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Transcript: Day Two of the Roberts Confirmation Hearings

Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005 11:57 AM

U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE SUPREME COURT

SEPTEMBER 13, 2005

SPEAKERS:

  • U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN
  • 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 PATRICK J. LEAHY (D-VT), RANKING MEMBER
  • 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)
  • WITNESSES: 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."

    SPECTER: 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.

    SPECTER: 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.

    ROBERTS: 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...

    SPECTER: '92.

    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."

    SPECTER: 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.

    ROBERTS: 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.

    (LAUGHTER)

    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...

    (LAUGHTER)

    ... 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."

    SPECTER: 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.

    SPECTER: OK.

    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.

    ROBERTS: 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.

    SPECTER: 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.

    Senator Leahy?

    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.

    LEAHY: 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."

    LEAHY: 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...

    ROBERTS: Right.

    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.

    ROBERTS: 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.

    LEAHY: 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.

    LEAHY: 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.

    ROBERTS: 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.

    ROBERTS: I think it's very important...

    LEAHY: Are you sending us a message?

    ROBERTS: Well, I'm just saying...

    (LAUGHTER)

    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.

    ROBERTS: 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.

    LEAHY: 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?

    LEAHY: 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.

    discrimination being interfered with.

    LEAHY: 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?

    ROBERTS: Well...

    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.

    Senator Hatch?

    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.

    (LAUGHTER)

    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.

    ROBERTS: 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.

    HATCH: OK.

    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.

    ROBERTS: 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 sure that a super-duper precedent exists, between you and me, but some have said that Planned Parenthood v. Casey, a 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.

    HATCH: OK.

    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.

    HATCH: 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.

    ROBERTS: 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.

    HATCH: 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?

    ROBERTS: Yes.

    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?

    HATCH: 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.

    HATCH: 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.

    ROBERTS: 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.

    Senator Kennedy?

    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.

    KENNEDY: 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?

    ROBERTS: Yes.

    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.

    KENNEDY: 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.

    KENNEDY: OK.

    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.

    KENNEDY: 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.

    KENNEDY: 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.

    KENNEDY: 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...

    KENNEDY: That's...

    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...

    ROBERTS: Certainly.

    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.

    ROBERTS: 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.

    KENNEDY: 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.

    KENNEDY: 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. 

    Go to Part II of Sept. 13 transcript (Sens. Grassley and Biden).

    Courtesy Morningside Parnters/FDCH.

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