Transcript: Day Two of the Roberts Confirmation Hearings

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Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005; 3:55 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 III

The transcript picks up after the committee's lunch break (back to Part II).

SPECTER: We will resume the confirmation hearing.

I'd been asked to delay by two minutes the starting time so that the electronic media could make appropriate introductions, and then I've also been told that my watch is a minute fast, so we're going to correct all those miscues.

For 30 minutes, Senator Kyl?

KYL: Thank you, Mr. Chairman.

There are several preliminary things I'd like to do and then get into a couple of questions that I wanted to ask you, Judge.

First, to my colleagues, with reference to some questions that attacked policy positions of the Reagan administration when you were working there as a lawyer, Judge Roberts, I tend to agree with you that it wouldn't be appropriate in your role as a current judge, not to mention your service on the Supreme Court, to be put in the position of defending policy positions of a previous administration.

But to the extent my colleagues would like to engage in that debate, probably not in this forum, I'd be happy to accommodate them in that matter.

Judge, as to your role, I appreciate, frankly, your candor and the clarity of what you have said. And you've said a great deal here. Obviously, you've drawn the line at issues that may come before the court.

But I think you have already added to what we already knew about your approach to judging. That's the key question here, and I appreciate what you have added to that. And I'll get into a little bit more of that in a moment.

There are a couple of other items, though, that I would like to clarify. Our colleague, Senator Biden, had engaged you in a colloquy regarding some testimony given by Justice Ginsburg. And he suggested that Justice Ginsburg was asked about a specific case called Moore v. City of Cleveland and that even though she had written about that case, she volunteered to speak about it.

Now, I think, appropriately, you're not going to be a judge or umpire in this case as to whether she did or did not exceed the rule that she set down. That would be highly inappropriate. But I'd like to correct the record because that isn't what transpired.

I won't read the entire transcript here but would ask that the relevant portions be inserted in the record at the conclusion of my remarks.

But just to set the background of it, she is testifying here in response to questions by Senator Hatch.

KYL: And she said, "I have said to this committee that the finest expression of that idea of individual autonomy and personhood and of the obligation of the state to leave people alone and to make basic decisions about their personal life, Justice Harlan's dissenting opinion on Poe v. Ullman."

Senator Hatch said, "Right."

And then then-Judge Ginsburg said, "After Poe v. Ullman, I think the most eloquent statement of it, recognizing that it has difficulties -- and it certainly does, is by Justice Powell in Moore v. City of East Cleveland, the case concerning the grandmother who wanted to live with her grandson.

"Those two cases more than any others, Poe v. Ullman, which was the forerunner of Griswald case, and Moore v. City of East Cleveland , explain the concept far better than I can."

And then there are other things that occur in the transcript.

My point here is to note that she was not asked a specific question about this case. She volunteered it as one of two cases that had interesting language that expressed what she wanted to express with regard to the principle of individual autonomy and personhood.

And then further down in the transcript, she said, "Senator Hatch, I agree with the Moore v. City of East Cleveland statement of Justice Powell." She goes on to describe how he reached it.

And later Senator Hatch said, "You mean with the position of Justice Powell?"

And Judge Ginsburg said, "The position I have stated here -- you asked me how I justify saying that Roe has two underpinnings, the equal dignity of the woman idea and the personhood idea of individual autonomy and decision-making. I point to those two decision opinions as supplying the essential underpinning."

And then she said, "In taking the position I have in all of my writings on this subject, I must associate myself with Justice Powell's statements. Otherwise, I could not have written what I did."

KYL: The point is that this is a matter on which she had written extensively. And therefore it is not the case, A, that she was asked about the case and was responding, but rather she brought the decision up; and, B, she used it to illustrate what she had already written about extensively.

So I think that will help to clarify the record. We'll put those portions of the transcript in the record and people can judge for themselves whether she violated the rule which she has laid down, a rule which you subscribe to with respect to giving hints or ideas about how you might rule in future cases.

If you'd like to comment on any of that, you certainly may do so. But I doubt that you would want to do so.

One of the -- the other item that I would like to insert in the record is a memorandum. This was discussed, I believe, in Senator Biden's questioning regarding a memorandum dated February 12th, 1982, regarding proposed intervention in Canterino v. Wilson.

And there were excerpts of that read to which you were asked to respond. I'd like to have the entire memorandum inserted in the record at this point so that people can judge for themselves.

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

KYL: Thank you very much, Mr. Chairman.

Now, Judge Roberts, one of the themes in the statements of my colleagues, particularly on the other side of the aisle here, yesterday was an expression of concern that you might, as a Supreme Court justice, undo what they describe as progress. This progress is represented for my colleagues by some of the court's decisions over recent decades and also by some legislation.

KYL: My colleagues expressed a heartfelt concern for preserving this progress. Another one of my Democratic colleagues endorsed a standard that a past member of this committee articulated for evaluating nominees.

He asked: Will the nominee expand or contract freedom? You recall that. Progress and freedom: I think any American would find it quite difficult to quibble with these two ideals. I do not think that you will find a member of the Senate who would not express support for both progress and freedom, and for many of the specific reforms that have been discussed.

But as I thought about those two words last night and about my colleagues' genuine concern for protecting what they understand as progress and freedom, I began to ask myself what those two words actually mean in the context of your nomination and the court's function more generally.

When can we say that a particular decision by the Supreme Court expands or contracts progress or freedom?

Actually, it's more complicated as you stop and think about it.

For example, earlier this year, the Supreme Court issued a decision that allows the government to take one private individual's property, to transfer that property to another private individual or entity.

The court's majority held that such an action is consistent with the Constitution's public use requirement for takings of property, so long as there is some indirect benefit to the government, so long as, for example, the government expects to receive more tax revenues from the second party's use of the property.

All of the most commonly described liberal members of the Supreme Court joined in the opinion. And I'm certain that the types of involuntary, government-engineered development projects that this decision allows will be viewed by many as progress.

I'm not so sure. Is it really progress for one more politically influential private party to be able to use the government's power of eminent domain to take another less politically connected individual's property?

KYL: And this is constitutional so long as the government anticipates increased tax revenues? I don't think this precedent represents an advance of either progress or freedom, in other words.

In 1975, the court issued an important decision giving public school students the right to hearing before they're suspended for disciplinary reasons. And the net effect of these decisions, as many school administrators and teachers have told me, has been to make school discipline much harder to implement and enforce.

The procedures, for example, for removing a disruptive student from the classroom have become sufficiently involved that in many cases the school simply doesn't do it. The student remains in class and the other students' learning suffers.

The writer, David Frum, has described this line of Supreme Court decisions as the bad king's Magna Carta.

Well, many older teachers, in particular, can describe the decline in school discipline and order that followed from these decisions.

And so I'm not sure that even though many would subscribe to the decision of the court, that it really represents an advance of freedom or progress, especially if most children are less free in their school environment.

In 2003, the Supreme Court issued a decision that effectively prevents the government from outlawing child pornography if that pornography is made with computer-generated images of children.

The effect of these decisions is that a whole class of child pornography effectively can't be prohibited. Many of those who work in the criminal justice system, particularly those familiar with sex offenders and their mindset, have expressed grave concern about the decision. They believe that the existence and availability of this kind of pornography can affect the behavior of certain sex offenders, that it sends a message that their impulses are not shameful but, rather, that they're shared by others and can be indulged.

Again, I have no doubt that some view this decision as an advance of freedom. And, again, I would disagree. A world where these types of crimes occur with frequency is a world where parents are constantly afraid for their children, afraid to let them play outside alone, to go outside of their sight, even afraid to let them go on the Internet.

KYL: And I don't see this as an advance of freedom.

The conclusion that I have -- and there are other decisions we could point to as well -- but what I have come to conclude is that it is not your function as a judge to decide how best to advance progress and freedom; that these are decisions that all Americans need to be involved in making -- sometimes through their elected representatives; that the formula for creating progress and freedom in society is not predetermined, but rather, both of these values require a balance of competing values.

Society needs order and stability on the one hand; individual autonomy on the other.

That there are few absolutes.

So really the question here is how you view your role as a judge, with respect to this concept of advancing freedom and progress, especially since you cannot, for the most part, choose what cases come before you to decide.

What is your take on your role, if you were to become the chief justice of the United States Supreme Court, in considering this notion of advancing freedom and progress through your decision-making?

ROBERTS: Well, Senator, judges and justices do have a side in these disputes. They need to be on the side of the Constitution. And, in most of the areas, what the Constitution provides is that these sorts of policy debates -- which approach is better suited to promote freedom or to promote progress -- are vested in the legislative branch.

There are areas where the Constitution sets aside certain areas, in the Bill of Rights and other protections of liberty, and says that these areas are beyond the reach of the policymaking branches.

ROBERTS: And judges and justices have the responsibility to enforce those provisions in the Constitution.

But outside of that, judges and justices should not take sides in these disputes.

I think people on both sides need to know that if they go to the Supreme Court, that they're going to be on a level playing field, that the judge is going to interpret the law, that the judge is going to apply the Constitution and not take sides in their dispute.

That's what this body is for in Congress and in the state legislatures, to resolve those types of policy disputes.

And so long as the resolution is consistent with the Constitution, that's what the judges are there to ensure. And so long as they ensure that, the framers' notion was that freedom and progress would be advanced by allowing those decisions to be made by the people's elected representatives.

KYL: I appreciate that.

You said in response to another question, you used the phrase "as applied."

Now, most of the lawyers appreciate what you meant by that.

But I wonder if you could elucidate, particularly for those who are not learned in the law, what the difference is between dealing with a case, an issue of constitutionality, per se, or in an as- applied context; and how it is possible, for example, in case number one, to uphold the constitutionality of the law on its face, for example, and yet in case number two, it comes down a few years later to declare that in that situation, the statute is unconstitutional as it's applied to the facts of that case.

How can that be?

ROBERTS: Well, the distinction is a basic one in constitutional law.

If you have a facial challenge to a law, as we call it, or a per se challenge might be another way to put it, you're basically saying the law is unconstitutional without regard to the facts of the case, without regard to the record.

Whatever the application might be, whoever the parties challenging it might be, there's something about the law so fundamentally flawed that it's unconstitutional however it's going to be applied.

That's a fairly narrow category of cases.

The other category is so-called as applied challenge.

You have a law that you know is not facially unconstitutional, but it may be applied in an unconstitutional manner.

An easy example -- you have a normal statute that's perfectly constitutional. If it's applied in a discriminatory manner, it may be unconstitutional as applied in that case.

If it can be applied in a constitutional matter, so long as the facts are a certain way and if the facts turn out in the record not to meet those requirements, then it can be unconstitutional as applied.

ROBERTS: And in those situations, you do need to know what the record is, you do need to know what the facts are, because the challenge might be this law might be fine for other cases but when you apply it to this case, when you apply it to this record or these facts, then it's unconstitutional.

So a statute that is constitutional on its face can always be applied in an unconstitutional way and so you can't give a categorical determination that there's no way in which that statute could ever be unconstitutionally applied.

KYL: And this is another reason why when you're asked, well, would you agree that a certain decision is a good decision and should be maintained as part of our jurisprudence and so on, in addition to not wanting to give a hint as to how you might rule on a case, to some extent it's impossible to say because you don't have the facts of the case before you and the facts of case A could cause you to render a different decision than the facts of case B.

ROBERTS: Well, that's right. And particular precedents, obviously, could be applied to variations on the fact situation that gave rise to that precedent. And sometimes those facts lead to a different result, sometimes those facts don't and it makes sense to continue to apply it in a particular manner.

But, again -- and I think most judges are of this view -- that the facts are a critical part of the resolution of any dispute.

KYL: I know perhaps to non-lawyers this can cause frustration: "Well just tell me one way or the other."

But judges have got to be fair to make sure that they don't treat all cases as the same, because the fact differences could make the difference between your ruling one way or another in a case. And every litigant probably feels that their case is a little bit unique. Judges need to think about that and certainly need to be willing to consider that this person's case might be unique and, therefore, it has to be looked at in a way different than a similar, but perhaps not identical case.

ROBERTS: Well, of course, that's a lot of how the law develops. And it's lawyers arguing in court, a lot of what -- or I used to spend my time doing was saying, "This precedent doesn't apply. And the reason it doesn't apply is because these facts are different, and so you should reach a different result," or arguing that, "This precedent does apply even though these facts are different. The reasoning still covers that situation."

And then that leads to the next case and so on.

KYL: And it's that sort of gradual development of the law that helps shape the rule of law.

Now, you've seen that each one of us have a couple of soapboxes that we like to mount. And after about five minutes of our opinion, then we ask you a question.

I've got one of those for you, something that's been bugging me. There's been a lot of discussion about the Supreme Court's reliance, or even reference to, foreign law to determine the meaning of the United States Constitution. I just wanted to note a couple of the cases in which this was done recently.

A case this year, Roper v. Simmons, in which the Supreme Court reversed a prior precedent and decided that it would be unconstitutional to execute a man who was 17 at the time that he brutally murdered a woman by throwing her off of a bridge.

In deciding the case, the Supreme Court not only, in my view, engaged in questionable analysis of American law, it spent perhaps 20 percent of its legal analysis discussing the laws of Great Britain, Saudi Arabia, Yemen, Iran, Pakistan, Nigeria and China.

The court claimed that we ought not to, "stand alone on this issue" and that we should pay attention to what other nations do when we interpret our Constitution.

And in 1999, Justice Breyer argued that the court should consider whether a long delay in executing an convicted murderer, a delay, by the way, caused by his repeated and arguably frivolous appeals, should be deemed cruel and unusual under the Eighth Amendment. And he relied on the legal opinion of courts in Zimbabwe, India, Jamaica and Canada.

The trend, if it is to become one, is greatly troubling to me and to many of my colleagues. Our Constitution was drafted by the nation's founders, ratified by the states and amended repeatedly through our constitutional processes that involve both federal and state legislators.

KYL: It's an American Constitution, not a European or an African or an Asian one. And its meaning, it seems to me, by definition, cannot be determined by reference to foreign law.

I also think it would put us on a dangerous path by trying to pick and choose among those foreign laws that we liked or didn't like.

For example, many nations have a weak protection for freedom to participate in or practice one's religion. Iran and some other Middle Eastern nations come immediately to mind.

But even a modern Western nation like France has placed restrictions on religious symbols in the public square. That would be highly unlikely to pass muster in U.S. courts.

Should we look to France to tell us what the free exercise clause means, for example?

Even nations that share our common law tradition such as Great Britain offer fewer civil liberty guarantees than we do. And the press has far less freedom.

Nations such as Canada have allowed their judges to craft a constitutional right to homosexual marriage. There's a lot more to say on the subject.

But I wanted to hear from you.

So my question is this: What, if anything, is the proper role of foreign law in U.S. Supreme Court decisions? And, of course, we're not talking about interpreting treaties or foreign contracts of that sort, but cases such as those that would involve interpretations of the U.S. Constitution.

ROBERTS: Well, I don't want to comment on any particular case but I think I can speak more generally about the approach. I know Justices Scalia and Breyer had a little debate about it themselves here in town that was very illuminating to get both of their views.

And I would say, as a general matter, that there are a couple of things that cause concern on my part about the use of foreign law as precedent. As you say, this isn't about interpreting treaties or foreign contracts but as precedent on the meaning of American law.

The first has to do with democratic theory. Judicial decisions: In this country, judges, of course, are not accountable to the people, but we are appointed through a process that allows for participation of the electorate.

The president who nominates judges is obviously accountable to the people. Senators who confirm judges are accountable to people. And in that way, the role of the judge is consistent with the democratic theory.

ROBERTS: If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country.

I think that's a concern that has to be addressed.

The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does.

Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever.

As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there.

And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution.

And I think that's a misuse of precedent, not a correct use of precedent.

KYL: I appreciate that. We have precious little time to discuss your personal career and views. And I want to take a couple of minutes to give you an opportunity to talk to us about a couple of things.

I see by the record that you've represented at least one death row inmate on a pro bono basis. And I would love to hear just about how you took that case and how you dealt with that case.

ROBERTS: Well, I don't want to overly expand my role. It was consistent with what I've done in other cases.

There was a particular appellate issue that arose. The firm had been representing the inmate for sometime. One of the senior leading partners at the firm, Barrett Prettyman, had been heavily involved in his case for many years.

ROBERTS: A particular appellate issue came up and I was asked to get involved and I was happy to do that and assist in that way. Again, it was kind of consistent with the general approach. It was in an area in which I had some experience and was happy to pitch in and help in that area.

KYL: There's a story, it may be apocryphal. If so, you can disabuse us of it now. But is it really true that you were required to argue a case before the Supreme Court on two day's notice and on that same day argued a case in the District of Columbia Circuit Court? Or is that not a correct story?

ROBERTS: No, that's the way it happened. I was scheduled to argue in the D.C. Circuit, and what happened is, the Friday before the Monday argument the clerk of the court called. We had a new lawyer who was not yet a member of the Supreme Court bar in the office, and I think we considered it kind of a pro forma matter.

We were moving his admission pro hoc vice so he could argue that day. And I think this was the Supreme Court's way of telling us that they didn't consider it a pro forma matter.

So we got notified the Friday night before the Monday argument that they were not going to grant the pro hoc motion, which is, of course, to let him argue the case even though he wasn't a member of the bar, and it fell to me to pick up that case, to be prepared to argue it Monday morning. Then in the afternoon I went and did the argument in the D.C. Circuit, which had been previously scheduled.

KYL: How'd you do in the two cases?

ROBERTS: Well, the court got it right in each case.

(LAUGHTER)

KYL: Enough said.

You know, another thing that fascinated me in clerking for two of the most incredible jurists in United States history, Judge Friendly and Justice Rehnquist, I was going to ask you privately, but I just have to ask you, and perhaps it'd be illuminating for folks, particularly law students: What did you learn from those two very erudite men?

ROBERTS: Well, I think, different things. You pick up different things.

ROBERTS: With Judge Friendly, it was -- he had such a total commitment to excellence in his craft, at every stage of the process. Just a total devotion to the rule of law and the confidence that if you just worked hard enough at it, you'd come up with the right answers.

And it was his devotion to the rule of law that he took the most pleasure in. He liked the fact that the editorialists of the day couldn't decide whether he was a liberal or a conservative. And he would be chastised for the same opinion, depending on which paper had read it, as either "that conservative judge" or "that liberal judge." And because he wasn't adhering to a political ideology, he was adhering to the rule of law.

And his devotion to it went to the extent -- and I know other of his clerks had the same experience. I do remember one time where he was -- signed the opinion and he kept writing it and writing it, and he finally decided it was not right. And so he wrote a dissent and he circulated the best majority he could come up with and said, "I don't agree with it, here's my dissent."

And, of course, as you might imagine, the other two judges were persuaded by his dissent and it came out that way.

That sort of open-mindedness at every stage, the appreciation that it may not be the argument, it may not be the briefs. It may be down to the actual writing that reveals what he thinks the right answer is.

And also, he did have an essential humility about him. He was an absolute genius; I mean, there's no doubt about it.

Certainly, whatever he was reviewing -- the decision of an agency, the decision of a legislature -- the notion of saying, "We defer to them because it's their responsibility," I think everybody would have agreed, we'd have a better result if we just let him make the decision regardless of what it was.

But he had the essential humility to appreciate that he was a judge and that this decision should be made by this agency or this decision by that legislature.

And when you read his opinions, he doesn't just, sort of, knock the pieces off the board. He marches through in a very careful way to let you know exactly how he reached the decision; why he went this way; if there was a difference among the precedents, why he chose this one; if there was a question of who has the responsibility, why he went that way.

ROBERTS: And it lays it all out in such a way that you can understand the result.

And to this day, lawyers will say, when they get into an area of the law and they pick up one of his opinions, that you can look at it and it's like having a guide to the whole area of the law.

With then-Justice Rehnquist, who I clerked for the next year, I do remember doing a draft for him once and coming in. And he had thought it was, sort of, the first topic sentence of each paragraph was good and the rest of it could be junked.

And, you know, I pushed back a little bit as I thought, I hoped, was appropriate, and he said at that point -- he said, "Well, I tell you what, why don't we put all this other stuff down in footnotes and just keep, sort of, the first sentence of each paragraph. Put the rest down in footnotes." I figured, well, that was a fair compromise.

So I go back and rework it and hand it to him with some pride, and he looks at it and he says, "Well, all right, now take out the footnotes."

(LAUGHTER)

So one thing I learned from him was, I hope, to try to write crisply and efficiently; that a lot of extra stuff could be dispensed with.

And so many people mentioned during his eulogies and at the, sort of, gathering of the clerks his general approach to the balance between work and family life. I think that was a very important lesson to learn at an early age.

KYL: Judge, thank you. I think that tells us not only something about you as a person, about your style of judging, but probably some good lessons for all of us.

So than you very much.

SPECTER: Thank you, Senator Kyl.

Senator Kohl?

KOHL: Thank you, Mr. Chairman.

Judge Roberts, yesterday you described your role as a judge as just an umpire, as you called it, calling balls and strikes. And that's an interesting analogy for me, as I have, more than most, some personal experience with umpires and referees.

KYL: But as all of us with any involvement in sports knows, no two umpires or no two referees have the same strike zone or call the same kind of a basketball game. And ballplayers and basketball players understand that depending upon who the umpire is and who the referee is, the game can be called entirely differently.

When we look at real legal cases, I wonder whether or not your analogy works. For example, in our private conversation, I asked you whether the words of the Constitution must always be interpreted in the same way as the authors originally intended.

For example, the Fourteenth Amendment which guarantees equal protection under the laws to all citizens, was written at a time when schools were in fact segregated based on race.

And yet, in Brown v. Board of Education, the equal protection clause was interpreted to find segregated schools unconstitutional. And you, of course, have endorsed that decision.

No one disagrees with that conclusion today, but would a neutral umpire, as you described yourself yesterday, have decided back in 1954 to expand the words of the Constitution outside of the strike zone? Would a neutral umpire have overturned a 58-year-old Supreme Court precedent and gone against the understanding of the authors of the Fourteenth Amendment and also the views of almost half of the state legislatures at that time in making the decision that they made?

ROBERTS: Well, Senator, I think the answer to your question is yes. The research into the original understanding of the drafters of the Fourteenth Amendment has expanded and changed quite a bit. And I think a very good case can be made about their views.

But more importantly, the issue was the institution of public education wasn't as established at the time as it was in 1954 at the time of the crafting of the amendment.

And the framers spoke in broad language. And whether they specifically addressed the question of public education or not isn't the limitation. Their intent was not limited to the particular problem.

ROBERTS: They chose broad language and they should be held to their word. And I think it is perfectly consistent with an original understanding to argue and to conclude that their original understanding meant that segregated schools were unconstitutional -- not just in 1954, but at the time they enacted the amendment.

I think a strong case can be made there. And what was interesting about the Brown case -- maybe it's my own perspective -- but if you look at the arguments in that case, yes, John W. Davis arguing for the Board was arguing on the basis of precedent in Plessy v. Ferguson, saying this is the established law, but so is Thurgood Marshall.

He went in and he was arguing on the basis of more recent precedent, Sweatt v. Painter, a more recent decision of the court about law school, separate but equal. And he was saying: You need to build on that more recent precedent in addressing this case.

So the court was not changing the strike zone. That wasn't the way Marshall presented his argument. And it wasn't necessary for them to say, "We're changing the rules of the game."

What was necessary for them to do -- and what Marshall was urging them to do -- was to get it right when they had gotten it wrong in Plessy.

KOHL: Judge, back in 1954, clearly the Supreme Court justices were willing to step outside the box, to break new ground, to do something that no one, no court, no legislature, no president had done before and strike out in an entirely new and positive direction for this country.

They were not umpires simply calling balls and strikes. They were breaking new ground. And they did so in the best interests of our country, didn't they?

ROBERTS: Of course it was a dramatic shift. And the overruling of Plessy v. Ferguson was exactly that.

ROBERTS: My point is simply that, if you look at the Brown decision, it is more consistent with the Fourteenth Amendment and the original understanding of the Fourteenth Amendment than Plessy v. Ferguson. And it's based on the conclusion that the separation of the races in the schools was itself a violation of equal protection. In other words, it's not a departure from the Fourteenth Amendment, it was a departure from...

KOHL: But it was groundbreaking.

ROBERTS: Certainly.

KOHL: One more observation, Judge, about your analogy of the judge as an umpire, neutral umpire. You're 50 years old, you bring great life experience to the bench, Judge, and don't you and all judges bring their own life experiences, their philosophies to the bench in deciding cases. Or would you have us believe -- and if not you can correct that -- that judges merely operate as automatons?

ROBERTS: Not automatons, no, Senator. I appreciate that, that judges don't. And of course we all bring our life experiences to the bench.

But I will say this, that the ideal in the American justice system is epitomized by the fact that judges, justices do wear the black robes, and that is meant to symbolize the fact that they're not individuals promoting their own particular views, but they are supposed to be doing their best to interpret the law, to interpret the Constitution according to the rule of law, not their own preferences, not their own personal beliefs. That's the ideal.

KOHL: And isn't it also true that to a large extent the greatest men in our history -- judicial, executive, legislative -- have been men and women with both great minds and great hearts?

ROBERTS: Absolutely.

KOHL: Judge, in the aftermath of Hurricane Katrina, we all saw that those who suffered the most were those who had not been able to take advantage of the great opportunities that our great country has to offer. As we found out, those without employment opportunities and educational opportunities simply did not have the means to escape the storm and the flooding.

KOHL: As you seek to become the head of the judicial branch, as you seek the position of chief justice of the United States of America, what role would you play in making right the wrongs revealed by Katrina? And what role do you and the judicial branch play in making sure that we as a nation keep on moving forward toward providing equal opportunity to all Americans?

ROBERTS: The last part of your question, Senator, is of course really what's carved on the entrance to the Supreme Court, equal justice under law. That is the commitment physically embodied in the Supreme Court, and it's the commitment in the Constitution.

And I think the most important thing the Supreme Court can do, and the judicial branch can do, is to uphold the rule of law.

That is the -- I tried to point this out in my statement yesterday.

That is the key to making all the rights that are in the Constitution, all the rights that legislators may confer on citizens, that's the key to making them meaningful.

The difference between our system and our Constitution and the Soviet constitution that President Reagan used to talk about -- it has wonderful rights in it, too; it didn't mean a thing because there was not an independent Supreme Court, an independent judiciary to support the rights.

We do have that, and that's the reason that we have been able to make progress in the area of rights and not had just empty paper promises.

So to the extent you are talking about the injustices in society and the discrimination in society, the best thing the courts can do is enforce the rule of law and provide a level playing field for people to come in and vindicate their rights and enforce the rule of law.

KOHL: In spite of all of our laws and all of our rules, we still saw what happened down in New Orleans. And the people who were left behind were people who had not had educational or employment opportunities.

And the question I asked was whether you, as a person who aspires to be the chief justice of the United States, sees a particular role other than continuing the role that you observe we are following now, particular role for improving our ability to respond to the needs of those people who live under those circumstances?

ROBERTS: Well, the courts are, of course, passive institutions. We hear cases that are brought before us. We don't go out and bring cases. We don't have the constitutional authority to execute the law. We don't have the constitutional authority to make the law.

Our obligation is to decide the cases that are presented. Now I'm confident, just in the nature of things, that there will be cases presented arising out of that horrible disaster, of all sorts. And many of those will be federal cases, I'm sure. Others will be in the state courts.

And again, the obligation of the federal judiciary and the state judiciary is to make sure they provide a place where people can have their claims, their litigation decided fairly and efficiently, according to the rule of law.

That's the appropriate role for the judicial branch.

KOHL: All right. Judge, do you believe that reasonable people can disagree on Roe v. Wade? Regardless of what you think of the decision, do you believe that there is an intellectually honest approach on the other side that is worth respecting?

ROBERTS: I certainly agree that reasonable people can disagree about that decision. Yes.

KOHL: And you do, obviously, respect people on the other side of the issue?

ROBERTS: Yes.

KOHL: In Rust v. Sullivan, as deputy solicitor general, you signed brief in which you wrote, and I quote, "The court's conclusions in Roe that there is a fundamental right to an abortion and that government has no compelling interest in protecting prenatal human life throughout pregnancy find no support in the text, structure or history of the Constitution," unquote.

So does this quote jibe with your statement that you understand that reasonable people can disagree?

ROBERTS: Well, I think so, Senator. The position that you're reading from there was the position of the administration. I was one of nine lawyers on the brief in that case. It was reflecting the position that had been advanced in four prior cases, up to that point, by the administration.

ROBERTS: And we were reiterating that position. This was before the Supreme Court issued its decision in Casey. That was the view of the administration and the conclusion.

I don't think there's anything in there that suggests we think or thought that anybody at that time who disagreed was unreasonable. That was our legal position. The other side's was obviously presented in those cases.

KOHL: So you are saying here that there is no support in the text, structure or history of the Constitution for that position. That's pretty flat out, pretty straight, pretty black and white.

ROBERTS: And in those cases, the other side argued that there was. And I don't think there's anything in either of those views that suggests you don't think that reasonable people can take different positions on those questions.

KOHL: You have today suggested on numerous occasions that the things that you represented in writing or an opinion back in the '80s and into the '90's, working for the Reagan administration and working for the attorney general and then finally working as deputy solicitor attorney general, were, in many cases, the opinions of people for whom you worked, not necessarily your own.

I assume, therefore, there are -- those are opinions that you are prepared to disavow?

ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.

KOHL: I appreciate that. And now that we are talking about you in an entirely different situation, of course, our curiosity is: Which of those positions were you supportive of or are you still supportive of and which would you disavow?

ROBERTS: Well, at this point, of course, we're now 23, 24 years later. I would not -- I would have to address each of those positions anew. I wouldn't try to transport myself back 24 years and say: What did you think 24 years ago? And that would require me to look at and examine all those things.

And of course, it's not how I would look at the issue if I were a judge. If I were a staff lawyer advancing a particular view, it's one thing. And a judge, I would want to confront the issue with an open mind, to fully and fairly consider the briefs and arguments of all parties, to consider the record -- we've talked today about how important a record is in a particular case -- consider the law and the precedent.

But, of course, the law and the precedents have changed in many of these areas dramatically over the past 24 years.

ROBERTS: I'd have to consider all those before reaching a conclusion in any of those particular areas.

KOHL: It would be helpful to many of us to know which of those positions you took then no longer represent the position that you would take today. I think that would show a change as we grow and develop and experience life. That would be illuminating and enlightening, to many of us, to hear what some of those positions you took then no longer are represented in your thought process today.

Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception.

Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?

ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.

KOHL: Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.

These scholars reason that it follows logically that, if a woman's right to privacy and her control of her body includes the right to contraception, that it also includes a woman's right to choose to terminate her pregnancy.

I am not sure whether you wish to comment on that. I just wanted to point out to you something that I'm sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe.

ROBERTS: Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people.

The other area is an area that is, to quote Justice Ginsburg from her hearings, "live with business." There are cases that arise there.

And so that's an area that I do not feel it appropriate for me to comment on.

KOHL: Sure. I appreciate that.

Judge, as we all know, you were originally nominated to replace the first woman ever to sit on the Supreme Court, Sandra Day O'Connor. There was a lot of speculation when she announced her requirement that the president might choose a woman to replace her. And she even suggested a little disappointment, not with you, but with the fact that a woman was not chosen.

KOHL: Had the president told you that the selection was down to you and an equally qualified woman for the post, but that he thought a woman was needed, would you have seen that as a reasonable conclusion on his part?

ROBERTS: I certainly think presidents have and will consider a broad range of issues and characteristics and qualifications in selecting their nominees, and that's certainly one for a president to consider.

KOHL: All things being equal, in terms of qualifications, would you be pleased if the president chose a woman to replace Sandra Day O'Connor?

ROBERTS: The upcoming vacancy?

KOHL: Yes.

(LAUGHTER)

ROBERTS: I just wanted to make clear we weren't talking about this one.

(LAUGHTER)

I don't think it's appropriate for me to comment in any way about the president's future selections other than to say that I'm happy with his past ones.

(LAUGHTER)

KOHL: You're not an automaton.

(LAUGHTER)

Judge Roberts, in an October 3, 1983, memo you wrote that while you served as associate White House counsel for the Reagan administration, you expressed support for judicial term limits. You did specifically support the idea of limiting judicial terms to 15 years and you said, I quote, "to ensure that federal judges would not lose all touch with reality through decades of ivory tower existence," unquote.

And do you still support in theory the idea of judicial term limits?

ROBERTS: You know, that would be one of those memos that I no longer agree with, Senator.

(LAUGHTER)

I didn't fully appreciate what was involved in the confirmation process when I wrote that.

(LAUGHTER)

You know, the sentiments that were expressed there I think are certainly something that's worth discussing.

Perhaps my basic point was when the framers established the system of life tenure, people didn't live as long as they do now.

You know, I do think there are concerns, though, that I may be a little bit more sensitive to now than I was then, and they have to do with sort of a definite cut-off point.

I am not sure that's healthy for the institution of the judiciary, for people to know, for example, well, it's sort of like as you say, term limits; that if we wait another year, this judge will be gone or that justice will be gone.

I'm not sure today, from where I sit, that that is a good or healthy thing for the judiciary.

KOHL: So you do not support term limits anymore?

ROBERTS: I have to say I do not, because I do think that that restriction at the end, so litigants could look and shape their litigation in light of who they think the judges or justices might be, I think that's not a healthy development.

I would note that, if I'm remembering the memo correctly, I think it was a proposed constitutional amendment, which I'm not sure, but I think that obviously is a policy choice that the Constitution allows to be pursued through that process.

KOHL: All right.

Judge, as you know, confronted with a legal problem, most American families, unlike wealthy families and very large businesses, lack the resources to hire the largest and most preeminent law firms to do their bidding.

And do you agree that for our nation's working people securing civil justice is often rendered substantially much more difficult because it simply does cost too much?

Do you have suggestions for addressing this issue?

Do you worry that captivating national events, such as the O.J. Simpson and Michael Jackson trials, reinforce the view that in this country justice can be for sale and available to those who can afford it?

ROBERTS: You know, I do think that the availability of legal services is not as broad and widespread as it should be. There are so many things and areas where I think lawyers could make a valuable contribution, but it's too expensive.

There are a number of responses that I think the bar should be taking. Obviously, for those at the lowest end of the income scale, I think there's an obligation to provide pro bono legal services. I think the big firms, little firms, medium firms, everybody needs to get involved in that.

There's not enough appreciation about how you can do that. For example, everybody thinks in terms of bringing a big case, litigation.

ROBERTS: You know, lawyers who do estate work can provide extremely valuable pro bono services. Lawyers who do tax work can provide extremely valuable pro bono services. The whole range of services -- corporate work. I know lawyers in my old firm would do a lot of pro bono services helping set up nonprofit organizations, ensuring that they're complying with the law.

People need to be a little more creative in the ways in which they can help. I regard that as an obligation of the bar.

And I do think that in fact in many cases the situation you get is the people at the lowest end have access to pro bono services. People at the highest end can pay. And it's the people in the middle who are left without legal services that could be extremely valuable. And I do think the bar needs to do more. I think firms need to do more. Individual lawyers need to do more.

KOHL: Judge Roberts, as you know, over the last two decades or so, there have been several bills introduced in Congress to strip the Supreme Court and all other federal courts of their jurisdiction over many issues. These bills are generally sponsored by people who are unhappy with various court decisions, including decisions on things like school prayer, remedies for school desegregation and even a woman's right to choose.

While you served in the Justice Department and in the White House Counsel's Office in the Reagan administration in the 1980s, you did state that you believed that bills stripping the court's jurisdiction were constitutionally permissible.

Do you still hold this view? Do you think it is the right way for us to go, to allow legislatures to strip your authority to review cases?

ROBERTS: I know the memos to which you are referring make the point -- answer to your second question -- I said that they were a bad idea. They were a bad policy. I had been asked earlier when I was -- back in 1981, I believe, when I was working in the attorney general's office, to present to him an affirmative case for the proposition that the proposals were constitutional.

He was getting an opinion that they were unconstitutional. He had to make that decision for the department's position. He wanted me to argue the other side. And I did. I prepared a memorandum presenting the best argument I could that these proposals were constitutional.

ROBERTS: The two memos to which you refer in the White House, where I suggested I thought they were, suggest that my memo persuaded me, if nobody else. The attorney general adopted, instead, the contrary position. And I think my views may have had something to do with the proximity to my own advocacy at the time.

As I say, I did say they were a bad policy. The reason I thought they were a bad policy is because they lead to a situation where there's arguable inconsistency and disuniformity in federal law.

If you don't have the Supreme Court with jurisdiction to address that, then you get different decisions and that was a -- that's bad policy.

If I were to look at the question today, to be honest with you, I don't know where I would come out. I think one of the questions I would have is whether these concerns I had that I labeled as policy concerns might more appropriately be considered legal arguments; in other words, not a policy dispute, but a legal argument.

That's the way the opinion of the Office of Legal Counsel that the attorney general agreed with viewed it. They said these -- the fact of disuniformity and inconsistency is a legal argument against the constitutionality. It's not simply a bad policy decision.

And I'm not sure where I would regard that determination today.

KOHL: Really?

Are you saying that you're not sure where you would come out if you were faced with the decision to go along with or to fight legislative attempts to take away the court's authority?

ROBERTS: Well, I don't think -- on the question of legislative attempts, I think my view is the same now as it was 24 years ago, which is that these are -- it's a bad idea. It's bad policy.

I was talking about the other question about whether it's constitutional or not. And on that, of course, I don't think I should express a determinative view because, as you know, these proposals do come up and one may be enacted.

And if that is the case, then I'd have to address that question on the court. It could be on the court I'm on now or another court.

KOHL: So in that case -- or in this case -- your heart might tell you that it's a bad idea; your mind might tell you it's constitutional?

ROBERTS: Well, I don't know what my mind would tell me.

KOHL: I mean, theoretically...

ROBERTS: But I feel comfortable with the conclusion, as I was 24 years ago, that it's a bad idea.

KOHL: All right.

ROBERTS: They're bad policy.

KOHL: Judge, since your nomination, literally -- as you know -- tens of thousands of pages of your writings as a young White House aide have been released and looked at very carefully.

In some of these writings, you took very pointed positions, as we discussed -- some political, some constitutional and some that have raised eyebrows.

I also think about myself when I was in my 20s and then when I was at the age which you are now and who I have become today and how I have changed, matured, and hopefully grown as I have gotten older.

I'm sure when you've had a chance to review some of your old work as part of this process, that there are things that you wrote back then that make you cringe perhaps today.

Are there positions you took back then as a 20-something lawyer that you would not take today?

Can you give us a couple of examples of positions that you took then that, as you have grown and developed and as are now sitting before us to be the chief justice of the United States of America, that you are today not the person that you were back when you were at 20-something?

ROBERTS: Well, we've talked about the term limits for judges. More generally, as I look at all of these documents -- and the numbers, somebody said 80,000 pages; it's a little daunting -- I don't know that there are particular issues. I mean, you have to remember this is 23, 22, 24 years ago.

In many of these cases, not only have I changed, the law has changed dramatically in more than two decades. You know, I'm sure -- and again, of the many that have been released, I will say that it's really only a handful that have attracted attention for one reason or another.

And I do think if you look at the whole body of work that I would hope people would leave that with a favorable impression.

Certainly, there are many areas where it appears that I knew a lot more when I was 25 than I think I know now when I'm 50. I had a lot of different experiences in the intervening period that give you valuable perspective.

In that intervening period, for example, I left the government, went out in the private sector, litigated a lot of cases against the government.

You do get a different view of things when you're on the other side. I think that's extremely valuable.

I hope, as you suggest, I've grown as a person over that period as well. And that also gives you some perspective. And that type of a perspective might cause somebody to moderate their tone with respect to some issues, and in some areas, and I'm sure that's the case.

I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers.

KOHL: I thank you, Judge Roberts.

Thank you, Mr. Chairman.

Back to Part II of Sept. 13 transcript. Go to Part IV of Sept. 13 transcript (Sens. Dewine and Feinstein).

Courtesy Morningside Parnters/FDCH.


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