Good morning, ladies and gentlemen. Good
morning, Judge Roberts.
Good morning, Mr. Chairman.
We will now proceed to the third round of
questioning, which will be abbreviated. There are six Senators on
the other side of the aisle who have requested additional time.
There will not be a third round for any of the Senators on the other
side of the aisle.
We will go into a closed session a little before 11:00, and we will
turn to the outside witnesses hopefully at 11:30. And we project a
conclusion late this afternoon, but that will depend upon the sequence
I now yield to my distinguished colleague, Senator Leahy, for 20
Thank you, Mr. Chairman.
Judge, you are really going to miss us, aren’t you? You are going
to miss doing this every day. It is—you are not even going to answer
that one, are you?
Well, it’s a once-in-a-lifetime experience, Senator.
When we left off the other day, you and I were
discussing the Supreme Court’s decision in the Christine Franklin
Title IX case. This, for those who may have forgotten, is the case
of very, very serious sexual abuse of a young girl by her teacher.
It makes your skin crawl just to hear the facts of it.
Now, Justice White’s opinion for the Supreme Court rejected
your arguments, your technical legal arguments. You had argued
she should not be allowed to sue for damages. He wrote, ‘‘From the
earliest years of the Republic, the Court has recognized the power
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of the judiciary to award appropriate remedies to redress injuries
actionable in Federal court.’’ He went on to note that, ‘‘To disallow
a damages remedy in this case would be to abdicate our historic
judicial authority to award appropriate relief in cases brought in
our court system.’’
And then, most tellingly, Justice White wrote that your argument
that Christine Franklin’s remedy should be limited to back
pay and injunction, a position you had reiterated a couple days ago,
he said that conflicts with sound logic. He went on to say it is
clearly inadequate. And he wrote that back pay does nothing for
her and that prospective relief accords her no remedies at all.
Now, the reason I raise this case is not that it is one of those
rare ones where you were on the losing side, but I raise it because
I felt it was a case about what our courts should do, including
doing justice and remedying rights and protecting Americans.
So my question to you is this: Do you now recognize that the Supreme
Court’s view in the case as set forth in Justice White’s opinion
was the right one and the positions of the United States in your
brief were the wrong ones?
Well, as a judge looking at it, obviously when
you lose a case, as you point out, 9–0, it’s a pretty clear signal that
the legal position you were advocating was the wrong one. The position
the administration took in that case was the same position
that the court of appeals had taken. In other words, what the Supreme
Court did was reverse the lower court, so—
I’m just explaining why the position we took
prior to the decision may have looked different than it did after the
And I understand that. I thought I sort of laid
that out earlier. But my question is: Do you now accept that Justice
White’s position was right and that the Government’s position
Well, I certainly accept the decision of the Court,
the 9–0 decision, as you say, as a binding precedent of the Court
and, again, have no cause or agenda to revisit it or any quarrel
with it. The issue, of course, was the one of what remedies are
available for an implied cause of action. The reason I think that
the lower courts came out the other way and the Supreme Court
came out one way is that you’re dealing with an implied cause of
action. In other words, it hasn’t been spelled out and—
But I think the Supreme Court was looking and
acting, as they felt, within the law for an area that would actually
bring justice. That was basically my point. It may have been implied,
but they looked within the case, they looked within the law,
and they found an area to bring justice. And I realize hard cases
sometimes make not the best law, but I think this case is a hard
case but it made good law. Would you agree?
I have no quarrel with the Court’s decision, Senator.
You have been involved a great deal in the development
of the Supreme Court authority limiting the ability of individual
Americans to ensure they actually receive the rights and
protections that Congress has mandated under Spending Clauses.
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In the Reagan administration, you advocated legislative responses
to Maine v. Thiboutot. That is how the Supreme Court tells me it
is pronounced. It is not how those of us who live with those of
French-Canadian descent might say it. But you strongly criticize—
that was a case that recognized broad access to courts to vindicate
your rights under Federal law. You criticized the damage supposedly
caused by that case in a 1982 memo. And then you wrote
briefs and argued before the Supreme Court in the 1980’s and the
1990’s. We talked about some of these—South Dakota v. Dole,
Wilder v. Virginia Hospital, Suter v. Artist M., Gonzaga University
v. Doe. And you called for the narrowing of Congress’s spending
powers and limiting the right of individuals to sue to compel the
protections Congress required under Federal law.
I worry about this if an individual loses their right to sue if the
State or the administration, whoever the administration might be,
doesn’t protect their rights. For example, if the only remedy for a
State’s refusal to live up to its obligations under a spending power
enactment, like Medicaid or another such program, is action by the
Federal Government, and the Federal Government doesn’t act,
where does that leave the rule of law? Where does that leave America’s
sense of justice if an individual can’t then step in and seek action?
Well, two points, Senator. The issue in the
Spending Clause cases that you refer to—Wilder, the later one, the
Suter case, and the Gonzaga case that I argued when I was in private
practice—the issue is one of congressional intent. The question
is: Did Congress intend there to be a private right of action? That’s
what the courts are trying to figure out. And if Congress did intend
there to be a private right of action, if Congress intended this to
be actionable whether through 1983 or under—Section 1983 or
under the law itself, then there would be a private right of action.
In some cases, Congress doesn’t intend that, and in those cases,
there wouldn’t be. I would say—
But—no, go ahead.
I was just going to make the point that in those
cases, of course, I was advocating a position for a client. I did have
occasion as a judge to address a Spending Clause case. It was a
case called Barber v. Washington Metropolitan Area—
But that one, the statute was pretty darn clear,
the Metro case.
Well, it was a 2–1 decision, divided decision on
a court that doesn’t often issue 2–1 decisions. There was a lengthy
dissent saying that Congress did not have the authority to require
Judge Sentelle dissented?
Judge Sentelle dissented.
I read that. I don’t want to go into that. He is
not here before us. But what I worry about, though, is the trend
of these to say that Congress intended these programs, more like
Medicaid, commitments there to be kind of an exclusive bargain between
the Federal Government and the State government. And
that raises a question in my mind. Do the courts really think we
have made empty promises? I thought of this the other night because
I remember what you said about the empty promises of the
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Soviet Constitution. But wouldn’t it be an indication we were making
the same kind of empty promises if individuals can’t sue if they
are left as innocent bystanders who are harmed, but they have no
remedy if the State is negligent in acting or if the Federal Government
doesn’t protect it? I mean, why shouldn’t they be able to sue
to get the promises that are made in these bills so that it is not
like the Soviet constitution, great promises but empty?
Well, the issue is not whether they should be
able to sue or not. The issue is whether Congress intended them
to be able to sue or not. The issue doesn’t even come up if Congress
would simply spell out in the legislation we intended these individuals
to have the right to sue in Federal court. That would prevent
the issue from even coming up.
All of those cases we have been talking about arose because Congress
did not address the question, and, therefore, the courts—
Yes, but Congress assumes the States and the
Federal Government are going to do what the law spells out. We
don’t do it as an empty promise. We assume they are going to do
it. When they don’t do it, if you are developmentally disabled, Medicaid
kids, foster kids, rape victims and so on, shouldn’t they be
able to have a voice?
Well, if Congress wants them to sue, all Congress
has to do is write one sentence saying, ‘‘Individuals harmed
by a violation of this statute may bring a right of action in Federal
court.’’ There are laws where Congress says that, and that question
never comes up.
The issue in the various cases that we have been talking about,
including in the Barber case, where I ruled that the individual did
have the right to sue when I was judge, the issue is, What did Congress
intend? And all too often that issue is not even addressed. I
don’t know whether it’s because of inadvertence or it’s because of
an inability of Congress to agree, and they both sort of—both sides
sort of say, well, let’s let the courts figure it out.
Well, maybe it is an assumption of those of us
who take an oath of office here to uphold the laws that the State
government, those officials who take similar oaths of office, or the
administrators in the national government who take similar oaths
of office are actually going to do what they have sworn to do.
Let me—can I move on? Because it also goes to—
and I understand your point on this, and we could probably debate
this all morning long. But I hope you understand my concern,
which is a concern of lot of American people in this area.
Let’s go to another precedent that moved me a great deal, Gideon
v. Wainwright. As a young law student, I had an opportunity—my
wife and I had an opportunity to have lunch with Hugo Black
shortly after that, one of the most memorable times I had. He was
a former Senator. He recognized the Sixth Amendment’s guarantee
to counsel in a criminal case was a fundamental right to a fair
trial. He called it an obvious truth that in an adversary system of
criminal justice, any person hauled into court who was too poor to
hire a lawyer cannot be assured a fair trial unless counsel is provided
for him. There is a wonderful book, ‘‘Gideon’s Trumpet,’’ that
Anthony Lewis wrote.
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Doesn’t Gideon stand for the principle that to be meaningful such
a fundamental right as the right to counsel requires assurances
that can be exercised?
Yes, I think so. I have often said that a lot of
these difficulties, particularly in the area of legal errors being
raised and collateral review, a lot of those difficult questions could
be avoided if people had competent counsel from the very beginning.
Well, doesn’t the same principle embodied in
Gideon, that the Constitution guarantees a person’s ability to exercise
fundamental constitutional rights, doesn’t that apply to other
constitutional rights? I mean, to be meaningful, if we have these
rights, they have also got to be real in people’s lives.
Well, I think the basic instinct and genius behind
the Gideon decision was that without counsel to protect people’s
rights, they were going to forfeit them. They were going to
waive them due to ignorance or inability to appreciate the proceedings,
and that is why you need counsel at that stage. It is not
simply because you have a right to counsel in the abstract. It was
the recognition that having counsel is a way to ensure the protection
of your other rights that you may not even be aware of.
That could be with a lot of our rights. I mean
we have got to be meaningful. You cannot just say you have them.
I am really struck by your discussion of the Soviet Constitution. I
totally agree with you on that, but we have 280 million Americans
of all different economic and educational backgrounds and everything
else; we have wonderful rights. Our Bill of Rights is, I think,
one of the most amazing things ever written by a democratic people.
But the rights are only there if they are meaningful in people’s
lives, if they can be enforced. And ultimately it may come right
down to the courts.
Well, I think—
I mean Hugo Black’s opinion is a pretty strong
You suggested I may have over-read your memo following the
Lebanon operation. You said it was really talking about veterans’
rights, but actually your memo, what struck me, it does not say
veterans’ rights, it says ‘‘War Powers’’ on it. The Constitution vests
the power of declaring war in Congress, not the President. I still
have a hard time squaring that with your inherent authority argument
you advanced in that memo. Maybe I could ask it this way.
Do you continue to believe that the President has inherent authority
to invade a sovereign nation absent attack by a foreign power?
Senator, that is a very abstract hypothetical.
There are situations that arise when an Executive may determine
that that type of action is necessary. That may be challenged. I
don’t think abstract questions like that should be answered. There
have been situations in our past where that authority has been
claimed, both abstractly and concretely. Certainly Congress has the
power to declare war, but as you know, of course, there have been
several incidents in our history, the Korean War, the Vietnam War,
others where there has been authorization of the use of force, but
not a declaration of war.
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You know the history, when Madison’s original proposal gave
Congress the authority to make war, and he thought that should
be changed so that the Executive would have the authority to respond
to an invasion, and I appreciate that part of your question.
You also have George Washington, if you are
going to quote people back at that time. George Washington ‘‘no offensive
expedition of importance can be undertaken until after Congress
shall have deliberated upon the subject and authorized such
a measure.’’ So I will go to the flip side, can Congress stop a war?
Well, that’s of course a difficult question. Now,
Congress has always exercised the power of the purse with respect
to activities of that sort, and regulated the funding for that type
of activity, and that has of course always been the core of
Congress’s authority. But the question to actually terminate hostilities
that the Executive has determined to initiate, either with
the authorization of Congress on in the situation of congressional
silence or acquiescence, to go back to the Youngstown decision. The
issue of what Congress’s authorities are to terminate short of exercising
its power with respect to the purse, those are unsettled and
I think have to be addressed in the context of a particular case.
The memo to which you refer, again, I was a lawyer for the Executive,
and any cautious lawyer for the Executive, without regard to
the administration, would be alert for any type of suggestion that
there are limits on that power, just as—
Showing how cautious you were, you wrote, in
another memo regarding the invasion of Grenada, ‘‘There’s no clear
line separating what the President may do on his own and what
requires a formal declaration of war,’’ but you conclude the exercise
of Presidential power in connection with the Grenada incident fell
comfortably on the legitimate side of the line. What is a situation
that falls on the illegitimate side of the line where a declaration
of war would be needed?
Well, you know, you take the history anyway, if
you have a situation like the Korean War taking place without a
declaration of war, the war in Vietnam taking place without a declaration
of war, I think it’s difficult to articulate in the abstract
where the line would be other than the fact that throughout our
history there have been those significant types of engagements that
I suspect all of the people involved in them thought were a war
that did not have a congressional declaration of war. So again,
where the line is drawn or how it would be drawn in a particular
case, or even what the role of the courts would be. As you know
in these areas there’s often an initial dispute, is this a judiciable
question that the Court should entertain in the case of litigation
and a conflict between the executive and the legislative concerning
something like whether a declaration of war was required. That
would be a question the Court would have to address before reaching
Let me switch gears again. Senator Grassley,
who is not here right now, and Senator Specter and I have worked
for several years to shed some light on the FISA Court, the Foreign
Intelligence Court. A lot of Americans are affected by the decisions.
Most Americans do not know how it works, do not know whether
civil liberties are being curtailed or violated. We added some sun-
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shine provisions. The Attorney General now submits a biannual report
to four congressional committees, details how many people are
targeted for electronic surveillance and so on. It still is inadequate
in that it doesn’t get public reporting. If you are confirmed as Chief
Justice, you are the overseer of the FISA Court. Most do not even
look at that role of the Chief Justice. I think it is probably one of
the most important ones if you are going to talk about our liberties
and how they are protected. Would you be willing to work with
Members of Congress to add more transparency, or do you believe
there is enough transparency in the work of the FISA Court now?
Senator, you said you think this is something
most Americans aren’t aware of. I’d suggest probably most judges
aren’t aware of it. It is a specialized court. I will tell you when I
became aware of it, it’s a surprising institution. It’s an unusual setup.
Certainly different than what we think in our
system of courts.
That was exactly my reaction. On the other
hand, Congress, in setting up the court, obviously concluded there
were reasons to do it that way. I was asked a question about appointing
the judges to it, and my response was that given the unusual
nature of it, very unusual nature, given the usual traditions
of judicial processes, that the people appointed to it have to be people
of the highest quality, undoubted commitment to all the basic
principles, both of the need for the court and the need to protect
civil liberties. That, I think, is very important.
Beyond that I would just tell you I don’t know enough about the
operations of the court at this point and how it functions to be able
to make any representations about what I would do other than that
I certainly appreciate that it’s an unusual establishment and in
many respects doesn’t have the sorts of protections that the normal
judicial process has, and that I would be sensitive to those concerns.
I realize my time is up and I apologize, but I
hope that if you are confirmed that you might be willing—and I
think Senators Grassley, Specter and myself could put together
some suggestions—to at least keep an open mind on.
Because in an electronic age, in a digital age,
when more and more information is being pulled in on Americans
that we sometimes do not even know about, it is frightening. We
want security, but we want to keep in mind—as Benjamin Franklin
said, that people who give up their liberties for security deserve
Thank you, Mr. Chairman.
Thank you, Senator.
Thank you, Senator Leahy.
Senator Kennedy for 20 minutes.
Thank you. Thank you very much, Mr. Chairman.
Good morning, Judge Roberts.
Good morning, Senator.
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In response to a question that was asked by
Senator Biden the other day, you appropriately pointed out that
there were different responsibilities at the local level, State level
and national level in dealing with the challenges our country faces
in domestic policy. I want to talk about what you understand are
the powers that we have at the national level.
And I want to start off with the issue of racial discrimination,
discrimination on the basis of race in our society. We have talked
about this in different ways over the past few days, and our Founding
Fathers did not get it right in the Constitution. We have had
the Civil War and the struggles of Dr. King. Do you believe that
we have the authority and the power to pass legislation to free ourselves
from the stains of racial discrimination?
Now let me ask you about gender discrimination.
We find out over the history of this country, as you are very
familiar, how women have been discriminated against in all forms
and all shapes, and now I want to ask you whether you believe
that we have the power and the authority to pass legislation to free
our Nation from discrimination against women in our society?
Yes, Senator, I do. I’m familiar with the various
legislative enactments in the area that protect the right to work
and so forth, free from discrimination.
Let me ask you about those that are faced
with disabilities. Do you think the 50 million Americans that are
faced with disabilities in one form or another, challenges I like to
say, do you think that we have the authority and the power to free
this country, free our Nation from the forms of discrimination
against those who have disability?
I do, Senator. Now, there are issues that come
up, as you know, in several of the cases before the Supreme Court
on the particular applications of that, cases concerning the question
of do you have the authority under Section 5 of the 14th Amendment
to abrogate State sovereign immunity if the claim of disability
discrimination concerns a State as a defendant. And as you
know, in the Garrett case there was the conclusion that the authority
was not there. Later in the Lane case under Title II of the
Americans with Disabilities Act, the conclusion was that the sufficient
record had been established that there was the authority.
So while as a general matter, there is the authority in a particular
case that may come up against other provisions in the Constitution,
or—in that case the recognition of State sovereign immunity,
and that presents an issue that the courts have to address.
You mentioned the Lane case. That was decided
5–4, 5–4. We are going to hear later today from Beverly
Jones, who was a plaintiff in that case. I have listened to her and
met with her before. She is an extraordinary woman, mother of
two, trying to provide for her family, and a court reporter. The
issue or question whether she was going to crawl up the flight of
stairs to have access to the courtroom and have someone bring up
her wheelchair, or whether she was effectively going to be denied
that opportunity to have access to a courtroom in Tennessee.
Four Justices indicated in their dissent that this kind of an issue
or question ought to be resolved by the States, effectively, 50 States
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ought to be making that judgment. I strongly believe that this
country, in its march towards progress in dealing with disabilities,
with Americans with Disabilities Act, the Rehabilitation Act, the
work that was done with IDEA over a long period of time, that we
have come to the point where we as a country want to invite all
of those with forms of disability to be a part of the main stream.
But that was a 5–4 decision.
And I appreciate the fact you at least mention Lane v. Tennessee,
that you are at least sympathetic to the judgment that Justice
O’Connor made in indicating that accommodation for those with
disability in that case was appropriate.
Well, it’s certainly the precedent of the Court in
that area and I have no quarrel with it. The issue of course is
whether or not Congress has the authority under Section 5 of the
14th Amendment to abrogate the State’s sovereign immunity. It’s
not a policy judgment by the Court about leaving things to the
States or the Federal Government, but a legal determination of
whether the State’s sovereign immunity has been abrogated. And
the Court determined in that case that Congress did have that authority
and that it could authorize the suit against the State institution.
We are going to come back to the kind of legalist
determinations that make an extraordinary difference in
terms of people’s lives. We welcome guidance and invitation about
which particular provisions of the Constitution that we ought to
utilize in order to strike down these forms of discrimination.
Let me ask you a broader question. Do you think having a diverse
society where everyone has an equal chance to participate is
an American value and is fundamental to the strength of our society?
I do, I agree with that statement Senator, yes.
I do too, and I want to just review very quickly
what I consider to be sort of a pattern in different judgments
that you have made over a period of 20 years. We have not got a
lot of time and I am not going to bother going through the memoranda
unless you would like to. But for someone who is a minority,
a woman, disabled, and looks at a pattern over 20 years where you
were actively involved in the Reagan administration against affirmative
action—I am leaving out the whole issue of quotas, all of
us oppose quotas, we are talking about affirmative action—and you
expressed strong reservations about the affirmation action. Then in
1991 in the FCC case, you as the advocate for the U.S., the Acting
Solicitor General, refused to take the position of the FCC, your own
client. And the FCC filed briefs in favor of its own affirmative action
program and your office opposed the FCC. This is, as I understand,
Part of the difficulty that we have, Judge Roberts, is we do not
have your records on affirmative action. They were in the Reagan
Library and at some time they became misplaced and we do not
have those records to be able to give a complete review of these
documents, although what I am stating here is factual. We do not
have the information that we requested from the Solicitor General’s
Office, who, as you appropriately mentioned yesterday, is America’s
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In this particular case, the FCC—with its affirmative action program
that recognized that with all of the broadcasting and the television
stations there were very few minority-owned stations and
they had a very modest program—petitioned you to intervene on
behalf of the FCC. But you made a judgment that you would enter
a brief in opposition to it. The Supreme Court came out in favor
of the FCC. I know that the standard altered and changed subsequently
on that case.
And then in 2001 you took a private case to basically ensure that
the Department of Transportation’s affirmative action program
that applied in this case to the highways, which has been overwhelmingly
supported by the Congress year in and year out, would
be effectively undermined.
The point I am asking here is, given these series of actions over
a period of time, what do you think in your record would give some
sense of hope to women, to minorities, to those that are disabled
that are not looking for a hand-out, but just looking for a chance
in this diverse society to be able to have an equal opportunity?
Well, Senator, I think there’s a great deal in my
background that you could look to in that respect. For example, you
could look to the cases in which I argued in favor of affirmative action.
I’ve argued on both sides of that issue. In the Rice v. Cayetano
case, for example, before the Supreme Court, I argued in favor of
affirmative action for Native Hawaiians. I lost that case but I was
arguing on the side of affirmative action.
There are other episodes in my background that people could
look to. For example, I regularly participate in, when I was at my
law firm, a program sponsored by the firm, a legal reasoning program
for minority and disadvantaged students going on to law
school, to help them prepare for the rigors of law school, so not simply
that they would be chosen, selected and admitted into law
school, but be in a better position to be able to succeed once they
With respect to the FCC case that you mentioned in the Metro
Broadcasting case, I think a fuller understanding of the situation
there is necessary. The United States had already taken a position
before the FCC opposed to the FCC program. That put the Solicitor
General’s Office in the position where they had—the position of the
United States, which was opposed to it, and the FCC position
which had prevailed before the District of Columbia Court of Appeals.
I authorized the FCC to defend its position in court. That
was a discretionary decision. I didn’t have to do that, but I thought
the Supreme Court, in a situation where the FCC, part of the
United States and the formal position of the United States, before
I had ever gotten involved in the case, were at loggerheads, that
the Court should have both views and decide the case. They did decide
it in favor of the FCC 5–4, and as you noted in the other case
that I participated in later, the Supreme Court overturned that decision.
The long and short of it is, that if you look at my record on the
question of affirmative action, yes, I was in an administration that
was opposed to quotas. Opposition to quotas is not the same thing
as opposition to affirmative action. That was something that President
Reagan emphasized repeatedly. I argued against quotas in the
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FCC case. I argued in favor of affirmative action in the Hawaiian
case. In terms of my own personal involvement, I’ve been active in
programs that promote the interests of minorities and disadvantaged
to participate fully in our society.
As you know, the Hawaiian case was not an
affirmative action case. You gave that response to Senator Durbin
in the written answers when you were promoted to the circuit
court. The case itself indicates that it was not an affirmative action
case. All right. Well, let me go—we will agree to differ.
I have just a short time left.
On the EEOC, there is the quote that you have. This is the
Equal Employment Opportunity Commission that was set up in
1964 as part of the 1964 Act. And it was basically set up at the
strong suggestion and recommendation of Everett Dirksen, who
played a key role in trying to deal with the discrimination of
women, of race, of ethnicity, and national origin. And so they set
up a Commission in order to be able to take the various complaints.
They did not think they would have many complaints. The
first year they had 9,000 complaints, and it has been doing extraordinary
work ever since.
You mentioned in your memorandum that we should—you are
familiar I think with these words; they have been written up in the
journals and you can probably recognize them. ‘‘We should ignore
the assertion that the EEOC is un-American, the truth of the matter
Is there some reason that you would make a comment like that,
‘‘the truth of the matter’’ ?
Well, Senator, you have to read the memo I
think in its entirety to put it in context. That was not my language.
That was the language—the ‘‘un-American’’ reference was the language
that was employed by an individual who had a case before
the EEOC. He actually won his case before the EEOC, but he
didn’t like the difficulty and the time involved. He wrote to the
President, and he said two things, one, that his treatment at the
hands of the EEOC was un-American, and two, that the President
has promised in the campaign to abolish the EEOC, and he wanted
to hold the President to that promise. It was my responsibility to
figure out how to respond to this complaint that had been received.
And how we responded was by protecting that EEOC from interference
by the President in any political way, by protecting the
EEOC from this sort of complaint. We did not go to the President
and say, ‘‘You’ve got to do something about the EEOC.’’ We didn’t
pass on the objection at all. And the point of the letter, when you
read the whole memorandum, you see two points. The first is that
I was unable to determine, in the short time I had to respond,
whether or not the President had made such a pledge to abolish
to EEOC. I simply didn’t know, and I said that in the paragraph
if you read it. And that’s what ‘‘the truth of the matter notwithstanding’’
is referring to, the question of whether or not the President
had promised to abolish the EEOC. I say right in the memo
that we cannot determine that, and whether his treatment was un-
American or not is beside the point. We don’t interfere with the ac-
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tivities of the EEOC. That was the conclusion and that’s what we
did in that case.
Well, Mr. Chairman, I would ask that the
memo by included in the record.
Without objection, it will be included.
You say that the assertion that the EEOC is
un-American—the ‘‘truth of the matter notwithstanding’’ was your
You do need to read the prior clause, prior sentence.
I have read it a number of times and I will
include it in the record and we will let the record stand.
When Senator Kennedy’s line of questioning
is finished and he has used his time, he will have the memo and
you can respond.
At the outset of my questions I talked about
Earl Warren, and you were enormously complimentary about Earl
Warren, about him understanding not only the law, but also understanding
the importance of the Chief Justice bringing other Justices
together in a very important way in terms of dealing with a
societal issue and a question. And I think we are a fairer country
and a fairer land because of this.
This was really the bringing together of the mind and the heart.
Oliver Wendell Holmes said: It’s dangerous to think that legal
issues can be worked out like mathematics. And another nominee
who was here not too long ago, had this to say about the head and
the heart. ‘‘What you worry about is someone trying to decide an
individual case without thinking out the effect of that decision on
a lot of cases. That is why I always think law requires both a heart
and a head. If you do not have a heart, it becomes a sterile set of
rules, removed from human problems and it will not help. If you
do not have a head, there is the risk that in trying to decide a particular
person’s problem in a case, that may look fine for that person,
but you cause trouble for a lot of other people, making their
lives yet worse.’’
In the remaining moment, recalling Justice Warren, just thinking
through what other nominees have said about the importance
of a heart and a legal mind, and you as a Chief Justice together,
in telling the American people how you were inspired by Chief Justice
Warren at a very important and critical time in our Nation’s
history, what could you tell them now that could give them the assurance
that you might be a similar kind of Chief Justice should
you be approved by the Senate?
Well, Senator, my point with respect to Chief
Justice Warren was that he appreciated the impact that the decision
in Brown would have, and he appreciated that the impact
would be far more beneficial and favorable and far more effectively
implemented with the unanimous Court, the Court speaking with
one voice, than a splintered Court. The issue was significant
enough that he spent the extra time in the reargument of the case
to devote his energies to convincing the other Justices—and obviously,
there’s no arm-twisting or any of that. It’s the type of collegial
discussion that judges and justices have to engage in of the im-
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portance of what the Court was doing, and an appreciation of its
impact on real people and real lives.
I recognize as a judge, and I recognized as a lawyer, that these
cases have impact on real people and real lives. I always insisted
when I was a lawyer about getting out into the field and seeing it.
If I was arguing a case involving Native villages in Alaska, I went
to the villages. If I was arguing a case about an assembly line, I
went to the assembly line. You had to see where the case was going
to have its impact and what its impression was going to be on people.
Now, none of those cases were as important as Brown v. Board
of Education, but the basic principle is the same. I think judges do
have to appreciate that they’re dealing with real people with real
cases. We obviously deal with documents and texts, the Constitution,
the statutes, the legislative history, and that is where the
legal decisions are made, but judges never lose sight, or should
never lose sight of the fact that their decisions affect real people
with real lives, and I appreciate that.
My time is up, Mr. Chairman. Thank you.
Thank you, Senator.
Thank you, Senator Kennedy.
As I said when Senator Kennedy was questioning you about the
EEOC, I did not want to take his time to have him present the
memo to you, the limited time that he had, and it has been made
a part of the record.
Senator Kennedy, if you would make the memo available now
to—Senator Kennedy, if I could have your attention?
Yes, excuse me.
If you would make the memo available to
Judge Roberts now so that he can comment on it now without having
taken your time to do that.
As you know, this has been redacted, and so
I think in fairness to him and in fairness to the Committee, if we
can get out the other redactions, it would be a more accurate and
Well, if it is possible for Judge Roberts to
deal with the redactions, that would be fine.
I think the redactions simply identify the individual—
the individual who was making the complaint, who had his
case. The only thing I would emphasize is that the language that
was quoted was part of a sentence, and the question of what ‘‘the
truth of the matter’’ is referring to goes to the first part of the sentence
that was not read, which is the assertion, the assertion that
the President promised to abolish the EEOC.
That was the matter
that I could not determine in the time available whether that was
correct or not, so I said, ‘‘The truth of that matter notwithstanding.’’
And I also emphasized that any reference to the phrase
‘‘un-American’’ is always in quotes to make it clear that that’s what
the writer of the letter said, and certainly not what I said, and was
certainly not my view then or now.
Senator Kennedy, do you want to follow up
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Well, I think we have been over this. After all
is said and done, about finding out what President Reagan wanted
to abolish or not abolish, that really wasn’t the issue or the question.
And the question is about whether—the use of ‘‘un-American’’
is obviously unacceptable and they are dismissing that. But Judge
Roberts said the assertion the EEOC is ‘‘un-American’’—and he is
quite right saying that they were dismissing that word. But then
he adds, ‘‘The truth of the matter notwithstanding.’’ I think it is
not unreasonable to assume that he somehow was disparaging the
EEOC. That is all. I am glad to let the record stand, Mr. Chairman.
Well, I am glad to let the record stand, just so
long as the whole memorandum and the entire sentence that is
being discussed is in the record.
We have finally come to one point of agreement.
Senator Feinstein for 15 minutes.
Thank you very much, Mr. Chairman.
I want to just say one thing, Judge Roberts. I don’t really know
what I am going to do with respect to voting for you or voting
against you. I had one impression of you when we had our hour
in private, and to a great extent, I think I came out of that meeting
with a different sense of you. And, of course, the impression that
I have today is of this very cautious, very precise man, young, obviously
with staying power. I mean, you have gone through this in
a remarkable way. I am convinced you will be there, God willing,
for 40 years. And that concerns me even more because it means
that my vote means that much more. And I come from a different
side than my Republican colleagues do, with different concerns, I
think, and different life experiences.
Last night, I gave you the Plyler memo. Senator Durbin asked
a number of questions. I asked a few. And you read that memo, I
hope, last night.
I did, Senator, yes.
Do you believe you were wrong?
Well, Senator, on the underlying question—
Could you say you were wrong if you believed
you were wrong?
Well, I can say that the—the reason I’m hesitating—
and this is what was brought out in the Congressional Research
Service memo that you attached to it. These issues come up
all the time in related questions. I have no quarrel with the Court’s
decision. As you know, it was a 5–4 decision on the legal question,
not the question—I certainly believe every child should be educated.
Regardless of immigration status?
My own view is that if you have a child, he or
she should be educated, and you worry about status later.
Just say yes, regardless of immigration status.
As a personal view, yes. It’s a separate issue as
a legal question, as you know. And the Court in Plyler split 5–4.
Among the dissenters, the people who agreed with the position that
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the administration—or the position discussed in the memorandum
were Justice White and Justice O’Connor. And I would not take
their subscribing to the position of the dissent in Plyler v. Doe as
suggesting that they in any way have less than fully developed and
sensitive concerns about children and education. Justices White
and O’Connor don’t, and they’re not subject to criticism on that
score simply because their understanding of the law came out in
the dissent in Plyler v. Doe.
So I would just try to make sure that people appreciate that saying
that this is what you think the legal determination was—because
the issue there was the Texas Legislature, the representative
of the people of Texas, had reached a certain determination about
funding and how they wanted to fund particular activities. And
that was what the litigation was about. It’s not a question about
whether you believe in educating children or not. I don’t think Justice
O’Connor didn’t believe that children should be educated, yet
she was in the dissent in that case.
I understand. Let me just give you two
human dynamics. One of the people in public life that I most respect
is a mayor in my State of a small immigrant community
called Orange Cove. His name is Victor Lopez. I have known him
for about 10 years. I am a former mayor, and I have watched him
try to build a town from nothing. I was there. There weren’t sidewalks.
There weren’t schools. He has managed to do it. He has
given his people—they are all agricultural workers—a sense of
pride and dignity.
To me, that is the American dream. It is the Federal Government’s
job to keep illegal immigrants out, but once they are here,
it is our job to see that they have certain basic rights, I think,
among them education.
Another interesting twist to this is in 1986, an amnesty was
passed. Plyler was in 1982. If the decision had gone the other way,
you could have seen the enormous problem that would have happened
in 1986 when all these children, then legal absolutely, still
would have been denied school. So I think that is an interesting
Now, Duke Law School Professor Katherine Fisk examined nine
cases heard by you while you have been on the court of appeals.
Her review concluded that you ruled in favor of a business each
time. Consequently, she made this prediction: you’re going to be a
fairly reliable vote against workers’ rights across the board.
Would you respond to that, please?
I think the conclusion is wrong. I would suggest
that any examination of nine cases is too small of a statistical sample
to draw any conclusions of that sort. I know that I’ve ruled
against corporations on a regular basis on the D.C. Circuit. I think
I just saw a study, a more comprehensive one, that suggested I
tended to rule against corporations more than the average judge.
I don’t want to—I just skimmed the article, but it is quite often the
case, for example, a lot of the business on the D.C. Circuit involves
regulatory issues, agencies regulating corporations. Are you ruling
in favor of the corporation or the agency? And I know I regularly
rule in favor of the agency. Sometimes I rule against the agency.
I like to think it depends upon the particular law and the par-
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ticular facts. But I haven’t seen that study, but, again, nine cases,
I am sure you could fine nine cases going the other way as well.
Thank you. I want to move on.
A number of people on our side are very concerned about Executive
power and what we perceive, either rightly or wrongly, to be
greatly expanded Executive authority in recent years, causing enormous
concern in a number of different ways.
Let me go back into your past. In trying to get Senate documents,
one of the documents withheld was a draft memo titled,
‘‘Establishment of NHAO,’’ the Nicaraguan Humanitarian Assistance
Office. This office was used by President Reagan to give aid
to the Nicaraguan contras following the passage of the Boland
amendment, and that was a prohibition on providing funding to the
What involvement did you have with the Nicaraguan Humanitarian
Senator, I’m not familiar with the memorandum.
If it was withheld, it was probably withheld from me as well, and
I don’t recall any involvement. So, you know, I don’t recall any—
Okay. Fair enough.
I do know that there was an issue—an issue was
raised. I have seen memoranda that I know have been released
about private fundraising activities, and I do know that I gave advice
in order to make sure that they didn’t engage in lobbying activities
in order to be consistent with the Boland amendment. I’ve
seen those, but beyond that, I’m not recalling anything.
Do you believe that the administration’s provision
of funds to the contras exceeded the Executive’s power in
light of the Boland amendment’s prohibition on funding the
You know, it’s not something I’ve—I just sort of
know what I’ve read in the papers about it. And, you know, it
seemed to me that it did. But, again, that’s just based on—it’s not
based on a study or a legal analysis, just sort of—I think a lot of
Well, it’s a pretty simple question. I mean,
when the Congress passes a law that says don’t fund something
and the Executive finds a covert way to fund it, and as you know,
one of the great redeeming qualities of President Reagan was that
he gave an admission of wrongdoing, and I think the American people
accepted that. He was able to admit a mistake, which I tend
to think, you know, is hard to do in this arena. But in a way, it
is a sign of a big person to be able to come forward and say, ‘‘I was
wrong.’’ So on its face, what you are saying, if I understand you,
is you do believe that the provision of funds exceeded the Executive
power in this instance.
Well, again, I haven’t done a legal study, but
based on what I know, which is just what every citizen knows from
reading—I think it all took place after I was no longer in the Government,
or at least came to light after that. It seemed to be inconsistent
with the law.
Let me ask you a general question then. If
an Executive exercises power in direct violation of an Act of Congress,
is such an act unconstitutional?
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Well, the answer depends, Senator, and this is
where you get back to the Youngstown analysis, where Justice
Jackson said there are three categories: you can act with Congress’
support, being unclear what Congress’s position is—and he recognized
a third category where you can act—the Executive may act
in the face of a congressional prohibition. And there are certain
areas where the Executive does have authority to the exclusion of
Congress. You know, without stating a legal view, for example, one
that law professors regularly talk about is the pardon power. In
other words, that’s given expressly to the President in the Constitution.
And restrictions, if Congress were to pass a restriction on
the pardon power, does the President nonetheless have the authority
to act under the Constitution? That’s a difficult question. But
it may be that the President’s authority would trump Congress’ authority.
So I can’t answer a question in the abstract without knowing exactly
what the record is and what the situation is. What Justice
Jackson said in Youngstown, though, is obviously true, that if the
President is acting in the face of congressional opposition, his
power is at its lowest ebb. As Jackson put it, it includes his powers
less whatever powers Congress has. So if it’s in an area in which
Congress has legitimate authority to act, that would restrict the
Which this case was. All right.
Senator Kennedy engaged you in, I think, a substantive discussion
on the civil rights issue, and you did let a little bit of the man
come through, and I commend you for that. Thank you very much.
Let me talk about Gonzaga for a minute, because if I understand
it, you argued that the Spending Clauses are not the supreme law
of the land but should be viewed as contracts between the Federal
Government and the States, right?
It was not a dispute about it being the supreme
law of the land. There is no dispute about that, that when Congress
passes legislation, under the Supremacy Clause it’s the supreme
law of the land.
The question is what remedies are available. It’s a very simple
problem. You folks give money to the States, and you say you can
spend this money on educational programs. But if you accept our
money, you have to do this, this, and this.
And the question is, well, what happens if somebody
comes into court and says they accepted the money, Congress
said if you take our money you have to do this, they didn’t do it,
they violated my rights under this provision, what happens then?
Now, in many cases, Congress will say if these rights are violated,
you can sue in court and you can make that State institution—
in this case, not a State institution, a private university. The
same thing, they’ve accepted the funds. You can make them pay
damages. But in other cases, the argument is, well, the condition
was imposed by the Federal Government, and the Federal Government
should enforce any violations. And you don’t necessarily have
the right to sue for damages. That’s the question.
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It’s an issue that would never come up if Congress would say in
each law if you violate this provision, you can sue in Federal court,
or you can’t sue in Federal court. Or as in this case, we are going
to set up an office in the Department of Education that is going to
police compliance, and if you violate this provision, that office is
going to come down on the university and make them comply,
make them do whatever they need to do to get back into compliance.
There’s no dispute that the university in this case is bound by
the condition. The question is: Does an individual who’s harmed by
their violation get to sue about it? And sometimes it comes out that
they can, as in the Wilder case. Sometimes it comes out that they
can’t. The determination is that Congress did not intend there to
be a private lawsuit to enforce that. And that was the conclusion
in the Gonzaga case.
Well, let me ask you: Do you believe that
State obligations created by Congress through the Spending Clause
are enforceable by citizens in the courts?
Well, the answer there is it depends on that law.
In Gonzaga what the Court determined was that provision at issue
there was not enforceable by private citizens in the courts. It was
enforceable by the Federal Government. The Federal Government
can cut off the funds. More likely, the Federal Government can enforce
the provision through proceedings against the university.
In the Wilder case, a different statute, the Court determined the
condition in that case, the Medicare—or Medicaid funding case was
enforceable, a private citizen could go into court because the review
of Congress’ intent in that case came out differently than it did in
the Gonzaga case.
Thank you. Well, let me just finish this
quickly. I am not a lawyer and I don’t really know how to ask this
question, but let me try. When is it a contract and when is it the
law? Because if it is a contract, that affects a whole host of laws
that we pass that are very important—Medicaid, Title IX, No Child
Left Behind, even the Internet Protection Act, all of these things.
So when does a contract attach?
It’s always a contract, and sometimes if the intent
of Congress is that private parties be allowed to sue, it’s more
than a contract. But it’s always at least a contract.
So the intent has to be a specific intent.
It doesn’t—no, the courts don’t require that.
They don’t require that you specifically say you have the right to
sue. But the Court has to look at it and try to figure out did you
intend—when you put this provision in, did you intend private parties
to be able to sue for damages? Or did you expect the Department
of Education to enforce that and have the authority to cut off
the funds or to impose other conditions because a university is violating
it? And as I’ve said, some cases come out one way, and some
cases come out the other way. But in each of those cases, what the
Court is trying to do is figure out what you, the Congress, meant
in that statute.
I think my time is up. Thank you very much.
Thank you, Senator.
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Thank you, Senator Feinstein.
Senator Feingold, you are recognized for 20 minutes.
Thank you again, Mr. Chairman, for your
willingness to allow us this additional round, and thank you, Judge
Roberts, for all your patience throughout this whole process.
Thank you, Senator.
A topic we touched on in our meeting in my
office in July was the issue of judges going to judicial education
conferences at sometimes fancy resorts, which are put on by ideologically
oriented groups and paid for by private corporations that
sometimes even have cases pending before the judges in attendance.
And when we spoke, of course, you had been nominated for
the Associate Justice position, and our conversation concerned your
personal interest in attending such events. As I remember, your
answer was that you said you would rather spend your free time
with your family, which I thought was a pretty good answer.
But now you have been nominated for Chief Justice, and one of
your duties is to head the Judicial Conference, which among other
things, sets the ethics policies for the Federal judiciary. And this
is one area where I think Chief Justice Rehnquist might have
taken a different course. He took a number of steps to essentially
leave this ethical question up to the personal decision of individual
judges and appointed a judge to head the Committee on Codes of
Conduct who had been prominently featured in a ‘‘20/20’’ expose of
these junkets. Not surprisingly, the Committee weakened the judicial
ethics rules on this question of privately financed trips.
Chief Justice Rehnquist strongly opposed congressional efforts to
put a halt to these judicial junkets that I believe sometimes reflect
poorly on the independence and impartiality of the judiciary.
So I would like to know, Judge Roberts, if confirmed, whether
you will use your power as Chief Justice to set a high ethical tone
for the Federal judiciary by putting in place new codes of conduct
that would prohibit judges from participating in privately funded
‘‘judicial education’’ that lets special interests essentially lobby Federal
Well, I don’t think special interests should be allowed
to lobby Federal judges. Stated that way, I think the answer
I don’t know enough about how these things operate. As I said,
I have not been on one of them. I don’t know how the funding is
set up. I don’t know what the situation is. If confirmed, I’m certainly
happy to examine it. I know that there is a conflict of interest
or ethical standard review group, I think, within the Judicial
Conference. I believe they addressed that question and issued an
opinion on it recently. But, again, I am just sort of recollecting
something I read.
I would say more generally, though—and maybe it is off topic, in
which case feel free to cut me off. But I do think it is important
for judges and Justices to get out, particularly get out of Washington
a little bit. I’ve always enjoyed going to the law schools, participating
in the moot courts or, you know, functions where you get
to visit with the law students. I’ve done that a few times—not a
lot, a few times. I wouldn’t call that by any stretch of the imagination
‘‘a junket.’’ But I do think it’s important for the Justices to get
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out around the country and particularly visit the law schools. That
is probably not the same sort of thing you are talking about.
Fair enough, and I think you would agree
that there is nothing wrong with judges or Senators golfing. That
is not the question.
It may not be good for the game of golf, but...
In 2000, Chief Justice Rehnquist wrote a letter
supporting repeal of a provision of the Ethics Reform Act of
1989 that bans honoraria for judges. Do you believe that the law
should be changed to permit judges to take honoraria for speeches
There again, Senator, that’s not an issue I’ve
looked at. I know the law prohibits that. I know that there was a
case about that, and the Supreme Court decided that, to some extent,
that prohibition was unconstitutional as applied to lower-level
officials but constitutional as applied to others. It’s not a question
that I’ve addressed.
Just to return for the record for a moment,
the item that the judge referred to in terms of a Judicial Conference
opinion is actually the policy that I was concerned about
that I thought was a step backward, and I just wanted that reflected
in the record.
I also, Mr. Chairman, want to put an item in the record. I am
not going to ask more questions about Judge Roberts’s memo recommending
against the President stating that HIV could not be
transmitted through casual contact. But I do want to make sure
the record is complete. I would like to submit for the record Judge
Roberts’s memo on that issue from September 1985, Centers for
Disease Control documents from 1982 and 1985, and a number of
news stories from August and September 1985, reporting the
CDC’s conclusion that HIV could not be spread through casual contact.
I would note that there are several articles in this collection
from the Washington Post on September 4, 1985, the date of the
article that Senator Coburn submitted yesterday, that I think
makes this clear as well.
Mr. Chairman, if those items could be entered in the record? Mr.
Without objection, so ordered.
Turning again to the death penalty, when you
worked in the Reagan administration, you expressed strong opposition
to Federal courts reviewing criminal convictions and State
courts reviewing writs of habeas corpus. As you know, prisoners
who believe they were wrongly or unfairly convicted in State court
can seek to have the Federal courts hear their claims via a writ
of habeas corpus.
Habeas corpus is a fundamental part of our legal system that has
long protected individual freedom. In a 1981 memo, you argued
that the availability of Federal habeas relief to State prisoners
‘‘goes far to making a mockery of the entire criminal justice system.’’
In that same memo, you said, ‘‘The question would seem to
be not what tinkering is necessary in the system but, rather, why
have Federal habeas corpus at all? ’’
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Then in 1983, as Senator Leahy brought up yesterday, you suggested
that if the Supreme Court wanted to reduce its caseload, it
should ‘‘abdicat[e], the role of fourth or fifth guesser in death penalty
cases.’’ Not in First Amendment cases or antitrust cases, but
death penalty cases.
I know that you’ve said that your memos in the Reagan administration
reflected the views of the administration and not your own.
But in this area, at least, your memos clearly indicate, I think, that
these were your views. With the 1981 memo, for example, there is
a cover note in your handwriting directing that the memo be sent
to Jon Rose, an Assistant Attorney General at the time, with a
cover note that reads, ‘‘The attached memorandum contains some
thoughts on habeas corpus reform, for whatever you think they’re
worth. Judge Friendly and Justice Rehnquist would never have forgiven
me if I remained mute.’’ That sounds a lot like a memo advocating
your views, not those of the Department.
With regard to the memo from 1983 that I mentioned, you were
analyzing the Chief Justice’s proposal to create another intermediate
appellate court to take the pressure off the Supreme
Court’s docket, and you said, and I quote, ‘‘My own view’’—‘‘My
own view is that it is a terrible idea.’’ And you went on to say that
the fault lies with the Justices themselves who take too many
cases, including death penalty cases.
And you sent a personal letter to Judge Friendly in 1981 that
said, ‘‘This is an exciting time to be at the Justice Department
when so much that has been taken for granted for so long is being
seriously reconsidered. To cite just one example, serious thought is
being given to reform of habeas corpus. . . . I do not know what
will eventuate as you noted, what has come to pass as the Great
Writ is regarded by many lawmakers with no idea of the problems
as unalterable perfection.’’
Now, that discussion in a personal letter sounds like your own
opinion as well. A decade later, when you were at the Solicitor
General’s office during the first Bush administration, you signed
several briefs that sought to strictly limit Federal habeas review.
And in 1993, while in private practice, you testified before the
House Republican Task Force on Crime in favor of further habeas
The comments in your memos from the 1980’s, I am sorry to say,
don’t even show the slightest concern about innocent lives possibly
being lost if Federal habeas were eliminated. Does the possible hostility
toward the habeas process that was expressed in those
memos, particularly in death penalty cases, reflect your current
view on Federal habeas? Or have your views changed or evolved?
Well, as you know, the law has changed and
evolved dramatically since the early 1980’s, and at least with respect
to my personal letter to Judge Friendly—I guess I thought it
was a personal letter—
But the situation has changed dramatically, as
you know. What I was referring to in the early 1980’s was a situation
where there were no limits on repetitive habeas corpus petitions,
four, five, six, dozens of different petitions could be filed repetitively.
Congress saw that as a problem. Congress acted to ad-
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dress the very concerns that I was raising there in past legislation.
The Supreme Court saw it as a problem. The Supreme Court acted
in a number of cases, the Teague case and others, in limiting the
availability of successive and repetitive habeas petitions.
Actually, what happened is the Supreme Court, I think, started
down that path, and Congress made the decision that this is something
they should look at in a more comprehensive way. So Congress
passed laws that restrict when people can file repetitive and
successive petitions. Those are the very concerns that I was talking
about. They were concerns that had motivated the first person I
worked for as a lawyer, Judge Henry Friendly, to write on the subject.
He wrote a famous article on habeas reform entitled ‘‘Is Innocence
Irrelevant? ’’ because he thought these successive petitions
had made sort of a game out of the whole process in which the
question of innocence was totally lost in these successive petitions.
And the references to the Great Writ, yes, of course, the writ of
habeas corpus has an established heritage as a basis for complaining
about illegal confinement. But all the stuff we are talking
about there—the fourth and fifth successive petitions, raising new
issues that should have been raised in the first petition—and as
you know, that’s what Congress’ legislation focused on.
But, Judge, did you not at the time, as I read
in your statement, advocate the abolition of Federal habeas review?
No. The purpose of what I was saying was to
certainly reform and abolish the system as it existed then, where
people could file repetitive and successive petitions, and I’ll tell you
why. The main problem—and I think it’s a particular concern in
death cases—is that nobody along the way feels that they’re making
the responsible decision. If people get in a situation where they
know, okay, if you’re on a jury and you sentence someone to death,
if you think, well, he’s going to file habeas petitions in State court,
and they’re going to look at it then, after that—and the person who
considers the State habeas petition says, ‘‘I know there are going
to be successive Federal habeas petitions, they’ll look at the issue
then,’’ everybody is pointing fingers in opposite directions.
When Congress reformed this system, I think it helped to make
clear that the decisions that are going to be made on the first habeas
petition are going to be critical, and so hopefully it’s looked
at a lot more carefully than in the prior system when you knew,
well, that wasn’t the end of the process, it wasn’t even the beginning
of the end; the conviction was just the end of the beginning.
Well, would you agree that had the view that
you advocated in your memos prevailed in the early 1980’s—the
abolition of the writ and the entire removal of Federal habeas review
of State court convictions had that happened, innocent people
would have been executed and serious constitutional errors would
have gone unaddressed?
Well, that wasn’t my position.
No, but I am asking—
Had that view prevailed, not necessarily your
personal view, but the abolition of the writ, isn’t it the case that
innocent people would have been—
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Oh, I’m not in favor now and was not in favor
then of not allowing any Federal habeas review.
I am asking you whether you wouldn’t agree
that as a matter of fact—
—had the writ been eliminated, that some innocent
people would have been executed?
Well, they certainly wouldn’t have been able to
assert their claim of innocence in Federal habeas—
Would not have—
—and people do succeed at that stage. I certainly
think it serves a valuable purpose. But that, again, was not—you
know, the situation with respect to habeas 23 years ago was quite
different than it is today, and the reason it’s changed, I think, is
because Congress responded to those sorts of concerns.
I take those comments as very important,
and I know you can’t comment on this, but there are further efforts
now to further limit this right that could come before you. And I
know you can’t comment on it, but I think it is of great significance
that you have acknowledged that some of those changes that were
made in the 1990’s have significantly affected your view about the
propriety of the habeas process.
On a different subject, after the passing of Chief Justice
Rehnquist, a number of news articles discussed his legacy and
noted that early in his tenure as Justice, he had been a dissenting
voice, but the Court seemed to shift in his direction over time. Recently,
Professor Cass Sunstein recalled that over lunch with a
group of Supreme Court clerks when he was an Associate Justice,
Chief Justice Rehnquist described his own role on the Court.
said the Court was like a boat that had tilted way over to one side,
and his task was to put it upright again.
Do you believe that the Chief Justice has the duty to influence
the overall philosophical direction of the Court through his personal
leadership or through opinion-writing assignments or any
other means? And do you think that it is appropriate for the Chief
to do that?
I don’t think using opinion-writing assignments
as a way to try to promote a particular view or agenda is a good
idea. And I don’t think Chief Justice Rehnquist did that. I do think
if you go back and look at every year that he was the Chief Justice
and just pick out what you think are the 10 or 12 biggest cases of
that year, I think you will find that those cases are distributed
very evenly among the nine Justices. And one reason I think relations
among the Justices were so collegial under Chief Justice
Rehnquist’s leadership—at a time when, of course, the Court had
very marked philosophical differences and sharp dissents in some
areas, but everybody got along well—is because the Chief made a
priority of being fair in his opinion assignments. I think that is the
more important priority.
Can you imagine ever changing your vote in
order to be able to assign the majority opinion to yourself or to another
Justice? And do you think that such a practice is appropriate?
No, I don’t, in answer to both questions.
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So you would not do that.
I wouldn’t do that. I think that, again, sort of
trying to use that assignment power in a tactical way, it causes
tension on the Court and I think undermines the ability of the
Chief Justice, to the extent he has that ability—and it’s obviously
limited—to act as a force to help bring about some cohesiveness
Thank you. Thank you for that answer.
On a different subject, some people blame plaintiffs’ lawyers for
various problems with the economy and the legal profession. Do
you believe that lawyers who represent indigent persons in product
liability and medical malpractice cases are harming America?
Having worked on the defense side for most
of your non-Government career, can you be fair in your rulings to
plaintiffs seeking redress for injury?
I’m going to disagree with your premise. I’ve
represented plaintiffs’ interests. I think if you look, for example, at
the antitrust cases I’ve argued, more of them have been on the
plaintiff side than on the defendant side. One of my co-clerks, when
I clerked for Justice Rehnquist, is a very prominent personal injury
lawyer, and I think he does a wonderful job.
I know there are abuses in this area. There are abuses in the
area of defense representation as well. I certainly don’t have any
biases one way or the other.
Thank you, Judge.
Judge, you argued an important case before the Supreme Court
concerning who is protected under the Americans with Disabilities
Act. It was called Toyota v. Williams. Ms. Williams suffered from
hand, wrist, and arm pain while working in an engine assembly
line. She was diagnosed with carpal tunnel syndrome, and her physician
placed her on permanent work restrictions. Her pain continued
and she did not think that her employer was addressing her
physician-ordered work restrictions appropriately, so she sued
under the ADA. You represented Toyota in the case before the Supreme
Court, and this was a case of statutory interpretation, so I
assume you are quite familiar with the legislative history of that
Do you agree with the statement of one of the Justices during
oral argument that the Act was primarily intended to protect people
who are ‘‘wheelchair-bound’’?
The Act contains a definition of disability, and
that’s what the issue was about, and that definition does not contain
that type of restriction. So, you know, I don’t want to comment
on issues that might come before me, but the case was about the
definition. The definition was not restricted in that way.
The only point I would make—and I’m sure you appreciate this—
is that a lot of times the statements during oral argument are certainly
not expressions of either the Justices’ view—they’re often
playing a devil’s advocate, and I don’t even remember that question.
I don’t know if it was directed at me or the other counsel, but
it may well have been intended to elicit a response to flesh out
more fully what the definition was.
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More generally, do you believe that the ADA
or any other civil rights statute should be interpreted narrowly or
broadly when it comes to the issue of who it protects?
Well, I have to say I think it should be interpreted
consistent with Congress’s intent, and you look at a lot of
different factors in trying to flesh that out.
If you folks here in Congress had a particular—in any statute,
a narrow focus, then to give that focus a broader impact I think
would be wrong. If you had a broad focus, as, of course, you often
do when you’re dealing with statutes designed to address discrimination,
giving that interpretation a narrow focus would be wrong.
The effort in every case is to try to give it the right focus, and
that’s the focus that you intended when you passed the law.
Thank you, Judge, and I appreciate all your
Mr. Chairman, I yield back the remainder of my time.
Thank you, Senator.
Thank you very much, Senator Feingold.
Senator Sessions has asked for recognition briefly to clarify one
point which he thinks requires that clarification.
Judge Roberts, I commend you on your good humor, and even
when they read a memo to suggest you said that the EEOC was
un-American, when actually all you were doing was quoting a complaint,
and that you defended the EEOC and its rights and independence
aggressively in that memo.
But I wanted to ask you about this Texas case. As I understand
it, Texas decided that they would not fund education for illegal
aliens that are here in the country. And that was challenged as
being unconstitutional and went to the Supreme Court. I know you
have said that you as a parent and as a person who believes in
education, you absolutely believe in education for all children in
some way, form, or fashion. But you don’t mean to suggest or prejudge,
do you, the constitutionality of the right of the State of
Texas to make that decision? That would be a matter of, I think,
some importance, and perhaps again in the years to come.
Well, no, Senator, and I did try to be very careful
in separating the personal views with respect to the importance
of education from the legal question there. And the legal question,
of course, was a close one. It divided the Court 5–4, and as I noted,
among the dissenters were Justices White and O’Connor. And I
don’t think their legal position reflected any less than wholehearted
view concerning the importance of education.
Thank you, Mr. Chairman.
Thank you, Senator Sessions.
Senator Schumer is recognized for 15 minutes.
Thank you, Mr. Chairman.
First, just a little housekeeping. I think tomorrow is the day that
it is due for us to submit written questions, and you will have no
problem getting those back to us before we have to vote, which I
think by the agreement of the Chairman and the Ranking Member
will be next Thursday, will you?
Well, it depends how many there are.
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My answers will be fuller the fewer questions
there are, but I will certainly—
I will certainly obviously make every effort to
get them in as soon as possible.
Thank you. Next question: We have had a
great debate here in the Senate and with the administration about
the documents—there were 16 cases, I think, led by Senator Leahy,
that the eight of us requested when you were Principal Deputy Solicitor
Now, we know the administration has said they
will not relinquish those documents. I just wanted to know—and
I am not asking your view on the law. Do you have a personal objection
if they were to give us those documents? Because you wrote
Senator, I don’t think it’s appropriate for me to
take a position. If the client is asserting a privilege, I don’t think
the attorney should be stating a position on it, because in these situations
the privilege is that of the client. And for the attorney to
take a position would, could, might put pressure on the client
I may not get—
—I think that’s inappropriate.
I may not get this. Aren’t they the attorney
and you the client this time?
Well, when the memos were prepared, I was the
And they were the client.
So you won’t take a position on that.
I don’t think it’s appropriate for a lawyer to do
Yesterday, as I told you, I was sort of confounded
by the refusal to answer certain questions. I do not think
any of us expected you to answer every question or answer the—
give us the answer the way we want it. But we did hope that you
would answer enough questions with enough specificity so that we
and the American people would get a clear picture of the kind of
Chief Justice you will be, not just rely on your assurances.
So I want to try this another way because I really want to find
out. You are one of the best litigators in America. You know how
to convince people. That is what you have been paid to do for a
long time. So let me ask you, if you were sitting here, what question
would you ask John Roberts so that you or us could be sure
that we were not nominating what I call an ideologue, someone
who you might define as somebody who wants to make law, not interpret
law? And then how would you answer the question you
I’d begin by saying, ‘‘Well, that’s a good question,
I think, with respect, I would ask a lot of the
questions that have been asked, a lot of the questions that were
asked in the questionnaire that I completed earlier, and it begins
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with the most important question, What is your view of the proper
role of a judge in our system? And people have different answers
to that question. I’ve given an answer to that question.
How do you approach particular cases in areas of particular interest?
And I’ve been asked that question and I’ve given an answer.
I’ve explained, for example, in the area of Executive power, as
issues arise what the framework that I would use would be, and
I’ve talked about the Youngstown opinion and Justice Jackson’s
I’ve talked about how I would approach cases involving the right
to privacy under the Liberty Clause. I’ve talked about how I would
approach cases involving Government enforcement in the antitrust—
How about something that you have not—a
question that has not been asked since some of us are still unsure?
But in other areas people talk about—and it is
personal views on issues, and there again, I think it is important.
There may be some nominees who want to share personal views on
issues. My reaction has been to emphasize—and I think this tells
you about what kind of a judge I hope I am on the Court of Appeals
and what kind of a Justice I would be if confirmed, and my reaction
has been that I set those personal views aside, and so don’t
consider them pertinent. Other nominees might take a different approach
in response to those types of questions.
People have asked about particular decisions, and I’ve talked
about decisions in which I’ve been involved. We’ve talked about—
with Senator Grassley about the Totten case in which I was involved,
others about the Barber case involving Congress’s power
under the Spending Clause.
People have asked very probing questions about my legal positions.
What did you—what was the position you were advocating
in this case and why? I think it’s fair to talk about the record.
Any question that you would ask that has
been left out?
There have been a lot of questions asked and a
lot answered. I can’t think of any that—you know, I expected people
to ask me about this and it hasn’t been asked.
So I guess we did a better job than we think
we did, right?
I think the Committee has been very effective
over the last several days in learning a lot about me. I think in the
process of meeting with the Senators before—and I was quite serious
when I said I appreciated how accommodating everyone had
been in sitting down with me. I think people learned a lot about
me. I think you can learn a lot about me from looking at the 50
opinions I’ve written. You can learn about—
Let me, if I might. I want to go back to the
Commerce Clause, which bothers me, as you know. Again, apart
from anybody’s view, do you agree 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?
If the question—and this is where the issue
comes up—is whether or not as the Court has addressed it, the ac-
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tivities are commercial. If the activities are commercial in nature,
you get to aggregate them under Wickard v. Filburn that we have
talked about. You do not have to look at just that particular activity.
You look at the activity in general. Where the dispute and
issues come in is whether the activities are commercial. That is
where the disagreement—the point I was trying to make in the infamous
or famous toad case. If you should look at this as commercial
activity, then you can—
Do you believe Congress deserves a great—
this is in reference to some of the things Senator Specter talked
about—that Congress deserves a great deal of deference when it
decides something is commercial and has findings to that effect?
I do, Senator, and I think that is the basic
theme that runs through the Court’s Commerce Clause jurisprudence.
There is again of course the Lopez and Morrison decisions,
but there is also the Raiche decision, and again I think it is very
important to—and what the Raiche decision said is you’ve got to
consider Lopez and Morrison in the context of this broad sweep, not
just as sort of the only decisions.
Okay. Let me ask you then this hypothetical,
and that is: that it came to our attention, Congress’s, through a relatively
and inexpensive simple process individuals were now able
to clone certain species of animals, maybe an arroyo toad; did not
pass over State lines, you could somehow do it without doing any
of that. Under the Commerce Clause can Congress pass a law banning
even non-commercial cloning?
I appreciate it’s a hypothetical and you will as
well, so I don’t mean to be giving binding opinions. But it would
seem to me that Congress can make a determination that this is
an activity, if allowed to be pursued, that is going to have effects
on interstate commerce. Obviously, if you were successful in
cloning an animal, that’s not going to be simply a local phenomenon,
that’s going to be something people are going to—
You can leave it at that. That is a good answer
as far as I am concerned.
What I would like to do is say a few concluding words here with
a final request. First I want to thank you for holding up so well
during the 3 days of grueling questions. Many of us on this Committee,
probably every one of us, some more than others, have been
wrestling with how to vote on your nomination since well before
the hearing started, and of course now that process is accelerated.
I, for one, have woken up in the middle of the night thinking about
it, being unsure how to vote. I think my colleague from Delaware
was on to something when he called this a roll of the dice.
But this is a vote on the Chief Justice of the Supreme Court. You
will in all likelihood affect every one of our lives in many ways for
a whole generation, so this is not just rolling the dice. It is betting
the whole house.
I thought I would share with you some of the thoughts of some
of us with important questions; there are pros and cons. On the pro
side first of all is your brilliance. You have an amazing knowledge
of the law. You spent 3 days here talking on so many aspects of
it without any paper in front of you, without a single aide coming
over and whispering in your ear or passing you a note. Your knowl-
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edge of law and your way of presenting it is a tour de force. You
may very well possess the most powerful intellect of any person to
come before the Senate for this position.
Second on the pro side is that you seem to be a lawyer above all.
You have devoted your entire life to the law, and it is clear that
you love it. Most people in that position tend not to be ideologues.
They will follow the law wherever it takes them, regardless of the
consequences, and you have repeatedly professed that to be true for
you. But given that you have spent most of your legal life representing
others, and that your limited tenure on the Court of Appeals
did not allow you to rule on very many non-technical cases,
there is not a long enough track record to prove that point.
The third and perhaps the most important, at least to me, is
your judicial philosophy of modesty and stability. Such a theory respects
precedent, the Congress and other judges’ opinions. Modest
jurists tend not to be ideologues, and many of us on this side of
the aisle would like the Court to maintain, and in cases related to
the Commerce Clause like Morrison, increase its modesty.
But in complicated decisions like this one, there is always a
counterpoint even on the modesty question. Yesterday you said
that the decision of Brown v. Board could be described as modest.
Brown v. Board was breathtaking. It was wonderful. It reversed 80
years of accepted but bad law, yes, but modest? So I ask myself
could overturning Wickard or Roe also be modest by your definition?
Nonetheless, I think the philosophy of modesty is an appealing,
important, and unifying philosophy to many of us.
Let me go to the con side here. First is the question of compassion
and humanity. I said on the first days of these hearings it is
important to determine not just the quality of your mind, but the
fullness of your heart, by which I think a good number of us, at
least, on both sides of the aisle really, mean the ability to truly
empathize with those who are less fortunate and who often need
the protections of the Government and the assistance of the law to
have any chance at all. It did not seem much, for instance, to concede
that the wording ‘‘illegal amigos’’ was unfortunate, yet you refused
to say so. America has moved in the 21st century beyond
what Senator Kennedy called ‘‘the cramped view of civil rights professed
in the early Reagan administration.’’ But you would not
admit now in 2005 that any of those views you argued for in the
early ‘80’s were misguided, with the hindsight of history. That is
Second is the refusal of the administration to let us see any documents
you wrote when you served as Deputy Solicitor General,
when you were not simply following policy, which you have reminded
us in your earlier days there and in the Counsel’s office,
but making it. This would have given us tremendous insight into
who you are, into actually knowing who you are and what kind of
justice you would make.
But for what seemed to be self-serving reasons
they were refused. Now this was not your decision, but you
carry its burden, and I think we all have to consider it when
weighing how to vote.
Third, and most important on the con side, is your refusal to answer
so many of our questions. I know you feel you were more
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forthcoming than most any other nominee to the High Court. I
must disagree. You certainly were more forthcoming than a few.
Now, for instance, I do not know Justice Scalia’s opinion on ‘‘Dr.
Zhivago,’’ but most answered more relevant questions than you did.
Your refused to comment on any issue that you thought may come
before the Court. We learned a lot about your views on older, completely
discredited cases like Lochner and Plessy and Korematsu,
but they are not of much help to us. What we need to know are
the kinds of things that are coming before the Court now, and not
knowing makes it hard to figure out what kind of Justice you will
be, particularly in light of the fact we have little else to go on.
You did speak at length on many issues and sounded like you
were conveying your views to us, but when one went back and read
the transcript each evening, there was less than met the ear that
afternoon. Perhaps that is the job of a good litigator, but in too
many instances it did not serve the purpose of the hearing.
Having said that about documents and questions, obtaining documents
and answering questions are a means to an end, not an end
in itself. In some cases like Miguel Estrada’s nomination, we had
no knowledge of his views so we could not vote. But here there is
clearly some evidence. So now we must take the evidence we have
and try to answer the fundamental question: what kind of Justice
will John Roberts be? Will you be a truly modest, temperate, careful
judge in the tradition of Harlan, Jackson, Frankfurter and
Friendly? Will you be a very conservative judge who will impede
congressional prerogatives but who does not use the bench to remake
society like Justice Rehnquist? Or will you use your enormous
talents to use the Court to turn back a near century of
progress and create the majority that Justices Scalia and Thomas
could not achieve? That is the question that we on the Committee
will have to grapple with this week.
And over the next week, if you have any more information that
could help us answer this question, I think every one of us would
welcome it. Thank you, Judge.
Thank you, Senator Schumer.
Wait just a minute. I will recognize you in
Judge Roberts, Senator Schumer has postulated quite a number
of questions in his last soliloquy, but—
—they are summarized in what kind of a
Justice you would be, and I think you are entitled to respond to
that if you care to do so.
That was going to be my request. I think it
would be very important.
In that case, go ahead and make your request.
Yes. I think—
Better the request comes from you than
from me, Senator Feinstein.
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I think that Senator Schumer really summed
up the dilemmas, and not only for himself but for our side. I would
very much like you to respond, particularly to the con side. The pro
side speaks for itself. Many of us are struggling with exactly that,
what kind of a Justice would you be, Judge Roberts?
No time limit, Judge.
Well, I appreciate the comments very much,
Senator Schumer, and I very much appreciate the pro side of the
On the con side, the issue of documents, it is hard for me to comprehend
that there could be more documents. The numbers been
ranging from 80,000 to 100,000, and there is a lot of paper out
I have tried to be as fully responsive as I thought consistent with
my obligations as a sitting judge and a nominee. And I appreciate
that this is not a new issue. You have gone back and read the transcripts
and of course participated. I have gone back and read the
transcripts. It comes up at every nomination. In some instances
Members of the Committee want more information than the nominee
feels that he or she can give in good conscience. That is nothing
new. I have tried to be as fully expansive as I can be, and drawn
the line where as a practical matter I think it is necessary and appropriate.
The basic question, Senator Feinstein and Senator Schumer,
what kind of a Justice would I be? That is the judgment you have
to make. I would begin, I think, if I were in your shoes, with what
kind of a judge I have been. I appreciate that it has only been a
little more than 2 years, but you do have 50 opinions. You can look
And, Senator Schumer, I don’t think you can read those opinions
and say that these are the opinions of an ideologue. You may think
they’re not enough. You may think you need more of a sample.
That is your judgment. But I think if you’ve looked at what I’ve
done since I took the judicial oath, that should convince you that
I’m not an ideologue, and you and I agree that that’s not the sort
of person we want on the Supreme Court.
Beyond that I have the few days that I’ve been here, all the documents,
the questionnaire. You have not just my opinions but my
briefs. I think those also help show what kind of a judge I would
be. You of course appreciate that that’s presenting a position and
I’m just an advocate, but advocates deal with the law in different
ways. You can look at other people’s briefs, I think, and conclude
that that person may not be a good judge because of the way they
argue the law. I would hope you would look at my briefs and my
arguments before the Supreme Court and conclude that that’s a
person who respects the law, respects the Court before whom he is
arguing, and will approach the law in a similar way as a judge.
Thank you, Judge Roberts.
If I might have three minutes. I would just
want to ask the witness to explain the rationale as he understands
it for the privilege—
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Senator Cornyn, you are recognized for three
Thank you. Mr. Chairman, it strikes me as
odd, having been on the Committee last year when we had an alleged
theft of internal documents that were written by staffers of
individual Senators, and which were then published to the outside
world, and there was bipartisan outrage over that. And we, as I recall,
referred that matter for investigation and possible prosecution.
But surely if the legislative branch is entitled to confidential
communications between our lawyers and us so we can do our jobs
and get candid advice, the Executive or the President is entitled to
the same sort of confidential and candid communications.
And, Judge, this is the question. I do not want anybody to be
under the misapprehension that, number one, it is within your
power to produce additional documents. It is hard to imagine there
are in addition to the 100,000 that have already been produced.
But I want to give you a chance to articulate the reasons why the
law recognizes this importance of a confidential, candid communication
between a client and the lawyer that cannot be readily
overrun or trumped. Would you give that a shot, please?
Well, I mean certainly the basic attorney/client
privilege goes back centuries, and there have been eloquent expressions
of its value in the Supreme Court. I think of the Upjohn opinion
from 1981 in the Supreme Court and other classic expressions.
And the idea is that if we want people to benefit from the advice
that lawyers can give, we have to ensure that they feel perfectly
free to communicate and exchange their views with their lawyer
without fear that that would be reviewed and used to their prejudice.
Carried forward to the point that we are talking about now, you
have to have a candid exchange among lawyers in presenting cases
to the Court in order to effectively represent your client whether
your client is the Government of the United States or a private
company. And that type of debate, which often involves pointing
out inconsistencies in the decision, even flaws in your own legal position,
say, ‘‘This is the argument, but this part of the argument
is really quite weak and we have to be worried about that.’’ Those
sorts of things you do need to thrash out and discuss and elaborate
on. And yet if that was then revealed to your adversary or to the
Court, it would obviously prejudice the presentation.
And if those things were going to be regularly revealed, people
wouldn’t make those types of analyses and judgments. They
wouldn’t say, ‘‘This is a weak argument. What are we going to do
about that? Should we really make that argument? ’’ They would
not commit those to writing and the adequacy of the legal counsel
and advice would suffer, and the role of the advocate before the
court in vindicating the rule of law on which the courts rely, would
Mr. Chairman, it may already be part of the
record, but if it is not, I would ask unanimous consent at this point
in the record that we would make the letter of former Solicitor
Generals, appointed both by Democrat Presidents and Republican
Presidents who agree that these Solicitor General memos should
remain protected by the privilege, part of the record.
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Without objection, so ordered.
Senator Durbin, you are recognized for 20 minutes.
Thank you very much, Mr. Chairman.
Judge Roberts, again, thank you, and you may be nearing the
end of the process, which I am sure is a great relief to you and your
wife and friends.
Let me first address Senator Cornyn’s point. The memos that
were stolen from offices of the Senators on this Committee, stolen
by a Republican staffer who was discharged, that case was turned
over to the Justice Department. I sent a letter to the Attorney General
yesterday applauding the fact that the Justice Department
had in fact successfully prosecuted in Massachusetts a person who
had hacked in and stolen the telephone records of Paris Hilton.
And I asked the Attorney General to please ask our Special Counsel
in this case to take a look at the precedent of the Paris Hilton
case and see if he can perhaps protect our records as much as he
wants to protect that poor young lady’s telephone records.
The second aspect I would like to raise is this.
Many of these documents we are talking about have been given before.
Justice Rehnquist offered similar documents to the Committee
for consideration, so it is not unprecedented for us to ask, nor for
the Government to produce them on a voluntary basis, no theft involved.
If I could clear up a couple other things that have been raised,
I read and reread the sentence which you and Senator Kennedy debated
about the EEOC, and I want to read it again, conceding the
fact that the word ‘‘un-American’’ is in quotes and clearly refers to
something else. But the sentence in your memo reads in its entirety
as follows: ‘‘We should ignore that assertion in any event, as
well as the assertion that the EEOC is ‘un-American’, the truth of
the matter notwithstanding.’’
Now, those are your words but for the quotes ‘‘un-American.’’
What did you mean when you say ‘‘the truth of the matter notwithstanding?
’’ It suggests that you agree with that conclusion.
The first part of the sentence refers to that assertion,
and that assertion was the assertion that President
Reagan had promised to abolish the EEOC. That as the issue that
I said in the memorandum I had been unable to determine whether
that was accurate or not. It was the truth of that matter, of that
assertion that I couldn’t verify. The reference to ‘‘un-American’’ was
not my language. It was the language of the person who complained
and said, ‘‘You need to do something about the EEOC,’’ and
our response was what we’re going to do is make sure that the
EEOC is not interfered with because of your complaints.
Now, he may have felt that he was being treated in an ‘‘un-
American’’ way and wanted something done about it. But it was
not my view, and again, the language was in quotes to make clear
that it wasn’t my view.
I do not question the fact the language was in
quotes, but I think there is at least some ambiguity in what was
said. It might have been said more precisely if the conclusion that
we are suggesting does not reflect your views.
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If I could I would like to return to a discussion that we had yesterday
about a very fundamental question. I asked you yesterday
about a case that you handled as an attorney involving a large
HMO, in which you advanced a very narrow reading of an Illinois
State law. Had your position prevailed, millions of American families
stood the risk of losing coverage for their health insurance. You
did not prevail, and as you mentioned, it was a closely divided
Court, which again underlines the importance of each new Justice
as we consider them, but your position did not prevail.
Let me read what you said to me in response. You told me you
had no reservations about taking the case, and here is what you
said, quote: ‘‘My practice has been to take the cases that come to
me, and if the other side in that case had come to me first, I would
have taken their side,’’ end of quote. I want to follow up on this.
You have taken some pride in the pro bono cases that you have
taken, and I am glad you have. I think that is part of being a professional,
accepting pro bono cases. You were asked the other day
about your participation in the 1996 case of Romber v. Evans, a
landmark case that struck down a Colorado law that would have
taken away the rights of gay and lesbian Americans. You gave
some legal advice to the lawyer in this case who was trying to uphold
the rights of those with different sexual orientation. So I will
ask you, if the other side had come to you first and said, ‘‘Mr. Roberts,
we would like you to defend the State amendment that took
away the rights of gays and lesbians.’’ Would you have taken the
It’s a hypothetical question. Of course, I think
I probably would have, Senator. I actually have done pro bono assistance
for States on a regular basis through the National Association
of Attorneys General, and if I’m remembering right, the State
would have been the other party in that case. I think that’s right.
And through the State and Legal Center, I participate in moot
courts for the States on a regular basis. And a big part of my practice
was representing States, so if a State, in that case, Colorado,
had come to me and said, ‘‘We have a case in the Supreme Court,
would you defend it? ’’ I might—again, I can’t answer without
knowing the full details and all that, and I have to look at the legal
issues. And I would not, and never have, presented legal arguments
that I thought were not reasonable arguments, doesn’t necessarily
mean they’re going to prevail, and I have certainly lost my
share of cases.
But it has not been my general view that I sit in judgment on
clients when they come to me. I viewed that as the job of the Court
when I was a lawyer. And just as someone once said, you know,
it’s the guilty people who really need a good lawyer, I also view
that I don’t evaluate whether I as a judge would agree with a particular
position when somebody comes to me for what I did, which
was provide legal advice and assistance, particularly before the Supreme
I have a long series of hypotheticals that I will
not get into, such as, would you have represented that D.C. Government
against the welfare families? You spoke to me of your
pride in representing the poor people in the District of Columbia
on their welfare rights. I could ask you whether you would have
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taken the side of the Board of Education in the Brown case. Would
you have taken the side of the State of Virginia in Loving? I could
have gone through all of those hypotheticals. The purpose is, and
the purpose of my original question was this: all of us are trying
to get down to what are your core values, where would you draw
lines, saying ‘‘I do have principles and values. There are certain
things I would not use my legal skills to do because they conflict
with those values.’’
If this is just a process, a legal contest, and you will play for any
team that asks you to play, it raises a question about where would
you draw the line if you would ever draw the line? And I think that
is why I have asked this question, and I want to give you an opportunity
now to tell us.
Senator Feinstein asked a little earlier today about the Plyler
case. You came a little bit further than you did last night in saying—
and I think this is a very safe assertion—‘‘Children deserve
an education.’’ That is not a headline. But I think that what I
would like to get to is the original question here. As a lawyer, do
you have standards and values as to the causes and beliefs that are
so important to you where you would draw a line?
Well, let me try to answer it this way, Senator.
People become lawyers for different reasons, all perfectly good and
noble, and legitimate. People who are interested, for example, in
protecting the environment often will go into the law and practice
environmental law because they think that is an effective way to
advance a cause in which they passionately believe.
People who are committed to the cause of civil rights may become
lawyers and become civil rights lawyers and present and
press those causes because they are causes in which they passionately
I became a lawyer or at least developed as a lawyer because I
believe in the rule of law. The point I was trying to emphasize in
my opening statement, that all of these other areas—you believe in
civil rights, you believe in environmental protection, whatever the
area might be, believe in rights for the disabled, you’re not going
to be able or effectively to vindicate those rights if you don’t have
a place that you can go where you know you’re going to get a decision
based on the rule of law. It was the point I was making with
respect to the Soviet Constitution, filled with wonderful-sounding
rights, absolutely meaningless, because people who suffered under
that system had no place they could go in court and say, ‘‘My rights
have been violated.’’ So that’s why I became a lawyer, to promote
and vindicate the rule of law.
Now, that means that that’s at issue and play regardless of what
the cause is, and that’s why, as we were talking yesterday, you can
go in my record and you’ll see, yes, I’ve advanced cases promoting
the cause of the environment. As I was discussing earlier, I’ve been
on both sides of the affirmative action issue. Take even technical
areas like antitrust. I’ve defended corporations; I’ve sued corporations.
In each case, I appreciated that what I was doing as a lawyer,
particularly as a lawyer before the Supreme Court, was promoting
the rule of law in our adversary system. And I viewed that
as—I appreciate that to some they may say, well, that sounds like
you’re a hired gun, to be disparaging, you are going to take the side
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of whoever comes in the door first. I think that’s a disparaging way
to capture what is, in fact, an ennobling truth about our legal system
that lawyers serve the rule of law, above and beyond representing
particular clients. That’s why when the Chief Justice welcomes
new members to the Supreme Court bar, he welcomes them
as members of the bar and as officers of the court, because that is
the important role that they play. That has significance for what
types of arguments they can present and how they can present
Well, if I might say, Judge, if you have made
one point many times over the course of the last 3 days, it is that
as a judge you will be loyal and faithful to the process of law, to
the rule of law. I think that is without question from what you
have said. I accept that on its face.
But the questions which we continue to ask you really try to go
beyond that, because I said at the outset that I thought one of the
real measures as to whether or not you should be on the Supreme
Court goes back to a point Senator Simon had made: Would you
restrict freedom in America or would you expand it?
When you are defending gays and lesbians who are being restricted
in their rights by the Colorado amendment, you are trying,
from my point of view, to expand freedom in America. That to me
is a positive thing. That is my personal philosophy and point of
But then when you say, ‘‘If the State would have walked in the
door first to restrict freedoms, I would have taken them as a client,
too,’’ I wonder, Where are you? Beyond loyalty to the process of
law, how do you view this law when it comes to expanding our personal
freedom? Is it important enough for you to say in some instances,
‘‘I will not use my skills as a lawyer because I don’t believe
that that is a cause that is consistent with my values and belief’’?
That is what I have been asking.
Well, and the—I had someone ask me in this
process—I don’t remember who it was, but somebody asked me,
you know, ‘‘Are you going to be on the side of the little guy? ’’ And
you obviously want to give an immediate answer, but as you reflect
on it, if the Constitution says that the little guy should win, the
little guy is going to win in court before me. But if the Constitution
says that the big guy should win, well, then, the big guy is going
to win, because my obligation is to the Constitution. That’s the
oath. The oath that a judge takes is not that I will look out for particular
interests, I’ll be on the side of particular interests. The oath
is to uphold the Constitution and laws of the United States, and
that’s what I would do.
Would you at least concede that you would take
into consideration that in our system of justice the race goes to the
swift, and the swift are those with the resources, the money, the
lawyers, the power in the system, and that many times the powerless,
the person who has struggled and clawed their way to your
courtroom, went through a wall of adversity which the powerful
never had to face? Is that part of your calculation?
Absolutely, and it is, again, what’s carved above
the doors to the Supreme Court: ‘‘Equal Justice Under Law.’’ And
the judicial oath talks about doing justice without regard to per-
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sons, to rich and to poor. And that, of course, is critically important.
You do have to appreciate that there are going to be interests
who, for one reason or another, don’t have the same resources as
people on the other side. The idea is not to give the case to the side
with the best resources, the side with the best lawyers, the side
with the most opportunity to prepare and present. It is to decide
the case according to the law and according to the Constitution.
And as case after case in the Supreme Court shows, that’s often
the prisoner who’s sitting in his cell and writes his petition out
longhand. Sometimes the Constitution is on that person’s side and
not on the side of the corporation with the fancy printed brief. But
the judge’s obligation is to appreciate that the rule of law requires
that both of those be treated equally under the law.
Judge Roberts, thank you very much.
Mr. Chairman, thank you.
Thank you, Senator.
Thank you, Senator Durbin.
Judge Roberts, questions will be submitted to you within 24
hours, and you have already stated your commitment to answer the
questions. And you can’t be totally open-ended because you don’t
know how many questions there will be.
I have a strong inclination that however
many questions there are, you will be able to answer them in appropriate
We are now going to move into a closed session. Senator
Yes, Mr. Chairman.
You are recognized.
Just for a couple minutes. I am trying to compile
questions from the past where the answers were very similar
to the answers of Judge Roberts about ‘‘I can’t comment,’’ ‘‘I can’t
answer your question because it may compromise my integrity,’’
the judge in the future.
And I would ask for permission of the Committee
to get a chance to organize this because there are so many
volumes. And what I would like to be able to demonstrate to the
Committee is that the pattern that he has displayed in terms of
saying ‘‘I can’t give you an answer because it may disqualify me’’
is not unique to the Senate and very similar to past nominations,
and I have got some examples of that.
But if I may—and I know we have been here—and Lord knows
this guy has been through the wringer—I just want to comment a
little bit about an unhealthy area I think we find ourselves in, in
the last hour. Most of us are lawyers, and I would hate to be
judged by the people I have represented in the past, totally. I have
represented some people that are not very nice. But I gave them
my all. I have represented people on Air Force bases that were so
unpopular, Judge Roberts, that no one would eat with me, because
it was my job as the area defense counsel to represent that person.
Your heart. Nobody can question your intellect because it would
be a question of their intellect to question yours.
So we are down to the heart. And is it all coming
down to that? Well, there are all kinds of hearts. There are
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bleeding hearts, and there are hard hearts. And if I wanted to
judge Justice Ginsburg on her heart, I might take a hard-hearted
view of her and say she is a bleeding heart. She represents the
ACLU. She wants the age of consent to be 12. She believes there
is a constitutional right to prostitution. What kind of heart is that?
Well, she has a different value system than I do, but that doesn’t
mean she doesn’t have a good heart. And I want this Committee
to understand that if we go down this road of putting people’s
hearts in play, and the only way you can have a good heart is
adopt my value system, we are doing a great disservice to the judiciary.
Thank you very much, Senator Graham.
We are now going to go into executive session under Senate Rule
XXVI to review the FBI report, which is standard for all judicial
nominees, Supreme Court or court or appeals or district court, and
to consider any other investigative issue that members of the Committee
During Senator Biden’s tenure as Chairman, the practice was
initiated of conducting routine closed sessions with each nominee
for the Supreme Court to ask the nominee on the record under oath
about all investigative charges against the person if there were
any. These hearings are routinely conducted for every Supreme
Court nominee, even where there are no investigative issues to be
resolved. In so doing, those outside the Committee cannot infer
that the Committee has received adverse confidential information
about a nominee.
The Committee and Judge Roberts will now proceed to Dirksen
226, which is right down the hall—
Mr. Chairman, I understand, also following our
practice, the Republican counsel and the Democratic counsel, who
normally work together on such issues, will brief the Committee.
Senator Leahy, that is correct.
We expect to return to hear our first outside
witness, the American Bar Association, just as soon as we conclude
this. We want to move ahead as promptly as we can, so those witnesses
should be available, and we will now adjourn to 226 in this