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• 

  Chairman SPECTER

  At 00:00:25
  1 minute

  The hearing will resume. We are just a little
  late in coming back because we were on the floor trying to figure
  out what the Senate schedule is going to be, when we would vote
  next. While that is uncertain, I believe it is reasonable to conclude
  that we will not vote until 7:30. That gives us latitude to move
  ahead with five more rounds, where we will finish at about 7:30,
  a little later because we are not starting quite at 5:00, 7:45.
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  So we will proceed with Senator Feingold now, and then Senator
  Graham from 5:30 to 6:00, Senator Schumer from 6:00 to 6:30, Senator
  Cornyn from 6:30 to 7:00, and Senator Durbin from 7:00 to
  7:30. That is back by 15 minutes because we are 15 minutes slow
  coming out of the gate.
  

• 

  Senator LEAHY

  At 00:01:30
  10 seconds

  Did you notice the look of sheer, undisguised glee
  on the face of Judge Roberts at the idea of going another three
  hours at this? Two hours?
  

• 

  Chairman SPECTER

  At 00:01:40
  13 seconds

  I consulted with Senator Leahy, Judge Roberts,
  and the empirical evidence is overwhelming, without consultation,
  that you are fit to go indefinitely.
  

• 

  Judge ROBERTS

  At 00:01:53
  2 seconds

  I’m ready to go.
  

• 

  Chairman SPECTER

  At 00:01:55
  4 seconds

  Is that judgment satisfactory to you—
  

• 

  Judge ROBERTS

  At 00:01:59
  1 second

  Absolutely.
  

• 

  Chairman SPECTER

  At 00:02:00
  2 seconds

  —Judge Roberts?
  Senator Feingold?
  

• 

  Senator FEINGOLD

  At 00:02:02
  1 minute

  Thank you, Mr. Chairman.
  Judge Roberts, the eyes of America are on you this week thanks
  to what our generation called the miracle of live television. Television
  plays an enormous role in providing information and bringing
  the country together in times of national pride, like the liftoffs
  and the landings of spacecrafts and Presidential inaugurations, political
  conflict like the 2000 election and the 1999 impeachment
  trial of President Clinton, the great tragedy of September 11 and
  the devastation wrought by Hurricane Katrina. Americans can
  watch virtually every significant event of national importance on
  television except for oral arguments and announcement of decisions
  at the Supreme Court.
  If you are confirmed, you will essentially disappear from public
  view. This hearing will, in some ways, be the last time that the Nation
  will see you at work. The possibility of televising trials raises
  some complicated issues. We have to consider the safety and rights
  of criminal defendants and witnesses and jurors. But such concerns
  are not so present in the case of appellate proceedings. There is no
  doubt that there is enormous public interest in Supreme Court oral
  arguments, but not very many seats in the courthouse.
  I think it would benefit the country and the Court if all Americans
  had the chance to see the Court conduct its work, so I would
  like to know if you, as Chief Justice, will support televising the
  Court’s public proceedings.
  

• 

  Judge ROBERTS

  At 00:03:26
  1 minute

  Senator, it’s not something that I have a settled
  view on and I do think it’s something that I would benefit from the
  views of my colleagues, and I know that some of them have particular
  views and some may not. I noticed the last time there was
  a formal response by the Court to a request to televise a particular
  argument, the Chief Justice referred the matter to the whole Court
  and then reported back on it.
  I’m also aware that there are—I’m not sure if the right word is
  experimental or trial efforts going on in some of the courts of appeals,
  the Federal courts of appeals, to televise arguments there,
  and I know I’ve watched them so I appreciate that opportunity.
  And I don’t know yet if there’s been an evaluation of how that experiment
  proceeded, whether the judges thought it went fine, the
  lawyers, or whatever. I just don’t know.
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  At the Supreme Court level, I do know they experimented recently
  in a few cases with releasing the audio tapes immediately
  after the conclusion of the argument. Again, I listened to those on
  occasion, not every case, but selected cases of particular interest.
  I know that on our court, my court, I’m sorry, on the court of appeals
  for the D.C. Circuit, we broadcast at least within the courthouse
  simultaneously the oral arguments, so I know that the technology
  is there to do that and I certainly understand the interest
  and I understand how—I know it was very well received to have
  the audio tapes immediately available in some of those cases—
  

• 

  Senator FEINGOLD

  At 00:05:11
  1 minute

  I hope you will seriously consider this. What
  has changed from our good conversation we had about this before
  is that now you will be the principal decision maker on this as the
  Chief Justice, and I hope you will give it serious consideration.
  Judge Roberts, on September 11, 2001, obviously an event occurred
  that had a profound effect on all of us in this country. We
  all have our own memories of that day. During those first few
  hours after the attacks, I kept remembering a sentence from a case
  we both probably studied in law school.’’ Those words were, ‘‘while
  the Constitution protects against invasions of individual rights, it
  is not a suicide pact.’’
  I took those words as a challenge to my concerns about civil liberties
  at that horrible time in our history. We have to be careful
  not to take civil liberties so literally that we allow ourselves to be
  destroyed. But then when I actually tracked down the case itself,
  not remembering what case it was from, it was Kennedy v. Mendoza-
  Martinez, I found that Justice Arthur Goldberg made this
  statement, but then went on to rule in favor of the civil liberties
  position in this case. He actually affirmed the importance of civil
  liberties in wartime.
  So I would like to start this part of my questions by asking you
  what kind of impact that day had on you and your belief system
  and whether it changed your view of the importance of individual
  rights and civil liberties and how they can be protected.
  

• 

  Judge ROBERTS

  At 00:06:31
  1 minute

  Well, I remember the day vividly, Senator. I
  think I was one of the last people in the country to find out about
  it. I had entered—gone into a hearing. It was actually in an original
  action in the Supreme Court. The Special Master was at G.W.
  Law School and we had a hearing. I think it was starting a little
  before nine that day. We went in there.
  I remember just as I was leaving getting a report that a plane
  had struck the World Trade Center, but it was—at the time, I
  thought it was, like, you know, one of those tour planes that was—
  I had no idea what they were reporting. I went into the proceeding
  and we conducted the hearing. It lasted several hours. Nobody notified
  us and we didn’t know about it.
  I remember leaving and trying to walk back to my office—I was
  at the law firm then—and the street was blocked off and I figured,
  well, there’s something going on at the White House. I remember
  walking down further and it was still blocked off and still blocked
  off. I finally went up to one of these guards and I said, ‘‘What’s
  going on?’’ and he looked at me like, ‘‘Where have you been?’’ Only
  then did I begin to appreciate it. I went back to my office, because
  there was no way to get out of town by then—
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• 

  Senator FEINGOLD

  At 00:07:39
  8 seconds

  But at what point did you start thinking
  about the implications of this in terms of civil liberties and the
  challenges—
  

• 

  Judge ROBERTS

  At 00:07:47
  50 seconds

  Well, it was when I went back to the office and
  saw the smoke rising from the Pentagon. As you can imagine, that
  was a chilling sight. The basic issue of how you address the question
  of civil liberties in wartime, in times of crisis, is a critically
  important one.
  The Bill of Rights doesn’t change during times of war. The Bill
  of Rights doesn’t change in times of crisis. There may be situations
  where demands are different and they have to be analyzed appropriately
  so that things that might have been acceptable in times of
  war are not acceptable in times of peace. I think everyone appreciates
  that. But the Bill of Rights is not suspended and the obligation
  of the courts to uphold the rule of law is not suspended.
  

• 

  Senator FEINGOLD

  At 00:08:37
  6 seconds

  Did you recognize at that moment that this
  might become a time when it would be harder to protect civil liberties?
  

• 

  Judge ROBERTS

  At 00:08:43
  35 seconds

  I think—I don’t recall recognizing that in particular,
  but that is, of course, always the challenge in times of war
  and in times of stress, whatever the cause. I think it is the obligation
  of the courts to remember, just as really the model of the D.C.
  Circuit, from our earliest case, when the treason trial of Aaron
  Burr, to calmly poise the scales of justice. The emphasis is on calmly.
  It requires a certain dispassion, a certain separation from the
  passions of the moment.
  

• 

  Senator FEINGOLD

  At 00:09:18
  30 seconds

  That is absolutely right and that is why I
  want to follow up on what Senator Leahy asked about earlier—a
  different time, a different challenge. As a Nation, we can now look
  back at wartime Supreme Court decisions like Korematsu v. United
  States with something like bewilderment. We talked about it earlier.
  To me, it seems inconceivable that the United States Government
  would have decided to put huge numbers of citizens in detention
  centers based on their race and that the Supreme Court would
  have deferred to the President’s decision to do so.
  Do you believe that Korematsu was wrongly decided?
  

• 

  Judge ROBERTS

  At 00:09:48
  36 seconds

  It’s one of those cases that I don’t think it’s technically
  been overruled yet, but I think it’s widely recognized as not
  having precedential value. I do think the result in that case—
  Korematsu was actually the—considered the exclusion and not the
  actual detention, but the exclusion of individuals based on their
  ethnic/racial background from vast areas. It’s hard for me to comprehend
  the argument that that would be acceptable these days.
  

• 

  Senator FEINGOLD

  At 00:10:24
  4 seconds

  It is often included, if you list decisions that
  are sort of considered some of the worst decisions in the history of
  the Supreme Court—
  

• 

  Judge ROBERTS

  At 00:10:28
  1 second

  Yes.
  

• 

  Senator FEINGOLD

  At 00:10:29
  4 seconds

  —with Plessy v. Ferguson and Dred Scott and
  others. Is that a fair characterization of your view—
  

• 

  Judge ROBERTS

  At 00:10:33
  1 second

  Yes.
  

• 

  Senator FEINGOLD

  At 00:10:34
  1 second

  —of Korematsu?
  

• 

  Judge ROBERTS

  At 00:10:35
  1 second

  Yes.
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• 

  Senator FEINGOLD

  At 00:10:36
  9 seconds

  Are there any elements of the Government’s
  response to September 11 that you think 50 or 60 years from now
  we as a Nation will look back on with regret?
  

• 

  Judge ROBERTS

  At 00:10:45
  34 seconds

  Well, I’m sure there are some, Senator, and
  when you have the benefit of 50 or 60 years to look back as opposed
  to the particular demands of the moment and the perceived
  demands, I’m sure it’s a different perspective. I’d hesitate to mention
  any in particular because so many of these issues are coming
  before not only the Supreme Court, but the court on which I now
  sit, and I will have to confront those cases, I think, regardless of
  what happens here. So I’d hesitate to identify particular areas of
  concern.
  

• 

  Senator FEINGOLD

  At 00:11:19
  12 seconds

  I understand your caution. I don’t think we
  need to wait 50 or 60 years for some. For example, do you have any
  concerns about the practice of extraordinary rendition, of our Government
  secretly sending people to countries that we know use torture?
  

• 

  Judge ROBERTS

  At 00:11:31
  12 seconds

  Again, Senator, that is something that could
  come before the Court in one form or another and I think I have
  to refrain from commenting on it.
  

• 

  Senator FEINGOLD

  At 00:11:43
  18 seconds

  How about the Federal Government using immigration
  laws to round up and detain people for months, often
  without regard for whether they had any connection to the September
  11 investigation, which actually in this case the Justice Department
  Inspector General later heavily criticized? Does that trouble
  you?
  

• 

  Judge ROBERTS

  At 00:12:01
  26 seconds

  Well, yes, certainly, at a basic level of appreciating
  that this is a reaction in a particular way that raises serious
  questions. I’m very hesitant, though, again, to express a view
  on legality because those issues could come before the Court. They
  are coming before the Court, and they’re coming not only before the
  Supreme Court, but the court on which I now sit.
  

• 

  Senator FEINGOLD

  At 00:12:27
  56 seconds

  Let’s go to one that has already come before
  the Court, the Hamdi case. It is one of the most significant recent
  decisions restraining executive branch power. In that case, eight
  members of the Court found that the Government had gone too far
  in claiming the right to detain and hold a U.S. citizen incommunicado
  within the United States without access to a lawyer and without
  being charged with a crime. The case actually resulted in four
  different opinions with four different views on the President’s
  power to detain a U.S. citizen indefinitely and without trial, ranging
  from Justices Souter and Ginsburg, who found that the President
  does not have any authority to detain citizens as enemy combatants
  because such detentions had not been congressionally authorized,
  to Justice Thomas, who would defer entirely to the executive
  branch.
  Which of the four opinions in Hamdi, a case that has already
  been decided, would you say best approximates your views on the
  Executive power to designate enemy combatants: the prevailing
  opinion, the Souter-Ginsburg opinion, the Scalia-Stevens dissent, or
  the Thomas dissent?
  

• 

  Judge ROBERTS

  At 00:13:23
  1 minute

  Well, Senator, that does get into the area of asking
  me to comment on which opinions I think are correct that I
  don’t feel it’s appropriate for me to go. I do know that the approach
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  in this area is the approach set forth by Justice Jackson in his concurring
  opinion in the Youngstown case. That has set the framework
  for consideration of questions of Executive power in times of
  war and with respect to foreign affairs since it was decided.
  And as you know, the issue in those cases and in many of the
  cases in the Supreme Court is whether Congress has endorsed the
  Executive action, in which case the President has his powers and
  the powers of Congress; whether Congress has prohibited the Executive
  action, in which case all he has is whatever residual authority
  he has less the power of Congress; or what often happens, that
  vast middle area where it’s impossible to tell or there’s argument
  about whether Congress has approved the action or not.
  The Dames and Moore case that was decided in 1981 is an example
  of that, when to resolve the Iranian hostage crisis the President
  abrogated claims and relegated those with claims to the Iranian
  Claims Tribunal. The issue there, the Court looked back at a variety
  of congressional enactments going way back to the Civil War
  to try to determine if this type of exercise of authority is something
  Congress endorsed or opposed.
  

• 

  Senator FEINGOLD

  At 00:14:54
  13 seconds

  But with regard to these opinions, and I understand
  you are hesitant to comment on a particular opinion or
  the nature of the reasoning, but which of the approaches in terms
  of the actual finding of the opinion, do you find closest to your
  view?
  

• 

  Judge ROBERTS

  At 00:15:07
  47 seconds

  Well, again, I don’t remember which of those
  opinions follows the Youngstown analysis the most closely. My understanding
  of the appropriate approach in this area is that it is
  the Youngstown analysis, the one set forth in Justice Jackson’s concurring
  opinion, and I think that is the most appropriate way to
  flesh out the issues. You do need to understand, because this is an
  area in which judges need to understand, there is often conflict between
  the branches and you do need to at least set the table correctly
  to understand, is the President acting with congressional
  support, against it, or do we have to try to determine which of
  those areas it is? And I think you do need to lay that analysis out
  before deciding the case.
  

• 

  Senator FEINGOLD

  At 00:15:54
  34 seconds

  Last month when I was home in Wisconsin,
  a constituent came up and said to me that he believed the D.C. Circuit
  decision in the Hamdan case, a different case, which you
  joined in, to uphold the Government’s ability to try a Guantanamo
  Bay detainee by military commission, should disqualify you from
  being on the Supreme Court. This is apart from the issue that Senator
  Schumer and I wrote you about, which I will turn to later.
  I want to know, with regard to the substance of the decision, why
  do you think someone would think that your decision in that case—
  why would somebody come up to me and say that your decision in
  that case should disqualify you from consideration as a Supreme
  Court Justice?
  

• 

  Judge ROBERTS

  At 00:16:28
  20 seconds

  Well, Senator, you’ve touched upon an area in
  which I cannot comment under the—that case is still pending. It’s
  pending before the Supreme Court. Under the Judicial Canons of
  Ethics, Canon 3–A(6), I’m not supposed to comment publicly in any
  way about a case that’s still pending.
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• 

  Senator FEINGOLD

  At 00:16:48
  16 seconds

  I’m not asking you to comment on the case.
  I am asking you why you think somebody who I represent would
  care enough about this issue that they would say this should be a
  disqualifier—in other words, characterize what is the issue in the
  case that would make somebody that concerned that they would
  make such a statement?
  

• 

  Judge ROBERTS

  At 00:17:04
  42 seconds

  Well, the issue involves the same sort of issues
  that you began the discussion with, the question of civil liberties
  in wartime, and certainly I understand people having strong views
  on that particular question. But whether the decision on the merits
  was correctly resolved or not, or anything about it, I’m just absolutely
  prohibited from talking about it by those judicial canons.
  There’s even an advisory opinion that explains that that canon applies
  to a Senate confirmation hearing. So my ethical obligation not
  to comment publicly on a case that’s still pending prevents me from
  saying anything more.
  

• 

  Senator FEINGOLD

  At 00:17:46
  11 seconds

  Of course, I respect your judgment on these
  matters, but I believe that it’s important that the nominee indicate
  a sense of why people in this country might have some anxiety on
  this point.
  

• 

  Judge ROBERTS

  At 00:17:57
  1 second

  Well, certainly—
  

• 

  Senator FEINGOLD

  At 00:17:58
  21 seconds

  The difficult events that have occurred since
  September 11th create a climate sometimes of fear, in particular,
  fear of Government power, that I think it is important not only for
  Members of Congress but even members of the Supreme Court to
  help minimize, and I am just trying to get a sense if you feel that
  concern in the Nation.
  

• 

  Judge ROBERTS

  At 00:18:19
  41 seconds

  Well, I certainly don’t minimize the significance
  of a decision by a court of appeals or by the Supreme Court about
  the scope of Executive authority in this area, about its impact on
  individual liberties, about the issues of separation of powers and
  whether the relation between the Congress and the Executive—
  whether the Executive is acting with congressional endorsement
  and support or in the face of congressional opposition. Those, of
  course, are very sensitive issues and always have been throughout
  our history. I certainly appreciate that. Those are significant matters.
  It’s just that I’m prohibited from talking about the substance
  of the case.
  

• 

  Senator FEINGOLD

  At 00:19:00
  43 seconds

  Let me talk to an aspect of the case that I
  think you can speak to. Many people were surprised to learn in
  your questionnaire submitted to the Committee that you were
  interviewed by the Attorney General in connection with a possible
  vacancy on the Supreme Court on April 1st of this year, just 6 days
  before you sat on the panel that heard oral arguments in the
  Hamdan case, and that while the case was still pending, before a
  decision was issued, you had additional interviews in May with the
  Vice President, the White House Counsel, Mr. Karl Rove, and other
  top officials.
  I am going to give you an opportunity to explain why you think
  it was not necessary for you to recuse yourself from the case, but
  first I would like to know: Did the possibility of recusal because
  you were under serious consideration for the Supreme Court occur
  to you, or was it raised with you at any point prior to the oral argument
  in the case?
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• 

  Judge ROBERTS

  At 00:19:43
  25 seconds

  Senator, that, again, is a question I can’t answer
  for you. I can’t address that. There’s a motion pending in the Court
  seeking to file a petition to recuse, and that motion is pending. It’s
  a matter I can’t talk about outside of the judicial process.
  In addition, because the Hamdan case itself is still pending, I
  don’t think that’s appropriate for me to address that.
  

• 

  Senator FEINGOLD

  At 00:20:08
  39 seconds

  Judge, I am a little disappointed with that
  answer. As you know, Senator Schumer and I sent you a letter asking
  questions about this issue, and then we received a letter on
  September 1 from the Assistant Attorney General for Legislative
  Affairs at the Department of Justice on your behalf. It says, ‘‘Your
  August 24th letter requests that Judge Roberts answer certain
  questions regarding the D.C. Circuit’s recent decision in Hamdan
  v. Rumsfeld. As you know, Chairman Specter has scheduled hearings
  on Judge Roberts’s nomination to begin immediately after
  Labor Day. At that time, Judge Roberts will be available to respond
  to questions from all Senators on the Committee.’’
  Now, I took that to mean a little more than telling me you
  couldn’t talk about it. Are you now refusing to answer a question
  even about when this issue—
  

• 

  Judge ROBERTS

  At 00:20:47
  1 second

  Senator—
  

• 

  Senator FEINGOLD

  At 00:20:48
  1 second

  —came to your attention?
  

• 

  Judge ROBERTS

  At 00:20:49
  7 seconds

  Senator, we’re talking about the canons of judicial
  ethics. They’re quite clear on the subject. They say I may not
  talk about a matter that’s pending before the Court.
  

• 

  Senator FEINGOLD

  At 00:20:56
  2 seconds

  Even when it first came to your attention?
  

• 

  Judge ROBERTS

  At 00:20:58
  8 seconds

  That matter is still—is pending before the
  Court. My hands are tied. It’s not something I can discuss under
  the canons of ethics.
  

• 

  Senator FEINGOLD

  At 00:21:06
  1 minute

  I guess I will have to move on. Let’s go to voting
  rights. I want to follow up to Senator Kennedy’s questions
  about the Voting Rights Act and, in particular, about your opposition
  to amendments to the Act in 1982 when you were an adviser
  to the Attorney General in the Reagan Administration’s Justice Department.
  In 1982, Congress voted overwhelmingly to amend Section 2 to
  reinstate the test for vote dilution that many lower courts had used
  prior to the City of Mobile case, one that looked, as we talked about
  earlier, at the effects of an electoral scheme on the ability of minorities
  to elect candidates of their choice rather than on the intent
  behind this scheme.
  While you were in the Reagan Justice Department, you seemed
  to have done almost everything in your power to thwart that congressional
  effort. Your view was that the intent test should stand.
  This was the policy position of the Justice Department, as you have
  indicated, and you wholeheartedly supported it at the time. Your
  memos make that very clear.
  In one memo, you lamented that the House bill then under consideration
  would make it much easier to attack ‘‘such widely accepted
  practices as at-large voting.’’ Now, those practices, of course,
  were among the most commonly used systems to prevent the election
  of any minorities to local government bodies. We know that
  the effects test put into place in the 1982 amendments to the Vot-
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  ing Rights Act has been very successful in improving minority representation
  in Congress and at all levels of Government.
  Do you believe today that those gains have been good for the
  country?
  

• 

  Judge ROBERTS

  At 00:22:27
  40 seconds

  I think the gains under the Voting Rights Act
  have been very beneficial in promoting the right to vote, which is
  preservative of all other rights. The issue about how to extend the
  Voting Rights Act, again, my position was a member of the staff
  in the Justice Department. The administration position of extending
  the Voting Rights Act for the longest period in history, as is,
  without change, was in no sense reflective of any disagreement
  with the proposition that the Voting Rights Act was extremely valuable
  in securing not just the right to vote but all other rights—
  

• 

  Senator FEINGOLD

  At 00:23:07
  17 seconds

  Well, what I am trying to get at here, Judge,
  obviously, is this distinction between effects and intent. Let’s follow
  up on the fact that you said that these gains have been good for
  the country. Do you believe that these gains we have seen in minority
  representation would have occurred if your view supporting
  the intent approach had prevailed in 1982?
  

• 

  Judge ROBERTS

  At 00:23:24
  14 seconds

  Well, I think some of them would have. I don’t
  know if all of them would have. It’s obviously impossible to tell, to
  go back and determine whether a particular application of a different
  approach would have had the same results or different results.
  I think that’s very hard to tell.
  

• 

  Senator FEINGOLD

  At 00:23:38
  4 seconds

  Do you still believe that the intent test was
  the more appropriate standard by which to evaluate vote dilution
  claims?
  

• 

  Judge ROBERTS

  At 00:23:42
  13 seconds

  Senator, my personal view of the Voting Rights
  Act was not something somebody was interested in. You have people
  who serve on your staff, and their job is to help you implement
  your views as a Senator. I am just—
  

• 

  Senator FEINGOLD

  At 00:23:55
  17 seconds

  I am not questioning what your view was
  then. I am asking what you think now having—and this is pretty
  settled area, I think you would agree—having seen all this, having
  been intimately involved in it, knowing it as well as you do. Do you
  believe that the intent test is still the more appropriate standard
  by which to evaluate vote dilution claims?
  

• 

  Judge ROBERTS

  At 00:24:12
  12 seconds

  Senator, I haven’t studied the Voting Rights Act
  to determine whether the intent test or the effects test would have
  different results in different cases under Section 2. I’m in no position
  to make a judgment on that.
  

• 

  Senator FEINGOLD

  At 00:24:24
  1 minute

  It would be my sense that you would be a
  person who would—with your enormous abilities and background—
  to have some sense about that. Obviously, you understand that requiring
  a voter to prove any additional factor makes it harder for
  the voter to win the case and that to prove the intent of an entire
  legislative body can be very difficult, especially when a voting system
  was put in place many years ago. Requiring African-Americans
  and Latino voters, many of whom have had limited financial resources,
  to find evidence of intent was adding an enormous hurdle
  for them to overcome. And the Mobile v. Bolden case itself, which
  was pursued after the Supreme Court’s decision in 1980 and before
  Congress amended the law in 1982, makes it very clear, I think
  clear to all of us over the years, how difficult that standard was.
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  African-Americans from Mobile, Alabama, have been unable to
  elect any candidates to the position of city commissioner for every
  election cycle for something like seven decades. They challenged
  the method of electing city commissioners that allowed the same
  majority to choose all the commissioners all the time in at-large
  elections. And the evidence was very clear that, as a practical matter,
  although African-Americans could register and vote, they
  couldn’t elect anyone. But to get relief under the Supreme Court
  standard which you appear to have supported, they had to go to
  enormous effort and financial expense to prove discriminatory intent,
  including hiring a historian who could piece together the motivations
  of city officials who had designed the electoral system almost
  a hundred years earlier.
  In this situation, the administration was not bound by a Supreme
  Court decision in deciding what position to take under the
  proposed Voting Rights Act amendments. So why at that point did
  you want to make Section 2 cases so difficult to prove?
  

• 

  Judge ROBERTS

  At 00:26:00
  34 seconds

  Senator, you keep referring to what I supported
  and what I wanted to do. I was a 26-year-old staff lawyer. It was
  my first job as a lawyer after my clerkships. I was not shaping administration
  policy. The administration policy was shaped by the
  Attorney General on whose staff I served.
  It was the policy of
  President Reagan.
  It was to extend the Voting Rights Act without
  change for the longest period in history at that point, and it was
  my job to promote the Attorney General’s view and the President’s
  view on that issue. And that’s what I was doing.
  

• 

  Senator FEINGOLD

  At 00:26:34
  21 seconds

  I recognize that. What I am trying to figure
  out is given the fact that you have followed this issue for such a
  long time, I would think you would have a view at this point about
  whether you were right about—or the Department, let’s say, since
  you were working for them, whether the Department was right on
  seeking to keep the intent test or whether time has shown that the
  effects tests is really the more appropriate test.
  

• 

  Judge ROBERTS

  At 00:26:55
  45 seconds

  Well, Senator, I haven’t followed the issue or the
  particular litigation. I had involvement in some litigation when I
  was in the Solicitor General’s office, in which we were effective in
  proving violations under the Voting Rights Act. Many of those
  cases arose under issues under Section 5, pre-clearance issues, and
  not under Section 2.
  I as a judge had a case, a three-judge district court case, again,
  arising under the pre-clearance provisions, but I’m certainly not an
  expert in the area and haven’t followed and have no way of evaluating
  the relative effectiveness of the law as amended or the last
  as it was prior to 1982.
  

• 

  Senator FEINGOLD

  At 00:27:40
  2 minutes

  Well, with all respect, I realize I should move
  on to another topic, but it just seems given how strongly you stated
  some of these memos—and I understand you were doing your job—
  I would think you would have a view today whether or not those
  strong statements still make sense. But let me move on.
  As you know, 42 U.S.C. 1983 is a Federal law that allows Americans
  to sue those who deprive them of their rights under the Constitution
  or Federal statutes. Section 1983 is a very important law
  because it has enabled individuals who are deprived of their rights
  to such things as Medicaid, public housing, child support enforce-
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  ment, and public assistance to enforce those rights in Federal
  court. And I am a little concerned that you seem to have consistently
  argued for making it harder to bring Section 1983 lawsuits.
  In briefs you have filed, you advanced a series of arguments to effectively
  reverse decades of Supreme Court decisions and restrict
  Americans’ ability to enforce Federal statutory rights under Section
  As Deputy Solicitor General, you co-authored an amicus brief
  and argued in front of the Supreme Court in a case called Wilder
  v. Virginia Hospital Association. You said that individual Medicaid
  providers should not be able to sue under Section 1983 to enforce
  a provision of the Medicaid statute which requires States to reimburse
  them for services at reasonable rates. One of the arguments
  you made is that in order for a statutory right to be enforceable
  under Section 1983, the Court must find that the Congress clearly
  intended ‘‘to authorize private enforcement of that right in Federal
  court.’’ You repeated this argument in another case you later argued
  when you were in private practice, Gonzaga University v. Doe.
  The Supreme Court rejected your arguments in Wilder and found
  that the Medicaid providers could sue. In the later Gonzaga case,
  the Supreme Court specifically rejected your argument and found
  that it was not necessary for plaintiffs in a Section 1983 case to
  show that Congress intended to create a private right of action to
  bring a lawsuit, and Section 1983 already supplies a cause of action.
  What role did you play in deciding that the Government would
  participate as amicus in the Wilder case? And what role did you
  play in developing the argument that it made? And did you agree
  with the position that the Government took in the case?
  

• 

  Judge ROBERTS

  At 00:29:40
  1 minute

  Well, I’ll answer that question, but before I do
  so, the position I advanced in the Gonzaga case prevailed. The argument
  that we made on behalf of the university—I was obviously
  representing the university’s position, and they prevailed before the
  Supreme Court.
  In the Wilder case, the determination to participate as an amicus
  was made by the Solicitor General, and I don’t recall a particular
  role in that case. I worked on the brief. I presented the argument.
  We lost that case 5–4. It was a close issue. All of these issues go
  to the question of what Congress intended to do. If Congress had
  spelled out whether or not a right should be enforceable in Court,
  that is what the determination would be in Court. These issues
  arise only because of confusion over whether or not Congress has
  spelled out that a right should be enforceable in Federal court for
  damages or not. And in the Wilder case, the Court determined 5–
  4 that the right should be enforceable in Federal court. We were
  as an amicus supporting one of the States. I don’t remember which
  one it was. And the State was making the argument that there is—
  the right is—the issue in all of these cases is whether the right
  should be enforceable administratively as opposed to—
  

• 

  Senator FEINGOLD

  At 00:31:08
  25 seconds

  Excuse me. I am just about to run out of
  time. Let me point out the Supreme Court did not accept the argument
  that the plaintiffs had to show that Congress intended to create
  a private right of action. And I am wondering now, do you now
  agree with the argument that you have consistently made, both as
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  a Government lawyer in Wilder and while in private practice in
  Gonzaga, that individuals should not be able to sue under Section
  1983 to enforce a right unless the Supreme Court finds that Congress
  clearly intended to authorize private enforcement of that particular
  right in Federal court?
  

• 

  Judge ROBERTS

  At 00:31:33
  46 seconds

  Well, the Gonzaga decision, which resulted—
  there were various arguments made in the brief. The ruling of the
  Court was in favor of the university that I was representing. And
  the determination in the Gonzaga case about what should be
  shown and what has to be shown is one of the precedents of the
  Court that I would follow, as any other, consistent with rules of
  stare decisis. That’s not an area in which I have any particular
  view. I’ve argued both sides of that issue. On behalf of plaintiffs,
  I argued in favor of it, and on behalf of defendants, against it.
  Again, the issue is not the enforceability, as in Gonzaga. The
  issue was should individuals be allowed to bring suit as opposed to
  action by, in that case, the Department of Education.
  

• 

  Senator FEINGOLD

  At 00:32:19
  2 seconds

  Thank you for your answers, Judge Roberts.
  

• 

  Chairman SPECTER

  At 00:32:21
  4 seconds

  Thank you, Senator Feingold.
  Senator Graham?
  

• 

  Senator GRAHAM

  At 00:32:25
  9 seconds

  Thank you, Mr. Chairman.
  I imagine the reason that you argue different positions is because
  people paid you, is that correct?
  

• 

  Judge ROBERTS

  At 00:32:34
  2 seconds

  That’s how I made my living, Senator.
  

• 

  Senator GRAHAM

  At 00:32:36
  10 seconds

  I can relate to that.
  [Laughter.]
  I imagine it must be very hard to figure out
  what Congress intends. Do you agree with that?
  

• 

  Judge ROBERTS

  At 00:32:46
  1 second

  Sometimes it’s easier than others.
  

• 

  Senator GRAHAM

  At 00:32:47
  1 second

  Yes.
  

• 

  Judge ROBERTS

  At 00:32:48
  3 seconds

  And sometimes it’s hard to read the tea leaves.
  

• 

  Senator GRAHAM

  At 00:32:51
  1 minute

  I can relate to that also.
  I want to read an excerpt from the National Association of
  Women Lawyers and their evaluation of you, 8–30–05. ‘‘As a lawyer
  and judge, based on interviews the Committee conducted,
  Judge Roberts has treated individual women lawyers fairly and
  with respect, has fostered careers of women lawyers, has been helpful
  in enabling women to address worklife balance issues while advancing
  professionally, and has been consistently described as respectful
  to female colleagues, female lawyers appearing before him,
  and female employees.’’
  You have been asked about every case I think ever written by
  anyone. I would like to talk to you a little bit about life. The idea
  of judging you based on this section of the Commerce Clause and
  that section of the Commerce Clause is important, but I think most
  Americans want to know a little bit about you. From what I can
  tell, the people who have worked with you and against you generally
  like you, and that you have been described as brilliant, one
  of the best legal minds of your time, well-qualified, the adjectives
  go on and on, and I want the record to reflect that comes from people
  who know you the best. The best indication of a good lawyer
  is how people on the other side think of you, and we will get some
  excerpts from the record to put that into the record.
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  Apparently, from what I can tell, you conduct your life in a noble,
  honorable manner, that you have been a good litigant, and that you
  have fought for your causes, and you have done so to earn respect
  of those on both sides of the aisle.
  But there is a greater issue here about who you are. Justice
  Rehnquist was your mentor; is that correct?
  

• 

  Judge ROBERTS

  At 00:34:33
  4 seconds

  He is certainly someone from whom I learned a
  great deal, yes.
  

• 

  Senator GRAHAM

  At 00:34:37
  20 seconds

  So if I was trying to figure out who John Roberts
  is, and a little bit about him, I will ask this question. Write
  the legacy of Justice Rehnquist for a minute or two. What would
  you say if given that task?
  

• 

  Judge ROBERTS

  At 00:34:57
  10 seconds

  Well, you know, I think if you were able to ask
  him, he would talk about being a grandfather, being a father, being
  a husband.
  

• 

  Senator GRAHAM

  At 00:35:07
  2 seconds

  I am asking you.
  

• 

  Judge ROBERTS

  At 00:35:09
  1 minute

  But the important point is that those were important
  things in his life, and he appreciated the need to recognize
  that those are the most important things.
  With respect to the law, to which he devoted his professional life,
  I think a big part of the legacy that he leaves is a Supreme Court
  in which all of the members respected and admired him because
  of his fairness in administering the Court and conducting the important
  responsibilities like managing the Conference, and assigning
  opinions.
  You can go back in history and look at what other Chief Justices
  did. Some were, in terms of that administrative responsibility,
  some were disasters. You look at Harlan Stone. His idea of running
  the Conference, he said what he thought, then the next senior Justice
  said what he thought, then Justice Stone critiqued that. Then
  the next Justice, and then Justice Stone critiqued that. And the result
  was the conferences went on for days, and everybody ended up
  hating each other.
  

• 

  Senator GRAHAM

  At 00:36:18
  22 seconds

  So he ran a good ship. I think we all agree
  with that. And his colleagues respected him whether they disagreed
  with him or not. But the basic question is, when you write
  about the legacy of a Supreme Court Justice, you write more than
  about being a grandfather and more about running a tight ship, especially
  Chief Justice.
  Would you agree with the idea that from a
  conservative point of view, he was the gold standard?
  

• 

  Judge ROBERTS

  At 00:36:40
  12 seconds

  I think he was a very effective advocate on the
  bench for a view of the Constitution that is one of limited and separated
  powers—
  

• 

  Senator GRAHAM

  At 00:36:52
  2 seconds

  Do you share that view?
  

• 

  Judge ROBERTS

  At 00:36:54
  13 seconds

  I do. I think that the—now, I have to tell you
  that whether as a judge on the court of appeals, or if I am confirmed
  on the Supreme Court, I will certainly be my own man, and
  there are—
  

• 

  Senator GRAHAM

  At 00:37:07
  16 seconds

  No one is doubting that. No one is doubting
  that you will not try to be fair. But the big theme, 30,000-foot view
  of you, is that when you look at Judge Roberts, you are looking at
  someone in the mold of a Rehnquist. Is that a fair assessment?
  

• 

  Judge ROBERTS

  At 00:37:23
  36 seconds

  Well, you know, I admire the late Chief Justice
  very much, but I will have to insist that I will be my own man,
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  and I hesitate to be put in anybody’s mold, and I would certainly
  approach the cases according to the judicial philosophy that I have
  developed over the years. In many respects it’s similar to his, in its
  recognition I think of the limited role that judges should have, and
  of sufficient and appropriate modesty and humility, a recognition
  that—
  

• 

  Senator GRAHAM

  At 00:37:59
  9 seconds

  The idea of a dramatic departure under your
  watch from the Rehnquist era is probably not going to happen, is
  that true?
  

• 

  Judge ROBERTS

  At 00:38:08
  12 seconds

  Given my view of the role of a judge, which focuses
  on the appropriate modesty and humility, the notion of dramatic
  departures is not one that I would hold out much hope for.
  

• 

  Senator GRAHAM

  At 00:38:20
  29 seconds

  I know people do not like being labeled, put me
  in that category, but I am in a business where people label me all
  the time. But I ask for it, I run for office. But we do tend in our
  business of politics to try to label people, particularly when we are
  talking about judges. When the President introduced you to the
  United States, to the people of the United States, he said you were
  a strict constructionist. Do you know what he meant by that and
  why he chose to use those words?
  

• 

  Judge ROBERTS

  At 00:38:49
  26 seconds

  Well, I’d hope what he meant by that is somebody
  who’s going to be faithful to the text of the Constitution, to
  the intent of those who drafted it, while appreciating that sometimes
  the phrases they used, they were drafting a Constitution for
  the ages to secure the blessings of liberty for their posterity, they
  were looking ahead, and so they often used phrases that they intended
  to have a—
  

• 

  Senator GRAHAM

  At 00:39:15
  3 seconds

  Does that term make you feel uncomfortable?
  

• 

  Judge ROBERTS

  At 00:39:18
  2 seconds

  No.
  

• 

  Senator GRAHAM

  At 00:39:20
  22 seconds

  Now, from a 30,000-foot view of things, it
  seems to be that we are going to have a referendum on the Reagan
  era here, which I welcome. I sort of enjoyed it. He won 49 States.
  He did pretty good. You were a part of the Reagan era as a young
  lawyer. When I use the word, term, ‘‘Reagan revolution,’’ what does
  it mean to you?
  

• 

  Judge ROBERTS

  At 00:39:42
  39 seconds

  Well, it means to me generally a change in attitude.
  President Reagan always presented an optimistic view.
  He always
  told us that the best days of our country were ahead of us,
  and he reasserted basic fundamental truths in areas like foreign
  relations. We were going to stand up to the Soviet Union. We’re
  proud of our system of Government. That’s the right approach, not
  the Soviet approach. And people who have come of age after the
  Berlin Wall has fallen sometimes don’t understand what it meant
  at that time.
  

• 

  Senator GRAHAM

  At 00:40:21
  4 seconds

  When it comes to the law, what does the term
  ‘‘Reagan revolution’’ mean to you?
  

• 

  Judge ROBERTS

  At 00:40:25
  14 seconds

  I think it means a belief that we should interpret
  the Constitution according to its terms, that judges don’t
  shape policy, that judges interpret the law, and that legislators
  shape policy. The executive branch executes the law.
  

• 

  Senator GRAHAM

  At 00:40:39
  6 seconds

  Does it also mean that when you talk about affirmative
  action and you set up a quota system, that is not right?
  

• 

  Judge ROBERTS

  At 00:40:45
  26 seconds

  President Reagan’s policy was opposed to
  quotas, which were much more rigid at the time. People need to ap-
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  preciate, 24 years ago the idea of a quota was a rigid set aside. We
  now have the recent Supreme Court decisions talking about consideration
  of particular factors as one factor in an affirmative action
  program. President Reagan was in favor of affirmative action, and
  he was opposed to quotas.
  

• 

  Senator GRAHAM

  At 00:41:11
  19 seconds

  When it comes to voting rights, as I understand—
  and we have talked a lot about it, and we probably know
  more than all of us ever dreamed we would know about the Voting
  Rights Act—the you were implementing a policy of President
  Reagan that wanted to pass the Voting Rights Act in its form that
  you received it; is that correct?
  

• 

  Judge ROBERTS

  At 00:41:30
  5 seconds

  The proposal was to extend it for the longest period
  in history without change.
  

• 

  Senator GRAHAM

  At 00:41:35
  15 seconds

  And we have been through a long discourse
  about the effect and intent test. I think you have explained yourself
  very well, that the Supreme Court in the Mobile case said the intent
  test applies to Section 2; is that right?
  

• 

  Judge ROBERTS

  At 00:41:50
  2 seconds

  Section 2.
  

• 

  Senator GRAHAM

  At 00:41:52
  10 seconds

  Politics took over after that, did it not? Because
  the effect test no longer—that is not the test. Is it not some
  compromise between Senator Kennedy and Senator Dole?
  

• 

  Judge ROBERTS

  At 00:42:02
  17 seconds

  There was a compromise in the test under Section
  2, which is articulated in a paragraph describing what the criteria
  are and including a caution that this should not be read to
  promote proportional representation which was some of the concern
  that the Attorney General and President Reagan had.
  

• 

  Senator GRAHAM

  At 00:42:19
  7 seconds

  So between Dole, Senator Kennedy and President
  Reagan, a new test was called the ‘‘Totality of the Circumstances?’’
  

• 

  Judge ROBERTS

  At 00:42:26
  3 seconds

  Yes.
  

• 

  Senator GRAHAM

  At 00:42:29
  1 minute

  When you said that you—Senator Kennedy
  said something I thought was very important, that courts should
  not stand in the way of elected officials who are trying to right
  wrongs. The point I am trying to make here is that you were
  picked by a conservative President because you have associated
  yourself with conservative administrations in the past, advising
  conservative Presidents about conservative policies. And there is
  another selection to be made, and you are going to get the same
  type person. You can—I am not even talking to you now.
  [Laughter.]
  To expect anything else, is just unfair. I do not
  expect, I did not expect President Clinton to pick you, not because
  you are not well-qualified, not because you are a good person, just
  a different political, legal philosophy. That is what we are going to
  have to come to grips with here. Justice Scalia—do you consider
  him conservative?
  

• 

  Judge ROBERTS

  At 00:43:37
  

  Yes.
  

• 

  Senator GRAHAM

  At 00:43:37
  4 seconds

  Do you think you are more conservative than
  he is?
  

• 

  Judge ROBERTS

  At 00:43:41
  3 seconds

  I don’t know. I mean I wouldn’t—
  

• 

  Senator GRAHAM

  At 00:43:44
  33 seconds

  He got 98 votes. I think you are conservative,
  but I think you are one of the great minds of our generation, of our
  time, and I am dying to find out if you get any votes on the other
  side. Time will tell.
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  Let us talk about righting wrongs here. I think it stinks that
  somebody can burn the flag and that is called speech. What do you
  think about that?
  

• 

  Judge ROBERTS

  At 00:44:17
  11 seconds

  Well—
  [Laughter.]
  We had the Flag Protection Act after the Supreme
  Court concluded that it was protected speech.
  

• 

  Senator GRAHAM

  At 00:44:28
  4 seconds

  Show me where the term ‘‘symbolic speech’’ is
  in the Constitution.
  

• 

  Judge ROBERTS

  At 00:44:32
  2 seconds

  Well, it’s not, and—
  

• 

  Senator GRAHAM

  At 00:44:34
  8 seconds

  It is not. They just made it up, did they not?
  I think it stinks that a kid cannot go to school and say a prayer
  if he wants to voluntarily. What do you think about that?
  

• 

  Judge ROBERTS

  At 00:44:42
  4 seconds

  That’s something it’s probably inappropriate for
  me to comment on.
  

• 

  Senator GRAHAM

  At 00:44:46
  3 seconds

  What do you think Ronald Reagan thought
  about that?
  

• 

  Judge ROBERTS

  At 00:44:49
  6 seconds

  His view was that voluntary school prayer was
  appropriate.
  

• 

  Senator GRAHAM

  At 00:44:55
  8 seconds

  I think it is not right for elected officials to be
  unable to talk about or protect the unborn. What do you think
  about that?
  

• 

  Judge ROBERTS

  At 00:45:03
  8 seconds

  Well, again, Senator, these are issues that are
  likely to come before the Court, and I cannot comment on those
  particulars because—
  

• 

  Senator GRAHAM

  At 00:45:11
  6 seconds

  Why are judges more capable of protecting or
  talking about the unborn than elected officials?
  

• 

  Judge ROBERTS

  At 00:45:17
  17 seconds

  Well, again, those are issues that come before
  the Court on a regular basis in particular cases, and whether on
  my current court or the future court, I need to be able to approach
  those cases with an open mind and not on the basis of statements
  I make during a confirmation hearing.
  

• 

  Senator GRAHAM

  At 00:45:34
  52 seconds

  The point is that righting wrongs is a very subjective
  thing, and you will be asked to decide the fate of people,
  with individual needs and individual desires, based on particular
  fact patterns and legal briefs. I am confident you can do that, and
  that you will do that, and I do not think you need to make a bargain
  with me to right all the wrongs that I see in life to sit on the
  Supreme Court.
  What is it like to go through the nominating process in 2005
  from a personal point of view? I have been watching television,
  channel flipping, and I see some awful things said about you. Have
  you seen those things?
  

• 

  Judge ROBERTS

  At 00:46:26
  2 seconds

  I have seen some things, yes.
  

• 

  Senator GRAHAM

  At 00:46:28
  2 seconds

  How does that make you feel?
  

• 

  Judge ROBERTS

  At 00:46:30
  14 seconds

  Well, some of the mischaracterizations, you
  know, you get annoyed at them. I don’t like them. Some of the
  things you see, you get pretty upset about.
  

• 

  Senator GRAHAM

  At 00:46:44
  4 seconds

  How does it make your family feel?
  

• 

  Judge ROBERTS

  At 00:46:48
  4 seconds

  They’re—I would say they get upset about some
  of the things, as well—
  

• 

  Senator GRAHAM

  At 00:46:52
  2 seconds

  But you know it is a free country and that is
  just the way it is, right?
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• 

  Judge ROBERTS

  At 00:46:54
  8 seconds

  It is and it’s an expression I’ve been using a lot
  lately. It is a free country and it’s a good thing that it is.
  

• 

  Senator GRAHAM

  At 00:47:02
  23 seconds

  Let’s not talk about you now, but I would like
  you to comment to us, give us some advice here. We are always trying
  to advise the President through you. What is the long-term effect
  on the quality of candidates that we will be able to recruit for
  jobs like the Supreme Court if the current process continues and
  grows over time?
  

• 

  Judge ROBERTS

  At 00:47:25
  1 minute

  I think it is a very serious threat to the independence
  and integrity of the courts to politicize them. I think that
  is not a good development, to regard the courts as simply an extension
  of the political process. That’s not what they are.
  I’ve been fortunate for the past 2 years to serve on a court in
  which all of the judges, and they come—in the D.C. Circuit, they
  come from very active careers and public life, sometimes very identified
  politically, but it’s a court where those judges put aside those
  ties and those views and become judges all focused on the same
  mission of vindicating the rule of law.
  And if you look at the decisions on the D.C. Circuit, you’ll see
  that we are almost always unanimous. We almost always come out
  the same way. And to the extent there are disagreements, they
  don’t shape up along political lines. That is an ideal. But the more
  and more that the process becomes politicized, the less likely that
  that’s going to happen.
  

• 

  Senator GRAHAM

  At 00:48:36
  56 seconds

  Another line of inquiry that’s been disturbing
  to me is that we talk about the clients you represent, whether it
  be the Ronald Reagan Administration or some private sector client,
  and we tend to hold that maybe unpopular position against the
  lawyer. There is more and more of that happening. We have had
  court of appeals nominees that were accused of being insensitive to
  the disabled population when they won their case nine-to-nothing
  in the Supreme Court defending a university from the idea that
  they were not covered under the Americans with Disabilities Act.
  I really do worry that in the future, that if we up here start holding
  who you represent against you, that young lawyers in the future
  will pass on the hard cases. What are your thoughts about
  that?
  

• 

  Judge ROBERTS

  At 00:49:32
  59 seconds

  You know, it’s a tradition of the American Bar
  that goes back before the founding of the country that lawyers are
  not identified with the positions of their clients. The most famous
  example probably was John Adams, who represented the British
  soldiers charged in the Boston Massacre. He did that for a reason,
  because he wanted to show that the Revolution in which he was
  involved was not about overturning the rule of law, it was about
  vindicating the rule of law.
  Our Founders thought that they were not being given their
  rights under the British system to which they were entitled, and
  by representing the British soldiers, he helped show that what they
  were about was defending the rule of law, not undermining it, and
  that principle, that you don’t identify the lawyer with the particular
  views of the client, or the views that the lawyer advances
  on behalf of the client, is critical to the fair administration of justice.
  

• 

  Senator GRAHAM

  At 00:50:31
  2 seconds

  Do you believe it is being eroded?
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• 

  Judge ROBERTS

  At 00:50:33
  13 seconds

  I do think there is an unfortunate tendency to
  attack lawyers because of the positions they press on behalf of clients
  and I think that’s unfortunate.
  

• 

  Senator GRAHAM

  At 00:50:46
  17 seconds

  I am going to give you some examples of a sitting
  Supreme Court Justice and her positions and basically take us
  back to the good old days where you could have what I think are
  extreme positions and still make it.
  Are you familiar with the ACLU?
  

• 

  Judge ROBERTS

  At 00:51:03
  1 second

  Certainly.
  

• 

  Senator GRAHAM

  At 00:51:04
  6 seconds

  In the conservative world, how does that rank
  on the food chain?
  [Laughter.]
  

• 

  Judge ROBERTS

  At 00:51:10
  12 seconds

  I don’t know that I could comment on that, but
  it’s—they have a consistent position of promoting civil liberties and
  a particular view on that.
  

• 

  Senator GRAHAM

  At 00:51:22
  8 seconds

  If you came to the Reagan administration and
  the top thing on your resume was the General Counsel for the
  ACLU, do you think they would hire you?
  

• 

  Judge ROBERTS

  At 00:51:30
  6 seconds

  It might make it a little harder.
  [Laughter.]
  

• 

  Senator GRAHAM

  At 00:51:36
  3 minutes

  I think that is a good observation. Well, we
  have on the sitting Supreme Court now the former General Counsel
  for the American Civil Liberties Union, who is a very nice lady,
  extremely qualified. I don’t agree with her hardly at all, but a great
  lawyer. She has written that the age of consent for women should
  be 12, that all prisons, to have gender equality, men and women
  should be in the same prison because when you separate them,
  women prisoners somehow are discriminated against. She wanted
  to do away, or argued the idea that Mother’s and Father’s Day
  should be done away with because it stereotypes men and women,
  that there is a constitutional right to prostitution.
  I can give you, and I will introduce into the record, writings from
  her point of view that most conservatives would find totally unacceptable.
  But this person, this lady, the former ACLU Executive
  Counsel, is sitting on the Supreme Court and she got 96 votes. She
  said that there should be Federal funding for abortion. Ninety percent
  of our caucus is pro-life, is that about right? Pretty close? I
  can assure you that if a Republican was going to make their vote
  based on abortion thinking, she would have gotten no votes. Most
  Americans don’t want Federal funding of abortion even though
  they are divided on the issue of a woman’s right to choose. She has
  argued that the Equal Protection Clause guarantees a right to
  abortion.
  Now, I completely differ with that, and I am sure the conservatives
  in the Senate at the time of her confirmation completely differed
  with that, the idea that the age of consent should be 12, that
  bigamy statutes are discriminatory to women. I can go on and on
  and on.
  The point I am trying to make is that all of that was put aside,
  who she represented and what she believed and the positions she
  took, and somehow back then they were able to see in Justice Ginsburg
  a well-qualified, brilliant legal mind, and they deferred to
  President Clinton because he won the election.
  Whether that happens
  to you, I don’t know, but for the sake of the country and the
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  rule of law, I hope it does. I hope you can be in the ballpark of
  where she wound up.
  My last two questions. In your opening statement, you articulated
  the rule of law in a way that I thought was just outstanding.
  It was emotional. It made sense. Average people could understand
  it, that the courtroom is a quiet place, Judge Roberts, where you
  park your political ideology and you call the balls and you call the
  strikes and you try to give every American a fair shake and you
  put politics in its perspective.
  What is your biggest concern, if any, about the rule of law as it
  exists in America, and what are the biggest threats to the rule of
  law as we know it today?
  

• 

  Judge ROBERTS

  At 00:55:27
  2 minutes

  Well, you know, the rule of law is always vulnerable
  because the Supreme Court, as has been pointed out often in
  history, has only the persuasive power of its opinions to command
  respect. There have been famous episodes in the past, you know,
  President Jackson, Chief Justice Marshall has given his opinion,
  let’s see him enforce it, other episodes of that sort. But over time,
  the legitimacy of the Supreme Court has been established and it’s
  generally recognized across the political spectrum that it is the obligation
  of the Court to say what the law is and that the other
  branches have the obligation to obey what the Supreme Court says
  the law is.
  The one threat, I think, to the rule of law is a tendency on behalf
  of some judges to take that legitimacy and that authority and extend
  it into areas where they’re going beyond the interpretation of
  the Constitution, where they’re making the law. And because it’s
  the Supreme Court, people are going to follow it even though
  they’re making the law. The judges have to recognize that their
  role is a limited one. That is the basis of their legitimacy.
  I have said it before and I will just repeat myself. The Framers
  were not the sort of people, having fought a revolution to get the
  right of self-government, to sit down and say, let’s take all the difficult
  issues before us and let’s have the judges decide them. That
  would have been the farthest thing from their mind. The judges
  had the obligation to decide cases and the authority to interpret
  the Constitution because they had to decide cases and they were
  going to decide those cases according to the law, not according to
  their personal preferences.
  Judges have to have the courage to make the unpopular decisions
  when they have to. That sometimes involves striking down
  Acts of Congress. That sometimes involves ruling that acts of the
  Executive are unconstitutional. That is a requirement of the judicial
  oath. You have to have that courage. But you also have to have
  the self-restraint to recognize that your role is limited to interpreting
  the law and doesn’t include making the law.
  

• 

  Senator GRAHAM

  At 00:57:40
  6 seconds

  What would you like history to say about you
  when it is all said and done?
  

• 

  Judge ROBERTS

  At 00:57:46
  20 seconds

  I’d like them to start by saying he was confirmed.
  [Laughter.]
  Whether they say that or not, I would like it—
  the answer is the same. I would like them to say I was a good
  judge.
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• 

  Senator GRAHAM

  At 00:58:06
  4 seconds

  Thank you very much. I have no further questions.
  

• 

  Chairman SPECTER

  At 00:58:10
  3 seconds

  Thank you very much, Senator Graham.
  Senator Schumer?
  

• 

  Senator SCHUMER

  At 00:58:13
  2 minutes

  Thank you, Mr. Chairman, and thank you,
  Judge.
  It has been a long day, and I guess we have a little bit
  longer to go. But you have been talking something about baseball.
  We have been talking about it this morning. I will start out by
  pitching you something of a softball, an issue, I think, on which
  reasonable Americans can agree, and those are the recent and abhorrent
  attacks on the Federal judiciary.
  Many Americans have become concerned that the judiciary has
  come under escalating and, many would say, inappropriate and unjustified
  criticism from certain quarters, not just criticism of the
  legal reasoning, it goes way beyond that. The rhetoric gets pretty
  hot. And as you know, one of your mentors and our late Chief Justice
  Rehnquist was a passionate defender of the independence of
  the judiciary. I did not agree with him on a whole lot of things, but
  I sure respected that. And he did a good job, both with our Committee
  and everywhere else, making sure that the independence of
  the judiciary was defended.
  So you will be Chief Justice. We have not talked much here
  about your role as Chief Justice. The Chief is the leader of the
  courts, the head of the judiciary, and I think one of your important
  roles is to defend the independence of the judiciary. So I am going
  to read you a few statements that were made about Federal judges
  in recent months.
  Televangelist Pat Robertson has claimed that ‘‘an out-of-control
  judiciary is the single greatest threat to democracy,’’ that judges
  are creating a ‘‘tyranny of oligarchy,’’ and that the threat posed by
  the Federal judiciary is ‘‘probably more serious than a few bearded
  terrorists who fly into buildings.’’
  Do you find that—do you disagree with that statement?
  

• 

  Judge ROBERTS

  At 01:00:22
  42 seconds

  I do disagree with that conclusion, Senator. I
  think it’s perfectly appropriate for people to criticize decisions of
  judges. That comes with the territory.
  It’s a healthy thing. That
  type of criticism and analysis, saying the judge got it wrong, the
  court got it wrong, is healthy and good. And the only thing I would
  say is I’m not sure whether that criticism is along that line or—
  but personal attacks on judges for doing their best to live up to the
  judicial oath, that is something that I don’t think is appropriate.
  

• 

  Senator SCHUMER

  At 01:01:04
  8 seconds

  Well, isn’t this language—I am asking about
  this language. This does not seem to be a legal didaction about a
  court case. When somebody says—
  

• 

  Judge ROBERTS

  At 01:01:12
  1 second

  Oh, it’s not an analysis—
  

• 

  Senator SCHUMER

  At 01:01:13
  14 seconds

  —judges are probably more serious—the
  threat posed by Federal judges is ‘‘probably more serious than a
  few bearded terrorists who fly into buildings,’’ isn’t that kind of
  quote abhorrent and inimical to our system?
  

• 

  Judge ROBERTS

  At 01:01:27
  33 seconds

  I don’t agree with that, and all I’m saying is
  that I think people have a right to be critical of judges, but attacks
  on judicial independence are not appropriate because judges—and
  certainly even judges with whom I disagree on the results or particular
  merits, they should not be attacked for their decisions. The
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  decisions can be criticized, but attacking the judges I think is not
  appropriate.
  

• 

  Senator SCHUMER

  At 01:02:00
  14 seconds

  Would you be a little stronger than that in
  terms of language like this? I mean, ‘‘not appropriate’’ is kind of
  mild in these kinds of inflammatory statements about the judiciary
  that you may soon be entrusted with protecting.
  

• 

  Judge ROBERTS

  At 01:02:14
  30 seconds

  Senator, I said yesterday that, if confirmed, I
  would be vigilant to protect the independence and integrity of the
  Supreme Court and the judicial branch, and that is true. An independent
  judiciary is one of the keys to safeguarding the rule of law.
  Again, I said that yesterday, and I believe that. And to the extent
  the judiciary is attacked, I will be vigilant to respond and defend
  it.
  

• 

  Senator SCHUMER

  At 01:02:44
  45 seconds

  Let me read you two more and just tell me
  how you would characterize them. Conservative lawyer and author
  Edwin Vieira suggested that Justice Kennedy, an appointee of Ronald
  Reagan, ought to be impeached for his decisions and quoted
  Stalin’s infamous problem-solving solution of ‘‘no man, no problem.’’
  And Tony Perkins of the Family Research Council said, ‘‘The Court
  has become increasingly hostile to Christianity, and it poses a
  greater threat to representative government more than anything,
  more than budget deficits, more than terrorist groups.’’
  Do you strongly disagree? Don’t those statements turn your insides
  a little bit?
  

• 

  Judge ROBERTS

  At 01:03:29
  21 seconds

  You know, again, I don’t agree with them, but
  it’s a free country. They’re free to say what they wish. But the
  issue of impeachment was resolved in the Salmon Chase hearings.
  The basic principle was established. You don’t impeach judges if
  you disagree with their decisions. That’s not what the impeachment
  provision is.
  

• 

  Senator SCHUMER

  At 01:03:50
  12 seconds

  I take it—and just answer. If you became
  Chief Justice, you would do whatever you could to dispel these
  kinds of notions and oppose people who said things like this when
  they say these things?
  

• 

  Judge ROBERTS

  At 01:04:02
  17 seconds

  Well, I would do what I can, Senator, to make
  it clear to people—and I do think it’s an important educating function
  that what judges do promotes the rule of law and that the rule
  of law preserves liberties for all Americans. I’m obviously not going
  to infringe anybody’s First Amendment rights. People are free to
  say what they—
  

• 

  Senator SCHUMER

  At 01:04:19
  8 seconds

  I am not asking that. I am asking just your
  First Amendment opinion of these kinds of things, and the most I
  guess you said is you disagree.
  

• 

  Judge ROBERTS

  At 01:04:27
  23 seconds

  Senator, people from all across the political spectrum
  have attacked judges. They do it now. I’ve seen some very virulent
  attacks from all over the political spectrum, and certainly
  throughout history. Again, judges can stand the criticism of their
  opinions, but personal attacks I think are beyond the pale.
  

• 

  Senator SCHUMER

  At 01:04:50
  1 minute

  Okay. I would like to go over some other
  things here. I have to say I have been pleasantly surprised by some
  of your answers today. As you know from our private meetings and
  my opening statement yesterday, my principal concern is ensuring
  that we do not have people on our Court who will dismantle the
  structural protections that have guaranteed our most fundamental
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  constitutional rights. And what troubles me and why I think many
  people are bothered by this right now is that the President has
  openly stated that nominees will be chosen in the mold of Justices
  who have stated repeatedly their desire to roll back the clock on
  some of these basic protections.
  In my view, over the past 60 or 70 years, maybe longer, three
  legs have sustained our constitutional rights: the 14th Amendment’s
  guarantees of equal protection and substantive due process,
  the right to privacy, and a broad delegation of authority to Congress
  to pass legislation, usually under the Commerce Clause, necessary
  to protect our Nation’s security, the environment, Americans’
  health, and workers’ civil rights.
  On these first two, you have given answers that I think show
  that you want to protect those rights, and I just want to repeat
  them and just make sure that you are on the record for them. To
  Senator Biden, he asked, ‘‘Do you agree there is a right to privacy
  to be found in the Liberty Clause of the 14th Amendment?’’ And
  you responded, ‘‘I do, Senator. Liberty is not limited to freedom
  from physical restraint. It does cover areas, as you said, such as
  privacy, and it’s not protected only in procedural terms, but it’s
  protected substantively as well.’’ That accurately states your view.
  

• 

  Judge ROBERTS

  At 01:06:48
  1 second

  Yes.
  

• 

  Senator SCHUMER

  At 01:06:49
  30 seconds

  And on the Griswold case and the right to privacy
  there, you said in reference to Senator Kohl’s question, ‘‘I
  agree with the Griswold Court’s conclusion that marital privacy extends
  to contraception and availability of that. The Court since
  Griswold has grounded the privacy right discussed in that case in
  the liberty interest protected under the Due Process Clause.’’ That
  is your accurate view.
  

• 

  Judge ROBERTS

  At 01:07:19
  

  Yes.
  

• 

  Senator SCHUMER

  At 01:07:19
  26 seconds

  Okay. Just one question. I know this could
  take the rest of our time, but if you could answer it succinctly, just
  tell me how—I am interested in how you will divine what that
  right to privacy means. I mean, this is going to be an issue in the
  21st century that is before us in many, many different ways, and
  there are no words in the Constitution.
  

• 

  Judge ROBERTS

  At 01:07:45
  1 minute

  Well, the Court, for example, I think most recently
  in the Glucksberg case, talked about the necessity of considering
  our Nation’s history, traditions, and practices. As Justice
  Harlan always explained in his opinions, you need to do that with
  an appropriate sensitivity to the limitations on the judicial role.
  Again, you need to recognize that it is not your job to make policy,
  either under the Constitution or under the statutes. You are interpreting
  the Constitution. And the appropriate judicial role focuses
  on those considerations, tradition and history and practice, as developed
  in the Court’s precedents. And that’s where I would start.
  In any case where the issue came up as to whether or not a particular
  issue was presented under the Due Process Clause, you
  begin with the precedents. You analyze them under principles of
  stare decisis, the precedents in this area, just like precedents in
  any other area, and analyze them in light of those different factors.
  All the Justices recognize that in this area they are—you need
  to be especially careful about the source of the content that you’re
  giving to the right at issue, because it is an area in which the dan-
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  ger of judges going beyond their appropriately limited authority is
  presented because of the nature of the sources of authority. You’re
  not construing the text narrowly. You’re not looking at a particular
  statute with legislative history.
  All of the Justices recognize that it presents particular challenges.
  

• 

  Senator SCHUMER

  At 01:09:40
  1 minute

  Okay. Thank you.
  Now, as I said, there are a few things that I think many of us
  were pleasantly surprised about. There are some that we are troubled
  about. I think you have answered some questions, but not answered
  a whole lot of others. And I am going to get into that at
  another point. But I do find it very perplexing—and I am not going
  to ask you to comment on this—your use of the so-called Ginsburg
  precedent. It seems you cite it when you don’t want to answer
  something, but a few times here, when Ginsburg had actually answered
  those specific questions, you didn’t want to answer them,
  and you ignored the precedent. And I don’t think that is what
  precedents are, even in this more unique role. So I hope you will
  think about that overnight because I will get back to that tomorrow.
  The other thing that has troubled me is the issue of civil rights.
  Many of us consider racism the Nation’s poison. De Toqueville
  wrote about that in 1832. And we know you wrote these series of
  memos 20 to 25 years ago. Some of them are written in a tone that
  suggests you may have been insensitive to discrimination and hostile
  to equal rights. And I have talked to people who might have
  felt just that. People have said that.
  So my question is not the substance, but do you regret the tone
  of some of these memos? Do you regret some of the inartful phrases
  you used in those memos or reference to ‘‘illegal amigos’’ in one
  memo?
  

• 

  Judge ROBERTS

  At 01:11:12
  31 seconds

  Well, Senator, in that particular memo, for example,
  it was a play on the standard practice of many politicians,
  including President Reagan, when he was talking to a Hispanic audience,
  he would throw in some language in Spanish. Again, the
  memos were from me to Fred Fielding. I think Mr. Fielding always
  found the tone—
  

• 

  Senator SCHUMER

  At 01:11:43
  4 seconds

  You don’t regret using that term? Could you
  think that some people might find it offensive?
  

• 

  Judge ROBERTS

  At 01:11:47
  32 seconds

  It was meant to convey the notion—again, as
  I’ve described—that when politicians speak to a particular audience
  in that language, is that offensive to the audience? It was meant
  to convey that. It was an issue concerning a particular radio interview.
  You know, the tone was, I think, generally appropriate for a
  memo from me to Mr. Fielding, and I know that he never suggested
  that it was anything other than appropriate.
  

• 

  Senator SCHUMER

  At 01:12:19
  47 seconds

  I would have to disagree with you, but we will
  leave it at that.
  On a more substantive level, in light of where we are in 2005—
  admittedly we have progressed in civil rights since 1982—can you
  identify any policy or piece of legislation you argued for or supported
  in the Reagan era that you now believe went too far, that
  you now believe would not be good enough for America? I am not
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  challenging that you were representing somebody else than, as you
  have said to us before, but I am asking in hindsight—it is now
  2005, you are almost double the years on this Earth. Any of those
  policies that you think now, using hindsight, shouldn’t have been
  done?
  

• 

  Judge ROBERTS

  At 01:13:06
  6 seconds

  Well, Senator, I think some 80,000 pages have
  been released of memoranda that I wrote—
  

• 

  Senator SCHUMER

  At 01:13:12
  1 second

  You can just pick one or two.
  

• 

  Judge ROBERTS

  At 01:13:13
  38 seconds

  Well, I don’t—you know, I have not gone back
  and re-evaluated all those policies, no. I do know, though, for example,
  in the area of civil rights, people have talked about memos I
  wrote about the administration’s policy against busing or the administration’s
  policy against quotas. Being against busing and
  being against quotas is not the same as being against civil rights.
  President Reagan was against busing.
  President Reagan was
  against quotas. But he was in favor of civil rights, and that was
  the administration position that I was advancing in those memoranda.
  

• 

  Senator SCHUMER

  At 01:13:51
  36 seconds

  I understand you were advancing someone
  else’s position. I was asking your own view, if there were any regrets
  or changes in viewpoint of you personally. But we will leave
  it at that if you don’t want to mention any.
  Okay. I would like to go to the third leg of protection now and
  probably spend the rest of my time on this, constitutional rights,
  the Commerce Clause. Now, just to briefly encapsulate—you have
  said this—you agree that the Constitution gives the Supreme Court
  the power to review and invalidate Acts of Congress as was held
  two centuries ago in Marbury v. Madison.
  

• 

  Judge ROBERTS

  At 01:14:27
  1 second

  Yes.
  

• 

  Senator SCHUMER

  At 01:14:28
  49 seconds

  And you also said in questions, I guess, with
  Senator Kennedy that you agree with the Court’s conclusion that
  segregation of children in public schools solely on the basis of race
  was unconstitutional, as in Brown.
  There is a third case that I would like to bring up, and it is the
  third leg of the framework in a lot of ways, and that is Wickard
  v. Filburn. Do you agree with the principle that the Congress has
  the power under the Commerce Clause to regulate activities that
  are purely local so long as Congress finds that the activities ‘‘exert
  a substantial economic effect on interstate commerce? ’’ In other
  words, can Congress regulate commerce that does not involve an
  article traveling across State lines?
  

• 

  Judge ROBERTS

  At 01:15:17
  42 seconds

  Well, that’s obviously the Court’s holding in
  Wickard v. Filburn, and reaffirmed recently to a large extent in the
  Raich case. But I would say that because it has come up again so
  recently in the Raich case that it’s an area where I think it’s inappropriate
  for me to comment on my personal view about whether
  it’s correct or not. That’s unlike an issue under Marbury v. Madison
  or Brown v. Board of Education, which I don’t think is likely
  to come up again before the Court. This was just before the Court
  last year, and so I should, I think, avoid commenting on whether
  I think it’s correct or not.
  

• 

  Senator SCHUMER

  At 01:15:59
  32 seconds

  This is not a recent case. This is Wickard v.
  Filburn. It is from 1942, I guess it was. It is a basic bedrock of our
  constitutional law, law after law, the civil rights laws of 1982 and
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  1965 and 1964 that you talked about previously, are based on the
  Commerce Clause, not necessarily on Wickard.
  

• 

  Judge ROBERTS

  At 01:16:31
  1 second

  No, not on Wickard.
  

• 

  Senator SCHUMER

  At 01:16:32
  1 minute

  And I understand that, but so much of what
  we do is based on the Commerce Clause, and you know that there
  is a movement to greatly cut back on the Commerce Clause, led by
  Professor Epstein.
  One of the Justices that the President said he
  wanted to appoint more Justices like, Justice Thomas, doesn’t really
  believe in the holding of Wickard.
  And at a time with Hurricane Katrina, in the midst of the war
  on terror, where we need a strong national Government, I find it—
  I am not asking you—there has been a holding that has been accepted,
  and it was accepted in Raich, as well, but just about everybody
  with a few exceptions I mentioned that says you don’t need
  the article to cross State lines to be regulatable under the Commerce
  Clause by the Federal Government. That seems to me to be
  as little in dispute as Griswold, as Brown, in terms of its broad acceptance,
  in terms of a term that you have used, in terms of the
  stability of our Government.
  I am really surprised that you are unwilling to simply say—I am
  not asking you for all the variations on the theme, but a fundamental
  bedrock, which is that Congress can regulate under the
  Commerce Clause things that don’t cross State lines is something
  that is in some doubt.
  

• 

  Judge ROBERTS

  At 01:18:29
  1 second

  Well, Senator—
  

• 

  Senator SCHUMER

  At 01:18:30
  1 minute

  You know, you said that—excuse me. You
  said that there would be unanimity, just about, or close to it, on
  issue after issue. Obviously, there are dissents. I think Learned
  Hand in 1958 said he didn’t agree with Marbury, but you said you
  had no problems going along with Marbury. In Brown, I suppose
  there are still some people who don’t believe in Brown here and
  there.
  And here is a bedrock principle, admittedly under attack by what
  I would call an extreme few, that if we didn’t unequivocally back
  it, not the variations on the theme but the fundamental, the fundamental
  principle that Congress can regulate if the article doesn’t
  actually cross, the Congress can regulate manufacturing because of
  its dramatic effect on interstate commerce. And you are unwilling
  to give Wickard the same status that you give Griswold, which was
  decided 22 years later, or Brown, which was decided 12 years later.
  I mean, I know about Morrison and Lopez, but they don’t challenge
  the fundamental precept.
  I didn’t ask you if you fully support Wickard. I asked you if you
  support the proposition that under the Commerce Clause, you don’t
  need the actual article crossing the State line, and you are not willing
  to say that is settled law, that that is a part of our established
  way of law?
  

• 

  Judge ROBERTS

  At 01:20:08
  44 seconds

  Well, Senator, all you have to do is look at the
  arguments, the briefs in the Raich case where that was the issue
  that was argued, whether or not Wickard v. Filburn was still good
  law, whether or not Wickard v. Filburn should be applied in that
  situation.
  Nobody in recent years has been arguing whether Marbury v.
  Madison is good law. Nobody has been arguing whether Brown v.
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  Board of Education was good law. They have been arguing whether
  Wickard v. Filburn is good law. Now, it was reaffirmed in the
  Raich case and that is a precedent of the Court, just like Wickard,
  that I would apply like any other precedent. I have no agenda to
  overturn it. I have no agenda to revisit it. It’s a precedent of the
  Court.
  But I do think it’s a bit much to say it’s on the same plane as
  a precedent as Marbury v. Madison and Brown v. Board of Education—
  

• 

  Senator SCHUMER

  At 01:20:52
  1 second

  Or Griswold?
  

• 

  Judge ROBERTS

  At 01:20:53
  51 seconds

  Or Griswold. The fact that it was just reconsidered
  and reargued last year in the Raich case suggests that it’s not
  that same type of case, and that’s why I’m uncomfortable commenting
  on it. I have gone farther than many other nominees in
  talking about cases like Marbury, like Brown, like Griswold, because
  I thought it was appropriate given the fact that those issues
  are not, in my view, likely to come before the Court again.
  Here’s an issue that was just before the Court last year, so I
  can’t say that it’s unlikely to come before the Court again and,
  therefore, I think it falls in the category of cases in which I should
  tell you I recognize it as a precedent of the Court. I have no agenda
  to overturn it or revisit it. But beyond that, I think it’s inappropriate
  to comment.
  

• 

  Senator SCHUMER

  At 01:21:44
  40 seconds

  Well, I would say that—well, let us go to a
  few more Commerce Clause issues. Again, I think Wickard is as accepted,
  is as part—not Wickard per se, but the idea that crossing
  State lines is not the only thing that you need for the Commerce
  Clause, that you don’t have to have the article cross State lines to
  be able to regulate it is a bedrock of law after law after law that
  the Federal Government has passed. Your inability to concede
  that—
  

• 

  Judge ROBERTS

  At 01:22:24
  1 second

  And I’m not expressing—
  

• 

  Senator SCHUMER

  At 01:22:25
  1 second

  I understand, but—
  

• 

  Judge ROBERTS

  At 01:22:26
  19 seconds

  I’m not expressing any hostility to the proposition
  at all. All I’m telling you is that this is a case that was challenged,
  the application, in the Raich case last year. And to say that
  it’s in the same category as Marbury or Brown, I think is inaccurate.
  

• 

  Senator SCHUMER

  At 01:22:45
  16 seconds

  But sir, Griswold came up in Lawrence. I
  don’t known how many years ago that was. You can make the argument
  that even, somehow or other, somebody challenged precepts
  that flow from Marbury. I certainly—
  

• 

  Judge ROBERTS

  At 01:23:01
  7 seconds

  And so perhaps I should have taken the approach
  Justice Scalia took.
  He wouldn’t tell this Committee whether
  Marbury was correctly decided.
  

• 

  Senator SCHUMER

  At 01:23:08
  1 second

  I am glad you didn’t do that.
  

• 

  Judge ROBERTS

  At 01:23:09
  26 seconds

  Well, and then the reward for not doing that is
  to have additional cases that are very current in terms of the litigation
  before the Court, and the idea, as well, you said what you
  thought about Marbury. What do you think about the Raich case,
  which just reaffirmed Wickard v. Filburn? There are two very different
  parameters.
  My approach has been a practical one, not an ideological one, but
  a practical one, but saying—
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• 

  Senator SCHUMER

  At 01:23:35
  15 seconds

  I am sorry. Just explain to me why you can
  say it about Griswold, which I am glad you did, but not about
  Wickard. Both of them have been litigated, tangentially, at least,
  in the last five or six years.
  

• 

  Judge ROBERTS

  At 01:23:50
  10 seconds

  Well, Wickard was litigated directly in the Raich
  case. I don’t think the issue in Griswold is likely to come before the
  Court. It was unlikely—
  

• 

  Senator SCHUMER

  At 01:24:00
  7 seconds

  Wasn’t Lawrence an outgrowth of Griswold in
  terms of what the right of privacy is to consenting adults in their
  bedroom?
  

• 

  Judge ROBERTS

  At 01:24:07
  13 seconds

  Well, that’s one of the issues, but the difference
  between the issue that was presented in Griswold and its ramifications
  of the analysis, those are two very different issues.
  

• 

  Senator SCHUMER

  At 01:24:20
  59 seconds

  Okay. Let me ask you just a little bit about—
  a little more on the Commerce Clause. We have all talked about
  the hapless toad and the need—the fact that the toad didn’t cross
  State lines didn’t lead you to reject the Endangered Species Act
  under the Commerce Clause but to go seek another possibility. So
  let me give you a couple of hypotheticals.
  Let us say we figured out that somebody could make botulism,
  or a lot of people could make botulism, a deadly, deadly poison—
  I think it is one of the seven poisons that the FBI looks for in
  terms of doing danger to us—that they could make it with materials
  completely within the State. There was no material that
  crossed State lines. It is a little bit like the toad. Would you think
  that the Federal Government, if Congress ordained, would have the
  ability to regulate that activity?
  

• 

  Judge ROBERTS

  At 01:25:19
  34 seconds

  I think that sounds a lot like the Raich case,
  where the Court determined the medical marijuana issue even
  though the regulation of marijuana as an illicit drug—it had interstate
  impact even if the medical provision of it did not, and so they
  were willing to look beyond and apply the Wickard case, which
  they reaffirmed the suitability, and conclude that that had a significant
  effect on commerce, the regulation in general. You didn’t
  have to look at the specific regulation.
  It would seem to me that that—
  

• 

  Senator SCHUMER

  At 01:25:53
  3 seconds

  Would you different that from Viejo?
  

• 

  Judge ROBERTS

  At 01:25:56
  51 seconds

  Well, in Viejo, you’re dealing with particular
  species, and the difficulty—and again, it was what another court
  had looked at, not the activity that was regulated, the interference
  with the species, but the activity that was taking place and having
  that impact, the building of a housing development.
  Other courts, the Fifth Circuit in the GDF case, had argued that
  the approach of looking at the housing development rather than
  the particular activity was inconsistent with the Supreme Court’s
  decisions, and what I said is that if there’s another basis on which
  to evaluate it, and there was, and the panel opinion noted, we don’t
  have to reach these other grounds because of our conclusion, that
  we should focus on those other alternative grounds and see if we
  could base and uphold the Act on those.
  

• 

  Senator SCHUMER

  At 01:26:47
  1 hour

  I understand, and my time is getting close to
  the end, so—I’m not sure I agree with the large difference between
  Raich Viejo, and the hypothetical that I gave. I think the Viejo case
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  and the hypothetical I gave were limited, but let me just conclude
  with this.
  You know, people wonder, what is all the fuss about? The answer
  is very simple, and that is that, if certain viewpoints became majority
  viewpoints on the Supreme Court, we could see the dismantling
  of the entire apparatus to protect our rights through the narrowing
  of the Commerce Clause, which I said Justice Thomas already
  agrees should be narrow, and we have a President who may have—
  he at least has one more nomination—who said he wants to appoint
  people in the mold of Thomas.
  Not only would the Endangered Species Act go, Title VII would
  go. OSHA would be gone. The Controlled Substances Act and prohibitions
  against personal possessions of biological weapons could all
  be unconstitutional.
  Justice Thomas’s views on this issue are similar to others.
  He is
  against any substantive due process right under the 14th Amendment.
  He believes that the Establishment Clause would allow the
  establishment of State religions—of religions in the States. And so
  this is a—these are serious, serious things. He would invalidate
  campaign finance laws. He would eliminate affirmative action.
  Now, he is just one Justice, but I think it is our job here in the
  Senate on both sides of the aisle, if we feel that that kind of judicial
  philosophy, that kind of legal reasoning does not belong in the
  Court, to find out if nominees ascribe to it, and if they do, look at
  them warily.
  I am not saying you do. As I said, some of the things you have
  said, I found pleasantly surprising today. But I do think it is our
  job and I think we are going to continue to do it.