John G. Roberts, Jr.

Speaker, Title, Party Statements
Senator Arlen Specter (PA)
Chairman
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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.]
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Mr. Chairman, I want to thank you for all the consultations. I think we have each other’s home phones on speed VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00013 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 2 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.
Senator Arlen Specter (PA)
Chairman
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 3 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00015 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 4 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.]
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. I now yield to my distinguished colleague, Senator Leahy.
Senator Patrick Leahy (VT)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 5 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 6 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 AmeriVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 7 cans, 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.]
Senator Arlen Specter (PA)
Chairman
(R)
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.
Senator Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 8 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.’’ VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 9 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 openminded. 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00021 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 10 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.]
Senator Arlen Specter (PA)
Chairman
(R)
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?
Senator Ted Kennedy (MA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00022 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 11 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 12 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 13 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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Kennedy. Senator Grassley?
Senator Chuck Grassley (IA)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 14 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 15 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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Grassley. Senator Biden?
Senator Joe Biden (DE)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00027 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 16 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 17 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-yearolds 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 18 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-ina-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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Biden. Senator Kyl. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 19
Senator Jon Kyl (AZ)
Senator
(R)
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 precommitments 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00031 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 20 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00032 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 21 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Kyl. Now, Senator Kohl.
Senator Herb Kohl (WI)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 22 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 23 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 24 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Kohl.
Senator Mike DeWine (OH)
Senator
(R)
Senator DeWine.
Senator Mike DeWine (OH)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 25 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.’’ VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 26 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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator DeWine. Senator Feinstein?
Senator Dianne Feinstein (CA)
Senator
(D)
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.] VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00038 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 27 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00039 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 28 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00040 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 29 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?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Feinstein. Senator Sessions?
Senator Jeff Sessions (AL)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00041 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 30 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 31 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00043 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 32 I look forward to participating in the hearing with you and congratulate you on being nominated to the position.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Sessions. Senator Feingold?
Senator Russ Feingold (WI)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 33 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 subVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00045 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 34 ject 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.]
Senator Arlen Specter (PA)
Chairman
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 35 Senator Graham, you are recognized for your opening statement.
Senator Lindsey Graham (SC)
Senator
(R)
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 wellqualified 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00047 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 36 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00048 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 37 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 wellqualified 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Graham. Senator Schumer?
Senator Chuck Schumer (NY)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00049 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 38 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00050 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 39 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00051 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 40 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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Schumer. Senator Cornyn?
Senator John Cornyn (TX)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 41 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00053 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 42 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 43 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Cornyn. Senator Durbin?
Senator Dick Durbin (IL)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00055 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 44 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00056 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 45 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-yearold 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 46 [The prepared statement of Senator Durbin appears as a submission for the record.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Durbin. I recognize now Senator Brownback, and also recognize today is his birthday.
Senator Sam Brownback (KS)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 47 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00059 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 48 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Brownback. Senator Coburn?
Senator Tom Coburn (OK)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00061 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 50 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.
Senator Arlen Specter (PA)
Chairman
(R)
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.
Senator Richard Lugar (IN)
Senator
(R)
Senator LUGAR. Mr. Chairman, let me first ask that a copy of my full statement appear in the Committee record.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, your full statement will be made a part of the record.
Senator Richard Lugar (IN)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00062 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 51 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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Lugar. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00063 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 52 We now turn to Senator Bayh, elected in 1998, previously Governor of Indiana. Senator Bayh.
Senator Evan Bayh (IN)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 John Warner (VA)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Your full statement will be made a part of the record, Senator Warner.
Senator John Warner (VA)
Senator
(R)
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 JusVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00064 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 53 tice. 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 54 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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Warner. Thank you,
Senator Richard Lugar (IN)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 55 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I do.
Senator Arlen Specter (PA)
Chairman
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00067 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\23539.000 SJUD4 PsN: CMORC 56 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.
Senator Arlen Specter (PA)
Chairman
(R)
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. Welcome again, Judge Roberts.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and FrankVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00153 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 142 furter. 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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. But there is no doctrinal basis erosion in Roe, is there, Judge Roberts?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Well, do you see any erosion of precedent as to Roe?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00154 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 143
Senator Arlen Specter (PA)
Chairman
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, in the particular case of Roe, obviously you had the Casey decision in ’92 or ’93.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. ’92.
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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—
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00155 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 144 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. A jolt to the legal system, a movement against stability—one of the Roberts doctrines.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. An overruling of a prior precedent is a jolt to the legal system. It is inconsistent with principles of stability and yet—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. One—go ahead.
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00156 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 145
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, it’s a term that hasn’t found its way into the Supreme Court opinions yet. I think—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Well, there is an opportunity for that. [Laughter.]
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00157 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 146
Senator Arlen Specter (PA)
Chairman
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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’’?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I agree with that, Senator, yes.
Senator Arlen Specter (PA)
Chairman
(R)
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’’?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00158 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 147 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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. So they were not necessarily your views then, but they certainly are not your views now.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I think that’s fair, yes.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00159 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 148 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. So you are not bound to follow it, but it is pretty impressive logic?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. In the Casey decision at—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. No, no. I am talking about Chief Justice Rehnquist on Miranda.
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I’d agree that the tradition of liberty is a living thing, yes.
Senator Arlen Specter (PA)
Chairman
(R)
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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00160 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 149
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. My time just expired.
Senator Patrick Leahy (VT)
Senator
(D)
Senator Leahy. Senator LEAHY. Thank you, Mr. Chairman. Good morning, Judge.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Morning.
Senator Patrick Leahy (VT)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00161 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 150 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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Right.
Senator Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00162 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 151 between the legislative branch and the executive branch, it’s the job, of course, of the judicial branch to resolve that dispute.
Senator Patrick Leahy (VT)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. With respect, Senator, you’re vastly over-reading the memorandum. It concerned—
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Tell me why.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.’’
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, with respect, Senator—
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. You are saying you do not want to concede any ability to the Congress to stop a war.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Let me ask you this question. Does Congress have the power to declare war?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Of course. The Constitution specifically gives that power to Congress.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Does Congress then have the power to stop a war?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00163 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 152
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. And the Supreme Court held that unconstitutional.
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00164 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 153 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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Would you consider—go ahead.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. You have also said he is one of the Justices you admire the most.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Are you sending us a message? [Laughter.]
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00165 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 154
Senator Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. The internment of a group solely on the basis of their—
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Nationality or ethnic or religious group. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00166 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 155
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I thought you might—
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00167 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 156 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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 restituVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00168 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 157 tion, 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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I don’t want to say—
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Do you think it is a solid precedent?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator, there—
Senator Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. The back pay.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. We will go back to this in my next round, I can assure you. My time is up. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Leahy.
Senator Orrin Hatch (UT)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00169 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 158 I want to welcome you again, Judge Roberts.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you so much.
Senator Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I have read a number of them.
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator HATCH. I know that I have only mentioned a few of these so-called descriptions of various philosophical attitudes with VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00170 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 159 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.
John G. Roberts, Jr.
Nominee
(R)
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 twothirds 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 Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator HATCH. There were only a few votes to simply reaffirm Roe, were there not, in the Casey case?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00171 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 160 that Roe had established the undue burden analysis that since the time of Casey has governed in this area.
Senator Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That was his view, yes.
Senator Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00172 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 161 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.
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00173 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 162 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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00174 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 163 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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00175 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 164 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, so ordered.
Senator Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Do you believe that Congress is just as bound by constitutional limits as State legislatures?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00176 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 165 Constitution does not allow Congress to do regarding Congress and State legislatures and their enactments.
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00177 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 166 undertake pro bono work as you have done throughout your legal career?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
Senator HATCH. Thank you. My time is up. Thanks, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Hatch. Senator Kennedy?
Senator Ted Kennedy (MA)
Senator
(D)
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 reallife 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00178 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 167 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I do.
Senator Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And you are aware that Brown was a unanimous decision?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And a lot of work by the plaintiffs, as well.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I’m sure.
Senator Ted Kennedy (MA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00179 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 168 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?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. In 1868, that is right.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS.—yes, as it was at the time of the decision.
Senator Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 AfricanAmerican 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 Ted Kennedy (MA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00180 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 169 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?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. That’s gone up and down the Supreme Court, the 1965 Act and again the 1982 Act extension.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes, and the issue would be—
Senator Ted Kennedy (MA)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Oh, well, the existing Voting Rights Act, the constitutionality has been upheld—
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Okay.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I’m not aware of any constitutional issue that’s been raised about it.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. All right.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. All right. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00181 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 170
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS.—and I do need to keep—avoid expressing an opinion on those issues.
Senator Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. All right.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. How about the constitutionality of the 1968 Fair Housing legislation that outlaws racial discrimination in housing?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00182 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 171 have to participate in our democracy. You do agree, don’t you, Judge Roberts, that the right to vote is a fundamental constitutional right?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00183 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 172 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—
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator—
Senator Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Senator, you disagree—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator, let him finish his answer.
Senator Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, and the Supreme Court—
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. And that is all—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Let him finish his answer, Senator Kennedy.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. The point is, and again, this is revisiting a debate that took place 23 years ago— VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00184 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 173
Senator Ted Kennedy (MA)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could I—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Let him finish his answer, Senator Kennedy.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Well, after President Reagan signed it into law, did you agree with that position—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I certainly—
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY.—of the Administration?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Nineteen Eighty-Eight Fair Housing Act.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. The administration’s proposal was submitted, I believe, months after the date of the memo that you read from. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00185 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 174
Senator Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No, Senator, and I did not back then. You have not accurately represented my position. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00186 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 175
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. These are your words.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Let him finish his answer.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator, with respect—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. You had quite a long—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS.—you have selected—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Wait a minute, wait a minute. Senator Kennedy just propounded a very, very long question. Now, let him answer the question.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00187 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 176
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Senator, again, the administration policy was as I articulated it, and it was my job to articulate the administration policy.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. My time is up, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
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 Chuck Grassley (IA)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00188 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 177 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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00189 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 178 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 Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Well, is there any room in constitutional interpretation for the judge’s own values or beliefs?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00190 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 179 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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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’’? Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 180
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00192 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 181 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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00193 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 182
John G. Roberts, Jr.
Nominee
(R)
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, twothirds 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 Chuck Grassley (IA)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00194 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 183
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, it will be admitted as part of our record.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 preVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00195 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 184 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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Grassley. Senator Biden?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you very much. Hey, Judge, how are you?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Fine, thank you.
Senator Joe Biden (DE)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00196 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 185 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00197 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 186 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, it will be made a part of the record.
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Do you think there is a liberty right of privacy that extends to women in the Constitution?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Certainly.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. In the 14th Amendment?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Certainly.
Senator Joe Biden (DE)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00198 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 187 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, that is in an area where I think I should not respond.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Why?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Because—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. You said you would abide by the Ginsburg rule.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, she obviously didn’t adhere to it with regard to—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I explained why she felt at liberty to comment—
Senator Joe Biden (DE)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Did that make sense to you?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00199 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 188 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. You know, I have no quarrel with the majority’s determination and—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Not my question, Judge.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Let him flesh his answers out.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Justice Ginsburg answered the question. She never wrote about it. She answered it specifically.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I think—
Senator Joe Biden (DE)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator, I think nominees have to draw the line where they’re comfortable. It’s a matter of some—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, you are admitting you are not applying the Ginsburg rule.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator Biden, let him finish.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I don’t have much time. But go ahead.
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00200 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 189 That has been the approach that all of the Justices have taken.
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. She said no hints, no forecasts—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. No, no.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS.—no previews.
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I do know, Senator, that in numerous other cases—because I read the transcript—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. So did I, Judge.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Aw, Judge, Judge—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. She said, It’s not correct for me to comment. Now, there’s a reason for that, Senator.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. But you are going from—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Wait a minute, Senator Biden. He has not finished his answer.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. He’s filibustering, Senator. [Laughter.] Senator BIDEN. But okay, go ahead.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. No, he’s not. No, he’s not.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That’s a bad word, Senator.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. That’s what we do, too. Go ahead. Go ahead and continue not to answer. [Laughter.]
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. I got that. Did Justice Ginsburg give a hint?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I’m not going to comment on whether or not a particular nominee adhered to the approach that they announced.
Senator Joe Biden (DE)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator—
Senator Joe Biden (DE)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00201 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 190 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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator, I was not speaking specifically to any piece of legislation there. That was making a very—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, you mention Violence Against Women, don’t you?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, let me ask you—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS.—confirms that.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Okay. Judge, is gender discrimination, as you have written in a memo, a ‘‘perceived’’ problem or is it a real problem?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00202 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 191 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?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Referring to what you called strict scrutiny.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. He didn’t know the difference between heightened and strict?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. No, I know what that is. I wonder what you meant by—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator Biden, let him finish his answer.
Senator Joe Biden (DE)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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 KenVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00203 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 192 tucky, 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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I’m sorry. What was the date of the memo, Senator?
Senator Joe Biden (DE)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I can’t elaborate on—I can’t elaborate beyond what’s in the memo. I just—
Senator Joe Biden (DE)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. It was only his idea, then? I mean, you were just protecting him so he wouldn’t be inconsistent?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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.’’ VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00204 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 193 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?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Only to the office, right? It applies narrowly.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. The question—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Now, wait a minute. Let him finish his answer,
Senator Joe Biden (DE)
Senator
(D)
Senator Biden. Senator BIDEN. The answers are misleading, with all due respect.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Well, they—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Let me get—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Wait a minute, wait a minute. They may be misleading, but they are his answers.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Okay, fine.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. You may finish, Judge Roberts.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Fire away, Judge. At least I am misunderstanding your answers.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. With respect, they are my answers, and, with respect, they’re not misleading. They’re accurate. This is a—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I have now a minute and 45 seconds. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00205 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 194
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. I understand that.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. So I would say that the administration correctly interpreted the intent of Congress in enacting that legislation.
Senator Joe Biden (DE)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thanks, Judge.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Senator.
Senator Arlen Specter (PA)
Chairman
(R)
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 Jon Kyl (AZ)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00206 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 195 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.’’ VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00207 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 196 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, it will be made a part of the record.
Senator Jon Kyl (AZ)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00208 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 197 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00209 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 198 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?
John G. Roberts, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00210 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 199 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 Jon Kyl (AZ)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00211 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 200 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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00212 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 201 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 Jon Kyl (AZ)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00213 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 202 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 Jon Kyl (AZ)
Senator
(R)
Senator KYL. How did you do in the two cases?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, the Court got it right in each case. [Laughter.]
Senator Jon Kyl (AZ)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00214 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 203 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 Jon Kyl (AZ)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Kyl. Senator Kohl?
Senator Herb Kohl (WI)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00215 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 204 of the State legislatures at that time in making the decision that they made?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
Senator KOHL. But it was ground-breaking.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Certainly.
Senator Herb Kohl (WI)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00216 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 205 if not, you can correct that—that judges merely operate as automatons?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Absolutely.
Senator Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00217 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 206 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.
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I certainly agree that reasonable people can disagree about that decision, yes.
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. And you do, obviously, respect people on the other side of the issue?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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 adminisVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00218 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 207 tration 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.
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00219 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 208
Senator Herb Kohl (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. For the upcoming vacancy?
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. Yes. [Laughter.]
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00220 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 209 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?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
Senator KOHL. So you do not support term limits anymore?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00221 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 210 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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00222 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 211 constitutionality. It’s not simply a bad policy decision. I’m not sure where I would regard that determination today.
Senator Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I don’t know what my mind would tell me—
Senator Herb Kohl (WI)
Senator
(D)
Senator KOHL. I mean, theoretically. It is possible.
John G. Roberts, Jr.
Nominee
(R)
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 Herb Kohl (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00223 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 212 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 Herb Kohl (WI)
Senator
(D)
Senator KOHL. I thank you, Judge Roberts. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Kohl. Senator DeWine?
Senator Mike DeWine (OH)
Senator
(R)
Senator DEWINE. Thank you, Mr. Chairman. Judge, good afternoon.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Good afternoon.
Senator Mike DeWine (OH)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00224 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 213 people who are going to make sometimes life and death decisions for our country.
John G. Roberts, Jr.
Nominee
(R)
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 bestqualified people for that position are selected.
Senator Mike DeWine (OH)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00225 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 214 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, again, of course, without commenting on any of the particular hypotheticals or actual cases—
Senator Mike DeWine (OH)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00226 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 215 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 Mike DeWine (OH)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00227 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 216 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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I do know—
Senator Mike DeWine (OH)
Senator
(R)
Senator DEWINE. It is a different world we live in today.
John G. Roberts, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00228 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 217 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?
John G. Roberts, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00229 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 218 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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00230 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 219 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 Mike DeWine (OH)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00231 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 220 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Certainly.
Senator Mike DeWine (OH)
Senator
(R)
Senator DEWINE. It was your case. You were involved in the case. You were in the majority opinion.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. It was a divided decision.
Senator Mike DeWine (OH)
Senator
(R)
Senator DEWINE. Right, 2–1.
John G. Roberts, Jr.
Nominee
(R)
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 Mike DeWine (OH)
Senator
(R)
Senator DEWINE. Judge, thank you very much. Thank you, Mr. Chairman.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Senator.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator DeWine. Senator Feinstein?
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you very much.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. We are going to take a 15-minute break when Senator Feinstein concludes her questioning at about 4:15.
Senator Dianne Feinstein (CA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00232 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 221 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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Then why say those things?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. And you don’t think it was good to have more lawyers.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I think there were probably—the point that Mr. Fielding and I had commented on, on many occasions, was that in VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00233 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 222 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 Dianne Feinstein (CA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. So it is fair to say you don’t think that way; is that correct?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00234 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 223
Senator Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Part of liberty.
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. So you agree that the Court said that, obviously.
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. So workability is clearly one thing. Is another one reliance?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00235 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 224
Senator Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That’s what the Court—I think you’re reading from the plurality, the joint opinion in the case.
Senator Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. That is correct.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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 thenSenator 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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00236 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 225 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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00237 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 226 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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00238 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 227 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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. If you can, answer my question yes or no.
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00239 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 228 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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. But do you believe then that the Federal Court should become involved in end-of-life decisions? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00240 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 229
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Let me ask it another way. Do you believe that the Court should have a limited role in that situation?
John G. Roberts, Jr.
Nominee
(R)
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 Dianne Feinstein (CA)
Senator
(D)
Senator FEINSTEIN. Thank you, Mr. Chairman. Thank you.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Senator.
Senator Arlen Specter (PA)
Chairman
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection it will be made a part of the record. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00241 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 230
Senator Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes, that was the court of appeals position.
Senator Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Jeff Sessions (AL)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00242 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 231 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well—
Senator Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. I did not want to ask you, but go ahead.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No. I don’t—
Senator Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. If I say the—
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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 AfricanAmerican officeholders than any other State in America, and we VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00243 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 232 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Absolutely.
Senator Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00244 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 233
Senator Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That’s what I was always looking for when I was a lawyer, Senator, yes.
Senator Jeff Sessions (AL)
Senator
(R)
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?
Senator Arlen Specter (PA)
Chairman
(R)
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 Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. I would be pleased if the Chairman—do you know what my time is now? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00245 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 234
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. You can run the red to—well, it just went off.
Senator Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. This is like a football referee, put so much time back on the clock. It says a minute left. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. You can run the red till 7 minutes and 30 seconds.
Senator Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. All right, very good. [Laughter.] Senator SESSIONS. Who am I to disagree with the Chairman?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator Sessions, if you would—
Senator Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. I will have 15 minutes after this?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. You have 15 minutes left, yes. Start the clock back at 15 minutes.
Senator Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. So you review that, and then you frequently set the case, or normally set the case for oral argument.
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00246 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 235 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 Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00247 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 236 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 Jeff Sessions (AL)
Senator
(R)
Senator SESSIONS. But at some point you agree to sign on an opinion, one way or the other.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Right.
Senator Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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.] VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00248 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 237 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That’s what I understood my testimony to be, yes, Senator.
Senator Jeff Sessions (AL)
Senator
(R)
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—
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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 freeVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00249 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 238 ing 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?
John G. Roberts, Jr.
Nominee
(R)
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 Jeff Sessions (AL)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Jeff Sessions (AL)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00250 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 239 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 Patrick Leahy (VT)
Senator
(D)
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?
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. I consulted with Senator Leahy, Judge Roberts, and the empirical evidence is overwhelming, without consultation, that you are fit to go indefinitely.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I’m ready to go.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Is that judgment satisfactory to you—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Absolutely.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER.—Judge Roberts? Senator Feingold?
Senator Russ Feingold (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00251 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 240 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 Russ Feingold (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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— VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00252 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 241
Senator Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD. But at what point did you start thinking about the implications of this in terms of civil liberties and the challenges—
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD. Did you recognize at that moment that this might become a time when it would be harder to protect civil liberties?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD.—with Plessy v. Ferguson and Dred Scott and others. Is that a fair characterization of your view—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD.—of Korematsu?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00253 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 242
Senator Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00254 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 243 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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00255 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 244
Senator Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, certainly—
Senator Russ Feingold (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00256 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 245
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator—
Senator Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD.—came to your attention?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD. Even when it first came to your attention?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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 VotVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00257 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 246 ing 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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD. Do you still believe that the intent test was the more appropriate standard by which to evaluate vote dilution claims?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00258 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 247 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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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 enforceVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00259 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 248 ment, 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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00260 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 249 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?
John G. Roberts, Jr.
Nominee
(R)
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 Russ Feingold (WI)
Senator
(D)
Senator FEINGOLD. Thank you for your answers, Judge Roberts.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Feingold. Senator Graham?
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Thank you, Mr. Chairman. I imagine the reason that you argue different positions is because people paid you, is that correct?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That’s how I made my living, Senator.
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Sometimes it’s easier than others.
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Yes.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. And sometimes it’s hard to read the tea leaves.
Senator Lindsey Graham (SC)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00261 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 250 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. He is certainly someone from whom I learned a great deal, yes.
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. I am asking you.
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Do you share that view?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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, VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00262 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 251 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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. The idea of a dramatic departure under your watch from the Rehnquist era is probably not going to happen, is that true?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Does that term make you feel uncomfortable?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No.
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. When it comes to the law, what does the term ‘‘Reagan revolution’’ mean to you?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Does it also mean that when you talk about affirmative action and you set up a quota system, that is not right?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. President Reagan’s policy was opposed to quotas, which were much more rigid at the time. People need to apVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00263 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 252 preciate, 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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. The proposal was to extend it for the longest period in history without change.
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Section 2.
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. So between Dole, Senator Kennedy and President Reagan, a new test was called the ‘‘Totality of the Circumstances?’’
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Do you think you are more conservative than he is?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I don’t know. I mean I wouldn’t—
Senator Lindsey Graham (SC)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00264 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 253 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well— [Laughter.] Judge ROBERTS. We had the Flag Protection Act after the Supreme Court concluded that it was protected speech.
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Show me where the term ‘‘symbolic speech’’ is in the Constitution.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, it’s not, and—
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That’s something it’s probably inappropriate for me to comment on.
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. What do you think Ronald Reagan thought about that?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. His view was that voluntary school prayer was appropriate.
Senator Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Why are judges more capable of protecting or talking about the unborn than elected officials?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I have seen some things, yes.
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. How does that make you feel?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. How does it make your family feel?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. They’re—I would say they get upset about some of the things, as well—
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. But you know it is a free country and that is just the way it is, right? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00265 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 254
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Do you believe it is being eroded? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00266 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 255
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Certainly.
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. In the conservative world, how does that rank on the food chain? [Laughter.]
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. It might make it a little harder. [Laughter.]
Senator Lindsey Graham (SC)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00267 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 256 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?
John G. Roberts, Jr.
Nominee
(R)
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 Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. What would you like history to say about you when it is all said and done?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00268 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 257
Senator Lindsey Graham (SC)
Senator
(R)
Senator GRAHAM. Thank you very much. I have no further questions.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Graham. Senator Schumer?
Senator Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Oh, it’s not an analysis—
Senator Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00269 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 258 decisions can be criticized, but attacking the judges I think is not appropriate.
Senator Chuck Schumer (NY)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00270 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 259 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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Chuck Schumer (NY)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Chuck Schumer (NY)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 danVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00271 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 260 ger 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 Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator SCHUMER. You don’t regret using that term? Could you think that some people might find it offensive?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00272 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 261 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Senator, I think some 80,000 pages have been released of memoranda that I wrote—
Senator Chuck Schumer (NY)
Senator
(D)
Senator SCHUMER. You can just pick one or two.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00273 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 262 1965 and 1964 that you talked about previously, are based on the Commerce Clause, not necessarily on Wickard.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No, not on Wickard.
Senator Chuck Schumer (NY)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Senator—
Senator Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00274 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 263 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 Chuck Schumer (NY)
Senator
(D)
Senator SCHUMER. Or Griswold?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. And I’m not expressing—
Senator Chuck Schumer (NY)
Senator
(D)
Senator SCHUMER. I understand, but—
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator SCHUMER. I am glad you didn’t do that.
John G. Roberts, Jr.
Nominee
(R)
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— VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00275 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 264
Senator Chuck Schumer (NY)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator SCHUMER. Wasn’t Lawrence an outgrowth of Griswold in terms of what the right of privacy is to consenting adults in their bedroom?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
Senator SCHUMER. Would you different that from Viejo?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Schumer (NY)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00276 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 265 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Schumer. Senator Cornyn?
Senator John Cornyn (TX)
Senator
(R)
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—
Senator Arlen Specter (PA)
Chairman
(R)
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 John Cornyn (TX)
Senator
(R)
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 imporVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00277 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 266 tant. 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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00278 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 267 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.
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00279 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 268 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?
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00280 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 269
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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 openminded, 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?
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
Senator CORNYN. Those are almost fighting words. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00281 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 270
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
Senator CORNYN. I can—excuse me. I did not mean to interrupt you.
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00282 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 271 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 John Cornyn (TX)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 John Cornyn (TX)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00283 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.0 1 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 272 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 John Cornyn (TX)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Cornyn. Senator Durbin?
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I thank you, too. [Laughter.]
Senator Dick Durbin (IL)
Senator
(D)
Senator DURBIN. Thank you, Mr. Chairman. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00284 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 273 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes, Senator, I did.
Senator Dick Durbin (IL)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00285 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 274 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.
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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 conVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00286 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 275 servative colleagues and advocated a position that was more favorable to victims of discrimination or the disadvantaged?
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No, Senator.
Senator Dick Durbin (IL)
Senator
(D)
Senator DURBIN. You were not?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I was not involved in the policy because of the bar on the participation.
Senator Dick Durbin (IL)
Senator
(D)
Senator DURBIN. There appears to be another memo which I am going to send to you dated September 29, 1982, with your handVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00287 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 276 writing 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—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator Durbin, may we have the numbers there? The staff needs those in order to put the document into the record.
Senator Dick Durbin (IL)
Senator
(D)
Senator DURBIN. Sure. I would be happy to. This is dated September 29, 1982.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. And it has a number on it?
Senator Dick Durbin (IL)
Senator
(D)
Senator DURBIN. No number, but we will give you a copy.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Okay. Thank you.
Senator Dick Durbin (IL)
Senator
(D)
Senator DURBIN. We will share it with the Judge. I want you to have it; this is not a surprise.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Sure.
Senator Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Dick Durbin (IL)
Senator
(D)
Senator DURBIN. You served in the Justice Department with her?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Right.
Senator Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
Senator DURBIN. Thank you. Let me move to another topic—
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I am sorry, Senator. I didn’t hear the answer.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. The answer is, no, I don’t think it was the correct position to take.
Senator Dick Durbin (IL)
Senator
(D)
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 coauthored 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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00288 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 277
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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.’’ VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00289 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 278 Do you feel that you are reading the Establishment Clause from a narrow point of view or from the traditional Lemon point of view?
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I don’t think I’ve said that.
Senator Dick Durbin (IL)
Senator
(D)
Senator 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?
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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 obVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00290 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 279 viously 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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00291 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 280 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 Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Dick Durbin (IL)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00292 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 281
Senator Dick Durbin (IL)
Senator
(D)
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 middletier 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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00293 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC 282 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 Dick Durbin (IL)
Senator
(D)
Senator DURBIN. Judge Roberts, thank you today for your patience with the Committee and your responses to my questions.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Senator.
Senator Dick Durbin (IL)
Senator
(D)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.] VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00294 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.001 SJUD4 PsN: CMORC -283 NOMINATION OF JOHN G. ROBERTS, JR., OF MARYLAND, TO BE CHIEF JUSTICE OF THE UNITED STATES 38609 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 Sam Brownback (KS)
Senator
(R)
Senator BROWNBACK. Thank you very much, Mr. Chairman, and I welcome you, Judge Roberts, Mrs. Roberts.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Good morning.
Senator Sam Brownback (KS)
Senator
(R)
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 comVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00295 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 284 mented 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Well, Senator Brownback, being a Kansan yourself, you know where that stamina came from, because I am a Kansan myself.
Senator Sam Brownback (KS)
Senator
(R)
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 ecoVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00296 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 285 nomic 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?
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
Senator BROWNBACK. And we are considering it here in the Congress.
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00297 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 286 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 Sam Brownback (KS)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
Senator BROWNBACK. I take it you are not going to respond whether or not that right exists under the Constitution.
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00298 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 287 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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00299 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 288 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 Sam Brownback (KS)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
Senator BROWNBACK. Then what check is there on the Court’s power?
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00300 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 289 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?
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00301 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 290 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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00302 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 291 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 Orrin Hatch (UT)
Senator
(R)
Senator HATCH. This doesn’t have to get personal. [Laughter.]
Senator Sam Brownback (KS)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00303 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 292 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?
John G. Roberts, Jr.
Nominee
(R)
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 Sam Brownback (KS)
Senator
(R)
Senator BROWNBACK. God bless you, your service to the country, and your family. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
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 Tom Coburn (OK)
Senator
(R)
Senator COBURN. Thank you, Mr. Chairman, and again, welcome. Good morning.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Good morning.
Senator Tom Coburn (OK)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00304 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 293 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?
John G. Roberts, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
Senator COBURN. Can the American people count on you to not use foreign precedent in your decision making on the Supreme Court?
John G. Roberts, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00305 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 294 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?
John G. Roberts, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
Senator COBURN. And you would agree, we could do a better job? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00306 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 295
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I’m sure everyone is doing as good a job as they can—
Senator Tom Coburn (OK)
Senator
(R)
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 oldtime 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?
John G. Roberts, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
Senator COBURN. Right. I am not asking you about legal significance. Would you agree that the opposite of being dead is being alive?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes. Again— [Laughter.] Judge ROBERTS. I don’t mean to be overly cautious in answering—
Senator Tom Coburn (OK)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, so ordered.
Senator Tom Coburn (OK)
Senator
(R)
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 perVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00307 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 296 forming 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Tom Coburn (OK)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Tom Coburn (OK)
Senator
(R)
Senator COBURN. You did not write an opinion on that case, is that correct?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I joined Judge Randolph’s opinion.
Senator Tom Coburn (OK)
Senator
(R)
Senator COBURN. Right, but you did not write a separate opinion on that case?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No.
Senator Tom Coburn (OK)
Senator
(R)
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—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, it will be made a part of the record.
Senator Tom Coburn (OK)
Senator
(R)
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 deVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00308 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 297 tail 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?
John G. Roberts, Jr.
Nominee
(R)
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 Tom Coburn (OK)
Senator
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00309 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 298 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?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00310 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 299 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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I don’t think it’s appropriate—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. In your particular case, maybe yours is, but—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No, no. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00311 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 300 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—
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Mr. Chairman, I don’t want to comment on the correctness of incorrectness of a particular decision. What I will say—
Senator Arlen Specter (PA)
Chairman
(R)
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—
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00312 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 301 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.
Senator Arlen Specter (PA)
Chairman
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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—
Senator Arlen Specter (PA)
Chairman
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, and that was Justice Scalia’s position in dissent. He had originally—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Do you agree with Scalia? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00313 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 302
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, again, the congruent and proportional test—
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Do you disagree with Justice Scalia?
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. I would like to hear the answer because that is a question I was going to ask, too.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Well, now we are on Senator Leahy’s time. Go ahead.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Oh, no, we are not on my time. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00314 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 303 [Laughter.] Senator LEAHY. We are not on my time. We are still on yours, Mr. Chairman. But I would like to hear this answer.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. It is permissible to have the answer on the red light, just not the question.
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Judge Roberts.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator Leahy?
Senator Patrick Leahy (VT)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00315 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 304 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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00316 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 305 people in a free society to make a judgment about what their government is up to.
Senator Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I think as a general—
Senator Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Disinfectant.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00317 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 306 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Senator, and this is the basis of the disagreement in Herrera. Herrera was not a case about actual innoVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00318 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 307 cence. It’s a question of whether you’re entitled to bring a new claim—
Senator Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Well, does the—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS.—in prison, let alone executed.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. But does the Constitution permit the execution of an innocent person?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, that’s what the Court held in Herrera—
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Is that your view today?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I was the Deputy Solicitor General on the brief. I didn’t argue the case. The Solicitor General was the counsel VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00319 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 308 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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. You are the client in this case—the Solicitor General is the client, in effect.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No, Senator, I disagree with that.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Okay.
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. Yes, but that is because one more says, okay, we got four—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Right.
Senator Patrick Leahy (VT)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00320 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 309 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 Patrick Leahy (VT)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No, Senator.
Senator Patrick Leahy (VT)
Senator
(D)
Senator LEAHY. What are you saying? How do you feel today? That was 1983. How do you feel now 22 years later?
John G. Roberts, Jr.
Nominee
(R)
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 Patrick Leahy (VT)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Senator.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Leahy. Senator Hatch?
Senator Orrin Hatch (UT)
Senator
(R)
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-SouterThomas-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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00321 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 310 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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00322 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 311 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 Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And reasonable people can differ on some of these issues.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Oh, certainly.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And the Grove City case, you won that case, didn’t you?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. The administration’s position prevailed before the Court.
Senator Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That’s correct, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
Senator HATCH. And, in fact, you are a strong supporter of women’s rights and gender equality?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes, Senator.
Senator Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00323 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 312 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?
John G. Roberts, Jr.
Nominee
(R)
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 Orrin Hatch (UT)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00324 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 313 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Hatch.
Senator Ted Kennedy (MA)
Senator
(D)
Senator Kennedy. Senator KENNEDY. Thank you very much, Mr. Chairman. Good morning, Judge.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Good morning, Senator.
Senator Ted Kennedy (MA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00325 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 314 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I am remembering it from when we addressed this debate 23 years ago, yes.
Senator Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. That was the administration position.
Senator Ted Kennedy (MA)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I certainly remember the provision in the House bill at the time. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00326 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 315
Senator Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00327 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 316
John G. Roberts, Jr.
Nominee
(R)
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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator Kennedy, would you make the memo available to him, please?
Senator Ted Kennedy (MA)
Senator
(D)
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—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Certainly.
Senator Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00328 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 317 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.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Could I move on to the issue of affirmative action?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Certainly.
Senator Ted Kennedy (MA)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00329 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 318 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 Ted Kennedy (MA)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Ted Kennedy (MA)
Senator
(D)
Senator KENNEDY. Thank you very much. My time is up. Thank you, Mr. Chairman.
Senator Arlen Specter (PA)
Chairman
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00330 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 319 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.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00331 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 320 would see, at least in some instances, where it needs to be used, reliability in legislative history.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00332 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 321 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 Chuck Grassley (IA)
Senator
(R)
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.
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00333 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 322 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’’?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00334 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 323
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I don’t remember any, no, Senator.
Senator Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. No, Senator. I have had some whistleblower cases, different aspects I do recall coming up in the Court of ApVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00335 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 324 peals 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 Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Are you against cameras in the courtroom like Justice Rehnquist was?
John G. Roberts, Jr.
Nominee
(R)
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 Chuck Grassley (IA)
Senator
(R)
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.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. I intend to do just that, Senator Grassley, now that I have your support.
Senator Chuck Grassley (IA)
Senator
(R)
Senator GRASSLEY. Thank you.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you, Senator Grassley. Senator Biden?
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Good morning, Judge. How are you?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Good morning, Senator. Fine, thanks.
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I am used to being interrupted before the court, that is for sure, Senator. [Laughter.]
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I’ll try, Senator.
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Yes.
Senator Joe Biden (DE)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00336 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 325 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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Senator, first of all—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I am not asking you to comment on any case.
John G. Roberts, Jr.
Nominee
(R)
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. VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00337 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 326 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 Joe Biden (DE)
Senator
(D)
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.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, and—
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. It is suicide, isn’t it, Judge?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, in that case, it’s the application of the Federal Controlled Substance law.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Right.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00338 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 327
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Well, you did—
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. I think—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Sorry.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, Senator, I can’t answer that question in the abstract because—
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. It is not abstract, that is real.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. That is the question, Judge.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, no.
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. That is what I want to know about because without any knowledge of your understanding of the law, because you VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00339 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 328 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.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00340 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 329 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.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Without objection, they will be made a part of the record.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Senator, could I—
Senator Joe Biden (DE)
Senator
(D)
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?
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thirty-three seconds left. Do you agree with O’Connor then? VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00341 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 330
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Well, I get extra time, you said.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. I know. But I don’t. I’ve got to get it in now. [Laughter.]
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Judge Roberts, when his red light goes on, you will have as much time as you want.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. But which precedent do you agree with? There are competing precedents.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. But that is specific, Judge. The generality was the right to marry. That is the generality.
John G. Roberts, Jr.
Nominee
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. No one is asking for a promise.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Thank you very much, Senator Biden.
Senator Joe Biden (DE)
Senator
(D)
Senator BIDEN. Thank you. Thank you, Judge.
John G. Roberts, Jr.
Nominee
(R)
Judge ROBERTS. Thank you, Senator.
Senator Arlen Specter (PA)
Chairman
(R)
Chairman SPECTER. Senator Kyl?
Senator Jon Kyl (AZ)
Senator
(R)
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 Joe Biden (DE)
Senator
(D)
Senator BIDEN. I bet I am the wise one.
Senator Jon Kyl (AZ)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00342 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 331 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?
John G. Roberts, Jr.
Nominee
(R)
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 conVerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00343 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 332 firmed, 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 Jon Kyl (AZ)
Senator
(R)
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 VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00344 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 333 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.
John G. Roberts, Jr.
Nominee
(R)
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 Jon Kyl (AZ)
Senator
(R)
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, VerDate 0ct 09 2002 10:17 Oct 26, 2005 Jkt 023539 PO 00000 Frm 00345 Fmt 6601 Sfmt 6601 S:\GPO\HEARINGS\23539.002 SJUD4 PsN: CMORC 334 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, fo