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Sept. 13 hearing transcript
The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court:
U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE UNITED STATES
SEPTEMBER 13, 2005
Transcript provided by CQ Transcriptions, LLC
U.S. SENATOR ARLEN SPECTER (R-PA)
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)
U.S. SENATOR PATRICK J. LEAHY (D-VT)
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)
JUDGE JOHN ROBERTS,
NOMINATED TO BE CHIEF JUSTICE OF THE UNITED STATES
SPECTER: It is 9:30. The confirmation hearing of Judge Roberts will now proceed.
Welcome, again, Judge Roberts.
ROBERTS: Thank you, Mr. Chairman.
SPECTER: We begin the first round of questioning in order of seniority, with 30 minutes allotted to each senator.
Judge Roberts, there are many subjects of enormous importance that you will be asked about in this confirmation hearing, but I start with the central issue which perhaps concerns most Americans, and that is the issue of the woman's right to choose and Roe v. Wade.
And I begin collaterally with the issue of stare decisis and the issue of precedence.
Black's Law Dictionary defines stare decisis as, Let the decision stand, to adhere to precedence and not unsettle things which are established.
Justice Scalia articulated, quote, The principal purpose of stare decisis is to protect reliance interest and further stability in the law. Justice Frankfurter articulated the principle, quote,
We recognize that stare decisis embodies an important social policy that represents an element of continuity in law and is rooted in the psychological need to satisfy reasonable expectations.
Justice Cardozo, in a similar vein, quote, No judicial system could do society's work if each issue had to be decided afresh in every case which raised it.
In our initial conversation, you talked about the stability and humility in the law.
Would you agree with those articulations of the principles of stare decisis, as you had contemplated them, as you said you looked for stability in the law?
ROBERTS: Yes, Mr. Chairman, I would. I would point out that the principle goes back even farther than Cardozo and Frankfurter. Hamilton, in Federalist No. 78, said that, To avoid an arbitrary discretion in the judges, they need to be bound down by rules and precedents.
So, even that far back, the founders appreciated the role of precedent in promoting evenhandedness, predictability, stability, adherence of integrity in the judicial process.
SPECTER: I move now to Casey v. Planned Parenthood. Thirty minutes may seem like a long time and a second round of 20 minutes, but the time will fly. And I want to get right to the core of the issue.
In Casey, the key test on following precedents moved to the extent of reliance by the people on the precedent.
And Casey had this to say in a rather earthy way: People have ordered their thinking and living around Roe. To eliminate the issue of reliance, one would need to limit cognizable reliance to specific instances of sexual activity. For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail.
That's the joint opinion; rather earthy in its context. Would you agree with that?
ROBERTS: Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion, but also in other opinions outside that area of the law.
The principles of stare decisis look at a number of factors. Settled expectations is one of them, as you mentioned. Whether or not particular precedents have proven to be unworkable is another consideration on the other side -- whether the doctrinal bases of a decision had been eroded by subsequent developments.
For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent.
SPECTER: But there's no doctrinal basis erosion in Roe, is there?
ROBERTS: Well, I feel the need to stay away from a discussion of particular cases. I'm happy to discuss the principles of stare decisis.
And the court has developed a series of precedents on precedent, if you will. They have a number of cases talking about how this principle should be applied.
And as you emphasized, in Casey, they focused on settled expectations. They also looked at the workability and the erosion of precedents. The erosion of precedents, I think, figured more prominently in the courts discussion in the Lawrence case, for example. But it is one of the factors that is looked at on the other side of the balance.
SPECTER: Well, do you see any erosion of precedent as to Roe?
ROBERTS: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again. And in the area of abortion, there are cases on the courts docket, of course. It is an issue that does come before the court.
So while I'm happy to talk about stare decisis and the importance of precedent, I don't think I should get into the application of those principles in a particular area.
SPECTER: Well, Judge Roberts, I don't know that we're dealing with any specific issue. When you mention -- and you brought that term up, erosion of precedent, whether you see that as a factor in the application of stare decisis or expectations, for example, on the citation I quoted from Casey v. Planned Parenthood.
ROBERTS: Well, in the particular case of Roe, obviously you have the Casey decision in 1992, '93...
ROBERTS: '92 -- in which they went through the various factors on stare decisis and reaffirmed the central holding in Roe, while revisiting the trimester framework and substituting the undue burden analysis with strict scrutiny.
So, as of '92, you had reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.
SPECTER: The joint opinion (inaudible) after the statement as to sexual activity to come to the core issue about women being able to plan their lives, quote, the joint opinion says, The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives.
Do you agree with that statement, Judge Roberts?
ROBERTS: Well, yes, Senator, as a general proposition, but I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions. And I'm reluctant to do that.
That's one of the areas where I think prior nominees have drawn the line when it comes to, Do you agree with this case or do you agree with that case? And that's something that I'm going to have to draw the line in the sand.
SPECTER: I'm not going to ask you whether you're going to vote to overrule Roe or sustain it. But we're talking here about the jurisprudence of the court and their reasoning.
Let me come to another key phase of Casey, where the joint opinion says a, quote, Terrible price would be paid for overruling Roe. It would seriously weaken the court's capacity to exercise the judicial power and to function as the Supreme Court of a nation dedicated to the rule of law. Now, this moves away from the specific holding and goes to a much broader jurisprudential point, really raising the issue of whether there would be a recognition of the court's authority.
And in a similar line, the court said this, that to overrule Roe would be, quote, a surrender to political pressure. And added, quote, to overrule under fire would subvert the court's legitimacy, close quote.
So in these statements on Casey, you're really going beyond the holding; you're going to the legitimacy and authority of the court.
Do you agree with that?
ROBERTS: Well, I do think the considerations about the court's legitimacy are critically important.
In other cases, my thinking of Payne v. Tennessee, for example, the court has focused on extensive disagreement as a grounds in favor of reconsideration. In Casey, the court looked at the disagreement as a factor in favor of reaffirming the decision. So it's a factor that is played different ways in different precedents of the court.
I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough -- and the court has emphasized this on several occasions -- it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question.
And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
SPECTER: A jolt to the legal system, a movement against stability, one of the Roberts doctrines.
ROBERTS: If a overruling of a prior precedent is a jolt to the legal system, it is inconsistent with principles of stability...
SPECTER: Go ahead.
ROBERTS: I was just going to say, the principles of stare decisis recognize that there are situations when that's a price that has to be paid. Obviously, Brown v. Board of Education is a leading example, overruling Plessy v. Ferguson, the West Coast hotel case overruling the Lochner-era decisions.
Those were, to a certain extent, jolts to the legal system, and the arguments against them had a lot to do with stability and predictability. But the other arguments that intervening precedents had eroded the authority of those cases, that those precedents that were overruled had proved unworkable, carried the day in those cases.
SPECTER: One final citation from the joint opinion in Roe, quote: After nearly 20 years of litigation in Roe's wake, we are satisfied that the immediate question is not the soundness of Roe's resolution of the issue, but the precedential force that must be accorded to its holding.
Do you think the court -- the joint opinion is correct in elevating precedential force even above the specific holding of the case?
ROBERTS: That is the general approach when you're considering stare decisis. It's the notion that it's not enough that you might think that the precedent is flawed, that there are other considerations that enter into the calculus that have to be taken into account: the values of respect for precedent, evenhandedness, predictability, stability; the considerations on the other side, whether a precedent you think may be flawed is workable or not workable, whether it's been eroded.
So to the extent that the statement is making the basic point -- that it's not enough that you might think the precedent is flawed to justify revisiting it -- I do agree with that.
SPECTER: When you and I met on our first so-called courtesy call, I discussed with you the concept of a super stare decisis, and this was a phrase used by a circuit Judge Luttig in Richmond Medical Center v. Governor Gilmore in the year 2000, when he refers to Casey being a super stare decisis decision with respect to the fundamental right to choose.
And a number of the academics -- Professor Farber has talked about the super stare decisis, and Professor Eskridge has, as it applies to statutory lines.
Do you think that the cases which have followed Roe fall into the category of a super stare decisis designation?
ROBERTS: Well, it's a term that hasn't found its way into the Supreme Court opinions yet.
SPECTER: Well, there's an opportunity for that.
ROBERTS: I think one way to look at it is that the Casey decision itself, which applies the principles of stare decisis to Roe v. Wade, is itself a precedent of the court entitled to respect under principles of stare decisis. And that would be the body of law that any judge confronting an issue in this area would begin with; not simply the decision in Roe v. Wade, but it's reaffirmation in the Casey decision.
That is itself a precedent. It's a precedent on whether or not to revisit the Roe v. Wade precedent. And, under principles of stare decisis, that would be where any judge considering an issue in this area would begin.
SPECTER: When you and I talked informally, I asked you if you had any thought as to how many opportunities there were in the intervening 32 years for Roe to be overruled, and you said you didn't really know.
And you cited a number. I said, Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised, but all with an opportunity for Roe to be overruled?
One of them was Rust v. Sullivan, where you participated in the writing of the brief and, although the case did not squarely raise the overruling of Roe, it involved the issue of whether Planned Parenthood, even if it's funded with federal money, could counsel on abortion.
And in that brief you again raised the question about Roe being wrongly decided. And then I pointed out to you that there had been some 38 cases where the court had taken up Roe.
And I'm a very seldom user of charts but, on this one, I have prepared a chart because it speaks -- a little too heavy to lift -- but it speaks louder than just -- thank you, Senator -- 38 cases where Roe has been taken up.
And I don't want to coin any phrases on super-precedents -- we'll leave that to the Supreme Court -- but would you think that Roe might be a super-duper precedent in light of...
... in light of 38 occasions to overrule it?
ROBERTS: Well, the interesting thing, of course, is not simply the opportunity to address it, but when the court actually considers the question.
And that, of course, is in the Casey decision, where it did apply the principles of stare decisis and specifically addressed it. And that I think is the decision that any judge in this area would begin with.
SPECTER: Judge Roberts, in your confirmation hearing for the circuit court, your testimony read to this effect, and it's been widely quoted: Roe is the settled law of the land.
Do you mean settled for you, settled only for your capacity as a circuit judge, or settled beyond that?
ROBERTS: Well, beyond that, it's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not.
And it is settled as a precedent of the court, yes.
SPECTER: You went on then to say, quote, It's a little more than settled. It was reaffirmed in the face of a challenge that it should be overruled in the Casey decision.
So it has that added precedential value.
ROBERTS: I think the initial question for the judge confronting an issue in this area, you don't go straight to the Roe decision; you begin with Casey, which modified the Roe framework and reaffirmed its central holding.
SPECTER: And you went on to say, accordingly: It is the settled law of the land, using the term settled again.
Then your final statement as to this quotation: There is nothing in my personal views that would prevent me from fully and faithfully applying the precedent, as well as Casey.
There have been questions raised about your personal views. And let me digress from Roe for just a moment because I think this touches on an issue which ought to be settled.
When you talk about your personal views and, as they may relate to your own faith, would you say that your views are the same as those expressed by John Kennedy when he was a candidate, when he spoke to the Greater Houston Ministerial Association in September of 1960, quote, I do not speak for my church on public matters and the church does not speak for me, close quote?
ROBERTS: I agree with that, Senator. Yes.
SPECTER: And did you have that in mind when you said, There's nothing in my personal vies that would prevent me from fully and faithfully applying the precedent, as well as Casey ?
ROBERTS: Well, I think people's personal views on this issue derive from a number of sources. And there's nothing in my personal views based on faith or other sources that would prevent me from applying the precedents of the court faithfully under principles of stare decisis.
SPECTER: Judge Roberts, the change in positions have been frequently noted. Early on, in one of your memoranda, you had made a comment on the so-called right to privacy. This was a 1981 memo to Attorney General Smith, December 11th, 1981. You were referring to a lecture which Solicitor General Griswold had given six years earlier and you wrote, quote, that, Solicitor General Griswold devotes a section to the so-called right to privacy; acquiring, as we have -- that such an amorphous arguing, as we have, that such an amorphous right was not to be found in the Constitution.
Do you believe today that the right to privacy does exist in the Constitution?
ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways.
It's protected by the Fourth Amendment which provides that the right of people to be secure in their persons, houses, effects and papers is protected.
It's protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise.
It protects privacy in matters of conscience.
It was protected by the framers in areas that were of particular concern to them. It may not seem so significant today: the Third Amendment, protecting their homes against the quartering of troops.
And in addition, the court has -- it was a series of decisions going back 80 years -- has recognized that personal privacy is a component of the liberty protected by the due process clause.
The court has explained that the liberty protected is not limited to freedom from physical restraint and that it's protected not simply procedurally, but as a substantive matter as well.
And those decisions have sketched out, over a period of 80 years, certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.
SPECTER: So that the views that you expressed back in 1981, raising an issue about amorphous and so-called, would not be the views you'd express today?
ROBERTS: Those views reflected the dean's speech. If you read his speech, he's quite skeptical of that right. I knew the attorney general was. And I was transmitting the dean's speech to the attorney general, but my views today are as I've just stated them.
So they weren't necessarily your views then, but they certainly aren't your views now?
ROBERTS: I think that's fair, yes.
SPECTER: With respect to going back again to the import of Roe and the passage of time, Supreme Court Chief Justice Rehnquist changed his views on Miranda.
In the 1974 case, Michigan v. Tucker, which I'm sure you're familiar with, he did not apply Miranda -- without going into the technical reason there.
But the issue came back to the court in U.S. v. Dickerson in the year 2000. And the chief justice decided that Miranda should be upheld, and he used this language: that it became, quote, so embedded in routine police practice to the point where the warnings have become a part of our national culture, close quote.
Do you think that that kind of a principle would be applicable to a woman's right to choose as embodied in Roe v. Wade?
ROBERTS: Well, I think those are some of the considerations the court applied in Casey when it applied stare decisis to Roe. And those were certainly the considerations that the chief justice focused on in Dickerson.
I doubt that his views of the underlying correctness of Miranda had changed, but it was a different question in Dickerson. It wasn't whether Miranda was right; it was whether Miranda should be overruled at this stage.
And the chief applied and addressed that separate question, distinct from any of his views on whether Miranda was correct or not when decided. And that's the approach the court follows under principles of stare decisis.
SPECTER: Well, that's the analogy I'm looking for in Roe v. Wade. Might disagree with it at the time it was decided, but then his language is very powerful when he talks about it becoming, quote,
embedded in routine police practices to the point where the warnings have become a part of our national culture.
And the question, by analogy: Whether a woman's right to choose is so embedded that it's become a part of our national culture; what do you think?
ROBERTS: Well, I think that gets to the application of the principles in a particular case. And based on my review of the prior transcripts of every nominee sitting on the court today, that's where they've generally declined to answer: when it gets to the application of legal principles to particular cases.
I would repeat that the court has already applied the principles of stare decisis to Roe in the Casey decision. And that stands as a precedent of the court, as well.
SPECTER: So you're not bound to follow it but it's pretty impressive logic?
ROBERTS: In the Casey decision -- well, I mean...
SPECTER: No. I'm talking about Chief Justice Rehnquist on Miranda.
ROBERTS: I think in that case, the chief's explanation of why they weren't going to revisit Miranda -- it persuaded, I believe, all but one member of the court, and I'm sure it had added persuasive effect because of the chief's prior views on Miranda itself. It is a recognition of some of the things we've been talking about -- the values of stare decisis. I don't think, again, that there's any doubt what the chief -- certainly what he thought. He told us what he thought about Miranda. I doubt that those views have changed.
But there are other considerations that come into play when you're asked to revisit a precedent of the court. And those are the things we've talked about. And they're laid out, again, in Dickerson and other cases of the court: Payne v. Tennessee, for example, Agostini a variety of decisions where the court has explained when it will revisit a precedent and when it will not.
And, of course, the decisions come out both ways. In Payne v. Tennessee, the court went through the analyses. It was a case about whether victims could testify at sentencing. The precedent said no, and they overruled those.
SPECTER: Let me move to two more points before my time is about to expire in two minutes and 35 seconds.
There's a continuing debate on whether the Constitution is a living thing. And as you see Chief Justice Rehnquist shift his views on Miranda, it suggests that he would agree with Justice John Marshall Harlan's dissent in Poe, where he discusses the constitutional concept of liberty and says, quote, The traditions from which it developed, that tradition is a living thing.
Would you agree with that?
ROBERTS: I agree that the tradition of liberty is a living thing, yes.
SPECTER: Let me move, in the final two minutes here, to your participation pro bono in Roemer, where you gave some advice on the arguments to those who were upholding gay rights. There's a quotation by Walter Smith, who was the lawyer at Hogan Hartson in charge of pro bono work.
And he had this to say about your participation in that case, supporting her, trying to help the gay community in the case in the Supreme Court -- Mr. Smith said, quote, Every good lawyer knows that if there is something in his client's cause that so personally offends you, morally, religiously, or if it so offends you that you think it would undermine your ability to do your duty as a lawyer, then you shouldn't take it on. And John -- referring to you -- wouldn't have. So at a minimum, he had no concerns that would rise to that level.
Does that accurately express your own sentiments in taking on the (inaudible) to the gay community in that case?
ROBERTS: I was asked frequently by other partners to help out, particularly in my area of expertise, often involved moot courting. And I never turned down a request. I think it's right that if there had been something morally objectionable, I suppose I would have. But it was my view that lawyers don't stand in the shoes of their clients and that good lawyers can give advice and argue any side of a case.
And as I said, I was asked frequently to participate in that type of assistance for other partners at the firm. And I never turned anyone down.
SPECTER: My time's just expired.
LEAHY: Thank you, Mr. Chairman.
Good morning, Judge.
ROBERTS: Good morning.
LEAHY: You look like you survived well yesterday.
No one doubts you've had a very impressive legal career thus far. And now you've been nominated to be chief justice of the United States. But I have concerns, as I go back over your career -- and we've had some discussions of this already -- about some of the themes in your career, some of the goals you sought to achieve using what is formidable skill.
My first area of concern involves a fundamental question of constitutional philosophy: the separation of powers. The last thing our founding fathers wanted was to be ruled by king with absolute power, and the next to the last thing they wanted was to be ruled by a temporary king with absolute powers for four years.
So we've got the political system we've talked about a great deal yesterday of checks and balances. Each of the three branches of government constrains the other when they overreach. Americans have relied on this for our fundamental guarantees of freedom and democracy and open government.
And all of us who serve, whether in the executive branch, the judiciary, as you do, the legislative, as we do, have taken a very solemn oath to uphold the Constitution.
But there have been times throughout our history when the separation of powers has been strained to its limits by presidents claiming power way beyond -- actually, almost imperial powers. So let's this focus this down a little bit more on presidential power.
Let's go to the president's power as commander in chief of the armed forces. He certainly has that power under the Constitution.
I look back to the time when you were a lawyer in the Reagan White House. You objected to a bill that would give certain preferences to veterans who had served in Lebanon between August 20, 1982, and, quote, the date the operation ends, close quote. And the day would be, as you just said, by presidential proclamation or a concurrent resolution of Congress.
And you wrote that the difficulty with such a bill is that it recognizes a role for Congress in determining the Lebanon operation. And you wrote further, quote I do not think we would want to concede any definite role for Congress in termination the Lebanon operation, even by joint resolution presented to the president. And then you explained even parenthetically that even if the president vetoed such a joint resolution, of course, Congress could override it by two-thirds majority.
I find that troubling; I'll tell you why.
Before I read your memo, I thought everybody agreed there would be only one answer to the question of whether Congress could stop a war.
Your memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war. I really find that extremely hard to follow. And I imagine most Americans would.
I'll give you a hypothetical. Congress passes a law for all U.S. forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, You must withdraw by a certain date.
Now, is there any question in your mind that the president would be bound to faithfully execute that law?
ROBERTS: Well, Senator, I don't want to answer a particular hypothetical that could come before the court, but I'm happy to comment on the memorandum that you're discussing.
LEAHY: No, wait a minute. I mean, isn't this kind of hornbook law? I don't know of any cases coming before the court; I mean, this is kind of hornbook.
The Congress says to the president, You got to get out, and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn't the president have to -- charged as he is under the Constitution to faithfully execute the law, why wouldn't he have to follow that law?
ROBERTS: Well, Senator, that issue of -- and similar issues have, in fact, come up. There were, for example, lawsuits concerning the legality of the war in Vietnam; various efforts. And certainly the arguments would be made on the other side about the president's authority. And that may well come before the court.
LEAHY: Judge, with all due respect, the cases in Vietnam were not based on a specific law passed by Congress to get out. I mean, Congress did cut off the funding...
LEAHY: ... in April, 1975, by a one-vote margin in the Armed Services Committee. I know because I was the newest member of the committee at that time -- voted to not authorize the war any longer.
But are you saying that Congress could not pass a law that we must withdraw forces?
ROBERTS: No, Senator, I'm not.
What I'm saying is that that issue or issues related to that could well come before the court, and that's why I have to resist answering a particular hypothetical question.
The memo you refer to -- I was working in the White House Counsel's Office then. The White House Counsel's Office is charged to be vigilant to protect the executive's authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch.
I believe very strongly in the separation of powers. It was a very important principle that the framers set forth that is very protective of our individual liberty and make sure the legislative branch legislates, the executive executes, the judicial branch decides the law. And it was part of the framers' vision that each of the branches would be, to a certain extent, jealous of what they regarded as their prerogatives.
And to extent there is a dispute between the legislative branch and the executive branch, it's the job, of course, of the judicial branch to resolve that dispute.
LEAHY: But your position in this memo in President Reagan's office seemed to indicate that Congress does not have the ability to end hostilities.
ROBERTS: With respect, Senator, you're vastly over-reading the memorandum.
LEAHY: Tell me why.
ROBERTS: Well, because it had nothing to do with terminating hostilities. It had to do with the eligibility for certain pension benefits.
And the question then was whether or not -- who should be determining when the hostilities ceased or should cease. And there again, a lawyer for the executive branch -- not a judge who would be considering the issue in an entirely different light, but a lawyer for the executive branch -- a careful lawyer would say: There may be a problem there. Are we conceding anything by saying the legislature gets to determine when the hostilities end?
LEAHY: Right. I don't think it's overreading it at all, as you suggest, to say -- when you write, I do not think we would want to concede any definitive role for Congress in terminating the Lebanon operation even by joint resolution presented to the president.
ROBERTS: Well, with respect, Senator...
LEAHY: You're saying you don't want to concede any ability to the Congress to stop a war.
ROBERTS: With respect, Senator, the memorandum is about legislation for -- if I'm remembering it correctly; it was 20 some years ago -- pension benefits or certain additional pay benefits. That's what it was about.
And I suspect, if you asked any lawyer for any president of any administration whether they wanted to concede that general principle or if, as careful lawyers, they would prefer that that provision were rewritten or not in there, I am fairly confident, regardless of the administration, that a lawyer for the executive would take the same position.
Now, I am also fairly confident that one of your lawyers here in the Senate would take the opposite position.
LEAHY: Let me ask you this question: Does Congress have the power to declare war?
ROBERTS: Of course. The Constitution specifically gives that power to Congress.
LEAHY: Does Congress, then, have the power to stop a war?
ROBERTS: Congress certainly has the power of the purse. And that's the way, as you noted earlier, that Congress has typically exercised...
LEAHY: Yes, but we know, we did that in the Boland amendment. And the Reagan administration, as we found out in the sorry chapter of Iran-Contra, went around that, violated the law, worked with Iran, sold arms illegally to Iran -- I think that's one of the axis of evil today -- to continue the Contra war in Central America. So the power of the purse -- we've cut off money, but the wars sometimes keep going.
Do we have the power to terminate a war? We have the power to declare war. Do we have the power to terminate war?
ROBERTS: Senator, that's a question that I don't think can be answered in the abstract. You need to know the particular circumstances and exactly what the facts are and what the legislation would be like, because the argument on the other side -- and as a judge, I would obviously be in a position of considering both arguments, the argument for the legislature and the argument for the executive. The argument on the executive side will rely on authority as commander in chief and whatever authorities derive from that.
So it's not something that can be answered in the abstract.
LEAHY: You said -- your answer is that you were just talking about the question of veterans' benefits and all that after this. I would note that the memo you wrote wasn't entitled Veterans' Benefits. It was entitled War Powers Problem. I don't think I overstate it.
Now let me as you another question. We spoke about this again this morning, and I had told you when we met -- in fact, I gave you a copy of the Bybee memo so that this would not be a surprise to you.
The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002 which argued the president enjoys, quote,
complete authority over the conduct of war, close quote. And, quote, The Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during war, close quote.
And then it took the argument to the extreme when it concluded the president, when acting as commander in chief was not bound -- was not bound -- by the federal law banning the use of torture. In other words, the president would be above the law in that regard. You did not write that memo -- I hasten to add -- but you've seen it.
And I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of executive power, which puts the president above the law. He never gave an answer on that and that's tone of the reasons why many had voted against his confirmation.
So, now let me ask you this: Do you believe that the president has a commander-in-chief override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?
ROBERTS: Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the constitution and statutes. Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority.
The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman's seizure of the steel mills.
LEAHY: The Supreme Court held that unconstitutional.
ROBERTS: Exactly. And the framework set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories.
If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee, memo where the president is acting contrary to congressional authority, what justice Jackson said is, the president's authority is at its lowest ebb.
It consists solely of his authority under the constitution, less whatever authority Congress has. And then, of course, there's the vast little area where courts often have to struggle because they can't determine whether Congress has supported a particular exercise or not. The Dames Moore case, for example, is a good example of that.
SPECTER: Would you consider -- go ahead.
ROBERTS: I just going to say the first issue for a court confronting the question you posed would be whether Congress specifically intended to address the question of the president's exercise of authority or not.
LEAHY: Well, yes, I would think that if you pass a law saying nobody in our government shall torture, I think that's pretty specific.
But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?
ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, '52, whatever it was.
LEAHY: The reason I ask that, when Mr. Bybee wrote this memo, he never cited Youngstown. I think it was Harold Koh, the dean at the Yale Law School who said this was a stunning omission. I don't agree with that. The president, instead, went ahead and appointed -- or nominated Mr. Bybee to a federal judgeship.
ROBERTS: Youngstown's a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR's attorney general and certainly a proponent of expansive executive powers...
LEAHY: You've also said he was one of the justices you admire the most.
ROBERTS: He is, for a number of reasons. And what's significant about that aspect of his career is here's someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. And then as he went on the court, as you can tell from his decision in Youngstown, he took an entirely different view of a lot of issues; in one famous case even disagreeing with one of his own prior opinions. He wrote a long opinion about how he can't believe he once held those views. I think it's very important...
LEAHY: Are you sending us a message?
ROBERTS: Well, I'm just saying...
One reason people admire Justice Jackson so much is that, although he had strong views as attorney general, he recognized, when he became a member of the Supreme Court, that his job had changed and he was not the president's lawyer, he was not the chief lawyer in the executive branch. He was a justice sitting in review of some of the decisions of the executive.
And he took a different perspective. And that's, again, one reason many admire him, including myself.
LEAHY: The reason I ask -- I mean, I thought the memo was outrageous, and once it became public -- not until it became public, but after it became public, the president disavowed it and said he is opposed to torture, and I commend him for that.
Many wish the administration had taken that position prior to the press finding out about it.
But in the Jackson opinion -- and I just pulled it out here -- he says, The president has no monopoly of war powers, whatever they are. Congress cannot deprive the president of the command of the Army and Navy. Only Congress can provide him with an Army and Navy to command. Congress is also empowered to make rules for the government and regulation of land enabled forces. By which it may, to some unknown extent, impinge upon even command functions.
Do you agree that Congress can make rules that may impinge upon the president's command functions?
ROBERTS: Certainly, Senator. And the point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches.
The president is the commander in chief, and that meant something to the founders. On the other hand, as you just quoted, Congress has the authority to issue regulations governing the armed forces: another express provision in the Constitution.
Those two can conflict if by making regulations for the armed forces Congress does something that interferes with, in the president's view, his command authority. And in some cases those disputes will be resolved in court, as they were in the Youngstown case.
LEAHY: In his book, All the Laws But One, Chief Justice Rehnquist, the late chief justice, concluded with this sentence, The laws will not be silent in time of war but they'll speak with a somewhat different voice.
He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race.
Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history.
Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will. We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11.
I just want to make sure you're not going to be a Korematsu justice, so I have a couple of questions.
Can I assume that you will hold the internment of all residents of this country who are interned just because they have a particular nationality or ethnic or religious group -- you would hold that to be unconstitutional?
ROBERTS: The internment of a group solely on the basis of their...
LEAHY: Nationality or ethnic or religious group?
ROBERTS: I suppose a case like that could come before the court. I would be surprised to see it. And I would be surprised if there were any arguments that could support it.
LEAHY: Let me ask you this: Do you feel that you would be able to interpret the Bill of Rights the same whether we're at wartime or not?
ROBERTS: I do, Senator.
I read the chief's book that you quoted from. And for someone who sits on the court that I sit on now, we famously look back to one of the first cases decided in the D.C. Circuit. It was the Aaron Burr trial. And if anything's a model...
LEAHY: I thought you might mention that.
ROBERTS: Well, it's, sort of, a motto of our court, an opinion that was written out of that, in which the judge explained that it was our obligation to calmly poise the scales of justice in dangerous times as well as calm times -- that's a paraphrase.
But the phrase, calmly poise the scales of justice is, if anything, the motto of the court on which I now sit.
And that would be the guiding principle for me, whether I'm back on that court or different one, because some factors may be different, the issues may be different, the demands may be different, but the Bill of Rights remains the same. And the obligation of the court to protect those basic liberties in times of peace and in times of war, in times of stress and in times of calm, that doesn't change.
LEAHY: I hope you feel that way. I know people have spoken of the First Amendment as not there to protect popular speech; that's easy. It's unpopular speech.
And as I mentioned yesterday, our state really wanted to make sure the Bill of Rights was going to be there before we joined the union.
Let me switch gears a bit. In the area of environmental protection, I feel that you've narrowly construed laws in the Constitution in a way to close the courthouse doors to millions of parents who want to protect their children from dangerous air pollution or unsafe drinking water, fish contaminated with mercury, foods covered with pesticides.
We all know that often the president, no matter who is president -- local governments don't do enough to protect people from environmental dangers. And we've given them protection, the Congress has.
I thought your Duke Law Journal, which many commented about in the press and otherwise, was somewhat dismissive regarding these citizen suits to protect the environment. You wrote that Congress may not ask the courts, in effect, to exercise oversight responsibility at the behest of any John Q. Public who happens to be interested in the issue.
You discount the interest that many citizens and Congress have in preserving our environment.
A few years ago you sounded very much like Justice Scalia. I know a few years ago the Supreme Court, over the dissent of Justice Scalia, ruled that a citizen living near a stream that had been polluted by many illegal discharges of mercury from an upstream company did have the right to go to court over these illegal mercury discharges. The government was not enforcing the laws.
So I ask you this: If their president or their governor fails to enforce these laws, why shouldn't individuals have access to courts where polluting companies could be made to pay for their wrongdoing? What can you tell us to assure us parents of children who are worried about this, from birth defects and all of us -- what can you do to assure us that they as individuals won't, under a Chief Justice Roberts, find the courthouse door slammed shut in their face?
ROBERTS: Well, one thing I would tell them to do is read the rest of the Duke Law Journal article. Because one point it makes is that environmental interests, it goes on to say, aesthetic interests, those are all protected under the law. And that one reason courts should insist that those who bring suit have standing -- that's the issue, that are actually injured -- is because standing can encompass, certainly, environmental harms.
The issue that was being addressed in the Duke Law Journal article was whether anyone could bring a lawsuit just because they're interested in the issue, or whether the plaintiffs had to show that they had been injured.
In other words, in your hypothetical, the people who are downstream from the mercury pollution, they will be able to show that they're injured and can bring suit.
The question is whether somebody halfway across the country who's not injured by that act should be able to bring suit. That was the issue in the law journal.
LEAHY: But I read it also, in conjunction with your brief that you wrote in 1991, when you were Kenneth Starr's political deputy, in Franklin v. Gwinnett County Public Schools -- now in that case, a girl, Christine Franklin, had been sexually harassed, she'd been abused by the time she was in 10th grade by a teacher and a sports coach.
The school was aware of sexual harassment but took no action. In fact, they even encouraged her not to complain.
The Office for Civil Rights at the Department of Education investigated; found their rights were violated under Title IX of our civil rights laws. She had been physically abused. A right to complain about gender discrimination had been interfered with. You argued that she had no right to damages for this abuse.
Now, your view was rejected by the Supreme Court. Justice White, in an opinion joined by Justice O'Connor and others, wrote that you fundamentally misunderstood the long history of the court's role in providing appropriate remedy for such abuse and that you had invited them to abdicate their historical judicial authority toward appropriate belief.
So do you now personally agree with and accept as binding the law the reasoning of Justice White's opinion in Franklin?
ROBERTS: Well, it certainly is a precedent of the court that I would apply under principles of stare decisis. The government's position in that case, of course, in no way condoned the activities involved.
The issue was an open one. The courts of appeals had ruled the same way that the government had argued before the Supreme Court. And it arose because we were dealing with an implied right of action; in other words, right of action under the statute that courts had implied.
The reason that there was difficulty in determining exactly what remedies were available is because Congress had not addressed that question. The remedies that were available as we explained included issues such as restitution, back pay, injunctive relief.
The open issue, again, was whether damages were available. The Supreme Court issued its ruling and cleared that up.
LEAHY: But here in a case -- I mean, this is a pretty egregious case. And I'm sure you in no way condoned what happened to this young girl. It was awful. She'd been taken out of class by this teacher, brought to another room, basically raped.
And Justice White made it very clear, contrary to what you and Kenneth Starr had said, that she had a right for actions because of that abuse.
Now, do you feel that they were acting -- even though it went different than what you'd argued -- do you feel the court's opinion is based on sound reasoning?
LEAHY: Do you think it's a solid precedent?
ROBERTS: It's a precedent in the court. It was, as you say, unanimous precedent. It concerned an issue of statutory interpretation because it was unclear whether Congress had intended a particular remedy to be available or not. That was the question before the court.
The court of appeals had ruled one way. The Supreme Court ruled the other way.
The administration's position was based on the principle that the decision about the remedy of back pay was a decision that should be made by Congress and not the court. The court saw the case the other way.
And that issue is now settled. Those damages, actions are brought in courts around the country.
LEAHY: But I wonder if we're balancing angels on the head of a pin. What kind of back pay was this teenage student going to be seeking? What kind of injunction is she going to do -- after she graduated? Would she seek that kind of injunction?
You know, as a parent -- and you're a parent, I just wonder: Aren't we saying that we'll put up a block for people who have really justiciable reasons to be in court?
ROBERTS: No, Senator, again, there was no issue in the case about condoning the behavior. I found it abhorrent then and I find it abhorrent now. That's not the issue. The issue in the case is: Did Congress intend for this particular remedy to be available?
Other remedies were available under the provision at issue. And the question is: Was this remedy available?
LEAHY: The back pay?
ROBERTS: Restitution and injunction to prohibit the harmful activity -- again, the issue arose because Congress had not spelled out whether there was a right of action in the first place or what the components of that right of action should be.
LEAHY: We'll go back to this in my next round, I can assure you. My time is up.
Thank you, Mr. Chairman.
SPECTER: Thank you very much, Senator Leahy.
HATCH: Well, thank you, Mr. Chairman. I'm happy to be here. And I appreciate your leadership -- you and Senator Leahy -- on this committee.
Welcome you, again, Judge Roberts, and appreciate...
ROBERTS: Thank you...
HATCH: And I read an interesting book over the weekend, Cass Sunstein's recent book published by Basic Books. Now, he discussed various philosophies with regard to judging. And I just would like to ask you this question: Some of the philosophies he discussed were whether a judge should be an originalist, a strict constructionist, a fundamentalist, perfectionist, a majoritarian or minimalist -- which of those categories do you fit in?
ROBERTS: I didn't have a chance to read Professor Sunstein's book. He writes a different one every week; it's hard to keep up with him.
But, you know, I think...
HATCH: I've read a number of them.
ROBERTS: Like most people, I resist the labels. I have told people, when pressed, that I prefer to be known as a modest judge. And, to me, that means some of the things that you talked about in those other labels. It means an appreciation that the role of the judge is limited; the judge is to decide the cases before them; they're not to legislate; they're not to execute the laws.
Another part of that humility has to do with respect for precedent that forms part of the rule of law that the judge is obligated to apply under principles of stare decisis.
Part of that modesty has to do with being open to the considered views of your colleagues on the bench. I would say that's one of the things I've learned the most in the past two years on the Court of Appeals: how valuable it is to function in a collegial way with your colleagues on the bench; other judges being open to your views; you being open to theirs.
They, after all, are in the same position you're in. They've read the same briefs. They've heard the same arguments. They've looked at the same cases.
If they're seeing things in a very different way, you need to be open to that and try to take another look at your view and make sure that you're on solid ground. Now, I think that general approach results in a modest approach to judging which is good for the legal system as a whole. I don't think the courts should have a dominant role in society and stressing society's problems.
It is their job to say what the law is. That's what Chief Justice Marshall said, of course, in Marbury v. Madison.
And, yes, there will be times when either the executive branch or the legislative branch exceeds the limits of their powers under the Constitution or transgresses one of provisions of the Bill of Rights. Then it is emphatically the obligation of the courts to step up and say what the Constitution provides, and to strike down either unconstitutional legislation or unconstitutional executive action.
But the court has to appreciate that the reason they have that authority is because they are interpreting the law. They are not making policy.
And to the extent they go beyond their confined limits and make policy or execute the law, they lose their legitimacy. And I think that calls into question the authority they will need when it's necessary to act in the face of unconstitutional action.
HATCH: Now, I know that I have only mentioned a few of the so- called descriptions of various philosophical attitudes with regard to judging.
But am I correct in interpreting that you are probably eclectic, that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those positions, and none of them absolutely creates an absolute way of judging.
ROBERTS: Well, I have said I do not have an overarching judicial philosophy that I bring to every case. And I think that's true.
ROBERTS: I tend to look at the cases from the bottom up rather than the top down. And I think all good judges focus a lot on the facts. We talk about the law, and that's a great interest for all of us. But I think most cases turn on the facts, so you do have to know those. You have to know the record.
In terms of the application of the law, you begin, obviously, with the precedents before you. There are some cases where everybody's going to be a literalist. If the phrase in the Constitution says two-thirds of the Senate, everybody's a literalist when they interpret that.
Other phrases in the Constitution are broader: unreasonable searches and seizures. You can look at that wording all day and it's not going to give you much progress in deciding whether a particular search is reasonable or not. You have to begin looking at the cases and the precedents, what the framers had in mind when they drafted that provision.
So, yes, it does depend upon the nature of the case before you, I think.
HATCH: Well, thank you.
On the War Powers Act, I remember when Senator Heflin years ago in the Breyer hearing said, You, of course, have been here at various times. Do you have any particular thoughts concerning the authority and what ought to be done relative to this or do you have feel feelings that the War Powers Act is a proper approach to this issue?
Judge Breyer's simple answer was, I do not have special thoughts they I would think would be particularly enlightening in that area.
He did not get drawn into interpreting the War Powers Act for the committee, and I suspect that that's the way you feel as well.
Now, my friend the chairman held up a chart with a number of cases that he said relied on Roe v. Wade. In fact, if I heard him correctly, he called Roe a super-duper precedent.
Now, I'm not that a superduper precedent exists, between you and me, but have said that Planned Parenthood v. Casey, very important case, reaffirmed Roe.
But let me just ask you this: Am I correct that Casey reaffirmed the central holding in Roe but substantially changed its framework?
ROBERTS: That's what the joint opinion of the three justices said. It was reaffirming the central holding. It revisited and altered the framework...
HATCH: But there were only a few votes to simply reaffirm Roe, weren't there, in the Casey case?
ROBERTS: Well, the plurality opinion is regarded, I think, as the opinion of -- it's the opinion of the plurality, but as the leading opinion of the justices and the majority. It's one the judges look to in the first instance.
There were separate opinions that disagreed with some of the ways in which that plurality revisited Roe. It reaffirmed the central holding in Roe v. Wade, it dispensed with the trimester framework, and it substituted for the strict scrutiny that Roe had established the undue burden analysis that, hence, since the time of Casey, has governed in this area.
HATCH: Well, as I recall it, there were only a few votes, as you've mentioned, to simply reaffirm Roe. But does this suggest that Casey itself noted the troubling features of Roe and indicated that Roe's framework has not been workable?
ROBERTS: Well, the question of the workability of the framework is, I think, one of the main considerations that you look to under principles of stare decisis, along with the settled expectations, whether a precedent has been eroded.
That was one of the factors that the court looked at in Casey in determining, I think, to alter the framework of Roe, the trimester framework and the strict scrutiny approach, at least in the terms that were applied by the joint opinion.
HATCH: Our chairman asked if former Chief Justice Rehnquist's opinion in the Dickerson case upholding Miranda would apply to Roe v. Wade. And if I recall correctly, you properly declined to answer, but am I right that Chief Justice Rehnquist repeatedly believed that Roe should be overruled?
ROBERTS: That was his view, yes.
HATCH: And doesn't that mean that Rehnquist himself did not believe that his Dickerson holding should apply to Roe? Would that be a fair conclusion?
ROBERTS: Well, based on his published opinions, and I don't remember -- certainly he wrote in Casey. I don't know if he's written since then. So I just hesitate to ascribe views from 1992 to the current.
Now, the chairman and ranking member have raised some important issues, and I may turn to some of them shortly. But I believe, however, that we should start with first principles before exploring how those principles should be applied.
Many activist groups, and some of my Senate colleagues, would like nothing more than that you take a series of litmus tests, that you reveal your positions on issues and tell us where you stand.
I've been on this committee during the hearings on nine Supreme Court nominations. I voted to confirm all of the nominees, Democrats and Republicans.
As I described yesterday, I agree that this committee needs answers, but only to proper questions.
The important question is not what your views are on any particular issue. You are not campaigning for elective office. The question that needs to be answered is how you view the role of unelected judges in a representative democracy.
And I know you've said you do not have what might be described as a carefully calibrated, highly defined judicial philosophy, but as each individual case comes before you with its own unique facts and issues -- yesterday you gave us your commitment that you will approach that case within a certain framework.
Now, I am more interested in learning more about that framework, that perspective on what you believe your job as a judge really is, than I am in how you specifically implement that framework in specific cases or individual cases.
Now, this is where I do differ with some of my colleagues. I want to know more about how you get -- or how you intend to get -- to a conclusion, while some appear to only want to know what the conclusion will be, like on issues such as abortion.
Some think that judges exist to defend and promote progress, preserving the gains of the past and bringing us to a better future of equality and justice. Now, that does not sound -- to use a word you have used to describe judges -- very modest to me.
On the other hand, Senator DeWine noted Justice Byron White, appointed by President Kennedy, said that judges decide cases; and I thought that was an important quote yesterday. Yesterday you used the analogy of an umpire who calls balls and strikes but neither pitches or bets. Please help the committee sort this out by describing further the role you believe unelected judges play or should play in our system of government.
Are they charged, for example, with using the Constitution affect cultural and political reform, or does the Constitution require that this should be left to the people and their elected representatives?
How can the judiciary sit in constitutional judgment over the legislative and executive branches while still remaining co-equal with them?
If you could kind of take a crack at those various questions, I'd appreciate it.
ROBERTS: Well, Justice White's insight that was quoted by Senator DeWine yesterday, that judges' obligation is to decide cases, really has constitutional significance.
It goes back to Marbury vs. Madison. You know, the Constitution doesn't have any provision that says, when the judges, but the way are to interpret the Constitution and tell us what it means. What it says is that they judges are to decide cases that arise under this Constitution -- this new Constitution -- and under and new laws that the Congress might pass.
And what Chief Justice Marshall explained in Marbury vs. Madison was that, well, if we've got to decide cases, that's our constitutional obligation. We've got to decide whether, in a particular case, something's consistent with the Constitution or not.
So, we have to decide what the Constitution means. And that's what the framers intended.
So, the obligation to decide cases is the only basis for the authority to interpret the Constitution and laws. That means that judges should be careful in making sure that they have a real case in front of them, a real live dispute between parties who have actual injury involved, actual interests at stake because that is the basis for their legitimacy.
And then they're to decide that case as a judge would, not as a legislator would based on any view of what's the best policy but as a judge would based on the law. That's why the framers were willing to have the judges decide cases that required them to interpret the Constitution, because they were going to decide it according to the rule of law.
The people who framed our Constitution were jealous of their freedom and liberty. They would not have sat around and said, Let's take all the hard issues and give them over to the judges. That would have been the furthest thing from their mind.
Now, judges have to decide hard questions when they come up in the context of a particular case. That's their obligation. But they have to decide those questions according to the rule of law -- not their own social preferences, not their policy views, not their personal preferences -- according to the rule of law.
HATCH: You've explained that it's not the duty of the judiciary to make the law or to execute it, but to interpret it.
Now, I'm not naive. Sometimes interpretation is more of an art than a science. There are those who would label interpretation absolutely anything a judge might do or, two, the text of a statute or the Constitution.
But it seems to me there comes a point where a judge is using his own creativity and purpose and crosses the line between interpreting a text written by somebody else and in a sense creating something new.
Now, that troubles me since, as I said earlier, I believe in the separation of powers. If a judge crosses the line between interpreting and making the law, he has crossed the line supporting his legitimate authority from the legislative branch's authority.
Now, to me that's a very serious matter if we believe, as America's founders, did that the separation of powers -- not just in theory or in textbook but in practice in the actual functioning of government -- is the linchpin of limited government and liberty.
How do you distinguish between these two roles of interpreting and making law? And can you assure the Senate and the American people that you will stay on your side of this line?
ROBERTS: I will certainly make every effort to do so, Senator.
I appreciate the point that in some cases the question of whether you're interpreting the law or making the law -- that that line is hard to draw in some cases.
I would say not in most cases. I think in most cases, most judges know what it means to interpret the law and can recognize when they're going too far into an area of making law.
But certainly there are harder cases. And someone like Justice Harlan always used to explain that when you get to those hard cases you do need to focus again on the question of legitimacy and make sure that this is the question that you the judge are supposed to be deciding rather than someone else.
You go to a case like the Lochner case, you can read that opinion today and it's quite clear that they're not interpreting the law, they're making the law. The judgment is right there.
They say, We don't think it's too much for a baker to work -- whatever it was -- 13 hours as day. We think the legislature made a mistake in saying they should regulate this for their health. We don't think it hurts their health at all.
That's right there in the opinion. You can look at that and see that they are substituting their judgment on a policy matter for what the legislature had said.
So the fact that it's difficult to draw the line doesn't relieve a judge of an obligation to draw the line.
There are those more academic theorists who say, It's a question of degree. And since it's just a question of degree you shouldn't try to draw the line because it's hard sometimes to interpret the law without making the law. We should throw our hands up and say, 'Well, judges make the law,' and proceed from that.
That has not been my experience either as a judge or an advocate. My experience has been, in most cases you can see where the line is and you do know when judges are exceeding their authority and making the law rather than interpreting it.
And careful judges are always vigilant to make sure that they're adhering to their proper function and not going into the legislative area.
HATCH: Well, all of your experience has been either in the judicial branch, from your service as a clerk to then-Justice Rehnquist and your current role on D.C. Circuit, or in the executive branch, where you worked in the White House Counsel's Office, assistant to the attorney general and deputy solicitor general. In contrast, I would note that Justice Breyer brought to the court his experience as chief counsel to this committee. As many commentators noted during the oral arguments of the sentencing guidelines case, Justice Breyer seemed more than willing to defend congressional prerogatives.
Now, what can you tell us to assure the committee that your lack of experience in working in the legislative branch of government might contribute to a lack of deference to federal statutes as you review those federal statutes on the bench?
ROBERTS: Well, I guess the first thing I would say is begin with my opinions as a judge over the past two years on the Court of Appeals. I think they show a healthy regard for the prerogatives of the legislative branch that is appropriate.
As an advocate, I've certainly been arguing deference to the legislature in appropriate cases. Other cases, of course, I was on a different side and arguing the opposite. So I'm familiar with the arguments.
I've not only been in a position where I've been pressing arguments, for example, for the executive branch. I have been arguing cases against the executive branch and frequently arguing cases for the proposition of deference in favor of the legislature.
I guess I would just hearken back to the model I was talking about earlier of Justice Jackson, who went from being FDR's attorney general to being a justice on the court who, I think, always had a healthy regard for the prerogatives of the legislative branch.
HATCH: Well, you claimed in your questionnaire that judges do not, quote, have a commission to solve society's problems, unquote. I cannot agree more.
But this is an interesting formulation. It is worth remembering. I think that my office and your office only exist because the American people have authorized them through the Constitution. In other words, the power that you have as a judge comes from the people.
Now, that would be a fair assessment, I take it?
HATCH: OK. Let me explore this question of precedent a little bit more with you.
Obviously, the Supreme Court decides cases involving a range of issues and requiring application of different kinds of law, including regulations and statutes as well as the Constitution. All of these cases can set precedents which might be relied upon to decide future cases raising similar issues.
Now, what is your understanding of the role that precedent plays in these different categories of cases?
Is precedent equally authoritative in, for example, regulatory or statutory cases as in constitutional cases? As I understand it, the Supreme Court has long said that the strength of its prior decisions is related in part to the difficulty in correcting errors.
In constitutional cases, there is no external way to correct an error, except by constitutional amendment.
Now, the Supreme Court says, therefore, that precedent is weakest in constitutional cases.
Now, I have here a list of statements from Supreme Court decisions going back decades and decades to reflect this.
In 1997, Justice Sandra Day O'Connor wrote for the court in Agostini v. Felton that you mentioned earlier, that stare decicis or precedent is not a command but a policy, and it is a policy that is -- and I am quoting Justice O'Connor here -- quote, at its weakest when we interpret the Constitution, because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions, unquote.
In 1944, Justice Reed wrote for the court, in Smith v. Allwright, quote, In constitutional questions where correction depends upon amendment and not upon legislative action, this court, throughout its history, has freely exercised its power to re-examine the basis of its constitutional decisions, unquote.
Now, Mr. Chairman, I would like to place this list in the record if I can at this point.
SPECTER: Without objection, so ordered.
HATCH: Now, the bottom line is that precedent is weakest in constitutional cases. Does this distinction make sense to you, Judge Roberts? And has it, in fact, resulted in the Supreme Court overruling its previous interpretations of the Constitution with any frequency?
ROBERTS: The court has frequently explained that stare decisis is strongest when you are dealing with a statutory decision. The theory is a very straightforward one, that if the court gets it wrong, Congress can fix it.
And the Constitution, the court has explained, is different. Obviously, short of amendment, only the court can fix the constitutional precedents.
HATCH: Do you believe that Congress is just as bound by constitutional limits as state legislatures?
ROBERTS: There are different limits, of course. But, yes, the limits in the Constitution on Congress are as important as limitations on state legislatures in the Constitution.
HATCH: Well, I ask that question because some seem to argue that overturning a statute that we pass here in the national legislature is almost presumptively an example of judicial activism. I have disagreed with the court on some of these statutes. The Morrison case is a perfect illustration to me. I'm, along with Senator Biden, the author of the Violence Against Women Act, and I felt that they overreached in that particular case.
But, in any event, some believe that it's judicial activism, while turning a blind eye to the much more common practice of striking down state legislation is just an afterthought.
Now, this argument gets even more complicated when the Supreme Court uses provision actually in the Constitution to strike down that a congressional statute, but provisions not in the Constitution to strike down state statutes.
America's founders were clear that the Constitution established a federal government of few and defined powers. It cannot regulate any activity it chooses, but they only regulate in those areas which the Constitution grants it power to regulate.
Now, one familiar area is found in Article I, Section 8, which gives the Congress the power to, quote, to regulate commerce among the various states, unquote.
Now, don't get me wrong, I do not necessarily agree with the Supreme Court, as I mentioned in the Morrison case. I don't think they always get it right when saying that Congress has overstepped its bounds with respect to regulating interstate commerce.
At the same time, some have warned that we are sliding into a constitutional abyss because the court has found just twice in more than 60 years that there is something, anything, that it says the Constitution does not allow Congress to do.
Now, could you comment on the Supreme Court's duty to exercise judicial review regarding Congress and state legislatures and their enactments?
ROBERTS: The obligation to say what the law is, including determining that particular legislation is unconstitutional, is, as Chief Justice Marshall said, emphatically the duty and province of the judicial branch.
You and I can agree or disagree on whether the court is right in a particular case. But if the court strikes down an act of Congress and it's wrong, the court shouldn't have done that, that's not an act of judicial activism, it's just being wrong.
The obligation to strike down legislation is with the judicial branch. I think, as Justice Holmes said, it's gravest and most delicate duty that the court performs.
And the reason is obvious. All judges are acutely aware of the fact that millions and millions of people have voted for you and not one has voted for any of us.
That means that you have the responsibility of representing the policy preferences of the people making the determination about when legislation is necessary and appropriate and what form that legislation should take.
Our job is a very different one. We have to consider cases that raise the question from time to time whether a particular legislation is constitutional. And we have to limit ourselves in doing that to applying the law and not in any way substituting ourselves for the policy choices you've made.
But, as I would say, it's not judicial activism when the court do that. They may be right or they're wrong. And if they're wrong, they're wrong, but it's not activism.
HATCH: Well, thank you, Judge.
You know, our time is almost gone. We've talked about a lot of substantive things in this half hour.
I know that the American Bar Association has three times unanimously given you its highest rating of well-qualified, twice for your appeals court appointment and now again for your Supreme Court nomination.
Now, we're going to hear more from the ABA about this later in the week but I wanted to highlight one thing. The ABA examines three areas, including judicial temperament, and the ABA has laid out the criteria it uses for this. They include such things as compassion, open-mindedness, freedom from bias and commitment to equal justice. And you've come out with the highest rating in all areas.
Many people note that you've been at the pinnacle of your profession, one of a handful of Supreme Court specialists and a partner at a very prestigious law firm in Washington, D.C. And yet you have consistently pursued pro bono work; that is, work for free to help people in need in which you use your skill and training and legal talent to help others.
Perhaps that does not fit with the stereotype that some would force upon you, but it is true and it is real and it says a lot about you as a person.
In the few minutes we have left, please describe some of the pro bono work you have done, why those particular projects are important to you and what you believe your efforts accomplished.
The position that you have been nominated for is chief justice of the United States. Do you plan to use that role as a bully pulpit to encourage members of the bar to take seriously their responsibility to undertake pro bono work as you have done throughout your legal career?
ROBERTS: Yes, Senator, if I am confirmed I would hope to do that and, if I'm not, I would hope to do that back on the Court of Appeals. I think it's a very important part of a lawyer's obligation. I'll mention just a couple of examples.
I handled an appeal here before the D.C. Court of Appeals on behalf of a class of welfare recipients who had their benefits cut off. Our position was that the benefits had been cut off in violation of the Constitution, violation of their due process rights to notice in an individualized hearing. These were the neediest people in the district. And we pressed their argument before the court of appeals.
The first case that I argued in the Supreme Court was a pro bono matter for an individual with a double jeopardy claim against the United States; again, someone who didn't have a lawyer, and I was very happy to do that.
And I said earlier, I regularly handled moot courts for people. I did one for minority plaintiffs in a Voting Rights case our of Louisiana. I did one challenging environmental effects in Glacier Bay and another one in the Grand Canyon. In addition to those actually involved in the case, one of the pro bono activities that I'm most committed to is a program sponsored by the Supreme Court Historical Society and an organization called Street Law. They bring high school teachers to D.C. every summer to teach them about the Supreme Court. And they can then go back and teach the court in their classes.
And I've always found that very, very fulfilling.
HATCH: Well, thank you. My time is up.
Thanks, Mr. Chairman.
SPECTER: Thank you, Senator Hatch.
KENNEDY: Thank you, Mr. Chairman.
That Street Law program is a marvelous program. I commend you for your involvement in that.
The stark and tragic images of human suffering in the aftermath of Hurricane Katrina have reminded us yet again that civil rights and equal rights are still the great unfinished business of America.
The suffering has been disproportionately borne by the weak, the poor, the elderly and infirm, and largely African-Americans, who were forced by poverty, illness, unequal opportunity to stay behind and bear the brunt of the storm's winds and floods.
I believe that kind of disparate impact is morally wrong in this, the richest country in the world.
One question we must consider today is how we can take action to unify our nation, heal racial division, end poverty and give real-life meaning to the constitutional mandate that there be equal protection under law.
I believe that the Constitution is not hostile to the idea that national problems can be solved at the national level through the cooperative efforts of the three coequal branches of government, the Congress, the executive and courts.
But not every president, not every legislator and not every judge agrees that the federal government has the power to address and to try to remedy the twin national problems of poverty and access to equal opportunity. I'm not talking about a handout, but a hand up, to give all of our citizens a fair shot at the American dream.
Judge Roberts, today we want to find out how you view the Constitution, our ability to protect the most vulnerable.
Do you believe that Congress has the power to pass laws aimed at eliminating discrimination in our society? Or do you believe that our hands are tied, that the elected representatives of the people of the United States are without the power to pass laws aimed at righting wrongs, ending injustice, eliminating the inequalities that we have just witnessed so dramatically and tragically in New Orleans?
The American people want to know where you stand. We want to find out your view of the rule of law and the role of courts in our system.
That's why it is so important -- and I hope we will receive your frank and candid and complete responses to the questions we ask today.
To start my inquiry, I want to discuss with you the Brown v. Board of Education, which you have already mentioned this morning, which I believe is the most important civil rights decision in our lifetime.
In Brown, decided in 1954, the year before you were born, the Supreme Court concluded unequivocally that black children have the constitutional right to be educated in the same classrooms as white students. The court rejected the old doctrine of separate but equal, finding that it violated the equal protection clause of the 14th Amendment.
In considering the issues raised by Brown, the court took a broad and real-life view of the question before it. It asked, Does segregation of children in public schools solely on the basis of race, even though physical facilities and other tangible factors may be equal, deprive the children of the minority group of equal educational opportunities?
So do you agree with the court's conclusion that the segregation of children in public schools solely on the basis of race was unconstitutional?
ROBERTS: I do.
KENNEDY: And do you believe that the court had the power to address segregation of public schools on the basis of the equal protection clause of the Constitution?
KENNEDY: And you're aware that the Brown was a unanimous decision?
ROBERTS: Yes. That was the -- represented a lot of work by Chief Justice Earl Warren because. My understanding of the history is that it initially was not. And he spent -- it was re-argued. He spent a considerable amount of time talking to his colleagues and bringing around to the point where they ended up with unanimous court...
KENNEDY: And a lot of work by the plaintiffs, as well.
ROBERTS: I'm sure.
KENNEDY: First in reaching its decision, the court concluded that it must consider public education in the light of its full development and its present place in American life throughout the nation; that is that it must consider the conditions and impact of its decision in the real present-day world.
The court specifically declined to rely on the legislative history of the 14th Amendment. It looked instead to the facts and the situation as they exist in the case and in the world at the time of the decision.
Judge Roberts, do you agree that the court was correct in basing its decision on real-world consideration of the role of public education at the time of its decision rather than the role of public education in 1868 when the Fourteenth Amendment was adopted?
ROBERTS: Certainly, Senator.
The importance of the court's approach in Brown is, of course, to recognize that the issue was whether or not the discrimination violated equal protection. And you have to look at the discrimination in the context in which it is occurring.
I know there's been a lost recent academic research into the original intent of the drafters of Fourteenth Amendment. Professor McConnell's piece suggests that it's perfectly consistent the with the conclusion in Brown. And it's also -- the very point you mentioned was an important one, that the nature of the institution of public education wasn't formed to the same extent at the time of the drafting...
KENNEDY: In 1868. That's right.
ROBERTS: ... as it was at the time of the decision.
KENNEDY: The Brown court also held that it was important to look at the effects of segregation on public education. The court determined that education was so vital to a child's development and an opportunity for advancement in society that, where the state had undertaken to provide public education, it must be available to all on equal terms. Thus, it found that the separate education was inherently unequal. So it's fair for me to conclude you accept both the holding and the reasoning in the Brown case.
BROWN: Well, the reasoning, though, I think it's important. It is focussed on the effects, yes. But the conclusion was that they didn't care if the effects were equal.
In other words, the genius of the decision was the recognition that the act of separating the students was where the violation was. And it rejected the defense -- certainly, just a theoretical one given the actual record -- that you could have equal facilities and equal treatment.
I think the conclusion, if the record had shown -- which it did not -- if it had shown perfectly equal treatment in the African American school and the white school, that Chief Justice Warren's analysis would be the same because the act of separation is what constituted the discrimination.
KENNEDY: If we could move on. Now, the Brown decision was just the beginning of the historic march for progress toward equal rights for all of our citizens.
In the '60s and '70s, we came together as a Congress, Republicans and Democrats alike, and passed the historic civil rights legislation that signed by the president to guarantee equality for all citizens on the basis of race, then on gender, then on disability.
We passed legislation to eliminate the barriers to voting that so many minorities had faced in too many states in the country. We passed legislation that prevented racial discrimination in housing.
Those landmark laws were supported by Republicans and Democrats in Congress and they were signed into law by both Republican and Democratic presidents.
Intelligent and dedicated attorneys in the Justice Department and in the White House and on Capitol Hill devoted their extraordinary talents and imagination and perseverance to making these laws effective.
Every one of the new laws was tested in court, all the way to the Supreme Court.
And I'd like to find out, Judge Roberts, whether you'd agree that the progress we made in civil rights over the past 50 years is irreversible.
I'd like to find out whether you think that these laws are constitutional or whether you have any concerns or questions about them.
Do you have any concerns or reservations about the constitutionality of the 1964 Civil Rights Act that outlawed racial discrimination in public accommodations, employment and other areas?
ROBERTS: I don't think any issue has been raised concerning those.
I'm cautious, of course, about expressing an opinion on a matter that might come before the court. I don't think that's one that's likely to come before the court.
So I'm not aware of any questions that have been raised concerning that, Senator.
KENNEDY: So I'll assume that you don't feel that there are any doubts on the constitutionality of the '64 act. Do you have any doubts as to the constitutionality of the '65 Voting Rights Act?
ROBERTS: Well, now, that's an issue, of course, as you know, it's up for renewal. And that is a question that could come before the court: the question of Congress' power.
Again, without expressing any views on it, I do know that it's going to be...
KENNEDY: Well, that's gone up and down the Supreme Court -- the 1965 act and again the 1982 act extension.
ROBERTS: Yes, and the issue would be...
KENNEDY: I'm just trying to find out, on the Voting Rights Act, whether you have any problem at all and trouble at all in terms of the constitutionality of the existing Voting Rights Act that was extended by the Congress.
ROBERTS: Oh. Well, the existing Voting Rights Act: the constitutionality has been upheld. And I don't have any issue with that.
ROBERTS: There's a separate question that would be raised if the Voting Rights Act were extended, as I know Congress is considering. And those arguments have been raised about whether or not particular provisions should be extended or should not be extended.
And since those questions might well come before the court, I do need to exercise caution on that.
KENNEDY: But with regards to the act that we passed, the bipartisan act -- I'm going to come back to it -- and about your position on the 1982 act -- I know you had concerns and I'm going to come back to those -- but you're not suggesting that there's any constitutional issue with that.
ROBERTS: Well, I'm not aware of any constitutional issue that's been raised about it.
KENNEDY: All right.
ROBERTS: Again, I don't want to express conclusions on hypothetical questions, whether as applied in a particular case, where there would be a challenge in that respect. Those cases come up all the time and I do need to avoid expressing an opinion on those issues.
KENNEDY: Well, it seems that on voting rights, with all of its importance and significance, and with the extraordinary bipartisan balance that came together on that act -- I'm going to come back to it; I know you had some reservations about it, which we will come to -- but that, as I am wondering whether you are hesitant at all in saying that you believe that it's constitutional.
ROBERTS: My hesitancy, Senator, is simply this: that cases do come up. I had one in the D.C. Circuit concerning issues under the Voting Rights Acts. And I don't know what arguments parties will be raising in those cases.
So an abstract question you need to know, obviously, what's the claim, what's the issue, and decide it according to the rule of law.
KENNEDY: How about the constitutionality of the '68 fair housing legislation that outlawed racial discrimination in housing?
ROBERTS: Again, I think -- my understanding is it's been upheld. And I'm not aware of any issues that are arising under it.
I suppose if there's a particular claim presented under that statute, litigants make all sorts of arguments, and they may raise an argument that it's unconstitutional as applied in a particular case, and the court would have to decide that question.
KENNEDY: Well, I was, sort of, inhaling your answer to my friend Orrin Hatch about the power of the legislature and the deference that you're going to give when the legislature makes judgments and findings, particularly in the areas of voting that we spend such an extraordinary amount of time -- the chairman was so involved in that legislation.
Let's go to the Voting Rights Act. As you know, we've had a chance to go through many of the documents that you authored during the early and mid-1980s when you worked in the Department of Justice and in the White House.
I'm interested in your views today, let me point out, but because we don't have all the documents that we'd like to have, I'm working with the documents that we do. And I want to go through those, get your reactions and ask your views today. I'm deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings.
In the only documents that have been made available to us, it appears that you did not fully appreciate the problem of discrimination in our society. It also seems that you were trying to undo the progress that so many people had fought for and died for in this country.
At the outset, I want to be clear that I do not think nor am I suggesting that you're a person who's in favor of discrimination. I don't believe that.
I am concerned, however, that at the time you were writing these laws and memoranda and notes, you simply did not grasp the seriousness of the impact of discrimination on our country as a whole.
Let's start with the Voting Rights Act.
Most Americans think that the right to vote is among the most important tools that they have to participate in our democracy. You do agree, don't you, don't you, Judge Roberts, that the right to vote is a fundamental constitutional right?
ROBERTS: It is preservative, I think, of all the other rights.
Without access to the ballot box, people are not in the position to protect any other rights that are important to them. And so I think it's one of, as you said, the most precious rights we have as Americans.
KENNEDY: And you will recall that in the '60s, millions of our fellow citizens denied access to voting booths because of race. And to remedy that injustice, Congress passed the Voting Rights Act of '65 that outlawed discrimination in voting.
Section 2 of that act is widely believed to be the most effective civil rights statute enacted by Congress.
In 1982, Congress took action to extend the Voting Rights Act and to make it clear that discriminatory voting practices and procedures are illegal if they are intended to be racially discriminatory or if they are shown to have a racially discriminatory impact.
It was this latter provision, the prohibition against voting practices that have a discriminatory impact, that provoked your heated opposition, Judge Roberts.
In our earlier discussion of Brown v. Board of Education, you agreed that the actual impact of racial segregation on public education and school children was perfectly valid for the court to consider. But when it came to voting rights, you rejected the consideration of actual impact.
You wrote that violations of Section II of the Voting Rights Act, and I quote, should not be made too easy to prove since they provide a basis for the most intrusive interference imaginable by federal courts, interstate and local processors.
You also wrote, and I quote, It would be difficult to conceive of a more drastic alteration of local government affairs. And, under our federal system, such an intrusion should not be too readily permitted.
And you didn't stop there. You concluded that Section II of the Voting Rights Act was, quote, constitutionally suspect and contrary to the most fundamental tenets of the legislative process on which the laws of this country are based.
So I am deeply troubled by another statement that you made at the time.
And I quote, There is no evidence of voting abuses nationwide supporting the need for such a change.
No evidence? I was there, Judge Roberts, in both the House and the Senate, had the extensive hearings. We considered details, specific testimony from affected voters throughout the country. But you dismissed the work of Congress out of hand.
Don't be fooled, you wrote, by the House vote or the 61 Senate sponsors of the bill. Many members of the House did not know that they were doing more than simply extending the act and several of the 61 senators have already indicated they only intended to support a simple extension.
Judge Roberts, Republicans and Democrats overwhelmingly supported this legislation. But you thought we didn't really know what we were doing.
Newt Gingrich, James Sensenbrenner voted for the House bill. Dan Quayle was an original Senate co-sponsor of the bill. We held extensive hearings, created a lengthy record. Yet, you thought there was no evidence of voting abuses that would justify the legislation -- your comment.
Do you believe today that we need the federal laws to assure that all our citizens have the equal access to the voting booth and do you basically support the 1982 Voting Rights Act that was signed by...
ROBERTS: Senator, you will recall, at the time -- this was 23 years ago -- I was the staff lawyer in the Justice Department. It was the position of the Reagan administration for whom I worked, the position of the attorney general for whom I worked, that the Voting Rights Act should be extended for the longest period of its extension in history without change.
The Supreme Court had interpreted in the Mobile v. Bolden case, Section 2, to have an intent test, not an effects test.
Keep in mind, of course, as you know very well, Section 5, the preclearance provision, had always had an effects test and that would be continued.
The reference to discrimination nationwide was addressing the particular point that effects test had been applied in particular jurisdictions that had a history of discrimination. And the question is whether or not there was a similar history of discrimination that supported extending the effects test in Section 2.
It was the position of the administration for which I worked that the proposal was to extend the Voting Rights Act without change. Your position at the time was that the intent test that the Supreme Court had determined was in Section 2 should be changed to the effects test, and that was the position that eventually prevailed.
There was no disagreement...
KENNEDY: Judge Roberts, the effects test was the law of the land from the Zimmer case to the Mobile case. It was the law of the land. That was the law of the land that court after court decided about the impact of the effects test. The Mobile case changed the Zimmer case.
ROBERTS: Well, Senator, you disagree...
KENNEDY: And what we were...
SPECTER: Let him finish his answer.
KENNEDY: OK. Well, I'd just like to get his -- whether the Zimmer case was not the holding on the rule of the law of the land prior to the Mobile case.
ROBERTS: Well, this is the same debate that took place 23 years ago on this very same issue. And the administration's position -- you think the Supreme Court got it wrong in Mobile against Bolden.
KENNEDY: No, that's not what -- I think it was wrong, but I also think the law of the land, decided by the Supreme Court in the Zimmer case, upheld in court after court after court after court, was the effects test.
ROBERTS: Well, the Supreme Court...
SPECTER: Let him finish his answer, Senator Kennedy.
ROBERTS: The point is -- and, again, this is revisiting a debate that took place 23 years ago...
KENNEDY: Well, I'm interested today of your view. Do you support the law that Ronald Reagan signed into law and that was co- sponsored...
KENNEDY: ... overwhelmingly...
ROBERTS: Certainly, and the only point I would make -- this was the same disagreement and the same debate that took place then over whether the court was right or wrong in Mobile v. Bolden.
And the point I would make is twofold, that those, like President Reagan, like Attorney General Smith, who are advocating an extension of the Voting Rights Act without change, were as fully committed to protecting the right to vote as anyone.
KENNEDY: Right. Could I...
SPECTER: Let him finish his answer, Senator Kennedy.
ROBERTS: And the articulation of views that you read from represented my effort to articulate the views of the administration and the position of the administration for whom I worked, for which I worked 23 years ago.
KENNEDY: Well, after President Reagan signed it into law, did you agree with that position of the administration?
ROBERTS: I certainly agreed that the Voting Rights Act should be extended. I certainly agreed that the effects test in Section 5 should be extended.
We had argued that the intent test, that the Supreme Court recognized in Mobile against Bolden -- I know you think it was wrong, but that was the Supreme Court's interpretation -- should have been extended. Again, as you said, the compromise that you and Senator Dole worked out was enacted into law and signed into law by President Reagan. And the Voting Rights Act has continued to be an important legislative tool to ensure that most precious of rights, which is preservative of all other rights. There was never any dispute about that basic proposition.
KENNEDY: Well, what I'm getting to is, after it was signed into law, overwhelmingly -- overwhelmingly by the House and the Senate -- we have the memoranda that you said the fact we were burned last year -- this is the following year -- we did not -- the fact we were burned last year because we did not sail in with the new voting rights legislation does not mean we'll be hurt this year if we go slowly on housing legislation.
What did you mean when you said that we were burned last year by not getting the Voting Rights Act?
ROBERTS: I think the legislative debate between those who favored extending the Voting Rights Act as is and those who favored changing the act because they disagreed with the Supreme Court decisions, the legislative judgment was that the administration's proposal didn't succeed because they had waited. Rather than coming out in favor of an extension right away, they waited for the Congress to come up with its proposals which turned out to be different than the administration proposals.
On the housing discrimination, I would note that the administration did get its ducks in a row and, in a matter of months after the date of the memo that you just read from, had its housing proposal there and submitted to Congress and it was enacted.
KENNEDY: The 1988 Housing Fair Housing Act.
ROBERTS: The administration's proposal was submitted, I believe, months after the date of the memo that you read from.
KENNEDY: Let me, if I could, go to the Civil Rights Restoration Act. In 1981, you support an effort by the Department of Education to reverse 17 years of civil right protections at colleges and universities that receive federal funds.
Under the new regulations, the definition of federal assistance to colleges and universities would be narrow to exclude certain types of student loans and grants so that fewer institutions would be covered by the civil rights laws. As a result, more colleges and universities would legally be able to discriminate against people of color, women and the disabled.
Your efforts to narrow the protection of the civil rights laws did not stop there, however.
In 1984, in Grove City v. Bell, the Supreme Court decided, contrary to the Department of Education regulation that you supported, that student loans and grants did indeed constitute federal assistance to colleges for purposes of triggering civil rights protections.
But, in a surprising twist, the court concluded that the nondiscrimination laws were intended to apply only to the specific program receiving the funds and not to the institution as a whole.
Under that reasoning, a university that received federal aid in the form of tuition could not discriminate in admissions but was free to discriminate in athletics, housing, faculty hiring and any other programs that did not receive the direct funds.
If the admissions office didn't discriminate, they got the funds through the admission office, they could discriminate in any other place of the university.
A strong bipartisan majority in both the House and the Senate decided to pass another law, the Civil Rights Restoration Act, to make it clear that they intended to prohibit discrimination in all programs and activities of a university that received federal assistance.
You vehemently opposed the Civil Rights Restoration Act.
Even after the Grove City court found otherwise, you still believed that there was, quote -- and this is your quote -- a good deal of intuitive appeal to the argument that federal loans and grants to students should not be viewed as federal financial assistance to the university.
You realize, of course, that these loans and grants to the students were paid to the university as tuition. Then, even though you acknowledged that the program- specific aspect of the Supreme Court decision was going to be overturned by the congressional legislation, you continued to believe that it would be, quote, too onerous for colleges to comply with nondiscrimination laws across the entire university unless it was, quote, on the basis of something more solid than federal aid to students.
Judge Roberts, if your position prevailed, it would have been legal in many cases to discriminate in athletics for girls, women. It would have been legal to discriminate in the hiring of teachers. It would have been legal not to provide services or accommodations to the disabled.
Do you still believe today that it is too onerous for the government to require universities that accept tuition payments from students who rely on federal grants and loans not to discriminate in any of their programs or activities?
ROBERTS: No, Senator, and I did not back then. You have not accurately represented my position.
KENNEDY: These are your words.
SPECTER: Let him finish his answer. That was a quite long question.
ROBERTS: Senator, you have selected...
SPECTER: Wait a minute. Wait a minute. Senator Kennedy just propounded a very, very long question.
Now, let him answer the question.
ROBERTS: Senator, you did not accurately represent my position. The Grove City College case presented two separate questions, and it was a matter being litigated, of course, in the courts.
The universities were arguing that they were not covered at all by the civil rights laws in question simply because their students had federal financial assistance and attended their universities. That was their first argument.
The second argument was, even if they were covered, all that was covered was the admissions office and not other programs that themselves did not receive separate financial assistance.
Our position, the position of the administration -- and, again, that was the position I was advancing. I was not formulating policy. I was articulating and defending the administration's position. And the administration's position was, yes, you are covered if the students receive federal financial assistance and that the coverage extended to the admissions office. That was the position that the Supreme Court agreed with. We were interpreting legislation.
The question is: What is the correct interpretation of the legislation? The position that the administration advanced was the one I just described: The universities were covered due to federal financial assistance to their students. It extended to the admissions office.
The Supreme Court in the Grove City case agreed with that position. So the position the administration had articulated, the Supreme Court concluded, was a correct interpretation of what this body, the Congress, had enacted.
Congress then changed the position about coverage. And that position was, I believe, signed into law by the president and that became the new law.
The memo you read about Secretary Bell's proposal, if I remember it, was, well, he said: If we're going to cover all of the universities, then we shouldn't hinge coverage simply on federal financial assistance.
And the position I took in the memorandum was that, no, we should not revisit that question. We should not revisit the question that federal financial assistance triggers coverage.
KENNEDY: Well, you're familiar -- I have the memo here. I have 22 seconds left. Your quote of this: If the entire institution is to be covered, however, it should be on the basis of something more solid than federal aid to the students.
I think most of the members of the Congress feel that if the aid to the universities, the tuition and the loans and the grants are going to be sufficient to trigger all of the civil rights laws, your memoranda here, If the entire institution is to be covered, however, it should be on the basis of something more solid than federal aid to the students. That's your memorandum.
ROBERTS: Well, Senator, again, the administration policy was as I articulated it. And it was my job to articulate the administration policy.
KENNEDY: My time is up, Mr. Chairman.
SPECTER: Thank you very much, Senator Kennedy.
This is a good time for a 15-minute break.
SPECTER: We will reconvene our hearing. We will take three more rounds of questions so that we will go until approximately -- there will be two more rounds of questions to 12:45, and we will then break for lunch.
Both Republicans and Democrats have their policy luncheons and so we will then reconvene after lunch until 2:15. And I have been asked how late we're going to go. Let's see how it feels. We want to move ahead with the hearings, but we don't want to wear everybody out.
GRASSLEY: Judge Roberts, for a second time, I would congratulate you and your family on your nomination. I would also, for a second time, thank you for the time you spent in my office for me to talk privately with you several weeks ago.
I'm impressed by your record, your public service. Obviously, you demonstrate your intellect very well. And we ought to be satisfied with that.
Let me remind everybody that Judge Roberts was confirmed unanimously to the D.C. Circuit Court just two years ago by the Senate and that the ABA, the American Bar Association, has recommended him to be, in their words, unanimously well-qualified for this position on the Supreme Court.
So I believe, with everything we have seen demonstrated, you're obviously as qualified a nominee as I have seen in the 24 years that I have been on this committee.
In addition, I want to thank you for a great deal of candor you have in answering questions and giving information. The Judiciary Committee has received from you or from government agencies that you have been affiliated with, thousands of documents on your record -- thousands of documents.
And we all have combed through the documents, the briefs and opinions that you have offered to assess your qualifications to the Supreme Court.
I think that we've been provided with a vast amount of information, more than, I think, any other candidate to the Supreme Court.
This confirmation process is very important, however, not so that we can seek to obtain your commitments on specific cases but, rather, to more fully understand your approach to deciding cases.
In addition, you have been nominated to be chief justice so I'm going to be interested in some of my questioning today or tomorrow about your priorities for the federal judiciary and what you think about the administration of justice and some of those questions you might anticipate don't involve cases coming before the Supreme Court. And maybe on administering that branch of government, you could be a little more concrete on what you support and don't support.
And, of course, lastly, I appreciate your candor and thoughtfulness. Our conversation now will not only tell us more about your judicial methods but will also, I hope, educate the public on the proper role of a judge in our democratic society.
Most people who will be following these hearings will be, like me, a non-lawyer. And I think it's important that the bulk of our society, particularly those who aren't in the law, understand limits on judicial power in our system of checks and balances of government.
Judge Roberts, I believe that we should be filling the federal branch with individuals who will be fair, who will be unbiased, will be devoted to addressing facts and the law before them without imposing their own values and political beliefs fain reaching a decision.
You made clear that you agree with that. I'm not asking you, but I think you made clear that you agree with that with your umpire analogy that you used yesterday.
Our founding fathers clearly intended the judiciary to be the least dangerous branch of government.
Alexander Hamilton, in fact, in Federalist Paper No. 78 cautioned against judges substituting their own belief for constitutional intent when he wrote these words: The courts must declare the sense of the law and if they should be disposed exercise will, instead of judgment, the consequences would be the substitution of their pleasure for that of the legislative body.
I think this standard is important for all judges, even more so with Supreme Court justices. And I hope at the end of our hearings that we feel, as I'm beginning to feel now, that you share that.
So, Judge Roberts, beyond your umpire analogy, what do you understand to be the role of a judge in a Democratic society?
And I would like your reaction of a quote from Justice Cardozo on the nature of the judicial process.
And he said this, not paraphrasing but direct quote: The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not knight errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is not to yield to spasmodic sentiment, to vague or unrated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life -- wide enough in all conscience is the field of discretion that remains. What do you think Justice Cardozo meant by that passage? And do you agree with it?
ROBERTS: I know I agree with it. Now let me figure out what he meant by it.
I think what he meant was that judges operate as judges when they are confined by the law. When I became a lawyer, the proclamation they read for the graduates were -- they referred to the law as the wise restraints that make men free.
And judges are the same way. We don't turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law.
They are constrained when they do that. They are constrained by the words that you choose to enact into a law -- in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply.
And that cabining of their discretion -- that's what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.
And then their job is interpreting the law. It is not making the law.
And so long as they are being confined by the laws, by the Constitution, by the precedents, then you're more comfortable that you're exercising the judicial function.
It's when you're at sea and you don't have anything to look to that you need to begin to worry that this isn't what judges are supposed to do.
GRASSLEY: Well, is there any room in constitutional interpretation for the judge's own values or beliefs?
ROBERTS: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case. But you don't look to your own values and beliefs. You look outside yourself to other sources.
This is the basis for -- you know, judges wear black robes because it doesn't mater who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision.
GRASSLEY: Some legal scholars claim that when the political branches of government are slow to act, the broad and spacious terms of the Constitution lend themselves to court-created solutions.
Do you agree with this role of the court?
ROBERTS: I have said that it is not the job of the court to solve society's problems. And I believe that. It is the job of the court to decide particular cases.
Now, sometimes cases are brought and the courts have to decide them even though the other branches have been slow to act, as you say.
Brown v. Board of Education is a good example. The other branches in society were not addressing the problems of segregation in the schools. They were not just slow to act; they weren't acting. But that didn't mean the courts should step in and act.
But when the courts were presented with a case that presented the challenge -- this segregation violates the equal protection clause -- the courts did have the obligation to decide that case and resolve it and in the course of doing that, of course, changed the course of American history.
GRASSLEY: Your reference to Brown would be a good time to throw in this question. Do you agree with the view that the courts, rather than the elected branches, should take the lead in creating a more just society?
ROBERTS: Again, it is the obligation of the courts to decide particular cases. Often that means acting on the side of justice, as we understand it --- enforcing the Bill of Rights, enforcing the equal protection clause.
But it has to be in the context of the case and it has to be in the context of interpreting a provision that's implicated in that case. They don't have a license to go out and decide: I think this is an injustice and so I'm going to do something to fix it. That type of judicial role, I think, is inconsistent with the role the framers intended.
When they have to decide a case, it may well, from time to time and in particular cases, put them in the role of vindicating the vision of justice that the framers enacted in the Constitution. And that is a legitimate role for them. But it's always in the context of deciding a proper case that's been presented.
GRASSLEY: Judge Roberts, during the Souter nomination, I questioned -- and I did not go back and check the records just to see exactly what I said -- but I questioned, in some way, about how he would interpret statutory law.
Justice Souter responded to some of my questions by talking about vacuums in the law, specifically that the courts -- and these are his words -- fill vacuums that are maybe left by Congress.
This concept was troubling to me then and remains so today. If Justice Souter is listening, I would like to say to him: Well, you now, maybe Congress intended to leave some vacuums.
So I would like to know: How much filling in of vacuums in the law left by Congress will you do as a Supreme Court justice? Do you think this is the way for the court to be activists in that courts will be deciding how to fill in generalities and resolve contradictions in law?
ROBERTS: Well, I don't want to directly comment on what Justice Souter said. He is either going to be a colleague or continue to be one of my bosses.
So I want to maintain good relations in either case.
But I do think it's important to recognize in construing legislation that sometimes a decision has been made not to address a particular problem. That isn't a license for the courts to go ahead and address it because that would be overriding a congressional decision.
At the same time, as it's always the case, courts are sometimes put in the position of having to decide a question that Congress has left deliberately or inadvertently unanswered.
We see that in the issue of what remedies are available under an implied right of action when Congress has not spelled them out. The courts sometimes have to address that sort of question.
And if it's presented in a case, it's unavoidable.
But, again, I resort back to the bedrock principle of legitimacy in the American system for courts which is that any authority to interpret the law, any authority to interpret the Constitution, derives from the obligation to decide a particular case or controversy.
GRASSLEY: In your questionnaire to the committee, you stated that, quote, Precedent plays an important role in promoting stability of the legal system, end of quote. I think we would all agree.
You also said that a judge operates within, quote, system of rules developed over the years by other judges equally striving to live up to their judicial oath, end of quote.
It's also true that Justice Frankfurter explained, as he explained, that, quote, The ultimate touchstone of constitutionality is the Constitution itself, not what we have said about it. Erroneous interpretations of the Constitution can be corrected only by this court. I suppose by constitutional amendment as well.
The court has done so many times, and most famously you've referred to it, the Brown case, which overruled separate but equal precedent that stood for 58 years.
So, Judge Roberts, I'd like to ask you a few questions on the issue of precedence and its value in our legal system. History has provided many examples of the dangers of government by the judiciary, such as the court's decision in Dred Scott.
Do you share President Lincoln's concerns -- and I'm going to quote here from his first inaugural. Quote: If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court the instant they are made in ordinary litigation, the people will have ceased to be their own rulers. End of quote.
ROBERTS: Well, President Lincoln, of course, was referring to one of the -- perhaps the most egregious example of judicial activism in our history, the Dred Scott case, in which the court went far beyond what was necessary to decide the case.
And really I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery and resolving it in a particular way that it thought was best for the nation. And we saw what disastrous consequences flowed from that.
And Lincoln's comment about it -- and he had several comments, because even when he was running for Senate, a big part of the famous debates were, Well, this is what the Supreme Court has said. Are you going to follow it or not? And Lincoln was a very careful lawyer in his responses. And the reason it was such a problem is because he was dealing with such an overarching Supreme Court decision. They didn't even just decide the particular case. The court decided to take upon itself opining more generally on how the whole issue should be resolved. And of course, as I said, it was a disaster.
So, yes, to the extent Lincoln's criticism is how broad and overreaching the court opinion was and that that in itself presented a very difficult problem in terms of adherence to the decision, I do agree with that.
GRASSLEY: Let me carry that one step further, beyond his quote. You now, as an appeals court judge, obviously are bound by Supreme Court precedent. But on the Supreme Court, a justice has much more freedom to re-evaluate prior Supreme Court decisions.
I'd like to explore the approach that you would take in your examination of Supreme Court precedents. Could you tell us what you believe is the appropriate judicial role, describing for us the value of precedent in our legal system?
ROBERTS: Certainly. And here again, we're guided by the court. It has precedent on precedents. It has cases talking about when you should revisit prior precedents and when you shouldn't. And of course some of the cases say you should in a particular instance, and others that you shouldn't.
You begin with a basis recognition of the value of precedent. No judge gets up every morning with a clean slate and says, Well, what should the Constitution look like today? The approach is a more modest one, to begin with the precedents. Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.
Those precedents become part of the rule of law that the judge must apply.
At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration.
If the bases of the precedent have been eroded -- in other words, if the court decides a cases saying, Because of these three precedents, we reach this result, and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent. At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent.
It is a jolt to the legal system to overrule a precedent and that has to be taken into account as well the different expectations that have grown up around it.
There are different other aspects of the rules. For example, property decisions are afar less likely to be reconsidered because of the expectations that grow up around them. Statutory decisions are less likely to be reconsidered because Congress can fix it if it's a mistake.
Again, the court's decisions in cases like Casey and Dickerson, Payne v. Tennessee, Agostini, State Oil Company v. Khan, it's an issue that comes up on a regular basis and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case.
The fundamental proposition is that it is not sufficient to view the prior case as wrongly decided. That's the opening of the process, not the end of the process. You have to decide whether it should be revisited in light of all these considerations.
GRASSLEY: Given your views on judicial restraint, can you tell us to what extent you feel obliged to uphold a decision which you found not to be based on the original intent of the Constitution?
Could you explain what factors or criteria you might use to evaluate to see whether a decision deviated from original intent, whether it should be overruled?
ROBERTS: Well, again, you would start the precedent of the court on that decision. In other words, if you think that the decision was correctly decided or wrongly decided, that doesn't answer the question of whether or not it should be revisited.
You do have to look at whether or not the decision has led to a workable rule. You have to consider whether it's created settled expectations that should not be disrupted in the interest of regularity in the legal system. You do have to look at whether or not the bases of the precedent have been eroded. Those are the main considerations that the court has articulated in a case like Dickerson, Payne v. Tennessee and the others. These are all the factors that the court looks at.
Obviously, a view about the case presents the question, but the court has emphasized it's not enough to think that the decision is wrong, to take the next step to revisit it an overrule.
GRASSLEY: In your confirmation for the D.C. Circuit, you answered a question asking whether -- by another member -- whether you supported the originalist approach to constitutional interpretation by saying this, so I hope I'm quoting you accurately:
I do not have an all-encompassing approach to constitutional interpretation. The appropriate approach depends, to some degree, on the specific provisions at issue. Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise.
I would not hue to a particular school of interpretation, but would follow the approach or approaches that seem most suited in the particular case to correctly discerning the meaning of the provision at issue, end of quote.
Could you explain what approaches you're talking about? I'm not sure, in your quote, what you're getting at. Secondly, can you give some examples? And three, I would like to know when you don't believe that the originalist approach is the right approach.
ROBERTS: Well, I think it's very important to define these terms. Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply.
However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent.
I think of, in particular, the Fourth Amendment and the equal protection clause. There are some who may think they're being originalists who will tell you, Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to.
But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally.
That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it. That is an originalist view because you're looking at the original intent as expressed in the words that they chose. And their intent was to use broad language, not to use narrow language.
There are some areas where a very strict texturalist approach makes the most sense. Obviously -- the example I gave earlier -- two- thirds means two-thirds. You don't say, Well, their purpose was to apply some super-majority requirement and now that we have more senators, three-fifths will give effect to that intent. Nobody would apply that approach. You stick to the language.
In other areas, the court's precedents dictate the approach. This is not something that is purely a matter of academic exercise. For example, on the Seventh Amendment, the right to a jury trial, the court has been very specific. We have a historical approach there.
The job of a judge is to look at whatever action is and try to analogize it: What would that most be like in 1787? And if you got a jury trial for that, you get one today. And if you didn't, you don't. It's a purely historical approach.
So the approaches do vary. And I don't have an overarching view.
As a matter of fact, I don't think very many judges do. I think a lot of academics do. But the demands of deciding cases and the demands of deciding cases by committee -- either a group of three or a group of nine -- I find with those demands the nuances of academic theory are dispensed with fairly quickly and judges take a more practical and pragmatic approach to trying to reach the best decision consistent with the rule of law.
GRASSLEY: I'm going to go to an issue that Senator Kennedy left off with regarding the Grove City case. And I have the memo that was involved in this issue before me. And I see the memo being a summary of former Education Secretary Bell's views on this issue.
But Senator Kennedy left out what your assessment was on it, and you wrote these words: As a practical matter, however, I do not think the administration can revisit the issue at this late date, end of quote. Can you tell us what your position was in this memo?
And, Mr. Chairman, I'd like to have this entire memo submitted for the record.
SPECTER: Without objection, it will be admitted as part of our record.
ROBERTS: The issue was in the Grove City case, the court had said that receipt of financial aid by students triggered coverage under the civil rights statutes limited to the admissions office, the admissions policies.
The Civil Rights Restoration Act changed that result to say that the limitation was not to the admissions office but applied more generally to the institution.
Secretary Bell submitted a proposal. He said, Well, if it's going to apply more generally to the institution, then the trigger of simply having students who received financial aid shouldn't be enough.
And the position that we took in response to Secretary Bell's proposal was, no, that we weren't going to revisit it. We had argued earlier in Grove City that financial aid was enough to trigger coverage, and we weren't going to revisit that question. The position was that coverage of the entire institution based on the receipt of financial aid was appropriate.
GRASSLEY: So Senator Kennedy's words were not quoting you, but quoting words that Secretary Bell had in this memo. And you were reacting to those...
ROBERTS: Well, it's, again, 23-some years ago. But my recollection is that that was his proposal. Our response was that,
No, we're not going to do that. We're not going to change the position we had taken in light of the new legislation.
GRASSLEY: Some outside groups have claimed that you're hostile to civil rights. Others have suggested -- in my view incorrectly -- that you have an off-the-mark view of the Voting Rights Act. I believe these allegations to be inaccurate and I'd like for you to set the record straight.
As you may know, I've long been a supporter of the Voting Rights Act. I appeared at a news conference with Senator Dole and Kennedy and some others in 1982 with that compromise that you've referred to. The Voting Rights Act has had very significant impact on racial discrimination, probably more than anything else that Congress has done since the adoption of the Civil War amendments. '
Your critics take issue with some of your memos which outline the arguments in the debate over whether Section 2 should have an effects test or an intent test.
Specifically, there was a debate in Congress over concerns that the effects test could lead to legal requirements that racial quotas be mandated for legislatures and other elected bodies.
Ultimately, the Voting Rights Act was reauthorized with a provision expressly prohibiting courts from requiring racial quotas. We were able to craft a good compromise that gave greater protection to minority voters while not requiring quotas.
Judge Roberts, could you tell us what your role was as an assistant to Attorney General Smith in developing the Reagan policy on the Voting Rights Act?
ROBERTS: Well, President Reagan's policy and the attorney general's policy was to support the longest extension of the Voting Rights Act in history without change.
Some in the Congress wanted to amend the Voting Rights Act, Section 2, to overturn the Supreme Court's decision in Mobile against Bolden.
And that's what the debate was about: whether it should be an intent test under Section 2 or an effects test. Everybody agreed that Section 5, the preclearance provision, which applied to jurisdictions with a history of discrimination, had an effects test and should continue to have an effects test. The debate was about Section 2 and whether it should be an intent test or an effects test.
But there was no disagreement among President Reagan, Attorney General Smith, those of us on Attorney General Smith's staff, like myself, that the protection of the right to vote was critical, that the Voting Rights Act had been extraordinarily effective in preserving that right and should be extended. The debate was solely over whether or not Section 2 should be changed.
And Senator Dole, working with other members of the Senate, crafted a compromise that resolved that dispute. As you said, it put an effects test in Section 2, put in additional language to guard against the sort of proportional representation that was certainly the concern of Attorney General Smith and President Reagan. And that was enacted into law with the president's support.
But there was no disagreement about the critical nature of the right to vote, the notion that it was preservative of all other rights. And the question was simply about how it should be extended, whether extended as is or extended with the change that was enacted under the compromise.
GRASSLEY: My time's just about out, so I'll ask a very short question.
During your tenure at the solicitor general's office, didn't you sign on to a number of briefs that urged the Supreme Court to adopt a broad interpretation of the Voting Rights Act, its new requirements, and to require expansive remedies when states violate the act? And didn't some of those briefs take the same side as the ACLU, the Mexican-American Legal Defense and Education Fund, and the Lawyers' Committee for Civil Rights Under the Law?
ROBERTS: Yes, it was the responsibility of the Justice Department and before the Supreme Court, of course, the Office of the Solicitor General, to enforce the civil rights laws, and particularly the Voting Rights Act, as vigorously as possible. And that's what we did.
GRASSLEY: Thank you.
SPECTER: Thank you, Senator Grassley.
BIDEN: Thank you very much.
Hey, Judge, how are you?
ROBERTS: Fine, thank you.
BIDEN: You know, to continue your baseball analogy, I'd much rather be pitching to Arthur Branch, sitting behind you there, on Law and Order, than you. It's like pitching to Ken Griffey. I mean, you know, I'm a little concerned here that -- I'd like you to switch places with Thompson. I know I know as much as he does. I don't know about you.
Judge, look, I want to try to cut through some stuff here, if I can. I said yesterday this shouldn't be a game of Gotcha, you know. We shouldn't be playing a game. The folks have a right to know what you think. You're there for life. They don't get to -- this is the democratic moment. They don't get a chance to say, You know, I wish I'd known that about that guy. I would have picked up the phone and called my senator sand said, 'Vote no,' or, 'vote yes.' Whichever.
And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: baseball. By the way, to continue that metaphor, you hit a home run yesterday. I mean, everybody -- I got home and I got on the train and people saying, Oh, he likes baseball, huh? Seriously. The conductors, people on the train. And it's an apt metaphor, because you just call balls and strikes, call them as you see them, straight up.
But as you well know, I'd like to explore that philosophy a little bit, because you got asked that question by Senator Hatch about what is your philosophy, and the baseball metaphor is used again.
As you know, in major league baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges (ph) is: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, That was down around the ankles and I think it was a strike. They don't get to do that.
But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States -- I mean born in America to be a president of the United States. The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?
So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?
Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure.
And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment.
It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for.
You get to go back and decide. You get to go back and decide like in the Michael H. case: Do you look at a narrow or a broad right that has been respected? That's a strike zone.
So, as Chris Matthews said, Let's play baseball here. And it's a little dangerous to play baseball with you, like I said. But really and truly, it seems to me maybe we can get at this a different way.
The explicit references in the Constitution are -- you know, there's nothing anyone would expect you or any other judge would do anything about. You wouldn't say, You know, that's a really bad treaty they're voting on, so we've got to make it require 75 votes in the Senate.
You can't do that.
But again, as Justice Marshall said -- and I quoted him yesterday -- he said that Marshall's prescription that the Constitution endure through the ages -- I might add, without having to be amended over and over and over and over again -- after the first 10 amendments, we haven't done this very much in the last 230 years.
So many of the Constitution's most important provisions aren't the precise rules that I've referenced earlier.
And sometimes the principles everyone agrees are part of the Constitution or as the late chief justice -- your mentor -- said, quote, tacit postulates. He used that, as you know, in a case just before you got there, in Nevada v. Hall.
He used the phrase tacit postulates. He said that these tacit postulates are as much ingrained in the fabric of the document as its express provisions. And he went on to conclude that -- this case was about -- the case is not particularly relevant, but the point is, I think -- Chief Justice Rehnquist made this vital point and it was about state's right and language that didn't speak directly to them in the Constitution.
And he concluded that the answer was a rule he was able to infer from the overall constitutional plan.
So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.
So I want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. And I want to use the Ginsburg rule. I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: Judge, you don't have to answer that question.
I might point out that Justice Ginsburg, and I submit this for the record, commented specifically on 27 cases, 27 specific cases.
I will just speak to a couple of them here.
SPECTER: Without objection, it will be made part of the record.
BIDEN: I thank you very much.
Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think?
Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?
ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.
Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.
If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.
BIDEN: Do you think there's a liberty right of privacy that extends to women in the Constitution?
BIDEN: In the Fourteenth amendment?
BIDEN: Now, I assumed you would answer it that way.
Let me suggest also that I asked -- I'm not sure whether I asked or one of our colleagues asked Justice Ginsburg the question of whether or not it would be a ball or a strike if in fact a state passed a law, a state passed a law prohibiting abortion.
And she said, That's a foul ball.
They can't do that.
Let me quote her. She said, in response to Senator -- I was going to say Brownback -- Senator Brown, when he was here, when she was up, of Colorado. She said, quote, Abortion prohibition by a state controls women and denies them full autonomy and full equality with men. It would be unconstitutional.
What is your view, according to the Ginsburg rule?
ROBERTS: Well, that is in an area where I think I should not respond because...
BIDEN: Why? You said you'd abide by the Ginsburg rule?
ROBERTS: Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings. She had written extensively on that area, and I think that's why she felt at greater liberty to talk about those cases.
In other areas where she had not written, her response was that it was inappropriate to comment.
In particular, I remember her response on the Maher and the Harris cases. She said, Those are the court's precedents. I have no agenda to overrule them, and I will leave it at that.
And I think that's important to adhere to that.
Let me explain very briefly why. It's because if these questions come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court -- not on the basis of any commitments during the confirmation process. The litigants have a right to expect that of the judges or justices before whom they appear.
And it's not just Justice Ginsburg who adhered to that rule. I've gone back and read...
BIDEN: Well, she obviously didn't adhere to it with regard...
ROBERTS: Well, I explained why she felt at liberty to comment...
BIDEN: Well, how's that different?
That -- I would suggest, Judge -- is a distinction without a difference in terms of litigants, the way you've just explained it. Does a litigant, in fact, said because the judge wrote about it and then spoke to it as a judge, that somehow I am being -- I'm going to be put at a disadvantage before that judge in the court?
That's a stretch, Judge.
ROBERTS: Well, that's how Judge Ginsburg explained it at her nomination hearings. She said she could talk about the issues on which she had written.
BIDEN: Did that make sense to you?
ROBERTS: I think it does make sense that she can be questioned about the articles that she had written, because they raised certain questions and she felt at liberty to discuss those.
I think it's something entirely different if you talk about an area that could come before the court. This is an area that cases are pending before the court and likely will be pending in the future.
BIDEN: Well, let's try some things she didn't write about that she talked about. Let's see if you can talk about them.
One is she talked about Moore v. East Cleveland. You're much more familiar with the case than I am.
That's a case where the city came along -- and I'm going to do this shorthand in the interest of time -- and said a grandmom living in an apartment with her blood grandchildren who were cousins, but not brothers, violated the law.
And the chief said in the minority opinion -- your mentor -- he said, The interest that grandmother may have in permanently sharing a single kitchen in the suite of contiguous rooms with some of her relatives simply does not rise to the level of a constitutional right. To equate this interest with fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Constitution beyond recognition.
Do you agree with his statement?
ROBERTS: You know, I have no quarrels with the majority's determination.
BIDEN: Not my question, Judge.
SPECTER: Let him finish his answer, Joe.
ROBERTS: I understand that.
And I'm concerned about ramifications in which the issue could come up. But I have no quarrel with the majority's determination.
BIDEN: Justice Ginsburg answered the question. She never wrote about it. She answered it specifically.
She went on to say that, and let me quote -- she said -- this is quoting Justice Ginsburg -- He goes on to say, 'History, counsel caution and restrain,' and I agree with him. He says, then -- this is referring to the majority opinion -- but it does not counsel abandonment, abandonment of the notion that people have a right to certain fundamental decisions about their lives without interference of the state.
And what he next says is, History doesn't counsel abandonment nor does it require what the city is urging here, cutting off the family right at the first boundary, which is a nuclear family. He rejects that. I'm taking a position I have all the time.
And she goes on to say -- she says, Uh-Uh. She thinks your old boss was dead wrong. She said so, and she said the majority was dead right.
Ginsburg rule: What do you think? She never wrote about it.
ROBERTS: Senator, I think nominees have to draw the line where they're comfortable.
BIDEN: You're not applying the Ginsburg rule.
SPECTER: Senator Biden, let him finish. .
BIDEN: I don't have much time but go ahead.
ROBERTS: It's a matter of great importance not only to potential justices but the judges. We're sensitive to the need to maintain the independence and integrity of the court.
I think it's vitally important that nominees, to use Justice Ginsburg's words, no hints, no forecasts, no previews.
They go on the court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they go on the court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented and the rule of law. And the litigants before them have a right to expect that and to have the appearance of that as well.
That has been the approach that all of the justices have taken.
BIDEN: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on.
Did she, in fact, somehow compromise herself when she answered that question?
ROBERTS: She said no hints, no forecasts, no previews.
BIDEN: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland said explicitly: I agree with the majority, and here's what the majority said and I agree with it.
My question to you is: Do you agree with it or not?
ROBERTS: Well, I do know, Senator, that in numerous other cases -- because I read the transcript...
BIDEN: So did I.
ROBERTS: ... she took the position that she should not comment.
Justice O'Connor took the same position. She was asked about a particular case.
BIDEN: Oh, Judge...
ROBERTS: She said, It's not correct for me to comment.
Now, there's a reason for that.
BIDEN: But you're going from the...
SPECTER: Wait a minute, Senator Biden. He's not finished his answer.
BIDEN: He's filibustering, Senator.
But OK, go ahead.
SPECTER: No, he's not. No, he's not.
ROBERTS: That's a bad word, Senator.
BIDEN: That's if we do it to you. Go ahead. Go ahead and continue not to answer.
ROBERTS: Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints about how they might rule in cases that might...
BIDEN: I got that.
ROBERTS: ... come before the court.
BIDEN: Did Justice Ginsburg give a hint when she answered...
ROBERTS: I'm not going to comment...
BIDEN: ... on the specific question?
ROBERTS: I'm not going to comment on whether or not a particular nominee adhered to the approach that they announced.
BIDEN: Well, let's make it clear: She did not. Let's stipulate: She did not adhere to the approach.
I don't have time, because we don't have as much time, but I could list you a half an hour the questions she answered, the questions Kennedy, Souter -- all of the justices almost, with one exception, answered specific questions which you're not answers.
Let me go on to my next question: violence against women. I realize it's a bit of a hobby horse for me, since I wrote the legislation. And I know people say they wrote things. I mean, I actually did write that my little old self, with my staff. And no one liked it, I might add, at first; women's groups or anybody else.
But in 1999, you said, in response to a question -- you were on a show, it was 1999, you were talking about a number of things. And you said, and I quote, You know, we've gotten to a point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it's the Violence Against Women Act or anything else.
The fact of the matter is conditions are different in different states. And state laws are more relevant is, I think, exactly the right term. More attuned to different situations in New York as opposed to Minnesota. And that's what the federal system is based upon.
Judge, tell me how a guy beating up his wife in Minnesota is any different condition in New York.
ROBERTS: Senator, I was not speaking specifically to any piece of legislation there. That was making...
BIDEN: Well, you mentioned Violence Against Women.
ROBERTS: That was the issue that had come up on the show. And the general issue that was being addressed is a question of federalism.
I think it was part of the genius of the founding fathers to establish a federal system, with a national government to address issues of national concern; state and local government more close to the people to address issues of state and local concern. Obviously, issues of overlap as well.
I was not expressing the view on any particular piece of legislation. And I think the statement you read...
BIDEN: Well, let me ask you...
ROBERTS: ... confirms that.
Judge, is gender discrimination, as you've written in a memo, a perceived problem or is it a real problem?
ROBERTS: The memo you talked about, Senator, I've had a chance to look at it.
BIDEN: I'll bet you have.
ROBERTS: It concerned a 50-state inventory of particular proposals to address it. Perceived was not being used in that case to suggest that there was any doubt that there is gender discrimination and that it should be addressed. What it was referring to was a vast inventory. And I was not sure if the particular proposals in each case were supported in every state of the 50-state survey that was involved.
Of course gender discrimination is a serious problem. It's a particular concern of mine and always has been. I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all of the opportunities available to her without regard to any gender discrimination.
There's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender.
BIDEN: Let me ask you a question then, Judge. And I'm glad to hear that.
Do you think that if a state law distinguishes between a right that your daughter may have and your son may have, or your wife may have, or your sister may have and your brother may have, that the Supreme Court should engage in heightened scrutiny, not just look and see whether or not it makes any sense, but take an extra special look?
You and I know the terms, but the public listening here, the Supreme Court has said since 1971, you know, when a state passes a law that treats in any way a woman different than a man, there may be a rational for it, but the Supreme Court's going to take a very close look. Not strict scrutiny, which means you can hardly every get over that bar, like race, but going to take a heightened -- they're going to look at it more closely.
Do you think that that needs to be done, the Constitution calls for that?
ROBERTS: Yes, Senator, I do. And I, again, always have.
The confusion is in the use of the term. There are those who use the term heightened scrutiny to refer to what you just called
strict scrutiny, which is generally limited to issues of race or similar issues.
The discrimination on the basis of gender, distinctions on the basis of gender, is subject to what the Supreme Court has called intermediate scrutiny. There has to be a substantial government interest -- an important government interest and a substantial connection in the discrimination. But the Supreme Court's equal protection analysis has three tiers now.
BIDEN: I understand. My time's running out. I'd love to hear the explanation of the three tiers. But let's stick to this one for just a second.
Then, explain to me what you meant, 10 years after the decision laying out this level of scrutiny, when you wrote an '81 memo to your boss. You wrote that gender, quote, is not a criterion calling for heightened judicial review.
What'd you mean by that?
ROBERTS: Referring to what you called strict scrutiny.
BIDEN: He didn't know the difference between heightened and strict?
ROBERTS: Well, I was about to lay it out. You said you didn't want to hear about it.
ROBERTS: Strict scrutiny is the...
BIDEN: I know what that is. I wonder what you meant by that.
SPECTER: Senator Biden, let him finish his answer.
BIDEN: But I have no time left, Mr. Chairman. I understand the answer.
The Supreme Court has three levels of scrutiny. My point was, in the context of this memo, in the context of this memorandum, the question was whether or not the court should in fact have a heightened scrutiny.
ROBERTS: And, Senator, the memorandum is using heightened scrutiny the way you use strict scrutiny, which is scrutiny that's limited to the basis of race.
The gender discrimination is, as you know, subject to what's called intermediate scrutiny. And that is not what the memo is referring to with respect to heightened scrutiny. It's referring to the strict scrutiny that's restricted to issues of race and ethnicity
BIDEN: I'll come back to that in the second round because that's not my reading of what you said.
But let me get on to another issue here, again in the sex discrimination area.
The attorney general for civil rights, a former Delawarean not viewed as a darling of the left, Bradford Reynolds, decided that the federal government should take action against the state of Kentucky. And they said that there's a very strong record that Kentucky prison system discriminates against female prisoners. And I'm going to finish my whole question. And you wrote to the attorney general that I recommend you do not approve intervention in this case. And then you set out three reasons why you shouldn't approve of it. Not that there wasn't discrimination.
You said, one, that private plaintiffs are already bringing suit; secondly, the United States argument would have been based upon giving higher scrutiny to claims of gender classification; and, thirdly, that we need to be concerned about tight prison budgets, you say.
And you go on to explain that if in fact you hold them to the same standard, they may get rid of the program for the men.
Now explain to me your thinking there. I mean, that seems to be...
ROBERTS: I'm sorry. What was the date of the memo, Senator? I don't...
BIDEN: The date of the memo was February 12, 1982. I'll give you a copy. I have to bring down a copy of the memo.
ROBERTS: I can't elaborate on -- I can't elaborate on what's -- beyond what's in the memo.
BIDEN: Well, I hope you don't still hold that view, man. I mean, if the idea that you're not going to -- that the -- that a conservative civil rights -- head of the Civil Rights Division in the Reagan administration says it is pretty clear Kentucky is discriminating against women in their prison system -- and you say, in effect, that may be, but, look, we shouldn't move on it, I recommend we don't do anything about this -- and the reason we shouldn't do anything about this is threefold.
One, a private citizen already went ahead and filed suit on this; number two, if in fact you go ahead and do this, they may do away with the system for the men because there tight budgets -- and I forget the third one. You now have the memo.
ROBERTS: I have the memo and see that one of the areas that you mentioned, I say that -- and this is to the attorney general, and I say the reason we shouldn't do this is because you have publicly opposed such approaches. So again, it would have been...
BIDEN: It was only his idea then? I mean, you were just protecting him so he wouldn't be inconsistent?
ROBERTS: I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.
BIDEN: I would regard it as very poor staff work, with all due respect, Judge, because it seems to me you insert your views very strongly in here.
You don't say you said this. You say, by the way, there are other reasons why we shouldn't do this.
Assume you're saying you wouldn't go this route before, But I want to give you more ammunition here, Brad (ph).
Private plaintiffs have done this. It's inconsistent with three themes in your judicial restraint effort, equal protection claim, relief of a well-involved judicial inference, et cetera. And by the way, the end result may be with tight budgets, they may do away with this.
My time is running out. I'll come back to this. I hope you get a chance to study it between now and the time we get back to the second round.
Next question. You know, I find it fascinating, this whole thing about Title IX, and whether or not -- by Title IX, you and I know what we're talking about, but for the public at large who really has an interest in all this as well, the issue was whether or not, when a student gets aid, whether or not it only goes to the admissions piece of it.
Now, you said something that was accurate, but I don't think fulsome, to Senator Kennedy. And correct me if I'm wrong. You said: Look, we were arguing that it did apply, Title IX did apply. If a student got aid, it applied to the university.
That was one of the questions, whether or not you have no application or a narrow application. And you argued that it should apply to the admissions process.
But there's a second issue in that case, and the second issue is: Do you apply it narrowly only to an admissions policy, or do you apply it to if they are discriminating in dormitories?
I got your answer on the first part: You thought it should apply, at least narrowly.
Were you arguing that it should apply broadly?
And this was before -- let me make it clear.
The district court -- I say to my friends because I had forgotten this, the district court had ruled that this only applies to admissions. And there was a question -- the chairman of Reagan's commission on civil rights said, We should get in on the side of the plaintiff here and we should appeal this to the Supreme Court or to a higher court and say, 'No, no. This applies across the board; this applies if you don't put money in sports programs, you don't put money in dormitories, et cetera.'
What was your position on Reagan's civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?
ROBERTS: Senator, I was a staff lawyer. I didn't have a position.
The administration had a position, and the administration's position was the two-fold position that you set forth. First, Title IX applies. Second, it applies to the office, the admissions office...
BIDEN: Only to the office, right? It applies narrowly?
SPECTER: Now, wait a minute. Let him finish his answer, Senator Biden.
BIDEN: His answers are misleading, with all due respect.
SPECTER: Now, wait a minute, wait a minute.
They may be misleading, but they are his answers.
BIDEN: OK, fine.
SPECTER: You may finish, Judge Roberts.
BIDEN: Fire away. Fire away.
At least I'm misunderstanding your answer.
ROBERTS: With respect, they are my answers. And, with respect, they're not misleading, they're accurate.
BIDEN: I have a minute, 45 seconds.
ROBERTS: This is a (inaudible) dispute that was 20-some years ago. The effort was to interpret what this body, Congress, meant.
The administration position was: federal financial aid triggers coverage; it's limited to the admissions office. The United States Supreme Court agreed on both counts, and so I would say that the administration correctly interpreted the intent of Congress in enacting that legislation.
BIDEN: Well, let me read you what wrote in that memo. You said you, quote, strongly agreed.
Now, when my staff sends me a memo saying, Senator, I recommend you do the following, and I strongly agree, that usually is a pretty good indication what they think.
Now, maybe they don't. Maybe they just like to use the word
strongly. They said strongly agreed, usually means they agree, number one.
Number two, you went on to say, and I quote, that if you have the broad interpretation, quote, the federal government will be rummaging, quote, willy-nilly through institutions. So you expressed not only that you strongly agreed, but you thought that if you gave them this power to broadly interpret it to apply to dormitories and all these other things, that they'd rummage willy-nilly through institutions.
Seems to me you had a pretty strong view back then. Maybe you don't have it now.
ROBERTS: And the Supreme Court's conclusion was that that administration position was a correct reading of the law that this body passed.
So if the view was strongly held, it was because I thought that was a correct reading of the law. The Supreme Court concluded that it was a correct reading of the law.
BIDEN: Thanks, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you very much, Senator Biden.
We will recess now until 2:15.
SPECTER: We will resume the confirmation hearing.
I'd been asked to delay by two minutes the starting time so that the electronic media could make appropriate introductions, and then I've also been told that my watch is a minute fast, so we're going to correct all those miscues.
For 30 minutes, Senator Kyl?
KYL: Thank you, Mr. Chairman.
There are several preliminary things I'd like to do and then get into a couple of questions that I wanted to ask you, Judge.
First, to my colleagues, with reference to some questions that attacked policy positions of the Reagan administration when you were working there as a lawyer, Judge Roberts, I tend to agree with you that it wouldn't be appropriate in your role as a current judge, not to mention your service on the Supreme Court, to be put in the position of defending policy positions of a previous administration.
But to the extent my colleagues would like to engage in that debate, probably not in this forum, I'd be happy to accommodate them in that matter.
Judge, as to your role, I appreciate, frankly, your candor and the clarity of what you have said. And you've said a great deal here. Obviously, you've drawn the line at issues that may come before the court.
But I think you have already added to what we already knew about your approach to judging. That's the key question here, and I appreciate what you have added to that. And I'll get into a little bit more of that in a moment.
There are a couple of other items, though, that I would like to clarify. Our colleague, Senator Biden, had engaged you in a colloquy regarding some testimony given by Justice Ginsburg. And he suggested that Justice Ginsburg was asked about a specific case called Moore v. City of Cleveland and that even though she had written about that case, she volunteered to speak about it.
Now, I think, appropriately, you're not going to be a judge or umpire in this case as to whether she did or did not exceed the rule that she set down. That would be highly inappropriate. But I'd like to correct the record because that isn't what transpired.
I won't read the entire transcript here but would ask that the relevant portions be inserted in the record at the conclusion of my remarks.
But just to set the background of it, she is testifying here in response to questions by Senator Hatch. KYL: And she said, I have said to this committee that the finest expression of that idea of individual autonomy and personhood and of the obligation of the state to leave people alone and to make basic decisions about their personal life, Justice Harlan's dissenting opinion on Poe v. Ullman.
Senator Hatch said, Right.
And then then-Judge Ginsburg said, After Poe v. Ullman, I think the most eloquent statement of it, recognizing that it has difficulties -- and it certainly does, is by Justice Powell in Moore v. City of East Cleveland, the case concerning the grandmother who wanted to live with her grandson.
Those two cases more than any others, Poe v. Ullman, which was the forerunner of Griswald case, and Moore v. City of East Cleveland , explain the concept far better than I can.
And then there are other things that occur in the transcript.
My point here is to note that she was not asked a specific question about this case. She volunteered it as one of two cases that had interesting language that expressed what she wanted to express with regard to the principle of individual autonomy and personhood.
And then further down in the transcript, she said, Senator Hatch, I agree with the Moore v. City of East Cleveland statement of Justice Powell. She goes on to describe how he reached it.
And later Senator Hatch said, You mean with the position of Justice Powell?
And Judge Ginsburg said, The position I have stated here -- you asked me how I justify saying that Roe has two underpinnings, the equal dignity of the woman idea and the personhood idea of individual autonomy and decision-making. I point to those two decision opinions as supplying the essential underpinning.
And then she said, In taking the position I have in all of my writings on this subject, I must associate myself with Justice Powell's statements. Otherwise, I could not have written what I did. The point is that this is a matter on which she had written extensively. And therefore it is not the case, A, that she was asked about the case and was responding, but rather she brought the decision up; and, B, she used it to illustrate what she had already written about extensively.
So I think that will help to clarify the record. We'll put those portions of the transcript in the record and people can judge for themselves whether she violated the rule which she has laid down, a rule which you subscribe to with respect to giving hints or ideas about how you might rule in future cases.
If you'd like to comment on any of that, you certainly may do so. But I doubt that you would want to do so.
One of the -- the other item that I would like to insert in the record is a memorandum. This was discussed, I believe, in Senator Biden's questioning regarding a memorandum dated February 12th, 1982, regarding proposed intervention in Canterino v. Wilson.
And there were excerpts of that read to which you were asked to respond. I'd like to have the entire memorandum inserted in the record at this point so that people can judge for themselves.
SPECTER: Without objection, it will be made a part of the record.
KYL: Thank you very much, Mr. Chairman.
Now, Judge Roberts, one of the themes in the statements of my colleagues, particularly on the other side of the aisle here, yesterday was an expression of concern that you might, as a Supreme Court justice, undo what they describe as progress. This progress is represented for my colleagues by some of the court's decisions over recent decades and also by some legislation. KYL: My colleagues expressed a heartfelt concern for preserving this progress. Another one of my Democratic colleagues endorsed a standard that a past member of this committee articulated for evaluating nominees.
He asked: Will the nominee expand or contract freedom? You recall that. Progress and freedom: I think any American would find it quite difficult to quibble with these two ideals. I do not think that you will find a member of the Senate who would not express support for both progress and freedom, and for many of the specific reforms that have been discussed.
But as I thought about those two words last night and about my colleagues' genuine concern for protecting what they understand as progress and freedom, I began to ask myself what those two words actually mean in the context of your nomination and the court's function more generally.
When can we say that a particular decision by the Supreme Court expands or contracts progress or freedom?
Actually, it's more complicated as you stop and think about it.
For example, earlier this year, the Supreme Court issued a decision that allows the government to take one private individual's property, to transfer that property to another private individual or entity.
The court's majority held that such an action is consistent with the Constitution's public use requirement for takings of property, so long as there is some indirect benefit to the government, so long as, for example, the government expects to receive more tax revenues from the second party's use of the property.
All of the most commonly described liberal members of the Supreme Court joined in the opinion. And I'm certain that the types of involuntary, government-engineered development projects that this decision allows will be viewed by many as progress.
I'm not so sure. Is it really progress for one more politically influential private party to be able to use the government's power of eminent domain to take another less politically connected individual's property? KYL: And this is constitutional so long as the government anticipates increased tax revenues? I don't think this precedent represents an advance of either progress or freedom, in other words.
In 1975, the court issued an important decision giving public school students the right to hearing before they're suspended for disciplinary reasons. And the net effect of these decisions, as many school administrators and teachers have told me, has been to make school discipline much harder to implement and enforce.
The procedures, for example, for removing a disruptive student from the classroom have become sufficiently involved that in many cases the school simply doesn't do it. The student remains in class and the other students' learning suffers.
The writer, David Frum, has described this line of Supreme Court decisions as the bad king's Magna Carta.
Well, many older teachers, in particular, can describe the decline in school discipline and order that followed from these decisions.
And so I'm not sure that even though many would subscribe to the decision of the court, that it really represents an advance of freedom or progress, especially if most children are less free in their school environment.
In 2003, the Supreme Court issued a decision that effectively prevents the government from outlawing child pornography if that pornography is made with computer-generated images of children.
The effect of these decisions is that a whole class of child pornography effectively can't be prohibited. Many of those who work in the criminal justice system, particularly those familiar with sex offenders and their mindset, have expressed grave concern about the decision. They believe that the existence and availability of this kind of pornography can affect the behavior of certain sex offenders, that it sends a message that their impulses are not shameful but, rather, that they're shared by others and can be indulged.
Again, I have no doubt that some view this decision as an advance of freedom. And, again, I would disagree. A world where these types of crimes occur with frequency is a world where parents are constantly afraid for their children, afraid to let them play outside alone, to go outside of their sight, even afraid to let them go on the Internet. KYL: And I don't see this as an advance of freedom.
The conclusion that I have -- and there are other decisions we could point to as well -- but what I have come to conclude is that it is not your function as a judge to decide how best to advance progress and freedom; that these are decisions that all Americans need to be involved in making -- sometimes through their elected representatives; that the formula for creating progress and freedom in society is not predetermined, but rather, both of these values require a balance of competing values.
Society needs order and stability on the one hand; individual autonomy on the other.
That there are few absolutes.
So really the question here is how you view your role as a judge, with respect to this concept of advancing freedom and progress, especially since you cannot, for the most part, choose what cases come before you to decide.
What is your take on your role, if you were to become the chief justice of the United States Supreme Court, in considering this notion of advancing freedom and progress through your decision-making?
ROBERTS: Well, Senator, judges and justices do have a side in these disputes. They need to be on the side of the Constitution. And, in most of the areas, what the Constitution provides is that these sorts of policy debates -- which approach is better suited to promote freedom or to promote progress -- are vested in the legislative branch.
There are areas where the Constitution sets aside certain areas, in the Bill of Rights and other protections of liberty, and says that these areas are beyond the reach of the policymaking branches. ROBERTS: And judges and justices have the responsibility to enforce those provisions in the Constitution.
But outside of that, judges and justices should not take sides in these disputes.
I think people on both sides need to know that if they go to the Supreme Court, that they're going to be on a level playing field, that the judge is going to interpret the law, that the judge is going to apply the Constitution and not take sides in their dispute.
That's what this body is for in Congress and in the state legislatures, to resolve those types of policy disputes.
And so long as the resolution is consistent with the Constitution, that's what the judges are there to ensure. And so long as they ensure that, the framers' notion was that freedom and progress would be advanced by allowing those decisions to be made by the people's elected representatives.
KYL: I appreciate that.
You said in response to another question, you used the phrase as applied.
Now, most of the lawyers appreciate what you meant by that.
But I wonder if you could elucidate, particularly for those who are not learned in the law, what the difference is between dealing with a case, an issue of constitutionality, per se, or in an as- applied context; and how it is possible, for example, in case number one, to uphold the constitutionality of the law on its face, for example, and yet in case number two, it comes down a few years later to declare that in that situation, the statute is unconstitutional as it's applied to the facts of that case.
How can that be?
ROBERTS: Well, the distinction is a basic one in constitutional law.
If you have a facial challenge to a law, as we call it, or a per se challenge might be another way to put it, you're basically saying the law is unconstitutional without regard to the facts of the case, without regard to the record.
Whatever the application might be, whoever the parties challenging it might be, there's something about the law so fundamentally flawed that it's unconstitutional however it's going to be applied.
That's a fairly narrow category of cases.
The other category is so-called as applied challenge.
You have a law that you know is not facially unconstitutional, but it may be applied in an unconstitutional manner.
An easy example -- you have a normal statute that's perfectly constitutional. If it's applied in a discriminatory manner, it may be unconstitutional as applied in that case.
If it can be applied in a constitutional matter, so long as the facts are a certain way and if the facts turn out in the record not to meet those requirements, then it can be unconstitutional as applied. ROBERTS: And in those situations, you do need to know what the record is, you do need to know what the facts are, because the challenge might be this law might be fine for other cases but when you apply it to this case, when you apply it to this record or these facts, then it's unconstitutional.
So a statute that is constitutional on its face can always be applied in an unconstitutional way and so you can't give a categorical determination that there's no way in which that statute could ever be unconstitutionally applied.
KYL: And this is another reason why when you're asked, well, would you agree that a certain decision is a good decision and should be maintained as part of our jurisprudence and so on, in addition to not wanting to give a hint as to how you might rule on a case, to some extent it's impossible to say because you don't have the facts of the case before you and the facts of case A could cause you to render a different decision than the facts of case B.
ROBERTS: Well, that's right. And particular precedents, obviously, could be applied to variations on the fact situation that gave rise to that precedent. And sometimes those facts lead to a different result, sometimes those facts don't and it makes sense to continue to apply it in a particular manner.
But, again -- and I think most judges are of this view -- that the facts are a critical part of the resolution of any dispute.
KYL: I know perhaps to non-lawyers this can cause frustration:
Well just tell me one way or the other.
But judges have got to be fair to make sure that they don't treat all cases as the same, because the fact differences could make the difference between your ruling one way or another in a case. And every litigant probably feels that their case is a little bit unique. Judges need to think about that and certainly need to be willing to consider that this person's case might be unique and, therefore, it has to be looked at in a way different than a similar, but perhaps not identical case.
ROBERTS: Well, of course, that's a lot of how the law develops. And it's lawyers arguing in court, a lot of what -- or I used to spend my time doing was saying, This precedent doesn't apply. And the reason it doesn't apply is because these facts are different, and so you should reach a different result, or arguing that, This precedent does apply even though these facts are different. The reasoning still covers that situation.
And then that leads to the next case and so on. KYL: And it's that sort of gradual development of the law that helps shape the rule of law.
Now, you've seen that each one of us have a couple of soapboxes that we like to mount. And after about five minutes of our opinion, then we ask you a question.
I've got one of those for you, something that's been bugging me. There's been a lot of discussion about the Supreme Court's reliance, or even reference to, foreign law to determine the meaning of the United States Constitution. I just wanted to note a couple of the cases in which this was done recently.
A case this year, Roper v. Simmons, in which the Supreme Court reversed a prior precedent and decided that it would be unconstitutional to execute a man who was 17 at the time that he brutally murdered a woman by throwing her off of a bridge.
In deciding the case, the Supreme Court not only, in my view, engaged in questionable analysis of American law, it spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Pakistan, Nigeria and China.
The court claimed that we ought not to, stand alone on this issue and that we should pay attention to what other nations do when we interpret our Constitution.
And in 1999, Justice Breyer argued that the court should consider whether a long delay in executing an convicted murderer, a delay, by the way, caused by his repeated and arguably frivolous appeals, should be deemed cruel and unusual under the Eighth Amendment. And he relied on the legal opinion of courts in Zimbabwe, India, Jamaica and Canada.
The trend, if it is to become one, is greatly troubling to me and to many of my colleagues. Our Constitution was drafted by the nation's founders, ratified by the states and amended repeatedly through our constitutional processes that involve both federal and state legislators. KYL: It's an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law.
I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn't like.
For example, many nations have a weak protection for freedom to participate in or practice one's religion. Iran and some other Middle Eastern nations come immediately to mind.
But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts.
Should we look to France to tell us what the free exercise clause means, for example?
Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom.
Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There's a lot more to say on the subject.
But I wanted to hear from you.
So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we're not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.
ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.
And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law.
The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate.
The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory. ROBERTS: If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country.
I think that's a concern that has to be addressed.
The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does.
Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever.
As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there.
And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution.
And I think that's a misuse of precedent, not a correct use of precedent.
KYL: I appreciate that. We have precious little time to discuss your personal career and views. And I want to take a couple of minutes to give you an opportunity to talk to us about a couple of things.
I see by the record that you've represented at least one death row inmate on a pro bono basis. And I would love to hear just about how you took that case and how you dealt with that case.
ROBERTS: Well, I don't want to overly expand my role. It was consistent with what I've done in other cases.
There was a particular appellate issue that arose. The firm had been representing the inmate for sometime. One of the senior leading partners at the firm, Barrett Prettyman, had been heavily involved in his case for many years. ROBERTS: A particular appellate issue came up and I was asked to get involved and I was happy to do that and assist in that way. Again, it was kind of consistent with the general approach. It was in an area in which I had some experience and was happy to pitch in and help in that area.
KYL: There's a story, it may be apocryphal. If so, you can disabuse us of it now. But is it really true that you were required to argue a case before the Supreme Court on two day's notice and on that same day argued a case in the District of Columbia Circuit Court? Or is that not a correct story?
ROBERTS: No, that's the way it happened. I was scheduled to argue in the D.C. Circuit, and what happened is, the Friday before the Monday argument the clerk of the court called. We had a new lawyer who was not yet a member of the Supreme Court bar in the office, and I think we considered it kind of a pro forma matter.
We were moving his admission pro hoc vice so he could argue that day. And I think this was the Supreme Court's way of telling us that they didn't consider it a pro forma matter.
So we got notified the Friday night before the Monday argument that they were not going to grant the pro hoc motion, which is, of course, to let him argue the case even though he wasn't a member of the bar, and it fell to me to pick up that case, to be prepared to argue it Monday morning. Then in the afternoon I went and did the argument in the D.C. Circuit, which had been previously scheduled.
KYL: How'd you do in the two cases?
ROBERTS: Well, the court got it right in each case.
KYL: Enough said.
You know, another thing that fascinated me in clerking for two of the most incredible jurists in United States history, Judge Friendly and Justice Rehnquist, I was going to ask you privately, but I just have to ask you, and perhaps it'd be illuminating for folks, particularly law students: What did you learn from those two very erudite men?
ROBERTS: Well, I think, different things. You pick up different things. ROBERTS: With Judge Friendly, it was -- he had such a total commitment to excellence in his craft, at every stage of the process. Just a total devotion to the rule of law and the confidence that if you just worked hard enough at it, you'd come up with the right answers.
And it was his devotion to the rule of law that he took the most pleasure in. He liked the fact that the editorialists of the day couldn't decide whether he was a liberal or a conservative. And he would be chastised for the same opinion, depending on which paper had read it, as either that conservative judge or that liberal judge. And because he wasn't adhering to a political ideology, he was adhering to the rule of law.
And his devotion to it went to the extent -- and I know other of his clerks had the same experience. I do remember one time where he was -- signed the opinion and he kept writing it and writing it, and he finally decided it was not right. And so he wrote a dissent and he circulated the best majority he could come up with and said, I don't agree with it, here's my dissent.
And, of course, as you might imagine, the other two judges were persuaded by his dissent and it came out that way.
That sort of open-mindedness at every stage, the appreciation that it may not be the argument, it may not be the briefs. It may be down to the actual writing that reveals what he thinks the right answer is.
And also, he did have an essential humility about him. He was an absolute genius; I mean, there's no doubt about it.
Certainly, whatever he was reviewing -- the decision of an agency, the decision of a legislature -- the notion of saying, We defer to them because it's their responsibility, I think everybody would have agreed, we'd have a better result if we just let him make the decision regardless of what it was.
But he had the essential humility to appreciate that he was a judge and that this decision should be made by this agency or this decision by that legislature.
And when you read his opinions, he doesn't just, sort of, knock the pieces off the board. He marches through in a very careful way to let you know exactly how he reached the decision; why he went this way; if there was a difference among the precedents, why he chose this one; if there was a question of who has the responsibility, why he went that way. ROBERTS: And it lays it all out in such a way that you can understand the result.
And to this day, lawyers will say, when they get into an area of the law and they pick up one of his opinions, that you can look at it and it's like having a guide to the whole area of the law.
With then-Justice Rehnquist, who I clerked for the next year, I do remember doing a draft for him once and coming in. And he had thought it was, sort of, the first topic sentence of each paragraph was good and the rest of it could be junked.
And, you know, I pushed back a little bit as I thought, I hoped, was appropriate, and he said at that point -- he said, Well, I tell you what, why don't we put all this other stuff down in footnotes and just keep, sort of, the first sentence of each paragraph. Put the rest down in footnotes. I figured, well, that was a fair compromise.
So I go back and rework it and hand it to him with some pride, and he looks at it and he says, Well, all right, now take out the footnotes.
So one thing I learned from him was, I hope, to try to write crisply and efficiently; that a lot of extra stuff could be dispensed with.
And so many people mentioned during his eulogies and at the, sort of, gathering of the clerks his general approach to the balance between work and family life. I think that was a very important lesson to learn at an early age.
KYL: Judge, thank you. I think that tells us not only something about you as a person, about your style of judging, but probably some good lessons for all of us.
So than you very much.
SPECTER: Thank you, Senator Kyl.
KOHL: Thank you, Mr. Chairman.
Judge Roberts, yesterday you described your role as a judge as just an umpire, as you called it, calling balls and strikes. And that's an interesting analogy for me, as I have, more than most, some personal experience with umpires and referees. KYL: But as all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.
When we look at real legal cases, I wonder whether or not your analogy works. For example, in our private conversation, I asked you whether the words of the Constitution must always be interpreted in the same way as the authors originally intended.
For example, the Fourteenth Amendment which guarantees equal protection under the laws to all citizens, was written at a time when schools were in fact segregated based on race.
And yet, in Brown v. Board of Education, the equal protection clause was interpreted to find segregated schools unconstitutional. And you, of course, have endorsed that decision.
No one disagrees with that conclusion today, but would a neutral umpire, as you described yourself yesterday, have decided back in 1954 to expand the words of the Constitution outside of the strike zone? Would a neutral umpire have overturned a 58-year-old Supreme Court precedent and gone against the understanding of the authors of the Fourteenth Amendment and also the views of almost half of the state legislatures at that time in making the decision that they made?
ROBERTS: Well, Senator, I think the answer to your question is yes. The research into the original understanding of the drafters of the Fourteenth Amendment has expanded and changed quite a bit. And I think a very good case can be made about their views.
But more importantly, the issue was the institution of public education wasn't as established at the time as it was in 1954 at the time of the crafting of the amendment.
And the framers spoke in broad language. And whether they specifically addressed the question of public education or not isn't the limitation. Their intent was not limited to the particular problem. ROBERTS: They chose broad language and they should be held to their word. And I think it is perfectly consistent with an original understanding to argue and to conclude that their original understanding meant that segregated schools were unconstitutional -- not just in 1954, but at the time they enacted the amendment.
I think a strong case can be made there. And what was interesting about the Brown case -- maybe it's my own perspective -- but if you look at the arguments in that case, yes, John W. Davis arguing for the Board was arguing on the basis of precedent in Plessy v. Ferguson, saying this is the established law, but so is Thurgood Marshall.
He went in and he was arguing on the basis of more recent precedent, Sweatt v. Painter, a more recent decision of the court about law school, separate but equal. And he was saying: You need to build on that more recent precedent in addressing this case.
So the court was not changing the strike zone. That wasn't the way Marshall presented his argument. And it wasn't necessary for them to say, We're changing the rules of the game.
What was necessary for them to do -- and what Marshall was urging them to do -- was to get it right when they had gotten it wrong in Plessy.
KOHL: Judge, back in 1954, clearly the Supreme Court justices were willing to step outside the box, to break new ground, to do something that no one, no court, no legislature, no president had done before and strike out in an entirely new and positive direction for this country.
They were not umpires simply calling balls and strikes. They were breaking new ground. And they did so in the best interests of our country, didn't they?
ROBERTS: Of course it was a dramatic shift. And the overruling of Plessy v. Ferguson was exactly that. ROBERTS: My point is simply that, if you look at the Brown decision, it is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson. And it's based on the conclusion that the separation of the races in the schools was itself a violation of equal protection. In other words, it's not a departure from the Fourteenth Amendment, it was a departure from...
KOHL: But it was groundbreaking.
KOHL: One more observation, Judge, about your analogy of the judge as an umpire, neutral umpire. You're 50 years old, you bring great life experience to the bench, Judge, and don't you and all judges bring their own life experiences, their philosophies to the bench in deciding cases. Or would you have us believe -- and if not you can correct that -- that judges merely operate as automatons?
ROBERTS: Not automatons, no, Senator. I appreciate that, that judges don't. And of course we all bring our life experiences to the bench.
But I will say this, that the ideal in the American justice system is epitomized by the fact that judges, justices do wear the black robes, and that is meant to symbolize the fact that they're not individuals promoting their own particular views, but they are supposed to be doing their best to interpret the law, to interpret the Constitution according to the rule of law, not their own preferences, not their own personal beliefs. That's the ideal.
KOHL: And isn't it also true that to a large extent the greatest men in our history -- judicial, executive, legislative -- have been men and women with both great minds and great hearts?
KOHL: Judge, in the aftermath of Hurricane Katrina, we all saw that those who suffered the most were those who had not been able to take advantage of the great opportunities that our great country has to offer. As we found out, those without employment opportunities and educational opportunities simply did not have the means to escape the storm and the flooding. KOHL: As you seek to become the head of the judicial branch, as you seek the position of chief justice of the United States of America, what role would you play in making right the wrongs revealed by Katrina? And what role do you and the judicial branch play in making sure that we as a nation keep on moving forward toward providing equal opportunity to all Americans?
ROBERTS: The last part of your question, Senator, is of course really what's carved on the entrance to the Supreme Court, equal justice under law. That is the commitment physically embodied in the Supreme Court, and it's the commitment in the Constitution.
And I think the most important thing the Supreme Court can do, and the judicial branch can do, is to uphold the rule of law.
That is the -- I tried to point this out in my statement yesterday. That is the key to making all the rights that are in the Constitution, all the rights that legislators may confer on citizens, that's the key to making them meaningful.
The difference between our system and our Constitution and the Soviet constitution that President Reagan used to talk about -- it has wonderful rights in it, too; it didn't mean a thing because there was not an independent Supreme Court, an independent judiciary to support the rights.
We do have that, and that's the reason that we have been able to make progress in the area of rights and not had just empty paper promises.
So to the extent you are talking about the injustices in society and the discrimination in society, the best thing the courts can do is enforce the rule of law and provide a level playing field for people to come in and vindicate their rights and enforce the rule of law.
KOHL: In spite of all of our laws and all of our rules, we still saw what happened down in New Orleans. And the people who were left behind were people who had not had educational or employment opportunities.
And the question I asked was whether you, as a person who aspires to be the chief justice of the United States, sees a particular role other than continuing the role that you observe we are following now, particular role for improving our ability to respond to the needs of those people who live under those circumstances?
ROBERTS: And we were reiterating that position. This was before the Supreme Court issued its decision in Casey. That was the view of the administration and the conclusion.
I don't think there's anything in there that suggests we think or thought that anybody at that time who disagreed was unreasonable. That was our legal position. The other side's was obviously presented in those cases.
KOHL: So you are saying here that there is no support in the text, structure or history of the Constitution for that position. That's pretty flat out, pretty straight, pretty black and white.
ROBERTS: And in those cases, the other side argued that there was. And I don't think there's anything in either of those views that suggests you don't think that reasonable people can take different positions on those questions.
KOHL: You have today suggested on numerous occasions that the things that you represented in writing or an opinion back in the '80s and into the '90's, working for the Reagan administration and working for the attorney general and then finally working as deputy solicitor attorney general, were, in many cases, the opinions of people for whom you worked, not necessarily your own.
I assume, therefore, there are -- those are opinions that you are prepared to disavow?
ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.
KOHL: I appreciate that. And now that we are talking about you in an entirely different situation, of course, our curiosity is: Which of those positions were you supportive of or are you still supportive of and which would you disavow?
ROBERTS: Well, at this point, of course, we're now 23, 24 years later. I would not -- I would have to address each of those positions anew. I wouldn't try to transport myself back 24 years and say: What did you think 24 years ago? And that would require me to look at and examine all those things.
And of course, it's not how I would look at the issue if I were a judge. If I were a staff lawyer advancing a particular view, it's one thing. And a judge, I would want to confront the issue with an open mind, to fully and fairly consider the briefs and arguments of all parties, to consider the record -- we've talked today about how important a record is in a particular case -- consider the law and the precedent.
But, of course, the law and the precedents have changed in many of these areas dramatically over the past 24 years. ROBERTS: I'd have to consider all those before reaching a conclusion in any of those particular areas.
KOHL: It would be helpful to many of us to know which of those positions you took then no longer represent the position that you would take today. I think that would show a change as we grow and develop and experience life. That would be illuminating and enlightening, to many of us, to hear what some of those positions you took then no longer are represented in your thought process today.
Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception.
Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?
ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.
That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.
And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.
KOHL: Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.
These scholars reason that it follows logically that, if a woman's right to privacy and her control of her body includes the right to contraception, that it also includes a woman's right to choose to terminate her pregnancy.
I am not sure whether you wish to comment on that. I just wanted to point out to you something that I'm sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe.
ROBERTS: Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people.
The other area is an area that is, to quote Justice Ginsburg from her hearings, live with business. There are cases that arise there.
And so that's an area that I do not feel it appropriate for me to comment on.
KOHL: Sure. I appreciate that.
Judge, as we all know, you were originally nominated to replace the first woman ever to sit on the Supreme Court, Sandra Day O'Connor. There was a lot of speculation when she announced her requirement that the president might choose a woman to replace her. And she even suggested a little disappointment, not with you, but with the fact that a woman was not chosen.
KOHL: Had the president told you that the selection was down to you and an equally qualified woman for the post, but that he thought a woman was needed, would you have seen that as a reasonable conclusion on his part?
ROBERTS: I certainly think presidents have and will consider a broad range of issues and characteristics and qualifications in selecting their nominees, and that's certainly one for a president to consider.
KOHL: All things being equal, in terms of qualifications, would you be pleased if the president chose a woman to replace Sandra Day O'Connor?
ROBERTS: The upcoming vacancy?
ROBERTS: I just wanted to make clear we weren't talking about this one.
I don't think it's appropriate for me to comment in any way about the president's future selections other than to say that I'm happy with his past ones.
KOHL: You're not an automaton.
Judge Roberts, in an October 3, 1983, memo you wrote that while you served as associate White House counsel for the Reagan administration, you expressed support for judicial term limits. You did specifically support the idea of limiting judicial terms to 15 years and you said, I quote, to ensure that federal judges would not lose all touch with reality through decades of ivory tower existence, unquote.
And do you still support in theory the idea of judicial term limits?
ROBERTS: You know, that would be one of those memos that I no longer agree with, Senator.
I didn't fully appreciate what was involved in the confirmation process when I wrote that.
You know, the sentiments that were expressed there I think are certainly something that's worth discussing.
Perhaps my basic point was when the framers established the system of life tenure, people didn't live as long as they do now.
You know, I do think there are concerns, though, that I may be a little bit more sensitive to now than I was then, and they have to do with sort of a definite cut-off point.
I am not sure that's healthy for the institution of the judiciary, for people to know, for example, well, it's sort of like as you say, term limits; that if we wait another year, this judge will be gone or that justice will be gone.
I'm not sure today, from where I sit, that that is a good or healthy thing for the judiciary.
MORE KOHL: So you do not support term limits anymore?
ROBERTS: I have to say I do not, because I do think that that restriction at the end, so litigants could look and shape their litigation in light of who they think the judges or justices might be, I think that's not a healthy development.
I would note that, if I'm remembering the memo correctly, I think it was a proposed constitutional amendment, which I'm not sure, but I think that obviously is a policy choice that the Constitution allows to be pursued through that process.
KOHL: All right.
Judge, as you know, confronted with a legal problem, most American families, unlike wealthy families and very large businesses, lack the resources to hire the largest and most preeminent law firms to do their bidding.
And do you agree that for our nation's working people securing civil justice is often rendered substantially much more difficult because it simply does cost too much?
Do you have suggestions for addressing this issue?
Do you worry that captivating national events, such as the O.J. Simpson and Michael Jackson trials, reinforce the view that in this country justice can be for sale and available to those who can afford it?
ROBERTS: You know, I do think that the availability of legal services is not as broad and widespread as it should be. There are so many things and areas where I think lawyers could make a valuable contribution, but it's too expensive.
There are a number of responses that I think the bar should be taking. Obviously, for those at the lowest end of the income scale, I think there's an obligation to provide pro bono legal services. I think the big firms, little firms, medium firms, everybody needs to get involved in that.
There's not enough appreciation about how you can do that. For example, everybody thinks in terms of bringing a big case, litigation. ROBERTS: You know, lawyers who do estate work can provide extremely valuable pro bono services. Lawyers who do tax work can provide extremely valuable pro bono services. The whole range of services -- corporate work. I know lawyers in my old firm would do a lot of pro bono services helping set up nonprofit organizations, ensuring that they're complying with the law.
People need to be a little more creative in the ways in which they can help. I regard that as an obligation of the bar.
And I do think that in fact in many cases the situation you get is the people at the lowest end have access to pro bono services. People at the highest end can pay. And it's the people in the middle who are left without legal services that could be extremely valuable. And I do think the bar needs to do more. I think firms need to do more. Individual lawyers need to do more.
KOHL: Judge Roberts, as you know, over the last two decades or so, there have been several bills introduced in Congress to strip the Supreme Court and all other federal courts of their jurisdiction over many issues. These bills are generally sponsored by people who are unhappy with various court decisions, including decisions on things like school prayer, remedies for school desegregation and even a woman's right to choose.
While you served in the Justice Department and in the White House Counsel's Office in the Reagan administration in the 1980s, you did state that you believed that bills stripping the court's jurisdiction were constitutionally permissible.
Do you still hold this view? Do you think it is the right way for us to go, to allow legislatures to strip your authority to review cases?
ROBERTS: I know the memos to which you are referring make the point -- answer to your second question -- I said that they were a bad idea. They were a bad policy. I had been asked earlier when I was -- back in 1981, I believe, when I was working in the attorney general's office, to present to him an affirmative case for the proposition that the proposals were constitutional.
He was getting an opinion that they were unconstitutional. He had to make that decision for the department's position. He wanted me to argue the other side. And I did. I prepared a memorandum presenting the best argument I could that these proposals were constitutional. ROBERTS: The two memos to which you refer in the White House, where I suggested I thought they were, suggest that my memo persuaded me, if nobody else. The attorney general adopted, instead, the contrary position. And I think my views may have had something to do with the proximity to my own advocacy at the time.
As I say, I did say they were a bad policy. The reason I thought they were a bad policy is because they lead to a situation where there's arguable inconsistency and disuniformity in federal law.
If you don't have the Supreme Court with jurisdiction to address that, then you get different decisions and that was a -- that's bad policy.
If I were to look at the question today, to be honest with you, I don't know where I would come out. I think one of the questions I would have is whether these concerns I had that I labeled as policy concerns might more appropriately be considered legal arguments; in other words, not a policy dispute, but a legal argument.
That's the way the opinion of the Office of Legal Counsel that the attorney general agreed with viewed it. They said these -- the fact of disuniformity and inconsistency is a legal argument against the constitutionality. It's not simply a bad policy decision.
And I'm not sure where I would regard that determination today.
Are you saying that you're not sure where you would come out if you were faced with the decision to go along with or to fight legislative attempts to take away the court's authority?
ROBERTS: Well, I don't think -- on the question of legislative attempts, I think my view is the same now as it was 24 years ago, which is that these are -- it's a bad idea. It's bad policy.
I was talking about the other question about whether it's constitutional or not. And on that, of course, I don't think I should express a determinative view because, as you know, these proposals do come up and one may be enacted.
And if that is the case, then I'd have to address that question on the court. It could be on the court I'm on now or another court. KOHL: So in that case -- or in this case -- your heart might tell you that it's a bad idea; your mind might tell you it's constitutional?
ROBERTS: Well, I don't know what my mind would tell me.
KOHL: I mean, theoretically...
ROBERTS: But I feel comfortable with the conclusion, as I was 24 years ago, that it's a bad idea.
KOHL: All right.
ROBERTS: They're bad policy.
KOHL: Judge, since your nomination, literally -- as you know -- tens of thousands of pages of your writings as a young White House aide have been released and looked at very carefully.
In some of these writings, you took very pointed positions, as we discussed -- some political, some constitutional and some that have raised eyebrows.
I also think about myself when I was in my 20s and then when I was at the age which you are now and who I have become today and how I have changed, matured, and hopefully grown as I have gotten older.
I'm sure when you've had a chance to review some of your old work as part of this process, that there are things that you wrote back then that make you cringe perhaps today.
Are there positions you took back then as a 20-something lawyer that you would not take today?
Can you give us a couple of examples of positions that you took then that, as you have grown and developed and as are now sitting before us to be the chief justice of the United States of America, that you are today not the person that you were back when you were at 20-something?
ROBERTS: Well, we've talked about the term limits for judges. More generally, as I look at all of these documents -- and the numbers, somebody said 80,000 pages; it's a little daunting -- I don't know that there are particular issues. I mean, you have to remember this is 23, 22, 24 years ago.
In many of these cases, not only have I changed, the law has changed dramatically in more than two decades. You know, I'm sure -- and again, of the many that have been released, I will say that it's really only a handful that have attracted attention for one reason or another.
And I do think if you look at the whole body of work that I would hope people would leave that with a favorable impression.
Certainly, there are many areas where it appears that I knew a lot more when I was 25 than I think I know now when I'm 50. I had a lot of different experiences in the intervening period that give you valuable perspective.
In that intervening period, for example, I left the government, went out in the private sector, litigated a lot of cases against the government.
You do get a different view of things when you're on the other side. I think that's extremely valuable.
I hope, as you suggest, I've grown as a person over that period as well. And that also gives you some perspective. And that type of a perspective might cause somebody to moderate their tone with respect to some issues, and in some areas, and I'm sure that's the case.
I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers.
KOHL: I thank you, Judge Roberts.
Thank you, Mr. Chairman. ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Kohl.
DEWINE: Thank you, Mr. Chairman.
Judge, good afternoon.
ROBERTS: Good afternoon.
DEWINE: I guess the good news is that I represent halfway point.
SPECTER: On the first round.
DEWINE: The bad news is, it's the first round.
Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.
Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.
As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.
And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.
So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.
But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in. DEWINE: Because really it is a question of the utmost national security. These are people who are going to make sometimes life and death decisions for our country.
ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.
I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.
I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.
This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.
I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.
Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.
DEWINE: I appreciate your personal attention to that. I know how important you know it is, Judge.
And I would just add one more comment, that that court, as all courts do, but even more so, not only makes decisions, not only decides whether to issue the warrant or not, but it's the feedback that the Justice Department gets and the law enforcement agencies get that tells them what they can do and can't do. And that feedback is unbelievably important and it affects the intelligence operations in this country and is just vitally, vitally important. DEWINE: Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.
In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.
At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question.
The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. CIO, a 1939 case which you are well familiar with.
I want to quote it very briefly: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembling, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has from ancient times been a part of the privileges, immunities, rights and liberties of citizens, end of quote.
Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.
In a recent case, a Wisconsin woman was kicked off a city bus. And this is what she was kicked off a city bus for doing: She was trying to distribute a book containing Bible stories to individuals sitting next to her.
Another case that's repeated time and time again across this country and has been for many years in towns and cities, villages across the country: Individuals are prohibited from placing political signs -- and it could be not just for candidates; it could be for school levy, against the school levy -- on their own property, on their own property, except during specified times and specified ways.
Government tells them, so many days before the election: You can't put that up there until so many days before the election -- not just for candidates but for bond issues, whatever the issue that they want to talk about through their own political speech, on their own property. DEWINE: Another example: People who wish to exercise free speech in many public places -- these individuals are forced into so- called free speech zones, which many times are far away from the event that they wish to protest about; so far away that that they can't ever be seen or ever be heard -- out of sight.
Again we go back to the issue of you have to be heard.
In one recent case, the New York City Housing Authority refused to let a woman conduct Bible studies in a community center of a housing project, even though the community center was used for a host of activities, even weddings.
I must say, in that case, she actually won the case.
So I'm concerned when I see these restrictions. I think at the core of the First Amendment is the idea that individuals should be able to speak and be heard in public places.
Judge, I know you can't tell us how you'll decide any particular case; I'm not asking you to do that. But it is important to me that you talk to us a little bit about how you will evaluate these cases involving the right to speak in public places -- public places such as buses, metro stations, city sidewalks, public parks -- and tell us, if you could, Judge, what factors will you consider when deciding restrictions on speech in the public square as we traditionally know it.
What is proper under the First Amendment? And which ones are not? What tools will we use to decide that?
ROBERTS: Well again, of course, without commenting on any of the particular hypotheticals or actual cases.
DEWINE: I'm not asking you. And they're all real cases. But I want you to talk about that.
ROBERTS: I do think, though, first as a general matter and then to get into the law, that it is important that people keep a basic principle in mind when they're addressing these types of concerns.
And it's not a provision in the Constitution. ROBERTS: It's not a provision in the law. But it's a basic American approach that I think is important, and that's captured in the expression, you know: It's a free country.
And when you're talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it's a free country and it's a wonderful thing that people can say things in the public that you may not agree with, because you, of course, have the same right.
Now, the particular mode of analysis that the Supreme Court uses in addressing these types of public speech issues is to some extent unsettled. Public forum doctrine, as it's called, for many years, you tried to characterize an issue: Is this a public forum, is it a quasi-public forum, is it a private forum?
And the definition sort of carried with it the conclusion about what could be allowed. And many of the justices thought that the reasoning was awfully circular.
I remember, years ago, I argued one of the cases in the Supreme Court about post office and what could be done in a post office area and whether the restriction of that area to postal business meant they could exclude people who wanted to engage in political speech. And I remember thinking at the time that the precedents were very unsettled.
And I'm not sure that the court has made much progress since then.
But you do try to focus a little bit on whether you are dealing with a public forum, one that has traditionally been open to expression, and if it has, then any restrictions on expression are going to be subject to a very exacting standard before they'll be upheld.
If it's a more limited public forum, it's only been open for certain types of speech, or the nature of the forum requires there to be a restriction -- that was the government's argument in the post office case I litigated -- then it's a less-demanding standard in those situations.
DEWINE: Let me just follow up that with a short question, if you can give me just a reaction to this, if I could.
Do you think the First Amendment is flexible enough in the year 2005 to account for what I believe, at least, is the shrinking public square? DEWINE: Now, I know we have the Internet, we have TV, we have radio; a lot of things that we didn't have when our founders wrote the Constitution. But I think there is a shrinking public square.
What do I mean by this? Someone who wants to run for school board today, someone who wants to support a school levy, oppose a school levy -- when you and I were growing up -- you are younger than I am, but when we were growing up in the Midwest, you could go downtown -- if you supported a school levy, let's say, you could go downtown and pass out literature in front of the hardware store or the grocery store. And that was a public place, because there was a sidewalk. And you knew everybody in town was probably going to go by there.
If you lived in a city, there were communities in the city where you could do the same thing.
Today, most people -- we just don't live that way. Most people don't. Some do, but most don't.
Today people get in their car and they go to the grocery store. They go to a strip mall, and they go to a grocery store that is surrounded all by private property, and the people who own that strip mall usually say, You cannot come on and distribute any literature of any kind on this facility. And basically they're upheld in that right, because it's private property.
Or they go buy their clothes or everything else, their hardware, they do in a big mall, and that mall clearly -- there's a Supreme Court case right on point that says they can be excluded.
So the traditional public forum, as we know it, is really shrunk.
Does the court take that into consideration when they look at the precedents, they look at all the decisions that have been made? How does that -- without deciding any case or talking about any specifics...
ROBERTS: Well, I do know...
DEWINE: The world that we live in today.
ROBERTS: I appreciate the point. And I do know that even the analysis in this particular area, one of the factors that the court considers is the availability of alternative avenues for expression, and a concern, if they're cutting off a particular mode of expression, a particular avenue, are there alternatives available? ROBERTS: And I think that's a very important consideration.
I think you're quite right that this one of those areas in which technology is going to figure in a very prominent way. And the question of whether this type of analysis that grew up when you are talking about a public square or town hall-type thing applies in the Internet situation and whether there's changes that do need to be made in the analysis.
DEWINE: Since you've talked about the Internet, let me turn to a disturbing trend in regards to the Internet. And that has, quite frankly, to do with pornography.
We have passed several bills in Congress -- Communications Decency Act -- to protect our children. The Supreme Court struck it down. I'm not going to ask you to comment about that.
A few years later, we passed the Child Online Protection Act, again, with the intent to protect our children. Again, the court struck it down.
Unlike the traditional public square, the Internet has really become a place for the distribution of some, I find, very troubling material, and that is pornography.
And I guess what bothers me about these cases is they failed to account for something that, to me, at least, is very relatively simple. And that is that at the core of the First Amendment is, to me, at least, the protection of political speech, speech on matters of public concern I have talked about this before.
But it seems to me that pornography is different, particularly pornography that children can easily access. It seems to me that that should be treated differently than political speech.
Famous case: Young v. American Mini Theatres. In that case, the court upheld zoning regulations on adult theaters. Justice Stevens, hardly a right-winger, had this to say, and I quote, Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials and have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate.
Few of us would march our sons and daughter off to war to preserve the citizens' right to see, quote, 'specified sexual activities,' end of quote, exhibited in the theaters of our choice, end of quote. DEWINE: Judge, in light of that question, here are my questions.
Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain's Huck Finn ? And how would you, if confirmed to the Supreme Court, decide what protection, if any, certain kinds of expressions are entitled to under the First Amendment?
ROBERTS: Well, Senator, it's my understanding, under the Supreme Court's doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not.
That question is, sort of, antecedent to the question of what the level of protection is, to determine whether it's entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment.
There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don't think I can give a more precise answer.
DEWINE: Judge, let me turn to the area of congressional power. It's been talked about before here. I want to talk about it a little bit more. Really, this has to do with federalism cases.
As you know, the court has handed down a number of cases that have restricted the power of Congress to pass important legislation. The court has struck down portions of the Violence Against Women Act, the Americans with Disabilities Act, the Age Discrimination Employment Act and the Religious Freedom Restoration Act, just to name a few.
In some of these cases, the court restricted Congress's power under the commence clause. In some, it relied on the 11th Amendment. And in some it cited Section 5 of the 14th Amendment.
The particular provision is not that important for this discussion. DEWINE: Let me be perfectly frank: I think there's some problems with these decisions. I think it is wrong for judges to take on the role of policy-makers.
I realize that, if a statute was blatantly unconstitutional, the judge has to do their duties. But I think -- for the reason I'm going to discuss in a minute -- that was not true in these cases. I
want to cite one example -- just because of time I only can go through one -- and that is the Garrett case: 5-4 decision, Board of Trustees v. Garrett.
As you know, this case involved a woman who said that she had been discriminated against because she was disabled. She was employed by the state of Alabama. She sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, holding that there was no evidence that the state discriminated against the disabled in employment decisions.
I think the problem with Garrett is that the court ignored findings by Congress. There were other cases that had been decided where we didn't have findings; you are familiar with those. I understand the court's decision. I might like them or not like them, but I understand them.
This case: We made findings. While we were considering the Americans with Disabilities Act, we held 13 hearings, and we set up a task force; a task force that held hearings in every state and was attended by more than 30,000 individuals.
Based on these hearings, we found 300 examples of disabled individuals being discriminated against in employment decisions. We found that two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all, even though a large majority of them were capable of doing so.
And we found that this discrimination flowed from stereotypic assumptions about the disabled as well as, quote, purposeful unequal treatment, end of quote.
All findings by this elected Congress of the United States.
Here, however, the court said this was not enough. It rejected our fact-finding, holding that we had not pointed to any evidence that the states discriminated in employment decisions against the disabled. DEWINE: Judge, you have stressed repeatedly in your writings and your opinions -- and I have a great deal of respect for you and appreciate these writings and opinions -- but you stress the limited role that judges must play in our system of government.
I applaud you for that approach.
It's important for me to ensure that you still hold to this belief.
In your opinion, what role should a judge play when reviewing congressional fact-findings? In your view, how much deference do congressional fact-findings deserve?
I understand you're not going to talk about this case or any of the cases I just cited. I wanted to lay that kind of as a predicate. I wanted to tell you where I'm coming from.
But just talk in general about when you see fact-findings by Congress, when we have held hearings, when we have established the record, how do you approach it, what are the tools that you use, Judge, based on the precedents and based on what you think the role of the judge is?
ROBERTS: Well, again -- and of course, without getting into the particulars, the reason that congressional fact-finding and determination is important in these cases is because the courts recognize that they can't do that.
Courts can't have, as you said -- whatever it was -- the 13 separate hearings before passing particular legislation.
Courts -- the Supreme Court can't sit and hear witness after witness after witness in a particular area and develop that kind of a record.
Courts can't make the policy judgments about what type of legislation is necessary in light of the findings that are made.
So the findings play an important role.
And I think it's correct to say under the law, in this area and others, they're neither necessary nor necessarily sufficient, but I know as a judge that they're extremely helpful when there are findings.
And judges know when they look at those that they're the result of an exhaustive process, of a sort that the court cannot duplicate. ROBERTS: We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. So that is sort of the basis for the deference to the fact-finding that is made. It's institutional competence. The courts don't have it, but Congress does. It's constitutional authority. It's not our job. It is your job.
So the deference to congressional finds in this area has a solid basis.
Now in the particular area you are talking about, under Section 5 of the Fourteenth Amendment, the Garrett case -- there are, of course, the more recent cases that you know of, the Tennessee against Lane and the Hibbs case, Nevada against Hibbs, where the court did defer to the fact-finding in those cases, and particularly in the Hibbs case focused on the legislative recognition based on its examination of the factual record developed at hearings about the statute that was at issue there and the particular approach that they were taking to remedy discrimination under the Fourteenth Amendment, which is the authority that Congress has.
Now the legal requirement that the court has articulated there came, of course, from the City of Boerne case -- the remedial approach has to be congruent and proportional.
Justice Scalia signed on to that approach in the City of Boerne case. In the Lane case, he said he'd changed his mind and he no longer agreed with that.
Any area of the law where Justice Scalia is changing his mind has got to be one that's particularly difficult, and one that I think is appropriately regarded as still evolving and emerging.
And so I don't know if the more recent cases in Lane and Hibbs represent a swinging of the pendulum away from cases like Garrett and Kimmel on the other side, or if it's simply part of the process of the court trying to come to rest with an approach in this area.
But it is an area that the court has found difficult. And just as a general matter, I think when you get to the point of reweighing congressional finding that starts to look more like a legislative function, and the courts need to be very careful as they get into that area to make sure that they're interpreting the law and not making it. DEWINE: Well, Judge, I appreciate your answer. And I'm going to move on, but I would just say that, one of the more disturbing things to me about Garrett is that the dissent and majority opinion got into a dispute -- verbal dispute -- about what the facts were.
And, you know, their dispute about the facts, that seems to me that's not usually what the Supreme Court gets involved in. And it seems if there's a dispute in the facts, you would normally defer to the fact-finder, Congress.
Let me take off on Garrett and maybe talk about another way to get at this. Rather than focus on the problem caused by Garrett, maybe there's another way to solve some of the problems that would be raised by this. Congress still has the power to protect the disabled under the spending clause of the Constitution. We have the power of the purse.
In South Dakota v. Dole, we wanted to establish a national drinking age of 21. You're well aware of that. It was upheld by the court. We did it through the power of the purse in the Dole case. I just wonder if Congress might be able to use this approach to require the states to weigh their immunity from suit under statutes like the Americans with Disabilities Act.
It seems to me that under the spending clause, we have at our disposal the power to protect the disabled, to protect other groups and effectively overturn cases like Garrett and these other cases that limit legislative power. You seem to take that approach in a case entitled Barber (ph) v. Washington Metropolitan Transit Authority.
That case concerned a disabled person who was suing a state entity under the Rehabilitation Act. In that case, you held that the suit could go forward even though the state entity was immune from suit under the Eleventh Amendment. In your view, the state entity had agreed to waive its immunity in exchange for receiving federal mass transit dollars.
DEWINE: I think this case is important. It's important to me, at least, Judge. It seems to show us what you think about Congress' power under the spending clause, and also it gives us a model, I think, for how we might be able to protect those who are discriminated against under the Americans with Disabilities Act.
So if you'll just take a moment -- I've got two minutes left. Will you take a moment and tell us about the issue in the Barbour case and what was your reasoning for permitting a disabled person to sue in federal court for discrimination in that case?
DEWINE: It's your case. You were involved in the case. You were in the majority opinion.
ROBERTS: Yes. It was a divided decision.
ROBERTS: The argument was whether Congress had the authority under the spending clause, as a condition of the receipt of federal funds, that WMATA, the Metro here in D.C., receives, that they waive their sovereign immunity to suit under the disability provisions.
And the argument was that Congress lacked that authority, that they could not impose a waiver of sovereign immunity as a condition for the receipt of federal funds to allow an individual alleging discrimination on the basis of disability to sue.
There was no issue about whether there was sovereign immunity in the absence of a waiver, and the WMATA governing body was opposing the suit on the ground that it had not waived immunity. And they were arguing that Congress lacked the authority to condition the receipt of funds on a waiver of the immunity.
It was a divided decision. Two to one vote. The dissenter argued that this was an inappropriate exercise of the spending clause power.
The majority concluded that, no, this was within Congress' authority. It could condition the receipt of federal funds on a waiver of sovereign immunity that allowed an individual alleging he was discriminated against in employment because of his disability to proceed with the suit.
The arguments we rejected were arguments of germaneness. The idea was the funds were for transportation, not for employment. And so it wasn't a germane condition.
The majority rejected those arguments. The dissent would have ruled the other way.
DEWINE: Judge, thank you very much.
Thank you, Mr. Chairman.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator DeWine.
FEINSTEIN: Thank you very much.
SPECTER: We're going to take a 15-minute break when Senator Feinstein concludes her questioning, at about 4:15.
FEINSTEIN: Thanks very much, Mr. Chairman.
Good afternoon, Judge Roberts. I want to follow up on something that Senator Kohl said in his last question, which was sort of asking you to do a look-back into some of the things you've written and said. And you have written -- and this involves women -- either in margin notes or in comments or in memos -- and I'll list for you some of the comments and ask you what do you think of them today.
FEINSTEIN: In a memorandum to Fred Fielding, White House counsel under President Reagan, about the nomination of a woman to be recognized for moving from homemaker to lawyer, and your response to nominating this woman for an award was this, quote: Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that's for the judges to decide.
In a memo responding to a letter from three Republican congresswomen that raised concerns about the pay gap that women experience, you said, and I quote, Their slogan may as well be, 'From each according to his ability, to from each according to her gender.'
You also wrote that the congresswomen's concerns quote, ignore the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the workforce for extended periods of time, et cetera.
In another memo, you implied that it's a canard that women are discriminated against because they received 59 cents at that time, to every $1 earned by men.
In a September 26th, 1983 memo to Fred Fielding, you rejected an alternative proposed constitutional amendment guaranteeing equal rights to women.
In 1982, you wrote a memo to then attorney general in which refer to the task force which was to conduct a government-wide review to determine those laws which discriminate on the basis of gender as the ladies' task force.
I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way. Did you really think that way, and do you think that way today?
ROBERTS: Senator, I have always supported and support today equal rights for women, particularly in the workplace. ROBERTS: I was very pleased when I saw, for example, the report of the National Association of Women Lawyers, who went out and talked and interviewed with women lawyers who have worked with me, who have appeared before me.
And the conclusion was that I not only always treated women lawyers with respect and equal dignity, but that I had made special accommodations for life/work issues to ensure that women could continue to progress, for example, at my law firm, and had always treated women who appeared before me in a perfectly professional way.
FEINSTEIN: Then why say those things?
ROBERTS: Well, let's take the first one you mentioned.
I'm -- it is to me, obvious, in the memo that I wrote to Fred Fielding that it was about whether or not it's good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it.
The point was, is it good to have more lawyers? That's the way I intended it, and I'm sure that's the way...
FEINSTEIN: And you don't think it was good to have more lawyers?
ROBERTS: I think there were probably -- the point that Mr. Fielding and I had commented on, on many occasions, was that in many areas there were too many lawyers.
And that's a common joke that goes back to Shakespeare. It has nothing to do with homemakers.
The notion that that was my view is totally inconsistent and rebutted by my life.
I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.
FEINSTEIN: I don't want to belabor it.
I'm just trying to understand how you think, because you appear -- you know, you speak about modesty and humility, and yet none of these comments are modest or humble.
ROBERTS: Well, those comments were in the nature of the tone that was encouraged in our office.
It was a small office. They expected return projects around very quickly. We were expected to be candid. And if making a joke about lawyers would make for a more enjoyable day on the part of the people in the office, that's what we did.
FEINSTEIN: So it's fair to say you don't think that way? Is that correct?
ROBERTS: Well, I don't think in any way that is based on anything other than full equal citizenship rights on the basis of gender.
I might tell a lawyer's joke that there are too many lawyers today, but that's all it was back then. ROBERTS: On the memo, you quoted with respect to the issue of comparable work.
The one thing the memorandum made clear is that the position of the administration was there must be equal pay for equal work. That wasn't the issue in that case. The issue there was whether there should be equal pay for different work and whether judges should determine what type of work was equal.
FEINSTEIN: I'm not arguing that. I'm just arguing what you -- or bringing to your attention what you said then. But I don't want to belabor it. I think you have answered the question.
Now, let me ask you a question on Canerino v. Wilson. This is about the same time in 1982. And you pointed out in answers to prior questions whether -- that you were staff and you generally did what people asked you to do.
In this case, William Bradford Reynolds, the top attorney in the Civil Rights Division, indicated that there had been substantial, he thought, discrimination in prisons in Kentucky and that the Justice Department had done an investigation. And they found that male prisoners were given training for higher paid jobs, for greater variety of jobs and were given training for longer periods of time.
Your memo contradicted his recommendation to intervene. Why would that be if you just follow the policy of the office?
ROBERTS: My understanding there was that there was a question -- whether intervention in that case -- the case was being pursued by private litigants already. The question whether intervention by the federal government in that case was consistent with the attorney general's approach to institutional litigation.
That was an approach that he had laid out in several speeches, memoranda. And as a staff member it was my job to call to his attention areas where I thought there may be inconsistencies in areas where he wanted to set policy priorities. FEINSTEIN: In response to the chairman's question this morning about the right to privacy, you answered that you believed that there is an implied right to privacy in the Constitution, that it's been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning.
Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?
ROBERTS: Well, Senator, first of all, I don't necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated...
FEINSTEIN: Part of liberty, then.
ROBERTS: Yes. And the exact scope of it, with respect to the beginning of life and the end of life, those are issues that are coming before the court in both respects, and I don't think that I should go further to elaborate upon whether or not it applies in those particular situations.
FEINSTEIN: All right.
ROBERTS: Obviously, it has been articulated by the court in both contexts, in the Cruzan case with respect to the end of life, the Glucksberg case following Cruzan.
But I don't think it's appropriate for me, given the fact that cases arise on both of those questions, to go further.
FEINSTEIN: All right. Let's move right along.
This morning, there was a discussion about stare decisis. You pointed out there were factors in a consideration of stare decisis. I think one of the things you said was workability of framework is one of the main principles you look for in stare decisis.
Well, in its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case.
In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable.
FEINSTEIN: Do you agree with this conclusion?
ROBERTS: Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis. I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the court. It is a precedent on precedent. In other words, it has examined Roe and...
FEINSTEIN: So you agree that the court said that, obviously.
ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the court.
But in terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line and that's where I've drawn the line.
FEINSTEIN: So workability is clearly one thing. Is another one reliance?
ROBERTS: Certainly -- or, as it's often expressed in the court's opinions, the settled expectations. People expect that the law is going to be what the court has told them the law is going to be. And that's an important consideration.
FEINSTEIN: And in Casey, again, the court stated, and I quote,
The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives and that this ability to control their reproductive lives was enough of a reliance to sustain Roe.
ROBERTS: That's what the court concluded -- I think you're reading from the plurality opinion -- the joint opinion in the case.
FEINSTEIN: That's correct. That's correct.
Now, unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient? ROBERTS: Well, again, I think that's asking me whether I think the decision was correct or not on that point.
It certainly was the analysis that the joint opinion in the court entitled to respect it as precedent like any other decision of the court under principles of stare decisis.
And that would certainly be where I would begin. If any of these issues come before the court, if I were to be confirmed, I would begin with the precedent that the court has laid out in this area.
FEINSTEIN: One other question on Casey, and I'd like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing, in a discussion with then-Senator Brown.
The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner.
And Casey, which, in other respects, has been greeted in some quarters with great distress, answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband.
Do you agree?
ROBERTS: That is what Casey held, yes. And that's, as I said before, a precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.
FEINSTEIN: Thank you.
One other reading from Justice Ginsburg's testimony: Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred; that two strands, equality and autonomy, both figure in the full portrayal.
Do you agree or disagree?
ROBERTS: Well, I think then Justice -- then-Judge -- Ginsburg felt at greater liberty to discuss that precisely for the reason that you noted, that she had given a lecture on the subject.
Those are issues that come up again and again before the court. And, consistent with what I understand the approach to have been of other nominees, I don't think I should express a view on that. FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender.
Specifically, your brief stated, quote, Unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender, end quote.
In your oral argument you went on to make this point by comparing Operation Rescue's attempts to prevent a woman from exercising her privacy right to make decisions about her pregnancy to an ecologist's efforts to block an Indian tribe from using their exclusive fishing rights.