Transcript: Day Two of the Roberts Confirmation Hearings

Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005; 6:49 PM

The transcript picks up after Sen. Feinstein's questioning (back to Part IV).

SPECTER: Thank you, Senator Feinstein.

Since I announced the break at 4:15, I have been advised that there's a vote at 4:30. So Senator Sessions has graciously agreed to split his 30-minute round -- 15 minutes -- and then we'll go vote.

So we'll now turn to Senator Sessions for 15 minutes, and we'll break at that time and take a 15-minute break to go vote.

SESSIONS: Thank you very much, Mr. Chairman.

Judge Roberts, I want to congratulate you on your excellent testimony. You have validated the president's confidence in you. Many people said President Bush obviously looked around and looked around and finally decided to choose the best. And I think that you have proven that correctly.

The ABA has rated you unanimously, American Bar Association, in their formal rating process, unanimously rated you well-qualified, the highest possible rating that they give. And they have quite a number of lawyers that vote on that, so to get a unanimous vote is not that frequent. And for a higher office, they have a higher standard. And I think that particularly is worthwhile that you received that recognition.

I note that some of our legal professional journals have given you remarkable accolades. The American Lawyer in 2004 wrote that you were, quote, "one of the Supreme Court's finest practitioners."

And the Legal Times, said, quote, "you are one of the top appellate lawyers of your generation." The Legal Times also said that you are, quote, "viewed by many as the best Supreme Court advocate in private law firm practice."

Those are high praises, and I think today we have seen why people would think that of you.

SESSIONS: I also would offer for the record, Mr. Chairman, a letter from former Democratic attorney general Bill Blatchley from Alabama. He prosecuted the first prosecution of the church bombing cases in Birmingham successfully. He is a lifelong Democrat as he notes, and an elected member of the state Democratic executive committee.

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

SESSIONS: He said this: "Senator, I know Judge Roberts well. I have entrusted three important appellate matters to him. In each instance, I met with him and engaged him in extensive conversation upon a wide range of topics. Because he is a man of such remarkable intellectual brilliance, I sought him out upon private as well as professional topics, enjoyed more than one meal with him and was, each time, overwhelmed, not only by his intelligence but also his innate sense of fairness, by his sensitivity to every aspect and angle of consideration of every issue addressed by him and by his somber sense of decency and justice."

"A somber sense of decency and justice" -- pretty good phrase.

"My love of my country surpasses politics," Mr. Batchly (ph) says. "It compels me to support Judge Roberts in every possible way in order that justice might most effectively prevail in the United States Supreme Court. I am confident in the ability of Judge Roberts to fairly, and without any agenda of any kind, address each legal issue which comes before him. I'm equally confident of his ability to lead the Supreme Court in an administrative capacity. I have no doubt that the diverse opinions of each associate justice sitting on the United States Supreme Court will receive greater deference and consideration under his leadership than under any other chief justice with whom they have ever served. This wise and circumspect man deserves this office."

So I think we have seen a great bipartisan recognition of your capabilities and the respect that you have reaches broadly.

I also would recall, Judge Roberts, that in my opening statement I suggested that the pattern around here is to take out old statements and memorandum and bring them up out of context, and particularly the outside groups and sometimes senators would get confused, or sometimes these groups, I think, deliberately have attempted to paint a picture of you or the positions you took that are not fair or accurate.

I would just want to go over a few cases and deal with some of the issues that you have already been questioned with to make sure that we're square about it.

SESSIONS: On the Gwinnett case, the Title IX, the women's education case, the position you took that would deny the right to sue a state entity, a government entity for money damages, wasn't that a position consistent with the position of the Court of Appeals that had written the only opinion on that subject?


SESSIONS: So the Supreme...


ROBERTS: That was the Court of Appeals' position.

SESSIONS: So you, in advocating on that position, were expressing a view that was the view of the highest federal court in the land at that time?


SESSIONS: With the question to the Grove City case, it was good that Senator Grassley -- I'm from Iowa, I knew about that. And I think he clarified that question well here.

With regard to Bolden v. City of Mobile, you and Senator Kennedy had an exchange.

Well, I'm from Mobile. I was not involved in the litigation but know something about that litigation.

And when the exchange ended, as I recall, Senator Kennedy was insisting that the Zimmer case was the established law and that a number of cases had said that effects test applied, whereas you are contending that at the time you took the position you did, that the Supreme Court had ruled that an intent standard was required and that Bolden set the decision on that.

SESSIONS: And I guess the question for us today, who was right? You or Senator Kennedy?

ROBERTS: Well, I...

SESSIONS: I didn't want to ask you, but go ahead.

ROBERTS: No, I don't know if...

SESSIONS: I see the senator has returned.

ROBERTS: It was a renewal of a debate that was had between the administration and Senator Kennedy 20-plus years ago. And certainly, the issue of whether the Supreme Court had interpreted Section 2 and what it had said and whether or not it was correct was mooted.

Senator Kennedy's position eventually prevailed as a matter of legislation. Through the good offices of Senator Dole and others, the compromise was worked out and the totality of the circumstances test enacted under Section 2.

SESSIONS: Now -- but the truth is, is it not, that Bolden v. City of Mobile had been decided by the Supreme Court, and Bolden v. City of Mobile said that you had to show, when you consider a form of a local government, that before you could throw it out, create a new government for that city, you had to show that it was designed in a way to intentionally deny equal rights to the minority citizens?

ROBERTS: That was my understanding, and certainly the administration's understanding of Mobile and its interpretation of Section 2.

And as I said, the debate was largely mooted by the legislative change that was enacted.

SESSIONS: No, I'm just trying to get this thing straight because I don't want anybody to be misinterpreted.

Bolden v. City of Mobile quoted Zimmer. It was the final word on the matter. And it ruled that before the federal government could throw out a government of a city and require a new government to be established, there had to be an intent to discriminate. And that was consistent with the Voting Rights Act.

SESSIONS: And then when the Voting Rights Act came up for reauthorization, the legislature, the Congress, passed a law and changed the law that, in effect, said the effects test -- if it had the effect of discriminating or keeping African American citizens from being elected to office, that that could justify the removal of the existing form of government and establishing a new government.

ROBERTS: Well, that's right.

And it's in many areas -- well, certainly every area involving an interpretation of the statute, the final say is not with the Supreme Court, the final say on a statute is with Congress. And if they don't like the Supreme Court's interpretation of it, they can change it. And that's what happened in this case.

SESSIONS: Well, the Voting Rights Act, let me say, is a tremendously critical historical event. It transformed the South.

I think Senator Kennedy or others said that grandchildren and children today are being able to vote because of this right, and that's true. Not only are they being able to vote, they are being able to be judges who supervise elections, sheriffs, mayors, city councilmen, county commissioners.

Alabama has more elected African-American officeholders than any other state in America, and we're proud of that.

But this was a powerful act, and it did change the make-up of county commissions, city commissions, statewide boards all over Alabama, all over America, and it was a big step.

But the Congress made that, and you were correct when you said that your position was consistent with what the Supreme Court ruled at that time.

With regard to the question of comparable worth, I think Senator Feinstein was clear about this, but I'd like to make it a little bit clearer.

You have consistently favored equal pay for equal work, have you not, and did not President Reagan also favor that explicitly and openly?

ROBERTS: Absolutely.

SESSIONS: It's the question of this comparable worth theory that apparently one district court found in favor of, but that every circuit court and every other court that considered it rejected it, that said that some body, some commission, I guess, would decide whether a secretary should be paid as much as a truck driver and make those kind of value-judgment decisions.

Isn't that the difference between (inaudible) two aspects?

ROBERTS: That's right.

Yes, there is no question of equal pay for equal work.

It's the idea that someone should decide that different jobs are of comparable worth and that therefore they should be paid the same. And the district court adopted that approach. It was reversed by the 9th Circuit Court of Appeals in an opinion by then-Judge Anthony Kennedy.

SESSIONS: Well, that's right.

I know he did write on that, and I think that the 6th, 7th, 10th and 9th Circuits all rejected that idea and, frankly, hadn't been heard from since.

I'm glad that you and President Reagan didn't agree to that at the time. We would have commissions of incredible complexity trying to decide very important matters.

The National Academy of Sciences, in fact, found that and declared it did not believe that the value or worth of jobs could be determined by fair and scientific methods.

So I think that's important.

Judge Roberts, I tried a lot of cases in federal district court. I have written appeals to the federal appellate courts and argued a few times in the Court of Appeals.

I'd like for you to help explain to us how this court system works and what an appellate judge does. I mean, appellate judges don't go about to set policy in America, they don't go out to supervise and superintend the legislative and executive branches; they decide cases that come before them.

SESSIONS: So isn't it true that, normally, a case would be initiated in a federal district court or state trial court, and a trial would be held -- often with a jury -- and a judgment is rendered?

ROBERTS: That's what most people, most of us, think of when we think of going to court. You're there, you bring in the witnesses, they testify, they're cross-examined by the other side. There is one judge supervising the trial. If it's a jury case, the jury is there.

That's where most of the fact-finding takes place. People have different versions of events. You know, who was there? What did they do? And people tell different stories. And that's where you try to sort that out, either before the jury or the single judge.

SESSIONS: And a judge has to rule. He has to rule on evidentiary matters, on legal matters. Sometimes a judge is in the midst of trial and maybe he makes an error, maybe he doesn't make an error.

But every word of that trial is put down. It's recorded. And so, after the trial, if the losing party is unhappy, they can take an appeal, and when they do that it goes to the federal Court of Appeals for that circuit, and they point out to the Court of Appeals where they think the judge made an error. And they say, "This was wrong and we want a new trial judge or remittiture (ph) or some other remedy."

Isn't that what happens when...

ROBERTS: That's right. And the big difference when you get up to the Court of Appeals is that the facts are not really in play anymore. Somebody's been determined -- they think you are guilty or they buy your versions of the events.

The Court of Appeals usually just looks at the legal issues. Somebody says, "The judge made a mistake. He shouldn't have let that witness testify," or, "He should have recognized that the police had no authority to conduct that search in a criminal case." And that's appealed to the Court of Appeals where, in the federal system, there are three judges and they're just looking at that legal question.

And they just go back and look at the law, the precedents and determine whether or not the law was correctly applied in the trial court or if a mistake had been made and they need to do it over again.

SESSIONS: And if they appeal, the lawyers write sometimes beautiful, carefully written briefs that point out the reasons why they think an error may or may not have occurred.

Isn't that correct?

ROBERTS: As a Court of Appeals judge, that's exactly the kind of brief you are looking for, and every now and then you get one.


SESSIONS: And sometimes when you read the first brief you are persuaded and when you read the second brief you think maybe you weren't so -- maybe it wasn't as clear as you thought it was when you read the first one.

ROBERTS: Not just sometimes, Senator. Quite often that's my reaction.

ROBERTS: That's part of the adversary system. And you need to have lawyers doing a good job presenting the best arguments on either side, so you can feel comfortable that you're making as good a decision as you can.

SESSIONS: And so the lawyers in the case and the clients and the parties want a judge who will carefully read those briefs and be fair and careful in analyzing whether or not they've got a fair trial to ensure justice took place.

ROBERTS: That's what I was always looking for when I was a lawyer, Senator, yes.

SESSIONS: Mr. Chairman, I see the clock is going around in circles down here, I think. What do you want to do about time?

SPECTER: Well, they haven't started the vote. And we all know that that's not totally predictable, even when they say 4:30. Would you care to continue until the vote starts?

SESSIONS: I would be pleased, if the chairman would. So do you know what my time is, now?

SPECTER: You can run the red to -- well, it just went off.

SESSIONS: This is like a football referee -- put so much time back on the clock. It says a minute left.


SPECTER: You can run the red until seven minutes and 30 seconds.

SESSIONS: All right. Very good.


Who am I to disagree with our chairman?

SPECTER: Senator Sessions, if you would...

SESSIONS: I'll have 15 minutes after this?

SPECTER: You have 15 minutes left, yes. Start the clock back at 15 minutes.



SESSIONS: Thank you. A doctor down here is good at mathematics.


Businessman, too.

So, now, but it's even more complicated than that in doing justice. And on the Supreme Court, if a case comes up to you, you will probably have briefs from both parties, you will receive the transcript of the trial that the issue arises from and you'll study that. And you have several law clerks who will help you study that. Every one of the nine Supreme Court justices are also studying this same record and all these briefs. Isn't it true that friends of the court can submit briefs?

ROBERTS: Well, at the Supreme Court level, that's very common. In some cases, there are quite literally hundreds of so-called friends of the court or amicus briefs. Different organizations that are interested in the particular ruling and have a particular perspective. A few of them are even helpful.

SESSIONS: So you review that, and then you frequently set the case, or normally set the case for oral argument.

ROBERTS: If the Supreme Court decides to -- this is, of course, a very big part of their function. They get some 10,000 petitions every year of people saying, "I want you to hear my case." You know, all lawyers say they're going to take it all the way to the Supreme Court; 10,000 people try to do that every year.

These days the court hears about 80 of those, 80 of those 10,000. And the selection of which 80 to take is obviously a big part of the court's function. But once they've selected those 80 cases, then they go in and have new briefs on the merits and all these amicus briefs are filed from different organizations presenting their arguments or their particular perspective. And then it's set for argument.

SESSIONS: So the lawyers from both sides then appear before the court, over in the Supreme Court building, and they answer questions and make their presentations as to why they think the court should rule the way they would like it to?

ROBERTS: They usually get an hour for the whole case.

So each side gets a half hour and that half hour is taken up almost entirely by the justices' questions.

I went back once and counted the questions during my half hour and there were over 100 questions. Obviously, some of them were rapid-fire questions. If you follow the court, you could probably guess who was asking those. And others are more elaborate questions but more than 100 in a half hour.

So the job of the lawyer there is to be totally prepared to answer all of those questions. And, of course, some of them are going to lead into traps. And you have to be careful about that. Others are going to be the very difficult questions that the court is eventually going to base its decision on. But it's a very both exhilarating and demanding process to go through an oral argument before the Supreme Court.

SESSIONS: And I think there's little doubt that you are the best practitioner of it in the country. But with regard to that you then finish, and do the judges then meet in conference to discuss the case?

ROBERTS: They do. The justices, each of whom has prepared the case by not only reading all these briefs and attending the argument, talking it over with their law clerks, but also reading back over the cases, the precedents that the lawyers have been arguing about -- they go back and look at those.

And then just the justices in the conference room -- no clerks, no staff, just the nine justices -- sit in the conference room and talk about it, thrash out the case.

Eventually, they get to a point where they take a vote on what they think the disposition should be. The decision should either be affirmed or reversed or sometimes something else in between -- half affirmed, half reversed, sent back, whatever.

And then the opinion is assigned, and that's still very much part of the process -- the writing of the opinion -- because, quite often, or maybe not quite often, but often enough, the justices find out that, as they try to write a particular opinion, different problems come up; it's not writing as they thought it would.

And sometimes they have to go back and revisit the case because the judge -- the justice -- assigned the opinion decides that it should come out the other way or there should be a different reason, a different basis for the decision.

And then, once the justice who is writing is comfortable with the opinion, they send it around to all of the other chambers, and the individual justices, if they agree with it, they send a memo around to everybody else that says, "Please join me." That's just the jargon the justices use. It means please join my name to your opinion.

And sometimes they will have suggestions. You know, "I'd be happy to join your opinion, but I disagree with this section," or "I disagree with this footnote," or "I disagree with this line of reasoning. If you could change that, I would be able to join."

Well, if you are a justice who is getting -- this is the first reaction you have gotten, the first vote back, you might be a little more willing to make change to accommodate that suggestion.

If you've got seven votes already in the bank and somebody says, "Please change this or change that," maybe you're a little less willing, because maybe then some of the others say, "Well, now I'm not happy with that change."

ROBERTS: And it can obviously get to be a very complicated process as the memos fly back and forth and the court tried to come to some consensus around an opinion.

Often -- maybe too often -- there is not total agreement and somebody will write a dissent and send that around and others will join that.

Concurrence: "I can't agree with your reason, but I agree with the result, and so I'm writing separately to give you my reasons."

And the balance changes. Somebody can write a concurrence and, all of a sudden, they've got five votes and it's the majority. And the original majority becomes the concurrence.

But the analysis is done -- and this has been my experience on the court of appeals as well -- a very high level. And I think it's critically important that it's just the justices alone who go into conference room, just as on my court now it's just the judges who go into their conference room because judges and justices in that situation can be a lot more open with their views.

And it's been quite common in my experience over the past more than two years to have a judge say, "This is how I view the case," and then another judge say, "Well what about this?" And the judge says, "Well, I thought about that," or, "The record says this."

And you get out the record. You get it out there and look at it.

SESSIONS: But, at some point, you agree to sign on an opinion one way or the other. Right?

And that becomes a decision of a judge and maybe the majority of the court of maybe a dissent. But that's a decision that's made.

Isn't that why you should not, in this hearing today, blithely start expressing opinions on complex matters when you haven't been through that process and start prejudging matters before you've read the briefs, before you've read the transcript, before you've heard the arguments, before you've talked to your clerks, before you've discussed it with other judges?

Isn't that the essence of what justice is, this careful process that leads us to as fair result as humanly possible?

ROBERTS: I think that's perfectly accurate. And, if you had the experience, as I know every judge and every justice has, of having your original view changed when you read either the other side's brief in a case after reading the opening brief, or had your view changed as a result of the discussion at conference, or had your view changed when you tried to write the opinion one way and it came out the other way, then you appreciate the significance of that process.

ROBERTS: And it's a total distortion and a perversion of that process to start out by saying, "Well, I testified under oath that I thought this decision was correct.

So, "I'm done, you know. No need to read the briefs, no need to listen to the arguments, no need to go into conference and talk with the other judges on the bench. I have already given my view under oath."

Or even if you are going to be open to reconsideration, to start with that barrier, "I testified under oath that this is the correct approach, that this is the right result. Now, maybe you can persuade me otherwise."

Well, that's not the burden that the litigant should have to take. The litigant should be able to know that all of the judges, all the justices that, that person is arguing before have an open mind and are fully open to the process.

SESSIONS: You wouldn't want to call Senator Biden and ask him permission to change the commitment you made, would you, in that hearing?


SESSIONS: Just a joke there a little bit.


You don't want to have to read a transcript of this hearing...


SESSIONS: ... by the time when you try to decide how to rule on a case to make sure you didn't make some commitment.

I mean, I think that's all I wanted to -- the point I would like to make there.

You know, Senator Specter came right out of the chute asking you about stare decisis and Roe and other related-type matters and that's an important question.

As I understand it, you committed to Senator Specter that you would bring no hidden agendas to this matter, that you would consider any case that came up under Roe or any other case that might impact stare decisis and that you would apply reasonable, professional analysis to that, drawing on the history of courts and their opinions in dealing with these cases and would try to make a fair and honest and objective decision.

Is that what I understood you to say?

ROBERTS: That's what I understood my testimony to be, yes, Senator.

SESSIONS: And you are not saying, one way or the other, how you would rule on Roe or some of the other cases that have been...


I feel that it would be very inappropriate for me as a nominee to tell how I would rule on a particular case that might come before the court.

SESSIONS: Well, I would like to know how you would rule on a lot of those cases, too, but I didn't ask you when you came and talked with me, and I don't think it's appropriate.

I don't think those of us who are politically conservative ought to look to the courts to promote our conservative agenda through the manipulation of interpreting words of the Constitution or statutes.

SESSIONS: I don't think liberals have a right to ask the court to promote their agenda by twisting the plain meaning of words to accomplish an agenda.

What we need is what you said -- an umpire, fair and objective, that calls it like they see it, based on the discreet case that comes before the judge. And I think that's most important.

And I would just say I don't know the answer to those questions legally and how a law comes out, but I would just offer that our polling data continues to show that our young people and numbers in general are showing that the people are more hostile to abortion than they used to be.

Perhaps it's seeing the sonograms and those kind of things, they -- 75 percent, according to a Harris survey, said that they didn't think an abortion was proper in the second trimester; 85 percent said they didn't think it was proper in the last trimester.

I just saw an interesting article by Mr. Benjamin Wittes. He writes for The Washington Post. He declares he's pro-choice, and says, let go of Roe.

And he goes into an analysis of it. He says -- he said, "I'm not necessarily thinking Roe ought to legally be overturned, but if it does die, I won't attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating a justice who might bury it once and for all."

This is in Atlantic Monthly, January of this year.

And he goes on to say, "Roe puts liberals in the position of defending a lousy opinion. It disenfranchised millions of conservatives on an issue about which they care deeply, while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support."

He goes on -- as have others -- he goes on to say this, "The right to an abortion remains a highly debatable position, both jurisprudentially and morally."

SESSIONS: And he also noted that, "In the years since the decision, an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground, but thousands of pages of scholarship notwithstanding, the right to abortion remains a constitutionally shaky proposition. Abortion policy is a question that the Constitution, even broadly construed, cannot convincingly be read to resolve."

So that's one opinion, I'm just saying, you will have to deal with.

And I just don't think that we ought to take the view that, that matter is open and shut.

And I hope that you -- we will take you at your word that your mind is open and you will evaluate the matter fairly according to the high standards of justice that you can bring to bear to that issue and any others like it that come up.

Will you give us that commitment?

ROBERTS: Absolutely, Senator.

And I would confront issues in this area, as any other area, with an open mind in light of the arguments, in light of the record, after careful consideration of the views of my colleagues on the bench -- and I would confront these questions just as I would any others that come before the court.

SESSIONS: Well, I'm of the view that the Constitution is a contract with the American people, that developments will occur that clearly fit within the ambit of a fair reading of that Constitution that were never contemplated by the founders.

Things do change and we have to apply new circumstances.

But wouldn't you agree a judge should never make an opinion that is beyond what a fair interpretation of the Constitution would call for?


SESSIONS: Judge Roberts, thank you for responding to my questions and to those of the other members of this body.

You have been open, honest and direct in providing a great view of your judicial philosophy and how you approach cases.

I appreciate the fact that you have correctly avoided some questions, some you should not answer. You hadn't read the briefs and heard the arguments and thought about it -- but you have carefully answered the appropriate questions, and we respect you for it.

Thank you, Mr Chairman.

SPECTER: Thank you, Senator Sessions.

The vote is now in progress.

We will recess until 5:05, at which point we will call on Senator Feingold for his 30 minutes of questioning.

We stand in recess.


SPECTER: The hearing will resume.

Just a little late in coming back because we were on the floor trying to figure out what the Senate schedule is going to be, when we would vote next. And while that's uncertain, I believe it is reasonable to conclude that we will not vote until 7:30. That gives us latitude to move ahead with five more rounds, where we will finish at about 7:30, a little later because we're not starting quite at 5, 7:45.

So we will proceed with Senator Feingold now, and then Senator Graham from 5:30 to 6, Senator Schumer from 6 to 6:30, Senator Cornyn from 6:30 to 7, and Senator Durbin from 7 to 7:30. That's back by 15 minutes, because we're 15 slow coming out of the gate.

LEAHY: You notice the sheer, undisguised glee on the face of Judge Roberts at the idea of going another three hours of this.

SPECTER: Well, I consulted with Senator Leahy, Judge Roberts, and the empirical evidence is overwhelming, without consultation, that you're fit to go indefinitely.

ROBERTS: I'm ready to go.

SPECTER: Is that judgment satisfactory to you, Judge Roberts?

ROBERTS: Absolutely.

SPECTER: Senator Feingold?

FEINGOLD: Thank you, Mr. Chairman.

Judge Roberts, the eyes of America are on you this week thanks to what our generation called the miracle of live television. Television plays an enormous role in providing information and bringing the country together in times of national pride, like the liftoffs and the landings of spacecrafts and presidential inaugurations, political conflict, like the 2000 election, and the 1999 impeachment trial President Clinton, the great tragedy of September 11th and the devastation wrought by Hurricane Katrina.

Americans can watch virtually every significant event of national importance on television, except for oral arguments and announcement of decisions at the Supreme Court.

FEINGOLD: If you are confirmed, you will essentially disappear from public view. This hearing will, in some ways, be the last time that the nation will see you at work.

The possibility of televising trials raises some complicated issues, because we have to consider the safety and rights of criminal defendants and witnesses and jurors, but such concerns are not so present in the case of appellate proceedings.

There is no doubt that there is enormous public interest in Supreme Court oral arguments, but not very many seats in the courthouse.

I think it would benefit the country and the court if all Americans had the chance to see the court conduct its work. So I'd like to know if you as chief justice will support televising the court's public proceedings.

ROBERTS: Senator, it's not something that I have a settled view on. And I do think it's something that I would benefit from the views of my colleagues. And I know that some of them have particular views and some may not.

And I noticed the last time there was a formal response by the court to a request to televise a particular argument, the chief justice referred the matter to the whole court and then reported back on it.

I'm also aware that there are -- I'm not sure if the right word is experimental or trial efforts going on in some of the courts of appeals, the federal courts of appeals, to televise arguments there. And I know I've watched them. So I appreciate that opportunity.

And I don't know yet if there's been an evaluation of how that experiment proceeded, whether the judges thought it went fine, the lawyers or whatever. I just don't know.

At the Supreme Court level, I do know they've experimented recently in a few cases with releasing the audio tapes immediately after the conclusion of the argument. Again, I've listened to those on occasion. Not every case, but selected cases of particular interest.

I know that on our court, my court, I'm sorry, on the Court of Appeals for the D.C. Circuit, we broadcast, at least within the courthouse, simultaneously, the oral arguments.

ROBERTS: So I know the technology is there to do that. And I certainly understand the interest and I understand how -- I know it was very well-received to have the audio tapes immediately available in some of those cases.

FEINGOLD: I hope you'll seriously consider this...

ROBERTS: Certainly.

FEINGOLD: It's a change from our good conversation we had about this before. Now you will be the principle decision-maker on this as the chief justice. And I hope you'll give it serious consideration.

Judge Roberts, on September 11, 2001, obviously an event occurred that had a profound effect on all of us in this country. We all have our own memories of that day.

During those first few hours after the attacks, I kept remembering a sentence from a case we both have probably studied in law school. These words were: "While the Constitution protects against invasions of individual rights, it is not a suicide pact."

I took these words as a challenge to my concerns about civil liberties at that horrible time in our history. We have to be careful not to take civil liberties so literally that we allow ourselves to be destroyed.

But then, when I actually tracked down the case itself, not remembering what case it was from, it was Kennedy v. Mendoza-Martinez, and I found that Justice Arthur Goldberg made this statement but then went on to rule in favor of the civil liberties position in this case.

He actually affirmed the importance of civil liberties in wartime.

So I would like to start this part of my questions by asking you what kind of impact that day had on you and your belief system, and whether it changed your view of the importance of individual rights and civil liberties and how they can be protected.

ROBERTS: Well, I remember the day vividly, Senator. I think I was one of the last people in the country to find out about it. I had gone into a hearing. It was actually in an original action in the Supreme Court. The special master was at G.W. Law School. And we had a hearing -- I think it was starting a little before 9:00 that day.

We went in there. I remember, just as I was leaving, getting a report that a plane had struck the World Trade Center. But it was -- at the time, I thought it was like one of those tour planes. I had no idea what they were reporting.

I went into the proceeding and we conducted the hearing. It lasted several hours. Nobody notified us and we didn't know about it.

And I remember leaving and trying to walk back to my office -- I was at the law firm then -- and the street was blocked off. And I figured: Well, there's something going on at the White House.

I remember walking down further, and it was still blocked off and still blocked off. I finally went up to one of these Guards and I said, well you know, "What's going on?"

And he looked at me like, "Where have you been?"

And only then did I begin to appreciate it. I went back to my office because there was no way to get out of town by then...

FEINGOLD: But at what point did you start thinking about the implications of this, in terms of civil liberties and the challenges this...

ROBERTS: Well, it was when I went back to the office and saw the smoke rising from the Pentagon. And, as you can imagine, that was a chilling sight. And the basic issue of how you address the question of civil liberties in wartime and times of crisis is a critically important one.

ROBERTS: The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis. There may be situations where the demands are different and they have to be analyzed appropriately so that things that might have been acceptable in times of war are not acceptable in times of peace.

I think everyone appreciates that. But the Bill of Rights is not suspended and the obligation of the courts to uphold the rule of law is not suspended.

FEINGOLD: Did you recognize at that moment that this might become a time when it would be harder to protect civil liberties?

ROBERTS: I think -- I don't recall recognizing that in particular, but that is, of course, always the challenge in times of war and in times of stress. Whatever the cause, I think it is the obligation of the courts to remember, just as within the model of the D.C. Circuit from our earliest case of the treason trial of Aaron Burr, to calmly poise the scales of justice.

And the emphasis is on calmly. It requires a certain dispassion, a certain separation from the passions of the moment.

FEINGOLD: That's absolutely right. And that's why I want to follow on what Senator Leahy asked about earlier, a different time, a different challenge.

As a nation, we can now look back at wartime Supreme Court decisions like Korematsu v. the United States with something like bewilderment. We talked about it earlier. To me, it seems inconceivable that the United States government would have decided to put huge numbers of citizens in detention centers based on their race and that the Supreme Court would have deferred to the president's decision to do so.

Do you believe that Korematsu was wrongly decided?

ROBERTS: It's one of those cases that I don't think it's technically been overruled yet. But I think it's widely recognized as not having precedential value. I do think the result in that case -- Korematsu was actually considered the exclusion, not the actual detention, but the exclusion of individuals based on their ethnic and racial background from vast areas.

And it's hard for me to comprehend the argument that that would be acceptable these days.

FEINGOLD: It's often included, if you list decisions that are sort of considered some of the worst decisions in the history of the Supreme Court with Plessy v. Ferguson and Dred Scott and others. Is that a fair characterization of your view of Korematsu?


FEINGOLD: Are there any elements of the government's response to September 11th that you think, 50 or 60 years from now, we as a nation will look back on with regret?

ROBERTS: I'm sure there are some, Senator. And when you have the benefit of 50 or 60 years to look back as opposed to the particular demands of the moment and the perceived demands, I'm sure it's a different perspective.

I hesitate to mention any in particular because so many of these issues are coming before not only the Supreme Court but the court on which I now sit. And I will have to confront those cases, I think, regardless of what happens here.

So I would hesitate to identify particular areas of concern.

FEINGOLD: I understand your caution. I don't think we need to wait 50 or 60 years for some. For example, do you have any concerns about the practice of extraordinary rendition, of our government secretly sending people to countries that we know use torture?

ROBERTS: Well, again, Senator, that is something that could come before the court in one form or another. And I think I have to refrain from commenting on it.

FEINGOLD: How about the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation, which actually in this case the Justice Department inspector general later heavily criticized? Does that trouble you?

ROBERTS: Well, yes, certainly, at a basic level of appreciating that this is a reaction in a particular way that raises serious questions. I'm very hesitant, though, again to express a view on legality because those issues could come before the court. They are coming before the court and they're coming not only for the Supreme Court but the court on which I now sit.

FEINGOLD: Let's go to one that's already come before the court. The Hamdi case is one of the most significant recent decisions restraining executive branch power.

In that case, eight members of the court found that the government had gone too far in claiming the right to detain and hold a U.S. citizen incommunicado within the United States without access to a lawyer and without charging him with a crime.

FEINGOLD: The case actually resulted in four different opinions with four different views on the president's power to detain a U.S. citizen indefinitely and without trial, ranging from Justices Souter and Ginsburg, who found that the president does not have any authority to detain citizens as enemy combatants because such detentions had not been congressionally authorized, to Justice Thomas, who would defer entirely to the executive branch.

Which of the four opinions in a case that's already been decided in Hamdi would you say best approximates your views on the executive powers to designate enemy combatants, the plurality opinion, the Souter/Ginsburg opinion, the Scalia/Stevens dissent, or the Thomas dissent?

ROBERTS: Well, Senator, that does get into the area asking me to comment on which opinions I think are correct that I don't feel it's appropriate for me to go.

I do know that the approach in this area is the approach set forth by Justice Jackson in his concurring opinion in the Youngstown case. That has set the framework for consideration of questions of executive power in times of war and with respect to foreign affairs since it was decided.

And as you know, the issue in those cases and in many of the cases in the Supreme Court is whether Congress has endorsed the executive action, in which case the president has his powers and the powers of Congress; whether Congress has prohibited the executive action, in which case all he has is whatever residual authority he has less the power of Congress; or what often happens, that vast middle area where it's impossible to tell or there's argument about whether Congress has approved the action or not.

The Dames & Moore case that was decided in 1981 is an example of that when to resolve the Iranian hostage crisis, the president abrogated claims and relegated those with claims to the Iranian claims tribunal. The issue there, the court looked back at a variety of congressional enactments going way back to the Civil War to try to determine if this type of exercise of authority is something Congress endorsed or opposed.

FEINGOLD: But with regard to these opinions, and I understand your hesitance to comment on a particular opinion or the nature of the reasoning, but which of the approaches in terms of the actual finding of the opinion do you find closest to your view?

ROBERTS: Well, again, I don't remember which of those opinions follows the Youngstown analysis the most closely. My understanding of the appropriate approach in this area is that it is the Youngstown analysis, the one sent forth in Justice Jackson's concurring opinion. And I think that is the most appropriate way to flesh out the issues.

You do need to understand, because this is an area in which judges need to understand, there is often conflict between the branches. And you do need to at least set the table correctly to understand, is the president acting with congressional support, against it, or do we have to try to determine which of those areas it is. And I think you do need to lay that analysis out before deciding the case.

FEINGOLD: Last month, when I was home in Wisconsin, a constituent came up and said to me that he believed the D.C. Circuit decision in the Hamdan case, a different case, which you joined in, to uphold the government's ability to try a Guantanamo Bay detainee by military commission, should disqualify you from being on the Supreme Court.

This is apart from the issue that Senator Schumer and I wrote you about, which I'll turn to later. I want to know with regard to the substance of the decision, why do you think someone would think that your decision in that case -- why would somebody come up to me and say that your decision in that case should disqualify you from consideration as a Supreme Court justice?

ROBERTS: Well, Senator, you've touched upon an area in which I cannot comment. That case is still pending. It's pending before the Supreme Court. Under the Judicial Canons of Ethics, Canon 3A(6), I'm not supposed to comment publicly in any way about a case that's still pending.

FEINGOLD: Not asking you to comment on the case. I'm asking you why you think somebody who I represent would care enough about this issue that they would say this should be a disqualify. In other words, characterize what is the issue in the case that would make somebody that concerned that he would make such a statement.

ROBERTS: Well, the issue involves the same sort of issues that you began the discussion with, the question of civil liberties in wartime.

ROBERTS: And certainly I understand people having strong views on that particular question. But whether the decision on the merits was correctly resolved or not, or anything about it, I'm just absolutely prohibited from talking about it by those judicial canons.

There's even an advisory opinion that explains that that canon applies to a Senate confirmation hearing. So my ethical obligation not to comment publicly on a case that's still pending prevents me from saying anything more.

FEINGOLD: Of course I respect your judgment on these matters, but I believe that it's important that a nominee indicate a sense of why people in this country might have some anxiety at this point.

ROBERTS: Well, it's difficult...

FEINGOLD: Events that have occurred since September 11th, and how it creates a climate of fear and particularly fear of government power, that I think it's important not only for members of Congress, but even members of the Supreme Court help minimize. And I'm just trying to get a sense if you feel that concern in the nation.

ROBERTS: I certainly don't minimize the significance of a decision by a court of appeals or by the Supreme Court about the scope of executive authority in this area, about its impact on individual liberties, about the issues of separation of powers and whether the relation between the Congress and the executive, whether the executive is acting with congressional endorsement and support, or in the face of congressional opposition.

Those of course are very sensitive issues and always have been throughout our history. I certainly appreciate that. Those are significant matters. It's just that I'm prohibited from talking about the substance of the case.

FEINGOLD: Let me talk to an aspect of the case that I think you can speak to. Many people were surprised to learn in your questionnaire submitted to the committee that you were interviewed by the attorney general in connection with a possible vacancy on the Supreme Court on April 1st of this year.

Just six years before, you sat in the panel that heard oral arguments in the Hamdan case. While the case was still pending, before a decision was issued, you had additional interviews in May with the vice president, the White House counsel, Mr. Karl Rove and other top officials.

FEINGOLD: I'm going to give you an opportunity to explain why you think it was not necessary for you to recuse yourself from this case, but first I'd like to know: Did the possibility of recusal, because you were under serious consideration for Supreme Court, occur to you or was it raised with you at any point prior to the oral argument in the case?

ROBERTS: Senator, that again is a question I can't answer for you. I can't address that.

There's a motion pending in the court seeking to file a petition to recuse and that motion is pending. It's a mater I can't talk about outside of the judicial process.

In addition, because the Hamdan case itself is still pending, I don't think it's appropriate for me to address that.

FEINGOLD: Judge, I'm a little disappointed with that answer. As you know, Senator Schumer and I sent you a letter asking questions about this issue, and then we received a letter on September 1 from the assistant attorney general for legislative affairs at the Department of Justice on your behalf.

It says, quote, "Your August 24th letter requested Judge Roberts answer certain questions regarding the D.C. Circuit's recent decision, Hamdan v. Rusmfeld. As you know, Chairman Specter has scheduled hearings on Judge Roberts' nomination to begin immediately after Labor Day. At that time, Judge Roberts will be available to respond to questions from all senators on the committee," unquote.

Now, I took that to mean a little more than telling me you couldn't talk about it. Are you now refusing to answer a question even about when this issue came to your attention?

ROBERTS: Senator, we're talking about the canons of judicial ethics. They are quite clear on the subject. They say I may not talk about a matter that's pending before a court.

FEINGOLD: Even when it first came to your attention?

ROBERTS: That matter is still -- it's pending before the court. My hands are tied. It's not something I can discuss under the canons of ethics.

FEINGOLD: Guess I'll have to move on.

Let's go to voting rights. I want to follow up to Senator Kennedy's questions about the Voting Rights Act and, in particular, about your opposition to amendments to that act in 1982 when you were an adviser to the attorney general in the Reagan administration's Justice Department.

In 1982, Congress voted overwhelmingly to amend Section 2 to reinstate the test for vote delusion that many lower courts had used prior to the City of Mobile case -- one that looked, as we talked about earlier, at the effects of an electoral scheme on the ability of minorities to elect candidates of their choice rather than on the intent behind the scheme.

While you were in the Reagan Justice Department, you seemed to have done almost in your power to thwart that congressional effort.

FEINGOLD: Your view was that the intent test should stand. This was the policy position of the Justice Department, which as you've indicated -- and you wholeheartedly supported at the time.

Your memos make that very clear. In one memo, you lamented that the House bill then under consideration would make it much easier to attack a, quote, "such widely accepted practices as at-large voting," unquote.

Now those practices, of course, were among the most commonly used systems to prevent the election of any minorities to local government bodies.

We know that the effects test put into place in the 1982 amendments to the Voting Rights Act has been very successful in improving minority representation in Congress and at all levels of government.

Do you believe today that those gains have been good for the country?

ROBERTS: I think the gains under the Voting Rights Act have been very beneficial in promoting the right to vote which is preservative of all other rights.

The issue about how to extend the Voting Rights Act, again, my position was a member of staff in the Justice Department.

The administration position of extending the Voting Rights Act for the longest period in history as is without change was in no sense reflective of any disagreement with the proposition that the Voting Rights Act was extremely valuable in securing not just the right to vote but all other rights...

FEINGOLD: But what I'm trying to get at here, Judge, obviously, is this distinction between effects and intent. Let's follow up on the fact that you said that these gains have been good for the country. Do you believe that these gains we've seen in minority representation would have occurred if your review supporting the intent approach had prevailed in 1982?

ROBERTS: Well, I think some of them would have. I don't know if all of them would have. It's obviously impossible to tell, to go back and determine whether a particular application of a different approach would have had the same results or different results. I think that's very hard to...

FEINGOLD: Do you still believe that the intent test was the more appropriate standard by which to evaluate both dilution claims?

ROBERTS: Senator, my personal view of the Voting Rights Act is not somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a senator.

FEINGOLD: I'm not questioning what your view was then...

ROBERTS: I'm just saying...

FEINGOLD: ... I'm asking what you think now, having -- this is pretty settled area; I think you'd agreeing -- having seen all this, having been intimately involved in it, knowing it as well as you do, do you believe that the intent test was still the more appropriate standard by which to evaluate vote dilution claims?

ROBERTS: Senator, I haven't studied the Voting Rights Act to determine whether the intent test or the effects test would have different results in different cases under section two. I'm in no position to make a judgment on that.

FEINGOLD: It would be my sense that you would be a person who would, with your enormous abilities and background, to have some sense about that. Obviously, understand that requiring a voter to prove any additional factor makes it harder for the voter to win the case and that to prove the intent of an entire legislative body can be very difficult, especially when a voting system was put in place many years ago, requiring African Americans, Latino voters, many of whom have had limited financial resources, to find evidence of intent was adding an enormous hurdle for them to overcome.

In the Mobile v. Bolden case itself, which was pursued after the Supreme Court's decision in 1980 and before Congress amended the law in 1982, makes it very clear, I think clear to all of us over the years, how difficult that standard was.

African Americans from Mobile, Alabama, had been unable to elect any candidates to the position of city commissioner for every election cycle for something like seven decades. They challenged the method of electing city commissioners that allowed the same majority to choose all the commissioners all the time in at-large elections, and the evidence was very clear that as a practical mater, although African Americans could register and vote, they couldn't elect anyone.

But to get relief under the Supreme Court standard, which you appear to have supported, they had to go to enormous effort and financial expense to prove discriminatory intent, including hiring a historian who could piece together the motivations of city officials who had designed the electoral system almost 100 years earlier.

In this situation, the administration was not bound by a Supreme Court decision in deciding what position to take on the proposed Voting Rights Act amendment. So why at that point did you want to make section two cases so difficult to prove?

ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships.

I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point. And it was my job to promote the attorney general's view and the president's view on that issue. And that's what I was doing.

FEINGOLD: I recognize that. What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about whether you were right about -- or the department, let's say, since you were working for them -- whether the department was right on seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.

ROBERTS: Well, Senator, I haven't followed the issue of the particular litigation. I had involvement in some litigation when I was in the Solicitor General's Office in which we were effective in proving violations under the Voting Rights Act.

Many of those cases arose under issues under Section 5 -- pre- clearance issues -- and not under Section 2. I, as a judge, had a case -- a three-judge district court case -- again arising under the pre-clearance provisions. But I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

FEINGOLD: Well, with all respect, and I realize I should move on to another topic, but it just seems how strongly you stated some of these memos -- and I understand you were doing your job -- I would think you'd have a view today whether or not those strong statements still make sense.

But, let me move on. As you know, 42 U.S.C. 1983 is a federal law that allows Americans to sue those who deprive them of their rights under the Constitution or federal statutes.

Section 1983 is a very important law because it has enabled individual whose are deprived of their rights to such things as Medicaid, public housing, child support enforcement and public assistance to enforce those rights in federal court.

FEINGOLD: And I'm a little concerned that you seem to consistently argue for making it harder to bring Section 1983 lawsuits. In briefs you have filed, you advanced a series of arguments to effectively reverse decades of Supreme Court decisions and restrict Americans' ability to enforce federal statutory rights under Section 1983.

As deputy solicitor general, you co-authored an amicus brief and argued in front of the Supreme Court in a case called Wilder v. Virginia Hospital Association.

You said that individual Medicaid providers should not be able to sue under Section 1983 to enforce a provision of the Medicaid statute which requires states to reimburse them for services at reasonable rates.

One of the arguments you made is that in order for a statutory right to be enforceable under Section 1983, the court must find that the Congress clearly intended, quote, "to authorize private enforcement of that right in federal court," unquote.

You repeated this argument in another case you later argued when you were in private practice, Gonzaga University v. Doe.

The Supreme Court rejected your arguments in Wilder and found that the Medicaid providers could sue. In the later Gonzaga case, the Supreme Court specifically rejected your argument and found that it was not necessary for plaintiffs in a 1983 case to show that Congress intended to create a private right of action to bring a lawsuit, since Section 1983 already supplies a cause of action.

What role did you play in deciding that the government would participate as amicus in the Wilder case? And what role did you play in developing the argument that it made? And did you agree with the position that the government took in the case?

ROBERTS: I'll answer the question, but before I do so, the position I advanced in the Gonzaga case prevailed.

The argument that we made on behalf of the university -- I was obviously representing the university's position -- and they prevailed before the Supreme Court.

In the Wilder case, the determination to participate as an amicus was made by the solicitor general, and I don't recall a particular role in that case. I worked on the brief; I presented the argument. We lost that case 5-4. It was a close issue.

All of these issues go to the question of what Congress intended to do. If Congress had spelled out whether or not a right should be enforceable in court, that is what the determination would be in court. These issues arise only because of confusion over whether or not Congress has spelled out that a right should be enforceable in federal court for damages or not.

ROBERTS: And in the Wilder case, the court determined 5-4 that the right should be enforceable in federal court. We were as an amicus supporting one of the states. I don't remember which one it was. And the state was making the argument that there is -- the right is -- the issue in all of these cases is whether the right should be enforceable administratively as opposed to...

FEINGOLD: Excuse me, I'm about to run out of time.

Let me point out that the Supreme Court did not accept the argument that the plaintiffs had to show that Congress intended to create a private right of action.

And I'm wondering now: Do you now agree with the argument that you've consistently made, both as a government lawyer in Wilder and while in private practice in Gonzaga, that individuals should not be able to sue under Section 1983 to enforce a right unless the Supreme Court finds that Congress clearly intended to authorize private enforcement of that particular right in federal court?

ROBERTS: Well, the Gonzaga decision, which there were various arguments made in the brief, the ruling of the court was in favor of the university that I was representing.

And the determination in the Gonzaga case about what should be shown and what has to be shown is one of the precedents of the court that I would follow as any other consistent with rules of stare decisis.

That's not an area in which I have any particular view.

I've argued both sides of that issue: on behalf of plaintiffs, argued in favor of it; and on behalf of defendants, against it.

Again, the issue is not the enforceability as in Gonzaga. The issue was: Should individuals be allowed to bring suit as opposed to action by, in that case, the Department of Education?

FEINGOLD: Thank you for your answers, Judge Roberts.

ROBERTS: Thank you, Senator.

Back to Part IV of Sept. 13 transcript. Go to Part VI of Sept. 13 transcript (Sens. Cornyn and Schumer).

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