, I also lost the extra income I would
have earned.
I was labeled a troublemaker, a rabble rouser, and for 2-1/
2 years I was turned down for every other coaching position
that I applied for, and the young ladies at Ensley, more
importantly, lost the only person that was willing to stand up
for them.
So I went to court to try to get my job back, and with the
help of the National Women's Law Center and the law firm of
O'Melveny and Myers, I took my case all the way to the Supreme
Court.
The Court, in a 5-4 decision written by Justice O'Connor,
made clear that Title IX and laws like it were intended to
protect people like me and my girls.
I came to Washington for the argument. It was truly a
thrill. I felt like Justice O'Connor was looking straight at me
right in the courtroom. In her opinion, she said that
prohibiting retaliation against those who protest
discrimination is essential to realizing the goals of the law.
This decision and my involvement in this case had a significant
impact on me, and I hope on others as well. The Court's
decision sends a message that teachers and others like me can
stand up for what is right when we recognize discrimination and
bring it forward without being penalized as a result. In fact,
people come up to me on the street in Birmingham almost weekly
and thank me for what I did. But the decision could have easily
gone the other way. A shift in even one vote would have left me
without any remedy. That is why today's hearing and the Supreme
Court confirmation process is so important to people like me.
Like many Americans, I have had a chance to follow some of
the coverage and read up on the proceedings with great
interest. I have heard and read a lot that raises questions
about whether Judge Roberts would act to protect my rights or
for those young ladies that I represent. Like Judge Roberts, I
have a son and a daughter, and I will insist at every turn that
my daughter have equal citizenship rights with her brother. But
as I have learned the hard way, sometimes we need help from the
Supreme Court to make sure you can do that.
I hope that this Committee will vote to confirm nominees
who understand the key role of the Supreme Court in protecting
civil rights, who recognize the significant impact of their
decisions on everyday lives, and who will help to continue to
make the promise of the law a reality.
I thank you.
[The prepared statement of Mr. Jackson appears as a
submission for the record.]
Chairman Specter. Thank you very much, Mr. Jackson.
Our next witness is Ms. Henrietta Wright, the Chairman of
the Board of Trustees of the Dallas Children's Advocacy Center.
She worked full-time on President Carter's campaign staff in
1976, then for the Democratic National Committee; Yale grad,
both B.A. and law degree, where she was on the Journal; now of
counsel to the Goldberg law firm.
Thank you for coming in, Ms. Wright, and we look forward to
your testimony.
STATEMENT OF HENRIETTA WRIGHT, OF COUNSEL, GOLDBERG, GODLES,
WIENER AND WRIGHT, AND CHAIRMAN OF THE BOARD, DALLAS CHILDREN'S
ADVOCACY CENTER, DALLAS, TEXAS
Ms. Wright. Thank you, Mr. Chairman, members of the
Committee. I am not here today to discuss--
Senator Biden. May I ask a procedural question? Excuse the
interruption. Are they going to hold the vote for us?
Chairman Specter. The vote is scheduled to be held until 5
minutes to 4:00, so we are on a tight time schedule, but the
answer is yes.
Senator Biden. The power of a Chairman. Thank you, Mr.
Chairman.
Ms. Wright. I will talk quickly.
Senator Biden. No, no, no. Take your time. I just wanted to
make sure.
Ms. Wright. I am not here today to discuss Judge Roberts's
judicial opinions or his political views. Instead, I hope to
give you some insight into John Roberts, the man, whom I have
had the privilege and pleasure of knowing for almost 20 years.
The President could not have made a better choice for Chief
Justice of the United States.
I am a life-long Democrat. I served in President Carter's
White House, working for Sarah Weddington. My political views
have not disqualified me from being in John's close circle of
friends. He himself does not have a doctrinaire approach to
life.
One of the things I have liked most about John is that he
has always been supportive of women and aware of the many
difficult choices that some of us have faced. As his wife,
Jane, and I made the long march to law firm partnership and
motherhood, he was unstinting in his encouragement. When Jane
or I had successes in our Washington law practices, John
applauded them. When my daughter, Sierra, turned 3 and I
decided to become a full-time volunteer, he understood and
supported the reasons for that decision as well.
John is definitely a man who respects smart women. His wife
has two more degrees than he does.
John's support of Jane's work is constant and genuine. As
but one of thousands of examples, recently when Jane's family
in New York held a celebration on the same day that she needed
to be away on law firm business, John dressed and packed the
children for the trip, drove them to New York, and spent
several days at Sullivan family functions as a single parent,
thinking nothing of it.
John is truly a lawyer's lawyer. His intellectual
curiosity, especially about the law, is immense. He and I are
both long-time members of the American Law Institute and have
been together at many of those functions over the years. As you
have seen demonstrated this week, he is capable of
intelligently discussing any area of law that comes up.
John is a very likable, congenial person, and the Court
will benefit from his persuasive ability and tact. It is not a
given that lawyers, especially super-smart ones, have good
social skills. Maybe as Chief Justice, John can help the Court
produce greater consensus in its opinion. He will also bring a
dry, often self-deprecating wit to the proceedings.
I laughed and groaned to see articles picking apart a
flippant sentence John wrote when he was much younger about
whether homemakers should be encouraged to become lawyers. I
could hear the smile in his voice when I read these remarks and
felt certain that he had found a way to tell a lawyer joke on
himself.
How someone handles disappointments in life says a lot
about them. John and Jane went through considerable effort and
anguish to have children, sometimes wondering if, as
prospective first-time parents in their 40's, it would ever
happen. It took a long time to arrange the first adoption, and
it fell through just days before the baby was due to come home
with them. Rather than being angry or devastated, John and Jane
remained calm and positive.
Career disappointments came, too. John's first two
nominations to the Court of Appeals for the D.C. Circuit were
not acted on by the Senate. For 11 years, he never showed any
bitterness about it. Instead, he appeared to relish the
challenge of his years in private practice.
John seemed perfectly accepting of the possibility that he
would never become a judge. But if merit truly determined
judicial appointments, it could only be a matter of time before
he would be on the bench, and even on the Supreme Court.
What do all of these highly personal impressions of John
indicate for this Committee's consideration of him as a
nominee? I have known John in many unguarded personal, private
moments. I can assure you and the American people that what you
see here and the man I have known is the Justice you will get.
John Roberts is smart, tolerant, collegial, of even
temperament, and loves the law.
From my experience, John Roberts has no agenda other than
to apply the law as it is written. It will be a great credit to
this Committee and to the rest of the Senate for his nomination
to be speedily approved.
Thank you.
[The prepared statement of Ms. Wright appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Wright.
I have just been informed that a number of our colleagues
have plane reservations, and they want to leave while we want
to stay. So we are going to recess now, and we will be back
shortly after the vote.
[Recess from 3:46 to 4:17 p.m.]
Chairman Specter. The hearing will resume.
The good news is that there are no more votes this
afternoon, so we will not be interrupted again.
Our final witness on this panel is Ms. Beverly Jones,
Lafayette, Tennessee, one of the two plaintiffs in Lane v.
Tennessee. Ms. Jones is a graduate of Tennessee State
University, is a certified court reporter, more than 15 years
of court reporting experience. She has a mobility impairment,
and she filed suit under Title II of the ADA against Tennessee,
and she got the Court on a good day. It was 5-4 for her, unlike
Garrett, which was 5-4 the other way.
Thank you from joining us, Ms. Jones, and we will be very
much interested to hear what happened to you and your
testimony.
STATEMENT OF BEVERLY JONES, LAFAYETTE, TENNESSEE
Ms. Jones. Thank you, Chairman Specter and members of the
Judiciary Committee. My name is Beverly Jones, and even though
Chairman Specter pronounced it LA-fayette, where I am from,
it's La-FAY-ette, Tennessee. And I would like to thank the
Committee for inviting me to testify in these confirmation
proceedings.
If John Roberts is confirmed as Chief Justice, his
decisions will impact the lives of Americans for decades to
come. I hope that as you deliberate on his nomination, you will
not underestimate the importance his role and decisions will
have on everyone, including people like me.
If I may, Mr. Chairman, I would like to share with you the
importance that the Constitution, the law, and the Supreme
Court have had on my life, and for my rights as a person with a
disability. I was a plaintiff in Tennessee v. Lane, a case that
went up to the Supreme Court concerning the rights of people
with disabilities to have access to the courts. The Supreme
Court took the case to decide whether it could enforce the
rights that Congress gave people like me under the Americans
with Disabilities Act.
When Congress passed the Americans with Disabilities Act in
1990, it found that individuals with disabilities, and I quote,
``have been faced with restrictions and limitations, subjected
to a history of purposeful unequal treatment, and relegated to
a position of political powerlessness'' based on inaccurate
stereotypes.
On July 26, 1990, when President George H.W. Bush signed
the law, he affirmed this finding and declared that, just as we
tore down the Berlin Wall to free the people of Eastern Europe,
we would tear down the barriers that keep people with
disabilities from participating in society. For me the passage
of the Americans with Disabilities Act was like opening a door
that had been closed for so long.
I lost my ability to walk due to an automobile accident in
1984 and have used a wheelchair since that time. At the time I
became disabled, I decided that I would not allow what I wanted
in life to be denied because of my physical limitations. At the
time of my accident, I was a wife and mother, but had little
education and limited job skills. A local judge and attorney
encouraged me to look into becoming a court reporter, and from
there my ambitions began.
I completed court reporting school the year that the ADA
was passed. But to my surprise, when I began my first
assignment, I found that I could not get into many of
Tennessee's courtrooms and courthouses because they were
inaccessible to people who used wheelchairs. I was forced to
turn down jobs or face humiliating experiences.
Approximately seven out of ten courthouses in Tennessee
were inaccessible when I filed my suit. In some cases, I could
not even get in the door. In the years following the passage of
the ADA, some courthouses became more accessible, but even in
1998, when my lawsuit was filed, a number of the courthouses I
worked in remained inaccessible to me.
Courtrooms were located only on upper floors and reachable
only by climbing stairs. I was often forced to ask complete
strangers to carry me up the stairs or into rooms, including
nonaccessible restrooms. This experience was humiliating and
frightening. But as a single mom supporting myself and two
kids, I could not afford to quit my job or strictly limit my
work to accessible courthouses.
After the passage of the ADA, I worked tirelessly to bring
the law to the attention of public officials throughout
Tennessee and to encourage them to follow the law's
requirements to make public buildings, including courthouses,
accessible.
Because the State of Tennessee challenged the
constitutionality of the ADA, my case went through the courts
for 6 years without any court reaching the substance of my
claims. In 2004, my case reached the United States Supreme
Court, which voted by a 5-4 margin to uphold my right to
enforce the Americans with Disabilities Act's protections.
Many changes have been made in Tennessee as a result of the
ruling, and I am now able to do my job with much greater ease
and without humiliation or danger. My case is over. But what I
have been able to accomplish with the help of Congress is not
the end of the issue. For me it would be a hollow victory to
see Tennessee v. Lane as the end of the road. There are too
many others who need the protections of the law and the
Constitution.
In fact, Congress's power to enact the ADA will be
considered again on November 9, 2005, when the Supreme Court
will hear a case called Goodman v. Georgia. This case involves
a man who is in prison in Georgia and is a paraplegic, just as
I am. He requires a wheelchair to move about. This man is
confined in a 12-foot-by-3-foot cell for 23 to 24 hours a day
because of the inaccessibility of the prison facilities. He has
to sleep in his wheelchair because his bed is inaccessible, and
he has suffered broken bones because of his attempts to
transfer from his wheelchair.
On November 9th, the Court will consider whether Congress
has the power to ensure that this man will be permitted to
access the same services as every other prisoner in that
facility. Just as I do not know Judge Roberts, I do not know
Tony Goodman. I do not know if he is a good person or a bad
person. But that is not the point. All I know is that just as I
should not have had to endure the humiliation, embarrassment,
fear, and pain that I did for more than 14 years, he should not
either. And if John Roberts is confirmed to Chief Justice, he
must know that there are many others like Tony Goodman who need
the protection of the law.
If confirmed, the role that Judge Roberts will play in
defining the boundaries of the Constitution and the power of
Congress to protect citizens just like me is critical. It is my
hope that the Senate will carefully review the record of John
Roberts to determine if he is committed to the protection of
the rights and freedoms of every American.
I am not here today as an expert on John Roberts's record.
I am here today to tell my story. But I do know that there are
many within the disabled community who believe that John
Roberts's record with respect to disability rights raises
serious concerns. I understand that John Roberts has advocated
that the Americans with Disabilities Act should be narrowly
interpreted to protect only the so-called truly disabled.
Because my case involved Congress's power to enact the
Americans with Disabilities Act, I understand just how
important it is to ensure that the judges on our courts respect
Congress's authority to provide protections that are so
desperately needed. Without the protections that Congress
guaranteed in the Americans with Disabilities Act, my life and
the lives of millions of others with disabilities would be a
lot harder.
For all of these reasons, I urge the Senate to pay close
attention to whether John Roberts has proven that he would
ensure that the rights that people with disabilities fought so
hard to secure are not stripped away.
Members of the Senate, I hope that you will give John
Roberts's record very careful scrutiny before voting on his
nomination. I hope that the rights of millions of Americans
with disabilities are important enough to merit that type of
careful consideration.
Thank you.
[The prepared statement of Ms. Jones appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Jones, for your
very poignant story.
As I had said earlier, we have many, many witnesses today.
We still have 12 more witnesses to hear. And while there are
many questions which would be very fruitful, when we divided up
the witnesses, 15 for the Democrats and 15 for the Republicans,
we wanted to bring on as many people as we could to hear your
stories and see your faces and take your pulse and see the
quality of your testimony and passion, both for and against.
But I am not going to ask any questions. I am just going to
make one observation.
As to your case, Ms. Jones, I had a chance to talk to your
lawyer, and there is very strong sentiment in this Congress on
both sides of the aisle to protect Americans with disabilities.
Senator Dole, who is not with us any longer, has been a real
leader, but people on this dais now were very instrumental in
that legislation. And we are not going to let the Supreme Court
get away with congruence and proportionality. Your lawyer is
nodding in the affirmative. I think that point was made fairly
emphatically so that congressional will reflecting the people
and having very important social programs will be carried out.
Senator Leahy, do you have questions?
Senator Leahy. I don't have a question, but just to say
this, Mr. Chairman. One, I applaud what you said, but when I
voted for the Americans with Disabilities Act, I voted for the
Act that I expected would be enforced. I voted for an Act that
would open those doors. I voted for the Act so that Beverly
Jones could go to work and others could, and one of my dearest
friends who spends his life in a wheelchair, that he can go
anywhere he wants. And if you knew him, you would know he wants
to go where he wants.
We will keep on working to make sure it is enforced.
Chairman Specter. Thank you, Senator.
Senator Leahy. That wasn't an empty gesture to vote for it.
We want an Act that is actually going to work, and Republicans
and Democrats alike joined hands on that one.
Chairman Specter. Thank you, Senator Leahy.
Senator Hatch, questions?
Senator Hatch. Yes. Ms. Jones, I managed the bill on the
floor for our side, and was one of the prime authors, so we are
on your side on this.
Ms. Jones. Thank you.
Senator Hatch. The Supreme Court is one thing, we are
another, and we will surely try to make sure that your rights
are protected.
I just have one question for you, Ms. Greenberger, and that
is, has your organization ever endorsed a Republican nominee
for the Supreme Court?
Ms. Greenberger. Well, our organization actually rarely
takes positions. In fact, the very first time we ever--
Senator Hatch. Have you ever been in favor of a Republican
nominee--maybe I should put it that way--for the Supreme Court?
Ms. Greenberger. We have rarely taken a position period,
and I do not think that is probably--I do not think we have.
Senator Hatch. I do not either.
Ms. Greenberger. On the other hand, there are a number of
Republican nominees for the Supreme Court that we have not
opposed, and of course, many women's organizations that are a
part in the coalition, were very strong supporters of Sandra
Day O'Connor's nomination. At that period in our history we had
not ever taken a position with respect to a judicial nomination
and did not up until the late `80's.
I think what we learned over time as an organization that
is so involved with the courts, is that when we work on
legislation like Title IX or we try to represent clients like
Mr. Jackson, if the judges are hostile and do not have the kind
of open mind that we are looking for, whatever their political
persuasion may be, then there really is not the sense of
justice at the end of the day, and those legal rights do not
really matter.
Senator Hatch. I think whether they are Republicans or
Democrats, they ought to have an open mind on women's issues. I
do not think there is any question about that.
Ms. Greenberger. Absolutely.
Senator Hatch. Your organization is closely affiliated with
the Alliance for Justice and the National Organization for
Women as well?
Ms. Greenberger. Well, we are a member of the Alliance. The
National Organization for Women is an organization that we have
worked with on a range of different issues, like many, many
different types of organizations of all different sorts over
the many years that we have worked, whether it is involving
child care or involving some of the issues where, Senator
Hatch, you have been a strong supporter, like child care.
Senator Hatch. I think it does some good. Let me ask you
this. What I am trying to get to is do you know of any
Republican, let us just say from Chief Justice Rehnquist, when
he was nominated for Chief Justice, on through till today, who
your organization, Alliance for Justice or NOW has ever
supported or has ever found to be worthy of being on the
Supreme Court?
Ms. Greenberger. Well, I cannot speak for those two
organizations, but I know that there are a number of Republican
judges over time who have been some of the strongest supporters
for civil rights and women's rights. There has been a very
proud tradition, a bipartisan tradition of justice and equity
over the Nation's history that has not been limited by party.
And that is certainly what I would hope that we would be able
to see in the future.
In fact, we had not taken a position with respect to John
Roberts for his Court of Appeals nomination, and did so this
time, only as I said in my prepared testimony, because when we
looked at the record that was available to us, we were honestly
taken aback at how many of the core women's legal rights that
are at the heart of our mission he had worked to narrow, and
that is what led us to take the position, not his--not his
party affiliation, not the administration that nominated him.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
I want to first of all, Beverly Jones, I want to thank you.
This is not an easy task to go out and talk about some of the
physical challenges that you have had over the course of your
life, but it is an extraordinary story and it has to be one
that gives people great, great inspiration. It is just a really
impressive story, and you deserve enormous credit for your own
courage and perseverance.
It is interesting to know that there were four judges in
the Supreme Court--even realizing the language that you read
correctly from the ADA--that did not decide your way. And I can
only imaging what your life would have been like if it had been
5.
Just a question about how much sort of discrimination or
lack of understanding is out there with regard to people with
disabilities that still needs addressing? Not that we can
answer all of the problems or challenges, but how much of this
do you still see out there? Do you want to make just a brief
comment about the progress we are making or how far we still
have to go?
Ms. Jones. Just briefly. I have used a wheelchair for 21
years, and I have seen great improvements, not only in
Tennessee but across the country. However, there is still a
lack of understanding, and I think a lot of it is people's lack
of exposure to people with disabilities. I think I bring that
to the table as far as an understanding because I was a person
without a disability for 20 years. So I understand what people
do not understand because until I was put in that position and
became that person with the disability, I was not forced to
look at it. So I think a lot of the problems out there today
are based on just people not being exposed to people with
disabilities for the most part.
Senator Kennedy. Thank you.
Coach Jackson, I thank you so much for being here. I wanted
to ask you--and admire you for your own courage in protesting
the discrimination against young women. What would have been
the impact if the Supreme Court had dismissed your case instead
of recognizing that you had a right to challenge the
retaliation against you?
Mr. Jackson. Thank you for that question, Senator Kennedy.
I think if the decision had went the other way, I think that
decision would have sent a message to school systems and school
boards across the Nation that it is okay to retaliate against
persons who bring discrimination claims against the system. It
would have been a big setback I think to not only Title IX and
athletics, but also the other civil rights laws and anti-
discrimination laws.
Senator Kennedy. You think young women still are facing
discrimination in sports today, colleges? Give us a quick
thumbnail sketch.
Mr. Jackson. There is no doubt in my mind that
discrimination is still out there, even for persons who
represent young ladies. For example, when you are a girls
coach, it is even hard to move over to the boys position if it
opens and if you apply for it. So once you are labeled a quote,
``girls coach,'' it is like it is a step down and it should not
be that way in my opinion.
Senator Kennedy. Marcia Greenberger, you mentioned that
Roberts's statement in a memo that it is a canard that women
are discriminated against because they receive 59 cents for
every dollar earned by men. Is there any justification for
Roberts's assertion that such a wide pay gap between men and
women is not evidence of discrimination against women?
Ms. Greenberger. There have been many studies. Of course,
that was a statement that was made approximately 20 years ago,
and I think if you asked most women in the country 20 years
ago, was part of the pay gap due, at least part of the pay gap
due to discrimination, I think they would say yes, I think
their husbands would say yes too.
We have made progress, no question about it, but I think if
you ask husbands or wives, men or women today, do they still
see a problem of equal pay for women, the answer would be yes,
and definitely a piece of that is still unfortunately sex
discrimination. And it is not just a question of asking people.
Studies have shown, from 20 years ago up until today, including
Government studies, that an aspect of the pay gap can only be
explained by discrimination.
Senator Kennedy. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
Senator Kyl.
Senator Kyl. Mr. Chairman, I think all of us would like to
both compliment these witnesses for their testimony, and also
ask questions. In the interest of time I will not do that. I
just would make one observation.
It is obvious that from the testimony that he gave, we
cannot know how Judge Roberts would vote in cases that are
going to come before him, but in law there is something called
the best evidence rule. And perhaps the best evidence of the
kind of person that Judge Roberts is, is illustrated by the
testimony, for example, of Ms. Stetson, who talked about her
role as a young mother, and an aspiring partner in a law firm,
a person that he helped to mentor. And I think the kinds of
things that she talked about in Judge Roberts as a person
should not be forgotten by us when we consider the nature of
the man that we are elevating to the United States Supreme
Court. It may be the best evidence of the way that he will rule
on cases as well. I certainly hope so.
I thank all of you for your testimony here.
Chairman Specter. Thank you, Senator Kyl.
Senator Biden.
Senator Biden. Thank you very much, Mr. Chairman. This is
an impressive panel, all of them.
You know, I may be mistaken, but I think other than Senator
Kennedy, I voted for or against more Supreme Court Justices
than anybody here, other than three other Senators on this
panel. It has been an evolving process for me trying to figure
out the right thing to do over the last 33 years.
I came to the conclusion about 10 years--well, that is not
true--17 years ago, that there is only three ways I can decide
to vote my hopes or my fears. One is that, do I know people
well who know the nominee well? For example, when the former
Supreme Court Justice from New Hampshire came up, I was one of
the few Democrats who immediately strongly supported him and
pushed in the Republican administration because there were four
people, one a Republican Governor of New Hampshire and two
others. One is now the Chief Justice of the Supreme Court of
New Hampshire, a Democrat. The other was a Federal Judge from
New Hampshire, a Democrat, and the third is another Democrat
who heads up the National Education Association.
They all came down to see me, and they said, ``Look, we
share a vacation home with him on Lake Winnepesaukah, I tell
you this guy's a straight guy, this guy doesn't have an
agenda.'' And even though he did not have much of a record,
that convinced me that I should vote my hopes. I am glad I did.
There is another way to look at it. You can look at what
they have written and make your judgment based on that if you
do not have any evidence on the first score.
And the third is, you look at what they say when they come
before the Committee. I have been impressed by you, Ms.
Stetson, as well as you, Ms. Wright, because I wish I knew you
both better because you obviously care very much about this
judge and you think he is going to be basically a mainstream,
decent, honorable guy who will not take a narrow view of the
Constitution. So it is worthwhile for me--the reason I am
taking the time is to tell you that.
Also, what concerns me, I am very impressed by the
testimony of Mr. Jackson and Ms. Jones, because you illustrate
what is at stake here, what is at stake. And Ms. Greenberger
sort of lays out the problem.
I submit for the record, Mr. Chairman, a series of
questions I asked in this hearing of the Justice--of Judge
Roberts, and he used the same language that Judge Thomas used
with me. He said, ``I have no quarrel with the majority
opinion.'' And I would press him and say, ``Well, do you agree
or don't agree? '' And he would say, ``Well, I can't comment on
that.'' Well, that is the same position that Judge Thomas took.
To give you an illustration of how fundamentally different
that is, I am going to conclude by pointing out how different
it would be in Mr. Jackson's case. In that case, writing for
the minority opinion, Justice Thomas stated, ``We require
Congress to speak unambiguously in imposing conditions on
funding recipients through its spending power, i.e., we didn't
speak clearly enough, therefore, you can be fired.''
Now, Justice O'Connor, a Republican appointee taking the
same exact language said, and I quote, ``Our repeated holdings
constitute discrimination under Title IX broadly,'' broadly,
and she reached a different result.
So I just raise for the panel and for anyone who is
listening that the situation of Ms. Jones and Mr. Jackson and
millions of people like them across America depend on things
like whether or not it must be unambiguous, the language, as it
is applied, or it must be applied broadly. That is the
difference between life and death. That is the difference
between freedom and lack of freedom. That is the difference
between autonomy and no respect for autonomy. That is the
difference between having the right to be let alone, as one
famous Justice once said, and allowing the government to
intrude into your life.
That is the decision I have to make, all of us have to
make, and I must tell you, absent the testimony of you, Ms.
Stetson, and you, Ms. Wright, I didn't think there was any
prospect I could make it, but I have great respect for both of
you, but I must tell you, I am--it comes down to that
difference among honorable, decent, proud women and men who
serve on the Court.
My question is, is Justice Roberts going to be a Scalia, a
Rehnquist, or maybe a Kennedy? If I think he is going to be a
Justice Scalia, who I like personally very much, I vote no. If
I think he is going to be a Kennedy, I vote yes. If I think he
is going to be a Rehnquist, I probably vote yes because it
won't change anything.
But anyway, thank you for your testimony. It is helping me
be more confused.
[Laughter.]
Chairman Specter. Thank you, Senator Biden.
Senator DeWine?
Senator DeWine. I have no questions, Mr. Chairman.
Chairman Specter. Senator Feinstein?
Senator Feinstein. I am sorry I missed much of this
testimony, but I was just trying to read your brief, Ms.
Greenberger and it is too much to digest quickly. It is a very
impressive document.
But I was reading part of it and I wanted to ask you this
question. Did you not think that the discussion on Roe with
Senator Specter in particular, the discussion on Griswold and
Casey, the discussion on stare decisis and reliance and the
fact that Roe had been in place for 32 years and the findings
of Griswold and Casey with respect to Roe, workability, that as
Senator Specter has said, that super-precedent is really in
play? I think I even heard him once say super-duper precedent.
Could that be?
Chairman Specter. I said super-duper in the context of some
38 occasions when the Court has had the Roe issue before it and
they could have overruled Roe had they decided to do so--
Senator Feinstein. Right.
Chairman Specter.--so it became a super-precedent. With the
reaffirmation, it may become a super-duper or maybe even more,
super-duper-duper--
[Laughter.]
Senator Feinstein. Super-duper-duper--
Chairman Specter.--38 times over.
Senator Feinstein. But--
Chairman Specter. It has been a long hearing.
[Laughter.]
Senator Feinstein. I wanted to ask you, because you watch
all of this very closely, from the time you wrote this, would
you write the same thing after the hearing?
Ms. Greenberger. Well, if you could indulge me, I just want
to say one thing and correct something I said incorrectly which
was in answer to Senator Hatch's question about whether--I
hesitate to speak for other organizations, but I am pretty
certain that the National Organization for Women actually did
endorse Sandra Day O'Connor. He asked if any organizations, and
specifically mentioned NOW, had ever endorsed a Republican
nominee and I said I really didn't know, but I am pretty close
to sure that they did with respect to Sandra Day O'Connor.
But now to this very, quite important question that you
asked, we listened very, very closely, hoping to find some
reason to put our fears at rest, and, in fact, when we wrote
that report, we said that it was contingent--our judgment there
was contingent on what happened at the hearing.
Unfortunately, what I heard at the hearing was a very
articulate explanation by Judge Roberts of what all the factors
are to be considered when you look at a precedent of the
Supreme Court, but no indication on his part of how he would
apply those factors. And each time he was pressed about whether
it was a super-duper precedent, whether he was asked about it
in the context of Roe or asked about it in the context of
Casey, he said, which reinforced the essential holdings of
Roe--
Senator Feinstein. Let me stop you.
Ms. Greenberger.--as you well know--
Senator Feinstein. Let me stop you here.
Ms. Greenberger. Yes.
Senator Feinstein. I think there was significance in the
fact that he laid it out at all, because he didn't have to do
that. I didn't really expect he would ever answer that question
one way or another, and I think it is an unrealistic
expectation.
My interest was to see if he would be open to reviewing
various things carefully and cautiously, or if he came in with
a bias? We all grant that he is conservative, and there is
nothing wrong with that.
Ms. Greenberger. Of course.
Senator Feinstein. I mean, he is conservative. The nominee
that I would anticipate from this President would have been
really conservative, would have come in here and would have
said what he was going to do and probably could have mustered
the votes, but it would have been definitive.
I don't see anything that is definitive and I do see things
that would allow one to believe that this is a fine legal
scholar who will truly look at the law. I think he said he gave
a serious regard to precedent. We pulled all his 50 cases. I
can't imagine what my weekend is going to be like, reading
those. But in any event, comment on this for a minute.
Ms. Greenberger. Well, I think that there has been a lot of
discussion in the hearings about what it means to be a
conservative Justice and the difference between being an active
Justice who doesn't have respect for precedent to the same
degree as a true conservative Justice would. And so there is
nothing wrong with being a conservative Justice, and clearly,
many are on the Supreme Court right now.
When you look at what happened with the confirmation
hearings of other nominees to the Supreme Court, what emerged
with a number and especially with Clarence Thomas, the pattern
was to describe what the law was and what the holdings were and
to spend a lot of time describing it, and certainly Judge
Roberts is brilliant. Everyone has said it. It is beyond
dispute, and so he is fully familiar and perfectly capable and
extraordinarily able when he describes what the holdings of
courts are with respect to how you treat precedent.
So yes, he did that in a magnificent way. But when it came
time to give any sense of what he would do with all those
factors, he used the same formulation that Justice Thomas did
in not signaling in any way how he would actually apply those
factors, and you very effectively asked him specifically about
each of the factors. You broke each of those down. I remember
your questioning very well. He agreed with you, because you did
a lot of that work in identifying each of the factors you
consider when you review precedents and he agreed that those
were factors. Of course, he said he would look at them with an
open mind. I would expect him to say nothing less.
But he never gave any indication at the end of the day,
and, of course, we knew he wouldn't, but in response to many
other questions from those who may be holding out hope he would
overturn Roe v. Wade, he gave them assurance, too, and that he
did not feel bound by precedent and that there would be a lot
of different ways of finally deciding.
And one of the--what I was struck by with Griswold, because
you asked me about that, too--
Chairman Specter. Ms. Greenberger, could you summarize your
thought here--
Ms. Greenberger. Okay.
Chairman Specter.--because we are running way over.
Ms. Greenberger. Okay. Sorry. What I was struck by--I will
try to just do this in a sentence--with respect to Griswold,
you went back actually just this morning and looked at his
specific answers in comparison to Justice Thomas and it was
absolutely eerie to see how close they were. Each one said they
agreed with Griswold. Each one said they would not have a
quarrel with Eisenstadt v. Baird, that talked about applying
Griswold to unmarried couples.
And we looked at the testimony, and with Senator Deconcini
asking Justice Thomas, ``When you say you have no quarrel with
something,'' and he used that exact formulation this morning
with you, Senator Feinstein, also with respect to Plyler v.
Doe, Justice Thomas was asked, ``do you mean something
different when you say you have no quarrel with than saying
that you agree with,'' and Judge Thomas said, ``Yes, I mean
something different when I say I have no quarrel with.''
Therefore, when I was listening so closely to those
answers--
Chairman Specter. Ms. Greenberger--
Ms. Greenberger.--I did not come away--
Chairman Specter. Ms. Greenberger--
Ms. Greenberger. I will just finish. I did not come away
with reassurance.
Chairman Specter. Ms. Greenberger, I am reluctant to
interrupt you, but--
Ms. Greenberger. That is all right.
Chairman Specter.--we are way over time, way, way over
time.
Do you have anything further, Senator Feinstein?
Senator Feinstein. No.
Chairman Specter. Senator Sessions?
Senator Sessions. Coach Jackson, we are glad to have you
here and thank you for your loyalty to your students and
players and the courage to stand up. You know, I admire people
who in businesses or a big organization like school systems and
State government have the gumption to stand in there for what
they believe in. I am sure it was a long battle and you are
gratified by that result.
I am informed that while you are here, this may be the
first time in 18 years you have missed one of your kids' games,
is that correct?
Mr. Jackson. Actually, that was last year when I came up
for the Supreme Court argument.
Senator Sessions. For that case?
Mr. Jackson. Right. Yes, sir.
Senator Sessions. That is a remarkable record of fidelity
to your students and thank you for your service to young people
in Alabama.
Mr. Jackson. Thank you.
Senator Sessions. You know, I see Mr. Botelho and Ms.
Wright, Democrats, I believe, that have expressed such strong
support for Judge Roberts. I read in the record earlier today
our former Democratic Attorney General Bill Baxley, an
excellent, superb lawyer in the State who worked on three cases
with Judge Roberts and I introduced his record, it was so
effusive in his praise for Judge Roberts.
And, Ms. Stetson, on C-SPAN, I just happened to catch, late
one night within the last week, an interview by a member of
Hogan and Hartson, I believe, Ms. Brannan. Is that a member of
the firm?
Ms. Stetson. Yes, she is.
Senator Sessions. And she said she had been on the campaign
trail with John Kerry and was a Democrat, and it was just an
incredibly beautiful statement by her, maybe 15 or more--maybe
30 minutes discussing her experience with Judge Roberts, how
fair and objective he was, how much the firm admired him, how
collegial he was, how he was highly intelligent but was not a
bookworm, that he met the people in the firm, was always open
to questions. Is that his reputation within the firm?
Ms. Stetson. That is absolutely his reputation within the
firm. Everyone that I have spoken to about the judge, everyone
who knows the judge, who worked with the judge, I think would
come forward and say the same thing.
Senator Sessions. Well, I think it is important for us to
note that Democrats also who know him and who are being
objective and who may have voted for someone else other than
President Bush for President are very supportive of Judge
Roberts.
I know, Ms. Greenberger, that you sort of represent a
coalition of groups that are the point people for the activist
judiciary. I think that is fair to say. And I remember--and had
it just pulled up and I found it--a 2001 New York Times article
that discussed a retreat that the Democratic Senators had in
2001 for the purpose of forging a unified party strategy to
combat the White House judicial nominees. And you and Professor
Tribe and Professor Cass Sunstein appeared, according to the
article, and it states that you said to them it was important
for the Senate to change the ground rules of confirmations and
not to confirm one simply because they were scholarly or
erudite. So I guess my question to you is: Are you the
architect of the filibuster strategy? Do you claim credit for
that?
[Laughter.]
Ms. Greenberger. Well, as I am sure, Senator Sessions, you
know, you can't trust always what reporters say in terms of the
accuracy. I never talked about changing the ground rules for
confirmations at all. So I am not certain about that article,
but that certainly wasn't anything I would have said.
But what I did then and do believe now is that looking at
somebody's record is absolutely essential. And I agree, I
think, Senator Sessions, with you, too, that there are a lot of
issues to be taken into consideration, personal qualities
absolutely, but also the Supreme Court--and I know you have
said this many times--makes an enormous difference in people's
lives, and who will fill that precious seat of Chief Justice
couldn't be more important.
Because you brought that article up, to me record is so
essential, and there was one other point I wanted to make with
respect to the record. I heard this morning a reference to a
study of Judge Roberts's record on the D.C. Circuit. And, of
course, he has not been a judge for very long, so by
definition, it is a very limited record. And it was pointed out
in the study, which I am the first to say I have not had a
chance to see, that in some worker and labor issues, he
actually sided more with the Democratic side of appointed
judges. But the same article in the Washington Post that
described that also said for civil rights and civil liberties
cases, albeit for a very limited record, of course, according
to this article he was four times more likely to vote against
the plaintiffs in those cases for civil rights and civil
liberties than the average appellate judge on the bench today.
And that was very sobering, I must say, with respect to the
record.
Chairman Specter. Thank you very much, Senator--
Senator Sessions. I think on those cases I believe the
panels were about 97 percent unanimous on those rulings, and I
would offer this article from the New York Times for the
record.
Chairman Specter. Without objection, it will be admitted.
Senator Leahy has one follow-up question for Mr. Jackson.
Senator Leahy. It is not really a follow-up. With running
back and forth, I missed part of the schedule.
Coach, I admire you. I have sat in so many hearings with
whistleblowers in government, Federal Government, State
government. I know it is very, very tough to be a
whistleblower. It is tough to stand up for equal treatment. We
heard a bit earlier from John Lewis and Nathan Jones and other
leaders in the civil rights movement. Coach, you stood up in a
very great tradition, in the great tradition where Rosa Parks
sat down to make the same point, and Dr. King marched and
others have protested and lobbied for justice. I think your
children and your team should be very, very proud of you. I
know I am. I hope your school appreciates you. I hope they
value your participation. And I hope a lot of people in the
country were listening to you because, by golly, if something
is not being done right, stand up, speak up, and thank God
there are people like you.
Mr. Jackson. Thank you.
Chairman Specter. Coach Jackson, you are going to be
regarded differently when you go back to your school.
[Laughter.]
Chairman Specter. But I am not sure which way.
Mr. Jackson. Okay, okay.
Chairman Specter. To be commended by the Senate Committee,
which I think this is one issue we can be unanimous on.
Thank you all very, very much.
Chairman Specter. We will move now to panel number five:
Professor Fried, Professor Edelman--if panel number five would
come forward, we would appreciate it.
Senator Leahy. While they are coming forward, Mr. Chairman,
could I ask consent that a number of letters regarding the
nomination be included in the record?
Chairman Specter. Without objection, they will be made a
part of the record.
Our first witness on this panel is Professor Charles Fried,
Beneficial Professor of Law at Harvard, served as Solicitor
General for 4 years; for 4 years was on the Supreme Judicial
Court of Massachusetts as an Associate Justice; undergraduate
degree from Princeton, law degree from Columbia, bachelor's and
master's from Oxford, an extraordinary academic and
professional record.
If the witnesses could move in and out, I would appreciate
it. Professor Fried, we are going to start your time now
because we are running very close.
STATEMENT OF CHARLES FRIED, FORMER SOLICITOR GENERAL OF THE
UNITED STATES, AND BENEFICIAL PROFESSOR OF LAW, HARVARD LAW
SCHOOL, CAMBRIDGE, MASSACHUSETTS
Mr. Fried. Thank you very much, Mr. Chairman.
It is a great privilege to be allowed to participate in
this historic hearing for such an important event, and it is
particularly a privilege because I have been watching these
hearings, and I must say, they have been a model of
intelligence, fairness, substantiveness, and civility.
Chairman Specter. Thank you.
Mr. Fried. I warmly support Judge Roberts because I am
persuaded he knows the difference between law and politics.
I think that not because I know him well--I hardly know him
at all--but because I have studied his judicial writings.
Politics at its best, as this distinguished group of
Senators knows, is the art of recognizing and doing the best
you can for the people you are responsible for. The judge does
his or her best, too, but the judge is hemmed in by the law--
not in any simple-minded way, not in any mechanical way, by the
intent of the Framers only, by the text of the statute only.
And Judge Roberts does not believe that. He has told you so,
and in his opinions he has written so, but by precedent, by the
words of the statutes, but also by legislative history, by
tradition, and the craft of the law. Judge Roberts seems to
understand this down to his shoes, understands it with grace
and humanity.
My former boss, Dick Thornburgh, stole a number of my lines
because I, too, wanted to read to you that first paragraph from
the Hedgepath opinion, because it shows a man who not only has
a head but a heart. But the other thing it showed was that
though he has a heart as well as a head, he understood that if
he were to say that what happened there violated the
Constitution, he would be unfaithful to Supreme Court
precedent, which he was bound to adhere to, and, in fact, he
would have been really worse than unfaithful to it.
The other thing which he might have thought is, well, this
is a terrible result. He said that it was a terrible result.
And I can get away with it because the case is probably too
trivial for the Supreme Court to take on review. But that is
not the man who you are passing on today.
In that opinion, you see his authentic voice and character.
As I read and hear some of the criticisms of Judge Roberts's
judging, I wonder whether we are talking about the same man. I
wonder whether the critics are not really complaining that
Judge Roberts didn't start with the result, their result, and
then wrestle the law around until it fitted. That is not the
man you are passing on.
And when I think of some of the cases which he decided
which have become controversial in these hearings, not just the
French fry case but, of course, the hapless toad case as well,
which Professor Bellia will be talking about, when you consider
his decision about arbitration under the Federal Arbitration
Act where there is a congressional Act mandating that there be
a preference for arbitration, when I consider the opinion which
he did not write but which he joined in the Hamdan case, what I
see is a fidelity to law, not the pursuit of an agenda.
Thank you.
[The prepared statement of Mr. Fried appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Fried.
We turn now to Professor Peter Edelman from the Georgetown
Law School, where he has been since 1982. He took leave from
1993 to work in President Clinton's administration as counselor
to Health and Human Services Secretary Donna Shalala and as
Assistant Secretary for Planning and Evaluation. He had worked
as legislative counsel for Senator Robert Kennedy. He clerked
for Supreme Court Justice Arthur Goldberg and Henry Friendly of
the U.S. Court of Appeals.
Quite a background, Professor Edelman. Thank you for coming
in today, and the floor is yours.
STATEMENT OF PETER B. EDELMAN, PROFESSOR OF LAW, CO-DIRECTOR,
JOINT DEGREE IN LAW AND PUBLIC POLICY, GEORGETOWN UNIVERSITY
LAW CENTER, WASHINGTON, D.C.
Mr. Edelman. Thank you, Mr. Chairman. I am very pleased to
be here and appreciate the opportunity to testify and join
Professor Fried in complimenting the Committee as a citizen on
the civility of these proceedings and the way in which there is
an opportunity to educate our country. I think after that we
probably disagree.
I am here to urge that this nomination of Judge Roberts be
rejected. The history of the decisions interpreting our
Constitution is one that over the two-plus centuries is one of
greatly increasing protection for the rights and liberties of
our people. The evolution in the meaning of the open-ended
language has meant more respect for individual rights and
liberties against governmental over-reaching and at the same
time more power for Congress to act to protect people against
exploitation and injury by special interests. And as many
witnesses have said, this has all made a great difference in
the lives of millions of Americans, the two witnesses on the
previous panel. So who sits on the Court matters really
crucially for all of us.
Senator Biden talked about the record as one criterion
before the earlier panel. Senator Kyl talked about best
evidence. And I think that the best evidence we have here is
really a long record over a long period of time, unlike some
nominees that come before this Committee, not just his judicial
record. And to me--and I did start out looking into this and
doing the reading without a particular view other than knowing
Judge Roberts's reputation as a very intelligent and able
lawyer and as a conservative. But what I have concluded is
really that it adds up to a troubling likelihood that we have
here a nominee who as Chief Justice is really going to try to
turn the clock back on this pattern of protection that I talked
about.
It is not about one particular case that might be
overruled. As to any one case, as important as it is, it is
difficult to figure out what he might do. It is really about
his judicial philosophy across the board in a whole lot of
areas. It is how he views the Constitution as a whole. And it
is where that will take him in particular cases and many
different kinds of questions.
He says a lot of the memos from the early 1980's were as a
young staff lawyer done at the behest of his superiors. I think
he is too modest, because you look at that and over and over
again those memoranda that often he wrote on his own initiative
or in response to a question, recommendations for action were
requested, there was no decision already made. And he was at
the right fringe of even his conservative colleagues in the
Reagan administration. And so that is the issue here, and this
is kind of a pure case about the direction that a nominee is
going to take.
There is no question about his intelligence, his ability as
a lawyer, his integrity, his character. Those are not in issue.
The issue is one of a conservatism that I think really
radically threatens the meaning of the Constitution as we know
it.
He said the other day that judging is like being an umpire,
just calling the balls and strikes, and I am not one for adding
to the pile of sports analogies here. But, you know, if the
umpire stands two steps to the right behind the catcher,
strikes are going to look like balls and many balls are going
to look like strikes. And so I think the analogy is remarkably
disingenuous.
Constitutional interpretation is not like calling balls and
strikes. Why do we have 5-4 decisions? These are matters of
first impression where the precedent is to be looked at, but
they are there because the decision has not been made on the
issue. And so what we are here is trying to see--trying to
compare these strong differences of view that exist, 5-4, about
the meaning of the text, because that is the heart of it, the
intention of the Framers, and all the other relevant history
and societal values. And so it is subtle and complex, and there
is a deep division and debate, and that is why this nomination
is so important.
We are really looking at a question of what our
Constitution is all about, and we are looking at whether it is
about fundamental principles of protection of individual rights
and liberties or really a much more cramped and crabbed view of
those things.
You know, we have changed over the course of a century. The
cramped view was where we were 100 years ago, and I am afraid
from looking at the record here that as a Chief Justice Judge
Roberts is going to work to take us back in time.
Many of you remember the hearings--we all remember the
hearings on Judge Bork's nomination. He made things easy for
the Committee. He put it all in one article in the Indiana Law
Journal. There it was and the Committee could decide, the
Senate could decide.
Judge Roberts is what I call Bork by accretion, bit by bit,
memo by memo, speech by speech, and now opinion by opinion. And
I think what it adds up to is far more erratically conservative
than Judge Bork.
And so if you go through the list of issues--Senator
Kennedy, you asked him about a series of civil rights issues.
Others have asked about other matters. When you add them all
up, I think you have a pattern in each of these areas--civil
rights, civil liberties, access to justice, a whole series of
things--and then the pattern adds up to a pattern. And so that
is why I am here really to testify, because I think that what
the pattern adds up to is a dangerous recipe for our Nation,
one that may result in injury and renewed vulnerability for
literally millions of Americans who fought for decades and even
centuries to be included in our constitutional promises.
So I do urge the Committee and the Senate to reject this
nomination. Thank you for the chance to testify.
[The prepared statement of Mr. Edelman appears as a
submission for the record.]
Chairman Specter. Breaking protocol just a little,
Professor Edelman, do you really think Judge Bork made it easy
for the Committee?
[Laughter.]
Mr. Edelman. I think--
Chairman Specter. You don't have to answer that question.
Mr. Edelman. I appreciate the comment, Senator, Mr.
Chairman.
Chairman Specter. Our next witness is Professor Patricia
Bellia from Notre Dame, an extraordinary academic record, summa
cum laude from Harvard, Yale Law School graduate, clerked for
Justice O'Connor, and before that, Judge Cabranes of the Second
Circuit. Thank you for coming in today, Professor Bellia, and
we look forward to your testimony.
STATEMENT OF PATRICIA L. BELLIA, PROFESSOR OF LAW, NOTRE DAME
LAW SCHOOL, SOUTH BEND, INDIANA
Ms. Bellia. Thank you, Mr. Chairman, and other
distinguished members of this Committee. It is an honor for me
to appear before you in support of the President's nomination
of John Roberts to be Chief Justice of the United States. I
have never worked with Judge Roberts. Indeed, I have never met
him. But during my time in Washington as a law clerk and as a
lawyer in the Justice Department, I have had the privilege to
know his work as an advocate before the Supreme Court.
More recently, in my teaching and research in
constitutional law and other areas, I have come to know his
work as a judge on the U.S. Court of Appeals for the D.C.
Circuit. In my view, the best evidence of how a nominee will
perform as a judge is how he has performed as a judge. I have
read all of the opinions that Judge Roberts has written in his
time on the D.C. Circuit. His service on that court
demonstrates beyond doubt that he resolves cases with
competence, care and fair-mindedness. Most importantly, his
jurisprudence on the court of appeals demonstrates in decided
fashion that Judge Roberts does not seek in his decisions to
advance any platform of any current political ideology. He has
joined and written opinions upholding claims of criminal
defendants and joined and written opinions denying such claims.
He has both accepted and rejected challenges to executive
agency action claimed to be unlawful. He has interpreted
statutes with great care, with a primary focus on the text that
Congress has enacted, but never categorically dismissing any
evidence that is probative of congressional intent.
His opinions, be they for the court or for himself, display
no rancor; rather, they are notable for the respect and care
with which they outline any disagreement he might have with the
position of litigants or his colleagues on the court. Nor do
his opinions betray any impatience for the claims of any class
of litigants. The occasional hints of exasperation in Judge
Roberts's opinions are reserved for the district court judge or
the administrative agency that has decided upon the rights and
claims of individuals without providing the considered
explanation to which he believes all persons who find
themselves before our tribunals are entitled. It is, therefore,
no surprise to find in Judge Roberts's opinions an extensive
and careful scrutiny of the individual claims that each case
squarely presents, no more and no less.
There is not the time here for me to analyze each opinion
that Judge Roberts has written on the court of appeals, and my
written testimony examines in detail two areas of structural
constitutional law in which Judge Roberts's work has been
subject to criticism, the first involving questions of
congressional power and the second involving questions of
Executive power, particularly in foreign affairs. Here I will
simply allude to the first of those controversies and explain
briefly why I believe that the criticism are unfounded.
A claim has been made that Judge Roberts takes an unduly
narrow view of Congress's power under the Commerce Clause, one
that endangers a variety of civil rights statutes and
environmental regulations that Congress has justly designed to
protect equal rights of all Americans in the environment in
which we live. This concern stems from Judge Roberts's opinion
in a case called Rancho Viejo v. Norton, the hapless toad case.
In that case, a housing developer, after losing a Commerce
Clause challenge to a particular application of the Federal
Endangered Species Act, sought rehearing of its claim before
the full court of appeals. The active members of the D.C.
Circuit declined to rehear the case, and Judge Roberts
dissented from that denial of rehearing.
It is important to establish precisely what Judge Roberts's
dissent says and what it does not say. The dissent does not
show that Judge Roberts believed the Endangered Species Act to
be unconstitutional as applied in this case or as applied in
any other case. Rather, he believed that the particular
methodology that the court employed in deciding the case was
out of step with Supreme Court doctrine. He took care to point
out that en banc review would afford the court the opportunity
to consider alternative grounds for sustaining application of
the Act that may be more consistent with Supreme Court
precedent. Rather than demonstrating a hostility to
congressional power, the dissent demonstrates a concern that
courts provide the right reasons for their decisions. That
concern is, of course, well founded as the reasons that courts
provide in support of their decisions are central to the corpus
of law that will guide judicial action in subsequent cases.
A discussion of a single opinion in isolation certainly
cannot capture the depth and care and respect for every
litigant that Judge Roberts's opinions display, and I would
welcome the opportunity to discuss other aspects of Judge
Roberts's opinions in response to your questions. But I believe
that his jurisprudence on the court of appeals reflects the
best of what we can and should expect of a nominee to the
Supreme Court of the United States. His decisions defy
categorization as conservative or liberal, Republican or
Democrat. Indeed, Judge Roberts himself has refused to
characterize himself as subscribing to any particular judicial
philosophy. He says that he simply decides every case as it
comes before him according to the law as best he can discern
it. What he has accomplished thus far on the court of appeals
demonstrates that he has truthfully represented himself to the
American public. Simply put, he has demonstrated that he
possesses one of our Nation's foremost legal minds, that he
employs that mind with full fairness and integrity, and in all
of this that he well deserves our trust to lead our Nation's
judiciary.
Thank you.
[The prepared statement of Ms. Bellia appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Bellia.
Thank you for being so close to the time. Three seconds yielded
back.
Our next witness is Professor Judith Resnik, the Arthur
Liman Professor of Law at Yale. Interesting to see that they
have a chair for Arthur Liman, who was in law school when I was
there. She teaches on the feminist theory gender procedure, co-
chair of the Women's Faculty Forum, a member of the Ninth
Circuit Gender Bias Task Force--that is quite a title--and co-
author of the monograph ``Effects of Gender.''
Thank you very much for coming again, Professor Resnik, and
we look forward to your testimony.
STATEMENT OF JUDITH RESNIK, ARTHUR LIMAN PROFESSOR OF LAW, YALE
LAW SCHOOL, NEW HAVEN, CONNECTICUT
Ms. Resnik. Thank you. I am honored to participate, and I
have submitted a written statement for the record. In these 5
minutes--
Chairman Specter. It will be made a part of the record in
full.
Ms. Resnik. Thank you. I am going to make five fast points.
First, while I am here because I was invited by this
Committee, we are all here in this room with a TV because the
Constitution has invited us all. The Constitution has committed
to the political branches of the United States the decision
about who shall be our life-tenured judges. The President
nominates, the Senate confirms. We are part of a national
teach-in about America, its values, and what the courts stand
for.
In recent years, the confirmation process has been
criticized. Some have been difficult. But conflict is not an
artifact of these cameras or of the conflicts over Bork and
Thomas.
It goes back hundreds of years. Remember that in the
1790's, the Senate did not affirm the Chief Justice because
they disagreed with John Rutledge's view of a treaty with
England. In the 19th century, it was a debate about railroads
and unions. We have seen time and again that we debate our
values through this process.
So in other words, this hearing is not only about John
Roberts, it is about us, Americans, what we care about for our
system of justice. Point one.
Point two. This is no ordinary hearing, even though it is
about a life-tenured appointment to the United States Supreme
Court. This is about who is going to be the Chief Justice of
the United States, the 17th person in our entire history to
hold that position. The job of the Chief has not remained
static. It has grown enormously over the 20th century. As a law
professor of the Federal courts and of adjudication and civil
procedure, we get to credit William Howard Taft and, most
recently, the extraordinary work of William Rehnquist. The
person who wears the robe of the Chief Justice, striped or
basic black, doesn't only wear one hat, but many hats.
Senator Kennedy, Senator Thurmond talked about this person
as the major symbol of justice in the United States. More than
that, this person has enormous power over the administration of
justice in the United States. In addition to being the head of
the United States Supreme Court, this person is the CEO, the
chief executive officer of the entire Federal judicial system--
1,200 life-tenured judges, a budget of more than $4 billion, a
staff of more than 30,000 working in 750 courthouses around the
United States, hearing hundreds of thousands of cases every
year for all of us. The Chief is the head of the policymaking
body for the Federal judiciary. The Chief picks about 50 judges
who sit on specialized courts dealing from foreign surveillance
to product liability. The Chief picks 250 people to serve on
the committees that make the rules that we all litigate by in
the Federal system. The Chief sets the agenda for the Federal
courts through its annual state of the judiciary address.
Now, this repertoire of powers is startling and actually
anomalous for a democracy. Unlike what judges do in court,
working openly, giving decisions, accountable, transparent, the
administrative powers are not easily seen, probably not even
known to lots of people. Further, unlike most administrators,
the Chief has that power, at least under current practices, for
life. The President has term limits. You all have to run. Even
administrators move on. Not so under current practice.
Now, this package of power is not constitutionally
mandated. The Constitution only mentions the Chief once, and it
is in terms of the impeachment of the President. So given that
this is the rare occasion of how much we think about the Chief
Justice, I would be remiss not to mention that there is a
chance that we could rethink the issue of the Chief Justice
rotating 4-, 5-year, 6-year terms.
Quick recap: Point one, an opportunity to reflect on
American values, take our constitutional temperature. Point
two, an extraordinary appointment, the unique roles of the
Chief.
Point three, therefore this is the occasion to figure out
what the qualifications and requirements for the Chief are,
which gets me to my answer, Point four, the Chief Justice of
the United States should be the chief advocate for justice in
the United States, should be the person insistent on access to
the courts. Clear, the courts are vital. The Chief Justice
should be committed to an independent and vibrant branch of
Government called the third branch. The Chief Justice should
come here telling you, the Congress, that it needs more
resources, needs more access, should be the guardian at the
gate of justice. We need the Chief to be sure that the
President, the Executive, respects the independence of
adjudication and that the Congress does as well. Most
important, we need a Chief Justice who understands that law has
to be a source of strength for those who don't have it, who
need it; not only a source a strength for those who already
have the resources, who can already get easily into court.
Those are the litmus tests of which we can be proud.
My fifth and final point: What does the nominee's record
tell us thus far? I have reviewed only written materials from
1981 to 1986, when he was a policymaking lawyer and signing
them in his own name; only decisions on the D.C. Circuit; only
published essays and transcripts--nothing from the SG's Office,
nothing from private practice, because we can't know what his
own personal views are.
I regret to report that, at least as of this set of
materials, Judge Roberts has not expressed an affirmative
vision of deep enthusiasm for the role of courts for
adjudication for the needs that courts fill for ordinary
Americans. When given the opportunity to argue for courts for
their accessibility, when given the opportunity to argue the
Department of Justice should lend its hand to the needy
Americans in need of more resources, when given the opportunity
to interpret statutes to let us into court, in general the
nominee has argued against the use of courts.
There has been some shorthand in these hearings for some of
those decisions. I feel obliged to mention at least one other.
There is a case called Booker, which is about a problem all of
us face, where the courthouse door is closing on us because we
have cell phones and credit cards that mandate we go to
arbitration. There is an Equal Action to Justice case, there
are several others. There are many instances in the record in
which, at least thus far, the nominee has not--
Chairman Specter. Professor Resnik, would you summarize
your testimony, please?
Ms. Resnik. I am just closing right now. What we are
looking for in the Chief Justice is a person who will celebrate
courts and the role they play in a vital, economically stable
democracy. And that is the question before the Senate: Is this
person's record the one to commend this person for that job?
Thank you.
[The prepared statement of Ms. Resnik appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Resnik.
Our next witness is Professor Christopher Yoo, professor at
Vanderbilt University Law School, a distinguished academic
record, a graduate of Harvard, an MBA at the Anderson School at
UCLA and Northwestern Law School, clerked for Justice Kennedy,
and practiced with Hogan & Hartson.
Thank you very much for coming in, Professor Yoo, and the
floor is yours for 5 minutes.
STATEMENT OF CHRISTOPHER S. YOO, PROFESSOR OF LAW, VANDERBILT
UNIVERSITY LAW SCHOOL, NASHVILLE, TENNESSEE
Mr. Yoo. Thank you, Mr. Chairman, members of the Committee.
It is an honor to be here to testify in support of John
Roberts's nomination as Chief Justice of the United States.
I have had the chance to observe Judge Roberts from three
different vantage points--first as an associate working the
appellate group of Hogan & Hartson, second as a law clerk
watching Judge Roberts argue before the Supreme Court of the
United States, and third as a member of the faculty of the
Vanderbilt University Law School reading his judicial opinions.
Because there are many other colleagues here in a position
to testify to his excellence as an appellate advocate and to
his performance on the Court of Appeals, I will focus my
remarks on the time Judge Roberts and I spent at Hogan &
Hartson. I am sure Senator Biden will be gratified to hear
that, during his time at Hogan & Hartson, John Roberts
demonstrated to me an open-mindedness, an ability to bring
people together, that would serve him well as Chief Justice. He
also treated everyone around him with respect and decency. I
had the chance to witness these qualities first-hand in the
support and compassion that he showed to me when a tragedy
struck my family.
Judge Roberts's open-mindedness is evident in his decision
to join Hogan & Hartson when leaving the White House Counsel's
Office in 1986. Hogan has long prided itself on its ability to
embrace attorneys from across the political spectrum. To cite
just two prominent examples, its ranks include former House
Minority Leader Bob Michel and such leading Democrats as former
Chairman of the House Subcommittee of Health and the
Environment, Paul Rogers. It is also a firm that takes
seriously the bar's obligation to provide free legal services
to public interest organizations and to individuals who are
unable to afford them. Judge Roberts was exceptionally well-
liked throughout the firm. His regular lunch partners reflected
the underlying diversity of the firm itself.
Even more telling is his decision to return to Hogan after
his successful stint as Principal Deputy Solicitor General. At
a time when firms were lining up for the chance to hire him,
including firms that attract those who wish to surround
themselves with like-minded colleagues, Judge Roberts preferred
to return to a more balanced and politically diverse
environment.
Judge Roberts's open-mindedness can also be seen in the
manner in which he developed Hogan's appellate practice.
Although the practice group was never large, the attorneys he
hired reflected the diversity of the entire firm. Indeed, I
suspect that he takes considerable pride in the fact that
nearly half of the associates brought into the appellate group
under his leadership were women, and that the women with whom
he worked most closely on Supreme Court and appellate matters
are now partners in the appellate group.
He also represented a broad range of clients with diverse
and even conflicting ideologies without requiring that every
client's position match his own personal views. His reputation
for fairness and willingness to engage all viewpoints were so
well-established that Democratic attorneys general and
Governors did not hesitate to hire him to represent their
interests. In the process, he successfully advocated positions
on behalf of clients, on environmental protection, and race-
conscious remedies that did not match what many might regard as
the standard conservative position on those issues.
The pattern of fairness and open-mindedness that is
apparent in his professional decisions is consistent with my
own experiences working with Judge Roberts. He brought the same
probing intellect and a rigorous professionalism to every
aspect of each case, searching through every possible viewpoint
in the process of deciding how best to approach it. Simply put,
Judge Roberts's tenure at Hogan & Hartson suggests a person who
is fair and who is willing to engage and consider all points of
view before making up his mind.
My other memory of Judge Roberts from our time together at
Hogan is the respect with which he treated everyone around him,
from senior partners to secretaries and paralegals to law
students who were only working at the firm for a summer. He was
always supportive and encouraging even while holding us to the
highest professional standards.
He also never forgot the personal side of the people who
worked for him. I had the chance to see this aspect of Judge
Roberts's character first-hand shortly after I rejoined the
firm after my Supreme Court clerkship. I was working full-bore
on a slate of cases. My father-in-law had just arrived in the
D.C. area to celebrate the recent birth of my second son,
Brendan. Shortly after my father-in-law arrived, he was
admitted to the intensive care unit of Arlington Hospital.
After a three-and-a-half-month battle for his life, he
eventually died.
Judge Roberts reacted the way we wish everyone would. The
minute he found out about my father-in-law's illness, he
offered his sympathy and support. He rearranged my assignments
to make it possible for me to make my family my first priority.
He often checked in on me, always with a thoughtful gesture and
a kind word. And when my father-in-law passed away, he released
me from all of my assignments on a moment's notice, placed me
on paid leave of absence so I could take care of my family when
it needed me, even though I was facing a number of deadlines
and doing so would mean taking on considerable work himself.
When I returned, he welcomed me back with open arms,
without a single word about the problems caused by the
abruptness of my departure. For John Roberts, it was all very
simple. It was just the right thing to do.
At the same time, Judge Roberts has a humility that is
somewhat surprising in someone so accomplished.
Chairman Specter. Professor Yoo, would you please summarize
at this point?
Mr. Yoo. In short, I am convinced that John Roberts
possesses the open-mindedness, compassion, and humility that
the Senate seeks in the members of our Nation's highest court.
He combines these qualities with a respect for the law and for
the Supreme Court as an institution that leave no doubt in my
mind that he would make an admirable Chief Justice.
Thank you.
[The prepared statement of Mr. Yoo appears as a submission
for the record.]
Chairman Specter. Thank you, Professor Yoo. That was a good
transition, to ask you to summarize and to go right to ``in
short.''
Our next witness and final one on this panel is Professor
David Strauss. And extraordinary academic background. A member
of the Magna Cum Laude Harvard Law School Club--not too many of
you. Judge Roberts is one. Two years at Oxford. An attorney
advisor in the Carter Justice Department. Worked on the
Judiciary Committee here as special counsel during the Justice
Souter nomination proceedings. And has been at the University
of Chicago for some time, 18 cases before the Supreme Court.
You're on, Professor Strauss.
STATEMENT OF DAVID STRAUSS, HARRY N. WYATT PROFESSOR OF LAW,
UNIVERSITY OF CHICAGO LAW SCHOOL, CHICAGO, ILLINOIS
Mr. Strauss. Thank you very much, Mr. Chairman, members of
the Committee. It is an honor to appear before you.
My purpose here is, really, not to pass judgment on John
Roberts, someone I admire very much in many ways, but rather to
speak about a development in the subject I teach and study,
constitutional law, something that has happened in that area in
the last generation that is very significant and directly
relevant to this hearing and to the judicial appointments
process generally, and that development is a change in the
nature of judicial conservatism. You can see the change if you
look at what President Nixon said when he appointed Justice
Rehnquist, and what President Bush, who of course has nominated
Justice Rehnquist's successor has said.
President Nixon said he wanted to appoint a judicial
conservative, and he identified his model. His model was
Justice Harlan. President Bush, of course, has identified his
models, and his models are Justice Scalia and Justice Thomas.
All these people are judicial conservatives, but there is a
world of difference between the two different kinds of
conservatism. The hallmarks of Justice Harlan's work were
deference to Congress and respect for precedent. The hallmarks
of the new conservatism is something close to the opposite of
that, a skeptical attitude toward the work of Congress, and a
willingness to overturn precedent. And it is really that
difference, not the difference between liberals and
conservatives, but the difference between these two different
kinds of conservatism that make the stakes in the judicial
appointments process very high at this point in our history.
I identified a number of areas in my written remarks where
I think the stakes are high. Let me just mention two here. The
first is Congress's power to address the problems facing the
American people and to protect the rights of the American
people. I think it is fair to say that the power of Congress to
do those things is under challenge in the judiciary today in a
way it has not been since before the Great Depression, and this
is true not just in the case of the now-famous toad, but in
area after area, and many of which the hearings have discussed,
in the area of environmental protection, workplace safety,
consumer protection, campaign finance, the rights of the
disabled as we heard, the free exercise of religion, age
discrimination, gender discrimination, the protection of
intellectual property rights, and all of those areas there are
significant efforts under way in the judiciary to limit in
important ways the power of Congress to do what it has been
doing now for the better part of a century, protecting the
rights and serving the needs of the American people.
The other area is of course the right of privacy. The
modern right of privacy was essentially an invention of Justice
Harlan, a judicial conservative that President Nixon cited as a
model when he appointed Justice Rehnquist. It was an opinion
Justice Harlan wrote that was the font of privacy law that has
extended not just in the case of abortion, but in many other
areas, not just in the case of reproductive rights, but in many
other areas today.
Justice Harlan took a view of privacy that rested on a
general and expansive reading of American traditions. He did
not expect people claiming rights to point to some specific
tradition or some specific body of law. He understood that the
questions were more difficult than that. The right of privacy
now, if anything, is more important, indeed much more important
than it was when Justice Harlan wrote, ``With changes in
reproductive technology and end-of-life technologies that make
these questions all the more acute.''
The question whether we will have a Justice Harlan-like
approach to the right of privacy or a skeptical approach to the
right of privacy that questions whether it even exists and
evinces a desire to confine it as narrowly as possible, that
question it seems to me is very much on the table, and will be
a question that will be with us for the next generation.
I don't want to be alarmist about this. The law doesn't
change overnight. These are not changes that will occur maybe
not even with this appointment, but there are points in the
history of the Supreme Court--the New Deal was one, the civil
rights revolution was one--there are points in the history of
the Supreme Court where the Court rethinks and redefines its
relationship to the other branches of Government and its
relationship to the rights of individuals. We may be at such a
point. There are indications that we are at such a point. We
have not passed it yet, but the next few appointments to the
Supreme Court will determine whether this is an era in which
the Supreme Court redefines its relationship in a way that is
basically unknown to Americans living today. Those are the
stakes presented by this appointment and by other appointments
that this Committee will face.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Strauss appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Strauss,
for those profound comments.
This is an extraordinary panel which could yield a lot of
fruits with a lot of questioning, except that we have six more
witnesses and it is almost 6 o'clock.
I am going to start by yielding to Senator Feinstein.
Senator Feinstein. I have no questions. Thank you, Mr.
Chairman.
Chairman Specter. I am glad I yielded to you, Senator
Feinstein.
[Laughter.]
Chairman Specter. Senator Sessions.
Senator Sessions. Mr. Fried, it is an honor to have you
with us. I was a member of the Department of Justice when you
served as Solicitor General and you represent the best in
American law, and I am pleased to see you are at Harvard and
teaching students what American law is all about.
I notice that the legal publications have declared that
Judge Roberts is the premier appellate court practitioner in
America, in a generation. You argued before the Supreme Court.
I do not think you are personal friends with Judge Roberts, but
from your observations, how do you rank him as a scholar and as
a practitioner in the Supreme Court?
Mr. Fried. As a practitioner, he is the best. As a scholar,
he does not exist. He does not purport to be a scholar. He has
not written scholarly articles. That is not his business. And
in that respect he is very much like some of the greats. Earl
Warren was not a scholar when he went on the Court and had no
written articles. Henry Friendly wrote all his articles after
he became a judge. Similarly, I think with Benjamin Nathan
Cardozo. So it does not denigrate Judge Roberts to say
scholarly is not what he has done. Perhaps he shall, but he has
not so far.
Senator Sessions. With regard to his service on the court
and his express philosophy of being a neutral umpire, one who
decides a case before the court and not one to impose any
personal or political views through his opinions. Is that
consistent, in your opinion, with the classical American
tradition of law?
Mr. Fried. It is the best tradition, Senator, the very best
tradition.
Senator Sessions. Would you agree with one witness at our
hearing who said if you believe and cherish your liberties,
your liberties are much safer with a judge who shows restraint
than one who is an activist?
Mr. Fried. Well, I have never understood what that
restraint-activist contrast is meant to show. But I think my
liberties are safest with a judge who will listen to the facts
of my case, will listen to my lawyer's arguments, and will
decide on the basis of them, rather than a judge who comes in
with an agenda or with a predisposition or perhaps even with a
philosophy.
Senator Sessions. And if they are faithful to the
Constitution, in the long run our liberties are protected in
that fashion also, are they not?
Mr. Fried. The rule of law is our greatest protection,
Senator.
Senator Sessions. Thank you, Mr. Chairman.
Thank you for your service to your country and sharing
these thoughts with us today.
Chairman Specter. Thank you, Senator Sessions.
Now that we have saved so much time, I am going to take a
few minutes on a question or two.
Professor Resnik, you advance a fascinating suggestion that
the Chief Justice position might be rotated. Suggest that by an
Act of Congress?
Ms. Resnik. There are many different possibilities.
Chairman Specter. You would not expect them to make a deal
among themselves.
[Laughter.]
Ms. Resnik. Well, actually because the role of the Chief
Justice is a mixture of about dozens of statutes that this
Congress episodically enacted and many customs, it would be
possible for the Court to develop a custom that would alter the
allocation of authority.
Chairman Specter. How about an Act of Congress? That is
something we can do something about. We do not seem to have too
much influence on the Court even with our confirmation process.
Ms. Resnik. Congress has--
Chairman Specter. Because once confirmed, we never hear
from them. They never call, they never write.
[Laughter.]
Chairman Specter. Can Congress pass an Act to rotate the
Chief Justice job?
Ms. Resnik. In my view and reading of the Constitution,
yes, Congress has the authority to decide if the chief justice
ship is a position that could be inhabited by one member of the
Court for a certain period of time, and then by another. In
addition--
Chairman Specter. Would that be reviewable by the Court?
Ms. Resnik. Well, we believe that every statute can be
considered for its constitutionality. So of course the Court
could consider it. And then question would be--
Chairman Specter. They would not have a conflict of
interest?
Ms. Resnik. Well, the Court has actually developed a rule
called the Rule of Necessity, which is to say that it says when
everyone is disqualified, then no one is disqualified. There
was actually a Supreme Court in Texas, old decision in the
1920s that says when everyone is disqualified, we have to go
find an extra ad hoc court for a moment. So there are
differences depending on the State or Federal system, but right
now the Court would--in fact, as you know, the Court has
considered challenges that say that you have unfairly
diminished their salary under Article III, and the Court has
said, ``We have to sit on those cases because here we are,''
and have decided sometimes yes and sometimes no under the
Article III guarantee of no diminution of salary.
Chairman Specter. Have we been successful in diminishing
their salary?
Ms. Resnik. According to the Court, you have. There have
been a couple instances--
Chairman Specter. So we have a formula where we can do that
constitutionally?
Ms. Resnik. You have--in your hat as Members of Congress
you can pass statutes that the Court then reviews. You may not
diminish their salary, but the close questions come up on
things like if you are prospectively altering COLAs, cost-of-
living increases, or you are changing the benefits or
annuities. Those are the kinds of instances that come up. There
have been a few class actions by some judges who are doing
that, and as you know, the Chief Justice of the United States
was here, Chief Justice Rehnquist was a wonderful advocate,
greatly concerned about the--
Chairman Specter. Professor Resnik, I want to stay within 5
minutes so I want to move on, if I may.
Ms. Resnik. Certainly.
Chairman Specter. Professor Strauss, you gave a fascinating
analysis, but you did not tell us whether you are for or
against Judge Roberts. Do you care to do that?
Mr. Strauss. Actually, Senator, with all respect, I do not.
Chairman Specter. There has been another witness here who
did not answer questions. You have some precedent.
[Laughter.]
Mr. Strauss. Well, I cannot say this will come before me in
another capacity so I do not want to prejudge it.
I do not want to--my expertise is in constitutional law. I
feel comfortable talking about that. I do not want to claim the
sort of familiarity with Judge Roberts's record. I have not had
the conversations with him that Members of the Committee have
had, and I do not think it would serve a purpose to take sides.
Chairman Specter. I respect that.
Professor Fried, I have read, and wanted it confirmed, and
I sent my Chief Counsel to confirm it, that you had written on
the subject of Roe v. Wade, that you thought it was wrongly
decided, but that it would not be reversed. Did you take a
position on whether it should be reversed as well as the two
propositions I articulated, because they would not be
inconsistent to think it was wrongly decided and think that
having lasted so long that it ought to stay.
Mr. Fried. I think it will not be reversed, and I do not
think it should be reversed. Not only has it become--
Chairman Specter. Even though you were against the
decision?
Mr. Fried. It was wrongly decided initially, as not only I,
but Archibald Cox, Paul Freund, and others thought, but it has
become, as you say, a super precedent, and not only has it
become--
Chairman Specter. Only super with 38 chances to reverse it?
Mr. Fried. Super duper, if you wish.
Chairman Specter. Oh, I do. Thank you very much. That is
the first authentication I have had.
Mr. Fried. It is not only that it has been reaffirmed as to
abortion, but that it has ramified, it has struck roots, so it
has been cited and used in the Lawrence case, the homosexual
sodomy case, in some of the opinions in the right-to-die cases,
in the Troxall case, which is the grandparent visiting right
case. So it is not only that it is there and it is a big tree,
but it has ramified and exfoliated, and it would be an enormous
disruption.
Chairman Specter. That is what?
[Laughter.]
Mr. Fried. So you not only get branches, you get leaves.
Chairman Specter. Exfoliated.
Mr. Fried. It has got all of that, and that means--
Chairman Specter. I know what exfoliated means. I just did
not hear you.
[Laughter.]
Mr. Fried. Since I do not know Judge Roberts except most
casually and I certainly have never discussed it, if you want a
prediction from me, I would predict that he would never vote--
not never--but he would not vote to overrule it for the reasons
that I have given.
Chairman Specter. Well, that is a topic of extensive
discussion in the cloakrooms of the Senate and on the Senate
floor and in the hallways. Senator Feinstein and I were talking
about it, whether he would or would not, and there are clues,
but no certainty.
I am past time. I would really like to engage in some more
discussion but I have duties to proceed.
Senator DeWine has joined us. I am confident this will be a
no question response, but I will ask the question. Senator?
Senator DeWine. Very short.
Professor Resnik, I know you had some comments about the
Chief Justice and you had an exchange with the Chairman in
regard to the rotation of the Chief Justice. Just kind of a
general question. Are you troubled in any way by the growing
authority of the Chief Justice, or do you want to comment about
that at all?
Ms. Resnik. Yes. I write about the Federal courts--
Senator DeWine. I understand that.
Ms. Resnik.--and I have raised concerns about this because
I think that this is too large a charter, some of it coming
back to the Senate. The Congress has given in several statutes
direct authority to the Chief Justice to appoint other--from
life-tenured judges, judges to sit on courts. That does not
have to be the way that judges are assigned. They could, for
example, be assigned to specialized courts by taking all of the
judges on the courts of appeals through some random rotation.
And there is a lot of--
Senator DeWine. The FISA Court, for example, is appointed
by the Chief--
Ms. Resnik. There is a colleague, another law professor
named Theodore Ruger at the University of Pennsylvania who has
analyzed the appointments on that court and has a law review
article detailing it. He actually reports that the Chief
Justice has--who is the one who has the count of about 50
appointments of other judges to specialized panels or courts.
The Congress also could, for example, the Judicial
Conference of the United States, which is the major
policymaking body, that could be chaired by, again, a rotating
group of court of appeals judges. The many committees that are
being appointed--many other judiciaries around the world are
dealing with this question. How do we provide all the justice
we need to for all of our citizens, have it organized, be sure
that there is a voice that comes to tell the world about its
need, and then not develop a kind of bureaucracy that means
that judges are losing their role as adjudicators as they seek
to set agendas and set future agendas.
It is a hard problem that everyone is facing because we
need lots of judges. If you go back at the turn of the century,
the 1900's, fewer than 100 judges around the United States,
life-tenured. Fast forward, between magistrate and bankruptcy
judges, we have got 2,000. They need organization, they need
equipment, they need staffs. They need all these things. But at
the same time, we also need to cherish the role of open,
visible, accessible courts, and that is the challenge and I
think that the Congress and the courts could work together, as
they have over the last century to create this great system, in
rethinking the allocation of authority.
Senator DeWine. That is very helpful. Thank you.
Chairman Specter. Thank you very much, Senator DeWine.
Thank you very much. You have been a very enlightening
panel, lights of brain power, six professors in a row. It is a
tribute even to this hallowed room. Thank you.
Chairman Specter. On to panel six. Ms. Diana Furchtgott-
Roth from the Hudson Institute, Secretary Reich, Rabbi
Polakoff, et cetera, if you will all take your seats.
Our first witness is Ms. Diana Furchtgott-Roth, a Senior
Fellow and Director of the Hudson Centers for Employment
Policy, had been the Chief Economist at the Department of
Labor. She previously served as Chief of Staff of the
President's Council of Economic Advisors and 2 years as Deputy
Executive Director of the Domestic Policy Council. She has a
Bachelor of Arts in economics from Swarthmore and a Master's
from Oxford.
Thank you for joining us, Ms. Furchtgott-Roth and we look
forward to your testimony.
STATEMENT OF DIANA FURCHTGOTT-ROTH, SENIOR FELLOW, HUDSON
INSTITUTE, WASHINGTON, D.C.
Ms. Furchtgott-Roth. Thank you very much.
Chairman Specter. Is this going to be a Power presentation?
Ms. Furchtgott-Roth. No. No, it isn't.
Chairman Specter. Power Point presentation? The floor is
yours.
Ms. Furchtgott-Roth. Mr. Chairman and members of the
Committee, I am honored to be invited to testify before your
Committee today on the subject of Judge John Roberts and his
record on women's economic issues.
I have followed and written about these issues for many
years, and with your permission, I would like to submit my
written testimony for the record.
Chairman Specter. Without objection, it will be made a part
of the record in full.
Ms. Furchtgott-Roth. Some observers are concerned about
Judge Roberts's attitudes towards women. I believe his record
is supportive of women and that the policies he advocated are
in women's best interests.
Women made extraordinary progress during Ronald Reagan's
Presidency. President Reagan's goals of spurring growth by
lowering taxes were extremely popular. After Congress enacted
his tax cuts during his first term, he was reelected in 1984
with over 60 percent of the vote. Congress then enacted further
tax cuts proposed by President Reagan, and by the end of his
Presidency, the tax rate for the median family had fallen from
24 to 15 percent. As taxes were reduced, the economy expanded
and women were some of the main beneficiaries of that economic
growth.
In the 1980's, women moved rapidly into the workforce. At
the same time, their unemployment rates fell. Women's earnings
compared to men's grew faster in the 1980's under President
Reagan than in any other decade in U.S. history.
Women also progressed in education in the 1980's. By 1990,
women were earning over half of all B.A. and M.A. degrees. That
is still true today. More women got M.B.A. and law degrees and
more became doctors and lawyers.
Now the United States leads the industrialized world in job
creation and unemployment rates of 4.9 percent are among the
lowest. Unemployment rates for women in many other countries
are double our rate.
Even though women were so successful in the 1980's, some
are concerned about Judge Roberts's views on comparable worth.
Some believe that if comparable worth had been implemented,
women would have made even more progress. But that concern is
misguided. Comparable worth doesn't mean equal pay for equal
work, which is already the law and which is the principle that
President Reagan and Judge Roberts supported. Instead,
comparable worth means equal pay for entirely different
categories of jobs based on categories of workers as determined
by government officials.
Comparable worth supporters claim that it is unfair that
some mostly male occupations, such as sewer workers, are paid
more than some mostly female occupations, such as clerical
specialists. But for better or for worse, our economic system
rewards American workers on the basis of how much the public
values their service and is actually willing to pay for their
services, not based on how much an official says that it is
worth.
Some jobs have higher earnings than others because people
are willing to pay more for them. Many jobs are dirty and
dangerous, such as oil drilling, construction work, mining, and
roofing. These jobs are primarily performed by men. Women
aren't excluded from these jobs, but they often choose careers
with a more pleasant environment and potentially more flexible
schedules, such as teaching, communications, and office work.
Many of these jobs pay less.
Proponents of comparable worth cite an example in Oregon.
There, female clerical specialists were given raises of over
$7,000 a year to bring them in line with male senior sewer
workers. Everyone, given the choice of working in an office or
a sewer at the same salary, would choose the office. You just
have to pay people more for work about and in sewers.
Women's progress in the 1980's would have been hampered by
comparable worth. Comparable worth would have worked against
women because artificially high wages would have prevented them
from being hired. When wages get too high, employers cut back
on numbers of workers. Comparable worth assumes that women
cannot ever succeed in certain fields on their own, but need
government assistance.
Some observers have criticized Judge Roberts because they
disagree with memoranda he wrote on Title IX and college
athletics in the early 1980's. In particular, Judge Roberts
wrote in 1982 that Title IX only applied to specific programs
receiving Federal aid and not to all programs in a particular
educational institution, but that was what Title IX required at
the time, as corroborated by the Supreme Court in 1984. The
Supreme Court ruled that only the program that actually
received Federal funds, rather than the entire college or
university, need to comply with Title IX. As I wrote in a book
in 2001, the six-to-three opinion effectively prevented the
Office of Civil Rights at the Department of Education from
investigating a college athletic department for Title IX
violations unless that department was the direct recipient of
Federal funds, which most were not.
In writing about Title IX, Judge Roberts argued
persuasively that the executive branch and regulatory agencies
should comply with Congress's direction. He correctly wrote in
a 1982 memo--
Chairman Specter. Ms. Roth, could you summarize your
testimony at this point?
Ms. Furchtgott-Roth. Yes. Yes. I will summarize my
testimony by saying that Congress changed the law in 1987 by
passing the Civil Rights Restoration Act of 1987 and that Judge
Roberts's comments on Title IX, if the law had been in place in
1982, his comments would have been very, very different.
And in short, I would like to say that wage discrimination
laws and Title IX guidelines aren't a decision for judges, but
for Members of Congress. It is Members of Congress who decide
on the laws and give the executive branch the authority to
design and implement these regulations. Therefore, it would be
up to you, Senators, to evaluate the costs and the benefits of
the issues. And should he be confirmed as Chief Justice, Judge
Roberts's role will be to interpret the laws and adjudicate
disputes containing the laws that you were going to pass. Thank
you very much.
Chairman Specter. Thank you.
[The prepared statement of Ms. Furchtgott-Roth appears as a
submission for the record.]
Chairman Specter. Our next witness is Professor Robert
Reich, who had been Professor of Social and Economic Policy at
Brandeis until he recently joined the Goldwin School of Public
Policy at the University of California. He served as Secretary
of Labor during President Clinton's first administration and
subsequently published a book entitled, Locked in the Cabinet.
Before taking office during the Clinton administration, he was
a member of the faculty of Harvard's Kennedy School of
Government. He has a B.A. from Dartmouth, a Master's from
Oxford University, where he was a Rhodes Scholar with President
Clinton, and a law degree from the Yale Law School.
I am pleased to see you again, Professor Reich, Secretary
Reich. I have some questions left over which you did not answer
when I questioned you when you were Secretary of Health and
Human Services, which we will get to promptly.
Mr. Reich. That is because I was Secretary of Labor, Mr.
Chairman.
[Laughter.]
Chairman Specter. Well, no wonder I couldn't understand
what you were doing.
[Laughter.]
STATEMENT OF ROBERT B. REICH, FORMER SECRETARY OF LABOR AND
UNIVERSITY PROFESSOR AND MAURICE B. HEXTER PROFESSOR OF SOCIAL
AND ECONOMIC POLICY, BRANDEIS UNIVERSITY, WALTHAM,
MASSACHUSETTS
Mr. Reich. Mr. Chairman and members of the Committee, I
have prepared testimony and with your permission I will submit
it for the record.
There has been much discussion in these hearings about
social values, and I want to put on the table something that
maybe has not received quite the attention it should, and that
is economic values. And I don't think I have to tell the
Committee what almost everybody knows, and that is that wealth
and income and the power that come from wealth and income are
more concentrated in fewer hands as a proportion of the
population today than we have seen since the 1920s, and by some
measures since the gilded age of the 1890s.
Now, if this doesn't present issues of economic morality, I
don't know what does, and it comes to the fore with regard to
Congress and the Supreme Court in a whole series of
protections, some of them very old, some of them going back to
the 1920s and 1930s and 1940s, having to do with workplace
protections, unemployment insurance, interpretations of Social
Security, interpretations of minimum wage, the ways in which we
treat our working people in this country.
Now, I heard Judge Roberts, at least to the best of my
memory, in the last couple of days tell this Committee that he
would rule on the side of the little guy when the Constitution
told him to and he would rule on the side of the big guy when
the Constitution was on the side of the big guy. Now, I assume
that he is talking about little guy and big guy in figurative
terms, in terms of economic power and wealth and status in
society. But last time I looked at my Constitution, it doesn't
say anything about average working people or big guys or little
guys at all.
In fact, there have been times in our history where the
Supreme Court came down consistently on the side of wealth and
power and against little guys, against average working people.
Up until 1937, for example, the Supreme Court threw out a lot
of State and Federal regulation that was intended to help
average working people.
Judge Roberts has a record--it is not much of a record. It
is something of a gamble for all of us. But let me reveal a
little bit of autobiographical detail that perhaps you did not
know, and I do this not to burnish my otherwise impeccable
Republican credentials but simply to tell you that I know
something about a particular institution. I started out my life
in Government as Assistant to the Solicitor General where I had
a chance to brief and argue Supreme Court cases. And my first
boss was Robert Bork.
Now, in those days, the Solicitor General's office regarded
its primary client as the Supreme Court, not the
administration. It wasn't until the mid-1980s that there was a
new position created in the Solicitor General's office called
the Special Deputy. That was a political position. It was a
political deputy, and it was about values. That political
deputy was there for a very simple reason: to make sure that
the Solicitor General's office and the briefs and arguments
before the Supreme Court were in consistency, were consistent
with the values of the President in terms of social values,
economic values, whatever have you.
I have read Judge Roberts's memoranda, and there is no
question in my mind, having had that experience in the
Solicitor General's office, that he came down consistently,
uniformly on the side of very conservative economic and social
values. I am not criticizing him for it, but I think it is very
important that you know that.
Here in this hearing he said, for example, he refused to
affirm Wickard v. Filburn. Now, you know as well as I do, over
the last 10 years more than 30 times the Supreme Court has
struck down, either in whole or in part, laws of this Congress.
Ten of those, at least, have been based on the Commerce Clause.
Wickard v. Filburn in my knowledge, in my experience, is a
cornerstone of building the protections of a strong Federal
Government for average working people. His refusal to affirm
that I find personally quite troubling.
There has been reference also to the hapless toad. Well, we
know that he was looking for other ways, perhaps, to find that
Endangered Species Act constitutional. But look at that logic
in that particular case. When he says Congress didn't really
have authority under the Commerce Clause to protect the life of
a hapless toad that, for reasons of its own, lives its entire
life in California, well, obviously people are not toads--at
least the last time I looked--but what about protecting the job
safety of a hapless retail worker who, for reasons of her own,
lives her entire life in Pennsylvania, or a hapless coal miner
who, for reasons of his own, lives his entire life in West
Virginia?
Let me just finally say this: One Justice can make all the
difference to our entire system of Federal protections. One
Justice. The Court did change its mind in 1937, as I said
before, and it stopped striking down laws that protected
people, average working people, not because, as popularly
understood, FDR threatened to pack the court. No. In fact, the
Court made that switch before it even knew that FDR had a
court-packing scheme. The Justice--
Chairman Specter. Professor Reich, could you summarize your
testimony at this point?
Mr. Reich. I will do it in one sentence. The Justice who
made that switch was Justice Roberts, Justice Owen Roberts. And
it would be a cruel joke of history if a namesake almost 60
years later turned the Court backward.
Thank you.
[The prepared statement of Mr. Reich appears as a
submission for the record.]
Chairman Specter. Thank you very much, Professor Reich.
Our next witness is Rabbi Dale Polakoff, President of the
Rabbinical Council of America, whose membership consists of
more than 1,000 ordained rabbis. He serves as Rabbi of Great
Neck Synagogue, Long Island, a faculty member of the North
Shore Hebrew Academy, a graduate of Yeshiva where he majored in
psychology.
Thank you very much for joining us today, Rabbi, and we
look forward to your testimony.
STATEMENT OF RABBI DALE POLAKOFF, PRESIDENT, RABBINICAL COUNCIL
OF AMERICA, GREAT NECK, NEW YORK
Rabbi Polakoff. Thank you, Mr. Chairman, and other
distinguished members of the Committee. Good afternoon, or,
perhaps, good evening. Thank you for inviting me to participate
in these hearings.
The Rabbinical Council of America includes congregational
rabbis, teachers and academicians, military chaplains, some of
whom serve today in Iraq, Afghanistan, and other areas of the
world, health care chaplains, organizational professionals, and
others. I am here this afternoon to offer a statement of
support for the nomination of Judge John G. Roberts to be Chief
Justice of the United States.
My remarks about Judge Roberts begin this afternoon with
broad brush strokes because the desired qualities of judges
within the Jewish tradition are defined in just such broad
brush strokes. We are enjoined to choose principled judges who
refrain from showing favoritism to individuals or causes. We
seek judges who are people of truth, whose words and decisions
inspire confidence in those who rely upon them. Our tradition
recognizes the tremendous responsibility borne by those who
judge others and sees in their dispensing of truth and justice
a divine partnership ensuring the continuation of a moral
society.
At a time in which many in our society seek moral moorings
and spiritual strength, I am certain that these broad values
are also the values embraced by this great country in which we
are privileged to live. Values of principle, values of truth,
and values of responsibility are part of the foundation of
religious ethics upon which our Nation has been built. And I am
confident that Judge Roberts represents the embodiment of such
values.
Within these broad brush strokes, though, are many hues of
color, and it is the responsibility of this Judiciary Committee
to try to determine how Judge Roberts sees those colors.
As a representative of the clergy of a minority faith
community, I and my colleagues are also interested in an area
of seminal importance to us, namely, the relationship between
religion and state in society. In an effort to gain insight
into Judge Roberts's understanding of that relationship, as
defined by the Free Exercise and Establishment Clauses of the
First Amendment, we were encouraged by a memorandum written to
Counsel Fred Fielding on August 20, 1984, regarding remarks to
be made by President Reagan to an ecumenical prayer breakfast.
Then-Counsel Roberts suggested that the references to
``church'' or ``churches'' be changed to references to
``religion'' or ``religions.'' He noted that, and I quote,
``Many of our citizens do not worship in churches but in
temples and mosques.'' We believe that this comment
demonstrates a sensitivity and appreciation for the diversity
of religious faith in America, and we hope is a harbinger of
Judge Roberts's view in this crucial area.
There are those who suggest that Mr. Roberts's subsequent
participation in presenting the view of the United States in
several religion cases should be of concern. In this matter, we
rely on the guidance of the Institute of Public Affairs of the
Union of Orthodox Congregations of America, a sister
nonpartisan religious organization. Their research indicates
that in each of the cases, the positions advocated by the
United States were neither extreme nor even unreasonable
interpretations of the Religion Clause's requirements.
As members of this Committee are well aware, the contours
of religious liberty in this Nation are still being shaped by
the Supreme Court. Should the Senate confirm Judge Roberts, he
will be on the Court this term, when, in the case of Gonzales
v. O Centro Espirita, it will again examine the extent to which
minority religions will have their religious liberty protected
against Government interference, and Congress's ability to
protect that liberty through laws like the Religious Freedom
Restoration Act, which many of you championed a decade ago.
While we cannot be certain, we are optimistic that a
Justice Roberts will be supportive and solicitous of religious
liberty in America. His answers this week to questions you and
your colleagues have asked him about the Constitution's
Religion Clauses were indeed reassuring.
The Rabbinical Council of America has taken this public
position of support for the nomination of Judge Roberts in the
spirit of this year's celebration of 350 years of American
Jewish history. The Jewish community, like so many other faith
communities, has greatly benefited from the religious liberty
guaranteed by our Constitution. We have been able to build
houses of worship and study and to create communities
reflective of our values and traditions. We believe it, thus,
appropriate through our active participation in this process
that we acknowledge our debt of gratitude to America, to a
Nation that has pledged to uphold the conviction that liberty
and equal justice under law are for all.
Thank you very much.
[The prepared statement of Rabbi Polakoff appears as a
submission for the record.]
Chairman Specter. Thank you very much, Rabbi.
Our next witness is Dr. Susan Thistlethwaite, President of
the Chicago Theological Seminary, a Ph.D. from Duke University,
a master's of divinity summa cum laude, undergraduate degree
from Smith, the author of several books and op-ed pieces in
various newspapers.
Thank you for joining us, Dr. Thistlethwaite, and we look
forward to your testimony.
STATEMENT OF SUSAN THISTLETHWAITE, PRESIDENT, CHICAGO
THEOLOGICAL SEMINAR, CHICAGO, ILLINOIS
Ms. Thistlethwaite. Thank you, Chairman Specter, and
members of the Committee. My name is Susan Brooks
Thistlethwaite. I am president and professor of theology at
Chicago Theological Seminary. My academic training is in
historical theology. My teaching and writing have emphasized
contemporary religious life, with particular attention to
religion and social justice. It is an honor to be asked to give
testimony before the Senate Judiciary Committee, and with your
permission, I will submit it for the record.
Our Constitution's promises, such as the right to live free
of tyranny and be able to worship freely, are generous, even
extravagant promises. They are promises made after freedom had
been won from tyranny--a tyranny both political and
ecclesiastical. They are promises made to the best of the human
spirit as created by God.
In the limited documents available to discern John
Roberts's views, there is evidence--and I have cited detail in
my written testimony--that his judicial posture is more toward
permissiveness in religious establishment and is less than
vigorous in the defense of religious minorities and their
freedoms. He refers to the so-called right to privacy, has
objected to affirmative action, but has favored expanding both
the authority of law enforcement and Presidential authority.
Very disturbing to me is the view, and I quote, ``The Geneva
Convention is unenforceable in U.S. courts and, in any case,
does not apply to detainees labeled `enemy combatants.' '' I
submit to you the threat to the moral health of the Nation of
this view is extremely grave.
A Supreme Court Justice entrusted to interpret the
Constitution must embrace the fundamental element of our
democracy. We will strive to be a body politic rooted in
justice and fairness for all citizens. A Justice entrusted to
interpret the Constitution must understand that the protection
of the free exercise of religion and the prohibition of any
establishment of religion are particularly critical to the way
in which in this Constitution promises to establish justice.
Few Americans have understood the promises inherent in our
Constitution better than Dr. Martin Luther King, Jr. Dr. King
in his ``I Have A Dream'' speech was able, as few before or
since, to reach into our constitutional past and proclaim the
deep sense of the words that the Constitution was a promissory
note to which every American was to fall heir. King argued that
so far this promissory note to African-Americans had been
returned: insufficient funds. But the promise held. The promise
for King was a dream, but not a fantasy.
Dr. King's vision, as is well known, was a deeply
theological vision. It is perhaps less well known that the
Framers of the Constitution also drew on a theological vision
and that their prohibition of the establishment of any religion
and their insistence on the protection of the free exercise of
religion was made for religious reasons. The thought of John
Locke on whose work the Founding Fathers such as Thomas
Jefferson drew is instructive. Locke, like others in the 17th
century, had seen the terrible results of religious wars, as
Catholics and Protestants struggled for power in England. His
own faith finally led him to believe that it is only in the
absolute protection of human civil society from any control by
religious authorities that people are enabled to come to have
faith in God. It was for a theological reason, not a secular
one, that both Locke and Thomas Jefferson separated church and
state and prohibited establishing one religion over any other.
In that way, they protected religious freedom.
In Jefferson's ``A Bill for Establishing Religious
Freedom,'' he argues, ``The plan of our holy author of our
religion is not to propagate it by coercion.'' They made this
simple point: God does not need the help of the state for there
to be faith.
From our vantage point in the 21st century, we can see the
Framers were right. They did not just protect political
freedom. They protected religious freedom. It is no accident
that the United States through all of its history so far has
been free from the terrible effects of religious war. The
Framers of the Constitution knew what they were about.
As retiring Justice Sandra Day O'Connor wrote in an opinion
last term, ``Those who would renegotiate the boundaries between
church and state must, therefore, answer a difficult question:
Why would we trade a system that has served us so well for one
that has served us so poorly? ''
What has become evidence in the last half of the 20th
century and into the 21st is that our society is becoming more
genuinely religiously diverse. The Harvard Pluralism Project
has documented that the United States is rapidly becoming the
most religiously diverse nation in the world. Such increasing
religion pluralism calls for even greater vigilance both in
protecting religious minorities and clearly avoiding even the
appearance of the establishment of any particular religion. The
Constitution is a document that seeks to implement a vision of
fundamental human rights, a vision of a society such as none in
history has seen before, a vision that would establish justice,
promote the general welfare, and secure the blessings of
liberty.
I have been impressed with the incisive mind of John
Roberts. That is a necessary but not a sufficient credential
for Chief Justice. I am not as convinced that he believes in
the dream that is the United States of America.
Thank you.
[The prepared statement of Ms. Thistlethwaite appears as a
submission for the record.]
Chairman Specter. Thank you very much, Dr. Thistlethwaite.
We now turn to Governor John Engler, President of the
National Association of Manufacturers, the largest industry
trade group in the United States, served as Governor of
Michigan for three terms, and before that, had extensive
experience in the Michigan State Legislature; Chairman of the
National Governors Association, a graduate of Michigan State,
and a law degree from the Cooley School of Law.
Thank you for coming in today, Governor Engler, and the
floor is yours.
STATEMENT OF JOHN ENGLER, FORMER GOVERNOR OF MICHIGAN, AND
PRESIDENT, NATIONAL ASSOCIATION OF MANUFACTURERS, WASHINGTON,
D.C.
Mr. Engler. Mr. Chairman, Senator Leahy, and distinguished
members of this Committee, I am pleased to be here today to
testify in support of the nomination of Judge John Roberts to
be the next Chief Justice of the United States Supreme Court.
This is an important moment for the National Association of
Manufacturers because it is the first time that we have
participated in a proceeding of this type. I would like to take
a minute just to explain why we have taken this historic step.
When I joined the NAM on October 1st of last year, I did
bring that experience you referenced, 20 years in the Michigan
legislature, 12 years as Governor of Michigan, from 1991 to
2003. During that time as Governor, I felt that Michigan
businesses were facing crushing legal costs and barriers. I
also learned and saw first-hand laws that I had helped write in
the State Senate or signed as a Governor were in many instances
ignored, rewritten, or set aside by judges unclear about or
dismissive of their sworn duties.
In part because of this, the legal environment for doing
business in Michigan had become unpredictable, unfavorable, and
unacceptable. As Governor, I set out to change this by
recruiting to the judiciary individuals who were committed to
uphold the law and not legislate from the bench. During 12
years as a Governor I appointed more than 200 judges to the
Michigan courts, and that included three State Supreme Court
justices, each of whom has a record of faithfully interpreting
and applying the law.
Now, as a result of these appointments, coupled with
equally needed and important tort reform legislation, cases
filed with the Michigan circuit courts dropped by some 17
percent between 1997 and 2004. The legal costs of doing
business in Michigan declined. People of Michigan, through this
debate and period of time, came to understand that the
certainty and predictability the judges help foster when they
follow the law not only can lead to a better business climate
but, necessarily then, are key to jobs and prosperity.
The same can be true at the national level. Nationally, our
legal system today consumes some 2.3 percent of GDP. Its cost
is actually about 7 \1/2\ times as high as that of any of our
key trading partners. The high cost of lawsuit abuse continues
to be an impediment to our ability to compete in the global
economy.
Now of course much of the solution to this doesn't like
with the Federal courts but in State legislatures and the
Congress, which must write clear laws that recognize these
realities. That is why the NAM continues to advocate asbestos
reform that has been the subject of much hard work by this very
Committee, and further tort reform in areas like products
liability.
Now, that said, to achieve a business environment that is
fair and predictable and where the rules are clearly spelled
out and adhered to, it is essential to have judges who will
apply the rules the legislature or the Congress establishes in
a fair and predictable manner. The United States Supreme Court
must set the example. The need for this fundamental fairness
and predictability is why the NAM decided that the time had
come to take positions on judicial nominations.
After reviewing Judge John Roberts's record, we are
convinced he is eminently qualified to lead the Court. Judge
Roberts has the intellect and the experience needed to
understand and address complicated transactions and difficult
legal problems. At the same time, he is committed to applying
the law rather than applying his own personal views. This
philosophy is essential if we are to remain a Nation guided by
the rule of law.
Finally, John Roberts understands the importance of clarity
when deciding cases and the practical consequence of decisions
for business. I might add that, really, none of the current
members of the Court come from a recent private-sector kind of
background. Judge Roberts does. He brings that. Accordingly, if
confirmed, Justice Roberts will add an important voice to the
Court's deliberations because of his strong experience of how
litigation affects major commercial transactions. This
background will assist the Court in identifying cases that
present business issues of national importance for its review
and also in understanding the practical ramifications of rules
set out through its decisions.
As I close, let me make it clear that the NAM also didn't
seek to determine if Judge Roberts will reach or is likely to
reach a particular outcome favorable to business. The principal
difficulty with an outcome-based approach is that the outcomes
a Justice should reach ought depend on what the duly enacted
law is. In many areas, different companies and businesses will
disagree on what the pro-business result actually is.
Therefore, the National Association of Manufacturers is not
looking for Justices biased in favor of or against business or
whose decisions reflect or are likely to reflect a pro-business
outlook, but rather, for a Justice who will properly and
impartially apply the law. We are convinced Judge Roberts is
such a Justice, and I respectfully urge this Committee to set
in a timely manner his nomination before the full Senate.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Engler appears as a
submission for the record.]
Chairman Specter. Thank you very much, Governor Engler.
Our final witness is Ms. Karen Pearl, interim president of
Planned Parenthood Federation of America. For 10 years prior to
becoming the interim president, she was the president and CEO
of Planned Parenthood of Nassau County. She has been a
preschool teacher, working with children with disabilities, and
has a master's degree in counseling from New York University.
Thank you for coming in today, Ms. Pearl. The floor is
yours.
STATEMENT OF KAREN PEARL, INTERIM PRESIDENT, PLANNED PARENTHOOD
FEDERATION OF AMERICA, NEW YORK, NEW YORK
Ms. Pearl. Mr. Chairman and distinguished members of the
Committee, I am Karen Pearl, interim president of Planned
Parenthood Federation of America. I am honored to be here today
to express the concerns and hopes of our patients and America's
pro-choice majority.
I come before you not as an individual, but as a
representative of millions. Through Planned Parenthood's 850
health centers, we provide health services to nearly 5 million
women, men, and young people every year. One in four American
women will visit a Planned Parenthood center in her lifetime.
These women represent Americans from every walk of life and
from every part of the country.
What is at stake in these hearings is nothing less than
women's lives and women's health. Americans deserve a Supreme
Court that will protect, not take away, our basic freedoms.
The record of John Roberts reveals a nominee who, as Chief
Justice, is not likely to uphold constitutional protections for
the right to choose abortion. And while we have fought hard for
that right and will fight just as hard to protect it, Planned
Parenthood does everything in our power to reduce the need for
abortion. Yet there are forces at work in this Nation who seek
to restrict comprehensive sex education, contraception, and
emergency contraception--the very things that would decrease
the number of abortions in this country.
In his response to questions from some of the members of
this Committee, Judge Roberts has refused to state that he
accepts and will protect a woman's constitutional right to
choose, a right that has been part of the fabric of our society
for nearly two generations. We ask that you oppose his
nomination to the lifetime position of Chief Justice of the
United States Supreme Court.
Five years ago, in Stenberg v. Carhart, four of the nine
Justices made it clear that they support either overturning Roe
v. Wade or significantly gutting it. To do so would seriously
threaten constitutional protections against government
regulations that threaten women's health and safety. To do so
would send us back to a pre-Roe era where women did not have an
equal place at life's table and when making child-bearing
decisions was a perilous enterprise.
The American people deserve a Chief Justice who will uphold
Roe, and yet Judge Roberts co-authored a brief, filed on behalf
of the Government in Rust v. Sullivan, that stated Roe was
wrongly decided and should be overruled. It is hard for me to
understand, Senators, how a decision that for the past three
decades has helped women participate equally in society could
have been wrongly decided. It is hard for me to understand why
a decision that allowed women to realize their dreams should be
overruled.
We at Planned Parenthood are faced with the prospect of
violence and intimidation every day of our lives. On my first
day on the job at Planned Parenthood, a sign was posted on the
front door that threatened, ``Anyone who enters will be
killed.'' And as I volunteered as a clinic escort, violent
protesters hit us with their signs. In the Bray case, Judge
Roberts is one of the authors of a brief arguing in support of
the legal position of violent clinical protesters. Nowhere in
the brief did the Government disavow the actions or the tactics
of the violent demonstrators, not even in a footnote.
When women's health centers in Wichita, Kansas were being
blockaded in 1991, a district court issued an injunction
against the protesters to protect women who were attempting to
enter the centers. Judge Roberts was involved in a highly
unusual intervention that sought to lift the injunction, even
though the injunction was preventing violence and safeguarding
women.
This week, Judge Roberts repeatedly refused to answer
whether he will protect the basic rights and freedoms of all
Americans. Senator Specter himself pointed out that Roe has
been reaffirmed by the Supreme Court multiple times. Notably,
Judge Roberts has acknowledged that there is a right to
contraception. He is comfortable making these statements, but
he steadfastly refuses to acknowledge the same about the right
to abortion.
As a legal matter, we believe that the right to choose
abortion is as settled a fundamental right as the right to
contraception. No one should be confirmed to a lifetime
position with the power to take away the right to choose, who
does not accept that proposition. When Judge Roberts answers
questions about Griswold and Eisenstadt but refuses, when it
comes to Roe and Casey, Judge Roberts is drawing lines of
convenience, not rules of law.
No matter how remarkable the person or impressive the
resume, a nominee for Chief Justice ought to be able to tell
the American people whether the Constitution allows States to
ban abortion. Judge Roberts has refused to do so, even when
pressed by you.
We still do not know whether a Roberts's Court would
preside over the creation of two Americas, one where women with
means can obtain abortions even if they are not legal, and one
where women without resources cannot.
When our patients' safety is at stake, when the ability of
families--
Chairman Specter. Ms. Pearl, would you summarize at this
point, please?
Ms. Pearl. I will. Private decisions about their lives is
at stake, when women's status in our society is at stake,
accepting anything less than clarity would simply be
irresponsible.
You all know that Justice Harry Blackman wrote the majority
opinion in the Roe v. Wade decision. In the decades following
that decision, as more Justices on the Court ruled to overturn
Roe, Blackman wrote, ``A chill wind blows.'' His words echo
hauntingly today.
Senators, I urge you to not confirm Judge John Roberts as
Chief Justice, and I thank you so much for the honor and
privilege of addressing you today.
[The prepared statement of Ms. Pearl appears as a
submission for the record.]
Chairman Specter. Thank you very much, Ms. Pearl.
Just a few questions. The hour is growing late. Ms. Pearl,
the hearing has dealt extensively with the concerns that you
have addressed, a woman's right to choose, and it boiled down
really to Judge Roberts's statement that he felt he could not
speak to that issue as a matter of judicial independence in a
context where there are cases on the docket which raise the
issue, unlike Griswold which has been pretty well established
as a right to privacy, something I asked him about, and others
did.
Do you think that--I know you would like to have an answer.
People who want to overrule Roe would also like to have an
answer. But do you think there is any basis for Judge Roberts's
statement that he simply cannot prejudge the matter before it
comes before him as a matter of independence, judicial
independence, and that he cannot sell his vote one way or
another?
There are people on this panel on both sides of the issue.
I think we are divided among the 18, 9 to 9. Does he not have a
point that he cannot prejudge the case?
Ms. Pearl. Senator, thank you. I do not think that that is
correct. We are not asking him to prejudge any case. We have
not presented him with any facts of any particular case.
Chairman Specter. But you are asking him to say he would
sustain Roe v. Wade, a woman's right to choose.
Ms. Pearl. We are asking him whether the precedent that has
been established, and as you said, reaffirmed 38 times, is
settled law of this land, established rights. Women have
counted on that right for almost two generations, for 32 years.
It is hard to believe that that is not something that ought to
be considered settled law. It was the Roe decision that was
only 1 year after the Eisenstadt decision, so the timeframe
should not matter, and it has been looked at so many more
times. This is, you know, the decision--the question of whether
and when to become a parent is such a fundamental right that it
is hard to believe that it is even open for any kind of
question. And if Judge Roberts was willing to talk about the
right to privacy as it relates to contraception, he ought to
have been able to talk about it as it relates to abortion.
Reproductive rights are simply not to be negotiated.
Chairman Specter. Professor Reich, going back to your JD
from Yale, what is your evaluation of the issue of judicial
independence and not soliciting votes on this Committee or in
the Senate by a promise one way or the other on Roe v. Wade
when the issue is on the docket for the Supreme Court in the
next term?
Mr. Reich. I think it is entirely dependent, Mr. Chairman,
on how settled the case is. That is, if you have something that
is a super, super, super-duper precedent, as you repeatedly
talk about it, then it would seem to me entirely appropriate
for a candidate, a nominee to say, ``I would follow a super-
duper precedent just like Wickard v. Filburn.''
On the other hand, if it is up in the air, if it really is
up in the air, if there are a lot of 5-4 decisions, it is
likely to come before him, he does not want to reveal his cards
right now because it would be inappropriate, then it is a
different story.
In this case it seems to me that Roe v. Wade is the law of
the land. It has been there for many years. Why cannot a
nominee simply say clearly, ``I support Roe v. Wade as the law
of the land? ''
Chairman Specter. Unlike the right to privacy or
contraceptives for marriage or for single people, there is a
great debate--I do not have to describe it for you--a great
debate in this country about the subject. If the definition, if
it is up in the air or settled, I do not think, as you heard me
say, that we could ask him about his decision. But on the
factors which Ms. Pearl articulates, he testified he would give
them great weight.
It is really unpredictable as to what any nominee is going
to do. Who would have predicted that Justice Kennedy would have
supported Roe v. Wade? The cases are legion in the history of
the Court. The only consistency is one of surprise.
Rabbi Polakoff, has your organization taken a position on
any Supreme Court nominees in the past?
Rabbi Polakoff. No, Mr. Chairman, we have not, but we feel
that in a generation, and certainly in today's society, with
traditional values and religious ethics threatened, that it is
important for there to be a spiritual voice added to the
hearings by this distinguished group, and that is why we are
here today.
Chairman Specter. Governor, my time is almost to expire,
but I have time for a question. Does this mean the National
Association for Manufacturers is going to become more
politically active like supporting asbestos reform?
[Laughter.]
Mr. Englar. You can count on that, Senator.
Chairman Specter. Thank you very much. Thank you very, very
much. Thank you super-duper much.
[Laughter.]
Mr. Englar. I thank you, and I am hoping that the
expeditious conclusion of this matter will allow a little bit
of floor time for that important topic.
Chairman Specter. This Committee has done its job. Now it
is up to the floor time of the leader.
Senator Leahy.
Senator Leahy. I am so tempted, but I will withhold.
Chairman Specter. Senator Hatch.
Senator Hatch. Let me ask, Ms. Pearl, let me ask you the
same question I asked Marcia Greenberger, for whom I have great
respect as well. Since Justice Rehnquist or even before, has
Planned Parenthood ever approved or endorsed or accepted or
been favorably disposed towards any Republican nominee to the
United States Supreme Court?
Ms. Pearl. Thank you, Senator. I would like to start by
saying that Planned Parenthood does not make these kinds of
decisions on any kind of partisan basis. It is not that we
approve or disapprove of Republican nominees, approve or
disapprove of Democratic nominees.
To your specific point, however, I am mostly certain--and I
am very happy to go back and check and send you a letter to
confirm--that Planned Parenthood did not take a position on
Justice Sandra Day O'Connor's nomination to the Supreme Court.
Senator Hatch. But that is the only one you can recall?
Ms. Pearl. That is the one that I recall right now, yes.
Senator Hatch. I know your group is a close ally of the
National Organization for Women. They have testified I think in
almost every one except this one. Both of your groups, for
example, I think are members of the Leadership Conference on
Civil Rights?
Ms. Pearl. We are not.
Senator Hatch. You are not.
Ms. Pearl. We actually have an application pending.
Senator Hatch. NOW opposed Justice John Paul Stevens's
nomination in 1975, saying his record showed he would, quote,
``bend over backwards'' to limit the right to abortion. We all
know that did not happen. NOW opposed Justice Anthony Kennedy's
nomination in 1987 saying his record shows a ``total lack of
commitment to equality and justice under law.''
I had a flyer that I saw circulated in 1990 by the National
Organization for Women opposing the nomination of David Souter.
It says, ``Stop Souter or women will die.''
The reason I raise this, and because as we all know, these
Justices have supported abortion rights. I personally do not
know where Justice Roberts is on that issue, and I do not think
you do, nor do I think anybody else does, because he has never
really opined on it. Now you cite cases where he was working
for the Reagan administration, which clearly was against Roe v.
Wade. But he was a staff attorney making the legal arguments
that they wanted him to make, which is quite a bit different
from saddling him with that particular philosophy.
Now, it turns out that the absolute and categorical
certainty of those positions against Justices Stevens, Kennedy
and Souter were just plain wrong. And that is where I am having
some difficulty here. Did your group participate in the Stop
Souter Rally that advertised on that flyer that went out? Did
you participate in that?
Ms. Pearl. I honestly, I do not know the answer to that.
Senator Hatch. I do not either, but I seem to recall that
Planned Parenthood did, and they had a right to if they wanted
to. It is just that the position was wrong.
So what I am saying is it is one thing to think a person
may be going to vote a certain way on the Court, but you do not
know how Justice Roberts will vote. I do not know how he will
vote. You may be right. You may be wrong, as--I think Planned
Parenthood was part of it, NOW, the Alliance for Justice,
NARAL, the Leadership Conference on Civil Rights, they were all
wrong on those three Justices.
If we make these decisions solely because somebody thinks
somebody might not live up to what they think the law should
be, there would be very few people ever privileged to serve on
the United States Supreme Court if both sides started to play
that game.
All I can say is this, is that your organization is a great
organization. I do not agree with some of the policies, but I
have also supported you with regard to some aspects of the work
that you are trying to do, but not on the abortion side of it.
It seems to me that there is a responsibility to not prejudge
people who have the eminent qualifications that Judge Roberts
has, and that worries me just a wee bit. But I have been
interested in your testimony and certainly have listened to it,
as I have to all of yours.
I welcome my old friend, Robert Reich here. He is always a
controversial person who makes us all think more all the time,
and you have done it here again today, deliberately I know. And
I do respect you and appreciate you, and I like alternative
points of view. I think that is a good thing for our society,
and you certainly present plenty of them for us to think about
up here, both Democrats and Republicans.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Hatch.
Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman.
I welcome the panel and I particularly welcome Bob Reich,
who has been a long-time friend. I have been a great admirer of
all of his strong commitments to public policy and public life
generally. It has been an extraordinary career for he and his
wife as well, who shared a strong commitment to public service.
Dr. Reich, let me ask you. Judge Roberts, in one of his
statements, said the courts are passive institutions. Is that--
how do you react to that as a concept? Is that your view about
what the courts are, what the courts can be, what the courts
should be in trying in particular to help the country respond
to this extraordinary challenge, which all Americans are
reminded of this past couple of weeks with Katrina, when we
sort of tore back the fabric of America, the Gulf States, and
saw so many people that have been left out and left behind. We
are not talking about handouts. What we are talking about is a
hand up.
Should not the courts be a part of a process where the
Executive and the Congress and the courts are moving in harmony
to try and make this a fairer country and more equitable land?
And if that is so, what is your reaction to the comment that
the courts are passive institutions?
Mr. Reich. Senator, the courts are not passive. Anybody who
watches carefully, reads Supreme Court opinions, looks at the
history of the Supreme Court, understands that they are far
from passive institutions.
Interpretations of the 14th Amendment, Equal Protection
Clause have historically changed the face of this Nation in
terms of bringing minorities and women into the mainstream.
When I was Secretary of Labor, one of my duties was to
implement the Family Medical Leave Act. Well, that was a hard-
fought piece of legislation. You know, you were actively
involved. The first piece of legislation passed by the Clinton
administration that we got through, at least signed into law by
Bill Clinton. Well, we did some regulations pursuant to that,
some common-sense regulations struck down by this Supreme Court
in a very close 5-4 decision, it seems to me. I believe I am
right. Said that that particular regulation simply required
that an employer notify an employee of his or her family
medical leave rights was inconsistent with the purpose of the
Act.
Well, a judgment that a particular regulation is
inconsistent with the purpose of an Act is not a neutral,
passive decision. The Court is an active instrument of public
policy. It has values, social policy, economic policy.
And look, Senator, all of you, I understand. This is a
tough one. This is a roll of the dice. I mean you do not have--
there is not a lot--there are not a lot of decisions, not a lot
of Court decisions. There are some memoranda you had difficulty
getting from the administration, a lot of pieces of
information. But--and it is presumptuous of me to tell you what
to do, but the stakes are so huge here for the country. I do
not see how you can, in good faith, given that the Court is not
a passive institution, turn the country over to a Court--and it
will be turning the country over to a Court where you just do
not know what is going to happen.
Senator Kennedy. I was somewhat disappointed that in the
various areas of public policy where Judge Roberts had been so
active, I mean he had obviously solicited the job to serve in
the administration. He was selected by the administration to
serve in the Justice Department, and he felt very comfortable
ideologically being there, all of which I respect, and his
commitment to public service. But he wanted to be in there and
he felt very comfortable, and he was promoted all the way
through there.
So he had these series of memoranda stating administration
position, and there was always the question whether this was
just stating the position or what percent of this was his own
views.
The point that I thought was somewhat disappointing, when
he was asked, given that was 20 years ago, what was your
position today on these issues? And it seemed to me to be
pretty ordinary that people would say, ``Look, those were my
views then, those of the administration. Today I look at X, Y
and Z, whether it is on the issues of civil rights, whether it
is on women's rights, whether it was on the issues on Grove
City''--which was always amazing to me, after we had fought
through all of the Civil Rights Act, that an individual could
feel--and with all the money that was going to universities
with tuition, which was keeping them running--that you would
have an individual that would say, ``Well, we wanted just
program specific, so if they do not discriminate in the
admissions or the financial office and the admissions office,
they can discriminate wherever they want at the university.''
I mean after we had gone through so much in terms of the
battle to end discrimination, and the American people were at a
position where they felt that we should not permit taxpayers to
be funding for discriminatory purposes.
I think my time is over. I think the Chairman might give
you 15 seconds or something to respond.
Mr. Reich. Senator, what has come out so far is this man is
obviously a nice fellow, people like him. He is a very, very
bright, if not brilliant jurist, and an extremely thoughtful
lawyer. But he has certain ideological predispositions. He has
values. Those values are way to the right of the mainstream in
America. I do not think there is any question about it. And so
it is up to all of you to decide whether you want to put
somebody in as Chief Justice who is that far to the right. I
think it is as simple and direct as that.
Senator Kennedy. Thank you.
Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Kennedy.
Senator Sessions.
Senator Sessions. I see Senator Hatch left, but here is the
``Stop Souter or women will die'' ad I just found, so I guess
that did not prove to be a good prediction, except a lot of
women partially born have died since Justice Souter went on the
Court.
Chairman Specter. Make that part of the record, Senator
Sessions?
Senator Sessions. Yes, I would offer that for the record.
Chairman Specter. Without objection.
Senator Sessions. I think, Mr. Reich, that Judge Roberts
has a value that he has expressed articulately, beautifully,
repeatedly, that he loves the law, he loves the Court, and he
believes a Court has a role to be a neutral arbiter, and not to
impose its personal views. And I do not think he brings that
because he may be politically conservative and believes in
lower taxes or whatever he believes in politically. I think
that is his deepest and highest value that was repeatedly
stated here many, many times, and I think that is exactly what
we need in the courts of America today, and I think the people
of this country will be more respectful of the Court if the
Court returns to that role. That is my personal view.
Ms. Thistlethwaite, I tried to think over the years about
appropriate approaches to the church/state issue. I am
Methodist myself and been involved in some of these things. I
see you are a liberation theologist, but let me say this: you
have expressed some pretty strong views about the need for a
wall between church and state, and just yesterday, the Supreme
Court--a district court, following what it thought was the
command of the Ninth Circuit, ruled that the Pledge of
Allegiance, which has ``under God'' in it, is unconstitutional.
Do you have an opinion about that? I think it is in some ways
consistent with some rulings in the Supreme Court, as I shared
with Judge Roberts, and I think it is perhaps inconsistent with
others. How do you feel about the wisdom of having those words
in the Pledge of Allegiance?
Ms. Thistlethwaite. Well, I am very interested, Senator
Sessions, to know whether you think people will be increased in
their faith if they just say those words repetitively. I don't
know what the goal is if it is not to establish a deistic
religion, because if it is to include the words so that they
can be historical, as I am citing from the Founders, God
doesn't need your help.
So if it is historical, that was added to the Pledge of
Allegiance. It was not even original in the Pledge. I look at
the people out on the street demonstrating. They seem to feel,
the people in favor, after the, you know, press show us the
pictures of people demonstrating after this decision was made,
and the people seem to feel it is prayer. And if it is prayer,
then I think it is unconstitutional.
Senator Sessions. Well, what about--I guess you would
further say that we should take ``In God We Trust'' off the
coins?
Ms. Thistlethwaite. Do I think it is a good idea to confuse
Caesar and God? No, I don't. Render unto Caesar what is
Caesar's and to God what is God's. I don't think that is a good
idea.
Senator Sessions. You would oppose then the Chaplain of the
United States Senate?
Ms. Thistlethwaite. Pardon me?
Senator Sessions. Do you oppose the position of Chaplain in
the United States Senate?
Ms. Thistlethwaite. Do I think you all need spiritual
guidance?
[Laughter.]
Senator Sessions. That is part of it, perhaps.
Ms. Thistlethwaite. I think it is okay if you rotate it
around. But I am not the constitutional lawyer. I am a pastor.
I am kind of in favor of pastoral care.
Senator Sessions. Well, I would say this: I think that it
is an absolute truth that our Government was founded on a
principle that we are created beings with certain inalienable
rights. And when you get in a secular-like, Marxist ideologies,
they have no respect for life, not the same degree of it, and I
think it is a unique portion of our great American spirit that
every human being is respected specially because we believe
they were created, and such words as ``under God'' or ``In God
We Trust'' I think are not sectarian. I do not believe they
establish a religion, but simply reflect a consensus view of
probably 90 percent of Americans that there is a higher being,
and I think that the Supreme Court authorities on these matters
are somewhat strained and confusing, and perhaps Judge Roberts
can improve that. I certainly hope so.
I see my time is up. Thank you, Mr. Chairman.
Chairman Specter. Thank you, Senator Sessions.
Senator Coburn, you have the last word.
Senator Coburn. Thank you, Mr. Chairman.
Since I do, I would just like to compliment you and Senator
Leahy.
Chairman Specter. I am sorry. We can't hear you.
[Laughter.]
Senator Coburn. I will say it again and again and again. If
my budget is increased, I would be happy to say it.
But, you know, as a freshman Senator, the way this hearing
has been conducted, the leadership that you, Mr. Chairman, and
you, Mr. Leahy, have conducted it under, I think is reflective
of good qualities of the United States and the country. And it
kind of leads me to the questions that I have, especially for
Dr. Thistlethwaite, the last statement that you said, you are
not convinced that John Roberts believes in the dream of
America. And I am just wondering: Could anybody of conservative
values believe in that dream? Is it possible? Because if--and I
don't know John Roberts actual--I go to bed at night worrying
if he is on the Supreme Court, I have completely opposite views
than Planned Parenthood, certainly about reproduction and other
issues. But the question is can somebody have values different,
conservative values and believe in the dream of America and be
a good judge? Is that possible?
Ms. Thistlethwaite. I was very impressed by the gentleman
who spoke last on the last panel who was testifying to the fact
that the definition of the word ``conservative'' has changed.
And I think--
Senator Coburn. Well, I don't want to get into a discussion
about the definition of ``conservative.'' I am a known
quantity, all right? I am a known quantity. People know my
opinions. I am not very quiet about them, sometimes to my own
ill benefit. But the fact is it talks about what Senator
Kennedy talked about, and Senator Feinstein: Do they have a
heart? And the question is: Can somebody have a set of values
that are different than what you perceive to be okay for the
American dream and still have the heart of a Senator Kennedy
and make a good judge? And I am very confused about what I
consider a very inflammatory statement about Judge Roberts in
your closing, because what it does is it castigates people into
categories, the very thing Jesus said we don't do. And to me it
is concerning that we have this decision that we have already
decided how he is going to decide. Well, I want to tell you, I
spent 2 hours with him, and I am as pro-life as they come, and
I cannot tell you where he is going to be. And I tried to find
out. And if I spent 2 hours with him, how in the world do you
all know that he is not going to be? And how do you know based
on the history of the judges that have come before this
Committee before, who the same claims were made about, and the
opposite results came about?
And I think it undermines the testimony, and I think it
lends for us to go back and reconsider as a Nation, all of us,
the people I represent, the viewpoints I represent, and the
viewpoints you represent. Maybe we don't know people's heart as
well as we think we do when we speak out to make such a charge
that John Roberts, you are not convinced he believes in the
American dream.
Well, I tell you what. I am convinced he does. And I am
also convinced that he has got a great heart. And I have spent
hours upon hours here, and I have spent hours with him, and I
have spent hours upon hours reading everything that has been
brought up about John Roberts. And I think he has got the heart
for the American dream. And I would hope--and I will close
where I ended. What we need in our country is more pulling
together rather than pulling apart. And certainly if that can
happen anywhere, it can happen in our country.
I will dedicate myself to try to do that--on everything but
spending. I will make that exception. But I will work to pull
together, because we are not really all that far apart. We are
not that far apart. But we magnify and enlarge the areas where
we are apart. And the love from the Almighty, that is what he
wants in front of us. And it is my hope as we finish in the
things that we do in this Committee in the future--and John
Roberts's career, whatever it is going to be, will be a
manifestation that he believes in the dream.
Thank you, Mr. Chairman.
Chairman Specter. Thank you very much, Senator Coburn.
Ms. Thistlethwaite. May I reply?
Chairman Specter. Dr. Thistlethwaite, do you want to make a
comment?
Ms. Thistlethwaite. Yes.
Chairman Specter. Go ahead.
Ms. Thistlethwaite. I wish I had been able to see more than
10 percent, and it was said 10 percent is approximately the
documents. I wish that we had been able to see more. I was
hoping that the hearings would reveal more. But I can only tell
you what is in my heart, and that is that the dream of the
Constitution, that it does protect, that it is about the little
guy, I am not convinced. And I just--you asked me to tell you
what I think, and I tried to do the best I could.
Chairman Specter. Thank you very much, Dr. Thistlethwaite,
for your comments. They are obviously very, very deeply
heartfelt. I think that has been reflected in these hearings
very, very extensively.
Thank you, panel, for your very profound testimony. We have
had 30 witnesses in today who have been very profound,
excellent, insightful. I want to thank my colleagues for their
attendance. We have worked in 4 days to take on an arduous
task, and we have worked late, Tuesday, Wednesday, and Thursday
into the evenings, and the attendance here--based on the
experience I have had on this Committee for 25 years, the
attendance has been excellent because Senators are very, very
busy. Everybody has a half a dozen places where he or she has
to be at any time, and the attendance has been really very
good.
And I thank specially Senator Leahy for the leadership
which he has provided. We have conferred at every step of the
way and have had agreement at virtually every step of the way.
And where we haven't had agreement, it has been a very amicable
agreement to disagree, and not on the big points. On the big
points we have come to terms.
I want to thank Mike O'Neill, chief counsel, and Bruce
Cohen, chief counsel for Senator Leahy, and the staffs. Staffs
on the Judiciary Committee didn't have an August. They can
pluck August right off the calendar. They examined 71,000 pages
of documents, and they are used to all-nighters because they
are all students and scholars and have had a lot of all-
nighters. So I thank the staff for doing that extraordinary
job.
I think it not inappropriate to say that Senator Frist, the
Leader, has commented about the many good reports he has had at
a time when the Congress has been under a lot of scrutiny for
the hurricane and a lot of problems. It can be characterized by
others. We were asked to conduct dignified hearings, and except
for very minor occasions where the witness might have been
permitted a little more opportunity to respond, it has been
very, very, very, very smooth sailing. So I am appreciative as
the Chairman for what we have done.
Before yielding to Senator Leahy, I would like ask
unanimous consent that documents be included in the record, and
the record will remain open for 24 hours so that questions can
be submitted. And then we will be moving ahead to an executive
session by agreement on the 22nd, a week from today. And
Senator Leahy and I are in agreement on trying to keep the
speeches short--long statements for the record, but to 10
minutes if we can, providing that leadership. All the Senators
have their own rights, and we don't want to impose upon them,
but where we have tried to establish time limits, there are 17
Senators on this Committee who like to see the 18th observe the
rules. And all of us are willing to take some cutback when we
have been able to move with dispatch and get our business done.
But Senators, we are a notorious group. People wanted to know
when we were going to finish this hearing today, and I said
earlier, ``When the last Senator stops speaking.'' Now I am
stopping.
Senator Leahy?
Senator Leahy. I think that is a hint to me. I want you to
know, first off, it has not been totally happy. On this side,
we wanted to go through tomorrow and Saturday, Mr. Chairman. We
are terribly disappointed you did not make that possible. And,
of course, Governor Engler knows what we are saying.
To be serious, this is a serious matter. I want to
compliment the key witness, Judge Roberts, for sitting here. We
did ask him a lot of questions. Some he answered, some he did
not. He knows our feelings on both sides of the aisle on that.
He spent, I know, almost 3 hours with me and he spent hours
upon hours with other members on both sides of the aisle.
Now we will vote. I have no idea how I will vote. I suspect
I will probably be announcing it at some time prior to our
hearing, but by Thursday I and the others on this Committee
will have to vote. I think we have as strong a record as we are
going to have, and I compliment the Chairman in that regard.
And I compliment both his chief of staff, Mike O'Neill, and
mine, Bruce Cohen, for this. But the people--the Chairman is
right in mentioning those who have worked throughout August. I
came down here during August and checked in on what they were
doing. It was extraordinary. I know from the folders scattered
throughout my farm in Vermont the other day that they were
making sure I knew what they were doing and that I would work
with them.
But it is extremely important for the country. I don't come
into this with a preordained idea how I am going to vote. I do
want to vote, though, on what is best for my country. I do love
my country. I wouldn't serve here if I did not.
My maternal grandparents came to this country from another
country not speaking the language. Both my grandfathers were
stonecutters. Both would be proud that I had the opportunity to
be here. It is a great opportunity. I don't take it lightly.
We have said several times that it is only 101 people who
get to speak for all 280 million Americans on this: the
President when he makes the nomination and the 100 Senators. I
think the 100 Senators have to make the best decision possible.
We have a great duty here in the advice that we will give the
rest of the Senate. I don't take that lightly.
I do compliment the Chairman. He and I have talked many,
many times through this. He has accommodated the wishes of
people on my side of the aisle, as he has on his side of the
aisle. And we will find out Thursday how we are going to vote.
And I appreciate the panels. Many of you have sat through here
all day, a long time. I know many of you very well. I know how
busy your schedules are. I appreciate you being here.
Thank you, Mr. Chairman.
Chairman Specter. I saw Judge Roberts briefly in the hall,
and he looked much relieved, and I thanked him for his good
humor. It is a great tribute to our Constitution. The President
nominates, the executive branch works in, and the legislative
branch and our Committee and later the full Senate, and the
judiciary. It is a great separation of power and great
coordination. It is a great privilege to be a part of the
system, and that concludes our hearing.
[Whereupon, at 7:10 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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<all>