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.
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?
I consulted with Senator Leahy, Judge Roberts,
and the empirical evidence is overwhelming, without consultation,
that you are fit to go indefinitely.
I’m ready to go.
Is that judgment satisfactory to you—
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.
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—
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.
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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But at what point did you start thinking
about the implications of this in terms of civil liberties and the
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
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.
Did you recognize at that moment that this
might become a time when it would be harder to protect civil liberties?
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.
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?
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.
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—
—with Plessy v. Ferguson and Dred Scott and
others. Is that a fair characterization of your view—
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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?
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
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?
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.
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
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.
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
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?
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.
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
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.
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
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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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?
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.
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
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.
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.
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
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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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.
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—
—came to your attention?
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.
Even when it first came to your attention?
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.
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
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—
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?
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.
Do you still believe that the intent test was
the more appropriate standard by which to evaluate vote dilution
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—
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?
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.
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?
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
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.
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.
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.
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?
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
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—
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?
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.
Thank you for your answers, Judge Roberts.
Thank you, Senator Feingold.
Thank you, Mr. Chairman.
I imagine the reason that you argue different positions is because
people paid you, is that correct?
That’s how I made my living, Senator.
I can relate to that.
I imagine it must be very hard to figure out
what Congress intends. Do you agree with that?
Sometimes it’s easier than others.
And sometimes it’s hard to read the tea leaves.
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?
He is certainly someone from whom I learned a
great deal, yes.
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?
Well, you know, I think if you were able to ask
him, he would talk about being a grandfather, being a father, being
I am asking you.
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
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.
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
Would you agree with the idea that from a
conservative point of view, he was the gold standard?
I think he was a very effective advocate on the
bench for a view of the Constitution that is one of limited and separated
Do you share that view?
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
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?
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
The idea of a dramatic departure under your
watch from the Rehnquist era is probably not going to happen, is
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.
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?
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—
Does that term make you feel uncomfortable?
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?
Well, it means to me generally a change in attitude.
President Reagan always presented an optimistic view.
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.
When it comes to the law, what does the term
‘‘Reagan revolution’’ mean to you?
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.
Does it also mean that when you talk about affirmative
action and you set up a quota system, that is not right?
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.
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?
The proposal was to extend it for the longest period
in history without change.
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?
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?
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.
So between Dole, Senator Kennedy and President
Reagan, a new test was called the ‘‘Totality of the Circumstances?’’
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.
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
Do you think you are more conservative than
I don’t know. I mean I wouldn’t—
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?
We had the Flag Protection Act after the Supreme
Court concluded that it was protected speech.
Show me where the term ‘‘symbolic speech’’ is
in the Constitution.
Well, it’s not, and—
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?
That’s something it’s probably inappropriate for
me to comment on.
What do you think Ronald Reagan thought
His view was that voluntary school prayer was
I think it is not right for elected officials to be
unable to talk about or protect the unborn. What do you think
Well, again, Senator, these are issues that are
likely to come before the Court, and I cannot comment on those
Why are judges more capable of protecting or
talking about the unborn than elected officials?
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.
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
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?
I have seen some things, yes.
How does that make you feel?
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.
How does it make your family feel?
They’re—I would say they get upset about some
of the things, as well—
But you know it is a free country and that is
just the way it is, right?
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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.
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?
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.
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
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.
Do you believe it is being eroded?
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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.
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?
In the conservative world, how does that rank
on the food chain?
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.
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?
It might make it a little harder.
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
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
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?
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.
What would you like history to say about you
when it is all said and done?
I’d like them to start by saying he was confirmed.
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
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Thank you very much. I have no further questions.
Thank you very much, Senator Graham.
Thank you, Mr. Chairman, and thank you,
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?
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.
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—
Oh, it’s not an analysis—
—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?
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
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.
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
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?
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
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?
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—
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.
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.
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.
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.
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.
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.
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
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—
You don’t regret using that term? Could you
think that some people might find it offensive?
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.
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
Well, Senator, I think some 80,000 pages have
been released of memoranda that I wrote—
You can just pick one or two.
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.
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.
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?
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.
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.
No, not on Wickard.
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
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.
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
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?
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
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
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—
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
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
And I’m not expressing—
I understand, but—
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.
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—
And so perhaps I should have taken the approach
Justice Scalia took.
He wouldn’t tell this Committee whether
Marbury was correctly decided.
I am glad you didn’t do that.
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
My approach has been a practical one, not an ideological one, but
a practical one, but saying—
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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.
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—
Wasn’t Lawrence an outgrowth of Griswold in
terms of what the right of privacy is to consenting adults in their
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.
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?
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—
Would you different that from Viejo?
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.
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
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
Justice Thomas’s views on this issue are similar to others.
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
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.