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September 13, 2005

John Roberts Confirmation Hearing, Transcript Pt. IV

Schumer (continued): 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's 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's not the only way, but it's 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 precedents 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 every questioned their fitness to hear cases on issues raised during confirmation hearings.

So I hope you'll decide to answer questions about decided cases, which so many other nominees have done.

If you refuse to talk about already decided cases, the burden, sir, is on you, one of the most preeminent litigators in America, to figure out a way, in plain English, to help us determine whether you'll be a conservative but mainstream conservative chief justice or an ideologue.

Let me be clear: I know you're a conservative. I don't 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've 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 that we don't?

Judge Roberts, if you want my vote, you need to meet two criteria.

First, you need to answer 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're a jurist in the broad mainstream, I'll 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, above board; one that not only brings dignity but, even more importantly, information about Judge Roberts' views and ideology to the American people. I, along with all of America, look forward to hearing your testimony.

Specter: Thank you, Senator Schumer.

Senator Cornyn?

Cornyn: Thank you, Mr. Chairman.

Judge Roberts, let me also join in extending a warm welcome to you and your family of 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's 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 two 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 it each new nomination to the court brings an element of drama somewhat akin to an election.

Indeed, we've seen special interest groups raising money, running television advertisements and even trying to coerce you into stating your opinion on hot-button issues that are likely to come before you as a judge, as if this were an election.

But, of course, this is not an election. And no reasonable person expects you to make promises to politicians about how you're likely to rule on the issues when they come before the court as a condition of confirmation.

Still, some in our country have lost sight of the proper 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. It's 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 upheld 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 schoolchildren the right to recite the Pledge of Allegiance because it contains the words, One nation, under God.

A majority of the court refused to agree that the pledge was constitutional, leaving this time-honored tradition of schoolchildren 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're curious doesn't 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're confirmed to the Supreme Court.

It boils down to a question of impartiality and fairness. One characteristic of a good judge 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've heard already, one of the last Supreme Court justices confirmed by the Senate, noted not too long ago, In accord with long-standing 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.

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 can't answer. They'll try to entice you to abandon the rules of ethics and the long tradition described by Justice Ginsburg.

But that should not concern you, Judge Roberts. Don't take the bait. Do not head down that road, but do exactly what every nominee of every Republican president and every Democrat 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'm 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.

Specter: Thank you, Senator Cornyn.

Senator Durbin?

Durbin: Thank you, Mr. Chairman.

Judge Roberts, welcome to you, 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. That's the judgment of history. And that judgment is likely to revolve around one question: Did you restrict freedom or did you 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're confirmed, you will 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 life-long Republican.

Fifty years ago, following the arrest of Rosa Parks, Judge Johnson ruled that African-Americans of Montgomery, Alabama, were acting within their constitutional rights when they organized a boycott of the buses and that Martin Luther King Jr. and others could march from Selma to Montgomery. As a result of those decisions, the Ku Klux Klan branded Johnson the most hated man in America. Wooden crosses were burned on his lawn. He received so many death threats that his family was under constant federal protection from 1961 to 1975.

Judge Frank Johnson was denounced as a judicial activist and threatened with impeachment.

He had the courage to expand freedom in America.

Judge Roberts, I hope that you agree America must never return to those days of discrimination and limitations on our freedom.

Now, some of the memos you wrote that I talked to you about in my office many, many years ago in the Reagan administration have raised some serious concerns about where you stand on civil rights, on women's rights, concerns that have led some of the most respected civil rights groups in America to openly oppose your nomination.

So it's 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 can't 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 wrote as deputy solicitor general denied 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've 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's 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 disagree 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's what you believe.

We also need to hear your views on another basic issue and that is the view on executive power. They don't teach this subject much in law school. It's not tested on any bar exam. It's not been a major focus in many Supreme Court hearings, yet it is very important today.

Some aspects of your record, 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's usually been up to the task but sometimes it's failed such as in the notorious Korematsu decision.

We're 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're confirmed.

We also need to know what you think about religious liberty. Over the past few decades, the Supreme Court has maintained a delicate yet what I believe proper balance between church and state. Justice Sandra Day O'Connor said it so well in the recent Ten Commandments decision.

And I quote, At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. Our regard for constitutional boundaries has protected us from similar travails while allowing private religious exercise to flourish.

Those who would renegotiate the boundaries between church and state must 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'm 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 thing of a lifetime appointment before the Supreme Court or do we have the burden to prove that President Bush was wrong in selecting you?

Your position as Supreme Court justice, 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'd like to say that 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's a federal judge in Chicago and I was honored to nominate 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, quote, 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, your accomplished career, and I look forward to these hearings to give you your chance in the next several days, not to rely on 20-year-old memos or innuendoes 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'm afraid the results will not be as positive. I certainly hope that they will be positive.

Thank you.

Specter: Thank you, Senator Durbin.

I recognize now Senator Brownback and also recognize today is his birthday.

(APPLAUSE)

Brownback: Thank you very much. And this is certainly a long way to spend it. It's seeming like a long birthday.

Thank you.

Judge Roberts, as one of my colleagues was just saying, I hope we're done before my birthday ends. I welcome you to the court. Delighted to have you here, you and your family. I want to congratulate you on your lifetime of service thus far and looking forward to future service that you'll have for this great land.

I recall the meeting that you and I had in my office, as many of the members have here have as well, and enjoyed them. You said two things in there that I particularly took away and hung on as an indicator of yourself and how you would look at the courts and also what America needed from our courts.

One of the statements was that we need a more modest court. And I looked at that and I thought that's exactly, I think, the way the American people would look at the situation today.

We need a more modest court, a court that's a court but not a super-legislature, as you've heard others refer to, or is in a different role, but is a court.

And that's what it needs to be and that's what we need to have: one 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 nation that is a rule-of-law nation.

You had a second point that was very apt, I thought, when you talked about the courts and baseball. You drew the analogy of those two together, which was apt, I thought. And you said it's a bad thing when the umpire is the most watched person on the field.

And I guess that appealed to me as well from the standpoint of where we are today's American governance, where the legislature can pass the bill, the executive can sign it, but everybody waits and holds their breath until how the court is going to look at this and how it's going to interpret it, because it seems as if the court is the real mover of what the actual law is. And that's a bad thing. The umpire should call the ball fair or foul -- it's in or it's out -- but not get actively involved as a player on the field.

And, unfortunately, we've gotten to a point today where in many respects the judiciary is the most active policy player on the field.

I was struck by your nomination and what you said when you were nominated that you, quote, had a profound appreciation for the role of the court in our constitutional democracy.

And that's 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, in quoting Marbury v. Madison.

The narrow scope of judicial power was the reason the people accepted the idea that the federal courts could have the power of judicial review; that is, the ability to decide whether a challenged law comports with the Constitution.

The people believe 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 Franklin Delano Roosevelt. And 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. And history teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primarily 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.

Just listen to some of them.

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 in 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 time, nearly 40 million children have been aborted in America, 40 million lives that could be amongst us but are not, beautiful, innocent faces that could bless our existence and our families and our nation, creating and expanding a culture of life.

If you're 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.

The principle of stare decisis will be involved. The Supreme Court frequently has overruled prior precedents, I would note. A case founded in my state, Brown v. the Board of Education, which overruled Plessy v. Ferguson, fits within a broad pattern -- evidenced since the founding of the Supreme Court, revising previous decisions.

I would note for you that, by some measure, the Supreme Court has overruled itself in 174 cases, with a substantial majority of those cases involving constitutional, not statutory, issues.

One final thought. In a just and healthy society, both righteousness and justice travel together. Righteousness, the knowledge of right and wrong, good and evil, that's something that's that's written within 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's 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 others.

We arrived at an important moment with your nomination to serve as chief justice of the United States. Quite a title.

Will you serve, as Hamilton assured the people, by exercising judgment rather than will?

By review of your many legal writings over the past quarter century, it 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.

Specter: Thank you, Senator Brownback.

Senator Coburn?

Coburn: Thank you, Senator.

First of all, I'd 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's entering his fifth decade, so he can catch up with the rest of us.

And, finally, I'm 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 nonlawyers on this panel, I find it somewhat amusing that we can predict that without a history of physical exam or a family history. But we'll let that pass.

I am a physician. And up until the end of this month, and hopefully after that, I'll continue to practice. This weekend I had the great fortunate of delivering two little girls.

And I've 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.

And 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 has 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're on one side or the other, it's a tension pulling us apart rather than a tension pulling us together.

I believe we've 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's time that that stopped and a limited role for the Supreme Court -- and I think we're willing to debate as a country what judicial activism is. But we're 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'm deeply heartened in that I've read many statements that you've made. I believe you indicate a more proper role for that of the judiciary.

And I believe, in our discussions, super-legislation -- 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 borne 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's not competing ideologies. It's 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 can be taken away by a state or a court.

Our Constitution enshrines this idea and gives its meaning in the rule of law. That's why it's 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 toward reconciliation in our country.

I want one America.

An America that continues to be divided is an America that is at risk.

Our country waits for its leaders at all levels to rise to the occasion of rebuilding our future by placing our political fortunes last and constitutional principles first and working diligently to reconcile each and every American to the freedom and responsibility that our republic demands.

May God bless our efforts.

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' opening statement.

Welcome, Senator Lugar, as the senior presenter, elected in 1976, Indiana's senior senator.

We have allotted five minutes each to the presenters.

And, Senator Lugar, you are now recognized.

Lugar: Mr. Chairman, let me first ask that a copy of my full statement appear in the committee record.

Specter: Without objection, your full statement will be made a part of the record.

Lugar: Thank you, Mr. Chairman.

It's a genuine privilege and pleasure to appear before you, Senator Leahy and my other distinguished colleagues who serve on this important committee.

I'm 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 D. Roberts Jr.

Judge Roberts was born in Buffalo, New York, but moved at age 8 to Indiana. The Roberts 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, 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 supremely 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 prevailed throughout most of our history, my remarks could appropriately end at this point, and the committee and the Senate as a whole should proceed to consider Judge Roberts' 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 a 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's important we write that history well. Today's Supreme Court regularly faces issues of enormous public import and attendant controversy. Many are deeply decisive, with well-funded, well- organized advocacy groups passionately committed to one or the other side and for whom the central, well-nigh exclusive focus is who wins. Media coverage in 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 that animated those who crafted our Constitution.

The founders were at pains to emphasize the difference between the political branches, the executive and the legislative, and the judiciary. They were concerned about the potential dangers if 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 substantive debate and vote on the floor will be Judge Roberts and his qualifications.

But another focus will be whether the Senate, in discharging the solemn advice-and-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, whom I believe will prove to be an outstanding chief justice of the United States Supreme Court.

I thank you very much.

Specter: Thank you very much, Senator Lugar.

We now turn to Senator Bayh, elected in 1998, previously governor of Indiana.

Senator Bayh?

Bayh: Thank you very much, Chairman Specter, Senator Leahy, members of the Judiciary Committee.

There isn't nearly enough civility in Washington today. And so when I was asked to uphold long-standing and bipartisan traditions 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 should determine the result of the confirmation process.

As a fellow Hoosier, I'm 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.

Specter: Thank you very much, Senator Bayh.

Senator Warner, welcome back.

When you were here earlier this morning, I said you'd be recognized at about 3:20. I want to apologize for being two minutes off.

Warner: It's all right, Mr. Chairman. I'll take till (inaudible) to finish my statement and you yield back your time to me.

Specter: Your full statement will be made a part of the record, Senator Warner.

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 the institution, in 218 years since the Constitution was ratified, we've had 43 presidents, and this is the 17th chief justice.

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.

And I'm absolutely confident that this distinguished committee, before whom I've appeared many, many times in these years, will comport yourself 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 for 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 dustbin of history. Little wonder that why so many other nations are forming their governments today, patterning their government on ours.

But only if 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 2.

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 and nomination 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've applied to all others. Since I've 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 two years ago, when nominated to serve in the Court of Appeals for the District of Columbia, I was privileged at his request to introduce him. At the time, he was relatively unknown; today, the world knows him.

We were brought together because we were both fortunate to have been partners at different times in our careers at the law firm of Hogan Hartson, a venerable firm known for its integrity and rigid adherence to ethics. Among the firm's many salutary credentials, it has been long known for its pro bono work. In fact, I'll share a personal story.

In 1960, I was an assistant U.S. attorney. Been there about four 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 defense.

That man was Nelson T. 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 didn't have to do any of it, the bar doesn't require it, but he did it out of the graciousness of his heart and an 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, 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 that 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, 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 Supreme Court who must have his hand firmly on the tiler 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'm the last. You're on your own.

(LAUGHTER)

Specter: Thank you, Senator Warner.

Thank you, Senator Lugar.

Thank you, Senator Bayh.

Judge Roberts, if you'd 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 -- well, five 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, and they've asked me to do this slowly, because this is their one photo op.

Do you solemnly swear that the testimony you will give before this Committee on the Judiciary of the United States Senate will be the truth, the whole truth and nothing but the truth, so help you God?

Roberts: I do.

Specter: Thank you. And you may be seated.

Now, Judge Roberts, we compliment you on your patience of listening to 21 speeches. And the floor is now yours.

Roberts: Thank you very much, Mr. Chairman, Senator Leahy, and members of the committee.

Let me begin by thank 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'm 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've extended to me and my family over the past eight weeks.

I'm 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.

He chafed at the limitations they tried to impose.

His dedication to duty over the past year was an inspiration to me and, I know, to many others.

I will miss him.

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice, in the office of the solicitor general, it was my job to argue cases for the United States before the Supreme court.

I always found it very moving to stand before the justices and say, I speak for my country.

But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court and 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 home 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.

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.

Posted by Jeff at 12:35 PM | Comments (1)

John Roberts Confirmation Hearing, Transcript Pt. III

Grassley: In your questionnaire to the committee, you stated that, quote, Precedent plays an important role in promoting stability of the legal system, end of quote. I think we would all agree.

You also said that a judge operates within, quote, system of rules developed over the years by other judges equally striving to live up to their judicial oath, end of quote.

It's also true that Justice Frankfurter explained, as he explained, that, quote, 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've referred to it, the Brown case, which overruled separate but equal precedent that stood for 58 years.

So, Judge Roberts, I'd 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 -- and I'm going to quote here from his first inaugural. Quote: 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. End of quote.

Roberts: Well, President Lincoln, of course, was referring to one of the -- perhaps the most egregious example 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.

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'd 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?

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 a particular instance, and others that you shouldn't.

You begin with a basis 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, to 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 precedent have been eroded -- in other words, if the court decides a cases saying, Because of these three precedents, we reach this result, and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent. At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent.

It is a jolt to the legal system to overrule a precedent and that has to be taken into account as well the different expectations that have grown up around it.

There are different other aspects of the rules. For example, property decisions are afar 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, Payne v. Tennessee, 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.

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, whether it should be overruled?

Roberts: Well, again, you would start the precedent of the court on that decision. In other words, if you think that 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, Payne 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 an overrule.

Grassley: In your confirmation for the D.C. Circuit, you answered a question asking whether -- by another member -- whether you supported the originalist approach to constitutional interpretation by saying this, so I hope I'm 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 hue 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, end of quote.

Could you explain what approaches you're talking about? I'm not sure, in your quote, what you're getting at. Secondly, can you give some examples? And three, I would like to know when you don't believe that the originalist approach is the right approach.

Roberts: Well, I think it's very important to define these terms. Let's take the originalist approach. I do think 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 of, in particular, the Fourth 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 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 texturalist approach makes the most sense. Obviously -- the example I gave earlier -- two- thirds means two-thirds. You don't say, Well, their purpose was to apply some super-majority requirement and now that we have more senators, three-fifths will give effect to that intent. Nobody would apply that approach. You stick to the language.

In other areas, the court's precedents dictate the approach. This is not something that is purely a matter of academic exercise. For example, on the Seventh Amendment, the right to a jury trial, the court has been very specific. We have a historical approach there.

The job of a judge is to look at whatever action is and try to analogize it: What would that most be 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.

Grassley: I'm 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, end of quote. Can you tell us what your position was in this memo?

And, Mr. Chairman, I'd like to have this entire memo submitted for the record.

Specter: Without objection, it will be admitted as part of our record.

Roberts: The issue was 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 received 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 the receipt of financial aid was appropriate.

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...

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 had taken in light of the new legislation.

Grassley: Some outside groups have claimed that you're 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'd like for you to set the record straight.

As you may know, I've 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've referred to. The Voting Rights Act has had 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 courts 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?

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 against 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 preclearance 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, 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.

Grassley: My time's just about out, so I'll 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?

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, and particularly the Voting Rights Act, as vigorously as possible. And that's what we did.

Grassley: Thank you.

Specter: Thank you, Senator Grassley.

Senator Biden?

Biden: Thank you very much.

Hey, Judge, how are you?

Roberts: Fine, thank you.

Biden: You know, to continue your baseball analogy, I'd much rather be pitching to Arthur Branch, sitting behind you there, on Law and Order, than you. It's like pitching to Ken Griffey. I mean, you know, I'm a little concerned here that -- I'd like you to switch places with Thompson. I know I know as much as he does. I don't know about you.

(LAUGHTER)

Judge, look, I want 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're there for life. They don't get to -- this is the democratic moment. They don't get a chance to say, You know, I wish I'd known that about that guy. I would have picked up the phone and called my senator sand said, 'Vote no,' or, 'vote yes.' Whichever.

And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: baseball. By the way, to continue that metaphor, you hit a home run yesterday. I mean, everybody -- I got home and I got on the train and people saying, Oh, he likes baseball, huh? Seriously. The conductors, people on the train. And it's an apt metaphor, because you just call balls and strikes, call them as you see them, straight up.

But as you well know, I'd 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 two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges (ph) 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 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 defines 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. The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?

So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?

Your strike zone on reasonable/unreasonable may be very different than 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're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment.

It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're 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's a strike zone.

So, as Chris Matthews said, Let's play baseball here. And it's a little dangerous to play baseball 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's nothing anyone would expect 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 we've got to make it require 75 votes in the Senate.

You can't do that.

But again, as Justice Marshall said -- and I quoted him yesterday -- he said that Marshall's prescription that the Constitution endure through the ages -- I might add, without having to be amended over and over and over and over again -- after the first 10 amendments, we haven't done this very much in the last 230 years.

So many of the Constitution's most important provisions aren't the precise rules that I've referenced earlier.

And sometimes the principles everyone agrees are part of the Constitution or as the late chief justice -- your mentor -- said, quote, tacit postulates. He used that, as you know, in a case just before you got there, in Nevada v. Hall.

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 was about -- the case is not particularly relevant, but the point is, I think -- Chief Justice Rehnquist made this vital point and it was about state's right and language that didn't speak directly to them in the Constitution.

And he concluded that the answer was a rule he was able to infer from the overall constitutional plan.

So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.

So I want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. And I want to use the Ginsburg rule. I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: Judge, you don't have to 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.

Specter: Without objection, it will be made part of the record.

Biden: I thank you very much.

Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said 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 Fourteenth Amendment?

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 Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.

Biden: Do you think there's a liberty right of privacy that extends to women in the Constitution?

Roberts: Certainly.

Biden: In the Fourteenth amendment?

Roberts: Certainly.

Biden: Now, I assumed you would answer it that way.

Let me suggest also that I asked -- I'm 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, a state passed a law prohibiting abortion.

And she said, That's a foul ball.

They can't do that.

Let me quote her. She said, in response to Senator -- I was going to say Brownback -- Senator Brown, when he was here, when she was up, of Colorado. She said, quote, Abortion prohibition by a 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?

Roberts: Well, that is in an area where I think I should not respond because...

Biden: Why? You said you'd abide by the Ginsburg rule?

Roberts: Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings. She had 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 on the Maher 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 -- 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...

Biden: Well, she obviously didn't adhere to it with regard...

Roberts: Well, I explained why she felt at liberty to comment...

Biden: Well, how's that different?

That -- I would suggest, Judge -- is a distinction without a difference in terms of litigants, the way you've just explained it. Does a litigant, in fact, said because the judge wrote about it and then spoke to it as a judge, that somehow I am being -- I'm going to be put at a disadvantage before that judge in the court?

That's a stretch, 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.

Biden: Did that make sense to you?

Roberts: I think it does make sense that she can be questioned about the articles that she had 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 likely will be pending in the future.

Biden: Well, let's try some things she didn't write about that she talked about. Let's see if you can talk about them.

One is she talked about Moore v. East Cleveland. You're much more familiar with the case than I am.

That's a case where the city came along -- and I'm going to do this shorthand in the interest of time -- and said a grandmom living in an apartment with her blood grandchildren who were cousins, but 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 in the 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?

Roberts: You know, I have no quarrels with the majority's determination.

Biden: Not my question, Judge.

Specter: Let him finish his answer, Joe.

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.

Biden: Justice Ginsburg answered the question. She never wrote about it. She answered it specifically.

She went on to say that, and let me quote -- she said -- this is quoting Justice Ginsburg -- He goes on to say, 'History, counsel caution and restrain,' and I agree with him. He says, then -- this is referring to the majority opinion -- but it does not counsel abandonment, abandonment of the notion that people have a right to certain fundamental decisions about their lives without interference of 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 a nuclear family. He rejects that. I'm taking a 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.

Roberts: Senator, I think nominees have to draw the line where they're comfortable.

(CROSSTALK)

Biden: You're not applying the Ginsburg rule.

Specter: Senator Biden, let him finish. .

Biden: I don't have much time but go ahead.

Roberts: It's a matter of great importance not only to potential justices but the judges. We're sensitive to the need to maintain the independence and integrity of the court.

I think it's vitally important that nominees, to use Justice Ginsburg's words, no hints, no forecasts, no previews.

They go on the court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they go on the court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented and the rule of law. And the litigants before them have a right to expect that and to have the appearance of that as well.

That has been the approach that all of the justices have taken.

Biden: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on.

Did she, in fact, somehow compromise herself when she answered that question?

Roberts: She said no hints, no forecasts, no previews.

Biden: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of 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?

Roberts: Well, I do know, Senator, that in numerous other cases -- because I read the transcript...

Biden: So did I.

Roberts: ... she took the position that she should not comment.

Justice O'Connor took the same position. She was asked about a particular case.

Biden: Oh, Judge...

(CROSSTALK)

Roberts: She said, It's not correct for me to comment.

Now, there's a reason for that.

Biden: But you're going from the...

Specter: Wait a minute, Senator Biden. He's not finished his answer.

Biden: He's filibustering, Senator.

But OK, go ahead.

(LAUGHTER)

Specter: No, he's not. No, he's not.

(CROSSTALK)

Roberts: That's a bad word, Senator.

Biden: That's if we do it to you. Go ahead. Go ahead and continue not to answer.

(LAUGHTER)

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...

Biden: I got that.

Roberts: ... come before the court.

Biden: Did Justice Ginsburg give a hint when she answered...

Roberts: I'm not going to comment...

Biden: ... on the specific question?

Roberts: I'm not going to comment on whether or not a particular nominee adhered to the approach that they announced.

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 you a half an hour the questions she answered, the questions Kennedy, Souter -- all of the justices almost, with one exception, answered specific questions which you're not answers.

Let me go on to my next question: violence against women. I realize it's a bit of a hobby horse for me, since I wrote the legislation. And I know people say they wrote things. I mean, I actually did write that my little old self, with my staff. And no one liked it, I might add, at first; women's groups or anybody else.

But in 1999, you said, in response to a question -- you were on a show, it was 1999, you were talking about a number of things. And you said, and I quote, You know, we've gotten to a point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it's the Violence Against Women Act or anything else.

The fact of the matter is conditions are different in different states. And state laws are more relevant is, I think, exactly the right term. More attuned 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 any different condition in New York.

Roberts: Senator, I was not speaking specifically to any piece of legislation there. That was making...

Biden: Well, you mentioned Violence Against Women.

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 the view on any particular piece of legislation. And I think the statement you read...

Biden: Well, let me ask you...

Roberts: ... confirms that.

Biden: OK.

Judge, is gender discrimination, as you've written in a memo, a perceived problem or is it a real problem?

Roberts: The memo you talked about, Senator, I've had a chance to look at it.

Biden: I'll bet you have.

Roberts: 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's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender.

Biden: Let me ask you a question then, Judge. And I'm glad to hear that.

Do you think that if a state law distinguishes between a right that your daughter may have and your son may have, or your wife may have, or your sister may have and your brother may have, that the Supreme Court should engage in heightened scrutiny, not just look and see whether or not it makes any sense, but take an extra special look?

You and I know the terms, but the public listening here, the Supreme Court has said since 1971, you know, when a state passes a law that treats in any way a woman different than a man, there may be a rational for it, but the Supreme Court's going to take a very close look. Not strict scrutiny, which means you can hardly every get over that bar, like race, but going to take a heightened -- they're going to look at it more closely.

Do you think that that needs to be done, the Constitution calls for that?

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.

Biden: I understand. My time's running out. I'd 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 an '81 memo to your boss. You wrote that gender, quote, is not a criterion calling for heightened judicial review.

What'd you mean by that?

Roberts: Referring to what you called strict scrutiny.

Biden: He didn't know the difference between heightened and strict?

Roberts: Well, I was about to lay it out. You said you didn't want to hear about it.

(LAUGHTER)

Roberts: Strict scrutiny is the...

Biden: I know what that is. I wonder what you meant by that.

Specter: Senator Biden, let him finish his answer.

Biden: But I have no time left, Mr. Chairman. I understand the answer.

(LAUGHTER)

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.

Roberts: And, Senator, the memorandum is using heightened scrutiny the way you use strict scrutiny, which is scrutiny that's limited to the basis of race.

The gender discrimination is, as you know, subject to what's 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

Biden: I'll come back to that in the second round because that's not my reading of what you said.

But let me get on to another issue here, again in the sex discrimination area.

The attorney general for civil rights, a former Delawarean not viewed as a darling of the left, Bradford Reynolds, decided that the federal government should take action against the state of Kentucky. And they said that there's a very strong record that Kentucky prison system discriminates against female prisoners. And I'm going to finish my whole question. And you wrote to the attorney general that 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. I mean, that seems to be...

Roberts: I'm sorry. What was the date of the memo, Senator? I don't...

Biden: The date of the memo was February 12, 1982. I'll give you a copy. I have to bring down a copy of the memo.

Roberts: I can't elaborate on -- I can't elaborate on what's -- beyond what's in the memo.

Biden: Well, I hope you don't still hold that view, man. I mean, if the idea that you're not going to -- that the -- that a conservative civil rights -- 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 about this is threefold.

One, a private citizen 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 tight budgets -- and I forget the third one. You now have the memo.

Roberts: 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...

Biden: It was only his idea then? I mean, you were just protecting him so he wouldn't be inconsistent?

Roberts: I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.

Biden: I would 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, by the way, there are 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 (ph).

Private plaintiffs have done this. It's inconsistent with three themes in your judicial restraint effort, equal protection claim, relief of a well-involved judicial inference, et cetera. And by the way, the end result may be with tight budgets, they may do away with this.

My time is running out. I'll 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.

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're talking about, but for the public at large who really has an interest in all 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'm 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's a second issue in that case, and the second issue is: Do you apply it narrowly only to an 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?

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 that you set forth. First, Title IX applies. Second, it applies to the office, the admissions office...

Biden: Only to the office, right? It applies narrowly?

Specter: Now, wait a minute. Let him finish his answer, Senator Biden.

Biden: His answers are misleading, with all due respect.

Specter: Well...

(CROSSTALK)

Specter: Now, wait a minute, wait a minute.

They may be misleading, but they are his answers.

Biden: OK, fine.

Specter: You may finish, Judge Roberts.

Biden: Fire away. Fire away.

At least I'm misunderstanding your answer.

Roberts: With respect, they are my answers. And, with respect, they're not misleading, they're accurate.

Biden: I have a minute, 45 seconds.

Roberts: This is a (inaudible) 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, and so I would say that the administration correctly interpreted the intent of Congress in enacting that legislation.

Biden: Well, let me read you what wrote in that memo. You said you, quote, strongly agreed.

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 agreed, usually means they agree, number one.

Number two, you went on to say, and I quote, that if you have the broad interpretation, quote, the federal government will be rummaging, quote, willy-nilly through institutions. So you expressed not only that you strongly agreed, but you thought that if you gave them this power to broadly interpret it to apply to dormitories and all these other things, that they'd rummage willy-nilly through institutions.

Seems to me you had a pretty strong view back then. Maybe you don't have it now.

Roberts: 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.

Biden: Thanks, Judge.

Roberts: Thank you, Senator.

Specter: Thank you very much, Senator Biden.

We will recess now until 2:15.

(RECESS)

Specter: It's 2:15 and we will resume our opening statements.

Senator Graham, you are recognized for your opening statement.

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's 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's on display.

And Senator Kennedy said something that I disagree with, but he's very passionate in his statement. He said the central issue is whether or not you will embrace policies, a certain set of policies, or whether or not you will roll back certain policy decisions.

I respectfully disagree with Senator Kennedy. To me, the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well- qualified, strict constructionist to the Supreme Court and, in this case, to appoint a chief justice to the Supreme Court in the mold of Justice Rehnquist.

He's 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's 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're 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're not here to debate how to solve all the nation's problems. We're not here to talk about liberal philosophy versus conservative philosophy and what's best for the country. We're 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 -- I believe it's recognized by most senators that we're not charged with a responsibility of approving justices if their views always coincide with our own. We're really interested in knowing whether a nominee has the background, experience, qualifications, temperament, integrity to handle the most sensitive, important and responsible job. And that's being on the Supreme Court.

If you're looking for consistency, you've probably come to the wrong place, because the truth of the matter is that we're 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 1, 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're qualified and whether or not Reagan conservatism in the mainstream.

Does affirmative action require quotas? From a conservative point of view, no. From a conservative point of view, we don't 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 don't.

Environmental policies: We want a clean environment, but we don't 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're here to determine whether or not you and all you've 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're the first nomination that we've dealt with in any significant manner after that agreement.

There's plenty of blame to go around, Judge Roberts. On our watch, I'm sure we did things in committee that were very unfair to Democrat nominees, particularly by President Clinton. And at the time of that agreement, there were 10 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've 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've 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's not your fault, Judge Roberts; it's 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'll rise to the occasion. I'm 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's 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 don't know what it's 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's just not a problem you've faced; I'm sure Democratic nominees have faced the same type problem.

We shouldn't, in our standard, trying to come up with a standard, invalidate elections. The president won. The president told us what he's going to do and he did it. He picked a strict constructionist to be on the Supreme Court. If anybody is surprised, they weren't 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're 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 make our votes, base our votes on that one principle, Justice Ginsburg would not be Justice Ginsburg. In her writing, 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 live their life.

Let's get back to the good old days where we understood that what we were looking for was well-qualified people to sit on the highest court of the land, not political clones of our own philosophy.

The reason I signed the agreement more than anything else was that I love the law.

The role of the law in our society is so important.

You take out the rule of law and you don't 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.

Specter: Thank you very much, Senator Graham.

Senator Schumer?

Schumer: Thank you, Mr. Chairman.

And, Judge Roberts, welcome to you and Mrs. Roberts, your parents, your family, your two beautiful children.

I join my colleagues in congratulating you on your nomination to the position of chief justice of the United States.

Now, this is indisputably the rarest opportunity in American government.

In the entire history of the republic, we have had but 16 chief justices.

But the responsibility is as great as the opportunity is rare. The decisions of the Supreme Court have a fundamental impact on people's lives, and the influence of a chief justice far outlasts that of a president.

As the youngest nominee to the high court's top seat in 204 years, you have the potential to wield more influence over the lives of the citizens of this country than any jurist in history.

I cannot think of a more awesome responsibility; awesome not in the way my teenage daughter would use the word, but in the biblical sense of the angels trembling in the presence of God.

But before you can assume that responsibility, we senators, on behalf of the people, have to exercise our own responsibility. Fundamental to that responsibility is our obligation to ascertain your legal philosophy and judicial ideology.

To me, the pivotal question which will determine my vote is this: Are you within the mainstream -- albeit the conservative mainstream -- or are you an ideologue who will seek to use the court to impose your views upon us as certain judges, past and present on the left and on the right, have attempted to do?

The American people need to learn a lot more about you before they and we can answer that question.

You are, without question, an impressive, accomplished and brilliant lawyer. You're 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's 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 doesn't matter, they should take their quarrels to President Bush. I began to argue that a nominee's judicial ideology was crucial four 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 awful crucial.

Therefore, I and others on both sides of the aisle will ask you about your views.

Here is what the American people need to know beyond your resume:

They need to know who you are and how you think;

They need to assess not only the sharpness of your mind but the fullness of your heart;

They need to believe that an overachiever can identify with an underdog who has nothing but the Constitution on his side;

They need to understand that your first class education and your advantaged life will not blind you to the plight of those who need help and who rely on the protections of the Constitution, which is every one of us at one point or another;

They need to be confident that your claim of judicial modesty is more than easy rhetoric, that your praise of legal stability is more than lip service;

They need to know above all that, if you take the stewardship of the high court, you will not steer it so far out of the mainstream that it founders in the shallow waters of extremist ideology.

As far as your own views go, however, we only have scratched the surface. In a sense, we have seen maybe 10 percent of you -- just the visible tip of the iceberg, not the 90 percent that is still submerged. And we all know that it is the ice beneath the surface that can sink the ship.

For this reason, it is our obligation to ask and your obligation to answer questions about your judicial philosophy and legal ideology.

If you can't answer these questions, how are we to determine whether you're 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's why I gave you a list of questions in advance of these hearings.

It's not enough to say you will be fair. If that were enough, we'd have no need for a hearing.

I have no doubt you believe you'll 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.

Posted by Jeff at 12:29 PM | Comments (0)

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 12:23 PM | Comments (0)

John Roberts Confirmation Hearing, Transcript Pt. I

The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 1:

U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE UNITED STATES

SEPTEMBER 13, 2005

Transcript provided by CQ Transcriptions, LLC

SPEAKERS:
U.S. Senator Arlen Specter (R-PA)

CHAIRMEN:
U.S. Senator Orrin G. Hatch (R-UT)
U.S. Senator Charles E. Grassley (R-IA)
U.S. Senator Jon Kyl (R-AZ)
U.S. Senator Mike Dewine (R-OH)
U.S. Senator Jeff Sessions (R-AL)
U.S. Senator Lindsey O. Graham (R-SC)
U.S. Senator John Cornyn (R-TX)
U.S. Senator Sam Brownback (R-KS)
U.S. Senator Tom Coburn (R-OK)
U.S. Senator Patrick J. Leahy (D-VT)

RANKING MEMBERS:
U.S. Senator Edward M. Kennedy (D-MA)
U.S. Senator Joseph R. Biden, Jr. (D-DE)
U.S. Senator Herbert Kohl (D-WI)
U.S. Senator Dianne Feinstein (D-CA)
U.S. Senator Russell D. Feingold (D-WI)
U.S. Senator Charles E. Schumer (D-NY)
U.S. Senator Richard J. Durbin (D-IL)

WITNESSES:
Judge John Roberts, nominated to be chief justice of the United States

Specter: It is 9:30. The confirmation hearing of Judge Roberts will now proceed.

Welcome, again, Judge Roberts.

Roberts: Thank you, Mr. 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 precedence.

Black's Law Dictionary defines stare decisis as, Let the decision stand, to adhere to precedence and not unsettle things which are established.

Justice Scalia articulated, quote, The principal purpose of stare decisis is to protect reliance interest and further stability in the law. Justice Frankfurter articulated the principle, quote,

We recognize that stare decisis embodies an important social policy that represents an element of continuity in law and is rooted in the psychological need to satisfy reasonable expectations.

Justice Cardozo, in a similar vein, quote, 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 the 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?

Roberts: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.

So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.

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's the joint opinion; rather earthy in its context. Would you agree with that?

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 is 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 had 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.

Specter: But there's no doctrinal basis erosion in Roe, is there?

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 precedents, I think, figured more prominently in the courts 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.

Specter: Well, do you see any erosion of precedent as to Roe?

Roberts: Well, 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 courts 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.

Specter: Well, Judge Roberts, I don't know that we're dealing with any specific issue. When you mention -- and you brought that 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.

Roberts: Well, in the particular case of Roe, obviously you have the Casey decision in 1992, '93...

Specter: '92.

Roberts: '92 -- in which they went through the various factors on 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 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.

Specter: The joint opinion (inaudible) after the statement as to sexual activity to come to the core issue about women being able to plan their lives, quote, 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?

Roberts: Well, 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? And that's something that I'm going to have to draw the line in the sand.

Specter: I'm not going to ask you whether you're going to vote to overrule Roe or sustain it. But we're 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, quote, 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 a 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, quote, a surrender to political pressure. And added, quote, to overrule under fire would subvert the court's legitimacy, close quote.

So in these statements on Casey, you're really going beyond the holding; you're going to the legitimacy and authority of the court.

Do you agree with that?

Roberts: Well, I do think the considerations about the court's legitimacy are critically important.

In other cases, my thinking of Payne v. Tennessee, for example, the court has focused on extensive disagreement as a grounds in favor of reconsideration. In Casey, the court looked at the disagreement as a factor in favor of reaffirming the decision. So it's a factor that is played different ways in different precedents of the court.

I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough -- and the court has emphasized this on several occasions -- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question.

And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.

Specter: A jolt to the legal system, a movement against stability, one of the Roberts doctrines.

Roberts: If a overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability...

Specter: Go ahead.

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.

Specter: One final citation from the joint opinion in Roe, quote: 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 court -- the joint opinion is correct in elevating precedential force even above the specific holding of the case?

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.

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 a 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 the super stare decisis, and Professor Eskridge 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?

Roberts: Well, it's a term that hasn't found its way into the Supreme Court opinions yet.

Specter: Well, there's an opportunity for that.

(LAUGHTER)

Roberts: I think one way to look at it is that the Casey decision itself, which applies 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 this area would begin with; not simply the decision in Roe v. Wade, but it's 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 an issue in this area would begin.

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 didn't really know.

And you cited a number. 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, even if it's 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.

And I'm a very seldom user of charts but, on this one, I have prepared a chart because it speaks -- a little too heavy to lift -- but it speaks louder than just -- thank you, Senator -- 38 cases where Roe has been taken up.

And I don't want to coin any phrases on super-precedents -- we'll leave that to the Supreme Court -- but would you think that Roe might be a super-duper precedent in light of...

(LAUGHTER)

... in light of 38 occasions to overrule it?

Roberts: Well, 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.

Specter: Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it's 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?

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.

Specter: You went on then to say, quote, 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.

Roberts: I think the initial question for 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.

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 have been questions 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, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, I do not speak for my church on public matters and the church does not speak for me, close quote?

Roberts: I agree with that, Senator. Yes.

Specter: And did you have that in mind when you said, There's nothing in my personal views that would prevent me from fully and faithfully applying the precedent, as well as Casey ?

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.

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 11th, 1981. You were referring to a lecture which Solicitor General Griswold had given six years earlier and you wrote, quote, that, Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have -- that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution.

Do you believe today that the right to privacy does exist in the Constitution?

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.

It protects privacy in matters of conscience.

It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.

And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause.

The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well.

And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.

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'd express today?

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.

Specter: Okay.

So they weren't necessarily your views then, but they certainly aren't your views now?

Roberts: I think that's fair, yes.

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'm sure you're familiar with, he did not apply Miranda -- without going into the technical reason 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, quote, so embedded in routine police practice to the point where the warnings have become a part of our national culture, close quote.

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?

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 addressed 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.

Specter: Well, that's the analogy I'm looking for in Roe v. Wade. Might disagree with it at the time it was decided, but then his language is very powerful when he talks about it becoming, quote,

embedded in routine police practices to the point where the warnings have become a part of our national culture.

And the question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?

Roberts: Well, I think that gets to the application of the principles in a particular case. And based on my review of the prior transcripts of every nominee sitting on the court today, that's where they've generally declined to answer: when it gets to the application of legal principles to particular cases.

I would repeat that the court has already applied the principles of stare decisis to Roe in the Casey decision. And that stands as a precedent of the court, as well.

Specter: So you're not bound to follow it but it's pretty impressive logic?

Roberts: In the Casey decision -- well, I mean...

Specter: No. I'm talking about Chief Justice Rehnquist on Miranda.

Roberts: I think in that case, the chief's explanation of why they weren't going to revisit Miranda -- 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: Payne 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.

Specter: Let me move to two more points before my time is about to expire in two minutes and 35 seconds.

There's a continuing debate on whether the Constitution is a living thing. And as you see Chief Justice Rehnquist shift his views on Miranda, it suggests that he would agree with Justice John Marshall Harlan's dissent in Poe, where he discusses the constitutional concept of liberty and says, quote, The traditions from which it developed, that tradition is a living thing.

Would you agree with that?

Roberts: I agree that the tradition of liberty is a living thing, yes.

Specter: Let me move, in the final two minutes here, to your participation pro bono in Roemer, where you gave some advice on the arguments to those who were upholding gay rights. There's a quotation by Walter Smith, who was the lawyer at Hogan Hartson in charge of pro bono work.

And he had this to say about your participation in that case, supporting her, trying to help the gay community in the case in the Supreme Court -- Mr. Smith said, quote, 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 (inaudible) to the gay community in that case?

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 there 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.

Specter: My time's just expired.

Senator Leahy?

Leahy: Thank you, Mr. Chairman.

Good morning, Judge.

Roberts: Good morning.

Leahy: You look like you survived well yesterday.

No one doubts you've had a very impressive legal career thus far. And now you've been nominated to be chief justice of the United States. But I have concerns, as I go back over your career -- and we've had some discussions of this already -- about some of the themes in your career, some of the goals you sought to achieve 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 king with absolute power, and the next to the last thing they wanted was to be ruled by a temporary king with absolute powers for four years.

So we've got the political system we've talked about a great deal yesterday of checks and balances. Each of the three branches of government constrains the other when they overreach. Americans have relied on this for our fundamental guarantees of freedom and democracy and open government.

And all of us who serve, whether in the executive branch, the judiciary, as you do, the legislative, as we do, have taken a very solemn oath to uphold the Constitution.

But there have been times throughout our history when the separation of powers has been strained to its limits by presidents claiming power way beyond -- actually, almost imperial powers. So let's this focus this down a little bit more on presidential power.

Let's go to the president's power as commander in chief of the armed forces. He certainly has that power under the Constitution.

I look back to the time when you were a lawyer in the Reagan White House. You objected to a bill that would give certain preferences to veterans who had served in Lebanon between August 20, 1982, and, quote, the date the operation ends, close quote. And the day would be, as you just said, 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 determining the Lebanon operation. And you wrote further, quote I do not think we would want to concede any definite role for Congress in termination the Lebanon operation, even by joint resolution presented to the president. And then you explained even parenthetically that even if the president vetoed such a joint resolution, of course, Congress could override it by two-thirds majority.

I find that troubling; I'll 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 suggests that 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'll 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 set date. The president vetoes the law. The Congress overrides that, 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?

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.

Leahy: No, wait a minute. I mean, isn't this kind of hornbook law? I don't know of any cases coming before the court; I mean, this is kind of hornbook.

The Congress says to the president, You got to get out, and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn't the president have to -- charged as he is under the Constitution to faithfully execute the law, why wouldn't he have to follow that law?

Roberts: Well, Senator, that issue of -- 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.

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...

Roberts: Right.

Leahy: ... in April, 1975, by a one-vote margin in the Armed Services Committee. I know because I was the newest member of the committee at that time -- voted to not authorize the war any longer.

But are you saying that Congress could not pass a law that we must withdraw forces?

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 a 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. It was a very important principle that the framers set forth that is very protective of our individual liberty and make sure the legislative branch legislates, the executive executes, the judicial branch decides the law. And 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 extent there is a dispute between the legislative branch and the executive branch, it's the job, of course, of the judicial branch to resolve that dispute.

Leahy: But your position in this memo in President Reagan's office seemed to indicate that Congress does not have the ability to end hostilities.

Roberts: With respect, Senator, you're vastly over-reading the memorandum.

Leahy: Tell me why.

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?

Leahy: Right. I don't think it's overreading 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.

Roberts: Well, with respect, Senator...

Leahy: You're saying you don't want to concede any ability to the Congress to stop a war.

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 am fairly confident, 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.

Leahy: Let me ask you this question: Does Congress have the power to declare war?

Roberts: Of course. The Constitution specifically gives that power to Congress.

Leahy: Does Congress, then, have the power to stop a war?

Roberts: Congress certainly has the power of the purse. And that's the way, as you noted earlier, that Congress has typically exercised...

Leahy: Yes, but we know, 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's one of the axis of evil today -- to continue the Contra war in Central America. So the power of the purse -- we've cut off money, but the wars sometimes keep going.

Do we have the power to terminate a war? We have the power to declare war. Do we have the power to terminate war?

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.

Leahy: You said -- your answer is that you were just talking about the question of veterans' benefits and all that after this. I would note that the memo you wrote wasn't entitled Veterans' Benefits. It was entitled War Powers Problem. I don't think I overstate it.

Now let me as 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, quote,

complete authority over the conduct of war, close quote. And, quote, The Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during war, close quote.

And then it took the argument to the extreme when it concluded the president, when acting as commander in chief was not bound -- 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've seen it.

And I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of executive power, which puts the president above the law. He never gave an answer on that and that's tone of the reasons why many had 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?

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.

Leahy: The Supreme Court held that unconstitutional.

Roberts: Exactly. And the framework set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories.

If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee, memo where the president is acting contrary to congressional authority, what justice Jackson said is, the president's authority is at its lowest ebb.

It consists solely of his authority under the constitution, less whatever authority Congress has. And then, of course, there's the vast little 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.

Specter: Would you consider -- go ahead.

Roberts: I 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.

Leahy: Well, yes, I would think that if you pass a law saying nobody in our government shall torture, I think that's pretty specific.

But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?

Roberts: I think the approach in the case is one that has guided the court in this area since 1954, '52, whatever it was.

Leahy: The reason I ask that, when Mr. Bybee wrote this memo, he never cited Youngstown. I think it was Harold Koh, the dean at the Yale Law School who said this was a stunning omission. I don't agree with that. The president, instead, went ahead and appointed -- or nominated Mr. Bybee to a federal judgeship.

Roberts: Youngstown's 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...

Leahy: You've also said he was one of the justices you admire the most.

Roberts: He is, for a number of reasons. And what's significant about that aspect of his career is here's someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. And then as 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. He wrote a long opinion about how he can't believe he once held those views. I think it's very important...

Leahy: Are you sending us a message?

Roberts: Well, I'm just saying...

(LAUGHTER)

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.

Leahy: The reason I ask -- I mean, 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 the administration had taken that position prior to the press finding out about it.

But in the Jackson opinion -- and I just pulled it out here -- he says, The president has no monopoly of war powers, whatever they are. Congress cannot deprive the president of the command of the Army and Navy. Only Congress can provide him with an Army and Navy to command. Congress is also empowered to make rules for the government and regulation of land enabled 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?

Roberts: Certainly, Senator. And 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.

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'll speak with a somewhat different voice.

He offers 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, as 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.

Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will. We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11.

I just want to make sure you're not going to be a Korematsu justice, so I have a couple of questions.

Can I assume that you will 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?

Roberts: The internment of a group solely on the basis of their...

Leahy: Nationality or ethnic or religious group?

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.

Leahy: Let me ask you this: Do you feel that you would be able to interpret the Bill of Rights the same whether we're at wartime or not?

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 if anything's a model...

Leahy: I thought you might mention that.

Roberts: Well, it's, sort of, a 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 is, if anything, the motto of the court on which I now sit.

And that would be the guiding principle for me, whether I'm back on that court or 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 the 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.

Leahy: I hope you feel that way. I know people have spoken of the First Amendment as not there to protect popular speech; that's easy. It's 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've narrowly construed laws in the Constitution in a way to close 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 -- local governments don't do enough to protect people from environmental dangers. And we've given them protection, the Congress has.

I thought your Duke Law Journal, which many 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 responsibility at the behest of any John Q. Public who happens to be interested in the issue.

You discount the interest that many citizens and Congress have in preserving our environment.

A few years ago you sounded 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: If their president or their governor fails to enforce these laws, why shouldn't individuals have access to courts where polluting companies could be made to pay for their wrongdoing? What can you tell us to assure us parents of children who are worried about this, from birth defects and all of us -- what can you do to assure us that they as individuals won't, under a Chief Justice Roberts, find the courthouse door slammed shut in their face?

Roberts: Well, one thing I would tell them to do is read the rest of the Duke Law Journal article. Because one 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're 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're 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 law journal.

Leahy: But I read it also, in conjunction with your brief that you wrote in 1991, when you were Kenneth Starr's political deputy, in Franklin v. Gwinnett County Public Schools -- now in that case, a girl, Christine Franklin, had been sexually harassed, she'd been abused by the time she was in 10th grade by a teacher and a sports coach.

The school was aware of 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; found their rights were violated under Title IX of our civil rights laws. She had been physically abused. A 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 long 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 toward appropriate belief.

So do you now personally agree with and accept as binding the law the reasoning of Justice White's opinion in Franklin?

Roberts: Well, it certainly is a precedent of the court that I would apply under principles of stare decisis. The government's position in that case, of course, in no way condoned the activities involved.

The issue was an open one. The courts of appeals had ruled the same way that the government had argued before the Supreme Court. And it arose because we were dealing with an implied right of action; in other words, right of action under the statute that courts had implied.

The reason that there was difficulty in determining exactly what remedies were available is because Congress had not addressed that question. The remedies that were available as we explained included issues such as restitution, back pay, injunctive relief.

The open issue, again, was whether damages were available. The Supreme Court issued its ruling and cleared that up.

Leahy: But here in a case -- I mean, this is a pretty egregious case. And I'm sure you in no way condoned what happened to this young girl. It was awful. She'd been 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 different than what you'd argued -- do you feel the court's opinion is based on sound reasoning?

Roberts: Well...

Leahy: Do you think it's a solid precedent?

Roberts: It's a precedent in the court. It was, as you say, 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 way.

And that issue is now settled. Those damages, actions are brought in courts around the country.

Leahy: But I wonder if we're balancing angels on the head of a pin. What kind of back pay was this teenage student going to be seeking? What kind of injunction is she going to do -- after she graduated? Would she seek that kind of injunction?

You know, as a parent -- and you're a parent, I just wonder: Aren't we saying that we'll put up a block for people who have really justiciable reasons to be in court?

Roberts: No, Senator, again, there was no issue in the case about condoning the behavior. I found it abhorrent then and 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?

Leahy: The back pay?

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.

Leahy: We'll go back to this in my next round, I can assure you. My time is up.

Thank you, Mr. Chairman.

Specter: Thank you very much, Senator Leahy.

Senator Hatch?

Hatch: Well, thank you, Mr. Chairman. I'm happy to be here. And I appreciate your leadership -- you and Senator Leahy -- on this committee.

Welcome you, again, Judge Roberts, and appreciate...

Roberts: Thank you...

Hatch: And I read an interesting book over the weekend, Cass Sunstein's recent book published by Basic Books. Now, he discussed various philosophies with regard to judging. And I just would 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, perfectionist, a majoritarian or minimalist -- which of those categories do you fit in?

Roberts: 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 him.

(LAUGHTER)

But, you know, I think...

Hatch: I've read a number of them.

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; the 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 two 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've heard the same arguments. They've looked at the same cases.

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 provisions of the Bill of Rights. 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 are interpreting the law. They are 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.

Hatch: Now, I know that I have only mentioned a few of the so- called descriptions of various philosophical attitudes with regard to judging.

But am I correct in interpreting that you are probably eclectic, that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those positions, and none of them absolutely creates an absolute way of judging.

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.

Hatch: OK.

Roberts: I tend to look at the cases from the bottom up rather than the top down. And I think all good judges focus a lot on the facts. We talk about the law, and that's a great interest for all of us. But I think most cases turn on the facts, so you do have to know those. You have to know the record.

In terms of the application of the law, you begin, obviously, with the precedents before you. There are some cases where everybody's going to be a literalist. If the phrase in the Constitution says two-thirds of the Senate, everybody's a literalist when they interpret that.

Other phrases in the Constitution are broader: unreasonable searches and seizures. You can look at that wording all day and it's not going to give you much progress in deciding whether a particular search is reasonable or not. You have to begin looking at the cases and the precedents, what the framers had in mind when they drafted that provision.

So, yes, it does depend upon the nature of the case before you, I think.

Hatch: Well, thank you.

On the War Powers Act, I remember when Senator Heflin 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 feel 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 they 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's the way you feel as well.

Now, my friend the chairman held up a chart with a 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'm not that a superduper precedent exists, between you and me, but have said that Planned Parenthood v. Casey, very important case, reaffirmed Roe.

But let me just ask you this: Am I correct that Casey reaffirmed the central holding in Roe but substantially changed its framework?

Roberts: That's what the joint opinion of the three justices said. It was reaffirming the central holding. It revisited and altered the framework...

Hatch: But there were only a few votes to simply reaffirm Roe, weren't there, in the Casey case?

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 and the majority. It's one the judges look to in the first instance.

There were separate opinions that disagreed with some of the ways in which that plurality revisited Roe. It reaffirmed the central holding in Roe v. Wade, it dispensed with the trimester framework, and it substituted for the strict scrutiny that Roe had established the undue burden analysis that, hence, since the time of Casey, has governed in this area.

Hatch: Well, as I recall it, there were only a few votes, as you've 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?

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.

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?

Roberts: That was his view, yes.

Hatch: And doesn't that mean that Rehnquist himself did not believe that his Dickerson holding should apply to Roe? Would that be a fair conclusion?

Roberts: Well, based on his published opinions, and I don't remember -- 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 the current.

Posted by Jeff at 11:02 AM | Comments (2)

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