Transcript: Day Three of the Roberts Confirmation Hearings

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Courtesy Morningside Partners/FDCH
Wednesday, September 14, 2005; 1:41 PM

U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE SUPREME COURT

SPEAKERS:

  • U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN
  • U.S. SENATOR ORRIN G. HATCH (R-UT)
  • U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
  • U.S. SENATOR JON KYL (R-AZ)
  • U.S. SENATOR MIKE DEWINE (R-OH)
  • U.S. SENATOR JEFF SESSIONS (R-AL)
  • U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
  • U.S. SENATOR JOHN CORNYN (R-TX)
  • U.S. SENATOR SAM BROWNBACK (R-KS)
  • U.S. SENATOR TOM COBURN (R-OK)
  • U.S. SENATOR PATRICK J. LEAHY (D-VT), RANKING MEMBER
  • U.S. SENATOR EDWARD M. KENNEDY (D-MA)
  • U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
  • U.S. SENATOR HERBERT KOHL (D-WI)
  • U.S. SENATOR DIANNE FEINSTEIN (D-CA)
  • U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
  • U.S. SENATOR CHARLES E. SCHUMER (D-NY)
  • U.S. SENATOR RICHARD J. DURBIN (D-IL)
  • WITNESSES:

    JUDGE JOHN ROBERTS, NOMINATED TO BE CHIEF JUSTICE OF THE UNITED STATES

    SPECTER: The committee will now proceed with the confirmation hearing of Judge Roberts to be chief justice of the United States.

    One preliminary statement: I noted after the session yesterday that there was some comment about my statement when I asked Senator Biden to allow you to continue to respond, or to respond at all, and he then interjected that you were misleading the committee.

    My statement was, "While they may be misleading, they are his answers." It was in the subjective, and I was not suggesting that your answers were misleading. But in that moment, the object was to let you answer.

    If somebody wants to characterize them one way or another, they can do that and you can respond. And I was not suggesting in any way, shape or form that they were misleading. And you picked it right up and said that they weren't misleading.

    There are sometimes differences of opinion between the person asking the question and the person answering the question, but there was no doubt in my find as to the fact that they were not misleading.

    We now proceed with the final two senators on the opening 30- minute round. And I recognize Senator Brownback.

    BROWNBACK: Thank you very much, Mr. Chairman.

    And I welcome you. Good morning, Judge Roberts and Mrs. Roberts. Glad to see you here this morning.

    You're only two away from the end of this round, and we'll see how much further it goes.

    BROWNBACK: I hope you had a good night's sleep.

    And I thought you had a great presentation yesterday.

    I want to compliment you on the number of areas that you answered. My colleague from Texas went through the number of areas and commented about that yesterday and I was very impressed with the breadth, obviously, of your knowledge and your forthcomingness; how many of these areas you answered where prior nominees had not put answers forth.

    And so I think you've revealed a great deal and yet not gone into those areas of active judicial action where there could be a lot of things coming forward.

    I also want to compliment the chairman, Chairman Specter, who originates from my home state, and his stamina. He's been going through a lot lately, the chairman has, and yet you've pressed this committee so that many of us have difficulty keeping up with you.

    And I want to compliment you on that stamina and the ability that you show. You always set a fast pace.

    SPECTER: Well, Senator Brownback, being a Kansan yourself, you know where that stamina came from, because I'm a Kansan myself.

    BROWNBACK: It's standing in the wind all day long; you just have to lean into it.

    (LAUGHTER)

    It makes you -- strengthens you quite a bit.

    I want to go to a few areas that you haven't answered questions on yet; maybe surprise to some watching if there are any areas left but, actually, there are quite a few. And with your service on the court, you know on the bench you're going to get such a range of issues and topics that are going to come up.

    It is noteworthy to me that a supermajority of committee members have asked you about privacy and leading up to questions on Roe, which I think only makes the point that this is an issue that should be left into the political system and not into the judicial system, where it is today.

    That's something you'll have to resolve, as issues like partial- birth abortion come up to you.

    But the very dominance of the question bespeaks of its interest within the political system and why it's best resolved within the political system and not the judicial one on a constitutional basis. But I'll get to that later.

    I want to take you first to the takings clause issue. There was a recent case that came up that really shocked the system.

    And you talked about shocks to the system when the judiciary acts. This is one that did it, in the Kelo v. New London case.

    BROWNBACK: In perhaps no other area of the law is stability more important than in the area of private property and property rights.

    Even before the existence of the United States, William Blackstone, that famous English legal authority, stated this; he stated, quote, "The law of the land postpones even public necessity to the sacred and inviolable rights of private property."

    Mindful of the sentiment and the excesses of the king yet aware of the needs of a new and growing country, the framers of our Constitution established a strict limitation on the government's ability to take private property.

    The takings clause of the Fifth Amendment of the Constitution provides that private property may not, quote, "be taken for public use without just compensation." We all know those famous words.

    Traditionally, this has meant that the government had to pay fair value when it sought to confiscate a homeowner's property in order to build a road or other public good. But now the notion of public use has taken a different hue to it.

    In this Kelo v. the City of New London case, the Supreme Court had decided whether a private economic development plan, which a city government believed would yield greater economic benefits, qualified as a public use. So you had private property taken by the state and given back to private individuals, but it was having a greater economic use -- and whether that was sufficient under the takings clause.

    In the words of the court, this economic development plan, quote, "was projected" -- not resulted, but projected -- "to create in excess of a thousand jobs, increase taxes and other revenues."

    On this basis, the court upheld the government confiscation as a public use and there was an uproar across the country. We thought that private property rights were established and set, and now it appears as if it's not; that the system is different. You can take private property, by the government's eminent domain ability, and give it back to a private individual.

    Justice O'Connor, in her eloquent dissent, quotes this: "Nothing is to prevent the state now from replacing any Motel 6 with a Ritz- Carlton, any home with a shopping mall, or any farm with a factory."

    It is remarkable how this issue has stirred, as I mentioned, great criticism. I'm pleased the chairman is going to hold a hearing on it this next week.

    Judge Roberts, what is your understanding of the state of the takings clause jurisprudence now after Kelo? Isn't it now the case that it's much easier for one man's home to become another man's castle?

    ROBERTS: Well, under the Kelo decision, which, as you explained, was interpreting the public use requirement in the Constitution, the majority -- and, of course, as you mentioned, it was a closely divided case -- the majority explained its reasoning by noting the difficulty in drawing the line.

    Everybody would agree, as you suggest, to build a road or to build a railroad, to situate a military base if that's the only suitable place, that the power of eminent domain is appropriate in those instances. And I think people agree further that when you're talking about a hospital or something like that, that satisfies public use.

    And I think the reason the court gave, really, in the majority opinion was that it's kind of hard to draw the line.

    Justice O'Connor's dissent didn't think it was that hard. She focused on the question of whether it was going to be a use open to the public as a road, a hospital, used for the public like in a military base, or private. And she would have drawn the line there and said even public benefits that derive from different private uses don't justify that aspect of it.

    There was a caveat in the Kelo majority. They said they were only deciding this in the context of an urban redevelopment plan. They reserved the question if it's just taking one parcel and giving it to somebody else, not part of a broader plan. That question was still open.

    And as you said, there's been a lot of reaction to it. I understand some states have even legislated restricting their power.

    BROWNBACK: And we are considering it here in the Congress.

    ROBERTS: And I think that's a very appropriate approach to consider. In other words, the court was not saying, "You have to have this power, you have to exercise this power."

    What the court was saying is, "There is this power," and then it's up to the legislature to determine whether it wants that to be available, whether it wants it to be available in limited circumstances or whether it wants to go back to an understanding as reflected in the dissent that this is not an appropriate public use.

    ROBERTS: That leaves the ball in the court of the legislature.

    And I think it's reflective of what is often the case -- and that people sometimes lose sight of -- that this body and legislative bodies in the states are protectors of the people's rights as well.

    It's not simply a question of legislating to address particular needs, but you, obviously, have to also be cognizant of the people's rights and you can protect them in situations where the court has determined, as it did 5-4 in Kelo, that they are not going to draw that line.

    You still have the authority to draw.

    BROWNBACK: I understand the authority we maintain. What I'm curious about is your view is: Does that right exist? I would not think Blackstone would agree that that right exists for the public to take private property for private use.

    ROBERTS: Well, in the first year in law school, we all read the decision in Calder against Bull, which has this famous statement that the government may not take the property of A and give it to B. And that certainly was quoted in the dissent -- in Justice O'Connor's dissent.

    The Kelo majority, though, said if the legislature wants to exercise that power, basically that the court's not going to second- guess the judgment that this is a public use.

    And I do think that imposes a heavy responsibility on the legislature to determine what they're doing and whether it is a public use or if it's simply transferring from one private party to the next.

    BROWNBACK: I take it you're not going to respond whether or not that right exists under the Constitution?

    ROBERTS: Well, the Kelo decision, obviously, was just decided last year and I don't think I should comment on whether it was correct or not. It stands as a precedent of the court.

    It did leave open the question of whether it applied in a situation that was not a broader redevelopment plan. And if the issue does come back before the court, I need to be able to address it without having previously commented on it.

    BROWNBACK: Let me take you to another area that's stewing here in legislative bodies, certainly, across the United States and, certainly, in Congress, and that's the issue of checks and balances of the court.

    Any civics student can talk about checks and balances within the executive, the legislative and the judicial branch. And we all know that Congress, when it passes a bill, can be checked by a veto of the president. And we know the president's power can be checked by the power of the purse in the Congress -- those checks and balances. And when popularly elected branches of government enact bills contrary to the Constitution, the courts can strike the law down by exercising judicial review.

    One curiosity, though, especially given the broad sweep of judicial power in America today and the angst that that stirs among so many people, is what check there is on the court and what checks there exist on the court. And it seems to me critical that we have this discussion at this point in time.

    First check on the judiciary, of course, is the president's ability to populate the bench, of which you're a nominee, and our ability on advise and consent.

    A greater problem arises once a federal judge is on the bench. And what's in Article 3, Section 1 -- and this is getting a lot of discussion now here in this body -- where judges hold office during good behavior -- which I know you will -- effectively have life tenure. But that's not really an effective check in the system.

    There is also another area that you wrote about when you were working within the Reagan administration. That was the ability of Congress to limit the authority and the review of the courts of what you would have. And I want to look at that in particular.

    It's the power to define jurisdiction that we would have. It's in Article 3, Section 2, and I just want to read this because I don't think it's well understood as the check and balance. And I want to get your reaction to it.

    This is Article 3, Section 2: "In all cases affecting ambassadors, other public ministers, counsels and those in which a state may be a party, the Supreme Court shall have original jurisdiction" -- no question there.

    Goes on: "In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law in fact with such exceptions and under such regulations as the Congress shall make."

    BROWNBACK: That phrase, as you know, is known as the exceptions clause.

    You wrote about this when you were in the Reagan White House, about this exceptions clause. And you stated this: "It stands as a plenary grant of power to Congress to make exceptions to the appellate jurisdiction to the Supreme Court. A clause by its terms contains no limit" -- these are your words -- and, quote, "this clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block that those who would read the clause in a more restrictive fashion."

    Now, I understand that you also argued on policy grounds this is not a good idea for the Congress to do. But would you agree with those earlier statements that you made about the nature of this power being a plenary power of the Congress and stands as a clear standard in favor of the Congress to be able to limit the jurisdiction of the courts?

    ROBERTS: Well, you know, Senator, that that writing was done at the request of the attorney general. And he asked me specifically to present the arguments in favor of that power.

    He was receiving, from elsewhere in the department, a memorandum saying that this was unconstitutional, the exercise of that authority. He wanted to see the other view before making up his mind for the department. So I was tasked to present the arguments in favor of constitutionality.

    And as you say, they focus and start with the language in the Constitution, the exceptions clause, which is as you read it. And I went on to explain that it had been interpreted, in the famous case of Ex Parte McCardle, around the time of the Civil War, which seemed to suggest that the framers meant what that language says on its face.

    Also, though, a later case, United States against Kline, suggested that there were limits on the power of Congress in this area.

    ROBERTS: It is a central debate among legal scholars, the scope of that authority.

    The argument on the other side -- the one that the attorney general adopted, rather than the argument he asked me to present -- is that it is the essential function of the Supreme Court to provide uniformity and consistency in federal law. And that if you carve out exceptions in its core constitutional area, that you deprive it of that ability and that that itself violates the constitutional scheme.

    It's an area in which most distinguished scholars line up on either side, because it does call into question basic relationships between the Congress and the courts.

    BROWNBACK: Could that language be any clearer, though, in the exceptions clause? I mean, I understand how legal scholars maybe can debate what a single word means, but that language is pretty clear, isn't it?

    ROBERTS: The argument on the other side says that it's intended to apply to -- well, for example, we have clear situations in the lower federal courts like the amount in controversy; those cases are excluded; you can have rules about timing, you know.

    The question is whether it was intended to address core constitutional areas or simply more administrative matters. The argument on the other side says, if you get into the core constitutional areas, that undermines the Supreme Court's authority and that the framers didn't intend that.

    BROWNBACK: Then what check is there on the court's power?

    ROBERTS: Well, I think the primary check is the same one that Alexander Hamilton talked about in the Federalist Papers, because the exact argument was raised in the debates about the Constitution. People were concerned about a new judiciary. What was it going to do? They were concerned that it might deprive them of their rights.

    And, of course, Hamilton's famous answer was, the judiciary was going to be the least dangerous branch because it had no power. It didn't have the sword. It didn't have the purse.

    And the judges were not going to be able to deprive people of their liberty because they were going to be bound down by rules and precedents; they were going to just interpret the law. And if judges just interpreted the law, there was no threat to liberty from the judicial branch.

    So I would say the primary check on the courts has always been judicial self-restraint and a recognition on the part of judges that they have a limited task, that they are insulated from the people.

    They're given life tenure, as you mentioned, precisely because they're not shaping policy. They're not supposed to be responsive; they're supposed to just interpret the law.

    BROWNBACK: And I guess that's the area that has so many people concerned, is that the judiciary does not show restraint, and judicial restraint is the limitation on the courts, such as in the takings clause debate we just had, really, where the court is saying, "Well, no, this is a broader power"; that if you don't restrain yourselves, then who does within this system?

    BROWNBACK: Obviously, there's restraints on the Congress. There's restraints on the president. And we like that system; we want that check and balance system. I think the framers put that exceptions clause and other things in there for a clear purpose and for a clear reason.

    But let me take you on to another area, because that one, I think, you're going to see a lot of action as you get pushing back and forth between the three branches of government, and a number of people feeling like the judiciary has not shown judicial restraint in recent years.

    I'm going to take you to the now probably most contentious social issue of our day -- and you've been debating and discussion it a great deal here already -- the issue of abortion.

    It's at the root of much of the debate taking place in the country today. It has inflamed people. It has gotten them involved in the political process, folks that probably wouldn't have been previously, because the only way they saw that they could affect the system was get involved and try to elect a president, a Senate.

    The president' lead applause line in the last election cycle was, "I'll appoint judges who'll be judges, not legislators." That that's an applause line at a political rally should say something about people's angst toward what the courts have done, and particularly rooted in this issue of abortion.

    The very root of the issue is the legal status of the unborn child. This is an old debate. Whether that child is a person or is a piece of property is the root of the debate.

    In our legal system, everything's either one of the two: you're either a person or you're a piece of property. If you're a person, you have rights; if you're a piece of property, you can be done with as your master chooses.

    And I believe everyone agrees that the unborn child is alive. And most agree that biologically it is a life, a separate genetic entity. But many will dispute whether it's a person. These may be legal definitions, but that's the way people would define it.

    Could you state your view as to whether the unborn child is a person or is a piece of property?

    ROBERTS: Well, Senator, because cases are going to come up in this area, and that could be the focus of legal argument in those cases, I don't think it would be appropriate for me to comment on that one way or another.

    I will confront issues in this area as I would confront issues in any area that come before the court, and that would be to fully and fairly consider the arguments presented and decide them according to the rule of law. And I don't think it would be appropriate for me to express views in an area that could come before the court.

    BROWNBACK: I hope you would agree with me that this is at the core of the issue, obviously, the competition between the woman's right to choose and the legal status of the unborn, and it permeates so much of our debate, and it's why a lot of us believe it should be within the political system to discuss.

    I want to point out one thing to you, and I don't think it probably needs to be addressed, but I want to point it out.

    In Plessy v. Ferguson, it's been cited yesterday along with the Brown decision, which my state is the proud home state host of Brown v. Board of Education. And I personally knew two of the lawyers that practiced in that case, and they were noble gentlemen.

    They overturned Plessy, as you know, which was an 1896 case. So Plessy had stood for nearly 60 years.

    We've had a discussion about this "super" stare decisis issue. And I just want to hold up a quick chart if I could -- if I've got it back here -- the notion that, because Roe has not been overturned in 30-some cases, makes it a "super" stare decisis: Plessy had not been overturned in a series of cases over a period of 60 years, where the court at each time looked at it, discussed it, decided against overturning it.

    Yet I don't think anybody would agree that Plessy shouldn't have been overturned, and certainly not anybody from my state. We're the host state of Brown v. the Board of Education.

    But the notion that by tenure a (inaudible) standing becomes a "super" stare decisis or by number of times that it's been looked at it become a "super" stare decisis I don't think finds a basis in law nor in practicality, as you noted. And some of these decisions up there, I would point out to you, are pretty onerous statements that the court put forward itself in how they upheld Plessy for a number of years.

    And, yet, thank goodness that the court overruled it in the Brown v. the Board of Education's case that it eventually decided.

    BROWN: I want to also point out to you something -- and you talked a lot about it yesterday, and I really appreciate this -- about facts matter in a case. And judges decide cases. And cases are built on facts. And you have the facts and you have the law but the facts matter.

    There's no one in my state that wouldn't be honored to show you the school building where Brown v. the Board of Education was decided. We just dedicated it last year. The president was there, 50th-year anniversary.

    You can see the path where the little girl walked to the school and had to walk by the all-white school to get there. And you look at that set of facts (inaudible). You look at it and you say, "That's wrong." And you're ennobled that we no longer do that.

    I held a hearing earlier this year on the factual setting of Roe v. Wade and Doe v. Bolton; the factual setting of these two cases. The two plaintiffs in those cases testified in front of the Judiciary Subcommittee. And I was there and Senator Feingold.

    Both of them talked about the false statements of record that those cases were built upon, the false statements.

    Listen to this statement by Sandra Cano. She's Doe of Doe v. Bolton. This is what she said, June 23rd, 2005, in Judiciary Subcommittee that I chaired.

    Quote, "Doe v. Bolton falsely created the health exception that led to abortion on demand and partial birth abortion."

    This is her statements now.

    "I, Sandra Cano, only sought legal assistance to get a divorce from my husband and to get my children from foster care. Abortion never crossed my mind. Although, apparently, it was on the mind of the attorney from whom I sought help."

    Further quote, "At no time did I ever have an abortion. I did not seek an abortion nor do I believe in abortion."

    This is Sandra Cano, the Doe of Doe v. Bolton.

    And then she goes on to say, "Doe v. Bolton is based on lies and deceit. It needs to be retired, retried or overturned" -- which she's trying to get it retried.

    BROWNBACK: "Doe is against my wishes. Abortion is wrong." That's "Doe" of Doe v. Bolton.

    Now here's Norma McCorvey, "Roe" of Roe v. Wade. This is just the factual setting. "I believe I was used and abused by the court system in America. Instead of helping a woman in Roe v. Wade, I brought destruction to me and millions of women throughout the nation."

    Sandra McCorvey, quote, "This is really troubling, too. I made up the story that I had been raped to help justify my abortion" -- Sandra McCorvey.

    Facts. Facts. In Roe v. Wade and Doe v. Bolton, falsified statements. And upon this we've based this constitutional right that's been found that we now have 40 million fewer children in this country to bless us with?

    And I want to take another point on that to tell you -- we talked a lot about the disability community, and well we should, and the protection needed for the disability community. And that's important, because I think it really helps people that need help, but it helps the rest of us to be much more human and caring.

    Senator Kennedy is helping me with a bill because a number of children never get here that have disabilities. Unborn children prenatally diagnosed with Down's Syndrome and other disabilities -- I don't know if you know this, but there was a recent analysis, and 80 percent to 90 percent of children prenatally diagnosed with Down's Syndrome never get here -- never get here. They're aborted in the system.

    And people just say: Look, this child's got difficulties. And we even have waiting lists in America of people, today, willing to adopt children with Down's Syndrome. And we will protect that child -- as well we should, under the Americans with Disabilities Act and other issues -- when they get here.

    But so much of the time, and with our increased ability of genetic testing, they don't get here. Diagnosed in the womb, system that encourages this child to be destroyed at that stage -- and this is all in the records.

    And we are the poorer for it as a society.

    All the members of this body know a young man with Down's Syndrome named Jimmy. Maybe you've met him, even. He runs the elevator that takes the senators up and down on the Senate floors. His warm smile welcomes us every day. We're a better body for him.

    He told me the other day -- he frequently gives me a hug in the elevator afterwards. I know he does Senator Hatch often, too, who kindly gives him ties, some of which I question the taste of, Orrin...

    (LAUGHTER)

    ... but he kindly gives ties.

    HATCH: It doesn't have to get personal...

    (LAUGHTER)

    BROWNBACK: And Jimmy said to me the other day after he hugged me; he said "Shhh, don't tell my supervisor. They're telling me I'm hugging too many people."

    (LAUGHTER)

    BROWNBACK: And, yet, we're ennobled by him and what he does and how he lifts up our humanity and 80 to 90 percent of the kids in this country like Jimmy never get here.

    What does that do to us? What does that say about us. And I would just ask you, Judge Roberts, to consider -- and probably you can't answer here today, whether the individuals with disabilities have the same constitutional rights that you and I share while they're in the womb.

    ROBERTS: Well, Senator, I appreciate your thoughts on the subject very much. I do think, though, since those precise questions could come before the courts that that is in the area that I have to refrain from answering.

    BROWNBACK: Now, I just hope one thinks about people like Jimmy and a system, now, that scientifically can figure out the nature of this child's physical or mental state at an early point and is having many of them destroyed at that point in time. And that's taking place in our country today.

    I have little time left. I want to say one final thing to you. And I appreciate you and I appreciate your inability to answer some of these questions. They're tough questions. And they're questions that are live in front of us as a society.

    BROWNBACK: I would just ask you really about your mentor or one of your mentors in Chief Justice Rehnquist who I admired greatly -- admired for his demeanor.

    As you go on, and I anticipate you will be approved to be the chief justice of the United States, I would ask you just if you could briefly respond: How do you view his mentorship of you and your taking over if you are confirmed as chief justice? What does that mean personally to you and how will it impact you as chief justice?

    ROBERTS: Well, it makes the opportunity a very special one, as I've said before. The chief was a mentor to many people. And like many great mentors, of course, he led by example not by precept.

    His example of how he dealt with other people, not just other justices but everybody in the courthouse including the law clerks, in an open, friendly, balanced way was an example for everybody there.

    Substantively, his approach to the role of a judge and the appropriate role of the court is, I think, a very important example. He was somebody who appreciated the appropriate limits on the judicial role and the judicial power and he was always careful and conscious of that. He was always asking whether or not this was something that it was appropriate for the courts to do.

    And I do think it is important for judges at every level to always ask that question, because, as we had talked earlier, judicial self-restraint is the key check on the authority of the court. And if you're not asking yourself that question at every stage, "Is this an appropriate thing for me to do as a judge," then they're's a great danger that you'll lose sight of that important judicial self- restraint.

    And God bless you in your service to the country and your family.

    Thank you, Mr. Chairman.

    SPECTER: Thank you very much, Senator Brownback.

    Senator Leahy has a doctor's appointment this morning, but will be joining us shortly. We now turn to Senator Coburn for his 30 minutes.

    COBURN: Thank you, Mr. Chairman.

    And, again, welcome. Good morning.

    ROBERTS: Good morning.

    COBURN: There are so many legal terms yesterday bandied around that I was having trouble grabbing hold of, I thought I'd start out with medical terms this morning and see if you could keep up.

    (LAUGHTER)

    I also thought it was interesting, since you've been prophesied to have 35 years -- that's 12,675 days that the chairman prophesies that you'll be there -- that you've passed three of them. And congratulations on number three.

    I want to go to something that Senator Kyl talked with you about. And I was very pleased with your answer. He asked you about referencing and using preference to select and pick precedents from foreign law yesterday. And I thought you gave a very reassuring answer to the American public.

    You based your answer on two points.

    One is that the democratic theory is that, in this country, with our law, the people are involved in that, both through the Senate, the House and the president who appoints you.

    The other point you made is that relying on foreign precedent does not confine judges.

    And I just want to kind of ask a couple of questions. Number one, the oath that you took for your appellate position and the oath that you will take states the following: that, "I, John Roberts, do solemnly swear that I will administer justice without respect of persons and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties incumbent upon me, John Roberts, under the Constitution and the laws of the United States, so help me God."

    COBURN: My question relates to the Constitution and what is said in Article 3 that judges, both of the Supreme and inferior courts, shall hold their offices during good behavior.

    My question to you: Is relying on foreign precedent and selecting and choosing a foreign precedent to create a bias outside of the laws of this country, is that good behavior?

    ROBERTS: Well, for the reasons I stated yesterday, I don't think it's a good approach. I wouldn't accuse judges or justices who disagree with that, though, of violating their oath. I'd accuse them of getting it wrong on that point and I'd hope to sit down with them and debate it and reason about it.

    But I think the justices who reach a contrary result on those questions are operating in good faith and trying, as I do on the court I am on now, to live up to that oath that you read.

    I wouldn't want to suggest that they're not doing not doing that. Again, I would think they're not getting it right in that particular case and with that particular approach. I would hope to be able to sit down and argue with it as I suspect they would like to sit down and debate with me.

    But I wouldn't suggest they're not operating in good faith to...

    COBURN: Can the American people count on you to not use foreign precedents in your decision-making on the Supreme Court?

    ROBERTS: You know, I will follow the Supreme Court's precedents consistent with the principles of stare decisis.

    ROBERTS: And there are cases in this area, of course. That's why we're having the debate. The court has looked at those.

    I think it's fair to say, in the prior opinions, those are not determinative in the sense that the precedent turned entirely on foreign law, so it's not a question of whether or not you'd be departing from these cases if you decided not to use foreign law.

    And for the reasons I gave yesterday, I'm going to be looking...

    COBURN: I understand that, and I respect that, and I know that you can't be in a position to make a judgment on that.

    But again, for the record, I want to read what the Constitution says, that the judges, both of the Supreme and inferior court, shall hold their offices during good behavior, and that the oath that they take references only the Constitution and the laws of this country.

    And, if anything, I would like to send a message that that's what their oath states. And this judicial restraint that you've spoken of, I believe, includes that oath and the definition that our founders believed when they said: Here's what you should base your decisions on; it's the Constitution of the United States and the laws.

    The other thing: Yesterday, you had an exchange with Senator Feingold on a case, and I think it was the Gonzaga, and you talked about congressional intent.

    And I'd like for you for a moment to spend a minute giving us your opinion. And you may refuse to do so if you care to; that would be your privilege.

    But one of my observations is that, oftentimes, we don't do a very good job with the laws that we write, because we're not very clear. Sometimes we're lazy. Sometimes we are politically expedient.

    But, oftentimes, the very problems that you as a court make controversial decisions over are because we've not done a good job.

    And I'd just like your thoughts as to: If you were to critique things that we could do better to make your job easier and clearer, what would you have to say to that?

    ROBERT: Well, sitting where I am, I'm not terribly inclined to be critical of...

    (LAUGHTER)

    ... the Congress and wouldn't be, in any event.

    But a lot of what judges spend their time doing -- not always in the momentous constitutional cases that we've been talking about, but sometimes in very mundane cases -- is the effort to discern congressional intent, trying to figure out what Congress meant when it used specific words that were passed by both houses and signed by the president into law.

    Now, some of that is entirely unavoidable.

    ROBERTS: The complexity of human endeavor is such that situations are going to arise that are not clearly answered by even the most specific language. And that's to be expected, and judges have to address those situations.

    But as you suggest yourself in your question, there are situations where sometimes Congress punts the issue to the courts. They can't come to an agreement about how a particular provision should be applied, and so folks who want it to go one way and folks who want it to go the other way just sort of leave it ambiguous or leave it out and take their chances in court. And obviously that's a different situation.

    I think all judges would tell you that to the extent Congress can address the issues and resolve the issues that are the policy questions entrusted to them, it makes it a lot easier for the courts to decide the cases that do come up, because then it's just a question of looking at the facts and the law is clear and you apply the facts to the law. If the law is unclear, that makes it that much more difficult.

    You know, as I said, obviously a lot of these situations are unavoidable, but there are certainly -- and the Supreme Court has addressed many of these -- the issue of implied rights of action in the past. And they were getting case after case after case. And they finally adopted an approach in the early 1980's that said, look, we're not going to imply rights of action anymore. Congress, if you want somebody to have a right of action, just say so.

    But this is not a good thing for the courts to be doing, deciding whether a particular right of action should be implied or not. And after the court developed that jurisprudence in the early 1980's, you know, the hope was -- and I think it has been realized to a large extent -- that there would be more addressing of that question in Congress, which is where it should be addressed.

    COBURN: And you would agree, we could do a better job.

    ROBERTS: Well, I'm sure everyone's doing as good a job as they can.

    COBURN: That's the first answer I worry about that you've given the whole testimony.

    (LAUGHTER)

    COBURN: Let me go to another area.

    (LAUGHTER)

    As I mentioned in my opening statement, I'm a practicing physician, kind of an old-time G.P. I've delivered 4,000 babies. I take care of people at the end of life, at the beginning of life.

    In all 50 states, death is recognized and defined as the irreversible cessation of the brain and heart activity.

    Do you have any reason to dispute that?

    ROBERTS: I don't know the medical terms or definitions, but no. I mean, if that's the law in the states, that's not to say that it has any particular legal significance...

    COBURN: Right. I'm not asking you about legal significance.

    Would you agree that the opposite of being dead is being alive?

    ROBERTS: Yes.

    (LAUGHTER)

    I don't mean to be overly cautious in answering it.

    (LAUGHTER)

    COBURN: You know I'm going somewhere. One of the problems I have is coming up with just the common sense and logic that if brain wave and heartbeat signifies life, the absence of them signifies death, then the presence of them certainly signifies life.

    And to say it otherwise, logically is schizophrenic. And that's how I view a lot of the decisions that have come from the Supreme Court on the issue of abortion.

    And I won't pressure you on this issue. I know you can't. But for the listeners of this hearing, if, in fact, life is the presence of a heartbeat and brain wave, it's important for everybody in the country to know that at 16 days post-conception, a heartbeat is present; and that at 41 days, right now, we can assure ourselves that brain activity and brain waves are present. And as the technology improves, we're going to see that come earlier and earlier.

    I make that point because so many of the decisions of the Supreme Court have been made in a vacuum of the scientific knowledge of what life is, when personhood is, when it begins, when it doesn't, when it exists, when it doesn't.

    And it belies the scientific facts and medical facts that are out there today.

    And so that was for your information and my ability to put forth a philosophy that I believe would solve a lot of the controversy in this country.

    I want to cover one area that was discussed yesterday where the implication was made that you might have ruled on a case violating the judicial ethic, and that was the Hamdan v. Rumsfeld case.

    COBURN: Senator Feingold asked you questions about the case. You invoked the canon code of conduct of U.S. judges that prohibits you from talking about a pending case.

    I would like, Mr. Chairman, a copy of that canon to be placed in the record.

    SPECTER: Without objection, so ordered.

    COBURN: And canon three provides that, "A judge should perform the duties of the office impartially and diligently. The judicial duties of a judge take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards and adjudicative responsibilities."

    There's another one of those legal words I'm having trouble getting my hands around.

    "A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel, subject to the judge's direction and control."

    The official commentary to canon 3A(6) provides the admonition against public comment about the merits of a pending or impending action until completion of the appellate process.

    I would also note that any criticism of your participation in this case is unwarranted. Numerous law professors who specialize in legal ethics have stated that you in no way have violated any ethics rules simply because you were considered for another judgeship. The opinion was finalized well before you met with the president -- I believe that's correct -- or was offered this nomination.

    Is that correct?

    ROBERTS: Yes.

    COBURN: The argument, the initial vote, and the drafting of the opinion all took place before there was a Supreme Court vacancy at all. Is that correct?

    ROBERTS: Yes.

    COBURN: You did not write an opinion on that case. Is that correct?

    ROBERTS: I joined Judge Randolph's opinion.

    COBURN: Right. But you did not write a separate opinion.

    ROBERTS: No.

    COBURN: That's right.

    I would also like to enter into the record the nonpartisan ethicists who agree that Judge Roberts did not violate any ethics rules.

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

    COBURN: I want to go to one other area that I have some concern about. I know my concerns are opposite from some of those who have a different philosophy in life.

    Many of the questions posed to you have focused on our concerns about an activist judiciary. My opening statement expressed some of those concerns. However, I'm equally concerned about an activist Congress that goes beyond its bounds, a Congress that routinely ignores its own constitutional boundaries.

    Historically, the debate about the role and scope of Congress has focused on the general welfare clause. As we all know, Article I, Section 8, Clause 1 of the Constitution gives Congress the power to provide for the common defense and general welfare of the United States.

    The 10th amendment also spells out limitations on congressional power. We had the discussion yesterday on the toad, I believe. The 10th amendment states the power not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people.

    COBURN: And I want to give you a quote that James Madison said, because in his wisdom, he anticipated that would try to stretch the definition of the founders.

    And we wrote with respect to the words "general welfare": "I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators."

    In Federalist Paper 45, Madison writes, "The power is delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and infinite."

    Do you agree with James Madison's interpretation of the general welfare clause, that the powers of the Congress should be fundamentally limited, or do you agree with the modern prevailing wisdom of both political parties, particularly appropriators, who believe Congress' role is fundamentally unlimited?

    ROBERTS: Well, I agree with Madison's view in general that the Constitution does contain limitations on the federal authority. The general welfare clause, and in particular the necessary and proper clause of course, have been interpreted in many of Chief Justice John Marshall's early opinions to recognize, though, that the scope of authority given the Congress is broad and broad enough to confront the problems that, in Chief Justice John Marshall's case, were confronted by a young nation and helped to bind it together as a nation, and broad enough today to confront the problems that Congress addresses.

    But the notion that the Constitution was one of limited powers, albeit broad under the necessary and proper clause and even the general welfare clause, as interpreted by Chief Justice John Marshall in these early opinions, that recognition doesn't undermine the framers' essential vision that we are dealing with the federal system in which vast powers reside with the states and that the federal government is one of limited powers; broad in, obviously, particular areas and broad under the necessary and proper clause but limited powers nonetheless.

    COBURN: Thank you.

    I just have one other comment. As you have been before our committee, I've tried to use my medical skills of observation of body language to ascertain your uncomfortableness and ill at ease with questions and responses.

    And I've honed that over about 23, 24 years. And the other thing that I believe is integrity is at the basis of what we want in judges .

    And I will tell you that I am very pleased, both in my observational capabilities as a physician to know that your answers have been honest and forthright as I watch the rest of your body respond to the stress that you're under. But I'm also pleased with our president that he's had the wisdom to pick somebody of such stature and such integrity.

    Without integrity what you say here means nothing. And that's the very foundation of which I believe you've based your life. And I'm pleased to have you before us. And I thank you.

    Mr. Chairman, I yield back the balance of my time.

    SPECTER: Thank you very much, Senator Coburn.

    Go to Part II of Sept. 14 transcript.

    Courtesy Morningside Parnters/FDCH.


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