Transcript: Day Two of the Roberts Confirmation Hearings

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Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005; 1:33 PM

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 -- Part II

Transcript picks up after late morning break (back to Part I):

SPECTER: We will reconvene our hearing. We will take three more rounds of questions so that we will go until approximately -- there will be two more rounds of questions to 12:45, and we will then break for lunch.

Both Republicans and Democrats have their policy luncheons and so we will then reconvene after lunch until 2:15. And I have been asked how late we're going to go. Let's see how it feels. We want to move ahead with the hearings, but we don't want to wear everybody out.

Senator Grassley?

GRASSLEY: Judge Roberts, for a second time, I would congratulate you and your family on your nomination. I would also, for a second time, thank you for the time you spent in my office for me to talk privately with you several weeks ago.

I'm impressed by your record, your public service. Obviously, you demonstrate your intellect very well. And we ought to be satisfied with that.

Let me remind everybody that Judge Roberts was confirmed unanimously to the D.C. Circuit Court just two years ago by the Senate and that the ABA, the American Bar Association, has recommended him to be, in their words, "unanimously well-qualified for this position on the Supreme Court."

So I believe, with everything we have seen demonstrated, you're obviously as qualified a nominee as I have seen in the 24 years that I have been on this committee.

In addition, I want to thank you for a great deal of candor you have in answering questions and giving information. The Judiciary Committee has received from you or from government agencies that you have been affiliated with, thousands of documents on your record -- thousands of documents.

And we all have combed through the documents, the briefs and opinions that you have offered to assess your qualifications to the Supreme Court.

I think that we've been provided with a vast amount of information, more than, I think, any other candidate to the Supreme Court.

This confirmation process is very important, however, not so that we can seek to obtain your commitments on specific cases but, rather, to more fully understand your approach to deciding cases.

In addition, you have been nominated to be chief justice so I'm going to be interested in some of my questioning today or tomorrow about your priorities for the federal judiciary and what you think about the administration of justice and some of those questions you might anticipate don't involve cases coming before the Supreme Court.

GRASSLEY: And maybe on administering that branch of government, you could be a little more concrete on what you support and don't support.

And, of course, lastly, I appreciate your candor and thoughtfulness. Our conversation now will not only tell us more about your judicial methods but will also, I hope, educate the public on the proper role of a judge in our democratic society.

Most people who will be following these hearings will be, like me, a non-lawyer. And I think it's important that the bulk of our society, particularly those who aren't in the law, understand limits on judicial power in our system of checks and balances of government.

Judge Roberts, I believe that we should be filling the federal branch with individuals who will be fair, who will be unbiased, will be devoted to addressing facts and the law before them without imposing their own values and political beliefs fain reaching a decision.

You made clear that you agree with that. I'm not asking you, but I think you made clear that you agree with that with your umpire analogy that you used yesterday.

Our founding fathers clearly intended the judiciary to be the least dangerous branch of government.

Alexander Hamilton, in fact, in Federalist Paper No. 78 cautioned against judges substituting their own belief for constitutional intent when he wrote these words: "The courts must declare the sense of the law and if they should be disposed exercise will, instead of judgment, the consequences would be the substitution of their pleasure for that of the legislative body."

I think this standard is important for all judges, even more so with Supreme Court justices. And I hope at the end of our hearings that we feel, as I'm beginning to feel now, that you share that.

So, Judge Roberts, beyond your umpire analogy, what do you understand to be the role of a judge in a Democratic society?

And I would like your reaction of a quote from Justice Cardozo on the nature of the judicial process.

And he said this, not paraphrasing but direct quote: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not knight errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is not to yield to spasmodic sentiment, to vague or unrated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life -- wide enough in all conscience is the field of discretion that remains."

GRASSLEY: What do you think Justice Cardozo meant by that passage? And do you agree with it?

ROBERTS: I know I agree with it. Now let me figure out what he meant by it.

(LAUGHTER)

I think what he meant was that judges operate as judges when they are confined by the law. When I became a lawyer, the proclamation they read for the graduates were -- they referred to the law as the wise restraints that make men free.

And judges are the same way. We don't turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law.

They are constrained when they do that. They are constrained by the words that you choose to enact into a law -- in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply.

And that cabining of their discretion -- that's what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.

And then their job is interpreting the law. It is not making the law.

And so long as they are being confined by the laws, by the Constitution, by the precedents, then you're more comfortable that you're exercising the judicial function.

It's when you're at sea and you don't have anything to look to that you need to begin to worry that this isn't what judges are supposed to do.

GRASSLEY: Well, is there any room in constitutional interpretation for the judge's own values or beliefs?

ROBERTS: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case. But you don't look to your own values and beliefs. You look outside yourself to other sources.

This is the basis for -- you know, judges wear black robes because it doesn't mater who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision.

GRASSLEY: Some legal scholars claim that when the political branches of government are slow to act, the broad and spacious terms of the Constitution lend themselves to court-created solutions.

Do you agree with this role of the court?

ROBERTS: I have said that it is not the job of the court to solve society's problems. And I believe that. It is the job of the court to decide particular cases.

Now, sometimes cases are brought and the courts have to decide them even though the other branches have been slow to act, as you say.

Brown v. Board of Education is a good example. The other branches in society were not addressing the problems of segregation in the schools. They were not just slow to act; they weren't acting. But that didn't mean the courts should step in and act.

But when the courts were presented with a case that presented the challenge -- this segregation violates the equal protection clause -- the courts did have the obligation to decide that case and resolve it and in the course of doing that, of course, changed the course of American history.

GRASSLEY: Your reference to Brown would be a good time to throw in this question. Do you agree with the view that the courts, rather than the elected branches, should take the lead in creating a more just society?

ROBERTS: Again, it is the obligation of the courts to decide particular cases. Often that means acting on the side of justice, as we understand it --- enforcing the Bill of Rights, enforcing the equal protection clause.

But it has to be in the context of the case and it has to be in the context of interpreting a provision that's implicated in that case. They don't have a license to go out and decide: I think this is an injustice and so I'm going to do something to fix it. That type of judicial role, I think, is inconsistent with the role the framers intended.

When they have to decide a case, it may well, from time to time and in particular cases, put them in the role of vindicating the vision of justice that the framers enacted in the Constitution.

ROBERTS: And that is a legitimate role for them. But it's always in the context of deciding a proper case that's been presented.

GRASSLEY: Judge Roberts, during the Souter nomination, I questioned -- and I did not go back and check the records just to see exactly what I said -- but I questioned, in some way, about how he would interpret statutory law.

Justice Souter responded to some of my questions by talking about vacuums in the law, specifically that the courts -- and these are his words -- "fill vacuums that are maybe left by Congress."

This concept was troubling to me then and remains so today. If Justice Souter is listening, I would like to say to him: Well, you now, maybe Congress intended to leave some vacuums.

(LAUGHTER)

So I would like to know: How much filling in of vacuums in the law left by Congress will you do as a Supreme Court justice? Do you think this is the way for the court to be activists in that courts will be deciding how to fill in generalities and resolve contradictions in law?

ROBERTS: Well, I don't want to directly comment on what Justice Souter said. He is either going to be a colleague or continue to be one of my bosses.

(LAUGHTER)

So I want to maintain good relations in either case.

But I do think it's important to recognize in construing legislation that sometimes a decision has been made not to address a particular problem. That isn't a license for the courts to go ahead and address it because that would be overriding a congressional decision.

At the same time, as it's always the case, courts are sometimes put in the position of having to decide a question that Congress has left deliberately or inadvertently unanswered.

We see that in the issue of what remedies are available under an implied right of action when Congress has not spelled them out. The courts sometimes have to address that sort of question.

And if it's presented in a case, it's unavoidable.

But, again, I resort back to the bedrock principle of legitimacy in the American system for courts which is that any authority to interpret the law, any authority to interpret the Constitution, derives from the obligation to decide a particular case or controversy.

GRASSLEY: In your questionnaire to the committee, you stated that, quote, "Precedent plays an important role in promoting stability of the legal system," end of quote. I think we would all agree.

You also said that a judge operates within, quote, "system of rules developed over the years by other judges equally striving to live up to their judicial oath," end of quote.

It's also true that Justice Frankfurter explained, as he explained, that, quote, "The ultimate touchstone of constitutionality is the Constitution itself, not what we have said about it. Erroneous interpretations of the Constitution can be corrected only by this court." I suppose by constitutional amendment as well.

The court has done so many times, and most famously you've referred to it, the Brown case, which overruled separate but equal precedent that stood for 58 years.

So, Judge Roberts, I'd like to ask you a few questions on the issue of precedence and its value in our legal system. History has provided many examples of the dangers of government by the judiciary, such as the court's decision in Dred Scott.

Do you share President Lincoln's concerns -- and I'm going to quote here from his first inaugural. Quote: "If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the decisions of the Supreme Court the instant they are made in ordinary litigation, the people will have ceased to be their own rulers." End of quote.

ROBERTS: Well, President Lincoln, of course, was referring to one of the -- perhaps the most egregious example of judicial activism in our history, the Dred Scott case, in which the court went far beyond what was necessary to decide the case.

And really I think historians would say that the Supreme Court tried to put itself in the position of resolving the dispute about the extension of slavery and resolving it in a particular way that it thought was best for the nation. And we saw what disastrous consequences flowed from that.

And Lincoln's comment about it -- and he had several comments, because even when he was running for Senate, a big part of the famous debates were, "Well, this is what the Supreme Court has said. Are you going to follow it or not?"

ROBERTS: And Lincoln was a very careful lawyer in his responses. And the reason it was such a problem is because he was dealing with such an overarching Supreme Court decision. They didn't even just decide the particular case. The court decided to take upon itself opining more generally on how the whole issue should be resolved. And of course, as I said, it was a disaster.

So, yes, to the extent Lincoln's criticism is how broad and overreaching the court opinion was and that that in itself presented a very difficult problem in terms of adherence to the decision, I do agree with that.

GRASSLEY: Let me carry that one step further, beyond his quote. You now, as an appeals court judge, obviously are bound by Supreme Court precedent. But on the Supreme Court, a justice has much more freedom to re-evaluate prior Supreme Court decisions.

I'd like to explore the approach that you would take in your examination of Supreme Court precedents. Could you tell us what you believe is the appropriate judicial role, describing for us the value of precedent in our legal system?

ROBERTS: Certainly. And here again, we're guided by the court. It has precedent on precedents. It has cases talking about when you should revisit prior precedents and when you shouldn't. And of course some of the cases say you should in a particular instance, and others that you shouldn't.

You begin with a basis recognition of the value of precedent. No judge gets up every morning with a clean slate and says, "Well, what should the Constitution look like today?" The approach is a more modest one, to begin with the precedents. Adherence to precedent promotes evenhandedness, promotes fairness, promotes stability and predictability. And those are very important values in a legal system.

Those precedents become part of the rule of law that the judge must apply.

At the same time, as the court pointed out in the Casey case, stare decisis is not an inexorable command. If particular precedents have proven to be unworkable -- they don't lead to predictable results; they're difficult to apply -- that's one factor supporting reconsideration.

If the bases of the precedent have been eroded -- in other words, if the court decides a cases saying, "Because of these three precedents, we reach this result," and in the intervening years, two of those are overruled -- that's another basis for reconsidering the precedent.

ROBERTS: At the same time, you always have to take into account the settled expectations that have grown up around the prior precedent.

It is a jolt to the legal system to overrule a precedent and that has to be taken into account as well the different expectations that have grown up around it.

There are different other aspects of the rules. For example, property decisions are afar less likely to be reconsidered because of the expectations that grow up around them. Statutory decisions are less likely to be reconsidered because Congress can fix it if it's a mistake.

Again, the court's decisions in cases like Casey and Dickerson, Payne v. Tennessee, Agostini, State Oil Company v. Khan, it's an issue that comes up on a regular basis and the court has developed a body of law that would guide judges and justices when they decide whether to revisit a case.

The fundamental proposition is that it is not sufficient to view the prior case as wrongly decided. That's the opening of the process, not the end of the process. You have to decide whether it should be revisited in light of all these considerations.

GRASSLEY: Given your views on judicial restraint, can you tell us to what extent you feel obliged to uphold a decision which you found not to be based on the original intent of the Constitution?

Could you explain what factors or criteria you might use to evaluate to see whether a decision deviated from original intent, whether it should be overruled?

ROBERTS: Well, again, you would start the precedent of the court on that decision. In other words, if you think that the decision was correctly decided or wrongly decided, that doesn't answer the question of whether or not it should be revisited.

You do have to look at whether or not the decision has led to a workable rule. You have to consider whether it's created settled expectations that should not be disrupted in the interest of regularity in the legal system. You do have to look at whether or not the bases of the precedent have been eroded.

ROBERTS: Those are the main considerations that the court has articulated in a case like Dickerson, Payne v. Tennessee and the others. These are all the factors that the court looks at.

Obviously, a view about the case presents the question, but the court has emphasized it's not enough to think that the decision is wrong, to take the next step to revisit it an overrule.

GRASSLEY: In your confirmation for the D.C. Circuit, you answered a question asking whether -- by another member -- whether you supported the originalist approach to constitutional interpretation by saying this, so I hope I'm quoting you accurately:

"I do not have an all-encompassing approach to constitutional interpretation. The appropriate approach depends, to some degree, on the specific provisions at issue. Some provisions of the Constitution provide considerable guidance on how they should be construed; others are less precise.

"I would not hue to a particular school of interpretation, but would follow the approach or approaches that seem most suited in the particular case to correctly discerning the meaning of the provision at issue," end of quote.

Could you explain what approaches you're talking about? I'm not sure, in your quote, what you're getting at. Secondly, can you give some examples? And three, I would like to know when you don't believe that the originalist approach is the right approach.

ROBERTS: Well, I think it's very important to define these terms. Let's take the originalist approach. I do think that the framers' intent is the guiding principle that should apply.

However, you do need to be very careful and make sure that you're giving appropriate weight to the words that the framers used to embody their intent.

I think of, in particular, the Fourth Amendment and the equal protection clause. There are some who may think they're being originalists who will tell you, "Well, the problem they were getting at were the rights of the newly freed slaves. And so that's all that the equal protection clause applies to."

But, in fact, they didn't write the equal protection clause in such narrow terms. They wrote more generally.

That may have been a particular problem motivating them, but they chose to use broader terms, and we should take them at their word, so that is perfectly appropriate to apply the equal protection clause to issues of gender and other types of discrimination beyond the racial discrimination that was obviously the driving force behind it.

ROBERTS: That is an originalist view because you're looking at the original intent as expressed in the words that they chose. And their intent was to use broad language, not to use narrow language.

There are some areas where a very strict texturalist approach makes the most sense. Obviously -- the example I gave earlier -- two- thirds means two-thirds. You don't say, "Well, their purpose was to apply some super-majority requirement and now that we have more senators, three-fifths will give effect to that intent." Nobody would apply that approach. You stick to the language.

In other areas, the court's precedents dictate the approach. This is not something that is purely a matter of academic exercise. For example, on the Seventh Amendment, the right to a jury trial, the court has been very specific. We have a historical approach there.

The job of a judge is to look at whatever action is and try to analogize it: What would that most be like in 1787? And if you got a jury trial for that, you get one today. And if you didn't, you don't. It's a purely historical approach.

So the approaches do vary. And I don't have an overarching view.

As a matter of fact, I don't think very many judges do. I think a lot of academics do. But the demands of deciding cases and the demands of deciding cases by committee -- either a group of three or a group of nine -- I find with those demands the nuances of academic theory are dispensed with fairly quickly and judges take a more practical and pragmatic approach to trying to reach the best decision consistent with the rule of law.

GRASSLEY: I'm going to go to an issue that Senator Kennedy left off with regarding the Grove City case. And I have the memo that was involved in this issue before me. And I see the memo being a summary of former Education Secretary Bell's views on this issue.

But Senator Kennedy left out what your assessment was on it, and you wrote these words: "As a practical matter, however, I do not think the administration can revisit the issue at this late date," end of quote.

GRASSLEY: Can you tell us what your position was in this memo?

And, Mr. Chairman, I'd like to have this entire memo submitted for the record.

SPECTER: Without objection, it will be admitted as part of our record.

ROBERTS: The issue was in the Grove City case, the court had said that receipt of financial aid by students triggered coverage under the civil rights statutes limited to the admissions office, the admissions policies.

The Civil Rights Restoration Act changed that result to say that the limitation was not to the admissions office but applied more generally to the institution.

Secretary Bell submitted a proposal. He said, "Well, if it's going to apply more generally to the institution, then the trigger of simply having students who received financial aid shouldn't be enough."

And the position that we took in response to Secretary Bell's proposal was, no, that we weren't going to revisit it. We had argued earlier in Grove City that financial aid was enough to trigger coverage, and we weren't going to revisit that question. The position was that coverage of the entire institution based on the receipt of financial aid was appropriate.

GRASSLEY: So Senator Kennedy's words were not quoting you, but quoting words that Secretary Bell had in this memo. And you were reacting to those...

ROBERTS: Well, it's, again, 23-some years ago. But my recollection is that that was his proposal. Our response was that, "No, we're not going to do that. We're not going to change the position we had taken in light of the new legislation."

GRASSLEY: Some outside groups have claimed that you're hostile to civil rights. Others have suggested -- in my view incorrectly -- that you have an off-the-mark view of the Voting Rights Act. I believe these allegations to be inaccurate and I'd like for you to set the record straight.

As you may know, I've long been a supporter of the Voting Rights Act. I appeared at a news conference with Senator Dole and Kennedy and some others in 1982 with that compromise that you've referred to. The Voting Rights Act has had very significant impact on racial discrimination, probably more than anything else that Congress has done since the adoption of the Civil War amendments. '

Your critics take issue with some of your memos which outline the arguments in the debate over whether Section 2 should have an effects test or an intent test.

Specifically, there was a debate in Congress over concerns that the effects test could lead to legal requirements that racial quotas be mandated for legislatures and other elected bodies.

Ultimately, the Voting Rights Act was reauthorized with a provision expressly prohibiting courts from requiring racial quotas. We were able to craft a good compromise that gave greater protection to minority voters while not requiring quotas.

Judge Roberts, could you tell us what your role was as an assistant to Attorney General Smith in developing the Reagan policy on the Voting Rights Act?

ROBERTS: Well, President Reagan's policy and the attorney general's policy was to support the longest extension of the Voting Rights Act in history without change.

Some in the Congress wanted to amend the Voting Rights Act, Section 2, to overturn the Supreme Court's decision in Mobile against Bolden.

And that's what the debate was about: whether it should be an intent test under Section 2 or an effects test.

ROBERTS: Everybody agreed that Section 5, the preclearance provision, which applied to jurisdictions with a history of discrimination, had an effects test and should continue to have an effects test. The debate was about Section 2 and whether it should be an intent test or an effects test.

But there was no disagreement among President Reagan, Attorney General Smith, those of us on Attorney General Smith's staff, like myself, that the protection of the right to vote was critical, that the Voting Rights Act had been extraordinarily effective in preserving that right and should be extended. The debate was solely over whether or not Section 2 should be changed.

And Senator Dole, working with other members of the Senate, crafted a compromise that resolved that dispute. As you said, it put an effects test in Section 2, put in additional language to guard against the sort of proportional representation that was certainly the concern of Attorney General Smith and President Reagan. And that was enacted into law with the president's support.

But there was no disagreement about the critical nature of the right to vote, the notion that it was preservative of all other rights. And the question was simply about how it should be extended, whether extended as is or extended with the change that was enacted under the compromise.

GRASSLEY: My time's just about out, so I'll ask a very short question.

During your tenure at the solicitor general's office, didn't you sign on to a number of briefs that urged the Supreme Court to adopt a broad interpretation of the Voting Rights Act, its new requirements, and to require expansive remedies when states violate the act? And didn't some of those briefs take the same side as the ACLU, the Mexican-American Legal Defense and Education Fund, and the Lawyers' Committee for Civil Rights Under the Law?

ROBERTS: Yes, it was the responsibility of the Justice Department and before the Supreme Court, of course, the Office of the Solicitor General, to enforce the civil rights laws, and particularly the Voting Rights Act, as vigorously as possible. And that's what we did.

GRASSLEY: Thank you.

SPECTER: Thank you, Senator Grassley.

Senator Biden?

BIDEN: Thank you very much.

Hey, Judge, how are you?

ROBERTS: Fine, thank you.

BIDEN: You know, to continue your baseball analogy, I'd much rather be pitching to Arthur Branch, sitting behind you there, on "Law and Order," than you. It's like pitching to Ken Griffey. I mean, you know, I'm a little concerned here that -- I'd like you to switch places with Thompson. I know I know as much as he does.

BIDEN: I don't know about you.

(LAUGHTER)

Judge, look, I want to try to cut through some stuff here, if I can. I said yesterday this shouldn't be a game of "Gotcha," you know. We shouldn't be playing a game. The folks have a right to know what you think. You're there for life. They don't get to -- this is the democratic moment. They don't get a chance to say, "You know, I wish I'd known that about that guy. I would have picked up the phone and called my senator sand said, 'Vote no,' or, 'vote yes.'" Whichever.

And so what I'd like to do is stick with your analogy a little bit, because everybody's used it: baseball. By the way, to continue that metaphor, you hit a home run yesterday. I mean, everybody -- I got home and I got on the train and people saying, "Oh, he likes baseball, huh?" Seriously. The conductors, people on the train. And it's an apt metaphor, because you just call balls and strikes, call them as you see them, straight up.

But as you well know, I'd like to explore that philosophy a little bit, because you got asked that question by Senator Hatch about what is your philosophy, and the baseball metaphor is used again.

As you know, in major league baseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges (ph) is: Do they have good eyesight or not? They don't get to change the strike zone. They don't get to say, "That was down around the ankles and I think it was a strike." They don't get to do that.

But you are in a very different position as a Supreme Court justice. As you pointed out, some places of the Constitution defines the strike zone. Two-thirds of the senators must vote. You must be an American citizen, to the chagrin of Arnold Schwarzenegger, to be president of the United States -- I mean born in America to be a president of the United States.

BIDEN: The strike zone is set out. But as you pointed out in the question to Senator Hatch, I think, you said unreasonable search and seizure. What constitutes unreasonable?

So, as much as I respect your metaphor, it's not very apt, because you get to determine the strike zone. What's unreasonable?

Your strike zone on reasonable/unreasonable may be very different than another judge's view of what is reasonable or unreasonable search and seizure.

And the same thing prevails for a lot of other parts of the Constitution. The one that we're all talking about -- and everybody here, it wouldn't matter what we said, from left, right and center -- is concerned about the liberty clause of the Fourteenth Amendment.

It doesn't define it. All of the things that we debate about here and the court debates that deserve 5-4 decisions, they're almost all on issues that are ennobling phrases in the Constitution, that the founders never set a strike zone for.

You get to go back and decide. You get to go back and decide like in the Michael H. case: Do you look at a narrow or a broad right that has been respected? That's a strike zone.

So, as Chris Matthews said, "Let's play baseball here." And it's a little dangerous to play baseball with you, like I said. But really and truly, it seems to me maybe we can get at this a different way.

The explicit references in the Constitution are -- you know, there's nothing anyone would expect you or any other judge would do anything about. You wouldn't say, "You know, that's a really bad treaty they're voting on, so we've got to make it require 75 votes in the Senate."

You can't do that.

But again, as Justice Marshall said -- and I quoted him yesterday -- he said that Marshall's prescription that the Constitution endure through the ages -- I might add, without having to be amended over and over and over and over again -- after the first 10 amendments, we haven't done this very much in the last 230 years.

So many of the Constitution's most important provisions aren't the precise rules that I've referenced earlier.

And sometimes the principles everyone agrees are part of the Constitution or as the late chief justice -- your mentor -- said, quote, "tacit postulates."

BIDEN: He used that, as you know, in a case just before you got there, in Nevada v. Hall.

He used the phrase "tacit postulates." He said that these tacit postulates are as much ingrained in the fabric of the document as its express provisions. And he went on to conclude that -- this case was about -- the case is not particularly relevant, but the point is, I think -- Chief Justice Rehnquist made this vital point and it was about state's right and language that didn't speak directly to them in the Constitution.

And he concluded that the answer was a rule he was able to infer from the overall constitutional plan.

So, Judge, you're going to be an inferrer, not an umpire. Umpires don't infer. They don't get to infer. Every justice has to infer.

So I want to try to figure out how you infer. I want to figure out how you go about this. And so let me get right to it. And I want to use the Ginsburg rule. I notice Ginsburg is quoted. I'm quoted all the time about Ginsburg: "Judge, you don't have to answer that question."

I might point out that Justice Ginsburg, and I submit this for the record, commented specifically on 27 cases, 27 specific cases.

I will just speak to a couple of them here.

SPECTER: Without objection, it will be made part of the record.

BIDEN: I thank you very much.

Now, you have already said to the chairman that you agree that there's a right to privacy. And you said the Supreme Court found such a right in part in the Fourteenth amendment. My question is: Do you agree that -- not what said law is -- what do you think?

Do you agree that there is a right of privacy to be found in the liberty clause of the Fourteenth Amendment?

ROBERTS: I do, Senator. I think that the court's expressions, and I think if my reading of the precedent is correct, I think every justice on the court believes that, to some extent or another.

Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy. And it's not protected only in procedural terms but it is protected substantively as well. Again, I think every member of the court subscribes to that proposition.

If they agree with Bowling against Sharpe, as I'm sure all of them do, they are subscribing to that proposition to some extent or another.

BIDEN: Do you think there's a liberty right of privacy that extends to women in the Constitution?

ROBERTS: Certainly.

BIDEN: In the Fourteenth amendment?

ROBERTS: Certainly.

BIDEN: Now, I assumed you would answer it that way.

Let me suggest also that I asked -- I'm not sure whether I asked or one of our colleagues asked Justice Ginsburg the question of whether or not it would be a ball or a strike if in fact a state passed a law, a state passed a law prohibiting abortion.

BIDEN: And she said, "That's a foul ball. They can't do that."

Let me quote her. She said, in response to Senator -- I was going to say Brownback -- Senator Brown, when he was here, when she was up, of Colorado. She said, quote, "Abortion prohibition by a state controls women and denies them full autonomy and full equality with men. It would be unconstitutional."

What is your view, according to the Ginsburg rule?

ROBERTS: Well, that is in an area where I think I should not respond because...

BIDEN: Why? You said you'd abide by the Ginsburg rule?

ROBERTS: Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings. She had written extensively on that area, and I think that's why she felt at greater liberty to talk about those cases.

In other areas where she had not written, her response was that it was inappropriate to comment.

In particular, I remember her response on the Maher and the Harris cases. She said, "Those are the court's precedents. I have no agenda to overrule them, and I will leave it at that."

And I think that's important to adhere to that.

Let me explain very briefly why. It's because if these questions come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court -- not on the basis of any commitments during the confirmation process.

ROBERTS: The litigants have a right to expect that of the judges or justices before whom they appear.

And it's not just Justice Ginsburg who adhered to that rule. I've gone back and read...

BIDEN: Well, she obviously didn't adhere to it with regard...

ROBERTS: Well, I explained why she felt at liberty to comment...

BIDEN: Well, how's that different?

That -- I would suggest, Judge -- is a distinction without a difference in terms of litigants, the way you've just explained it. Does a litigant, in fact, said because the judge wrote about it and then spoke to it as a judge, that somehow I am being -- I'm going to be put at a disadvantage before that judge in the court?

That's a stretch, Judge.

ROBERTS: Well, that's how Judge Ginsburg explained it at her nomination hearings. She said she could talk about the issues on which she had written.

BIDEN: Did that make sense to you?

ROBERTS: I think it does make sense that she can be questioned about the articles that she had written, because they raised certain questions and she felt at liberty to discuss those.

I think it's something entirely different if you talk about an area that could come before the court. This is an area that cases are pending before the court and likely will be pending in the future.

BIDEN: Well, let's try some things she didn't write about that she talked about. Let's see if you can talk about them.

One is she talked about Moore v. East Cleveland. You're much more familiar with the case than I am.

That's a case where the city came along -- and I'm going to do this shorthand in the interest of time -- and said a grandmom living in an apartment with her blood grandchildren who were cousins, but not brothers, violated the law.

And the chief said in the minority opinion -- your mentor -- he said, "The interest that grandmother may have in permanently sharing a single kitchen in the suite of contiguous rooms with some of her relatives simply does not rise to the level of a constitutional right."

BIDEN: "To equate this interest with fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Constitution beyond recognition."

Do you agree with his statement?

ROBERTS: You know, I have no quarrels with the majority's determination.

BIDEN: Not my question, Judge.

SPECTER: Let him finish his answer, Joe.

ROBERTS: I understand that.

And I'm concerned about ramifications in which the issue could come up. But I have no quarrel with the majority's determination.

BIDEN: Justice Ginsburg answered the question. She never wrote about it. She answered it specifically.

She went on to say that, and let me quote -- she said -- this is quoting Justice Ginsburg -- "He goes on to say, 'History, counsel caution and restrain,' and I agree with him." "He says, then" -- this is referring to the majority opinion -- "but it does not counsel abandonment, abandonment of the notion that people have a right to certain fundamental decisions about their lives without interference of the state.

And what he next says is, "History doesn't counsel abandonment nor does it require what the city is urging here, cutting off the family right at the first boundary, which is a nuclear family. He rejects that. I'm taking a position I have all the time."

And she goes on to say -- she says, "Uh-Uh." She thinks your old boss was dead wrong. She said so, and she said the majority was dead right.

Ginsburg rule: What do you think? She never wrote about it.

ROBERTS: Senator, I think nominees have to draw the line where they're comfortable.

(CROSSTALK)

BIDEN: You're not applying the Ginsburg rule.

SPECTER: Senator Biden, let him finish. .

BIDEN: I don't have much time but go ahead.

ROBERTS: It's a matter of great importance not only to potential justices but the judges. We're sensitive to the need to maintain the independence and integrity of the court.

I think it's vitally important that nominees, to use Justice Ginsburg's words, "no hints, no forecasts, no previews."

They go on the court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they go on the court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented and the rule of law.

ROBERTS: And the litigants before them have a right to expect that and to have the appearance of that as well.

That has been the approach that all of the justices have taken.

BIDEN: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on.

Did she, in fact, somehow compromise herself when she answered that question?

ROBERTS: She said no hints, no forecasts, no previews.

BIDEN: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland said explicitly: I agree with the majority, and here's what the majority said and I agree with it.

My question to you is: Do you agree with it or not?

ROBERTS: Well, I do know, Senator, that in numerous other cases -- because I read the transcript...

BIDEN: So did I.

ROBERTS: ... she took the position that she should not comment.

Justice O'Connor took the same position. She was asked about a particular case.

BIDEN: Oh, Judge...

(CROSSTALK)

ROBERTS: She said, "It's not correct for me to comment."

Now, there's a reason for that.

BIDEN: But you're going from the...

SPECTER: Wait a minute, Senator Biden. He's not finished his answer.

BIDEN: He's filibustering, Senator.

But OK, go ahead.

(LAUGHTER)

SPECTER: No, he's not. No, he's not.

(CROSSTALK)

ROBERTS: That's a bad word, Senator.

BIDEN: That's if we do it to you. Go ahead. Go ahead and continue not to answer.

(LAUGHTER)

ROBERTS: Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints about how they might rule in cases that might...

BIDEN: I got that.

ROBERTS: ... come before the court.

BIDEN: Did Justice Ginsburg give a hint when she answered...

ROBERTS: I'm not going to comment...

BIDEN: ... on the specific question?

ROBERTS: I'm not going to comment on whether or not a particular nominee adhered to the approach that they announced.

BIDEN: Well, let's make it clear: She did not. Let's stipulate: She did not adhere to the approach.

I don't have time, because we don't have as much time, but I could list you a half an hour the questions she answered, the questions Kennedy, Souter -- all of the justices almost, with one exception, answered specific questions which you're not answers.

Let me go on to my next question: violence against women. I realize it's a bit of a hobby horse for me, since I wrote the legislation.

BIDEN: And I know people say they wrote things. I mean, I actually did write that my little old self, with my staff. And no one liked it, I might add, at first; women's groups or anybody else.

But in 1999, you said, in response to a question -- you were on a show, it was 1999, you were talking about a number of things. And you said, and I quote, "You know, we've gotten to a point these days where we think the only way we can show we're serious about a problem is if we pass a federal law, whether it's the Violence Against Women Act or anything else.

"The fact of the matter is conditions are different in different states. And state laws are more relevant is, I think, exactly the right term. More attuned to different situations in New York as opposed to Minnesota. And that's what the federal system is based upon."

Judge, tell me how a guy beating up his wife in Minnesota is any different condition in New York.

ROBERTS: Senator, I was not speaking specifically to any piece of legislation there. That was making...

BIDEN: Well, you mentioned Violence Against Women.

ROBERTS: That was the issue that had come up on the show. And the general issue that was being addressed is a question of federalism.

I think it was part of the genius of the founding fathers to establish a federal system, with a national government to address issues of national concern; state and local government more close to the people to address issues of state and local concern. Obviously, issues of overlap as well.

I was not expressing the view on any particular piece of legislation. And I think the statement you read...

BIDEN: Well, let me ask you...

ROBERTS: ... confirms that.

BIDEN: OK.

Judge, is gender discrimination, as you've written in a memo, a perceived problem or is it a real problem?

ROBERTS: The memo you talked about, Senator, I've had a chance to look at it.

BIDEN: I'll bet you have.

ROBERTS: It concerned a 50-state inventory of particular proposals to address it. "Perceived" was not being used in that case to suggest that there was any doubt that there is gender discrimination and that it should be addressed.

ROBERTS: What it was referring to was a vast inventory. And I was not sure if the particular proposals in each case were supported in every state of the 50-state survey that was involved.

Of course gender discrimination is a serious problem. It's a particular concern of mine and always has been. I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all of the opportunities available to her without regard to any gender discrimination.

There's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender.

BIDEN: Let me ask you a question then, Judge. And I'm glad to hear that.

Do you think that if a state law distinguishes between a right that your daughter may have and your son may have, or your wife may have, or your sister may have and your brother may have, that the Supreme Court should engage in heightened scrutiny, not just look and see whether or not it makes any sense, but take an extra special look?

You and I know the terms, but the public listening here, the Supreme Court has said since 1971, you know, when a state passes a law that treats in any way a woman different than a man, there may be a rational for it, but the Supreme Court's going to take a very close look. Not strict scrutiny, which means you can hardly every get over that bar, like race, but going to take a heightened -- they're going to look at it more closely.

Do you think that that needs to be done, the Constitution calls for that?

ROBERTS: Yes, Senator, I do. And I, again, always have.

The confusion is in the use of the term. There are those who use the term "heightened scrutiny" to refer to what you just called "strict scrutiny," which is generally limited to issues of race or similar issues.

The discrimination on the basis of gender, distinctions on the basis of gender, is subject to what the Supreme Court has called intermediate scrutiny.

ROBERTS: There has to be a substantial government interest -- an important government interest and a substantial connection in the discrimination. But the Supreme Court's equal protection analysis has three tiers now.

BIDEN: I understand. My time's running out. I'd love to hear the explanation of the three tiers. But let's stick to this one for just a second.

Then, explain to me what you meant, 10 years after the decision laying out this level of scrutiny, when you wrote an '81 memo to your boss. You wrote that gender, quote, "is not a criterion calling for heightened judicial review."

What'd you mean by that?

ROBERTS: Referring to what you called strict scrutiny.

BIDEN: He didn't know the difference between heightened and strict?

ROBERTS: Well, I was about to lay it out. You said you didn't want to hear about it.

(LAUGHTER)

ROBERTS: Strict scrutiny is the...

BIDEN: I know what that is. I wonder what you meant by that.

SPECTER: Senator Biden, let him finish his answer.

BIDEN: But I have no time left, Mr. Chairman. I understand the answer.

(LAUGHTER)

The Supreme Court has three levels of scrutiny. My point was, in the context of this memo, in the context of this memorandum, the question was whether or not the court should in fact have a heightened scrutiny.

ROBERTS: And, Senator, the memorandum is using "heightened scrutiny" the way you use "strict scrutiny," which is scrutiny that's limited to the basis of race.

The gender discrimination is, as you know, subject to what's called intermediate scrutiny. And that is not what the memo is referring to with respect to heightened scrutiny. It's referring to the strict scrutiny that's restricted to issues of race and ethnicity

BIDEN: I'll come back to that in the second round because that's not my reading of what you said.

But let me get on to another issue here, again in the sex discrimination area.

The attorney general for civil rights, a former Delawarean not viewed as a darling of the left, Bradford Reynolds, decided that the federal government should take action against the state of Kentucky. And they said that there's a very strong record that Kentucky prison system discriminates against female prisoners.

BIDEN: And I'm going to finish my whole question. And you wrote to the attorney general that "I recommend you do not approve intervention in this case." And then you set out three reasons why you shouldn't approve of it. Not that there wasn't discrimination.

You said, one, that private plaintiffs are already bringing suit; secondly, the United States argument would have been based upon giving higher scrutiny to claims of gender classification; and, thirdly, that we need to be concerned about tight prison budgets, you say.

And you go on to explain that if in fact you hold them to the same standard, they may get rid of the program for the men.

Now explain to me your thinking there. I mean, that seems to be...

ROBERTS: I'm sorry. What was the date of the memo, Senator? I don't...

BIDEN: The date of the memo was February 12, 1982. I'll give you a copy. I have to bring down a copy of the memo.

ROBERTS: I can't elaborate on -- I can't elaborate on what's -- beyond what's in the memo.

BIDEN: Well, I hope you don't still hold that view, man. I mean, if the idea that you're not going to -- that the -- that a conservative civil rights -- head of the Civil Rights Division in the Reagan administration says it is pretty clear Kentucky is discriminating against women in their prison system -- and you say, in effect, that may be, but, look, we shouldn't move on it, I recommend we don't do anything about this -- and the reason we shouldn't do anything about this is threefold.

One, a private citizen already went ahead and filed suit on this; number two, if in fact you go ahead and do this, they may do away with the system for the men because there tight budgets -- and I forget the third one. You now have the memo.

ROBERTS: I have the memo and see that one of the areas that you mentioned, I say that -- and this is to the attorney general, and I say the reason we shouldn't do this is because you have publicly opposed such approaches. So again, it would have been...

BIDEN: It was only his idea then? I mean, you were just protecting him so he wouldn't be inconsistent?

ROBERTS: I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.

BIDEN: I would regard it as very poor staff work, with all due respect, Judge, because it seems to me you insert your views very strongly in here.

You don't say you said this. You say, by the way, there are other reasons why we shouldn't do this.

Assume you're saying you wouldn't go this route before, "But I want to give you more ammunition here, Brad (ph)."

Private plaintiffs have done this. It's inconsistent with three themes in your judicial restraint effort, equal protection claim, relief of a well-involved judicial inference, et cetera. And by the way, the end result may be with tight budgets, they may do away with this.

My time is running out. I'll come back to this. I hope you get a chance to study it between now and the time we get back to the second round.

Next question. You know, I find it fascinating, this whole thing about Title IX, and whether or not -- by Title IX, you and I know what we're talking about, but for the public at large who really has an interest in all this as well, the issue was whether or not, when a student gets aid, whether or not it only goes to the admissions piece of it.

Now, you said something that was accurate, but I don't think fulsome, to Senator Kennedy. And correct me if I'm wrong. You said: Look, we were arguing that it did apply, Title IX did apply. If a student got aid, it applied to the university.

That was one of the questions, whether or not you have no application or a narrow application.

BIDEN: And you argued that it should apply to the admissions process.

But there's a second issue in that case, and the second issue is: Do you apply it narrowly only to an admissions policy, or do you apply it to if they are discriminating in dormitories?

I got your answer on the first part: You thought it should apply, at least narrowly.

Were you arguing that it should apply broadly?

And this was before -- let me make it clear.

The district court -- I say to my friends because I had forgotten this, the district court had ruled that this only applies to admissions. And there was a question -- the chairman of Reagan's commission on civil rights said, "We should get in on the side of the plaintiff here and we should appeal this to the Supreme Court or to a higher court and say, 'No, no. This applies across the board; this applies if you don't put money in sports programs, you don't put money in dormitories, et cetera.'"

What was your position on Reagan's civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?

ROBERTS: Senator, I was a staff lawyer. I didn't have a position.

The administration had a position, and the administration's position was the two-fold position that you set forth. First, Title IX applies. Second, it applies to the office, the admissions office...

BIDEN: Only to the office, right? It applies narrowly?

SPECTER: Now, wait a minute. Let him finish his answer, Senator Biden.

BIDEN: His answers are misleading, with all due respect.

SPECTER: Well...

(CROSSTALK)

SPECTER: Now, wait a minute, wait a minute.

They may be misleading, but they are his answers.

BIDEN: OK, fine.

SPECTER: You may finish, Judge Roberts.

BIDEN: Fire away. Fire away.

At least I'm misunderstanding your answer.

ROBERTS: With respect, they are my answers. And, with respect, they're not misleading, they're accurate.

BIDEN: I have a minute, 45 seconds.

ROBERTS: This is a (inaudible) dispute that was 20-some years ago. The effort was to interpret what this body, Congress, meant.

The administration position was: federal financial aid triggers coverage; it's limited to the admissions office. The United States Supreme Court agreed on both counts, and so I would say that the administration correctly interpreted the intent of Congress in enacting that legislation.

BIDEN: Well, let me read you what wrote in that memo. You said you, quote, "strongly agreed."

Now, when my staff sends me a memo saying, "Senator, I recommend you do the following, and I strongly agree," that usually is a pretty good indication what they think.

Now, maybe they don't. Maybe they just like to use the word "strongly." They said "strongly agreed," usually means they agree, number one.

Number two, you went on to say, and I quote, that if you have the broad interpretation, quote, "the federal government will be rummaging," quote, "willy-nilly through institutions."

BIDEN: So you expressed not only that you strongly agreed, but you thought that if you gave them this power to broadly interpret it to apply to dormitories and all these other things, that they'd rummage willy-nilly through institutions.

Seems to me you had a pretty strong view back then. Maybe you don't have it now.

ROBERTS: And the Supreme Court's conclusion was that that administration position was a correct reading of the law that this body passed.

So if the view was strongly held, it was because I thought that was a correct reading of the law. The Supreme Court concluded that it was a correct reading of the law.

BIDEN: Thanks, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Thank you very much, Senator Biden.

We will recess now until 2:15.

Sep 13, 2005 12:18 ET

Back to Part I of Sept. 13 transcript. Go to Part III of Sept. 13 transcript.

Courtesy Morningside Parnters/FDCH.


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