Transcript: Day Two of the Roberts Confirmation Hearings

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Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005; 9:43 PM

The transcript picks up after Sen. Feingold's questioning (back to Part V).

Senator Graham? 

GRAHAM: Thank you, Mr. Chairman. 

I imagine the reason that you argued different positions is because people paid you. Is that correct? 

ROBERTS: That's how I made my living, Senator. 

GRAHAM: OK. I can relate to that. 

I imagine it must be very hard to figure out what Congress intends. Do you agree with that? 

ROBERTS: Sometimes it's easier than others and sometimes it's hard to read the tea leaves. 

GRAHAM: I can relate to that also. 

I want to read an excerpt from the National Association of Women Lawyers and their evaluation of you -- 8/30/05 -- "As a lawyer and judge, based on interviews the committee conducted, Judge Roberts has treated individual women lawyers fairly and with respect, has fostered careers of women lawyers, has been helpful in enabling women to address work/life balance issues while advancing professionally, and has been consistently described as respectful to female colleagues, female lawyers appearing before him and female employees."

GRAHAM: You've been asked about every case, I think, ever written by anyone. I would like to talk to you a little about life. 

The idea of judging you based on this section of the commerce clause and that section of the commerce clause is important, but I think most Americans want to know a little bit about you. 

And from what I can tell, the people who've worked with you and against you generally like you, and that you've been described as brilliant, one of the best legal minds of your time, well-qualified. 

The adjectives go on and on. And I want the record to reflect: That comes from people who know you the best. The best indication of a good lawyer is how people on the other side think of you. And we'll get some excerpts from the record to put that into the record. 

Apparently, from what I can tell, you've conducted your life in a noble, honorable manner; that you've been a good litigant; and that you have fought for your causes and you have done so to earn respect of those on both sides of the aisle. 

But there's a greater issue here about who you are. 

Justice Rehnquist was your mentor, is that correct? 

ROBERTS: He's certainly someone from whom I learned a great deal, yes. 

GRAHAM: OK. 

So if I was trying to figure out who John Roberts is and a little bit about him, I will ask this question: Write the legacy of Justice Rehnquist for a minute or two. What would you say if given that task? 

ROBERTS: Well, you know, I think if you were able to ask him, he would talk about being a grandfather, being a father...

GRAHAM: I'm asking you. 

ROBERTS: ... being a husband.

GRAHAM: I'm asking you. 

ROBERTS: But the important point is that those were important things in his life and he appreciated the need to recognize that those are the most important things. 

With respect to the law to which he devoted his professional life, I think a big part of the legacy that he leaves is a Supreme Court in which all of the members respected and admired him because of his fairness in administering the court and conducting the important responsibilities like managing the conference and assigning opinions. 

GRAHAM: You can go back in history and look at what other chief justices did.

Some were -- in terms of that administrative responsibility -- some were disasters. 

You look at Harlan Stone, his idea of running the conference, he said what he thought, then the next senior justice said what he thought. Then Justice Stone critiqued that. Then the next justice, and then Justice Stone critiqued that. 

And the result was the conferences went on for days and everybody ended up hating each other. 

So he ran a good ship. I think we all agree with that. And his colleagues respected him whether they disagreed with him or not.

But the basic question is, when you write about the legacy of a Supreme Court justice, you write more than about being a grandfather -- more about running a tight ship, especially chief justice: Would you agree with the idea that, from a conservative point of view, he was the gold standard? 

ROBERTS: I think he was a very effective advocate on the bench for a view of the Constitution that is one of limited and separated powers. 

GRAHAM: Do you share that view? 

ROBERTS: I do. I think that the -- now, I have to tell you that whether as a judge on the court of appeals or if I am confirmed on the Supreme Court, I will certainly be my own man and there are...

GRAHAM: No one is doubting that. No one is doubting that you will not try to be fair. But the big thing, 30,000-foot view of you, is that when you look at Judge Roberts, you're looking at someone in the mold of a Rehnquist. Is that a fair assessment? 

ROBERTS: Well, you know, I admire the late chief justice very much. But I will have to insist that I will be my own man and I hesitate to be put in anybody's mold. And I would certainly approach the cases according to the judicial philosophy that I have developed over the years. 

In many respects, it's similar to his: in its recognition, I think, of the limited role that judges should have, an appropriate modesty and humility, a recognition that...

GRAHAM: The idea of a dramatic departure under your watch from the Rehnquist era is probably not going to happen, is that true? 

ROBERTS: Given my view of the role of a judge which focuses on appropriate modesty and humility, the notion of dramatic departures is not one that I would hold out much hope for. 

GRAHAM: I know people don't like being labeled, "Put me in that category." But I'm in a business where people label me all the time. But I ask for it, I run for office. 

But we do tend in our business of politics to try to label people, particularly when we're talking about judges. 

When the president introduced you to the United States, to the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words? 

ROBERTS: Well, I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their posterity. They were looking ahead. And so they often used phrases that they intended to have...

(CROSSTALK)

GRAHAM: Does that term make you feel uncomfortable? 

ROBERTS: No. 

GRAHAM: Now, from a 30,000-foot view of things, it seems to be that we're going to have a referendum on the Reagan era here, which I welcome. I sort of enjoyed it, he won 49 states. He did pretty good.

You were part of the Reagan era as a young lawyer. When I use the word -- term -- Reagan revolution, what does it mean to you? 

ROBERTS: Well, it means to me generally a change in attitude. President Reagan always presented an optimistic view. He always told us that the best days of our country were ahead of us. And he reasserted basic fundamental truths in areas like foreign relations. We are going to stand up to the Soviet Union. We're proud of our system of government. That's the right approach, not the Soviet approach. And people who have come of age after the Berlin Wall has fallen sometimes don't understand what it meant at that time.

GRAHAM: When it comes to the law, what does the term Reagan revolution mean to you? 

ROBERTS: I think it means a belief that we should interpret the Constitution according to its terms; that judges don't shape policy; that judges interpret the law and that legislators shape policy; that the executive branch executes the law. 

GRAHAM: Does it also mean that when you talk about affirmative action and you set up a quota system, that's not right? 

ROBERTS: President Reagan's policy was opposed to quotas, which were much more rigid at the time. 

People need to appreciate 24 years ago the idea of a quota was a rigid set-aside. We now have the recent Supreme Court decisions talking about consideration of particular factors as one factor in an affirmative action program. 

President Reagan was in favor of affirmative action and he was opposed to quotas. 

GRAHAM: When it comes to voting rights, as I understand -- and we talked a lot about it, and we probably know more than all of us ever dreamed we would know about the Voting Rights Act -- that you were implementing a policy of President Reagan that wanted to pass the Voting Rights Act in its form that you received it. Is that correct? 

ROBERTS: The proposal was to extend it for the longest period in history without change. 

GRAHAM: And we've been through a long discourse about the effect and intent test. I think you've explained yourself very well that the Supreme Court in the Mobile case said the intent test applies to Section 2. Is that right? 

ROBERTS: Section 2. 

GRAHAM: But politics took over after that, didn't it? Because the effect test no longer -- that's not the test. Isn't it some compromise between Senator Kennedy and Senator Dole? 

ROBERTS: There was a compromise in the test under Section 2, which is articulated in a paragraph describing what the criteria are, including a caution that this should not be read to promote proportional representation, which was some of the concern that the attorney general and President Reagan had. 

GRAHAM: So between Dole, Senator Kennedy and President Reagan, a new test was called the totality of the circumstances? 

ROBERTS: Yes. 

GRAHAM: Now, when you said that you -- Senator Kennedy said something I thought was very important: that courts should not stand in the way of elected officials who are trying to right wrongs. 

GRAHAM: And the point I'm trying to make here is that you were picked by a conservative president because you have associated yourself with the conservative administrations in the past, advising conservative presidents about conservative policies.

And there's another selection to be made, and you're going to get the same type person. 

And you can -- I'm not even talking to you now. 

(LAUGHTER)

To expect anything else is just not fair. I don't expect -- I didn't expect -- President Clinton to pick you. It's not because you're not well-qualified, not because you're a good person; just a different political, legal philosophy. 

Now, that's what we're going to have to come to grips with here. 

Justice Scalia: Do you consider him conservative? 

ROBERTS: Yes. 

GRAHAM: Do you think you're more conservative than he is? 

ROBERTS: Oh, I don't know. I mean, I wouldn't...

GRAHAM: Well, he got 98 votes. And I think you're a conservative, but I think you're one of the great minds of our generation, of our time. And I'm dying to find out if you get any votes on the other side. 

Time will tell. 

Let's talk about righting wrongs here. I think it stinks that somebody can burn the flag and that's called speech. 

What do you think about that? 

ROBERTS: Well...

(LAUGHTER)

We had the Flag Protection Act after the Supreme Court concluded that it was protected speech. 

GRAHAM: Show me where the term "symbolic speech" is in the Constitution. 

ROBERTS: Well, it's not. 

GRAHAM: It's not. They just made it up, didn't they? And I think it stinks that a kid that can't go to school and say a prayer if he wants to voluntarily. 

What do you think about that? 

ROBERTS: That's something that's probably inappropriate for me to comment on. 

GRAHAM: What do you think Ronald Reagan thought about that? 

ROBERTS: His view was that voluntary school prayer was appropriate. 

GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn. 

GRAHAM: What do you think about that?

ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because...

GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials? 

ROBERTS: Well, again, those are issues that come before the court on a regular basis in particular cases. And on my current court or the future court, I need to be able to approach those cases with an open mind and not on the basis of statements I make during a confirmation hearing. 

GRAHAM: The point is that righting wrongs is a very subjective thing. And you will be asked to decide the fate of people with individual needs and individual desires, based on particular fact patterns and legal briefs. 

I'm confident you can do that and that you will do that. And I don't think you need to make a bargain with me to right all the wrongs that I see in life to sit on the Supreme Court. 

What's it like to go through the nominating process in 2005 from a personal point of view? I've been watching television, channel flipping, and I see some awful things said about you. Have you seen those things?

ROBERTS: I've seen some things, yes.

GRAHAM: How does that make you feel?

ROBERTS: Well, some of the mischaracterizations, you know, you get annoyed at them. I don't like them. Some of the things you see you get pretty upset about.

GRAHAM: How's it make your family feel?

ROBERTS: I would say they get upset about some of the things, as well.

GRAHAM: But, you know, it's a free country and that's just the way it is. Right?

ROBERTS: It is, and it's an expression I've been using a lot lately. It is a free country, and it's a good thing that it is.

GRAHAM: Let's not talk about you now, but I would like you to comment, give us some advice here. We're always trying to advise the president through you.

What's the long-term effect on the quality of candidates that we'll be able to recruit for jobs like the Supreme Court if the current process continues and grows over time?

ROBERTS: I think it is a very serious threat to the independence and integrity of the courts to politicize them. I think that is not a good development, to regard the courts as simply an extension of the political process. That's not what they are.

I have been fortunate for the past two years to serve on a court in which all of the judges -- and they come, the D.C. Circuit, they come from very active careers in public life and sometimes very identified politically -- but it's a court where those judges put aside those ties and those views and become judges all focused on the same mission of vindicating the rule of law.

And if you look at the decisions on the D.C. Circuit, you'll see that we are almost always unanimous, we almost always come out the same way. And to the extent there are disagreements, they don't shape up along political lines.

That is an ideal. But the more and more that the process becomes politicized, the less likely that that's going to happen.

GRAHAM: Another line of inquiry that's been disturbing to me is that we talk about the clients you represent, whether it be the Ronald Reagan administration or some private sector client, and we tend to hold that maybe unpopular position against the lawyer. There's more and more of that happening. 

We've had court of appeal nominees that were accused of being insensitive to the disabled population when they won their case 9-0 in the Supreme Court defending a university from the idea that they were not covered under the Americans with Disabilities Act.

I really do worry that in the future that if we up here start holding who you represent against you, that young lawyers in the future will pass on the hard cases. 

What's your thoughts about that? 

ROBERTS: You know, it's a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients.

The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. 

ROBERTS: Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it.

And that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.

GRAHAM: Do you believe it's being eroded? 

ROBERTS: I do think there is an unfortunate tendency to attack lawyers because of the positions they press on behalf of clients. And I think that's unfortunate. 

GRAHAM: I'm going to give you some examples of a sitting Supreme Court justice and her positions and basically take us back to the good old days where you could have what I think are extreme positions and still make it. 

Are you familiar with the ACLU? 

ROBERTS: Certainly. 

GRAHAM: In the conservative world, how does that rank on the food chain? 

ROBERTS: I don't know that I could comment on that, but they have a consistent position of promoting civil liberties and a particular view on that.

GRAHAM: If you came to the Reagan administration and the top thing on their resume was the general counsel for the ACLU, do you think they would hire you? 

ROBERTS: Might make it a little harder. 

(LAUGHTER)

GRAHAM: Yes.

(LAUGHTER)

I think that's a good observation. 

Well, we have, on the sitting Supreme Court now, the former general counsel for the American Civil Liberties Union, who is a very nice lady, extremely qualified -- I don't agree with her hardly at all -- but a great lawyer. 

She has written that the age of consent for women should be 12, that all prisons to have gender equality, men and women should be in the same prison because, when you separate them, women prisoners somehow are discriminated against. 

She wanted to do away or argued the idea that Mother's and Father's Day should be done away with because it stereotypes men and women -- that there's a constitutional right to prostitution. 

I can give you -- and I'll introduce into the record -- writings from her point of view that most conservatives would find totally unacceptable. But this person, this lady, the former ACLU executive counsel, is sitting on the Supreme Court, and she got 96 votes. 

She said that there should be federal funding for abortion. 90 percent of our caucus is pro-life -- is that about right? Pretty close? I could assure you that, if a Republican was going to make their vote based on abortion thinking, she would have gotten no votes. Most Americans don't want federal funding of abortion, even though they're divided on the issue of a woman's right to choose. 

GRAHAM: She has argued that the equal protection clause guarantees a right to abortion. 

Now, I completely differ with that, and I'm sure the conservatives in the Senate at the time of her confirmation completely differed with that: the idea the age of consent should be 12, that bigamy statutes are discriminatory to women. 

I can go on and on and on. 

And the point I'm trying to make is that all of that was put aside, who she represented and what she believed and the position she took, and somehow back then they're able to see in Justice Ginsburg a well-qualified, brilliant legal mind and they deferred to President Clinton because he won the election. 

Whether that happens to you, I don't know. 

But for the sake of the country and the rule of law, I hope you can be in the ballpark of where she wound up. 

Last two questions. 

In your opening statement, you articulated the rule of law in a way that I thought was just outstanding. It was emotional, it made sense, average people could understand it: that the courtroom is a quiet place, Judge Roberts, where you park your political ideology and you call the balls and you call the strikes, and you try to give every American a fair shake and you put politics in its perspective. 

What is your biggest concern, if any, about the rule of law as it exists in America? And what are the biggest threats to the rule of law as we know it today? 

ROBERTS: Well, you know, the rule of law is always vulnerable because the Supreme Court, as has been pointed out often in history, has only the persuasive power of its opinions to command respect. 

There have been famous episodes in the past, you know -- President Jackson, Chief Justice Marshall has given his opinion; let's see him enforce it -- other episodes of that sort. 

But over time, the legitimacy of the Supreme Court has been established and it's generally recognized across the political spectrum that it is the obligation of the court to say what the law is and that the other branches have the obligation to obey what the Supreme Court says the law is. 

ROBERTS: The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law. 

And because it's the Supreme Court, people are going to follow it even though they're making the law. 

The judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before, and I'll just repeat myself: The framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, "Let's take all the difficult issues before us and let's have the judges decide them. " That would have been the farthest thing from their mind.

The judges had the obligation to decide cases and the authority to interpret the Constitution because they had to decide cases. And they were going to decide those cases according to the law, not according to their personal preferences. 

Judges have to have the courage to make the unpopular decisions when they have to. That sometimes involves striking down acts of Congress. That sometimes involves ruling that acts of that executive are unconstitutional. That is a requirement of the judicial oath. You have to have that courage, but you also have to have the self- restraint to recognize that your role is limited to interpreting the law and does not include making the law. 

GRAHAM: What would you like history to say about you when it's all said and done? 

ROBERTS: I'd like them to start by saying: He was confirmed. 

(LAUGHTER)

Whether they say that or not, I would like -- the answer is the same, I would like them to say I was a good judge. 

GRAHAM: Thank you very much. I have no further questions. 

SPECTER: Thank you very much, Senator Graham. 

Senator Schumer? 

SCHUMER: Thank you, Mr. Chairman. 

And thank you, Judge. 

SCHUMER: It's been a long day, and I guess we have a little bit longer to go. 

But you've been talking something about baseball. We've been talking about it this morning. 

I'll start out by pitching you something of a softball, an issue I think on which reasonable Americans can agree, and those are the recent and abhorrent attacks on the federal judiciary. 

Many Americans have become concerned that the judiciary have come under escalating and, many would say, inappropriate and unjustified criticism from certain quarters -- not just criticism of the legal reasoning, but it goes way beyond that. The rhetoric gets pretty hot. 

And, as you know, one of your mentors and our late Chief Justice Rehnquist was a passionate defender of the independence of the judiciary. I didn't agree on with him on a whole lot of things, but I sure respected that. And he did a good job both with our committee and everywhere else, making sure that happened. 

So you will be chief justice. We haven't talked about your role much here much as chief justice -- the chief, the leader of the courts, the head of the judiciary. And I think one of your important roles is to defend the independence of the judiciary. 

So I'm going to read you a few statements that were made about federal judges in recent months. Televangelist Pat Robertson claims that, quote, "An out-of-control judiciary is the single greatest threat to democracy," unquote; that judges are creating a, quote, "tyranny of oligarchy," unquote; and that the threat posed by the federal judiciary is, quote, "probably more serious than a few bearded terrorists who fly into buildings." 

Do you find that -- do you disagree with that statement? 

ROBERTS: I do disagree with that conclusion, Senator. I think it's perfectly appropriate for people to criticize decisions of judges. That comes with the territory. It's a healthy thing. That type of criticism and analysis, saying the judge got it wrong, the court got it wrong, is healthy and good. 

ROBERTS: And the only thing I would say is I'm not sure whether that criticism is along that lines.

But personal attacks on judges for doing their best to live up to the judicial oath, that is something that I don't think is appropriate.

SCHUMER: Isn't this language -- I'm asking about this language. This doesn't seem to be a legal didaction about a court case. When somebody says...

ROBERTS: No, it's not an analysis. 

SCHUMER: ... judges are probably more serious -- the threat posed by federal judges is, quote, "probably more serious than a few bearded terrorists who fly into buildings," isn't that kind of quote abhorrent and inimical to our system? 

ROBERTS: I don't agree with that. And all I'm saying is that I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges -- and certainly even judges with whom I disagree on the results or particular merits -- they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate. 

SCHUMER: Would you be a little stronger than that in terms of language like this? I mean, "not appropriate," is kind of mild in these kinds of sort of inflammatory-type statements about the judiciary that you may soon be entrusted with protecting. 

ROBERTS: Senator, I said yesterday that if confirmed I would be vigilant to protect the independence and integrity of the Supreme Court and the judicial branch, and that is true. An independent judiciary is one of the keys to safeguarding the rule of law. Again, I said that yesterday and I believe that. And to the extent the judiciary is attacked, I will be vigilant to respond and defend it. 

SCHUMER: Let me read you two more and just tell me how you'd characterize them.

Conservative lawyer and author Edwin V. Aris (ph) suggested that Justice Kennedy, an appointee of Ronald Reagan, ought to be impeached for his decisions, and quoted Stalin's infamous problem-solving solution of, quote, "no man, no problem." 

And Tony Perkins of the Family Research Council said, quote, "The court has become increasingly hostile to Christianity and it poses a greater threat to representative government more than anything, more than budget deficits, more than terrorist groups." 

Do you strongly disagree? 

Don't those statements turn your insides a little bit? 

ROBERTS: You know, again, I don't agree with them. 

But it's a free country. They're free to say what they wish. 

But the issue of impeachment was resolved in the Salmon Chase hearing. The basic principle was established: You don't impeach judges if you disagree with their decisions. 

That's not what the impeachment provision is for.

SCHUMER: Take it and just answer. 

If you became chief justice, you would do whatever you could to dispel these kinds of notions and oppose people who said things like this when they say these things? 

ROBERTS: Well, I would do what I can, Senator, to make clear to people -- and I do think it's an important educating function -- that what judges do promotes the rule of law, and that the rule of law preserves liberties for all Americans. 

I'm obviously not going to infringe anybody's First Amendment rights. People are free to say what they are.

SCHUMER: I'm not asking that.

I'm asking just your First Amendment opinion of these kinds of things, and the most I guess you said is you disagree. 

ROBERTS: Senator, people from all across the political spectrum have attacked judges. They do it now. I've seen some very virulent attacks from all over the political spectrum and certainly throughout history. 

Again, judges can stand the criticism of their opinions, but personal attacks I think are beyond the pale. 

SCHUMER: OK. I'd like to go over some other things here. 

I have to say I've been pleasantly surprised by some of your answers today. 

As you know from our private meetings and my opening statement yesterday, my principal concern is ensuring that we don't have people on our court who will dismantle the structural protections that have guaranteed our most fundamental constitutional rights. 

SCHUMER: And what troubles me and why I think many people are bothered by this right now, is that the president has openly stated that nominees will be chosen in the mold of justices who have stated, repeatedly, their desire to roll back the clock on some of these basic protections.

In my view, over the past 60 or 70 years, maybe longer, three legs have sustained our constitutional rights: the Fourteenth Amendment's guarantees of equal protection and substantive due process; the right to privacy; and a broad delegation of authority to Congress to pass legislation -- usually under the commerce clause -- necessary to protect our nation's security, the environment, Americans' health and workers' civil rights. 

On the first two, you have given answers that I think show that you want to protect those rights. And I just want to repeat them and just make sure that you're on the record for them. 

To Senator Biden -- he asked: Do you agree there's a right to privacy to be found in the liberty clause of the Fourteenth Amendment? And you responded, "I do, Senator. Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy, and it's not protected only in procedural terms but it's protected substantively as well." 

That accurately states your view? 

ROBERTS: Yes. 

SCHUMER: And on the Griswold case and the right to privacy there, you said, in reference to Senator Kohl's question, quote, "I agree with the Griswold's court's conclusion that marital privacy extends to contraception and availability of that. 

"The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interests protected under the due process clause." 

That is your accurate view? 

ROBERTS: Yes, sir.

SCHUMER: Just one question. I know this could take the rest of our time, but if you could answer it succinctly, just tell me how -- I'm interested in how you will divine what that right to privacy means. I mean this is going to be an issue in the 21st century that's before us in many, many different ways. And there's no words in the Constitution. 

ROBERTS: Well, the court in, for example, I think most recently in the Glucksberg case, talked about the necessity of considering the nation's history, traditions and practices. 

As Justice Harlan always explained in his opinions, you need to do that with an appropriate sensitivity to the limitations on the judicial role. 

Again, you need to recognize that it is not your job to make policy, either under the Constitution or under the statutes. 

ROBERTS: You are interpreting the Constitution. And the appropriate judicial role focuses on those considerations, tradition and history and practice, as developed in the court's precedents. And that's where I would start. 

In any case where the issue came up as to whether or not a particular issue was presented under the due process clause, you begin with the precedents. You analyze them under principles of stare decisis -- the precedents in this area, just like precedents in any other area -- and analyze them in light of those different factors. 

All the justices recognize that in this area that you need to be especially careful about the source of the content that you're giving to the right at issue, because it is an area in which the danger of judges going beyond their appropriately limited authority is presented because of the nature of the sources of the authority. You're not construing the text narrowly, you're not looking at a particular statute with legislative history. All of the justices recognize that it presents particular challenges. 

SCHUMER: OK, thank you. 

Now as I said, there are a few things that I think that many of us were pleasantly surprised about. There are some that we are troubled about. 

I think you've answered some questions, but not answered a whole lot of others. And I'm going to get into that at another point. 

But I do find it very perplexing -- and I'm not going to ask you to comment on this -- your use of the so-called Ginsburg precedent. It seems you cite it when you don't want to answer something. But a few times here when Ginsburg had actually answered those specific questions, you didn't want to answer them and you ignored the precedent. And I don't think that's what precedents are, even in this more unique role. 

So I hope you'll think about that overnight because I'll get back to that tomorrow. 

The other thing that troubled me was the issue of civil rights. Many of us consider racism the nation's poison. De Tocqueville wrote about that since 1832. And we know you wrote these series of memos 20 to 25 years ago. Some of them are written in a tone that suggest you may have been insensitive to discrimination and hostile to equal rights. 

SCHUMER: And I've talked to people who might have felt just that. People have said that.

So my question is not the substance, but do you regret the tone of some of these memos? Do you regret some of the inartful phrases you used in those memos, a reference to illegal amigos in one memo? 

ROBERTS: Senator, in that particular memo, for example, it was a play on the standard practice of many politicians, including President Reagan. When he was talking to a Hispanic audience he would throw in some language in Spanish. 

Again, the memos were from me to Fred Fielding. I think Mr. Fielding always found the tone...

SCHUMER: Don't regret using that term? Could you think that some people might have found it offensive? 

ROBERTS: It was meant to convey the notion, again, as I described, that when politicians speak to a particular audience in that language, is that offensive to the audience? It was meant to convey that. It was an issue concerning a particular radio interview. 

You know, the tone was, I think, generally appropriate for a memo from me to Mr. Fielding, and I know that he never suggested that it was anything other than appropriate.

SCHUMER: I'd have to disagree with you, but we'll leave it at that. 

On a more substantive level, in light of where we are in 2005, admittedly we've progress in civil rights since 1982, can you identify any policy or piece of legislation you argued for or supported in the Reagan era that you now believe went too far, that you now believe would not be good enough for America? 

I'm not challenging that you were representing somebody else then, as you've said to us before, but I'm asking, in hindsight, it's now 2005, you're almost double the years on this earth, any of those policies that you think now, using hindsight, shouldn't have been done?

ROBERTS: Senator, I think some 80,000 pages have been released of memoranda that I wrote. 

SCHUMER: You can just pick one or two. 

ROBERTS: You know, I have not gone back and reevaluated all those policies, no. I do know, though, for example, in the area of civil rights people have talked about memos I wrote about the administration's policy against busing or the administration's policy against quotas. 

Being against busing and being against quotas is not the same as being against civil rights. President Reagan was against busing, President Reagan was against quotas, but he was in favor of civil rights and that was the administration position that I was advancing in those memoranda. 

SCHUMER: I understand you were advancing someone else's position, I was asking your own view if there are any regrets or changes in viewpoint of you personally.

SCHUMER: But we'll leave it at that if you don't want to mention any.

OK. 

I'd like to go to the third leg of protection now, and probably spend the rest of my time on this, constitutional rights, the commerce clause. 

Now, just to briefly encapsulate, you said this: You agree that the Constitution gives the Supreme Court the power to review and invalidate acts of Congress as was held two centuries ago in Marbury v. Madison. 

ROBERTS: Yes. 

SCHUMER: And you also said in questions I guess with Senator Kennedy that you agree with the court's conclusion that segregation of children in public schools solely on the basis of race was unconstitutional as in Brown. 

OK. Well, there's a third case that I'd like to bring up, and it's the third leg of the framework in a lot of ways, and that's Wickard v. Filburn. 

Do you agree with the principle that the Congress has the power under the commerce clause to regulate activities that are purely local so long as Congress finds that the activities, quote, "exert a substantial economic effect on interstate commerce"? 

In other words, can Congress regulate commerce that doesn't involve an article traveling across state lines? 

ROBERTS: Well, that's obviously the court's holding in Wickard against Filburn, and reaffirmed recently to a large extent in the Raich case. 

But I would say that because it has come up again so recently in the Raich case, that it's an area where I think it's inappropriate for me to comment on my personal view about whether it's correct or not. 

That's unlike an issue under Marbury v. Madison or Brown v. Board of Education, which I don't think is likely to come up again before the court. 

This was just before the court last year. And so I should, I think, avoid commenting on whether I think it's correct or not. 

SCHUMER: This is not a recent case. This is Wickard v. Filburn. It's from 1942, I guess it was. It's a basic bedrock of our constitutional law. 

SCHUMER: Law after law, the civil rights laws of 1982 and '65 that you talked about previously are based on the commerce clause, not necessarily on Wickard...

ROBERTS: No, not on Wickard. 

SCHUMER: I understand. But so much of what we do is based on the commerce clause. And you know that there is a movement to greatly cut back on the commerce clause, led by Professor Epstein.

One of the justices that the president said he wanted to appoint more justices like, Justice Thomas doesn't really believe in the holding of Wickard. 

And at a time with Hurricane Katrina, in the midst of the war on terror, when we need a strong national government, I find it -- I'm not asking you -- there's been a holding that's been accepted, and it was accepted in Raich as well by just about everybody, with a few exceptions, I mentioned, that says you don't need the article to cross state lines to be regulateable under the commerce clause by the federal government. 

That seems to me to be as little in dispute as Griswold, as Brown, in terms of its broad acceptance, in terms of a term that you've used, in terms of the stability of our government. 

And I'm really surprised that you are unwilling to simply say -- I'm not asking you for all the variations on the theme, but a fundamental bedrock, which is that Congress can regulate, under the commerce clause things that don't cross state lines is something that is in some doubt. 

ROBERTS: Well, Senator...

SCHUMER: You know, you said that -- excuse me -- you said that there would be unanimity just about, or close to it, on issue after issue. Obviously, there are dissents. 

I think Learned Hand in 1958 said he didn't agree with Marbury, but you said you had not problems going along with Marbury. 

In Brown, I suppose there are still some people who don't believe in Brown here and there.

And here's a bedrock principle, admittedly under attack by what I would call an extreme few, that if we didn't unequivocally back it -- not the variations on the theme, but the fundamental -- the fundamental principle that Congress can regulate if it doesn't actually -- the article doesn't actually cross -- that Congress can regulate manufacturing, because of its dramatic effect on interstate commerce.

And you are unwilling to give Wickard the same status that you give Griswald, which was decided 22 years later or Brown, which was decided 12 years later. I mean, I know that Morrison and Lopez -- but they don't challenge the fundamental precept. 

I didn't ask you if you fully support Wickard. I asked you if you support the proposition that under the commerce clause you don't need the actual article crossing the state line. And you're not willing to say that settled law, that that's part of our established way of law. 

ROBERTS: Well, Senator, all you have to do is look at the arguments, the briefs in the Raich case, where that was the issue that was argued -- whether or not Wickard v. Filburn was still good law, whether or not Wickard v. Filburn should be applied in that situation. 

Nobody in recent years has been arguing whether Marbury v. Madison is good law. Nobody has been arguing whether Brown v. Board of Education is good law. 

They have been arguing whether Wickard v. Filburn is good law. Now it was reaffirmed in the Raich case. And that is a precedent of the Court, just like Wickard, that I would apply, like any other precedent. I have no agenda to overturn it. I have no agenda to revisit it. It's a precedent of the court. But I do think it's a bit much to say that it's on the same plane as a precedent as Marbury v. Madison and Brown v. Board of Education. 

SCHUMER: Or Griswold? 

ROBERTS: Or Griswold.

The fact that it was just reconsidered and reargued last year in the Raich case suggested it's not that same type of case. And that's why I'm uncomfortable commenting on it.

ROBERTS: I have gone farther than many other nominees in talking about cases, like Marbury, like Brown, like Griswold, because I thought it was appropriate, given the fact that those issues are not, in my view, likely to come before the court again.

Here's an issue that was just before the court last year, so I can't say that it's unlikely to come before the court again, and therefore I think it falls in the category of cases which I should tell you I recognize it as a precedent of the court, I have no agenda to overturn it or revisit it, but beyond that I think it's inappropriate to comment. 

SCHUMER: Well, I would say that -- well, let's go to a few more commerce case issues. Again, I think Wickard is as accepted -- not Wickard per se, but the idea that crossing state lines is not the only thing that you need for the commerce clause, that you don't have to have the article cross state lines to be able to regulate is a bedrock of law after law after law that the federal government has passed. And your ability to...

ROBERTS: And I'm not expressing...

SCHUMER: I understand.

ROBERTS: I'm not expressing any hostility to the proposition at all. All I'm telling you is that this is a case that was challenged, the application in the Raich case last year, and to say it's in the same category as Marbury or Brown, I think is inaccurate.

SCHUMER: But, sir, Griswold came up in Lawrence; I don't know how many years ago that was. You can make the arguments that even somehow or other somebody challenged precepts that flow from Marbury. 

ROBERTS: And so perhaps I should have taken the approach Justice Scalia took. He wouldn't tell this committee whether Marbury was correctly decided. 

SCHUMER: Glad you didn't do that. 

ROBERTS: And the reward for not doing that is to have additional cases that are very current in terms of the litigation before the court, and the idea as well, you said what you thought about Marbury. What do you think about the Raich case, which just reaffirmed Wickard v. Filburn?

They're two very different parameters. My approach has been a practical one, not an ideological one, but a practical one. 

SCHUMER: I'm sorry. 

Just explain to me why you can say it about Griswold, which I'm glad that you did, but not about Wickard. Both of them have been litigated -- tangentially, at least -- in the last five or six years. 

ROBERTS: Well, Wickard was litigated directly in the Raich case. I don't think that the issue in Griswold is likely to come before the court. It was unlike...

SCHUMER: Isn't Lawrence an outgrowth of Griswold in terms of what the right of privacy is to consenting adults in their bedroom? 

ROBERTS: Well, that's one of the issues. But the difference between the issue that was presented in Griswold and its ramifications of the analysis, those are two very different issues. 

SCHUMER: OK. Let me ask you just a little more on the commerce clause. 

We've all talked about the hapless toad and the fact that the toad didn't cross state lines didn't lead you to reject the Endangered Species Act under the commerce clause but go seek another possibility. So let me give you a couple of hypotheticals. 

Let's say we figured out that somebody could make botulism or a lot of people could make botulism -- a deadly, deadly poison. I think it's one of the seven poisons that the FBI looks for, in terms of doing danger to us. But they could make it with materials completely within the state. There was no material that crossed state lines; it's a little bit like the toad. 

Would you think that the federal government, if Congress so deigned, would have the ability to regulate that activity? 

ROBERTS: Well, I think that sounds a lot like the Raich case, where the court determined the medical marijuana issue even though the regulation of marijuana as an illicit drug, it had interstate impact, even if the medical provision of it did not. 

ROBERTS: And so they were willing to look beyond and apply the Wickard case, which they reaffirmed the suitability, and conclude that that had a significant effect on commerce, the regulation in general. 

You didn't have to look at the specific regulation. It seemed to me that that hypothetical...

SCHUMER: Would you differentiate that from Viejo? 

ROBERTS: Well, in Viejo, you are dealing with a particular species, and the difficulty -- and, again, it was what another court had looked at, not the activity that was regulated, the interference with the species, but the activity that was taking place and having that impact, the building of a housing development. 

Other courts, the 5th Circuit in the GDF case, had argued that the approach of looking at the housing development rather than the particular activity was inconsistent with the Supreme Court's decisions. 

And what I said is that if there's another basis on which to evaluate it -- and there was, and the panel opinion noted we don't have to reach these other grounds because of our conclusion -- that we should focus on those other alternative grounds and see if we could base and uphold the act on those.

SCHUMER: I understand. 

And my time is getting close to the end. 

I'm not sure I agree with the large difference between Raich, Viejo and the hypothetical that I gave. 

I think the Viejo case and the hypothetical I gave were limited. 

But let me just conclude with this. 

You know, people wonder what's all the fuss about? And the answer is very simple. 

And that is that we could see, if certain viewpoints became majority viewpoints on the Supreme Court, the dismantling of the entire apparatus to protect our rights through the narrowing of the commerce clause, which I said Justice Thomas already agrees should be narrow. And we have a president who may have -- he at least has one more nomination, who said he wants to appoint people in the mold of Thomas. 

Not only would the Endangered Species Act go, Title VII would go, OSHA would be gone, the Controlled Substances Act and prohibitions against personal possessions of biological weapons could all be unconstitutional. 

Justice Thomas' views on this issue are similar to others. He's against any substantive due process right under the 14th Amendment. He believes that the establishment clause would allow the establishment of state religions -- of religions in the states. 

SCHUMER: And so these are serious, serious things. He'd invalidate campaign finance laws, he would eliminate affirmative action. 

Now, he's just one justice, but I think it's our job here in the Senate, on both sides of the aisle, if we feel that kind of judicial philosophy, that kind of legal reasoning does not belong in the court, to find out if nominees subscribe to it -- and, if they do, look at them warily. 

I'm not saying you do. As I said, some of the things you've said I found pleasantly surprising today. But I do think it's our job, and I think we're going to continue to do it. 

SPECTER: Thank you very much, Senator Schumer. 

Senator Graham? 

GRAHAM: Thank you, Mr. Chairman. 

I imagine the reason that you argued different positions is because people paid you. Is that correct? 

ROBERTS: That's how I made my living, Senator. 

GRAHAM: OK. I can relate to that. 

I imagine it must be very hard to figure out what Congress intends. Do you agree with that? 

ROBERTS: Sometimes it's easier than others and sometimes it's hard to read the tea leaves. 

GRAHAM: I can relate to that also. 

I want to read an excerpt from the National Association of Women Lawyers and their evaluation of you -- 8/30/05 -- "As a lawyer and judge, based on interviews the committee conducted, Judge Roberts has treated individual women lawyers fairly and with respect, has fostered careers of women lawyers, has been helpful in enabling women to address work/life balance issues while advancing professionally, and has been consistently described as respectful to female colleagues, female lawyers appearing before him and female employees."

GRAHAM: You've been asked about every case, I think, ever written by anyone. I would like to talk to you a little about life. 

The idea of judging you based on this section of the commerce clause and that section of the commerce clause is important, but I think most Americans want to know a little bit about you. 

And from what I can tell, the people who've worked with you and against you generally like you, and that you've been described as brilliant, one of the best legal minds of your time, well-qualified. 

The adjectives go on and on. And I want the record to reflect: That comes from people who know you the best. The best indication of a good lawyer is how people on the other side think of you. And we'll get some excerpts from the record to put that into the record. 

Apparently, from what I can tell, you've conducted your life in a noble, honorable manner; that you've been a good litigant; and that you have fought for your causes and you have done so to earn respect of those on both sides of the aisle. 

But there's a greater issue here about who you are. 

Justice Rehnquist was your mentor, is that correct? 

ROBERTS: He's certainly someone from whom I learned a great deal, yes. 

GRAHAM: OK. 

So if I was trying to figure out who John Roberts is and a little bit about him, I will ask this question: Write the legacy of Justice Rehnquist for a minute or two. What would you say if given that task? 

ROBERTS: Well, you know, I think if you were able to ask him, he would talk about being a grandfather, being a father...

GRAHAM: I'm asking you. 

ROBERTS: ... being a husband.

GRAHAM: I'm asking you. 

ROBERTS: But the important point is that those were important things in his life and he appreciated the need to recognize that those are the most important things. 

With respect to the law to which he devoted his professional life, I think a big part of the legacy that he leaves is a Supreme Court in which all of the members respected and admired him because of his fairness in administering the court and conducting the important responsibilities like managing the conference and assigning opinions. 

GRAHAM: You can go back in history and look at what other chief justices did.

Some were -- in terms of that administrative responsibility -- some were disasters. 

You look at Harlan Stone, his idea of running the conference, he said what he thought, then the next senior justice said what he thought. Then Justice Stone critiqued that. Then the next justice, and then Justice Stone critiqued that. 

And the result was the conferences went on for days and everybody ended up hating each other. 

So he ran a good ship. I think we all agree with that. And his colleagues respected him whether they disagreed with him or not.

But the basic question is, when you write about the legacy of a Supreme Court justice, you write more than about being a grandfather -- more about running a tight ship, especially chief justice: Would you agree with the idea that, from a conservative point of view, he was the gold standard? 

ROBERTS: I think he was a very effective advocate on the bench for a view of the Constitution that is one of limited and separated powers. 

GRAHAM: Do you share that view? 

ROBERTS: I do. I think that the -- now, I have to tell you that whether as a judge on the court of appeals or if I am confirmed on the Supreme Court, I will certainly be my own man and there are...

GRAHAM: No one is doubting that. No one is doubting that you will not try to be fair. But the big thing, 30,000-foot view of you, is that when you look at Judge Roberts, you're looking at someone in the mold of a Rehnquist. Is that a fair assessment? 

ROBERTS: Well, you know, I admire the late chief justice very much. But I will have to insist that I will be my own man and I hesitate to be put in anybody's mold. And I would certainly approach the cases according to the judicial philosophy that I have developed over the years. 

In many respects, it's similar to his: in its recognition, I think, of the limited role that judges should have, an appropriate modesty and humility, a recognition that...

GRAHAM: The idea of a dramatic departure under your watch from the Rehnquist era is probably not going to happen, is that true? 

ROBERTS: Given my view of the role of a judge which focuses on appropriate modesty and humility, the notion of dramatic departures is not one that I would hold out much hope for. 

GRAHAM: I know people don't like being labeled, "Put me in that category." But I'm in a business where people label me all the time. But I ask for it, I run for office. 

But we do tend in our business of politics to try to label people, particularly when we're talking about judges. 

When the president introduced you to the United States, to the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words? 

ROBERTS: Well, I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their posterity. They were looking ahead. And so they often used phrases that they intended to have...

(CROSSTALK)

GRAHAM: Does that term make you feel uncomfortable? 

ROBERTS: No. 

GRAHAM: Now, from a 30,000-foot view of things, it seems to be that we're going to have a referendum on the Reagan era here, which I welcome. I sort of enjoyed it, he won 49 states. He did pretty good.

You were part of the Reagan era as a young lawyer. When I use the word -- term -- Reagan revolution, what does it mean to you? 

ROBERTS: Well, it means to me generally a change in attitude. President Reagan always presented an optimistic view. He always told us that the best days of our country were ahead of us. And he reasserted basic fundamental truths in areas like foreign relations. We are going to stand up to the Soviet Union. We're proud of our system of government. That's the right approach, not the Soviet approach. And people who have come of age after the Berlin Wall has fallen sometimes don't understand what it meant at that time.

GRAHAM: When it comes to the law, what does the term Reagan revolution mean to you? 

ROBERTS: I think it means a belief that we should interpret the Constitution according to its terms; that judges don't shape policy; that judges interpret the law and that legislators shape policy; that the executive branch executes the law. 

GRAHAM: Does it also mean that when you talk about affirmative action and you set up a quota system, that's not right? 

ROBERTS: President Reagan's policy was opposed to quotas, which were much more rigid at the time. 

People need to appreciate 24 years ago the idea of a quota was a rigid set-aside. We now have the recent Supreme Court decisions talking about consideration of particular factors as one factor in an affirmative action program. 

President Reagan was in favor of affirmative action and he was opposed to quotas. 

GRAHAM: When it comes to voting rights, as I understand -- and we talked a lot about it, and we probably know more than all of us ever dreamed we would know about the Voting Rights Act -- that you were implementing a policy of President Reagan that wanted to pass the Voting Rights Act in its form that you received it. Is that correct? 

ROBERTS: The proposal was to extend it for the longest period in history without change. 

GRAHAM: And we've been through a long discourse about the effect and intent test. I think you've explained yourself very well that the Supreme Court in the Mobile case said the intent test applies to Section 2. Is that right? 

ROBERTS: Section 2. 

GRAHAM: But politics took over after that, didn't it? Because the effect test no longer -- that's not the test. Isn't it some compromise between Senator Kennedy and Senator Dole? 

ROBERTS: There was a compromise in the test under Section 2, which is articulated in a paragraph describing what the criteria are, including a caution that this should not be read to promote proportional representation, which was some of the concern that the attorney general and President Reagan had. 

GRAHAM: So between Dole, Senator Kennedy and President Reagan, a new test was called the totality of the circumstances? 

ROBERTS: Yes. 

GRAHAM: Now, when you said that you -- Senator Kennedy said something I thought was very important: that courts should not stand in the way of elected officials who are trying to right wrongs. 

GRAHAM: And the point I'm trying to make here is that you were picked by a conservative president because you have associated yourself with the conservative administrations in the past, advising conservative presidents about conservative policies.

And there's another selection to be made, and you're going to get the same type person. 

And you can -- I'm not even talking to you now. 

(LAUGHTER)

To expect anything else is just not fair. I don't expect -- I didn't expect -- President Clinton to pick you. It's not because you're not well-qualified, not because you're a good person; just a different political, legal philosophy. 

Now, that's what we're going to have to come to grips with here. 

Justice Scalia: Do you consider him conservative? 

ROBERTS: Yes. 

GRAHAM: Do you think you're more conservative than he is? 

ROBERTS: Oh, I don't know. I mean, I wouldn't...

GRAHAM: Well, he got 98 votes. And I think you're a conservative, but I think you're one of the great minds of our generation, of our time. And I'm dying to find out if you get any votes on the other side. 

Time will tell. 

Let's talk about righting wrongs here. I think it stinks that somebody can burn the flag and that's called speech. 

What do you think about that? 

ROBERTS: Well...

(LAUGHTER)

We had the Flag Protection Act after the Supreme Court concluded that it was protected speech. 

GRAHAM: Show me where the term "symbolic speech" is in the Constitution. 

ROBERTS: Well, it's not. 

GRAHAM: It's not. They just made it up, didn't they? And I think it stinks that a kid that can't go to school and say a prayer if he wants to voluntarily. 

What do you think about that? 

ROBERTS: That's something that's probably inappropriate for me to comment on. 

GRAHAM: What do you think Ronald Reagan thought about that? 

ROBERTS: His view was that voluntary school prayer was appropriate. 

GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn. 

GRAHAM: What do you think about that?

ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because...

GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials? 

ROBERTS: Well, again, those are issues that come before the court on a regular basis in particular cases. And on my current court or the future court, I need to be able to approach those cases with an open mind and not on the basis of statements I make during a confirmation hearing. 

GRAHAM: The point is that righting wrongs is a very subjective thing. And you will be asked to decide the fate of people with individual needs and individual desires, based on particular fact patterns and legal briefs. 

I'm confident you can do that and that you will do that. And I don't think you need to make a bargain with me to right all the wrongs that I see in life to sit on the Supreme Court. 

What's it like to go through the nominating process in 2005 from a personal point of view? I've been watching television, channel flipping, and I see some awful things said about you. Have you seen those things?

ROBERTS: I've seen some things, yes.

GRAHAM: How does that make you feel?

ROBERTS: Well, some of the mischaracterizations, you know, you get annoyed at them. I don't like them. Some of the things you see you get pretty upset about.

GRAHAM: How's it make your family feel?

ROBERTS: I would say they get upset about some of the things, as well.

GRAHAM: But, you know, it's a free country and that's just the way it is. Right?

ROBERTS: It is, and it's an expression I've been using a lot lately. It is a free country, and it's a good thing that it is.

GRAHAM: Let's not talk about you now, but I would like you to comment, give us some advice here. We're always trying to advise the president through you.

What's the long-term effect on the quality of candidates that we'll be able to recruit for jobs like the Supreme Court if the current process continues and grows over time?

ROBERTS: I think it is a very serious threat to the independence and integrity of the courts to politicize them. I think that is not a good development, to regard the courts as simply an extension of the political process. That's not what they are.

I have been fortunate for the past two years to serve on a court in which all of the judges -- and they come, the D.C. Circuit, they come from very active careers in public life and sometimes very identified politically -- but it's a court where those judges put aside those ties and those views and become judges all focused on the same mission of vindicating the rule of law.

And if you look at the decisions on the D.C. Circuit, you'll see that we are almost always unanimous, we almost always come out the same way. And to the extent there are disagreements, they don't shape up along political lines.

That is an ideal. But the more and more that the process becomes politicized, the less likely that that's going to happen.

GRAHAM: Another line of inquiry that's been disturbing to me is that we talk about the clients you represent, whether it be the Ronald Reagan administration or some private sector client, and we tend to hold that maybe unpopular position against the lawyer. There's more and more of that happening. 

We've had court of appeal nominees that were accused of being insensitive to the disabled population when they won their case 9-0 in the Supreme Court defending a university from the idea that they were not covered under the Americans with Disabilities Act.

I really do worry that in the future that if we up here start holding who you represent against you, that young lawyers in the future will pass on the hard cases. 

What's your thoughts about that? 

ROBERTS: You know, it's a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients.

The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. 

ROBERTS: Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it.

And that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.

GRAHAM: Do you believe it's being eroded? 

ROBERTS: I do think there is an unfortunate tendency to attack lawyers because of the positions they press on behalf of clients. And I think that's unfortunate. 

GRAHAM: I'm going to give you some examples of a sitting Supreme Court justice and her positions and basically take us back to the good old days where you could have what I think are extreme positions and still make it. 

Are you familiar with the ACLU? 

ROBERTS: Certainly. 

GRAHAM: In the conservative world, how does that rank on the food chain? 

ROBERTS: I don't know that I could comment on that, but they have a consistent position of promoting civil liberties and a particular view on that.

GRAHAM: If you came to the Reagan administration and the top thing on their resume was the general counsel for the ACLU, do you think they would hire you? 

ROBERTS: Might make it a little harder. 

(LAUGHTER)

GRAHAM: Yes.

(LAUGHTER)

I think that's a good observation. 

Well, we have, on the sitting Supreme Court now, the former general counsel for the American Civil Liberties Union, who is a very nice lady, extremely qualified -- I don't agree with her hardly at all -- but a great lawyer. 

She has written that the age of consent for women should be 12, that all prisons to have gender equality, men and women should be in the same prison because, when you separate them, women prisoners somehow are discriminated against. 

She wanted to do away or argued the idea that Mother's and Father's Day should be done away with because it stereotypes men and women -- that there's a constitutional right to prostitution. 

I can give you -- and I'll introduce into the record -- writings from her point of view that most conservatives would find totally unacceptable. But this person, this lady, the former ACLU executive counsel, is sitting on the Supreme Court, and she got 96 votes. 

She said that there should be federal funding for abortion. 90 percent of our caucus is pro-life -- is that about right? Pretty close? I could assure you that, if a Republican was going to make their vote based on abortion thinking, she would have gotten no votes. Most Americans don't want federal funding of abortion, even though they're divided on the issue of a woman's right to choose. 

GRAHAM: She has argued that the equal protection clause guarantees a right to abortion. 

Now, I completely differ with that, and I'm sure the conservatives in the Senate at the time of her confirmation completely differed with that: the idea the age of consent should be 12, that bigamy statutes are discriminatory to women. 

I can go on and on and on. 

And the point I'm trying to make is that all of that was put aside, who she represented and what she believed and the position she took, and somehow back then they're able to see in Justice Ginsburg a well-qualified, brilliant legal mind and they deferred to President Clinton because he won the election. 

Whether that happens to you, I don't know. 

But for the sake of the country and the rule of law, I hope you can be in the ballpark of where she wound up. 

Last two questions. 

In your opening statement, you articulated the rule of law in a way that I thought was just outstanding. It was emotional, it made sense, average people could understand it: that the courtroom is a quiet place, Judge Roberts, where you park your political ideology and you call the balls and you call the strikes, and you try to give every American a fair shake and you put politics in its perspective. 

What is your biggest concern, if any, about the rule of law as it exists in America? And what are the biggest threats to the rule of law as we know it today? 

ROBERTS: Well, you know, the rule of law is always vulnerable because the Supreme Court, as has been pointed out often in history, has only the persuasive power of its opinions to command respect. 

There have been famous episodes in the past, you know -- President Jackson, Chief Justice Marshall has given his opinion; let's see him enforce it -- other episodes of that sort. 

But over time, the legitimacy of the Supreme Court has been established and it's generally recognized across the political spectrum that it is the obligation of the court to say what the law is and that the other branches have the obligation to obey what the Supreme Court says the law is. 

ROBERTS: The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law. 

And because it's the Supreme Court, people are going to follow it even though they're making the law. 

The judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before, and I'll just repeat myself: The framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, "Let's take all the difficult issues before us and let's have the judges decide them. " That would have been the farthest thing from their mind.

The judges had the obligation to decide cases and the authority to interpret the Constitution because they had to decide cases. And they were going to decide those cases according to the law, not according to their personal preferences. 

Judges have to have the courage to make the unpopular decisions when they have to. That sometimes involves striking down acts of Congress. That sometimes involves ruling that acts of that executive are unconstitutional. That is a requirement of the judicial oath. You have to have that courage, but you also have to have the self- restraint to recognize that your role is limited to interpreting the law and does not include making the law. 

GRAHAM: What would you like history to say about you when it's all said and done? 

ROBERTS: I'd like them to start by saying: He was confirmed. 

(LAUGHTER)

Whether they say that or not, I would like -- the answer is the same, I would like them to say I was a good judge. 

GRAHAM: Thank you very much. I have no further questions. 

SPECTER: Thank you very much, Senator Graham. 

Senator Schumer? 

SCHUMER: Thank you, Mr. Chairman. 

And thank you, Judge. 

SCHUMER: It's been a long day, and I guess we have a little bit longer to go. 

But you've been talking something about baseball. We've been talking about it this morning. 

I'll start out by pitching you something of a softball, an issue I think on which reasonable Americans can agree, and those are the recent and abhorrent attacks on the federal judiciary. 

Many Americans have become concerned that the judiciary have come under escalating and, many would say, inappropriate and unjustified criticism from certain quarters -- not just criticism of the legal reasoning, but it goes way beyond that. The rhetoric gets pretty hot. 

And, as you know, one of your mentors and our late Chief Justice Rehnquist was a passionate defender of the independence of the judiciary. I didn't agree on with him on a whole lot of things, but I sure respected that. And he did a good job both with our committee and everywhere else, making sure that happened. 

So you will be chief justice. We haven't talked about your role much here much as chief justice -- the chief, the leader of the courts, the head of the judiciary. And I think one of your important roles is to defend the independence of the judiciary. 

So I'm going to read you a few statements that were made about federal judges in recent months. Televangelist Pat Robertson claims that, quote, "An out-of-control judiciary is the single greatest threat to democracy," unquote; that judges are creating a, quote, "tyranny of oligarchy," unquote; and that the threat posed by the federal judiciary is, quote, "probably more serious than a few bearded terrorists who fly into buildings." 

Do you find that -- do you disagree with that statement? 

ROBERTS: I do disagree with that conclusion, Senator. I think it's perfectly appropriate for people to criticize decisions of judges. That comes with the territory. It's a healthy thing. That type of criticism and analysis, saying the judge got it wrong, the court got it wrong, is healthy and good. 

ROBERTS: And the only thing I would say is I'm not sure whether that criticism is along that lines.

But personal attacks on judges for doing their best to live up to the judicial oath, that is something that I don't think is appropriate.

SCHUMER: Isn't this language -- I'm asking about this language. This doesn't seem to be a legal didaction about a court case. When somebody says...

ROBERTS: No, it's not an analysis. 

SCHUMER: ... judges are probably more serious -- the threat posed by federal judges is, quote, "probably more serious than a few bearded terrorists who fly into buildings," isn't that kind of quote abhorrent and inimical to our system? 

ROBERTS: I don't agree with that. And all I'm saying is that I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges -- and certainly even judges with whom I disagree on the results or particular merits -- they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate. 

SCHUMER: Would you be a little stronger than that in terms of language like this? I mean, "not appropriate," is kind of mild in these kinds of sort of inflammatory-type statements about the judiciary that you may soon be entrusted with protecting. 

ROBERTS: Senator, I said yesterday that if confirmed I would be vigilant to protect the independence and integrity of the Supreme Court and the judicial branch, and that is true. An independent judiciary is one of the keys to safeguarding the rule of law. Again, I said that yesterday and I believe that. And to the extent the judiciary is attacked, I will be vigilant to respond and defend it. 

SCHUMER: Let me read you two more and just tell me how you'd characterize them.

Conservative lawyer and author Edwin V. Aris (ph) suggested that Justice Kennedy, an appointee of Ronald Reagan, ought to be impeached for his decisions, and quoted Stalin's infamous problem-solving solution of, quote, "no man, no problem." 

And Tony Perkins of the Family Research Council said, quote, "The court has become increasingly hostile to Christianity and it poses a greater threat to representative government more than anything, more than budget deficits, more than terrorist groups." 

Do you strongly disagree? 

Don't those statements turn your insides a little bit? 

ROBERTS: You know, again, I don't agree with them. 

But it's a free country. They're free to say what they wish. 

But the issue of impeachment was resolved in the Salmon Chase hearing. The basic principle was established: You don't impeach judges if you disagree with their decisions. 

That's not what the impeachment provision is for.

SCHUMER: Take it and just answer. 

If you became chief justice, you would do whatever you could to dispel these kinds of notions and oppose people who said things like this when they say these things? 

ROBERTS: Well, I would do what I can, Senator, to make clear to people -- and I do think it's an important educating function -- that what judges do promotes the rule of law, and that the rule of law preserves liberties for all Americans. 

I'm obviously not going to infringe anybody's First Amendment rights. People are free to say what they are.

SCHUMER: I'm not asking that.

I'm asking just your First Amendment opinion of these kinds of things, and the most I guess you said is you disagree. 

ROBERTS: Senator, people from all across the political spectrum have attacked judges. They do it now. I've seen some very virulent attacks from all over the political spectrum and certainly throughout history. 

Again, judges can stand the criticism of their opinions, but personal attacks I think are beyond the pale. 

SCHUMER: OK. I'd like to go over some other things here. 

I have to say I've been pleasantly surprised by some of your answers today. 

As you know from our private meetings and my opening statement yesterday, my principal concern is ensuring that we don't have people on our court who will dismantle the structural protections that have guaranteed our most fundamental constitutional rights. 

SCHUMER: And what troubles me and why I think many people are bothered by this right now, is that the president has openly stated that nominees will be chosen in the mold of justices who have stated, repeatedly, their desire to roll back the clock on some of these basic protections.

In my view, over the past 60 or 70 years, maybe longer, three legs have sustained our constitutional rights: the Fourteenth Amendment's guarantees of equal protection and substantive due process; the right to privacy; and a broad delegation of authority to Congress to pass legislation -- usually under the commerce clause -- necessary to protect our nation's security, the environment, Americans' health and workers' civil rights. 

On the first two, you have given answers that I think show that you want to protect those rights. And I just want to repeat them and just make sure that you're on the record for them. 

To Senator Biden -- he asked: Do you agree there's a right to privacy to be found in the liberty clause of the Fourteenth Amendment? And you responded, "I do, Senator. Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy, and it's not protected only in procedural terms but it's protected substantively as well." 

That accurately states your view? 

ROBERTS: Yes. 

SCHUMER: And on the Griswold case and the right to privacy there, you said, in reference to Senator Kohl's question, quote, "I agree with the Griswold's court's conclusion that marital privacy extends to contraception and availability of that. 

"The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interests protected under the due process clause." 

That is your accurate view? 

ROBERTS: Yes, sir.

SCHUMER: Just one question. I know this could take the rest of our time, but if you could answer it succinctly, just tell me how -- I'm interested in how you will divine what that right to privacy means. I mean this is going to be an issue in the 21st century that's before us in many, many different ways. And there's no words in the Constitution. 

ROBERTS: Well, the court in, for example, I think most recently in the Glucksberg case, talked about the necessity of considering the nation's history, traditions and practices. 

As Justice Harlan always explained in his opinions, you need to do that with an appropriate sensitivity to the limitations on the judicial role. 

Again, you need to recognize that it is not your job to make policy, either under the Constitution or under the statutes. 

ROBERTS: You are interpreting the Constitution. And the appropriate judicial role focuses on those considerations, tradition and history and practice, as developed in the court's precedents. And that's where I would start. 

In any case where the issue came up as to whether or not a particular issue was presented under the due process clause, you begin with the precedents. You analyze them under principles of stare decisis -- the precedents in this area, just like precedents in any other area -- and analyze them in light of those different factors. 

All the justices recognize that in this area that you need to be especially careful about the source of the content that you're giving to the right at issue, because it is an area in which the danger of judges going beyond their appropriately limited authority is presented because of the nature of the sources of the authority. You're not construing the text narrowly, you're not looking at a particular statute with legislative history. All of the justices recognize that it presents particular challenges. 

SCHUMER: OK, thank you. 

Now as I said, there are a few things that I think that many of us were pleasantly surprised about. There are some that we are troubled about. 

I think you've answered some questions, but not answered a whole lot of others. And I'm going to get into that at another point. 

But I do find it very perplexing -- and I'm not going to ask you to comment on this -- your use of the so-called Ginsburg precedent. It seems you cite it when you don't want to answer something. But a few times here when Ginsburg had actually answered those specific questions, you didn't want to answer them and you ignored the precedent. And I don't think that's what precedents are, even in this more unique role. 

So I hope you'll think about that overnight because I'll get back to that tomorrow. 

The other thing that troubled me was the issue of civil rights. Many of us consider racism the nation's poison. De Tocqueville wrote about that since 1832. And we know you wrote these series of memos 20 to 25 years ago. Some of them are written in a tone that suggest you may have been insensitive to discrimination and hostile to equal rights. 

SCHUMER: And I've talked to people who might have felt just that. People have said that.

So my question is not the substance, but do you regret the tone of some of these memos? Do you regret some of the inartful phrases you used in those memos, a reference to illegal amigos in one memo? 

ROBERTS: Senator, in that particular memo, for example, it was a play on the standard practice of many politicians, including President Reagan. When he was talking to a Hispanic audience he would throw in some language in Spanish. 

Again, the memos were from me to Fred Fielding. I think Mr. Fielding always found the tone...

SCHUMER: Don't regret using that term? Could you think that some people might have found it offensive? 

ROBERTS: It was meant to convey the notion, again, as I described, that when politicians speak to a particular audience in that language, is that offensive to the audience? It was meant to convey that. It was an issue concerning a particular radio interview. 

You know, the tone was, I think, generally appropriate for a memo from me to Mr. Fielding, and I know that he never suggested that it was anything other than appropriate.

SCHUMER: I'd have to disagree with you, but we'll leave it at that. 

On a more substantive level, in light of where we are in 2005, admittedly we've progress in civil rights since 1982, can you identify any policy or piece of legislation you argued for or supported in the Reagan era that you now believe went too far, that you now believe would not be good enough for America? 

I'm not challenging that you were representing somebody else then, as you've said to us before, but I'm asking, in hindsight, it's now 2005, you're almost double the years on this earth, any of those policies that you think now, using hindsight, shouldn't have been done?

ROBERTS: Senator, I think some 80,000 pages have been released of memoranda that I wrote. 

SCHUMER: You can just pick one or two. 

ROBERTS: You know, I have not gone back and reevaluated all those policies, no. I do know, though, for example, in the area of civil rights people have talked about memos I wrote about the administration's policy against busing or the administration's policy against quotas. 

Being against busing and being against quotas is not the same as being against civil rights. President Reagan was against busing, President Reagan was against quotas, but he was in favor of civil rights and that was the administration position that I was advancing in those memoranda. 

SCHUMER: I understand you were advancing someone else's position, I was asking your own view if there are any regrets or changes in viewpoint of you personally.

SCHUMER: But we'll leave it at that if you don't want to mention any.

OK. 

I'd like to go to the third leg of protection now, and probably spend the rest of my time on this, constitutional rights, the commerce clause. 

Now, just to briefly encapsulate, you said this: You agree that the Constitution gives the Supreme Court the power to review and invalidate acts of Congress as was held two centuries ago in Marbury v. Madison. 

ROBERTS: Yes. 

SCHUMER: And you also said in questions I guess with Senator Kennedy that you agree with the court's conclusion that segregation of children in public schools solely on the basis of race was unconstitutional as in Brown. 

OK. Well, there's a third case that I'd like to bring up, and it's the third leg of the framework in a lot of ways, and that's Wickard v. Filburn. 

Do you agree with the principle that the Congress has the power under the commerce clause to regulate activities that are purely local so long as Congress finds that the activities, quote, "exert a substantial economic effect on interstate commerce"? 

In other words, can Congress regulate commerce that doesn't involve an article traveling across state lines? 

ROBERTS: Well, that's obviously the court's holding in Wickard against Filburn, and reaffirmed recently to a large extent in the Raich case. 

But I would say that because it has come up again so recently in the Raich case, that it's an area where I think it's inappropriate for me to comment on my personal view about whether it's correct or not. 

That's unlike an issue under Marbury v. Madison or Brown v. Board of Education, which I don't think is likely to come up again before the court. 

This was just before the court last year. And so I should, I think, avoid commenting on whether I think it's correct or not. 

SCHUMER: This is not a recent case. This is Wickard v. Filburn. It's from 1942, I guess it was. It's a basic bedrock of our constitutional law. 

SCHUMER: Law after law, the civil rights laws of 1982 and '65 that you talked about previously are based on the commerce clause, not necessarily on Wickard...

ROBERTS: No, not on Wickard. 

SCHUMER: I understand. But so much of what we do is based on the commerce clause. And you know that there is a movement to greatly cut back on the commerce clause, led by Professor Epstein.

One of the justices that the president said he wanted to appoint more justices like, Justice Thomas doesn't really believe in the holding of Wickard. 

And at a time with Hurricane Katrina, in the midst of the war on terror, when we need a strong national government, I find it -- I'm not asking you -- there's been a holding that's been accepted, and it was accepted in Raich as well by just about everybody, with a few exceptions, I mentioned, that says you don't need the article to cross state lines to be regulateable under the commerce clause by the federal government. 

That seems to me to be as little in dispute as Griswold, as Brown, in terms of its broad acceptance, in terms of a term that you've used, in terms of the stability of our government. 

And I'm really surprised that you are unwilling to simply say -- I'm not asking you for all the variations on the theme, but a fundamental bedrock, which is that Congress can regulate, under the commerce clause things that don't cross state lines is something that is in some doubt. 

ROBERTS: Well, Senator...

SCHUMER: You know, you said that -- excuse me -- you said that there would be unanimity just about, or close to it, on issue after issue. Obviously, there are dissents. 

I think Learned Hand in 1958 said he didn't agree with Marbury, but you said you had not problems going along with Marbury. 

In Brown, I suppose there are still some people who don't believe in Brown here and there.

And here's a bedrock principle, admittedly under attack by what I would call an extreme few, that if we didn't unequivocally back it -- not the variations on the theme, but the fundamental -- the fundamental principle that Congress can regulate if it doesn't actually -- the article doesn't actually cross -- that Congress can regulate manufacturing, because of its dramatic effect on interstate commerce.

And you are unwilling to give Wickard the same status that you give Griswald, which was decided 22 years later or Brown, which was decided 12 years later. I mean, I know that Morrison and Lopez -- but they don't challenge the fundamental precept. 

I didn't ask you if you fully support Wickard. I asked you if you support the proposition that under the commerce clause you don't need the actual article crossing the state line. And you're not willing to say that settled law, that that's part of our established way of law. 

ROBERTS: Well, Senator, all you have to do is look at the arguments, the briefs in the Raich case, where that was the issue that was argued -- whether or not Wickard v. Filburn was still good law, whether or not Wickard v. Filburn should be applied in that situation. 

Nobody in recent years has been arguing whether Marbury v. Madison is good law. Nobody has been arguing whether Brown v. Board of Education is good law. 

They have been arguing whether Wickard v. Filburn is good law. Now it was reaffirmed in the Raich case. And that is a precedent of the Court, just like Wickard, that I would apply, like any other precedent. I have no agenda to overturn it. I have no agenda to revisit it. It's a precedent of the court. But I do think it's a bit much to say that it's on the same plane as a precedent as Marbury v. Madison and Brown v. Board of Education. 

SCHUMER: Or Griswold? 

ROBERTS: Or Griswold.

The fact that it was just reconsidered and reargued last year in the Raich case suggested it's not that same type of case. And that's why I'm uncomfortable commenting on it.

ROBERTS: I have gone farther than many other nominees in talking about cases, like Marbury, like Brown, like Griswold, because I thought it was appropriate, given the fact that those issues are not, in my view, likely to come before the court again.

Here's an issue that was just before the court last year, so I can't say that it's unlikely to come before the court again, and therefore I think it falls in the category of cases which I should tell you I recognize it as a precedent of the court, I have no agenda to overturn it or revisit it, but beyond that I think it's inappropriate to comment. 

SCHUMER: Well, I would say that -- well, let's go to a few more commerce case issues. Again, I think Wickard is as accepted -- not Wickard per se, but the idea that crossing state lines is not the only thing that you need for the commerce clause, that you don't have to have the article cross state lines to be able to regulate is a bedrock of law after law after law that the federal government has passed. And your ability to...

ROBERTS: And I'm not expressing...

SCHUMER: I understand.

ROBERTS: I'm not expressing any hostility to the proposition at all. All I'm telling you is that this is a case that was challenged, the application in the Raich case last year, and to say it's in the same category as Marbury or Brown, I think is inaccurate.

SCHUMER: But, sir, Griswold came up in Lawrence; I don't know how many years ago that was. You can make the arguments that even somehow or other somebody challenged precepts that flow from Marbury. 

ROBERTS: And so perhaps I should have taken the approach Justice Scalia took. He wouldn't tell this committee whether Marbury was correctly decided. 

SCHUMER: Glad you didn't do that. 

ROBERTS: And the reward for not doing that is to have additional cases that are very current in terms of the litigation before the court, and the idea as well, you said what you thought about Marbury. What do you think about the Raich case, which just reaffirmed Wickard v. Filburn?

They're two very different parameters. My approach has been a practical one, not an ideological one, but a practical one. 

SCHUMER: I'm sorry. 

Just explain to me why you can say it about Griswold, which I'm glad that you did, but not about Wickard. Both of them have been litigated -- tangentially, at least -- in the last five or six years. 

ROBERTS: Well, Wickard was litigated directly in the Raich case. I don't think that the issue in Griswold is likely to come before the court. It was unlike...

SCHUMER: Isn't Lawrence an outgrowth of Griswold in terms of what the right of privacy is to consenting adults in their bedroom? 

ROBERTS: Well, that's one of the issues. But the difference between the issue that was presented in Griswold and its ramifications of the analysis, those are two very different issues. 

SCHUMER: OK. Let me ask you just a little more on the commerce clause. 

We've all talked about the hapless toad and the fact that the toad didn't cross state lines didn't lead you to reject the Endangered Species Act under the commerce clause but go seek another possibility. So let me give you a couple of hypotheticals. 

Let's say we figured out that somebody could make botulism or a lot of people could make botulism -- a deadly, deadly poison. I think it's one of the seven poisons that the FBI looks for, in terms of doing danger to us. But they could make it with materials completely within the state. There was no material that crossed state lines; it's a little bit like the toad. 

Would you think that the federal government, if Congress so deigned, would have the ability to regulate that activity? 

ROBERTS: Well, I think that sounds a lot like the Raich case, where the court determined the medical marijuana issue even though the regulation of marijuana as an illicit drug, it had interstate impact, even if the medical provision of it did not. 

ROBERTS: And so they were willing to look beyond and apply the Wickard case, which they reaffirmed the suitability, and conclude that that had a significant effect on commerce, the regulation in general. 

You didn't have to look at the specific regulation. It seemed to me that that hypothetical...

SCHUMER: Would you differentiate that from Viejo? 

ROBERTS: Well, in Viejo, you are dealing with a particular species, and the difficulty -- and, again, it was what another court had looked at, not the activity that was regulated, the interference with the species, but the activity that was taking place and having that impact, the building of a housing development. 

Other courts, the 5th Circuit in the GDF case, had argued that the approach of looking at the housing development rather than the particular activity was inconsistent with the Supreme Court's decisions. 

And what I said is that if there's another basis on which to evaluate it -- and there was, and the panel opinion noted we don't have to reach these other grounds because of our conclusion -- that we should focus on those other alternative grounds and see if we could base and uphold the act on those.

SCHUMER: I understand. 

And my time is getting close to the end. 

I'm not sure I agree with the large difference between Raich, Viejo and the hypothetical that I gave. 

I think the Viejo case and the hypothetical I gave were limited. 

But let me just conclude with this. 

You know, people wonder what's all the fuss about? And the answer is very simple. 

And that is that we could see, if certain viewpoints became majority viewpoints on the Supreme Court, the dismantling of the entire apparatus to protect our rights through the narrowing of the commerce clause, which I said Justice Thomas already agrees should be narrow. And we have a president who may have -- he at least has one more nomination, who said he wants to appoint people in the mold of Thomas. 

Not only would the Endangered Species Act go, Title VII would go, OSHA would be gone, the Controlled Substances Act and prohibitions against personal possessions of biological weapons could all be unconstitutional. 

Justice Thomas' views on this issue are similar to others. He's against any substantive due process right under the 14th Amendment. He believes that the establishment clause would allow the establishment of state religions -- of religions in the states. 

SCHUMER: And so these are serious, serious things. He'd invalidate campaign finance laws, he would eliminate affirmative action. 

Now, he's just one justice, but I think it's our job here in the Senate, on both sides of the aisle, if we feel that kind of judicial philosophy, that kind of legal reasoning does not belong in the court, to find out if nominees subscribe to it -- and, if they do, look at them warily. 

I'm not saying you do. As I said, some of the things you've said I found pleasantly surprising today. But I do think it's our job, and I think we're going to continue to do it. 

SPECTER: Thank you very much, Senator Schumer. 

Back to Part V. Go to Part VII of Sept. 13 transcript (Sens. Cornyn and Durbin, to end).


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Guantanamo Prison

Full coverage of the U.S. prison in Guantanamo Bay, Cuba, including Supreme Court rulings over its legality.

© 2005 The Washington Post Company

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