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Transcript: Day Two of the Roberts Confirmation Hearings
(Part IV: Sens. Dewine and Feinstein)

Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005 6:18 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 IV

The transcript picks up with Sen. Dewine's questioning (back to Part III).

SPECTER: Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

Judge, good afternoon.

ROBERTS: Good afternoon.

DEWINE: I guess the good news is that I represent halfway point.

SPECTER: On the first round.

DEWINE: The bad news is, it's the first round.

(LAUGHTER)

Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.

Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.

As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.

And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.

So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.

But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in.

DEWINE: Because really it is a question of the utmost national security. These are people who are going to make sometimes life and death decisions for our country.

ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.

I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.

I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.

This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.

I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.

Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.

DEWINE: I appreciate your personal attention to that. I know how important you know it is, Judge.

And I would just add one more comment, that that court, as all courts do, but even more so, not only makes decisions, not only decides whether to issue the warrant or not, but it's the feedback that the Justice Department gets and the law enforcement agencies get that tells them what they can do and can't do. And that feedback is unbelievably important and it affects the intelligence operations in this country and is just vitally, vitally important.

DEWINE: Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.

In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.

At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question.

The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. CIO, a 1939 case which you are well familiar with.

I want to quote it very briefly: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembling, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has from ancient times been a part of the privileges, immunities, rights and liberties of citizens," end of quote.

Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.

In a recent case, a Wisconsin woman was kicked off a city bus. And this is what she was kicked off a city bus for doing: She was trying to distribute a book containing Bible stories to individuals sitting next to her.

Another case that's repeated time and time again across this country and has been for many years in towns and cities, villages across the country: Individuals are prohibited from placing political signs -- and it could be not just for candidates; it could be for school levy, against the school levy -- on their own property, on their own property, except during specified times and specified ways.

Government tells them, so many days before the election: You can't put that up there until so many days before the election -- not just for candidates but for bond issues, whatever the issue that they want to talk about through their own political speech, on their own property.

DEWINE: Another example: People who wish to exercise free speech in many public places -- these individuals are forced into so- called free speech zones, which many times are far away from the event that they wish to protest about; so far away that that they can't ever be seen or ever be heard -- out of sight.

Again we go back to the issue of you have to be heard.

In one recent case, the New York City Housing Authority refused to let a woman conduct Bible studies in a community center of a housing project, even though the community center was used for a host of activities, even weddings.

I must say, in that case, she actually won the case.

So I'm concerned when I see these restrictions. I think at the core of the First Amendment is the idea that individuals should be able to speak and be heard in public places.

Judge, I know you can't tell us how you'll decide any particular case; I'm not asking you to do that. But it is important to me that you talk to us a little bit about how you will evaluate these cases involving the right to speak in public places -- public places such as buses, metro stations, city sidewalks, public parks -- and tell us, if you could, Judge, what factors will you consider when deciding restrictions on speech in the public square as we traditionally know it.

What is proper under the First Amendment? And which ones are not? What tools will we use to decide that?

ROBERTS: Well again, of course, without commenting on any of the particular hypotheticals or actual cases.

DEWINE: I'm not asking you. And they're all real cases. But I want you to talk about that.

ROBERTS: I do think, though, first as a general matter and then to get into the law, that it is important that people keep a basic principle in mind when they're addressing these types of concerns.

And it's not a provision in the Constitution.

ROBERTS: It's not a provision in the law. But it's a basic American approach that I think is important, and that's captured in the expression, you know: It's a free country.

And when you're talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it's a free country and it's a wonderful thing that people can say things in the public that you may not agree with, because you, of course, have the same right.

Now, the particular mode of analysis that the Supreme Court uses in addressing these types of public speech issues is to some extent unsettled. Public forum doctrine, as it's called, for many years, you tried to characterize an issue: Is this a public forum, is it a quasi-public forum, is it a private forum?

And the definition sort of carried with it the conclusion about what could be allowed. And many of the justices thought that the reasoning was awfully circular.

I remember, years ago, I argued one of the cases in the Supreme Court about post office and what could be done in a post office area and whether the restriction of that area to postal business meant they could exclude people who wanted to engage in political speech. And I remember thinking at the time that the precedents were very unsettled.

And I'm not sure that the court has made much progress since then.

But you do try to focus a little bit on whether you are dealing with a public forum, one that has traditionally been open to expression, and if it has, then any restrictions on expression are going to be subject to a very exacting standard before they'll be upheld.

If it's a more limited public forum, it's only been open for certain types of speech, or the nature of the forum requires there to be a restriction -- that was the government's argument in the post office case I litigated -- then it's a less-demanding standard in those situations.

DEWINE: Let me just follow up that with a short question, if you can give me just a reaction to this, if I could.

Do you think the First Amendment is flexible enough in the year 2005 to account for what I believe, at least, is the shrinking public square?

DEWINE: Now, I know we have the Internet, we have TV, we have radio; a lot of things that we didn't have when our founders wrote the Constitution. But I think there is a shrinking public square.

What do I mean by this? Someone who wants to run for school board today, someone who wants to support a school levy, oppose a school levy -- when you and I were growing up -- you are younger than I am, but when we were growing up in the Midwest, you could go downtown -- if you supported a school levy, let's say, you could go downtown and pass out literature in front of the hardware store or the grocery store. And that was a public place, because there was a sidewalk. And you knew everybody in town was probably going to go by there.

If you lived in a city, there were communities in the city where you could do the same thing.

Today, most people -- we just don't live that way. Most people don't. Some do, but most don't.

Today people get in their car and they go to the grocery store. They go to a strip mall, and they go to a grocery store that is surrounded all by private property, and the people who own that strip mall usually say, "You cannot come on and distribute any literature of any kind on this facility." And basically they're upheld in that right, because it's private property.

Or they go buy their clothes or everything else, their hardware, they do in a big mall, and that mall clearly -- there's a Supreme Court case right on point that says they can be excluded.

So the traditional public forum, as we know it, is really shrunk.

Does the court take that into consideration when they look at the precedents, they look at all the decisions that have been made? How does that -- without deciding any case or talking about any specifics...

ROBERTS: Well, I do know...

DEWINE: The world that we live in today.

ROBERTS: I appreciate the point. And I do know that even the analysis in this particular area, one of the factors that the court considers is the availability of alternative avenues for expression, and a concern, if they're cutting off a particular mode of expression, a particular avenue, are there alternatives available?

ROBERTS: And I think that's a very important consideration.

I think you're quite right that this one of those areas in which technology is going to figure in a very prominent way. And the question of whether this type of analysis that grew up when you are talking about a public square or town hall-type thing applies in the Internet situation and whether there's changes that do need to be made in the analysis.

DEWINE: Since you've talked about the Internet, let me turn to a disturbing trend in regards to the Internet. And that has, quite frankly, to do with pornography.

We have passed several bills in Congress -- Communications Decency Act -- to protect our children. The Supreme Court struck it down. I'm not going to ask you to comment about that.

A few years later, we passed the Child Online Protection Act, again, with the intent to protect our children. Again, the court struck it down.

Unlike the traditional public square, the Internet has really become a place for the distribution of some, I find, very troubling material, and that is pornography.

And I guess what bothers me about these cases is they failed to account for something that, to me, at least, is very relatively simple. And that is that at the core of the First Amendment is, to me, at least, the protection of political speech, speech on matters of public concern I have talked about this before.

But it seems to me that pornography is different, particularly pornography that children can easily access. It seems to me that that should be treated differently than political speech.

Famous case: Young v. American Mini Theatres. In that case, the court upheld zoning regulations on adult theaters. Justice Stevens, hardly a right-winger, had this to say, and I quote, "Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials and have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate.

"Few of us would march our sons and daughter off to war to preserve the citizens' right to see, quote, 'specified sexual activities,' end of quote, "exhibited in the theaters of our choice," end of quote.

DEWINE: Judge, in light of that question, here are my questions.

Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain's "Huck Finn"? And how would you, if confirmed to the Supreme Court, decide what protection, if any, certain kinds of expressions are entitled to under the First Amendment?

ROBERTS: Well, Senator, it's my understanding, under the Supreme Court's doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not.

That question is, sort of, antecedent to the question of what the level of protection is, to determine whether it's entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment.

There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don't think I can give a more precise answer.

DEWINE: Judge, let me turn to the area of congressional power. It's been talked about before here. I want to talk about it a little bit more. Really, this has to do with federalism cases.

As you know, the court has handed down a number of cases that have restricted the power of Congress to pass important legislation. The court has struck down portions of the Violence Against Women Act, the Americans with Disabilities Act, the Age Discrimination Employment Act and the Religious Freedom Restoration Act, just to name a few.

In some of these cases, the court restricted Congress's power under the commence clause. In some, it relied on the 11th Amendment. And in some it cited Section 5 of the 14th Amendment.

The particular provision is not that important for this discussion.

DEWINE: Let me be perfectly frank: I think there's some problems with these decisions. I think it is wrong for judges to take on the role of policy-makers.

I realize that, if a statute was blatantly unconstitutional, the judge has to do their duties. But I think -- for the reason I'm going to discuss in a minute -- that was not true in these cases. I

want to cite one example -- just because of time I only can go through one -- and that is the Garrett case: 5-4 decision, Board of Trustees v. Garrett.

As you know, this case involved a woman who said that she had been discriminated against because she was disabled. She was employed by the state of Alabama. She sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, holding that there was no evidence that the state discriminated against the disabled in employment decisions.

I think the problem with Garrett is that the court ignored findings by Congress. There were other cases that had been decided where we didn't have findings; you are familiar with those. I understand the court's decision. I might like them or not like them, but I understand them.

This case: We made findings. While we were considering the Americans with Disabilities Act, we held 13 hearings, and we set up a task force; a task force that held hearings in every state and was attended by more than 30,000 individuals.

Based on these hearings, we found 300 examples of disabled individuals being discriminated against in employment decisions. We found that two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all, even though a large majority of them were capable of doing so.

And we found that this discrimination flowed from stereotypic assumptions about the disabled as well as, quote, "purposeful unequal treatment," end of quote.

All findings by this elected Congress of the United States.

Here, however, the court said this was not enough. It rejected our fact-finding, holding that we had not pointed to any evidence that the states discriminated in employment decisions against the disabled.

DEWINE: Judge, you have stressed repeatedly in your writings and your opinions -- and I have a great deal of respect for you and appreciate these writings and opinions -- but you stress the limited role that judges must play in our system of government.

I applaud you for that approach.

It's important for me to ensure that you still hold to this belief.

In your opinion, what role should a judge play when reviewing congressional fact-findings? In your view, how much deference do congressional fact-findings deserve?

I understand you're not going to talk about this case or any of the cases I just cited. I wanted to lay that kind of as a predicate. I wanted to tell you where I'm coming from.

But just talk in general about when you see fact-findings by Congress, when we have held hearings, when we have established the record, how do you approach it, what are the tools that you use, Judge, based on the precedents and based on what you think the role of the judge is?

ROBERTS: Well, again -- and of course, without getting into the particulars, the reason that congressional fact-finding and determination is important in these cases is because the courts recognize that they can't do that.

Courts can't have, as you said -- whatever it was -- the 13 separate hearings before passing particular legislation.

Courts -- the Supreme Court can't sit and hear witness after witness after witness in a particular area and develop that kind of a record.

Courts can't make the policy judgments about what type of legislation is necessary in light of the findings that are made.

So the findings play an important role.

And I think it's correct to say under the law, in this area and others, they're neither necessary nor necessarily sufficient, but I know as a judge that they're extremely helpful when there are findings.

And judges know when they look at those that they're the result of an exhaustive process, of a sort that the court cannot duplicate.

ROBERTS: We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. So that is sort of the basis for the deference to the fact-finding that is made. It's institutional competence. The courts don't have it, but Congress does. It's constitutional authority. It's not our job. It is your job.

So the deference to congressional finds in this area has a solid basis.

Now in the particular area you are talking about, under Section 5 of the Fourteenth Amendment, the Garrett case -- there are, of course, the more recent cases that you know of, the Tennessee against Lane and the Hibbs case, Nevada against Hibbs, where the court did defer to the fact-finding in those cases, and particularly in the Hibbs case focused on the legislative recognition based on its examination of the factual record developed at hearings about the statute that was at issue there and the particular approach that they were taking to remedy discrimination under the Fourteenth Amendment, which is the authority that Congress has.

Now the legal requirement that the court has articulated there came, of course, from the City of Boerne case -- the remedial approach has to be congruent and proportional.

Justice Scalia signed on to that approach in the City of Boerne case. In the Lane case, he said he'd changed his mind and he no longer agreed with that.

Any area of the law where Justice Scalia is changing his mind has got to be one that's particularly difficult, and one that I think is appropriately regarded as still evolving and emerging.

And so I don't know if the more recent cases in Lane and Hibbs represent a swinging of the pendulum away from cases like Garrett and Kimmel on the other side, or if it's simply part of the process of the court trying to come to rest with an approach in this area.

But it is an area that the court has found difficult. And just as a general matter, I think when you get to the point of reweighing congressional finding that starts to look more like a legislative function, and the courts need to be very careful as they get into that area to make sure that they're interpreting the law and not making it.

DEWINE: Well, Judge, I appreciate your answer. And I'm going to move on, but I would just say that, one of the more disturbing things to me about Garrett is that the dissent and majority opinion got into a dispute -- verbal dispute -- about what the facts were.

And, you know, their dispute about the facts, that seems to me that's not usually what the Supreme Court gets involved in. And it seems if there's a dispute in the facts, you would normally defer to the fact-finder, Congress.

Let me take off on Garrett and maybe talk about another way to get at this. Rather than focus on the problem caused by Garrett, maybe there's another way to solve some of the problems that would be raised by this. Congress still has the power to protect the disabled under the spending clause of the Constitution. We have the power of the purse.

In South Dakota v. Dole, we wanted to establish a national drinking age of 21. You're well aware of that. It was upheld by the court. We did it through the power of the purse in the Dole case. I just wonder if Congress might be able to use this approach to require the states to weigh their immunity from suit under statutes like the Americans with Disabilities Act.

It seems to me that under the spending clause, we have at our disposal the power to protect the disabled, to protect other groups and effectively overturn cases like Garrett and these other cases that limit legislative power. You seem to take that approach in a case entitled Barbour v. Washington Metropolitan Area Transit Authority.

That case concerned a disabled person who was suing a state entity under the Rehabilitation Act. In that case, you held that the suit could go forward even though the state entity was immune from suit under the Eleventh Amendment. In your view, the state entity had agreed to waive its immunity in exchange for receiving federal mass transit dollars.

DEWINE: I think this case is important. It's important to me, at least, Judge. It seems to show us what you think about Congress' power under the spending clause, and also it gives us a model, I think, for how we might be able to protect those who are discriminated against under the Americans with Disabilities Act.

So if you'll just take a moment -- I've got two minutes left. Will you take a moment and tell us about the issue in the Barbour case and what was your reasoning for permitting a disabled person to sue in federal court for discrimination in that case?

ROBERTS: Certainly.

DEWINE: It's your case. You were involved in the case. You were in the majority opinion.

ROBERTS: Yes. It was a divided decision.

DEWINE: Right.

ROBERTS: The argument was whether Congress had the authority under the spending clause, as a condition of the receipt of federal funds, that WMATA, the Metro here in D.C., receives, that they waive their sovereign immunity to suit under the disability provisions.

And the argument was that Congress lacked that authority, that they could not impose a waiver of sovereign immunity as a condition for the receipt of federal funds to allow an individual alleging discrimination on the basis of disability to sue.

There was no issue about whether there was sovereign immunity in the absence of a waiver, and the WMATA governing body was opposing the suit on the ground that it had not waived immunity. And they were arguing that Congress lacked the authority to condition the receipt of funds on a waiver of the immunity.

It was a divided decision. Two to one vote. The dissenter argued that this was an inappropriate exercise of the spending clause power.

The majority concluded that, no, this was within Congress' authority. It could condition the receipt of federal funds on a waiver of sovereign immunity that allowed an individual alleging he was discriminated against in employment because of his disability to proceed with the suit.

The arguments we rejected were arguments of germaneness. The idea was the funds were for transportation, not for employment. And so it wasn't a germane condition.

The majority rejected those arguments. The dissent would have ruled the other way.

DEWINE: Judge, thank you very much.

Thank you, Mr. Chairman.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator DeWine.

Senator Feinstein?

FEINSTEIN: Thank you very much.

SPECTER: We're going to take a 15-minute break when Senator Feinstein concludes her questioning, at about 4:15.

FEINSTEIN: Thanks very much, Mr. Chairman.

Good afternoon, Judge Roberts. I want to follow up on something that Senator Kohl said in his last question, which was sort of asking you to do a look-back into some of the things you've written and said. And you have written -- and this involves women -- either in margin notes or in comments or in memos -- and I'll list for you some of the comments and ask you what do you think of them today.

FEINSTEIN: In a memorandum to Fred Fielding, White House counsel under President Reagan, about the nomination of a woman to be recognized for moving from homemaker to lawyer, and your response to nominating this woman for an award was this, quote: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that's for the judges to decide."

In a memo responding to a letter from three Republican congresswomen that raised concerns about the pay gap that women experience, you said, and I quote, "Their slogan may as well be, 'From each according to his ability, to from each according to her gender.'"

You also wrote that the congresswomen's concerns quote, "ignore the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the workforce for extended periods of time, et cetera."

In another memo, you implied that it's a canard that women are discriminated against because they received 59 cents at that time, to every $1 earned by men.

In a September 26th, 1983 memo to Fred Fielding, you rejected an alternative proposed constitutional amendment guaranteeing equal rights to women.

In 1982, you wrote a memo to then attorney general in which refer to the task force which was to conduct a government-wide review to determine those laws which discriminate on the basis of gender as the ladies' task force.

I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way. Did you really think that way, and do you think that way today?

ROBERTS: Senator, I have always supported and support today equal rights for women, particularly in the workplace.

ROBERTS: I was very pleased when I saw, for example, the report of the National Association of Women Lawyers, who went out and talked and interviewed with women lawyers who have worked with me, who have appeared before me.

And the conclusion was that I not only always treated women lawyers with respect and equal dignity, but that I had made special accommodations for life/work issues to ensure that women could continue to progress, for example, at my law firm, and had always treated women who appeared before me in a perfectly professional way.

FEINSTEIN: Then why say those things?

ROBERTS: Well, let's take the first one you mentioned.

I'm -- it is to me, obvious, in the memo that I wrote to Fred Fielding that it was about whether or not it's good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it.

The point was, is it good to have more lawyers? That's the way I intended it, and I'm sure that's the way...

FEINSTEIN: And you don't think it was good to have more lawyers?

ROBERTS: I think there were probably -- the point that Mr. Fielding and I had commented on, on many occasions, was that in many areas there were too many lawyers.

And that's a common joke that goes back to Shakespeare. It has nothing to do with homemakers.

The notion that that was my view is totally inconsistent and rebutted by my life.

I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.

FEINSTEIN: I don't want to belabor it.

I'm just trying to understand how you think, because you appear -- you know, you speak about modesty and humility, and yet none of these comments are modest or humble.

ROBERTS: Well, those comments were in the nature of the tone that was encouraged in our office.

It was a small office. They expected return projects around very quickly. We were expected to be candid. And if making a joke about lawyers would make for a more enjoyable day on the part of the people in the office, that's what we did.

FEINSTEIN: So it's fair to say you don't think that way? Is that correct?

ROBERTS: Well, I don't think in any way that is based on anything other than full equal citizenship rights on the basis of gender.

I might tell a lawyer's joke that there are too many lawyers today, but that's all it was back then.

ROBERTS: On the memo, you quoted with respect to the issue of comparable work.

The one thing the memorandum made clear is that the position of the administration was there must be equal pay for equal work. That wasn't the issue in that case. The issue there was whether there should be equal pay for different work and whether judges should determine what type of work was equal.

FEINSTEIN: I'm not arguing that. I'm just arguing what you -- or bringing to your attention what you said then. But I don't want to belabor it. I think you have answered the question.

Now, let me ask you a question on Canerino v. Wilson. This is about the same time in 1982. And you pointed out in answers to prior questions whether -- that you were staff and you generally did what people asked you to do.

In this case, William Bradford Reynolds, the top attorney in the Civil Rights Division, indicated that there had been substantial, he thought, discrimination in prisons in Kentucky and that the Justice Department had done an investigation. And they found that male prisoners were given training for higher paid jobs, for greater variety of jobs and were given training for longer periods of time.

Your memo contradicted his recommendation to intervene. Why would that be if you just follow the policy of the office?

ROBERTS: My understanding there was that there was a question -- whether intervention in that case -- the case was being pursued by private litigants already. The question whether intervention by the federal government in that case was consistent with the attorney general's approach to institutional litigation.

That was an approach that he had laid out in several speeches, memoranda. And as a staff member it was my job to call to his attention areas where I thought there may be inconsistencies in areas where he wanted to set policy priorities.

FEINSTEIN: In response to the chairman's question this morning about the right to privacy, you answered that you believed that there is an implied right to privacy in the Constitution, that it's been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning.

Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?

ROBERTS: Well, Senator, first of all, I don't necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated...

FEINSTEIN: Part of liberty, then.

ROBERTS: Yes. And the exact scope of it, with respect to the beginning of life and the end of life, those are issues that are coming before the court in both respects, and I don't think that I should go further to elaborate upon whether or not it applies in those particular situations.

FEINSTEIN: All right.

ROBERTS: Obviously, it has been articulated by the court in both contexts, in the Cruzan case with respect to the end of life, the Glucksberg case following Cruzan.

But I don't think it's appropriate for me, given the fact that cases arise on both of those questions, to go further.

FEINSTEIN: All right. Let's move right along.

This morning, there was a discussion about stare decisis. You pointed out there were factors in a consideration of stare decisis. I think one of the things you said was workability of framework is one of the main principles you look for in stare decisis.

Well, in its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case.

In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable.

FEINSTEIN: Do you agree with this conclusion?

ROBERTS: Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis. I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the court. It is a precedent on precedent. In other words, it has examined Roe and...

FEINSTEIN: So you agree that the court said that, obviously.

ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the court.

But in terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line and that's where I've drawn the line.

FEINSTEIN: So workability is clearly one thing. Is another one reliance?

ROBERTS: Certainly -- or, as it's often expressed in the court's opinions, the settled expectations. People expect that the law is going to be what the court has told them the law is going to be. And that's an important consideration.

FEINSTEIN: And in Casey, again, the court stated, and I quote, "The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives and that this ability to control their reproductive lives was enough of a reliance to sustain Roe."

Correct?

ROBERTS: That's what the court concluded -- I think you're reading from the plurality opinion -- the joint opinion in the case.

FEINSTEIN: That's correct. That's correct.

Now, unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient?

ROBERTS: Well, again, I think that's asking me whether I think the decision was correct or not on that point.

It certainly was the analysis that the joint opinion in the court entitled to respect it as precedent like any other decision of the court under principles of stare decisis.

And that would certainly be where I would begin. If any of these issues come before the court, if I were to be confirmed, I would begin with the precedent that the court has laid out in this area.

FEINSTEIN: One other question on Casey, and I'd like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing, in a discussion with then-Senator Brown.

"The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner.

"And Casey, which, in other respects, has been greeted in some quarters with great distress, answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband."

Do you agree?

ROBERTS: That is what Casey held, yes. And that's, as I said before, a precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.

FEINSTEIN: Thank you.

One other reading from Justice Ginsburg's testimony: "Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred; that two strands, equality and autonomy, both figure in the full portrayal."

Do you agree or disagree?

ROBERTS: Well, I think then Justice -- then-Judge -- Ginsburg felt at greater liberty to discuss that precisely for the reason that you noted, that she had given a lecture on the subject.

Those are issues that come up again and again before the court. And, consistent with what I understand the approach to have been of other nominees, I don't think I should express a view on that.

FEINSTEIN: I'd like to move on.

FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender.

Specifically, your brief stated, quote, "Unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender," end quote.

In your oral argument you went on to make this point by comparing Operation Rescue's attempts to prevent a woman from exercising her privacy right to make decisions about her pregnancy to an ecologist's efforts to block an Indian tribe from using their exclusive fishing rights.

Do you think that's an appropriate analogy?

ROBERTS: Well, Senator, it was a position and an argument that the administration made that was accepted by the Supreme Court by a vote of 6-3.

The underlying point was that under the statute at issue in Bray, the Ku Klux Klan Act, required under the Supreme Court's precedent that people engaged in the challenged activity must be motivated by a discriminatory animus.

Obviously, under the Ku Klux Klan Act, the classic case, racial hostility.

And the issue was: Are people opposed -- in the Bray case -- opposed to abortion opposed to women?

And the determination of the court was that, no, that there are people who are opposed to abortion and that does not constitute opposition or discriminatory animus against women and, therefore, that the Ku Klux Klan Act didn't apply.

Many other provisions obviously apply in a case of abortion protester violence, including state law and other provisions of federal law, but the Supreme Court concluded 6-3 that there is no discriminatory animus based on opposition to abortion.

FEINSTEIN: Thank you. I would like to move to another subject because my time is moving on. And that's what's been happening in the court in the last 10 years.

As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause.

FEINSTEIN: Yet, in the last decade, the court's reinterpretation of the commerce clause has been used to strike down more than three dozen cases.

The court's future decisions will determine whether the Congress will be able to take necessary action to stop child pornography, combat violent crime, ensure child support payments, prevent discrimination, improve our schools and protect our environment.

My question is, do you agree with the direction in which the Supreme Court has moved in more narrowly interpreting congressional authority to enact laws under the commerce clause?

ROBERTS: Well, of course, I've tried to avoid saying whether I agree or disagree with particular cases, but I would point out in this area in particular, I think it's very important to look at the most recent case, which is the Raich case, the medical marijuana case, because the argument was that these two decisions that you are talking about, that were the first in the 60 years, Lopez and Morrison, the argument there was based on Lopez and Morrison -- Congress lacks the power in this area.

And what the Supreme Court said in the Raich case, which I think is very important, it said there are a lot more precedents on the commerce clause besides Lopez and Morrison.

And the appropriate way to regard those is two decisions in more than 200-year sweep of decisions in which the Supreme Court has given extremely broad -- has recognized extremely broad authority on Congress's part, going all the way back to Gibbons v. Ogden and Chief Justice John Marshall when those commerce clause decisions were important in binding the nation together as a single commercial unit.

So, again, without commenting on whether particular decisions are correct or not, I do think it's important to recognize that the court itself in its most recent decision has said, you need to focus on the broad sweep and not just on those two decisions.

Let me move to the case of the hapless toad, known more commonly as Rancho Viejo v. Norton. Do you believe there's a basis for sustaining the Endangered Species Act other than the commerce clause?

ROBERTS: Well, the opinion I wrote there noted that the panel decision that I thought should be reheard en banc looked at one ground under the commerce clause, and the concluding paragraph in my opinion said that we ought to rehear the case to look at other grounds that were also under the commerce clause, but they were not the particular prong of the commerce clause analysis that the panel opinion had relied on.

ROBERTS: And the reason was that, as I explained in the opinion, another circuit court had suggested pointedly that the approach in the panel opinion was inconsistent with the Supreme Court.

And I thought, if there was another basis for sustaining the Endangered Species Act that was not inconsistent in the view of another circuit court, that we ought to look at that and try to do it.

It really reflects a restrained and minimalist approach. If there's a ground that doesn't cause another circuit court to say, you're violating the Supreme Court precedent, we ought to look at that and see if we can...

FEINSTEIN: But the point I'm trying to get at is you're saying that the fact that the toad was almost only found in California means that it was an impermissible use of the Endangered Species Act.

Well, then that raises the question, what if the toad strays across the border, or what if the toad is the last remaining toad?

ROBERTS: Right.

But the one point I would emphasize is my opinion did not conclude that there was no authority under the commerce clause in just that situation.

There was another dissenting opinion that was filed by another judge who said, this violates the commerce clause. I did not join that opinion.

I wrote separately to say that we should hear this en banc with all of the judges, because there are other ways of sustaining this act that don't implicate the concern that has caused the other circuit to question our approach, that had caused the dissenting judge to conclude there was no authority.

And I thought we ought to look at those other grounds, because if we could sustain it without implicating that objection, that would be better all around.

I did not take the position that it was outside the scope of the commerce clause. It was a question of which ground under the commerce clause we ought to look at.

FEINSTEIN: There's a great deal of concern as to what this then means for the implication for all environmental law, the Clean Water Act, the Clean Air Act.

But if I understand you correctly, what you are saying is that you do not believe that the commerce clause should prohibit legislation in this area, is that correct?

ROBERTS: I have not had occasion to decide that.

I did not decide it in the Rancho Viejo case.

ROBERTS: One of the other judges did, and I did not join that opinion. What I said is: We should consider these other grounds.

Now, I didn't have the opportunity, because it was a dissent, from rehearing to consider those other grounds. Those other grounds were what other courts, the 5th Circuit in the GDF case, had used to sustain application of the Endangered Species Act in the cases that came before them.

They didn't get into the question of whether you look at the regulated activity, the building or the actually what was prohibited, the taking of the toad; they analyzed the protection of the endangered species as implicating a commercial activity.

And that allowed them to sustain the act without regard to whether it had an interstate effect itself.

FEINSTEIN: Thank you very much.

I would like to ask a question or two on church and state. I mentioned in my opening statement that, for centuries, people have been persecuted for their religious beliefs. And our country grows more diverse every day, and tensions among different beliefs have grown.

I really believe that there is a brilliance in what the founding fathers did in drafting the First Amendment and how it protected an individual's right to practice their belief, whatever it may be, but also protect against using religion against individuals by prohibiting the government from becoming and/or imposing religion.

In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion.

And he even said, "I believe in an America where the separation of church and state is absolute."

My question is: Do you?

ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers' experience.

Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers' experience.

FEINSTEIN: You can't answer my question yes or no?

ROBERTS: Well, I don't know what you mean by absolute separation of church and state.

For example, recently in the Ten Commandments case, the court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it. They struck down the posting of the Ten Commandments in a Kentucky courthouse.

Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?

So I don't know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.

FEINSTEIN: It has been reported that during your meeting with Senator Wyden, while discussing end-of-life issues, you cited the dissent of Justice Brandeis in Olmstead.

I would like to quote from it: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.

"They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred as against the government the right to be left alone, the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

Do you agree with Justice Brandeis?

ROBERTS: I agree with his expression that it's a basic right to be left alone, and I think that animating principle is a very important one.

With regard to particular restrictions he was talking about, wiretapping or -- I forget the interception actually at issue there -- you know, I don't think it's appropriate to comment on.

But as a general statement of the principle -- and again, it reflects just the basic understanding that it's a free country and the right to be left alone is one of our basic rights. I do agree with that.

FEINSTEIN: I do think the implication of what you said to Senator Wyden -- and I have discussed this with him -- was that one has the right to make their end-of-life decision.

ROBERTS: Well, that's an issue that is before the court in particular cases, and I can't comment on a case that's coming before the court.

If I am confirmed, I would have to confront that case with an open mind in light of the arguments presented, in light of the precedents of the court.

And the litigants in those cases are entitled to have judges that haven't expressed views on that particular case.

FEINSTEIN: Well, let me ask you this question, then: In an interview on PBS after the court ruled in Washington v. Glucksberg, a case involving a state statute that banned assisted suicide, you said, "I think it's important not to have too narrow a view of protecting personal rights" --what did you mean by that?

ROBERTS: Well, I went on to explain that any time there's an assertion of a right, there's quite often an assertion of a contrary right.

I think it was similar to the point Senator Kyl was making earlier, that for example, if you are asserting a right against government regulation, then the right of the people to regulate through their elected representatives that's being struck down, that right is being restricted.

So it's usually not -- it's often not we can view that there's a right on one side and there's nothing on the other side. There's often an assertion of a right on the other side.

And what the courts have to do is make sure they provide a level playing field in which people disputing the impact of the Constitution on whose right prevails have judges who will decide that case according to the rule of law and not according to whether they think one right should prevail or another.

FEINSTEIN: But do you believe, then, that the federal courts should become involved in end-of-life decisions?

ROBERTS: Well, Senator, that is exactly one of the questions that is before the court. And I cannot answer that in the abstract. I have to answer that on the basis of the parties' arguments, on the basis of the record in the case, on the basis of the precedents. An abstract opinion that would prejudge that case would be inappropriate for a nominee to express.

FEINSTEIN: Let me ask it another way. Do you believe that the courts should have a limited role in that situation?

ROBERTS: I think courts have a limited role in general, and that is that they only interpret the law. They don't make the law. They don't shape the policy.

Now the application of that basic principle, which is very important to me, in a particular case, is obviously something that has to wait for the litigation of that case, the arguments in that case, the arguments of the lawyers about whether it's consistent with the precedents or inconsistent with the precedents. But the basic principle that courts should not be shaping public policy, that's for the legislators, is a fundamental principle with which I agree.

FEINSTEIN: Thank you, Mr. Chairman.

Back to Part III of Sept. 13 transcript. Go to Part V of Sept. 13 transcript (Sens. Sessions and Feingold).

Courtesy Morningside Parnters/FDCH.

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