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Transcript: Day Two of the Roberts Confirmation Hearings
(Part VII: Sens. Cornyn and Durbin)

Courtesy Morningside Partners/FDCH
Tuesday, September 13, 2005 10:05 PM

The transcript picks up after Sen. Schumer's questioning (back to Part VI).

Senator Cornyn? 

CORNYN: Thank you, Mr. Chairman. 

Judge Roberts, I appreciate your stamina, hanging in there with us. 

(LAUGHTER)

I particularly appreciate your responding to the call to public service. And I want to say that I would be remiss if we didn't express -- if I didn't express -- what I know all members of the committee and the Senate feel is the appreciation for your family...

SPECTER: Senator Cornyn, before you proceed, there's been a request for a short break. And so let's take one. Five minutes. 

(RECESS)

SPECTER: And the clock has been reset at the full 30 minutes, Senator Cornyn.

CORNYN: Thank you, Mr. Chairman.

Judge Roberts, let me start on a couple of items that I think will be relatively noncontroversial. 

Believe it or not, and maybe people watching this proceeding won't believe it, but members of this committee and members of the Senate actually do try to work together on a bipartisan basis to pass legislation that we believe is in the best interest of the people who sent us here and the American people. 

One area of bipartisan agreement -- I just want to reiterate Senator Feingold's comments about cameras in the courtroom. I am a strong supporter of cameras in the courtroom as long as they're unobtrusive and they don't disturb the proceedings or prejudice the rights of the litigants.

But I do agree with him that it's important -- and Senator Grassley, I know, is a -- each Congress introduces legislation on this. 

I do believe it's important to let the people of the United States know what happens in courtrooms. I think they could learn a lot about their government. I think it would make them more sensitive to the nature of the decisions that are made there, give them confidence that there are dedicated public servants who serve in the judiciary who are doing the job of a judge day-in and day-out in a dignified and distinguished and professional manner.

Along the lines of what Senator Kyl mentioned earlier, there's another area that I think is noncontroversial and bipartisan, but it's something, frankly, that we need your help with, if you're confirmed as chief justice. And that has to do with the bar to the courtroom presented by excessive costs and time, the delays, inherent in modern litigation.

These impediments to access to justice are just as effective as if you had an armed guard at the door of the courthouse or had somebody put a padlock on the front door, because frankly not many people can afford access to the courthouse, to justice, to jury trials, because the costs are just so prohibitive.

And I remember that Chief Justice Burger, when he was chief, took on the cause of alternative dispute resolution and this cause of excessive delay and cost as being an impediment to access to justice, with quite a bit of success.

CORNYN: But it's a cause that needs a lot of work. It needs the attention of the chief justice of the United States and the prestige that you would bring to that because, frankly, it worries me a great deal.

Just like it concerns me what we see with the length of time of modern jury trials -- of course, many people think about jury trials, they think about the O.J. Simpson trial where the jury was empaneled for months on end and wonder: How in the world can a jury still represent the conscience of the community and be a cross-section of the community when so many people are precluded from serving because of the economic or other hardship associated with that?

So these are hard issues that I hope you will take a look at and work with the Judiciary Committee and the Congress, where necessary, to try to address, because I think they would be a great service to the American people.

As a good lawyer, you know the danger of analogies, and yesterday we started talking about judges as umpires. And you were quite eloquent in saying that you wanted to be an umpire; you didn't want to bat or pitch. 

And I think it was a very succinct and appropriate way to describe exactly the role that you thought judges ought to play, not as partisans, but as impartial and disinterested in the outcome, but nevertheless interested in providing access to justice.

Well, I happened to be looking at my computer last night, and one of the blogs, and it's always frightening to see -- to put your name in a search and look at the ways it's mentioned. I suggest you don't do that, if you haven't, until this hearing is over, because this hearing is a subject of a lot of activity and interest in the blogosphere. 

CORNYN: One of these blogs said that your comparison of a judge to a baseball umpire reminded him of an old story about three different modes of judicial reasoning built on the same analogy. 

First, was the umpire that says some are balls and some are strikes, and I call them the way they are.

The second umpire says some are balls and some are strikes, and I call them the way I see them. 

The third said: Some are balls and some are strikes, but they ain't nothing till I call them.

Well, I don't know whether it's a fair question to ask you which of those three types of umpires represents your preferred mode of judicial reasoning. 

But I wonder if you have any comment about that.

ROBERTS: Well, I think I agree with your point about the danger of analogies in some situations. It's not the last, because they are balls and strikes regardless, and if I call them one and they're the other, that doesn't change what they are, it just means that I got it wrong.

I guess I liked the one in the middle, because I do think there are right answers. I know that it's fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues. 

That's not the view of the law that I subscribe to. I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute.

I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they're just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation. 

And the job of a good judge is to do as good a job as possible to get the right answer.

ROBERTS: Again, I know there are those theorists who think that's futile, or because it's hard in particular cases, we should just throw up our hands and not try. 

In any case -- and I don't subscribe to that -- I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.

CORNYN: Well, as a good lawyer, you also know the danger of an analogy is that people will take it and run away with it, perhaps use it against you.

And I heard today that yesterday we were talking about baseball, but today we're talking about dodge ball.

Some have suggested that you have been less than forthcoming about your answers to the questions, and I just couldn't disagree with that more. And I want to go over this just a minute, because I think it bears some repetition.

First of all, you were confirmed by the United States Senate by unanimous consent just a little over two years ago to the District of Columbia Court of Appeals, what some have call the second most important or powerful court in the nation .

So you've been before the committee before. You've been thoroughly investigated, examined and scrutinized, perhaps more than anyone else in history.

The reason I say that is because, since your nomination -- first as associate justice and now as chief justice -- there have been more than 100,000 documents produced about your background and record, Some in the government sector and some in the private sector.

And of course, we've heard today how perhaps a line or a word or a choice of phrase can be used, perhaps out of context, to try to create an impression that may or may not be borne out by looking at the entire context of your record or even the document.

But I do believe you have been forthcoming. I know before we had the last two rounds of questions, you'd answered 35 questions on civil rights, 10 on following precedents.

CORNYN: You answered 40 questions about the role of a judge, 25 on abortion and privacy rights, and 11 on presidential powers.

So I would just disagree with the characterization that someone might make -- I don't think it's fair or accurate -- that you've been anything less than completely forthcoming, and that we frankly know an awful lot about you, and that's not been a bad thing. 

I think from my point of view, the more that we have learned about you, the more confidence many of us have in the judgment of the president in your selection.

But, of course, you're not there yet. We still have a lot of questions to task before voting.

I want to also talk to you a little bit about one area of questioning. I believe it was Senator Biden who was asking you about Justice Ginsburg and the fact that she answered some questions, but declined others. And we've talked about the Ginsburg standard. I think Senator Schumer referred to that as well.

And what I understand that to mean, what I mean by that when I say it is that she has recognized that there is a line that a nominee cannot step over in terms of prejudging cases or issues that may come back before the Supreme Court, and that's the line I understand you to have drawn.

But Justice Ginsburg, as I believe Senator Graham pointed out, had an extensive paper trail and record, and she did feel at some liberty to talk about issues where she -- her views were already public or where she had already written.

Is that the distinction? Or could you explain your understanding of the distinction she was making, or how she handled it, perhaps in a way that's different from the way you were handling questions?

ROBERTS: My understanding, based on reading the transcripts not just of Justice Ginsburg's hearing, but of the hearings for every one of the justices on the court, is that that was her approach; that she would generally decline to comment on whether she viewed particular cases as correctly decided or not.

ROBERTS: She at one point said that was the court's precedent, she had no agenda to reconsider it, and that was all she was going to say. And in areas where she had written, she thought it was appropriate to discuss more fully because it was an area that she'd already publicly commented on. And I understand that to be the distinction as to why she commented in particular areas, but not others.

CORNYN: To your knowledge, is the line that you have attempted to walk in these proceedings about being as forthcoming as you can, but recognizing that you have a responsibility not to jeopardize your impartiality, either the perception or the reality or the impartiality and independence of the judiciary, has that been the line that you've attempted to walk and, as you understand, previous nominees have attempted to walk?

ROBERTS: It is, Senator, with an exception. And the exception is that I've tried to share more of my views with respect to particular cases. I know other nominees have declined, for example, to comment on even a case like Marbury v. Madison, because they thought as a theoretical matter it could come before the court.

I tend to take a more practical and pragmatic approach to things, rather than a theoretical or ideological approach. I think as a practical matter an issue about Marbury v. Madison is not likely to come before the court. Same with Brown v. Board of Education. So I've gone farther than many nominees and have been willing to talk about my views on those particular cases.

But I do think when it gets into an area where the correctness or incorrectness or my agreement or disagreement with a particular precedent is in an area that is likely to come before the court or could well come before the court, I do have to draw the line there. 

And it's not out of any interest to dodge questions or anything. My views on the cases that I think are not likely to come before the court, I'm perfectly willing to discuss. It's based on the concern that the independence and integrity of the Supreme Court depends upon justices who go there and will decide the issues there with an open mind, based on the judicial decisional process, not based on prior commitments they made during the nomination hearing.

ROBERTS: All of the justices have adhered to that approach for that reason. And if I'm to join their number, I need to be able to look them in the eye in the conference room and say I kept the same faith with the independence and integrity of this court.

CORNYN: Well, I think it also may reflect the fact that you seem to be quite comfortable responding to questions from the committee. You've had a lot of experience responding to questions from the bench and having to distinguish cases, answer hypothetical questions and the like.

And I think we have gained an appreciation, a greater appreciation for the skills that you've acquired and your ability.

But I understand the line you're walking. And I think it's really a constitutional standard that you're trying to observe. And I applaud you for it.

A couple other areas I want to ask you about, but first let me ask you this: Judges are not in the business of picking winners and losers before they've actually heard the case, of course. I mean, that's fundamental to our concept of justice, that a judge be open minded, be willing to listen to the facts and arguments of counsel, and then make a decision.

And the process that you use is by applying neutral principles. In other words, when you make a decision based on the commerce clause, or even based on stare decisis, does that really have anything to do with the ultimate result? In other words, do you start with the results you want to reach first and then go back and try to rationalize it or justify it by the way you read the commerce clause of the Constitution or apply the legal doctrine of stare decisis?

ROBERTS: No, Senator. Saying a judge is result-oriented, that type of judge, that's about the worst thing you can say about a judge. 

CORNYN: Those are almost fighting words.

ROBERTS: It's about the worst thing you can say, because what you're saying is you don't apply the law to tell you what the result should be. You don't go through the judicial decisional process. You don't look to the principles that are established in the Constitution or the law.

You look to what you think the results should be, and then you go back and try to rationalize it. And that's not the way the system is supposed to work.

CORNYN: Well, I know that we've heard today about a number of terms, from stare decisis to pro hac vice, to pro forma -- the only one we haven't heard is res ipsa loquitor, and a number of other Latin phrases that we learned in law school. 

But let me ask you about stare decisis.

CORNYN: I have heard fascinating discussion back and forth about the precedent and how you would deal with a case. Let's say the example of Roe v. Wade. Some have suggested -- law professors and maybe others -- that somehow that's a super-precedent, or in the words of our inimitable chairman, a super-duper precedent. 

I think we're introducing new words to the legal lexicon as this hearing goes on.

But in all seriousness, if -- well, let me ask you this: Is stare decisis an insurmountable obstacle to revisiting a decision based on an interpretation of the Constitution?

ROBERTS: What the Supreme Court has said, in the Casey decision, for example, is that it is not an inexorable command. In other words, it's not an absolute rule. 

And that's why they have these various cases that explain the circumstances under which you should revisit a prior precedent that you think may be flawed, and when you shouldn't.

CORNYN: I can -- excuse me. I didn't mean to interrupt you.

ROBERTS: I was just going to say: There are significant cases in the court's history, in the nation's history, where the court has revisited precedents, like Brown v. Board of Education, like the cases that overruled the decisions of the Lochner era.

CORNYN: And you started to make the point I was going to try to make next. And that is: Stare decisis did not prevent the United States Supreme Court from revisiting Plessy v. Ferguson, which established the separate but equal doctrine, or otherwise Brown v. Board of Education would never be the law of the land. 

Stare decisis did not prevent the Supreme Court from overruling Bowers v. Hardwick and Lawrence v. Texas or Stanford v. Kentucky, in this recent term of the court where they said the death penalty for 17-year old murderers was unconstitutional -- Roper v. Simmons. 

So would you agree with me, Judge, that this is a neutral principle? In other words, it's not a result-oriented principle, if there is such a thing. 

And you have pledged to apply neutral principles, not result- oriented processes, in arriving at your decisions, if confirmed. 

ROBERTS: That's right. It is a neutral principle. The factors that the court looks at in deciding whether to overrule prior precedent or not do not depend upon what the decision is or what area it's in, other than some various things we've talked about. For example, a statutory decision is much less likely to be overturned than a constitutional decision, just because Congress can address those issues themselves.

But the principles of stare decisis are neutral and should be applied in a neutral way to cases, without regard to the substance of the decisions being considered.

CORNYN: And when you said this morning, in response to questions about Roe v. Wade, that it is settled as a precedent of the court, entitled to respect under principles of stare decisis, you were saying just that.

CORNYN: In other words, it is a precedent of the court; there has to be a strong case made for why that issue should be revisited, if at all.

But you weren't making any commitment one way or another about the outcome of any challenge brought under that or any other legal doctrine, were you?

ROBERTS: No, Senator, and I tried as scrupulously as possible today to avoid making any commitments about cases that might come before the court.

CORNYN: I agree you have, and I just wanted to make sure that we were all on the same page in that understanding.

Senator Schumer asked about the commerce clause, and I've been fascinated by this debate about the commerce clause.

Of course, you know, when this nation got started -- of course, first we had the Articles of Confederation, where the states were supreme and the nation couldn't function unless all states agreed. And so the federal government was essentially impotent, which led, of course, to the Constitutional Convention and a federal form of government where states and the federal government shared powers. 

And now it's interesting to hear -- of course, we've seen a growth of national power over the years, through a series of court decisions. And Congress, frankly, has pushed the envelope and tried to argue that Congress has virtually unlimited power to legislate and can crowd out state governments completely out of any field it wants to.

But is it true that there are specific jurisdictional bases upon which the Congress can legislate?

CORNYN: In other words, under the Fourteenth Amendment, Section 5, under the commerce clause -- in other words, the Constitution of the United States was supposed to be a constitution of delegated or enumerated powers, and interstate commerce being one of those enumerated powers -- of course, there are other provisions like the necessary and proper clause. 

There have been a lot of decisions over the years about whether it's only powers expressed, or implied and the like. 

But isn't it true that the Supreme Court in the last decade has finally said in Lopez and Morrison, for example, that federal power is not unlimited; that there is some limit and the fight is really over where those limits are? Would you agree with that?

ROBERTS: Yes, Senator.

And I do think that a proper consideration of Lopez and Morrison has to take into account the more recent Supreme Court decision in Raich, where the court made the point that, yes, we have these decisions in Lopez and Morrison, but they are part of a 218-year history of decisions applying the commerce clause and they need to be taken into account in the broad scope. It's an appreciation; again, the first one in 65, 70 years that recognized a limitation on what was within the commerce power.

But they're not sort of -- they didn't junk all the cases that came before. They didn't set a new standard. That's what the court said in Raich. It said, yes, we have those two cases, don't over read them, put them into context and move on from there. 

And as the court in Raich concluded, they upheld the exercise of Congress' authority there.

CORNYN: Well, I don't think it would come as any surprise to anyone who's listening to these proceedings outside of the Beltway that our government was premised in part on the notion that all wisdom does not emanate from Washington, D.C., and that the states do have areas of competence and authority to the exclusion of the federal government.

And one of the great things, I think, about this hearing is that a lot of people I think are learning and hearing about concepts that perhaps they had never heard about before.

CORNYN: But really these are debates that have occurred since the beginning of America itself and since the formation of our government.

So I hope that this is an educational experience or maybe even a refresher course for many of us about some basic principles upon which our government was founded. 

And of course the most important principle from my standpoint is that articulated in the Declaration of Independence itself that says that our laws are based on consent of the governed, which means that most of the debates we have about the laws and the policies that will govern us and affect our families and our jobs are going to be decided in the political realm, where people can muster majorities and vote and have laws signed, and people who are in the minority may live to fight another day and turn that law over in the political forum. 

And very few cases, very few issues will be completely removed from that political forum, and those are the cases where the Constitution precludes legislative activity.

But I very much appreciate your expression of the role of the judge as one having a sense of humility and modesty. That's not to say, from the way I look at it, or I'm sure the way you look at it, that the job of a judge is unimportant. Being a judge is not easy all the time because you have to make tough decisions, which may not be politically popular. But that's what goes along with the territory.

But I appreciate the distinction that you've made and articulated for us here in preserving the vast majority of the debates and issues that affect each of us in America and our families and our jobs as one where we can govern ourselves through our elected representatives. And if we don't like the way that our elected officials are deciding things, we can throw the rascals out. 

But we can't do that when it comes to an appointed lifetime tenured judge on the Supreme Court. And so I appreciate very much the distinction that you're drawing.

With that, Mr. Chairman, I'll surrender back two and a half minutes.

SPECTER: Thank you very much, Senator Cornyn.

SPECTER: Senator Durbin?

ROBERTS: I thank you, too.

DURBIN: Thank you, Mr. Chairman.

Judge Roberts, Mrs. Roberts, family and friends, the end is near, at least for this leg of the race. 

Welcome to "Night Court."

(LAUGHTER)

I was struck by a question and answer by Senator Grassley to you earlier today. The question was this: Is there any room in constitutional interpretation for the judge's own values or beliefs? And your response: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case, but you don't look to your own values and beliefs. You look outside yourself, to other sources.

Judge Roberts, I recently finished a book about Justice Blackmun and his service on the Supreme Court, and it was a fascinating book about his life on the court and his life in the federal judiciary.

And I found it interesting that near the end of his term on the court, a couple cases occurred which really spoke to the heart of the man. One was DeShaney v. Winnebago County, a poor little boy who had been beaten and abused, left retarded, by dereliction of duty by many of the county officials or state officials in Wisconsin in an effort by his mother to hold them accountable.

And they failed in the Supreme Court, but Justice Blackmun wrote a dissent, which he prefaced, "Poor Joshua." And he said at one point, in response to someone who wrote him afterwards about the court, "Sometimes we overlook the individual's concern, the fact that these are live human beings that are so deeply and terribly affected by our decisions."

The other thing that occurred in Blackmun's legal career, his judicial career, was a real change in his view on the death penalty. And I think most of us are aware of the famous statement which he made: "From this day forward, I no longer shall tinker with the machinery of death."

DURBIN: The last case that he voted with the majority on, in favor of the death penalty, was a case that you were involved in, the Herrera case. You were deputy solicitor general, at that time.

It involved the case of individual in Texas who had been accused of killing two police officers. He tried to reopen his case, offering evidence that his brother, who had since died, had actually been the killer.

He turned to the federal court because he lost his time for reconsideration of the case by Texas law. He argued a claim of actual innocence.

Justice Blackmun, in his statement at the end of this case, said: "Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too in an execution when a condemned prisoner can prove that he is innocent. The execution of a person who can show he is innocent comes perilously close to simple murder."

That was a dissent -- or, I should say, a Blackmun opinion in that case -- that addressed your position that you had espoused as deputy solicitor general. 

Did you read that -- Blackmun?

ROBERTS: Yes, Senator, I did.

DURBIN: Were you struck by the language there? And the reason I ask that question is, it's been 11 years since we've had a Supreme Court nominee before us, and a lot of things have happened in relation to the death penalty in America.

We look closely at defendants who are young, those who are not mentally sufficient to stand trial. And we also now have the issue of DNA.

In my state of Illinois, we found 12 people on death row who were innocent people, and the Republican governor pardoned them after the evidence came out.

Tell me in that context, as you look at this, and talk about what appeared to be a very sterile and bloodless process, as you answered Senator Grassley, tell me goes through your mind and your heart when you think about addressing the death penalty, what happened in the Herrera case, and what we should look to from the court in the future when it comes to the Eighth Amendment and the death penalty.

ROBERTS: Well, I think it's important, first of all, to appreciate that the issue in the Herrera case I think was misportrayed as an issue of actual innocence. The issue in the Herrera case is: At what point should new claims, in this case the claim after his brother died -- "Well, guess what? I didn't do it, my brother did it, and he's dead now." That is to some extent a claim of innocence. But it's the sort of claim that did not have, as the courts determined there, sufficient factual support to be taken seriously.

That's quite different from a claim, for example, of the DNA evidence. Now, that's an issue that's working its way up and I don't know want to comment on it other than to say that it seems to me that that type of claim, that somebody who just died was the actual murderer, is different from the scientific issue. They're just different cases.

So I don't think that one should be taken as suggesting a view on the other.

Obviously, any case involving the death penalty is different. The court has recognized that. The irrevocability calls for the most careful scrutiny. 

It is not an area in which I've had to consider cases as a judge up to this point. 

And I certainly know the magnitude of the concern and the scrutiny that all of the justices bring to that question. It's just different than other cases. There's no doubt about that.

And DNA evidence obviously I think is a very important and critical issue. 

No one wants an innocent person executed, period. And the availability of that type of evidence, that opportunity in some cases I think is something that's a very significant development in the law.

Now, as I said, there are cases coming up in there, so I don't want to say anything further on that.

DURBIN: I understand that.

It is unfortunate that the decision was made by the White House not to provide the memos and writings on the 16 cases when you served as deputy solicitor general. This was one of the cases, Herrera.

And so we might have learned a little more about the thinking at that time that led to your conclusion.

Let me ask you -- I've been here most of the day and you've been here all day -- and I've noted how often you distance yourself from the memos written as a 26-year old staff attorney. And I understand that. That's a long time ago. When we met in my office, I think that's exactly what you said when I referred to one of those memos. 

But I'd like to ask you this: When you were serving the Reagan administration, the first Bush administration, was there ever a time when you stood up to your conservative colleagues and advocated a position that was more favorable to victims of discrimination or the disadvantaged?

ROBERTS: There certainly were internal disagreements and internal disputes about which approach to take. And in many cases I'd be on one side; in other cases I'd be on the other side. Certainly.

Now again, those are internal deliberations. But there was debate and disagreement on a regular basis. That's part of the nature of the job.

DURBIN: But there was one case, one case in particular that hasn't been mentioned today that I'd like to ask you about, and that was the case involving Bob Jones University. 

That was one of the most troubling decisions of the Reagan administration. It was a decision to argue before the Supreme Court that Bob Jones University should keep its tax-exempt status with the IRS, even though it had an official policy that banned interracial dating, denied admission to any applicants who engaged in interracial marriage or were known to advocate interracial marriage or dating.

When the Reagan administration took that position, it reversed the position of three previous administrations, including two Republicans, all of whom argued that Bob Jones was not eligible for this tax-exempt status.

This sudden reversal by the Reagan Justice Department, which you were part of at the time, led to the unusual step of the Supreme Court appointing a special counsel, William Coleman, as a friend of the court, to argue in support of the IRS.

In 1983, the Supreme Court ruled 8-1 against the Reagan administration and against Bob Jones University. 

Judge Roberts, there was a heated debate within the Justice Department about whether or not to defend Bob Jones University and its racist policies. More than 200 lawyers and employees of the Civil Rights Division, representing half of all the employees in that division, signed a letter of protest. William Bradford Reynolds, the head of the Civil Rights Division, strongly supported defending Bob Jones. Ted Olsen -- another person well known in Washington -- opposed this defense of Bob Jones. 

Which side were you on? What role did you play in the decision to defend Bob Jones University policy?

ROBERTS: Senator, I was ethically barred from taking a position on that case. I was just coming off of my clerkship on the Supreme Court, which ended in the summer of 1981. 

Supreme Court rules said that you could not participate in any way in a matter before the Supreme Court for a certain period of time. I think it was two years or whatever it was. And it was within that period. This involved an issue before the Supreme Court. 

So I was ethically barred from participating in that in any way.

DURBIN: The memo that you wrote about the Bob Jones University position, the memo of December 5th, 1983, that summarized it, leads one to believe in reading it that you were present during deliberations on this policy. Is that true?

ROBERTS: No, Senator.

DURBIN: You were not?

ROBERTS: I was not involved in the policy because of the bar on participation.

DURBIN: There appears to be another memo, which I'm going to send to you, dated September 29th, 1982, with your handwriting in it, relative to this same issue. And I don't want to surprise you with it. I'll send it to you, and if tomorrow we get a chance, we can revisit it.

Let me ask you this...

SPECTER: Senator Durbin, may we have the numbers there? The staff needs those in order to track them for the record.

DURBIN: I'd be happy to. This is dated September 29th, 1982.

SPECTER: And it has a number on it?

DURBIN: No number, but we'll give you a copy.

SPECTER: OK. Thank you.

DURBIN: We'll share it with the judge. I want you to have -- this is not a surprise, I just want you to take a look at it.

We had a nominee for the 9th Circuit Court of Appeals, Carolyn Kuhl. Do you know her personally?

ROBERTS: Yes.

DURBIN: Served in the Justice Department with her.

ROBERTS: Right.

DURBIN: When she came before this committee, Senator Leahy asked her several questions, and she said when she testified, quote, "I regret having taken the position I did in support of the government's change of position on Bob Jones. The nondiscrimination principle and the importance of enforcement of civil rights laws by the executive branch should have taken sway and should have been primary in making that decision."

I appreciated her candor on that. 

What is your belief? Was the Reagan administration position on Bob Jones University the right position to take?

ROBERTS: No, Senator. 

In retrospect, I think it's clear the people who were involved in it, as you say, themselves think that it was an incorrect position. I certainly don't disagree with that.

DURBIN: Thank you. 

Let me move to another topic.

LEAHY: I'm sorry, Senator. I didn't hear the answer.

ROBERTS: The answer is no. 

I don't think it was the correct position to take.

DURBIN: Thank you.

Earlier, Senator Feinstein asked you about the separation of church and state, and I would like to follow up on this if I could. 

She asked whether you believe the separation of church and state was absolute. And I have your answer here, relative to the two recent cases on the Ten Commandments. It appears now that there is a debate within the court as to whether or not they will stand behind the Lemon v. Kurtzman standards under the establishment clause, the three-part test, which I won't go through in detail.

As deputy solicitor general of the Bush administration, you co- authored two legal briefs in which you urged the Supreme Court to overrule the Lemon standard -- Board of Education v. Mergens and Lee v. Weisman. You argued, instead, for what has been characterized in shorthand as the legal coercion test.

So I'd like to ask you at this point in time, what is your view on the establishment clause and the Lemon standard?

ROBERTS: Well, the Lemon test is a survivor, there's no other way to put it. 

When we wrote the brief in Lee v. Weisman, we had a long footnote explaining that I think it was six different members of the current court had expressed their criticisms of the Lemon test. They never got together at the same time. And the test has endured. 

The approach that we were advocating in Lee v. Weisman did focus on the question of coercion and argued that in certain circumstances, recognition of ceremonial religious practices, an invocation at a graduation was the one at issue there, were permissible. And again, that, I think, lost 5:4. 

And the Lemon test, to this day, is the test that the court applies. I think one of the justices recently explained, you know, it's not so much how good the Lemon test is, it's that nobody can agree on an alternative to take its place. And there may be something to that.

There are cases where the court doesn't apply the Lemon test, it seems to follow a different approach.

The great benefit of the Lemon test, the three-part test that everybody's familiar with, of course, is that it's very sensitive to factual nuances. 

The disadvantage of the Lemon test, I think, is that it's very sensitive to factual nuances. And you get a situation like with the Ten Commandments case -- and again, I'm not commenting on the correctness or not -- but those are two decisions, and there's exactly one justice that thinks they're both right.

Nobody would suggest that this is an area of the law where the court's precedents are crystal clear. And I think there may be some inevitability to that. 

There is a tension of sorts between the establishment clause on the one hand and the free exercise clause on the other, and the court's cases in recent years have tried to consider: When is an accommodation for religious belief -- when does that go too far and become an establishment of religion?

The court has a case on its docket coming up.

I think the animating principle of the framers, that's reflected in both of the religion clauses, is that no one should be denied the rights of full citizenship because of their religious belief or their lack of religious belief. 

That is the underlying principle. That is, I think, what the framers were trying to accomplish.

The jurisprudence -- again, it's an area where the court has adhered through thick and thin to the Lemon test, probably because they can't come up with anything better. But the results sometimes, I think, are a little difficult to comprehend.

DURBIN: Now, of course Justice Rehnquist had a different point of view -- or at least he alluded to one when he appeared before this committee in 1986. 

Senator Simon asked him a question. He replied as follows: "I have, in my opinions, read the establishment clause more narrowly than some of my colleagues, but I also think, Senator Simon, these are almost questions of degree and that there is not a tremendous amount of difference there as to the broad principles the establishment clause are uncontroverted. And those kinds of cases do not get up to us because they're pretty well settled. It is these kinds of frontier-type cases that come and reflect divisions among us. I certainly have read the establishment clause more narrowly than some of my colleagues."

Do you feel that you are reading the establishment clause from a narrow point of view, or from the traditional Lemon point of view?

ROBERTS: Well, I don't think I've had an establishment clause case. 

The cases where I have argued obviously was representing the position of the administration, which was that the Lemon test was regarded by the administration as too manipulable, not determinative, and in some senses, inconsistent with the understanding of the framers.

So that was the position that we were advocating there.

I haven't expressed my personal views on the establishment clause in any context.

DURBIN: Well, let me read what you wrote in a memo on June 4, 1985, to Fred Fielding, again, this period of time when you were serving as a staff attorney related to Wallace v. Jaffrey. And here's what you wrote in reference to establishment clause and the Lemon test.

"Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize establishment clause jurisprudence and end up losing the majority, which is not to say the effort was misguided. In the larger scheme of things, what is important is not whether this law is upheld or struck down, but what test is applied."

I know you've said over and over again that you were just doing what you were paid to do, to tell the administration what they wanted to hear. Is that what happened here? 

ROBERTS: I don't think I said that. 

DURBIN: Well, that's correct. Strike that from the record. 

Let me just say you were a staff attorney reflecting the views the administration you worked for. Is that a correct characterization? 

ROBERTS: It's a correct view. 

The views of the administration were quite clear with respect to the moment of silence, which was the issue in Wallace against Jaffrey. It was the president's view that it was constitutional -- through the attorney general, that it was constitutional to observe a moment of silence. 

Now, what the court held in Wallace, of course, was that you couldn't look at just the moment of silence. 

There was a history there about school-led prayer and to substitute it and suddenly say, well, now it's a moment of silence -- they didn't look at it in those terms, but looked at it in the long history. 

And the issue of whether a real moment of silence, without that kind of background and history, whether that would prevail or not, was one that the court didn't address in Wallace. 

DURBIN: Let me just wrap this up by asking -- I think you've alluded to this -- is it your belief that what we are trying to establish in the constitutional protection on the exercise of religion is not only to protect minorities, religious minorities, but also nonbelievers? 

ROBERTS: Yes. 

The court's decisions in that area are quite clear. 

And I think the framers' intent was as well; that it was not their intent just to have a protection for denominational discrimination. It was their intent to leave this as an area of privacy apart -- a conscience from which the government would not intrude. 

DURBIN: Thank you. 

The next topic I would like to talk about for a moment is executive power, which has been addressed earlier. It has not been a major focus in previous hearings, but obviously is now that we are at war. 

You have been asked a lot of questions about it, because I think there's so much at stake. We will probably be involved in this war effort, as Senator Leahy said early this morning, for some time. 

Throughout American histories, even some of our greatest presidents, including one from Illinois named Lincoln, tried to restrict liberty in an effort to provide more safety and security in our nation. This administration is no exception. 

It claimed the right to seize an American citizen in the United States and hold him indefinitely without charging him with a crime. They have claimed that the courts have no right to intervene. 

I think that threatens all of our freedoms. 

Just last week, Judge Luttig authored an opinion upholding the administration's position. And if you are confirmed, you may have the final word on this question. 

You and others have compared the role of a judge to an umpire, and I promised I wouldn't get into the baseball analogies. That's one thing I will spare you from. 

But let me ask you this: When it comes to this use of executive power, you referred time and again to Justice Jackson in the Youngstown case. Here's what he said: "A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive powers as they actually present themselves." 

So if you're confirmed, you'll play a significant role in determining what limits, if any, the Constitution places on a president during times of war. That's why the American people have the right to know what you think about executive power. 

There was an exchange earlier today between you and Senator Kyl about a statement I made yesterday, about whether, as a justice, you will expand freedom in America. And Justice Kyl -- Senator Kyl -- I don't know something secret about that.

But Senator Kyl seemed to suggest it was a zero-sum approach, that you couldn't enlarge the freedom of one person or group in America without taking away the freedom of another group. 

It's a curious point of view. It's the same point of view that Robert Bork had that he tried to defend unsuccessfully before this committee many years ago. 

But my point to you is this: I'd like to ask you a question. What is it in your background or experience that can convince the members of this committee and the American people following this that you are willing to stand up to this president, if he oversteps his authority in this time of war, even if it's an unpopular thing to do? 

ROBERTS: Well, Senator, I would just say that my demonstrated commitment to the rule of law. You can see that, I think, in my opinions over the past two years. You can see it in how I approach my job as a lawyer, arguing, and what types of arguments I make and how I make those arguments and how faithful they are to the precedents. And you can see it in my history of public service. 

The idea that the rule of law -- that's the only client I have as a judge. The Constitution is the only interest I have as a judge. The notion that I would compromise my commitment to that principle that has been the lode star of my professional life since I became a lawyer, because of views toward a particular administration is one that I reject entirely. That would be inconsistent with the judicial oath.

And Justice Jackson is a perfect example of that. He is someone who was a strong advocate for executive power when he was FDR's attorney general, one of the strongest. 

And yet he could issue a decision like the Youngstown decision, not only concluding that President Truman lacked the authority, even in times of war, to seize the steel mills but also setting forth the framework, with the language of the sort that you just quoted, setting forth the framework about how to analyze these decisions in a way that is particularly sensitive to the role of Congress as well. 

That's the key feature of his framework -- the examination of where Congress is on the spectrum in determining whether the executive has that authority. 

DURBIN: I hate to keep referring back to these ancient memos, but it's said that if a hammer's the only tool you have, every problem looks like a nail. And in this case, this is the only tool we have to try to find out what's going on in your mind and in your heart. 

And so, in a memo of 1983, to White House counsel Fred Fielding, you wrote: "The independent prerogative of the chief executive to determine that a given law is unconstitutional" -- you talked about the power of the executive to determine that a law is unconstitutional. 

We are going through this debate that Senator Leahy alluded to earlier, relative to this torture memo and the idea that the administration would walk away from commitments that have been made under the Geneva Conventions and under the convention on torture and would, instead, establish a new standard. 

So my question to you is this: Would the anti-torture statute be unconstitutional simply because it conflicts with an order issued by the president as commander in chief? 

ROBERTS: No, Senator. Not simply because of the conflict.

And have I to say I don't know -- that's one of the 80,000 memos I don't know about. So I would have to understand what the point was, what the issue was, and the language you read in context before I could respond to that. 

But, no, the president has an obligation. He takes an oath, as we all do, to uphold the Constitution and to make a determination. And his determination that certain things are either constitutional or unconstitutional can, of course, in an appropriate case, be tested in court. And the ultimate arbiter of that under our system is the federal judiciary.

DURBIN: Justice Jackson thought the bottom line on executive power was clear. In Youngstown he said, "No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role." I assume you agree with that statement by Justice Jackson.

ROBERTS: Yes, I do. It simply reflects the basic principle that no man is above the law, not the president and not the Congress. And that's why the courts have the obligation, and have had since Marbury v. Madison, to say what the law is. 

And if that means that Congress has acted unconstitutionally, they strike down the law. And if it means that the executive has acted unconstitutionally, they have the obligation to block the executive action.

DURBIN: We can imagine a hypothetical statute that would clearly intrude on a president's power as commander in chief, ordering the movement of troops and that sort of thing. On the other hand, the anti-torture statute is clearly within the area, I believe, where Congress can legislate.

As you noted this morning, Article I, Section 8 of the Constitution enumerates Congress's powers. Speaking clearly to this, it says: "The Congress shall have the power to make rules for the government in regulation of the land and naval sources."

So I hope -- I think we've exhausted this topic, and I think we're in common feeling and agreement about it. I hope we are -- at least close.

Let me ask you one last question in the few minutes remaining here. I've listened to some of the questions asked about gender and sex discrimination. They've come up repeatedly during the course of this.

And as you look at the standards that are applied to the equal protection, for a variety of different circumstances there are different standards. I think you started to explain them at one point today. Maybe you got through the explanation. I'm not sure. 

But under strict scrutiny, the suspect classifications include race and national origin, religion, alienage and the like. 

Then there is, of course, the other standard, of what is characterized as middle-tier scrutiny, which includes quasi-suspect classifications of gender and illegitimacy.

As you look back at the sweep of history that created these different standards, can you rationalize the difference between discrimination based on race and based on gender?

ROBERTS: Well, I can tell you what the court has done.

There are justices who aren't comfortable with the different tiers. They say there's one equal protection clause and -- but the different tiers are fairly well-established as an approach to the different areas in discrimination. And the rationale for it is that there are areas in which you think it is almost never the case that distinctions that are drawn can be legitimate, distinctions based on race or ethnicity. And so they are subject to the most heightened scrutiny. 

The rational relation test, which applies across the board to any type of law, I think there it's quite often the case that distinctions drawn on whatever basis Congress wants are likely to reflect the different sorts of policy judgments. 

Gender issues are in the middle tier, because the court thinks that there are situations where distinctions can be justified and there are other situations, but it's more than just the rational relation, but not as suspect as the most heightened level because there may be other justifications. 

Cases throughout the court's history where they have upheld distinctions under that analysis -- like the all-male draft, for example. That was upheld. 

Now, if you had applied strict scrutiny to that type of classification, perhaps the result would have been different, and the all-male draft would have been struck down. 

It reflects the court's determination that these are not sort of almost always inherently irrational and discrimination rather than legitimate governmental distinctions, but that it's entitled to a heightened degree of scrutiny beyond the rational relation test. 

Justice Ginsburg I think in her opinion in the VMI case said that the intermediate scrutiny had to be applied with -- I forget the exact phrase -- exacting rigor, or something along those lines, to indicate that it is well beyond the rational relation test, but it's not as inherently suspect as racial classifications. 

DURBIN: Judge Roberts, thank you today for your patience with the committee...

ROBERTS: Thank you, Senator.

DURBIN: ... and your responses to my questions. I think we all understand the gravity of this hearing, as you do, and we thank you very much for bringing your family and friends to be with you.

Thank you.

ROBERTS: Thank you.

SPECTER: Thank you, Senator Durbin. 

And thank you all for sitting through a very long proceeding today. We're in our 11th hour. 

Thank you, Judge Roberts.

Thank you, Senator Leahy.

LEAHY: Thank you.

SPECTER: Here all day. And thank all my colleagues, most of whom have been here practically all day. Senators have other responsibilities. And when we set the time and stick to it, they know when to come in to find the time.

There's been, I think, a spirit of good will generally, dignified generally, contentious at times, but, I think, productive. 

We will begin tomorrow morning at 9:00 o'clock, 9:00 a.m., instead of 9:30 -- begin at 9:00 a.m. and we will start with the questioning, 30 minutes to Senator Brownback.

That concludes our day's session.

Back to Part VI.

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