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September 13, 2005

John Roberts Confirmation Hearing, Transcript Pt. II

Hatch: OK.

Now, 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've been on this committee during the hearings on nine 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.

And I know you've 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.

Now, this is where I do differ with some of my colleagues. I want to know more about how you get -- or how you intend to get -- to a conclusion, while some appear to only want to know what the conclusion will be, like on issues such as abortion.

Some think that judges exist to defend and promote progress, preserving the gains of the past and bringing us to a better future of equality and justice. Now, that does not sound -- to use a word you have used to describe judges -- very modest to me.

On the other hand, Senator DeWine noted Justice Byron White, appointed by President Kennedy, said that judges decide cases; and I thought that was an important quote yesterday. Yesterday you used the analogy of an umpire who calls balls and strikes but neither pitches or bets. 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 affect 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'd appreciate it.

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 vs. Madison. You know, the Constitution doesn't have any provision that says, when the judges, but the way are to interpret the Constitution and tell us what it means. What it says is that they judges are to decide cases that arise under this Constitution -- this new Constitution -- and under and new laws that the Congress might pass.

And what Chief Justice Marshall explained in Marbury vs. 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.

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.

Hatch: You've explained that it's not the duty of the judiciary to make the law or to execute it, but to interpret it.

Now, I'm not naive. Sometimes interpretation is more of an art than a science. There are those who would label interpretation absolutely anything a judge might do or, two, the text of a statute or the 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.

Now, to me that's 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?

Roberts: I will certainly make every effort to do so, Senator.

I appreciate the point that in some cases the question of whether you're 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 in 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 as 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.

That'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 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's 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 should 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 the 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.

Hatch: Well, all of your experience has been either in the judicial branch, from your service as a clerk to then-Justice Rehnquist and your current role on D.C. Circuit, or in the executive branch, where you worked in the White House Counsel's Office, assistant to the attorney general and deputy solicitor general. In contrast, I would note that Justice Breyer brought to the court his experience as chief counsel to this committee. As many commentators noted 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?

Roberts: Well, I guess the first thing I would say is begin with my opinions as a judge over the past two years on the Court of Appeals. I think they show a healthy regard for the prerogatives of the legislative branch that is appropriate.

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 and arguing the opposite. So I'm familiar with the arguments.

I've 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.

Hatch: Well, you claimed in your questionnaire that judges do not, quote, have a commission to solve society's problems, unquote. I cannot 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?

Roberts: Yes.

Hatch: OK. Let me explore this question of precedent a little bit more with you.

Obviously, the Supreme Court decides cases involving a range of issues and requiring application of different kinds of law, including regulations and statutes as well as the Constitution. All of these cases can set precedents 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.

Now, 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 decicis or precedent is not a command but a policy, and it is a policy that is -- and I am quoting Justice O'Connor here -- quote, at its weakest when we interpret the Constitution, because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions, unquote.

In 1944, Justice Reed wrote for the court, in Smith v. Allwright, quote, In constitutional questions where correction depends upon amendment and not upon legislative action, this court, throughout its history, has freely exercised its power to re-examine the basis of its constitutional decisions, unquote.

Now, Mr. Chairman, I would like to place this list in the record if I can at this point.

Specter: Without objection, so ordered.

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?

Roberts: The court has frequently explained that stare decisis is strongest when you are 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.

Hatch: Do you believe that Congress is just as bound by constitutional limits as state legislatures?

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.

Hatch: Well, 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 disagreed with the court on some of these statutes. The Morrison case is a perfect illustration to me. I'm, 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's judicial activism, while turning a blind eye to the much more common practice of striking down state legislation is just an afterthought.

Now, this argument gets even more complicated when the Supreme Court uses provision actually in the Constitution to strike down that 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 chooses, but they only regulate in those areas which the Constitution grants it power to regulate.

Now, one familiar area is found in Article I, Section 8, which gives the Congress the power to, quote, to regulate commerce among the various states, unquote.

Now, don't get me wrong, I do not necessarily agree with the Supreme Court, as I mentioned in the Morrison case. I don't 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 warned that we are sliding into a constitutional abyss because the court has found just twice in more than 60 years that there is something, anything, that it says the Constitution does not allow Congress to do.

Now, could you comment on the Supreme Court's duty to exercise judicial review regarding Congress and state legislatures and their enactments?

Roberts: 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. I think, as Justice Holmes said, it's 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 a 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, as I would say, it's not judicial activism when the court do that. They may be right or they're wrong. And if they're wrong, they're wrong, but it's not activism.

Hatch: Well, thank you, Judge.

You know, our time is almost gone. We've 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're 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've come out with the highest rating in all areas.

Many people note that you've been at the pinnacle of your profession, one of a handful of Supreme Court specialists and a partner at a very prestigious law firm in Washington, D.C. And yet you have consistently pursued pro bono work; that is, work for free to help people in need in which you use your skill and training and legal talent to help others.

Perhaps that does not fit with the stereotype that some would force upon you, but it is true and it is real and it says a lot about you as a person.

In the few minutes we have left, please describe some of the pro bono work you have done, why those particular projects are important to you and what you believe your efforts accomplished.

The position that you have been nominated for is chief justice of the United States. Do you plan to use that role as a bully pulpit to encourage members of the bar to take seriously their responsibility to undertake pro bono work as you have done throughout your legal career?

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 their benefits cut off. Our position was that the benefits had been cut off in violation of the Constitution, violation of their due process rights to notice in an individualized hearing. These were the neediest people in the district. And we pressed their argument before the court of appeals.

The first case that 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 I said earlier, I regularly handled moot courts for people. I did one for minority plaintiffs in a Voting Rights case our of Louisiana. I did one challenging environmental effects in Glacier Bay and another one in the Grand Canyon. In addition to those actually involved in the 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.

Hatch: Well, thank you. My time is up.

Thanks, Mr. Chairman.

Specter: Thank you, Senator Hatch.

Senator Kennedy?

Kennedy: Thank you, Mr. Chairman.

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 have 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 infirm, and largely African-Americans, who were forced by poverty, illness, unequal opportunity to stay behind and bear the brunt of the storm's winds and floods.

I believe that kind of disparate impact is morally wrong in this, the richest country in the world.

One question we must consider today is how we can take action to unify our nation, heal racial division, end poverty and give real-life meaning to the constitutional mandate that there be equal protection under law.

I believe that the Constitution is not hostile to the idea that national problems can be solved at the national level through the cooperative efforts of the three coequal branches of government, the Congress, the executive and courts.

But not every president, not every legislator and not every judge agrees that the federal government has the power to address and to try to remedy the twin national problems of poverty and access to equal opportunity. I'm not talking about a handout, but a hand up, to give all of our citizens a fair shot at the American dream.

Judge Roberts, today we want to find out how you view the Constitution, 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's 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, 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, Does segregation of children in public schools solely on the basis of race, even though physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities?

So do you agree with the court's conclusion that the segregation of children in public schools solely on the basis of race was unconstitutional?

Roberts: I do.

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?

Roberts: Yes.

Kennedy: And you're aware that the Brown was a unanimous decision?

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 re-argued. He spent a considerable amount of time talking to his colleagues and bringing around to the point where they ended up with unanimous court...

Kennedy: And a lot of work by the plaintiffs, as well.

Roberts: I'm sure.

Kennedy: First in reaching its decision, the court concluded that it must consider public education in the light of its full development and its present place in American life throughout the nation; that is that it must consider the conditions and impact of its decision in the real present-day world.

The court specifically declined to rely on the legislative history of the 14th Amendment. It looked instead to the facts and the situation as they exist 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 Fourteenth Amendment was adopted?

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's been a lost recent academic research into the original intent of the drafters of Fourteenth Amendment. Professor McConnell's piece suggests that it's perfectly consistent the with the conclusion in Brown. And it's also -- 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...

Kennedy: In 1868. That's right.

Roberts: ... as it was at the time of the decision.

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 an opportunity for advancement in society that, 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 it's fair for me to conclude you accept both the holding and the reasoning in the Brown case.

Roberts: Well, the reasoning, though, I think it's important. It is focussed on the effects, yes. But the conclusion was that they didn't care if the effects were equal.

In other words, the genius of the decision was the recognition that the act of separating the students was where the violation was. And it rejected the defense -- certainly, just a theoretical one given the actual record -- that you could have equal facilities and equal treatment.

I think the conclusion, if the record had shown -- which it did not -- if it had shown perfectly equal treatment in the African American school and the white school, that Chief Justice Warren's analysis would be the same because the act of separation is what constituted the discrimination.

Kennedy: If we could move on. Now, the Brown decision was just the beginning of the historic march for progress toward equal rights for all of our citizens.

In the '60s and '70s, we came together as a Congress, Republicans and Democrats alike, and passed the historic civil rights legislation that signed by the president to guarantee equality for all citizens on the basis of race, then on gender, then on disability.

We passed legislation to eliminate the barriers to voting that so many minorities had faced in too many states in the country. We passed legislation that prevented racial discrimination in housing.

Those landmark laws were supported by Republicans and Democrats in Congress and they were signed into law by both Republican and Democratic presidents.

Intelligent and dedicated attorneys in the Justice Department and in the White House and on Capitol Hill devoted their extraordinary talents and imagination and perseverance to making these laws effective.

Every one of the new laws was tested in court, all the way to the Supreme Court.

And I'd like to find out, Judge Roberts, whether you'd agree that the progress we made in civil rights over the past 50 years is irreversible.

I'd 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?

Roberts: I don't think any issue has been raised concerning those.

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.

Kennedy: So I'll assume that you don't feel that there are any doubts on the constitutionality of the '64 act. Do you have any doubts as to the constitutionality of the '65 Voting Rights Act?

Roberts: Well, now, 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' power.

Again, without expressing any views on it, I do know that it's going to be...

Kennedy: Well, that's gone up and down the Supreme Court -- the 1965 act and again the 1982 act extension.

Roberts: Yes, and the issue would be...

Kennedy: I'm just trying to find out, on the Voting Rights Act, whether you have any problem at all and trouble at all in terms of the constitutionality of the existing Voting Rights Act that was extended by the Congress.

Roberts: Oh. Well, the existing Voting Rights Act: the constitutionality has been upheld. And I don't have any issue with that.

Kennedy: OK.

Roberts: There's 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.

Kennedy: But with regards to the act that we passed, the bipartisan act -- I'm going to come back to it -- and about your position on the 1982 act -- I know you had concerns and I'm going to come back to those -- but you're not suggesting that there's any constitutional issue with that.

Roberts: Well, I'm not aware of any constitutional issue that's been raised about it.

Kennedy: All right.

Roberts: Again, I don't want to express conclusions on hypothetical questions, whether as applied in a particular case, where there would be a challenge in that respect. Those cases come up all the time and I do need to avoid expressing an opinion on those issues.

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'm going to come back to it; I know you had some reservations about it, which we will come to -- but that, as I am wondering whether you are hesitant at all in saying that you believe that it's constitutional.

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 Acts. And I don't know what arguments parties will be raising in those cases.

So an abstract question you need to know, obviously, what's the claim, what's the issue, and decide it according to the rule of law.

Kennedy: How about the constitutionality of the '68 fair housing legislation that outlawed racial discrimination in housing?

Roberts: Again, I think -- 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 presented 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.

Kennedy: Well, I was, sort of, inhaling your answer to my friend Orrin Hatch about the power of the legislature and the deference that you're 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's go to the Voting Rights Act. As you know, we've 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.

I'm interested in your views today, let me point out, but because we don't have all the documents that we'd like to have, I'm working with the documents that we do. And I want to go through those, get your reactions and ask your views today. I'm deeply troubled by a 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're a person who's in favor of discrimination. I don't believe that.

I am concerned, however, that at the time you were writing these laws and memoranda and notes, you simply did not grasp the seriousness of the impact of discrimination on our country as a whole.

Let's start with the Voting Rights Act.

Most Americans think that the right to vote is among the most important tools that they have to participate in our democracy. You do agree, don't you, don't you, Judge Roberts, that the right to vote is a fundamental constitutional right?

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.

Kennedy: And you will recall that in the '60s, millions of our fellow citizens denied access to voting booths because of race. And to remedy that injustice, Congress passed the Voting Rights Act of '65 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 provision, 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 II 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, interstate and local processors.

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 II of the Voting Rights Act was, quote, constitutionally suspect and contrary to the most fundamental tenets of the legislative process on which the laws of this country are based.

So 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, in both the House and the Senate, had the extensive hearings. We considered details, 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, James Sensenbrenner voted for the House bill. Dan Quayle was an original Senate co-sponsor of the bill. We held extensive hearings, created a lengthy record. Yet, you thought there was no evidence of voting abuses that would justify the legislation -- your comment.

Do you believe today that we need the 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 that was signed by...

Roberts: Senator, you will recall, at the time -- this was 23 years ago -- I was the 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 preclearance provision, had always had an effects test and that would be continued.

The reference to discrimination nationwide was addressing the particular point that 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...

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. That was the law of the land that court after court decided about the impact of the effects test. The Mobile case changed the Zimmer case.

Roberts: Well, Senator, you disagree...

Kennedy: And what we were...

Specter: Let him finish his answer.

Kennedy: OK. Well, I'd just like to get his -- whether the Zimmer case was not the holding on the rule of the law of the land prior to the Mobile case.

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 against Bolden.

Kennedy: No, that's not what -- I think it was wrong, but I also think the law of the land, decided by the Supreme Court in the Zimmer case, upheld in court after court after court after court, was the effects test.

Roberts: Well, the Supreme Court...

Kennedy: That's...

Specter: Let him finish his answer, Senator Kennedy.

Roberts: The point is -- and, again, this is revisiting a debate that took place 23 years ago...

Kennedy: Well, I'm interested today of your view. Do you support the law that Ronald Reagan signed into law and that was co- sponsored...

Roberts: Certainly.

Kennedy: ... overwhelmingly...

Roberts: Certainly, and the only point I would make -- this was 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 twofold, that those, like President Reagan, like Attorney General Smith, who are advocating an extension of the Voting Rights Act without change, were as fully committed to protecting the right to vote as anyone.

Kennedy: Right. Could I...

Specter: Let him finish his answer, Senator Kennedy.

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.

Kennedy: Well, after President Reagan signed it into law, did you agree with that position of the administration?

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 against 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.

Kennedy: Well, what I'm getting to is, after it was signed into law, overwhelmingly -- overwhelmingly by the House and the Senate -- we have the memoranda that you said the fact we were burned last year -- this is the following year -- we did not -- the fact we were burned last year because we did not sail in with the new voting rights legislation does not mean we'll 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?

Roberts: 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.

Kennedy: The 1988 Housing Fair Housing Act.

Roberts: The administration's proposal was submitted, I believe, months after the date of the memo that you read from.

Kennedy: Let me, if I could, go to the Civil Rights Restoration Act. In 1981, you support an effort by the Department of Education to reverse 17 years of civil right protections at colleges and universities that receive federal funds.

Under the new regulations, the definition of federal assistance to colleges and universities would be narrow 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 regulation 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 nondiscrimination 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, they got the funds through the admission 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, quote -- 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, quote, too onerous for colleges to comply with nondiscrimination laws across the entire university unless it was, quote, 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 or activities?

Roberts: No, Senator, and I did not back then. You have not accurately represented my position.

Kennedy: These are your words.

Specter: Let him finish his answer. That was a quite long question.

Roberts: Senator, you have selected...

Specter: Wait a minute. Wait a minute. Senator Kennedy just propounded a very, very long question.

Now, let him answer the question.

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's 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 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.

Kennedy: Well, you're familiar -- I have the memo here. I have 22 seconds left. Your quote of 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, the tuition and the loans and the grants are going to be sufficient to trigger all of the civil rights laws, your memoranda 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's your memorandum.

Roberts: Well, Senator, again, the administration policy was as I articulated it. And it was my job to articulate the administration policy.

Kennedy: My time is up, Mr. Chairman.

Specter: Thank you very much, Senator Kennedy.

This is a good time for a 15-minute break.

...

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 to 12:45, and we will then break for lunch.

Both Republicans and Democrats have their policy luncheons and so we will then reconvene after lunch until 2:15. And I have been asked how late we're going to go. Let's see how it feels. We want to move ahead with the hearings, but we don't want to wear everybody out.

Senator Grassley?

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'm impressed by your record, your public service. 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 two 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're 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've 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'm 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 don't involve cases coming before the Supreme Court. And maybe on administering that branch of government, you could be a little more concrete on what you support and don't support.

And, of course, lastly, I appreciate your candor and thoughtfulness. Our conversation now will not only tell us more about your judicial methods but will also, I hope, educate the public on the proper role of a judge in our democratic society.

Most people who will be following these hearings will be, like me, a non-lawyer. And I think it's important that the bulk of our society, particularly those who aren't 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 branch with individuals who will be fair, who will be unbiased, will be devoted to addressing facts and the law before them without imposing their own values and political beliefs fain reaching a decision.

You made clear that you agree with that. I'm 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 No. 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 exercise will, instead of judgment, the consequences would be the substitution of their pleasure for that of the legislative body.

I think 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'm 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 of a quote from 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 goodness. He is not to yield to spasmodic sentiment, to vague or unrated benevolence. He is to exercise 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?

Roberts: I know I agree with it. Now let me figure out what he meant by it.

(LAUGHTER)

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 were -- 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 is 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 a law -- in interpreting the law. They were 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's what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.

And then their job is interpreting the law. It is not making the law.

And so long as they are being confined by the laws, by the Constitution, by the precedents, then you're more comfortable that you're exercising the judicial function.

It's when you're at sea and you don't have anything to look to that you need to begin to worry that this isn't what judges are supposed to do.

Grassley: Well, is there any room in constitutional interpretation for the judge's own values or beliefs?

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, judges wear black robes because it doesn't mater 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.

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.

Do you agree with this role of the court?

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 in 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, changed the course of American history.

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?

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 the 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 and 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.

Grassley: Judge Roberts, during the Souter nomination, I questioned -- and I did not go back and check the records just to see exactly what I said -- but I questioned, in some way, about how he would interpret statutory law.

Justice Souter responded to some of my questions by talking about vacuums in the law, specifically that the courts -- and these are his words -- fill vacuums that are maybe left by Congress.

This concept was troubling to me then and remains so today. If Justice Souter is listening, I would like to say to him: Well, you now, maybe Congress intended to leave some vacuums.

(LAUGHTER)

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 activists in that courts will be deciding how to fill in generalities and resolve contradictions in law?

Roberts: Well, I don't want to directly comment on what Justice Souter said. He is either going to be a colleague or continue to be one of my bosses.

(LAUGHTER)

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 it's 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. 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.

Posted by Jeff at September 13, 2005 12:23 PM

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