Roberts Confirmation Hearing, Day 4 Part 1 - Sep 15, 2005

Transcript Text

  • Chairman SPECTER

    At 00:03:36
    3 seconds

    Good morning, ladies and gentlemen. Good
    morning, Judge Roberts.

  • Judge ROBERTS

    At 00:03:39
    1 second

    Good morning, Mr. Chairman.

  • Chairman SPECTER

    At 00:03:40
    50 seconds

    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
    of events.
    I now yield to my distinguished colleague, Senator Leahy, for 20
    minutes.

  • Senator LEAHY

    At 00:04:30
    13 seconds

    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?
    [Laughter.]

  • Judge ROBERTS

    At 00:04:43
    7 seconds

    Well, it’s a once-in-a-lifetime experience, Senator.

  • Senator LEAHY

    At 00:04:50
    1 minute

    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?

  • Judge ROBERTS

    At 00:06:48
    24 seconds

    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—

  • Senator LEAHY

    At 00:07:12
    1 second

    Well, I—

  • Judge ROBERTS

    At 00:07:13
    7 seconds

    I’m just explaining why the position we took
    prior to the decision may have looked different than it did after the
    decision.

  • Senator LEAHY

    At 00:07:20
    12 seconds

    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
    was wrong?

  • Judge ROBERTS

    At 00:07:32
    31 seconds

    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—

  • Senator LEAHY

    At 00:08:03
    31 seconds

    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?

  • Judge ROBERTS

    At 00:08:34
    5 seconds

    I have no quarrel with the Court’s decision, Senator.

  • Senator LEAHY

    At 00:08:39
    2 minutes

    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?

  • Judge ROBERTS

    At 00:10:44
    44 seconds

    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—

  • Senator LEAHY

    At 00:11:28
    2 seconds

    But—no, go ahead.

  • Judge ROBERTS

    At 00:11:30
    14 seconds

    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—

  • Senator LEAHY

    At 00:11:44
    3 seconds

    But that one, the statute was pretty darn clear,
    the Metro case.

  • Judge ROBERTS

    At 00:11:47
    14 seconds

    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
    the Metro—

  • Senator LEAHY

    At 00:12:01
    2 seconds

    Judge Sentelle dissented?

  • Judge ROBERTS

    At 00:12:03
    2 seconds

    Judge Sentelle dissented.

  • Senator LEAHY

    At 00:12:05
    1 minute

    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?

  • Judge ROBERTS

    At 00:13:27
    24 seconds

    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—

  • Senator LEAHY

    At 00:13:51
    25 seconds

    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?

  • Judge ROBERTS

    At 00:14:16
    38 seconds

    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.

  • Senator LEAHY

    At 00:14:54
    21 seconds

    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.

  • Judge ROBERTS

    At 00:15:15
    1 second

    Well—

  • Senator LEAHY

    At 00:15:16
    1 minute

    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?

  • Judge ROBERTS

    At 00:16:37
    18 seconds

    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.

  • Senator LEAHY

    At 00:16:55
    21 seconds

    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.

  • Judge ROBERTS

    At 00:17:16
    32 seconds

    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.

  • Senator LEAHY

    At 00:17:48
    41 seconds

    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.

  • Judge ROBERTS

    At 00:18:29
    1 second

    Well, I think—

  • Senator LEAHY

    At 00:18:30
    59 seconds

    I mean Hugo Black’s opinion is a pretty strong
    opinion.
    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?

  • Judge ROBERTS

    At 00:19:29
    54 seconds

    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.

  • Senator LEAHY

    At 00:20:23
    18 seconds

    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?

  • Judge ROBERTS

    At 00:20:41
    1 minute

    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—

  • Senator LEAHY

    At 00:21:43
    27 seconds

    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?

  • Judge ROBERTS

    At 00:22:10
    1 minute

    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
    the merits.

  • Senator LEAHY

    At 00:23:12
    1 minute

    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?

  • Judge ROBERTS

    At 00:24:26
    16 seconds

    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.

  • Senator LEAHY

    At 00:24:42
    3 seconds

    Certainly different than what we think in our
    system of courts.

  • Judge ROBERTS

    At 00:24:45
    1 minute

    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.

  • Senator LEAHY

    At 00:25:47
    16 seconds

    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.

  • Judge ROBERTS

    At 00:26:03
    1 second

    Certainly, Senator.

  • Senator LEAHY

    At 00:26:04
    25 seconds

    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
    neither.
    Thank you.
    Thank you, Mr. Chairman.

  • Judge ROBERTS

    At 00:26:29

    Thank you, Senator.

  • Chairman SPECTER

    At 00:26:29
    2 seconds

    Thank you, Senator Leahy.
    Senator Kennedy for 20 minutes.

  • Senator KENNEDY

    At 00:26:31
    5 seconds

    Thank you. Thank you very much, Mr. Chairman.
    Good morning, Judge Roberts.

  • Judge ROBERTS

    At 00:26:36
    3 seconds

    Good morning, Senator.
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  • Senator KENNEDY

    At 00:26:39
    57 seconds

    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?

  • Judge ROBERTS

    At 00:27:36
    1 second

    Yes.

  • Senator KENNEDY

    At 00:27:37
    26 seconds

    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?

  • Judge ROBERTS

    At 00:28:03
    11 seconds

    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.

  • Senator KENNEDY

    At 00:28:14
    29 seconds

    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?

  • Judge ROBERTS

    At 00:28:43
    52 seconds

    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.

  • Senator KENNEDY

    At 00:29:35
    1 minute

    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.

  • Judge ROBERTS

    At 00:31:24
    32 seconds

    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.

  • Senator KENNEDY

    At 00:31:56
    38 seconds

    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?

  • Judge ROBERTS

    At 00:32:34
    3 seconds

    I do, I agree with that statement Senator, yes.

  • Senator KENNEDY

    At 00:32:37
    3 minutes

    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,
    extremely unusual.
    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
    lawyer.
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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?

  • Judge ROBERTS

    At 00:36:12
    2 minutes

    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
    got there.
    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.

  • Senator KENNEDY

    At 00:38:50
    10 seconds

    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.

  • Judge ROBERTS

    At 00:39:00
    1 second

    Sure.

  • Senator KENNEDY

    At 00:39:01
    1 minute

    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
    notwithstanding.’’
    Is there some reason that you would make a comment like that,
    ‘‘the truth of the matter’’ ?

  • Judge ROBERTS

    At 00:40:26
    1 minute

    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.

  • Senator KENNEDY

    At 00:42:04
    4 seconds

    Well, Mr. Chairman, I would ask that the
    memo by included in the record.

  • Chairman SPECTER

    At 00:42:08
    1 second

    Without objection, it will be included.

  • Senator KENNEDY

    At 00:42:09
    6 seconds

    You say that the assertion that the EEOC is
    un-American—the ‘‘truth of the matter notwithstanding’’ was your
    comment though.

  • Judge ROBERTS

    At 00:42:15
    1 second

    You do need to read the prior clause, prior sentence.

  • Senator KENNEDY

    At 00:42:16
    10 seconds

    I have read it a number of times and I will
    include it in the record and we will let the record stand.

  • Chairman SPECTER

    At 00:42:26
    6 seconds

    When Senator Kennedy’s line of questioning
    is finished and he has used his time, he will have the memo and
    you can respond.

  • Judge ROBERTS

    At 00:42:32
    3 seconds

    Thank you.

  • Senator KENNEDY

    At 00:42:35
    2 minutes

    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?

  • Judge ROBERTS

    At 00:44:49
    1 minute

    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.

  • Senator KENNEDY

    At 00:46:31
    1 second

    My time is up, Mr. Chairman. Thank you.

  • Judge ROBERTS

    At 00:46:32
    1 second

    Thank you, Senator.

  • Chairman SPECTER

    At 00:46:33
    22 seconds

    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?

  • Senator KENNEDY

    At 00:46:55
    1 second

    Yes, excuse me.

  • Chairman SPECTER

    At 00:46:56
    17 seconds

    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.

  • Senator KENNEDY

    At 00:47:13
    1 second

    Mr. Chairman.

  • Chairman SPECTER

    At 00:47:14
    2 seconds

    Senator Kennedy?

  • Senator KENNEDY

    At 00:47:16
    12 seconds

    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
    complete record.

  • Chairman SPECTER

    At 00:47:28
    6 seconds

    Well, if it is possible for Judge Roberts to
    deal with the redactions, that would be fine.

  • Judge ROBERTS

    At 00:47:34
    43 seconds

    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.

  • Chairman SPECTER

    At 00:48:17
    2 seconds

    Senator Kennedy, do you want to follow up
    on that?
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  • Senator KENNEDY

    At 00:48:19
    45 seconds

    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.

  • Chairman SPECTER

    At 00:49:04
    2 seconds

    Any counter-reply?

  • Judge ROBERTS

    At 00:49:06
    6 seconds

    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.

  • Chairman SPECTER

    At 00:49:12
    5 seconds

    We have finally come to one point of agreement.
    Senator Feinstein for 15 minutes.

  • Senator FEINSTEIN

    At 00:49:17
    1 minute

    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.

  • Judge ROBERTS

    At 00:50:29
    2 seconds

    I did, Senator, yes.

  • Senator FEINSTEIN

    At 00:50:31
    2 seconds

    Do you believe you were wrong?

  • Judge ROBERTS

    At 00:50:33
    4 seconds

    Well, Senator, on the underlying question—

  • Senator FEINSTEIN

    At 00:50:37
    3 seconds

    Could you say you were wrong if you believed
    you were wrong?

  • Judge ROBERTS

    At 00:50:40
    23 seconds

    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.

  • Senator FEINSTEIN

    At 00:51:03
    3 seconds

    Regardless of immigration status?

  • Judge ROBERTS

    At 00:51:06
    8 seconds

    My own view is that if you have a child, he or
    she should be educated, and you worry about status later.

  • Senator FEINSTEIN

    At 00:51:14
    3 seconds

    Just say yes, regardless of immigration status.

  • Judge ROBERTS

    At 00:51:17
    1 minute

    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.

  • Senator FEINSTEIN

    At 00:52:39
    1 minute

    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
    twist.
    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?

  • Judge ROBERTS

    At 00:54:24
    1 minute

    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.

  • Senator FEINSTEIN

    At 00:55:26
    1 minute

    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
    contras.
    What involvement did you have with the Nicaraguan Humanitarian
    Assistance Office?

  • Judge ROBERTS

    At 00:56:28
    10 seconds

    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—

  • Senator FEINSTEIN

    At 00:56:38
    1 second

    Okay. Fair enough.

  • Judge ROBERTS

    At 00:56:39
    22 seconds

    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.

  • Senator FEINSTEIN

    At 00:57:01
    13 seconds

    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
    contras?

  • Judge ROBERTS

    At 00:57:14
    14 seconds

    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
    it—

  • Senator FEINSTEIN

    At 00:57:28
    50 seconds

    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.

  • Judge ROBERTS

    At 00:58:18
    16 seconds

    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.

  • Senator FEINSTEIN

    At 00:58:34
    11 seconds

    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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  • Judge ROBERTS

    At 00:58:45
    1 minute

    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
    Executive’s authority.

  • Senator FEINSTEIN

    At 01:00:07
    34 seconds

    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?

  • Judge ROBERTS

    At 01:00:41

    No.

  • Senator FEINSTEIN

    At 01:00:41
    1 second

    Okay.

  • Judge ROBERTS

    At 01:00:42
    25 seconds

    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.

  • Senator FEINSTEIN

    At 01:01:07
    1 second

    Right.

  • Judge ROBERTS

    At 01:01:08
    1 minute

    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.

  • Senator FEINSTEIN

    At 01:02:47
    11 seconds

    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?

  • Judge ROBERTS

    At 01:02:58
    45 seconds

    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.

  • Senator FEINSTEIN

    At 01:03:43
    34 seconds

    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?

  • Judge ROBERTS

    At 01:04:17
    12 seconds

    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.

  • Senator FEINSTEIN

    At 01:04:29
    2 seconds

    So the intent has to be a specific intent.

  • Judge ROBERTS

    At 01:04:31
    40 seconds

    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.

  • Senator FEINSTEIN

    At 01:05:11
    2 seconds

    I think my time is up. Thank you very much.
    Thank you.

  • Judge ROBERTS

    At 01:05:13
    2 seconds

    Thank you, Senator.
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  • Chairman SPECTER

    At 01:05:15
    4 seconds

    Thank you, Senator Feinstein.
    Senator Feingold, you are recognized for 20 minutes.

  • Senator FEINGOLD

    At 01:05:19
    7 seconds

    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.

  • Judge ROBERTS

    At 01:05:26
    2 seconds

    Thank you, Senator.

  • Senator FEINGOLD

    At 01:05:28
    1 minute

    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
    judges?

  • Judge ROBERTS

    At 01:07:02
    1 minute

    Well, I don’t think special interests should be allowed
    to lobby Federal judges. Stated that way, I think the answer
    is clear.
    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.

  • Senator FEINGOLD

    At 01:08:25
    6 seconds

    Fair enough, and I think you would agree
    that there is nothing wrong with judges or Senators golfing. That
    is not the question.

  • Judge ROBERTS

    At 01:08:31
    3 seconds

    It may not be good for the game of golf, but...
    [Laughter.]

  • Senator FEINGOLD

    At 01:08:34
    14 seconds

    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
    or appearances?

  • Judge ROBERTS

    At 01:08:48
    28 seconds

    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.

  • Senator FEINGOLD

    At 01:09:16
    1 minute

    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.
    Chairman?

  • Chairman SPECTER

    At 01:10:19
    3 seconds

    Without objection, so ordered.

  • Senator FEINGOLD

    At 01:10:22
    3 minutes

    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
    restrictions.
    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?

  • Judge ROBERTS

    At 01:13:25
    2 minutes

    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—
    [Laughter.]
    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.

  • Senator FEINGOLD

    At 01:15:27
    7 seconds

    But, Judge, did you not at the time, as I read
    in your statement, advocate the abolition of Federal habeas review?

  • Judge ROBERTS

    At 01:15:34
    1 minute

    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.

  • Senator FEINGOLD

    At 01:16:39
    17 seconds

    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?

  • Judge ROBERTS

    At 01:16:56
    1 second

    Well, that wasn’t my position.

  • Senator FEINGOLD

    At 01:16:57
    1 second

    No, but I am asking—

  • Judge ROBERTS

    At 01:16:58
    1 second

    No, my—

  • Senator FEINGOLD

    At 01:16:59
    9 seconds

    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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  • Judge ROBERTS

    At 01:17:08
    6 seconds

    Oh, I’m not in favor now and was not in favor
    then of not allowing any Federal habeas review.

  • Senator FEINGOLD

    At 01:17:14
    3 seconds

    I am asking you whether you wouldn’t agree
    that as a matter of fact—

  • Judge ROBERTS

    At 01:17:17
    1 second

    Yes.

  • Senator FEINGOLD

    At 01:17:18
    3 seconds

    —had the writ been eliminated, that some innocent
    people would have been executed?

  • Judge ROBERTS

    At 01:17:21
    4 seconds

    Well, they certainly wouldn’t have been able to
    assert their claim of innocence in Federal habeas—

  • Senator FEINGOLD

    At 01:17:25
    1 second

    Would not have—

  • Judge ROBERTS

    At 01:17:26
    18 seconds

    —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.

  • Senator FEINGOLD

    At 01:17:44
    1 minute

    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.
    He
    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?

  • Judge ROBERTS

    At 01:18:54
    53 seconds

    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.

  • Senator FEINGOLD

    At 01:19:47
    11 seconds

    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?

  • Judge ROBERTS

    At 01:19:58
    2 seconds

    No, I don’t, in answer to both questions.
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  • Senator FEINGOLD

    At 01:20:00
    1 second

    So you would not do that.

  • Judge ROBERTS

    At 01:20:01
    23 seconds

    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
    and collegiality.

  • Senator FEINGOLD

    At 01:20:24
    16 seconds

    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?

  • Judge ROBERTS

    At 01:20:40
    1 second

    No.

  • Senator FEINGOLD

    At 01:20:41
    7 seconds

    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?

  • Judge ROBERTS

    At 01:20:48
    38 seconds

    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.

  • Senator FEINGOLD

    At 01:21:26
    46 seconds

    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
    Act.
    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’’?

  • Judge ROBERTS

    At 01:22:12
    44 seconds

    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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  • Senator FEINGOLD

    At 01:22:56
    9 seconds

    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?

  • Judge ROBERTS

    At 01:23:05
    35 seconds

    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.

  • Senator FEINGOLD

    At 01:23:40
    5 seconds

    Thank you, Judge, and I appreciate all your
    answers.
    Mr. Chairman, I yield back the remainder of my time.

  • Judge ROBERTS

    At 01:23:45
    1 second

    Thank you, Senator.

  • Chairman SPECTER

    At 01:23:46
    12 seconds

    Thank you very much, Senator Feingold.
    Senator Sessions has asked for recognition briefly to clarify one
    point which he thinks requires that clarification.

  • Senator SESSIONS

    At 01:23:58
    1 minute

    Thank you.
    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.

  • Judge ROBERTS

    At 01:25:12
    28 seconds

    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.

  • Senator SESSIONS

    At 01:25:40
    1 second

    Thank you, Mr. Chairman.

  • Chairman SPECTER

    At 01:25:41
    3 seconds

    Thank you, Senator Sessions.
    Senator Schumer is recognized for 15 minutes.

  • Senator SCHUMER

    At 01:25:44
    17 seconds

    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?

  • Judge ROBERTS

    At 01:26:01
    13 seconds

    Well, it depends how many there are.
    [Laughter.]
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    My answers will be fuller the fewer questions
    there are, but I will certainly—
    [Laughter.]
    I will certainly obviously make every effort to
    get them in as soon as possible.

  • Senator SCHUMER

    At 01:26:14
    33 seconds

    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
    General.
    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
    them.

  • Judge ROBERTS

    At 01:26:47
    18 seconds

    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
    and—

  • Senator SCHUMER

    At 01:27:05
    1 second

    I may not get—

  • Judge ROBERTS

    At 01:27:06
    1 second

    —I think that’s inappropriate.

  • Senator SCHUMER

    At 01:27:07
    4 seconds

    I may not get this. Aren’t they the attorney
    and you the client this time?

  • Judge ROBERTS

    At 01:27:11
    3 seconds

    Well, when the memos were prepared, I was the
    attorney.

  • Senator SCHUMER

    At 01:27:14

    I see.

  • Judge ROBERTS

    At 01:27:14
    1 second

    And they were the client.

  • Senator SCHUMER

    At 01:27:15
    1 second

    So you won’t take a position on that.

  • Judge ROBERTS

    At 01:27:16
    3 seconds

    I don’t think it’s appropriate for a lawyer to do
    so.

  • Senator SCHUMER

    At 01:27:19
    1 minute

    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
    asked yourself?
    [Laughter.]

  • Judge ROBERTS

    At 01:28:28
    4 seconds

    I’d begin by saying, ‘‘Well, that’s a good question,
    Senator.
    ’’
    [Laughter.]

  • Judge ROBERTS

    At 01:28:32
    57 seconds

    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
    framework there.
    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—

  • Senator SCHUMER

    At 01:29:29
    8 seconds

    How about something that you have not—a
    question that has not been asked since some of us are still unsure?

  • Judge ROBERTS

    At 01:29:37
    1 minute

    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.

  • Senator SCHUMER

    At 01:30:41
    4 seconds

    Any question that you would ask that has
    been left out?

  • Judge ROBERTS

    At 01:30:45
    8 seconds

    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.

  • Senator SCHUMER

    At 01:30:53
    4 seconds

    So I guess we did a better job than we think
    we did, right?

  • Judge ROBERTS

    At 01:30:57
    23 seconds

    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—

  • Senator SCHUMER

    At 01:31:20
    26 seconds

    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?

  • Judge ROBERTS

    At 01:31:46
    33 seconds

    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—

  • Senator SCHUMER

    At 01:32:19
    13 seconds

    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?

  • Judge ROBERTS

    At 01:32:32
    24 seconds

    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.

  • Senator SCHUMER

    At 01:32:56
    34 seconds

    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?

  • Judge ROBERTS

    At 01:33:30
    26 seconds

    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—

  • Senator SCHUMER

    At 01:33:56
    7 minutes

    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
    troubling.
    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.

  • Senator FEINSTEIN

    At 01:41:14
    1 second

    Mr. Chairman?

  • Chairman SPECTER

    At 01:41:15
    1 second

    Thank you, Senator Schumer.

  • Senator FEINSTEIN

    At 01:41:16

    Mr. Chairman?

  • Chairman SPECTER

    At 01:41:16
    21 seconds

    Wait just a minute. I will recognize you in
    a moment.
    Judge Roberts, Senator Schumer has postulated quite a number
    of questions in his last soliloquy, but—
    [Laughter.]
    —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.

  • Senator FEINSTEIN

    At 01:41:37
    3 seconds

    That was going to be my request. I think it
    would be very important.

  • Chairman SPECTER

    At 01:41:40
    2 seconds

    In that case, go ahead and make your request.
    [Laughter.]

  • Senator FEINSTEIN

    At 01:41:42
    4 seconds

    Yes. I think—

  • Chairman SPECTER

    At 01:41:46
    3 seconds

    Better the request comes from you than
    from me, Senator Feinstein.
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  • Senator FEINSTEIN

    At 01:41:49
    26 seconds

    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?

  • Chairman SPECTER

    At 01:42:15
    1 second

    No time limit, Judge.

  • Judge ROBERTS

    At 01:42:16
    2 minutes

    Well, I appreciate the comments very much,
    Senator Schumer, and I very much appreciate the pro side of the
    ledger.
    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
    there.
    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
    at those.
    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.

  • Chairman SPECTER

    At 01:45:03
    1 second

    Thank you, Judge Roberts.

  • Senator CORNYN

    At 01:45:04
    3 seconds

    Mr. Chairman?

  • Chairman SPECTER

    At 01:45:07

    Senator Cornyn.

  • Senator CORNYN

    At 01:45:07
    12 seconds

    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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  • Chairman SPECTER

    At 01:45:19
    1 second

    Senator Cornyn, you are recognized for three
    minutes.

  • Senator CORNYN

    At 01:45:20
    1 minute

    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?

  • Judge ROBERTS

    At 01:46:54
    1 minute

    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
    also suffer.

  • Senator CORNYN

    At 01:48:38
    25 seconds

    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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  • Chairman SPECTER

    At 01:49:03
    2 seconds

    Without objection, so ordered.
    Senator Durbin, you are recognized for 20 minutes.

  • Senator DURBIN

    At 01:49:05
    1 minute

    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.
    [Laughter.]
    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.

  • Judge ROBERTS

    At 01:51:04
    49 seconds

    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.

  • Senator DURBIN

    At 01:51:53
    2 minutes

    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
    case?

  • Judge ROBERTS

    At 01:53:53
    1 minute

    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
    Court.

  • Senator DURBIN

    At 01:55:22
    1 minute

    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?

  • Judge ROBERTS

    At 01:57:01
    2 minutes

    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
    believe.
    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
    them.

  • Senator DURBIN

    At 01:59:50
    1 minute

    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
    view.
    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.

  • Judge ROBERTS

    At 02:01:22
    50 seconds

    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.

  • Senator DURBIN

    At 02:02:12
    26 seconds

    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?

  • Judge ROBERTS

    At 02:02:38
    1 minute

    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.

  • Senator DURBIN

    At 02:03:46
    2 seconds

    Judge Roberts, thank you very much.
    Mr. Chairman, thank you.

  • Judge ROBERTS

    At 02:03:48
    2 seconds

    Thank you, Senator.

  • Chairman SPECTER

    At 02:03:50
    26 seconds

    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.

  • Senator GRAHAM

    At 02:04:16
    2 seconds

    Mr. Chairman?

  • Chairman SPECTER

    At 02:04:18
    23 seconds

    I have a strong inclination that however
    many questions there are, you will be able to answer them in appropriate
    course.
    We are now going to move into a closed session. Senator
    Graham?

  • Senator GRAHAM

    At 02:04:41
    2 seconds

    Yes, Mr. Chairman.

  • Chairman SPECTER

    At 02:04:43
    1 second

    You are recognized.

  • Senator GRAHAM

    At 02:04:44
    1 minute

    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.
    [Laughter.]

  • Senator GRAHAM

    At 02:06:30
    1 minute

    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.

  • Chairman SPECTER

    At 02:07:31
    1 minute

    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
    may have.
    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—

  • Senator LEAHY

    At 02:08:46
    18 seconds

    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.

  • Chairman SPECTER

    At 02:09:04
    3 seconds

    Senator Leahy, that is correct.

  • Senator LEAHY

    At 02:09:07

    Thank you.

  • Chairman SPECTER

    At 02:09:07
    2 minutes

    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
    building.