Transcript: Day Three of the Roberts Confirmation Hearings

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Courtesy Morningside Partners/FDCH
Wednesday, September 14, 2005; 1:45 PM

The transcript picks up after Sen. Coburn completed his questioning. (Back to Part I of the transcript.)

SPECTER: Thank you very much, Senator Coburn. Judge Roberts, before taking up the subject of the confrontation, we'll now proceed to the 20-minute round for each senator.

Before taking up the issue of the confrontation or clash between the Congress and the Supreme Court, I want to pick up a few strands from yesterday's testimony.

Near the end of my questioning, I commented on the case of United States v. Dickerson where if a chief justice had made a modification of his earlier objections to Miranda and said that the Miranda warnings ought to be upheld, contrasting his view in 1974 in a Supreme Court decision with his view in the year 2000, saying that Miranda should not be overruled because it has been embedded in routine police practices and become a part of our national culture -- that has all of the earmarks of the doctrine of a living constitution.

Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on this issue, saying that the -- commenting on liberty, the quote, "The traditions from which it is developed," quote, "that tradition is a living thing."

And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?

ROBERTS: Well, I think the framers, when they used broad language like "liberty," like "due process," like "unreasonable" with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.

As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.

They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages.

SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.

And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.

When talking about the constitutional evolution, he referred to it as expressing values which are, quote, "the very essence of a scheme of ordered liberty," close quote, quote, "principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental."

Would you agree with the Cardozo statement of jurisprudence which I just quoted?

ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.

And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.

But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.

And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle.

ROBERTS: I depart from some views of original intent in the sense that those folks, some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they use, and if the words adopt a broader principle, it applies more broadly.

SPECTER: Well, I'll accept that as an indication of your view not to have a, quote, "crabbed interpretation," in applying the broad principles.

Let me refer you to a statement by Chief Justice Rehnquist in dissent in the Casey case which surprises me. And I ask you whether you agree with this.

He said, quote, "A woman's interest in having an abortion is a form of liberty protected by the due process clause."

Do you agree with that?

ROBERTS: Well, that does get into an area where cases are coming up. The chief, in that position, was referencing, of course, the holding in Roe v. Wade and that was what the issue was in Casey.

But I don't think I should opine on the correctness or incorrectness of particular views in areas that are likely to come before the court.

SPECTER: I'm going to move now to the confrontation between Congress and the court and what I consider to be denigrating comments about the Congress.

In the Morrison case, in the face of an overwhelming factual record, the court, 5-4 decision, said that parts of the legislation to protect women against violence unconstitutional because of the congressional, quote, "method of reasoning."

And then the dissent picked up the conclusion that the majority's view was, quote, "dependent upon a uniquely judicial competence," close quote, with the other side of the coin being congressional incompetence.

And then in the dissent in Tennessee v. Lane, Justice Scalia says that the court engages in ill-advised proceedings to make itself the, quote, "taskmaster," to see if the Congress has done its homework."

You commented a few minutes ago that you would be respectful of Congress. Do we have your commitment that you won't characterize your method of reasoning as superior to ours?

ROBERTS: I don't think it's appropriate...

SPECTER: In your particular case, maybe yours is, but...

(LAUGHTER)

ROBERTS: No, no...

SPECTER: As a generalization, we've gone around this with other nominees. And after they have gone to the court, they haven't been mindful as to what they have said here. But I take umbrage at what the court has said and so do my colleagues.

SPECTER: There isn't a method of reasoning which changes when you move across the green from the Senate columns to the Supreme Court columns. And we do our homework, evidenced by what has gone on in this hearing. And we don't like being treated as school children, requiring, as Justice Scalia says, a taskmaster.

Will you do better on this subject, Judge Roberts?

ROBERTS: Well, I don't think the court should be taskmaster of Congress. I think the Constitution is the court's taskmaster, and it's Congress's taskmaster as well. And we each have responsibilities under the Constitution.

And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding, development of a record, and also, the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record.

SPECTER: On the record, in U.S. v. Morrison, the legislation to protect women against violence, the record showed that there were reports on gender bias from the task force in 21 states, and 8 separate reports issued by Congress and its committees over a long course of time leading to the enactment, and a characterization by the dissenters that there was a mountain of evidence.

What more does the Congress have to do to establish a record that will be respected by the court?

And this is where the five-person majority threw it over, not because of the record but because of the method of reasoning.

SPECTER: Isn't that record palpably sufficient to sustain the constitutionality of the act?

ROBERTS: Well, Mr. Chairman, I don't want to comment on the correctness or incorrectness of a particular decision. What I will say...

SPECTER: Well, Judge Roberts, let me interrupt you there for a minute. Why not? The case is over. This isn't a case which is likely to come before you again. These are the specific facts based on the rape of the woman -- alleged rape -- by the three VMI students.

I liked your answers yesterday. You were willing to answer more questions about cases on the differentiation that they are not likely to come before the court. This is not likely to come before the court again.

Isn't this record sufficient in Morrison to...

ROBERTS: Well, Mr. Chairman...

SPECTER: ... uphold the act?

ROBERTS: Mr. Chairman, I must respectfully disagree. I have been willing to comment on cases that I think are not likely to come before the court again. I think particular question you ask about the adequacy of findings and make a determination of the impact on interstate commerce is likely to come before the court again. And expressing an opinion on whether the Morrison case was correct or incorrect would be prejudging those cases that are likely to come before the court again.

And that is the line -- it's not just a line that I'm drawing, it's a line that, as I've read the transcripts, every nominee who's sitting on the court today drew. Some of them drew the line far more aggressively and wouldn't even comment on cases like Marbury v. Madison.

What I can tell you is that with respect to review of congressional findings that my view of the appropriate role of a judge is a limited role and that you do not make the law.

And it seems to me that one of the warning flags that should suggest to you as a judge that you may be beginning to transgress into the area of making a law is when you are in a position of re- evaluating legislative findings because that doesn't look like judicial function. It's not an application of analysis under the Constitution; it's just another look at findings.

ROBERTS: Now, again, I don't feel it's appropriate to comment on Morrison.

I do feel it's appropriate to tell you that I appreciate the differences between Congress and the courts with respect to findings, both with respect to the issue of the capability and competence to undertake that enterprise and also with respect to the issue of authority to make a decision based on the findings.

SPECTER: Judge Roberts, we'll have to agree to disagree about that. I don't think the facts of Morrison are likely to come before the court. But I ask the questions; you answer them.

Let me come now to the Americans with Disabilities Act. And you have 5-4 decisions going opposite way. Ms. Garrett had breast cancer. The court in 2001 said that the title of the Disabilities Act was unconstitutional 5-4. On employment, discrimination. And then, three years later, you have the case coming up of Lane, a paraplegic, rolling up the steps, accommodations, 5-4: the act was upheld.

The record in the case was very extensive: 13 congressional hearings; a task force had held hearings at every state attended by more than 30,000, including thousands who had experienced discrimination.

And in the Garrett case, the Supreme Court of the United States used a doctrine which had been in vogue only since 1997 in the Boerne case. You and I discussed this in my office. They came up with the standard of what is congruent and proportionate; congruence and proportionality.

I was interested in your statement, when we talked informally, that you didn't find those in the Fourteenth Amendment. I didn't either.

Now they plucked congruence and proportionately right out of thin air. And when Scalia dissented, he said that the congruence and proportionality test was a, quote, "flabby test," which is a, quote, "invitation to judicial arbitrariness by policy-driven decision- making."

Now, you said yesterday that you did not think that there was judicial activism when the court overruled an act of Congress. Isn't this congruence and proportionality test, which comes out of thin air, a classic example of judicial activism where the view of congruence -- hard to find a definition for congruence; proportionality, hard to find a definition for proportionality -- I've searched and can't find any.

SPECTER: Isn't that the very essence of what is in the eye of the beholder, where the court take carte blanche to declare acts of Congress unconstitutional?

ROBERTS: Well, these questions arise, of course, under, as you know, Section 5 of the Fourteenth Amendment, where the issue is Congress' power to address violations of the Fourteenth Amendment.

And it's an extraordinary grant of power. And the court has always recognized it as such.

And their decisions in recent years -- it's not just, as you point out, the Garrett case on the one hand and the Lane case on the other. You have the Hibbs case recently, which upheld Congress' exercise of authority.

The most recent cases, Lane and Hibbs, uphold Congress' exercise of authority to abrogate...

SPECTER: But, Judge Roberts, they uphold it at the pleasure of the court. Congress can't figure that out. There's no way we can tell what's congruent and proportional in the eyes of the court.

ROBERTS: Well, and that was Justice Scalia's position in dissent. He had originally...

SPECTER: Do you agree with Scalia?

ROBERTS: Well, again, this is -- the congruent and proportional test...

SPECTER: Do you disagree with Justice Scalia?

ROBERTS: I don't think it's appropriate, in an area...

(LAUGHTER)

... and there are cases coming up, as you know, Mr. Chairman. There's a case on the docket right now that considers the congruence and proportionality test.

SPECTER: That's why I'm raising it with you. I'd like to see a sensible interpretation with the court in that case.

ROBERTS: Well, and if I am confirmed and I do have to sit on that case, I would approach that with an open mind and consider the arguments.

I can't give you a commitment here today about how I will approach an issue that is going to be on the docket within a matter of months.

SPECTER: Judge Roberts, I'm not talking about an issue. I'm talking about the essence of jurisprudence. I'm talking about the essence of a man-, woman-made test in the Supreme Court which has no grounding in the Constitution, no grounding in the Federalist Papers, no grounding in the history of the country.

It comes out of thin air in 1997. And it's used in Lane and Garrett, two 5-4 decisions on identical records on an identical act, and the country and the Congress are supposed to figure out what the court means.

So I'm really talking about jurisprudence.

Judge Roberts, let me move to one other subject in the two minutes that I have remaining, and that is on the ability which you would have, if confirmed as chief justice, to try to bring a consensus to the court.

We have 5-4 decisions as the hallmark of the court. It's not unusual. You commented yesterday about what Chief Justice Warren did on Brown v. Board of Education, taking a very disparate court and pulling the court together.

As you and I discussed in my office, there are an overwhelming number of cases where there are multiple concurrences.

SPECTER: A writes a concurring opinion in which B joins. Then B writes a concurring opinion in which A joins and C joins.

In reading the trilogy of cases on detainees from June of 2004 to figure out what we ought to do about Guantanamo, it was a patchwork of confusion.

I was intrigued by the comment which you made in our meeting about a dialogue among equals. And you characterized that as a dialogue among equals when you appear before the court, and they're on a little different level over there. I'm way behind you on Supreme Court arguments. It's 39-3. But I wouldn't have been an equal of theirs in any event; perhaps you are.

But I am intrigued by your concept. And I asked you how you'd be able to be the chief with Justice Scalia, who is 18 years older than you, and even Justice Thomas, who's seven years older than you.

Tell us what you think you can do on this dialogue among equals to try to bring some consensus to the court to try to avoid these proliferation of opinions and avoid all these 5-4 decisions.

Times up.

LEAHY: I'd like to hear the answer, because that's a question I was going to ask, too.

SPECTER: Well, now we're on Senator Leahy's time. Go ahead.

(LAUGHTER)

LEAHY: Oh, no, no. We're not on my time. We're not on my time. We're still on yours, Mr. Chairman. But I'd like to hear this answer.

SPECTER: It's permissible to have the answer on the red light, just not the question.

ROBERTS: Well, I don't want to be presumptuous about, if I am confirmed, what I would do.

I do think, though, it's a responsibility of all of the justices, not just the chief justice, to try to work toward an opinion of the court.

The Supreme Court speaks only as a court. Individually, the justices have no authority. And I do think it should be a priority to have an opinion of the court.

You don't, obviously, compromise strongly held views, but you do have to be open to the considered views of your colleagues. Particularly when it gets to a concurring opinion, I do think you do need to ask yourself, "What benefit is this serving? Why is it necessary for me to state this separate reason? Can I go take another look at what the four of them think or the three of them think to see if I can subscribe to that or get them to modify it in a way that would allow me to subscribe to that?"

Because an important function of the Supreme Court is to provide guidance. As a lower court judge, I appreciate clear guidance from the Supreme Court.

I think the last thing Chief Justice Rehnquist said in court, on the last day of the term, he was reading the disposition in a case and said, you know, "A reaches this conclusion. He is joined by B. And then C has a separate concurrence, joined by D and E." And he ended up by saying, "I didn't know we had that many judges on the court."

(LAUGHTER)

ROBERTS: And that undermines the importance of providing guidance.

I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution, and that would certainly be a priority for me if I were confirmed.

SPECTER: Thank you very much, Judge Roberts.

Senator Leahy?

LEAHY: Thank you, Mr. Chairman. Thank you for asking that question because it was one I wanted to ask, too.

Last night, we welcomed you to night court. Welcome to daytime court.

ROBERTS: Thank you, Senator.

LEAHY: It will probably become night court before we get done.

We talked just briefly about the First Amendment yesterday. And it's written primarily in terms of speech. But in a free and democratic nation, access to information, I think, is extraordinarily important, too.

Our framers knew that maximum knowledge is power. Actually, that was the maxim the administration used as the model for what was somewhat Orwellian, Total Information Awareness Program, until a Republican Congress. And I supported this, shut it down, because it was asking too much knowledge about individual Americans.

I also spoke about we, the people. If we, the people, know what our government's doing, why it's doing it, we can hold the government accountable and should.

So I worry about administration -- I'm not going into a specific case, but I'm worried about an administration that spreads misinformation, that is declaring more things secret and spending billions of dollars doing that, far more than any administration in history, probably all administrations put together. It punishes the whistleblowers. It bars the press and cameras from so many different events.

And I believe very strongly that the people want to know what's going on. The courts are, if at all possible, supposed to take their side in making sure they know what's going on. Because our government should not be able to hide things unnecessarily from the people.

No matter who's in power, the people should know what's going on.

So I would like to know how you would approach such a case. Let me give you a few examples.

In the last couple of years, the administration fought to prevent the media from covering coffins returning from Iraq. It fought to keep disturbing images of U.S.-run prisons in Iraq from the media. And just last weekend, actually after they lost the initial bout in court, it abandoned its zero-access policy regarding scenes of devastation in New Orleans.

As you know, most of America found out what was going on in New Orleans really from the press not from our government, at least the first few days.

There's been a number of reasons, excuses, which seem to change day by day, for why these things are being blocked. I'm not going to ask you to evaluate them.

But my question is this: If the government seeks to broadly exclude media from access to images or events of public interest or concern, does the First Amendment require the government to justify that denial of access?

LEAHY: And if so, what kind of standards -- not any particular case, but what kind of standards does the court have to apply?

ROBERTS: Senator, I haven't dealt with a lot of First Amendment access cases. I studied one about media access to prisons, for example; the issue about whether the media had a right of access to prisons -- they wanted to report on it. And so I'm not terribly familiar with the precise levels of scrutiny that apply.

There is, obviously, a balancing of sorts between particular interests, when you are dealing with governmental operations. And there's some perfectly valid reasons for excluding media.

On the other hand, simply disagreement about whether it's an appropriate issue for the public to see would not strike me as a very compelling governmental interest.

And I think the courts regularly balance these sorts of things when they get an issue about a challenge by the media saying their First Amendment rights are being violated because of a particular exclusion.

And again, I'm not terribly familiar with the precise legal standards or how they have developed since the prison access case that I'm familiar with, but it does require a consideration and weighing. And the values of the First Amendment, obviously, are something that have to be given careful weight by the court, for the very reasons that you have discussed.

Because the First Amendment serves a purpose. It's not there just because the framers thought this was in general a good idea. It serves a purpose with respect to the government. It provides access to information and allows the people in a free society to make a judgment about what their government is up to.

LEAHY: Like the chairman, I was a prosecutor. And if we move a little bit out of the prison situation, which raises all other kinds of questions and abilities to limit access, let's just go to something that the public might easily have access to, if they could just walk in there.

Suppose the government -- I'll use something like Katrina. Suppose they felt that the rescue operations of the government, whether it's state, local or federal, was being handled in an inept way, or evacuees are being mistreated. Does that give them a right to bar the media, who may want to expose that?

ROBERTS: I think it's a general...

LEAHY: How would you analyze the claim, without citing a particular case?

The media comes and says, "Look, the government screwed up. We're trying to get in there to take pictures to show how they screwed up and they say, 'You can't come in.'" How would you analyze a claim like that?

ROBERTS: Well, you know, I do start with a general principle in this area. And I think it was Justice Brandeis who talked about, you know, sunlight being the best disinfectant.

And I think that's a lot of what the framers had in mind in guaranteeing freedom of speech and the other rights that go along with it. They appreciated the benefits that would come from public awareness. That's an important principle.

And, again, this is not an area that I feel completely up to speed on the precedents. And I obviously, if I were in a position as a judge and had to decide a particular case, would study them and become aware.

But my recollection is that there is great difficulty whenever you try to distinguish between public rights and media rights. And that if it's a situation in which the public is being given access, you can't discriminate against the media, and say, as a general matter, that the media don't have access, because their access rights, of course, correspond with those of the public. And as you said, they're in a position -- if there are a handful of people who might be able to have access, the media is in a position to make that information or knowledge, or whatever, available on a broader basis.

LEAHY: I raise this, because -- and I'm not trying to pin you on a particular case -- I think we're going to see more and more of this. We're in a digital age. A lot of information is readily available.

At the same time, the bad part about that is our government can acquire more and more and more information on us, just as your credit card company or anybody else does on you.

And some of us want to be in a position to be able to go in and find out what is being collected on us; to what extent are we giving up our privacy?

And usually, far more than the Congress or anybody else, it's been the media that's exposed when this has been overdone, when mistakes or violations are done. And I would hope that you would be committed to protecting just as much as possible access, rather than the other way around.

LEAHY: Let me go to an issue we discussed yesterday -- or others did -- the issue of capital punishment.

We've held in this committee a number of hearings that show some real flaws in the administration of capital punishment: you know, sleeping lawyers, drunk lawyers, lawyers who didn't bother even to investigate or didn't have the funds to do it. More than 100 death- row inmates have been exonerated; some, though, who have spent years on death row under the most horrible conditions for a crime they never committed.

I think Senator Durbin mentioned a situation out in Illinois where a Republican governor had to, and did -- courageously I felt -- extend clemency to a whole lot of people who had been on death row.

Some say -- and I think you have even said this -- when they're exonerated, it shows the system works.

Well, let me tell you about the system in that case. One of the people is Anthony Porter: spent 16 years on death row. He was within two days of being executed.

The system didn't work on behalf of the government doing. A bunch of kids from Northwestern University, who had taken as an elective course a course on journalism, and the teacher said, "Why don't you look into a couple of these?" and these kids went out and did it.

The kids dug up the information that was there available to the police, available to the prosecutor, available to the defense. Nobody dug up. They found it, and within two days of his execution, the state's attorney dropped the case. They got somebody else to confess.

You said two years ago -- and I remember being at that hearing -- you said that, on the startling number of innocent men sentenced to death who are later exonerated, you responded somehow showed the system worked in exonerating them.

I worry about that statement, I really do.

It bothered me. You know, I voted for you for the circuit court, and there was a split vote in our party. But that one really bothered me, that statement. I found it almost mechanical, and I'll tell you why.

When we have people say innocent people who have been freed after years on death row shows the system was working, it doesn't. I think Sandra Day O'Connor said two years ago, "If statistics are any indication, the system may well be allowing some innocent defendants to be executed. If that's the case, the system is not working."

LEAHY: In Herrera, we've discussed that. The court grappled with it and didn't ultimately decide: Does the Constitution permit the execution of a person who is innocent?

And as principal deputy solicitor general, you co-authored the amicus brief for the U.S. in the Herrera case. You say the claim of actual innocence does not state a ground for federal habeas.

Actually, you said, quote, "Does the Constitution require the prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process? In our view, the Constitution does not guarantee the prisoner such a right."

So let me ask you this, without going to the facts of Herrera: Is it your current personal view the death row inmate who can prove his innocence has no constitutional right to do so before a court before he's executed?

ROBERTS: Well, Senator, this is the basis of the disagreement in Herrera. Herrera is not a case about actual innocence. It's a question of whether you are entitled to bring a new claim.

LEAHY: Well, listen to my question. To the death row inmate who can prove he is innocent, do they have no constitutional right to do so in a court of law before they are executed?

ROBERTS: Well, prove his innocence, the issue arises before you get to the question of proof. And the question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder?

And does that mean you start the trial all over again simply on the basis of that last-minute claim or do you require more of a showing at that stage? That's what Herrera was about.

Now I don't think, of course, that anybody who is innocent should suffer as a result of a false conviction. If they have been falsely convicted and they are innocent, they shouldn't be in prison, let alone executed. But the issue...

LEAHY: Does the Constitution permit the execution of an innocent person?

ROBERTS: I would think not. But the question is never: Do you allow the execution of an innocent person? The question is: Do you allow particular claimants to raise different claims, fourth or fifth or sixth time to say at the last minute that somebody who just died was actually the person who committed the murder and let's have a new trial? Or do you take into account the proceedings that have already gone on?

LEAHY: I'm looking for broad principles here. You said -- let me read it again -- does the Constitution require that a prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process?

"In our view, the Constitution does not guarantee the prisoner such a right."

Is that your view today?

ROBERTS: Well, that's what the court held in Herrera?

LEAHY: I know. Is that your view today?

ROBERTS: Well, I'm not in the position to comment on the correctness or incorrectness of particular court decisions. That's the court's precedent in Herrera. It agreed with the administration position, which was not that innocent people should be subject to imprisonment or execution.

LEAHY: That's a position you took. The Supreme Court's going to revisit this issue in House v. Bell. Because you stated a position on that, does that require you to recuse yourself in the House v. Bell?

ROBERTS: No, because the position was stated in a brief filed on behalf of the administration. And we've talked yesterday about the established principle that lawyers do not subscribe as a personal matter to the views they present on behalf of clients.

LEAHY: Well, in this case, the client's the United States. I mean, you're stating the position, sort of the -- what do they call it? The 10th justice?

ROBERTS: Well, I was the deputy solicitor general on the brief. I didn't argue the case. The solicitor general was the counsel of record in the case. But the position presented in the brief as an advocate is not necessarily the position of every lawyer on the brief.

LEAHY: I think you were more than just a lawyer on the brief. You were one of the most sought after jobs, picked because of your position. I was very impressed when I talked with you about your use of Latin, for example, and French.

And I'm always impressed with somebody with that facility. There is a Latin phrase. And this is not a (inaudible). I'll translate it: (SPEAKING IN LATIN). "He who acts through another acts for himself." And that's not the case in Herrera?

ROBERTS: He who acts for another acts for himself? Well, it's the client acting through the lawyer and it's the client who is acting for themselves...

LEAHY: You are the client in this case when you are -- the solicitor general is the client, in effect.

ROBERTS: No, Senator, I disagree with that. The solicitor general represents the interest of the United States and those positions represent that client's position. And in the Herrera case, again, it was the solicitor general who was responsible for the position that was advanced. I'm not suggesting in any way that I disagree with it or agree with it.

ROBERTS: I'm just saying that it is a basic principle in our system that lawyers represent clients and you do not ascribe the position of the client to the lawyer.

It's a position that goes back to John Adams and the Revolution.

LEAHY: Let me ask you this, then. Let me ask you something that couldn't be ascribed to a justice of the Supreme Court. It's something that both the chairman and I have talked a lot about.

And that goes into some of the mechanics. And if you will let me take a moment, you understand these but, for the audience, the so- called rule of four: It takes only four justices to grant cert, but it takes five to grant a stay of execution.

Usually the courtesy is that, if you get four, a fifth one will sign on. That has not always been followed of late. Of course, we are dealing with the life or death issue. Senator Specter called it bizarre and unacceptable and sent in legislation to change it.

How do you feel if you were chief, if you had four other justices now voting for a stay of execution? Do you feel, as chief, you should do the courtesy of the rule of five and kick in the fifth one?

ROBERTS: It's an issue that I'm familiar with. I do know it arose. And I thought the common practice -- the current practice -- was that, if there are four votes to grant cert, that the court would grant the stay even though that does require the fifth vote, so that you don't have a situation..

LEAHY: It usually occurred -- yes, but that's because one more says, "OK we've got four. We will put somebody else's name on here."

ROBERTS: Right.

LEAHY: But that hasn't been followed all the time recently. It usually was. And that's why both Senator Specter and I have raised concern.

Do you feel the earlier practice of once you have four...

(CROSSTALK)

ROBERTS: I think that practice makes a lot of sense. I don't want to commit to pursue a particular practice in an area that I'll obviously have to look at in the future. But it obviously makes great sense that, if you have four to grant and that's the rule, that you will consider an issue if there are four to grant; you don't want to moot the case by not staying the sentence.

LEAHY: Right. And I appreciate that, because I know we find a lot of cases where they are perfectly willing to grant cert on monetary damages, but here it's kind of get it right. It doesn't make much difference with an appeal after the execution.

LEAHY: You wrote a memo regarding -- in fact, in '83, to the White House lawyer -- you wrote a memo regarding proposals by then Chief Justice Warren Burger to reduce the Supreme Court's case load.

In that memo you volunteered the following: "If the justices truly think they're overlooked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the good faith standard and advocating the role of fourth or fifth guesser in death-penalty cases would eliminate about a half dozen argued cases from the court's docket each term."

Are you saying that judges are just too busy to pay attention to death cases?

ROBERTS: No, Senator.

LEAHY: What are you saying. How do you feel today? That was '83. How do you feel now, 22 years later?

ROBERTS: Well, in '83, of course, they were hearing about 150 case as year. They hear about half that now. Again, I don't want to prejudge questions or even be presumptuous to look down the road, but it seems to me that there's the capability there to hear more cases today, not fewer.

And I'm sure there are reasons for the reduction in the case load that I'm not familiar with that I might become more familiar with, but they handled twice as many cases 20 years ago than they do today, and I think the capability to address more issues is there in the court.

LEAHY: My time is up, but I think you'll find both the chairman and ranking member of this committee believe they could handle more.

Thank you, Judge.

ROBERTS: Thank you, Senator.

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

HATCH: I think you have acquitted yourself as well as anybody I've seen in the 10 nominations for the Supreme Court that I have been part of.

HATCH: And I'm going to correct the record a little bit. It isn't the Ginsburg rule, although that's been referred to by almost all of us, including me.

It's the Thurgood Marshall rule, the Rehnquist rule, the Kennedy/Souter/Thomas/Ginsburg/Breyer rule -- just to name a few, because in every case, as I stated in my original remarks, the individual nominee has to draw a line as to what they can discuss and what they can't.

And you've drawn, I think, a fair line here throughout these proceedings, and I commend you for it. And there's just no excuse for being pushed to try and answer questions about cases that are likely to come before the court or presently are before the court. And I think the American people are starting to really fully realize that now as a result of this hearing.

Now, Judge Roberts, as you know, the war on terror is a unique challenge in American history. As a consequence, many novel issues regarding presidential authority to prosecute the war on terror will doubtless come before the Supreme Court.

I think we ought to recognize the need to be careful in our questioning so you're not placed in the position of precommitting yourself to any particular viewpoints on executive power that would compromise your ability to render a fair judgment as cases come before the court. But let me as ask a general question on terrorism.

It is a question that many in Congress and the administration and in the public have had to struggle with, particularly in the aftermath of the events of September 11th, 2001.

The question is this: What is the best way for our society to protect ourselves against terrorists not affiliated with a nation state, wear no uniforms, and really secrete themselves in ways that have never been done before?

On the one hand, there are very specific international rules embodied in the Geneva Conventions that specify how enemies in traditional warfare are to be treated.

On the other hand we have the traditional criminal law protections contained in Title XVIII of the United States Code that define the rights accorded to criminal such as the famous Miranda warning and the right to obtain counsel.

HATCH: What everyone is struggling with is how do we apply these two traditional methods against nontraditional enemies who clearly are nontraditional? Let us make no mistake, their goal is to destroy our society and way of life. And they will use weapons of mass destruction if they can. I don't think anybody doe doubts that.

Let me just ask you this general question: Will you give us assurance that you will keep an open mind as the administration and Congress adopt and implement new policies and legal procedures that govern the apprehension, interrogation and detention of suspected terrorists?

ROBERTS: Yes, Senator, I will. I certainly am not qualified to comment on the best approaches in the war on terror or the most effective approaches. That is the responsibility, obviously, of the other branches.

The responsibility of the judicial branch is to decide particular cases that are presented to them in this area according to the rule of law. And that is what I have tried to do and that is what I will continue to do. Either on the court of appeals or on other courts.

HATCH: Well, thank you.

Now, also yesterday, the Democrat staff of the committee released a press release stating that you failed to distance yourself from what it called your earlier cramped positions on Title 9 and women's rights.

After listening to you yesterday, I did not find your earlier positions cramped at all. In fact, as you explained here to the committee, many of the documents that questioners relied upon reflected the positions of the Reagan administration for which you worked.

HATCH: Now, what assurance can you give the committee that you will fairly interpret the civil rights laws including critical statutes such as Title IX, fully and fairly, consistent with the purposes Congress intended in passing these laws?

ROBERTS: Well, I can give the commitment that I appreciate that my role as a judge is different than my role as a staff lawyer for administration.

As a judge, I have no agenda. I have a guide in the Constitution and the laws and the precedents of the court and those are what I would apply with an open mind, after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench. That's the way I would approach cases in that area as in any other area.

The approach of someone who's obviously a staff lawyer in an administration is very different. The approach of someone who's an advocate for a client before the court is obviously very different.

Those are positions that I have held in the past. I am now a judge, and I have had the experience, and I think my record will establish that that is how I approach cases across the spectrum of issues that are raised before the courts.

HATCH: And reasonable people can differ on some of these issues.

ROBERTS: Oh, certainly.

HATCH: Now, in the Grove City case, you won that case, didn't you?

ROBERTS: The administration's position prevailed.

HATCH: That's right. In other words, the position that you had advocated prevailed.

Then we didn't like it up here on Capitol Hill. So we passed the Civil Rights Restoration Act. And we changed it, right?

ROBERTS: Yes.

HATCH: Which, of course, is always the prerogative of Congress when you're dealing with a question of statutory interpretation. And that's part of a regular interchange between the court and the Congress.

Sometimes if the court gets something wrong, Congress can fix it. Even if the court gets it right but Congress thinks the approach ought to be changed, Congress is free to legislate for a different result.

So I find it strange to criticize you because you won a case in the Supreme Court and have not advocated against women's rights in any way, shape or form, ever in your career as far as I can understand. Is that correct?

ROBERTS: That's correct, Senator.

HATCH: And, in fact, you're a strong supporter of women's rights and gender equality.

ROBERTS: Yes, Senator.

HATCH: OK.

Now let me just ask you a question that relates to some of the answers you gave yesterday regarding the voting rights.

Even as the hearing was unfolding, again, Democratic staffers of the committee issued a press release that said that you had missed an opportunity to distance yourself from what the release called your "earlier narrow positions on the reach of the Voting Rights Act."

Now, that is not what I heard you say nor do I believe that is what the public heard. The Democratic press release said that you had "resorted to vague generalities about the importance of voting."

Now, as I heard you, I heard you explain the vigorous debate that took place regarding reauthorization of the Voting Rights Act in the 1980s.

And, by the way, I was part of that debate. I felt very deeply that the effects test should apply to Section 5, to those states that had a history of discrimination.

HATCH: But I also felt very deeply at the time that the intent test should apply to all the other states in Section 2. Which was the position, I think, the administration took that you had to do some research on within the administration.

Now, I lost in committee. Now, I was arguing that all of the states that did not have a history of discrimination should not be burdened by the effects test, which basically says, "If the effects of what happens looks like discrimination, that therefore is, even if there was never an intent to commit discrimination."

Now, I lost. But I feel that the Voting Rights Act is the most important civil rights bill in history, and I felt it then. And I voted for the amended bill with the effects test language in Section 2 and have been a strong supporter ever since.

Would that be fair to describe your feelings about that?

ROBERTS: Well, yes, Senator.

The debate, as you remember, was over whether or not Section 2 should be extended without change, as interpreted by the Supreme Court in Mobile against Bolden, or whether it should be changed to incorporate the effects test and later the totality of the circumstances test.

The administration position at the time was to extend the Voting Rights Act for the longest period in history without change, and that was the position that I was working on at the time.

And Congress eventually decided -- Senator Dole and some other senators, developed a compromise position on Section 2, and that was enacted with the support of the administration.

And the one thing that was clear to me throughout those extended debates was that the people on both sides of the issue in good faith supported extension of the Voting Rights Act and recognized the importance of the Voting Rights Act in securing civil liberties for all Americans.

ROBERTS: It wasn't a dispute about the goal. It wasn't a dispute about the objective. It wasn't a dispute about the importance. It was a dispute about whether to extend the act without change or whether to make changes in the act. And that was what the debate was about.

HATCH: Well, and the difference was that the administration vehemently wanted to pass the Voting Rights Act as it existed that was somewhat difficult to pass originally when it was originally passed. And that was a decent, honorable position.

But when it was changed, through our democratic process up here on Capitol Hill, I felt for the worse at the time, but I feel like I was wrong at the time. Then we voted for it.

In fact, it was my friend Senator Kennedy who insisted that I come down to the White House as part of the bill-signing team, because he knew how deeply I felt about this.

But there was a legitimate reason to take the administration's position. And once the compromise was reached with Senators Dole and Kennedy, the administration accepted that as well and so did you.

And that's the point I just, kind of, wanted to make because I think it's important to realize that we can sometimes get to a point where we misconstrue the intentions of decent, honorable people. And I count myself one of those.

And even though I lost in committee -- I voted for this bill because to me it is the most important civil rights bill in history, albeit others are very important as well.

Now, I just want to tell you that, like I say, I've been here for 29 years and I've been through 10 of these -- I think 10, if I recall correctly. And in all of that time, we've seen some really sterling, brilliant, wonderful people before this committee. But I've never seen anybody who has done a better job of explaining himself than you have.

If people can't vote for you, then I doubt that they can vote for any Republican nominee.

You have made a very, very strong presentation here. And I hope the American people realize that, and I hope my colleagues on both sides of the aisle realize that.

And I look forward to seeing you as chief justice of the United States Supreme Court. And will do everything in my power to see that you are confirmed.

With that, I have eight and a half minutes left. I reserve the balance of my time.

SPECTER: Thank you very much, Senator Hatch.

SPECTER: Senator Kennedy?

KENNEDY: Thank you very much, Mr. Chairman.

Good morning.

ROBERTS: Good morning, Senator.

KENNEDY: I would like to, if we could, come back in the time that I have now, and perhaps in a follow-up round, to the issue on civil rights. Because as been mentioned here by others, it is the overarching issue, I think, for our country and our society.

I think our founders didn't get it right at the time of the drafting of the Constitution. We've had a Civil War. This country went through an extraordinary period of time, led by Dr. King in the 1950s, and then we had that extraordinary moment of Dr. King here at the Lincoln Memorial, which I think touched the conscience of the nation, people from all over the country.

We were stuck for months on the 1964 act, as you probably remember, and then with the action that was taken by Everett Dirksen that opened up the possibilities for reaching a compromise on the public accommodation provisions.

We spent eight hours, a number of us in the Judiciary Committee, with Nick Katzenbach over in the Capitol office, and had an agreement at that time there would be no amendments on the public accommodations; we could amend other provisions when the legislation went forward. And was monumental in its importance and consequence.

Then we came back and realized after that that the most important legislation that we could probably address -- we still had a ways to go on housing and employment; although employment was included in the '64 act, but not to a great extent -- was in the Voting Rights Act.

KENNEDY: And we had extensive hearings. And during the course of those hearings by this committee -- other committees, as well -- we listened to Attorney General Katzenbach, who had been working with Senator Dirksen -- really the architect, leadership of President Johnson, certainly, but the architect of the '64 act.

And he testified before this committee about the Section 2 provisions. And in his testimony on the Section 2 provisions, he said, "Section 2 applies to any voting practice or procedure if its purpose or effect was to deny or abridge the right to vote on account of race or color." So for many of us, including the civil rights community, believed that the effects test was operative at that time.

That bill passed the House by 333-85, 77-19.

The next thing that happened is we had the series of tests, as you recall. And the overarching test case was the Zimmer case, but we had a number of cases -- Zimmer v. McKeithen. And it was the 5th Circuit, en banc, that dealt with the whole range -- for the most part -- range of states where many of these challenges had existed, although I certainly recognize we have a long ways to go in my own state of Massachusetts.

But this court en banc effectively in the Zimmer case; it was the lead case on the effects test. And that was followed by a series of cases -- U.S. v. Post (ph), Kendrick v. Walder -- for a long period of time.

You're aware of this history?

ROBERTS: I'm remembering it from when we addressed this debate of 23 years ago.

KENNEDY: But it sounds familiar?

Then we went up to 1980 and we had the Mobile case which effectively put the intent test in.

KENNEDY: And after the Mobile case, as you well remember, the Justice Department dropped a whole series of cases that had been prepared under the effects test because they did not believe that they could make the case on the intent test: whole series.

And this sent a very powerful message to individuals across the South, other parts of the country, that the additional kind of a burden to demonstrate intention was going to be so substantial, it was going to make, in terms of resources, and to try and determine the intent of individuals that lived many years ago, to virtually be prohibitive.

That happened. The Justice Department dropped scores of cases.

And it was one of the important reasons that the civil rights community and many of us believed that it was so important at the time of the extension of the voting rights case in 1982 that we put the effects test in.

You believed, as I remember, and as we have gone over, that it should have been a restatement of the existing law, as you correctly stated yesterday, which was the intent test. Am I correct so far?

ROBERTS: That was the administration's position.

KENNEDY: The administration's position. I remember French Smith testifying before this committee to that effect. I remember at that particular time.

Every civil rights group in 1982 included the effects test. This is the NAACP Legal Defense, National Urban League, Lawyers Committee on Civil Rights Under Law, Conference on Civil Rights, Mexican- American Legal National Council of Raza, League of United Latin American Voters, League of Women Voters -- the list goes on -- Congressional Black Caucus.

KENNEDY: And the House went ahead and passed the legislation with the effects test by 389-24 -- 389-24.

And in that legislation, the legislation included language which reflected the concern of the administration about whether the intent test was going to lead to either proportional representation or to quotas.

That language was included in the House legislation that passed. And it included the fact that members of a minority group have not been elected in numbers equal to the group's proportion of the population, should not, and in and of itself a constitutional violation of this section.

This addressed, for all intents and purposes, the concerns that the administration, I thought, and most of us -- the civil rights community -- thought that they had with regard to the issue of proportional representation.

You roughly remember that or aware without...

ROBERTS: I certainly remember the provision in the House bill at the time.

KENNEDY: So we also, now, included that language in the Senate bill. Now, the House bill passed. The Senate bill had 61 co-sponsors prior to the time that we adopted the Dole amendment.

That legislation was on its way. That legislation was good as done, quite frankly.

The Dole amendment was effectively a restatement of what was in the House bill, and it had been included.

But the administration, after that, said: Well, if they're going to include that as the Dole amendment, we will let up in our opposition and we'll eventually support it.

Now, during the time after the passage of the House bill and prior to the passage of the Senate bill, you -- even though the House had passed it -- you still strongly maintained the administration's position, did you not?

ROBERTS: Well, I was still working for the administration, Senator.

KENNEDY: OK.

ROBERTS: President Reagan's position was to extend the act without change, as you mentioned. That was the attorney general's position. I was a special assistant to the attorney general and I was doing my best to implement their views and support their views.

KENNEDY: In your memoranda that was to the attorney general, Brad Reynolds, now -- the administration after the House bill, I think the history will show it, thought that the administration should alter its position.

Your memoranda said, "Brad Reynolds has expressed some reservation about circulating any written statement on the question to the Hill. My own view is that something must be done."

Maybe that's a staffer, but it's separating yourself from Brad Reynolds, who was the leader on this issue at the time.

Then you...

ROBERTS: Well, with respect, Senator, my understanding -- and I've looked at that memorandum recently -- is that the issue was whether or not to circulate something, explaining the administration position.

KENNEDY: OK.

ROBERTS: And I didn't think Mr. Reynold's view was: you shouldn't do that because you didn't support the position; it was a question whether or not to circulate something at that time.

ROBERTS: And my view was whether or not I thought if the administration was advocating its position, it ought to get the position out.

KENNEDY: Well, I think that's good. You're a good advocate and a strong believer in this.

The reason in this memoranda that you circled -- and I have it right here -- make what parts of it available to the record -- in this, in the last paragraph, you said, "On the issue of the effects standard nationwide, on the strength of the record, will be constitutionally suspect but also contrary to the most fundamental tenets of the legislative process, which the laws of this country are based."

"Constitutionally suspect" -- effects test.

The reason that I bring this up is to find out what you believed in then and what you believe today, because you, having raised in your memoranda that this is provision -- the effects test is constitutionally suspect -- is that still your position?

Because if it is your position on an issue as important as the Voting Rights Act that resulted in the elections of hundreds and thousands of local leaders of color in all parts of the country, representatives in the House of Representatives, and moved the whole democratic process forward, then I think the American people are entitled to know.

So, specifically, do you believe that the effects test in the Voting Rights Act, which is currently the law, is constitutional?

ROBERTS: Well, Senator, I don't know what the analysis -- you read a clause of a sentence -- and I would have to look at the whole memorandum to see exactly what the suggestion or the issue was in that case.

SPECTER: Senator Kennedy, would you make the memo available to him, please?

KENNEDY: Sure. Yes.

What I'm interested in doing is asking now whether you believe that the effects test is constitutionally suspect. I'm interested in today, quite frankly, more than what we had written before -- whether you believe that it is suspect today or whether you find that it is settled law.

It's fine if you want to, obviously, refer to it, but I'm interested in what's your view today, whether you...

ROBERTS: Well, we're referring to -- what I'm referring to in this paragraph is the court's determination -- if I'm looking at this correctly -- under Section 5, its determination -- the language you read notes the Supreme Court's conclusion under Section 5, which is the preclearance provision that applies to jurisdictions with a history of discrimination.

And what the court had said in that case was that requirement of preclearance was acceptable given the record that the Congress had established in the Voting Rights Act of 1965 of the practices in those jurisdictions.

And the concern was that if you extend the effects test nationwide, the record, which had been established only with respect to particular jurisdictions in the South, wouldn't apply nationwide, and that would be the basis for a constitutional challenge.

The application of the test under Section 2, which is -- as you know, we use the shorthand effects test. It's actually the totality of the circumstances test, and it lays forth a number of considerations. And I think there is some argument about how closely it tracks effects test under Section 5 or if it's a different totality of the circumstances approach.

ROBERTS: I'm not aware of any case that has questioned the constitutionality of the application of the totality of the circumstances case under Section 2.

And if an issue on that were to be presented to me on the Supreme Court, which it may be, given the pending extension of the Voting Rights Act, I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a position.

And as a judge, I would come to the issue with an open mind and I would fully and fairly consider any arguments that might be presented. I don't know if an argument is going to be presented about the application of the totality of the circumstances test nationwide.

Again, I'm not aware of any challenges that have been presented to it since it was enacted. I don't know if any will be if or when the Voting Rights Act is extended again, but if it is I would confront that as a judge and not as a staff attorney for an administration with a particular position on that issue.

KENNEDY: Well, Judge, there hasn't been, at least that I know, in the legal circles, suspicion about the unconstitutionality of the effects test as it applies to Section 5. That's as grounded as it can be.

I'm asking the specific issue that was the -- really issue attention with the extension and really the most important part historically about the Voting Rights Act, whether you think that that provision is constitutionally suspect today.

KENNEDY: This is the backbone of effective voting in our country and our society.

And I think the American people are entitled to know whether you believe or suspect that that particular provision which, as passed just overwhelmingly by the House and the Senate, signed by President Reagan and has resulted in this extraordinary march to progress, is constitutionally sound?

That's what I'm asking.

ROBERTS: I have no basis. I'm not aware of any constitutional challenge that has been brought to Section 2 since it was enacted. And I have no basis for viewing it as constitutionally suspect and I don't.

If an issue were to arise before the Supreme Court or before the Court of Appeals, if I head back there, I would consider that issue with an open mind in light of the arguments.

I have got no basis for viewing it as constitutionally suspect today, and I'm not aware that it's been challenged in that respect since it was enacted. It may have been, but as I said, I'm not aware of it.

KENNEDY: I gather -- you've had an extensive answer -- that from that answer I did hear that it is not constitutionally suspect as far as your view today?

ROBERTS: Yes.

KENNEDY: OK.

Could I move on to the issue of affirmative action, please?

ROBERTS: Certainly.

KENNEDY: In the Grutter v. Bollinger case, the Supreme Court decided, very close, 5-4 decision, Sandra Day O'Connor, the deciding individual justice, the Supreme Court upheld the university practices that considered race as one factor in its admission decisions.

No one is talking today about quotas. We're talking about affirmative action as defined in this Grutter decision.

KENNEDY: The court found that there was a constitutional affirmative action program aimed at achieving a racially diverse student body.

In this decision, the court expressly gave great weight to the representation by military leaders -- military leaders -- that said a highly qualified, racially diverse officer corps is essential to the military's ability to fulfill its principal mission and to provide national security.

What weight would you give to that kind of a comment or statement or testimony by the military in considering any issue dealing with affirmative action?

ROBERTS: Well, the weight it was given was to help satisfy the test, as the court, as you know in Grutter, applied strict scrutiny because it was dealing with considerations on the basis of race.

And that required the showing of a compelling governmental interest to support that legislative action. And the testimony of the military officers, as the court explained, helped substantiate the compelling nature of the interest in having a diverse student body.

And that was the weight that the court gave it. There was, of course, the other case. There were two Michigan cases: the law school case and the university case, the Grats (ph) case where the court did say that it looked too much like a quota in that case because it was given determinative consideration as opposed to being one of a variety of factors that is considered.

And the two cases together kind of show where the court is coming out, at least in the area of higher education. The court permits consideration of race or ethnic background, so long as it's not sort of a make-or-break test.

KENNEDY: Do you agree then with Justice O'Connor, writing for the majority that gave great weight to the real-world impact of affirmative policies in universities?

KENNEDY: And the reason -- I've got 35 seconds left -- you might say: Well, this may eventually come on up before the court. But the fact is we know how every other justice has voted because they have all voted. And the American people would like to know where you stand on this very important public policy issue, particularly since Sandra Day O'Connor wrote such a compelling decision that was, I think, in the cause of fairness and justice.

ROBERTS: Well, Senator, I think I can answer the specific questions you've asked because, as you phrased the question: Do you agree with her that it's important to look at the real world significance and impact?

And I can certainly say that I do think that that is the appropriate approach without commenting on the outcome or the judgment in a particular case. But you do need to look at the real-world impact in this area and I think in other areas as well.

KENNEDY: Thank you very much. My time is up. Thank you.

SPECTER: Thank you, Senator Kennedy.

We will now take a 15-minute break. We will reconvene at 11:25.

(RECESS)

SPECTER: We will resume the hearings. We're just a few minutes tardy because we just finished a vote.

And we now turn to Senator Grassley for his 20-minute second round.

GRASSLEY: Thank you.

Once again, I compliment you on how you've handled yourself at these hearings. You've done very well. It's going to be very hard for people to cast a "no" vote against you.

Judge Roberts, do you believe that every citizen who meets the qualifications set forth in the Constitution and our laws should have the opportunity to cast a free and unfettered vote?

And as a follow-up, will you, on the court, fairly apply the Voting Rights Act?

ROBERTS: I certainly agree that every citizen who meets the qualifications not only has a right to vote but should vote. I think it's a problem that we don't have more people voting. And any issues that come before me under the Voting Rights Act, I will confront those with an open mind and decide them after full and fair consideration of the arguments, in light of the precedents of the court and in light of the recognition of the critical role that the right to vote plays as preservative of all other rights.

GRASSLEY: Thank you.

The Supreme Court has repeatedly stated that the legislative history of a particular bill is critical to interpretation of the statute.

Of course, Justice Scalia is of the opinion that most expressions of legislative history, like committee reports or statements by the senators on the floor or the House, are not entitled a great weight because they are unreliable indicators of legislative intent.

Presumably, Judge Scalia believes that if the members don't actually write a report or don't actually vote on a report, then there's no need to defer to this expression of congressional intent.

Now, obviously, I have great regard for Justice Scalia, his intellect, legal reasoning. But, of course, as I told you in our office, I don't really agree with his position.

So I'd like to ask you five questions. They're relevantly short so I'll ask them all at once.

What is your opinion? How important is legislative history to you? How have you utilized it? And will it be any different from your use on the circuit court versus what you might do on the Supreme Court?

And did you refer to any committee reports of congressional debate in any of your 39 briefs before the Supreme Court?

And to what extent do you -- and don't start out with this last one -- to what extent do you share Justice Scalia's view on unreliability of legislative history although that's important.

And I can repeat those if you forget what I have asked.

ROBERTS: Sure. If I leave one out, you can remind me at the end.

But, obviously, when you're dealing with interpreting a statute, the most important part is the text.

ROBERTS: You begin with the text, and as the Supreme Court has said in many cases, perhaps most cases, that's also where you end -- the answer is clear.

I have, though, as a judge, relied on legislative history to help clarify ambiguity in the text. The Supreme Court stated once, and I think it's a very important principle, you look to legislative history to clarify ambiguity. You don't look to legislative history to create ambiguity.

In other words, if the text is clear, that is what you follow and that's binding. And you don't look beyond it to say, well, if you look here, though, maybe this clear word should be interpreted a different way.

On the other hand, we confront situations where the text is not clear and the legislative history can be helpful in resolving that ambiguity. It requires a certain sensitivity to what you're dealing with. All legislative history is not created equal.

There's a difference between the weight that you give a conference report and the weight you give a statement of one legislator on the floor. You have to, I think, have some degree of sensitivity in understanding exactly what you're looking at; appreciate where those comments were made in the legislative process; be careful to make sure that they're dealing with the same language that was eventually adopted.

You have to, for example, be very skeptical about statements by opponents of the bill. It's quite a common thing saying, well, this bill would do this and this and this, and so we shouldn't pass it. That's not always the best guide as to what the sponsors really intended in the language.

So it does require a certain sensitivity to what you're dealing with, but I have quoted and looked to legislative history in the past to help determine the meaning of ambiguous terms, and I would expect to follow that same approach on the Supreme Court.

I don't think there's a difference there in terms of what things you think it is appropriate to look to, help you do your job, which is to figure out what Congress intended.

GRASSLEY: And you didn't address Judge Scalia but let me put it another way so I don't put you in a bad position. You would see, at least in some instances, where it needs to be used -- reliability in legislative history.

ROBERTS: In some instances, I think if you look at it carefully, you can make an assessment that this is a reliable guide.

And one area I didn't touch on: In my arguments, I've certainly relied on legislative history in presenting arguments because, of course, in the Supreme Court you need five votes and not just the one, so you tend to cast your net as widely as possible.

And at argument sometimes, Justice Scalia would not be as receptive to an argument based on legislative history as some of the others but, again, the name of the game is counting to five when you're arguing up there, so I've certainly made arguments based on legislative history.

GRASSLEY: In regard to how you view and use legislative history, I'd like to discuss your opinion in Totten, Bombardier Corporation case, interpreting the False Claims Act.

The issue, on appeal, was whether interpreting Bombardier had met the presentment requirements of the False Claims Act. To violate the statute according to Section 37.29.A(1), a company must have presented its false claim to an officer or employee of the federal government.

Importantly, Section 37.29.C explicitly provides that the term "claim" includes demands for payments submitted to government contractors whether or not they are resubmitted to the federal government.

In your opinion, you wrote that those facts of that case did not consist of a false claim under the False Claims Act because there can only be a false claim if it's literally presented to somebody that's a federal government employee, I assume.

It seems to me that to reach this result, you inserted a resubmission requirement into the law in place where it doesn't in fact appear, Section 37.29.A(1), and in fact gave short shrift to the legislative history which spelled out what Congress intended when it amended the act in '86.

GRASSLEY: The legislative history of the act in the Senate committee report -- and I didn't refer to my authorship of the legislation, but anyway, in our Senate committee report explaining that liability on the False Claims Act attaches to a submission of, and I quote, "a false claim to the recipient of a grant from the United States or to a state under a program financed in part by the United States," end of quote.

The legislative history also states that Congress sought to ensure that, quote, "A false claim was actionable, although the claim or false statements were made to a party other than the government if the payment thereon would ultimately result in a loss to the United States," end quote.

So, my question is whether, on reflection, that is a fair way to deal with the express wishes of Congress and whether it is possible that you misunderstood the statue when you decided the Totten case. Why did you reject legislative history if you referred to it? And maybe you didn't refer to it. But why did you reject legislative history regarding the resubmission requirement in the False Claims Act when you wrote the opinion in Totten?

ROBERTS: Well, Senator, the answer to your question is, it's certainly possible that the majority in that case didn't get it right. And the dissent, that was a very strong dissent, did get it right. I think the majority got it right. There we focused on particular language.

The issue in the case involved, as you know, a subcontractor claim. You have the United States giving the money to, in this case it was Amtrak and then Amtrak using that money to hire a subcontractor -- I think it was Bombardier -- to do a particular part of the job.

Everybody agreed that, under the precedents that are applied, Amtrak is not the government. It can't be considered part of the government. And the statue, as you noted, required -- it was triggered by the presentment of a false claim to an officer or employee of the United States.

And the majority's reasoning was that the false claim was one made by Bombardier to Amtrak and the claim was submitted to Amtrak.

ROBERTS: And since Amtrak was not the government, what Judge Rogers and I concluded was that that wasn't presentment of a false claim to an officer or employee of the United States.

There was an extensive discussion between the majority and the dissent. The view that you've articulated was certainly presented in a compelling way by Judge Garland, my colleague on the court of appeals, and we spent a great deal of time on the case. And I think it's reflected in the opinions. And that view was laid out.

Judge Rogers and I thought that the statutory language that said the claim had to be presented to an officer or employee presented too high a hurdle for us to get over in looking at the legislative history.

But I'm happy to concede that it was among the more difficult cases I've had over the past two years. Any time Judge Garland disagrees, you know you're in a difficult area. And the function of his dissent, to make us focus on what we were deciding and to make sure that we felt we were doing the right thing, I think was well- served.

But Judge Garland disagreed, and so it's obviously, to me, a case on which reasonable judges can disagree. And I just have to rest on the analysis in the majority opinion.

GRASSLEY: Let me tell you something you might not be aware of, and that is that the Bush administration has filed an amicus brief in the 11th Circuit, arguing that you had misread the False Claims Act in the Totten case.

And in Atkins v. McInteer, the administration has argued that there's no presentment requirement in Section 37.30.A(2) of the False Claims Act.

In fact, quote, "The Totten majority misconstrued the language and purpose of the False Claims Act in concluding that the act does not encompass (inaudible) claims, records, statements, submitted to recipients of federal funds, absent resubmission to a United States officer or an employee."

And I assume if I ask you if you have an opinion on that, you can't answer it.

ROBERTS: Well, not on that one. I do know the Bush administration filed an amicus brief in our case as well. I guess this would be one of those cases I would cite in response to the question of whether I'm capable of ruling against the administration. We did in that case.

Again, the arguments I think were well-presented on both sides. Judge Rogers and I gave it our best shot. And the opinion will stand or fall on its own.

GRASSLEY: Well, I hope, sitting in the marble palace, you'll remember that I have great pride in the success of the False Claims Act...

(LAUGHTER)

... $8 billion coming back to the Federal Treasury.

Judge Roberts, you filed an amicus brief in the case of United States v. Halper, a case which raised the question of whether a civil False Claims Act case could implicate double jeopardy clause.

The Supreme Court agreed with your arguments and held that double jeopardy job protects a convicted criminal defendant from a second punishment in the form of a civil sanction that, quote, "may not fairly be characterized as remedial," end of quote, because it is, quote, "overwhelmingly disproportionate the damage the defendant has caused," end of quote.

As you know, the Halper decision was later overturned by Hudson. Judge Roberts, do you consider the False Claims Act treble damages provisions to be excessive, in the words of the court, "overwhelmingly disproportionate," and also in the words of the court, "not fairly characterized as remedial"?

ROBERTS: Well, you've touched on a case that is very close to my heart, Senator. It was the first case I argued before the Supreme Court. I was appointed by the court to argue it on behalf of Mr. Halper.

It was an unusual case. It arose -- the conspiracy at issue was a slight inflation of I believe it was Medicare or Medicaid claims that this individual was submitting. I think he added $1 or $2 to every claim.

ROBERTS: And yet under the law at that time, there was a minimum penalty for each false claim.

These numbers won't be right, but he had something like 300 false claims for a grand total of maybe $700. But under the statute, he was assessed a civil penalty of several million dollars, because each of the false claims was a separate penalty.

And the issue was, after having been sentenced criminally, would a civil penalty of several -- and again, I'm not sure of the numbers -- but several million dollars for $700 or so of fraud, was that remedial and civil or was it punishment?

And the court agreed with my submission at the time that that was punishment. It led to some difficulty, I think, in administering civil and criminal laws down the line.

And as you said, eight years later, they reversed course and overruled the Halper precedent.

But the provision that you specifically mentioned, treble damages, that's a little different. There, it's a much closer connection. Obviously, just three times whatever the damages are.

In the Halper case, it was a much more disproportionate impact. And that's what led the court, I think, to conclude that, that looks like punishment.

Treble damages is something that's familiar in the law in a number of areas and is not regarded as impermissible punishment in this context.

GRASSLEY: Are you familiar with the legal arguments that some opponents of the False Claims Act have made to the effect that its Qui Tam provisions are unconstitutional under Articles 2 and 3, and if so, do you have an opinion on these arguments?

And before you answer, I'd like to remind you that at least since the 1st Congress was involved in this, I'd like to assume that the framers of the Constitution, because the first Congress enacted several Qui Tam statutes that if that be any deference to you in giving -- whether this factor would make any difference to you when assessing the constitutionality of Qui Tam statutes today.

ROBERTS: I think, if my memory serves, that the Article 3 objections -- and just so we're on the same page, the Qui Tam statutes, of course, are when a private individual brings suit on behalf of the government for fraud on the government and, in return, gets a percentage of the recovery.

And, as you've noted, it's been, under the False Claims Act, very successful in securing recovery of funds on behalf of the government.

The Vermont case -- and I'm not remembering it anymore than that; it was a case from Vermont -- I think addressed most of the Article 3 issues. The objection was: That individual has no standing, I think, because he doesn't necessarily have an interest.

And what the court said was that the individual has standing as a result of the bounty, if you will, the percentage he gets. That satisfies the standing requirement. So those objections are out of the way.

I do know that some have raised additional objections under Article 2, which go to the fact that this might interfere with the executive's authority to execute the law; in other words, you have private individuals bringing suit.

I'm not sure that those issues have been finally resolved.

And obviously, if those cases do come up, I'll want to keep an open mind.

The factor you mentioned, obviously, about historic practice, that is something that the court does look to in assessing constitutionality. If it's something that the founders were familiar with or a practice that they engaged in and showed no disagreement with, while not determinative, that is a factor that the court would look at.

I don't know if any of those cases are going to come before the court. But if they do, that's one of the considerations that will have to be taken into account.

GRASSLEY: Other than the Totten case and the Halper case, have you ever written or spoken publicly about the issue of the constitutionality of Qui Tam or any other provisions of the False Claims Act?

To your memory?

ROBERTS: I don't remember any, no, Senator.

GRASSLEY: OK.

Judge Roberts, in 1986, while serving as an associate White House counsel, you approved Reagan administration testimony regarding Whistleblower Protection Act of '86.

GRASSLEY: You probably recall that the Reagan administration opposed that legislation, which is now law. Could you explain what role, if any, you had in formulating the administration's position on the Whistleblower Protection Act?

ROBERTS: I don't recall any role, Senator. Our office, the counsel's office, would routinely review testimony that was about to be given. We were just looking out for particular constitutional concerns or issues. We generally did not get into the substance. The substance of that would have been shaped over in the Justice Department, and we would have been really looking out for anything that we thought infringed on the constitutional authorities of the president or presented other consistency issues, but the substance of the testimony is not something that I was involved in.

GRASSLEY: Do you feel that you have any bias against the False Claims Act or the Whistleblower Protection Act that would impact on your ability to fairly decide cases on those statutes?

ROBERTS: No, Senator. I have had some whistleblower cases and different aspects I do recall coming up in the court of appeals. And I think in some cases we ruled in favor and in some cases we ruled against, so I have seen those cases and have had no difficulty fairly and objectively deciding them.

GRASSLEY: Are you against cameras in the courtroom like Justice Rehnquist was?

ROBERTS: Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of.

(LAUGHTER)

But I don't have a set view on that. I do think it's something that I would want to listen to the views of -- if I were confirmed -- to my colleagues.

GRASSLEY: I would suggest, then, to the chairman that we move quickly on that bill before he's go an opinion on it.

SPECTER: I intend to do just that, Senator Grassley, now that I have your support.

GRASSLEY: Thank you.

SPECTER: Thank you, Senator Grassley.

Senator Biden?

BIDEN: Good morning, Judge. How are you?

ROBERTS: Good morning, Senator. Fine, thanks.

BIDEN: I went back and looked at something you said yesterday, which -- I was reminded by my son, who's done some appellate work; nothing like you -- and he said I thought I heard him say this, and I went to staff, got it.

Yesterday morning you said, "I went back once and counted the questions during my half hour. There were over 100 questions the court asked." So you're not at all offended by us interrupting you like we do.

You're used to being interrupted, aren't you?

ROBERTS: I'm used to being interrupted before the court. That's for sure, Senator.

(LAUGHTER)

BIDEN: Well, we're kind of a court here. We're kind of a court.

You're not entitled to the job. God love you, you've been nominated, and your job is to demonstrate that there's no presumption, as you well know.

So I hope you won't mind some questions -- I promise I won't interrupt, if you give short answers. OK?

ROBERTS: I'll try, Senator.

BIDEN: OK. All right. Great.

I'd like to follow up on yesterday. I asked you if you agreed there was a right of privacy to be found in the liberty clause of the Fourteenth Amendment. And you said, and I quote, "I do, Senator. I think that the court's expression -- and I think if my reading of the precedent is correct, I think every justice on the court believes that to some extent or another." Is that correct?

ROBERTS: Yes.

BIDEN: Now, one of the things that's been amazing is you are one of the best witnesses that I think has come before this committee, and I've been here 30-some years. And is that you've convinced the folks who share Senator Brownback's view that you're going to be just right for them, and you've convinced the folks that share Senator Kennedy's view that you're going to be just right for them.

And I think I'd like to plumb a little bit more closely this notion of how you view this right of privacy.

Now, if you take a look at Justice Scalia's comment about that right to privacy found in the Fourteenth Amendment, as related to the Casey case, he said, "The issue is whether abortion is liberty protected by the Constitution of the United States. I am sure it is not, because of two simple facts: The Constitution says absolutely nothing about it and the longstanding traditions," et cetera.

Then on that same case, the quote coming from -- I've got to make sure I get the right justice here -- from O'Connor, Kennedy and Souter's dissent, they said, "The liberty of a woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties and physical constraints, the pain that only she must bear. Her suffering is too intimate and personal for the state to insist, without more, upon its own version of a woman's role."

Two fundamentally different views of the right to privacy as it relates to that issue.

In Cruzan, the case relating to whether or not fully competent adults have the right to refuse unwanted medical treatment, Justice Scalia said in his opinion, quote, "that the federal courts have no business in this field; that American law has always accorded to state the power to prevent, by force if necessary, suicide, including suicide by refusing appropriate measures necessary to preserve one's life."

BIDEN: Justice Kennedy, in the same case, as you -- I know you know all this. But I just want to try to get a sense where you are.

He said, "Liberty presumes an autonomy of self. That includes freedom of thought, belief, expression and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its transential (ph) dimensions."

Obviously, fundamentally different.

And then the same goes when he talks about -- when O'Connor says, "I agree that to protect the liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. And that refusal of artificially delivered food or water is encompassed within the liberty interest," Justice (inaudible).

The point I'm making is obvious that there are very, very, very disparate views.

Can you tell which side you come down closer on?

ROBERTS: Well, Senator, first of all...

BIDEN: I'm not asking you to comment on any case.

ROBERTS: I can say that it is my view that all of the justices -- I think of a case like the Glucksberg case, in which the majority subscribed to the view that there is an appropriate mode of analysis to determine the content of the liberty clause; that it does include protection beyond physical restraint; and that that protection applies in a substantive manner.

ROBERTS: Now, there are legal theorists; there are judges and jurists who do not agree with that, who do not agree that there is right of privacy protected under the due process clause, who do not agree that the liberty protected extends beyond freedom from physical restraint.

Their view is that it means you cannot be basically imprisoned or arrested without due process. And that means only that you get some type of procedural protection.

That is not my understanding of where the justices on the Supreme Court are and it's not my understanding.

I believe that the liberty protected by the due process clause is not limited to freedom from physical restraint; that it includes certain other protections, including the right to privacy, as you know, that the court has tried to map out in a series of cases that go back to Meyer v. Nebraska and Pearce and all that and in the various instances as the claims have arisen; and that it's protected not simply from procedural deprivation.

That is...

BIDEN: If I may interrupt, that's not the question I asked you. I thank you for that lesson and I understand what you're saying.

I'm asking you a specific question.

Do you side more within that context, with the views of Scalia and Thomas which say that consenting adults do not have, if they're both male or female, do not have the right to engage in sexual conduct; the state can determine that?

Let me put it another way. My family faced and I'm sure many people in this audience's families faced a difficult decision of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive.

It's of great moment to the American public now. And there is a view expressed by Justice Scalia that there is no right that is absolute -- or no fundamental right that exists for a family member -- assuming the person is not capable of making the decision themselves, to make that judgment.

BIDEN: He says, and I'm speaking in layman's terms, he says the state legislature can make that decision.

I firmly believe, unless there's some evidence that the family's incompetent, the husband or the wife, with the advice of the doctor, should be able to make that decision.

What do you think?

ROBERTS: Well, Senator, that does get into an area that is coming before the court. There is a case pending on the docket right now that raises the question of whether or not state legislatures have a prerogative to lay down rules on certain end of life issues.

BIDEN: It's suicide, isn't it, Judge?

ROBERTS: Well, in that case it's the application of the federal controlled substantive law.

The issue of illness in those cases do come before the court. The Glucksberg case raised a similar question. The Cruzan case that you mentioned presented it in a very difficult context of an incompetent individual no longer able to make a decision and the question of how the state law should apply in that situation.

Those cases do come before the court.

BIDEN: Do you think the state -- well, just talk to me as a father. Don't talk to me -- just tell me, just philosophically, what do you think? Do you think that is -- not what the Constitution says, what do you feel?

Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment -- they are comatose -- to prolong that life should be one that the legislators in Dover, Delaware, should make, or my mother should make?

ROBERTS: I'm not going to consider issues like that in the context as a father or a husband or anything else.

BIDEN: Well, you did...

ROBERTS: I think...

BIDEN: Sorry.

ROBERTS: I think obviously putting aside any of those considerations, these issues are the most difficult we face as people and they are profoundly affected by views of individuality and moral views and deeply personal views.

Now, that's obviously true as a general matter. But at the same time, the position of a judge is not to incorporate his or her personal views in deciding issues of this sort.

ROBERTS: If you're interpreting a particular statute that governs in this area, your job as a judge is to interpret and apply that according to the rule of law.

If you are addressing claims of a fundamental right under the liberty protected by the due process clause, again, the view of a judge on a personal matter or a personal level is not the guide to the decision.

BIDEN: All right.

Well, Judge, let me ask you then, with your permission, about your constitutional view. Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue -- he does not want to continue -- on a life support system?

ROBERTS: Well, Senator, I cannot answer that question in the abstract, because...

BIDEN: That's not abstract. That's real.

ROBERTS: Well, Senator, as a legal matter, it is abstract, because the question would be in any particular case: Is there a law that applies, that governs that decision? What does the law apply...

BIDEN: That's the question, Judge. Can any law -- can any law -- trump a fundamental right to die? Not to commit suicide, a right to decide, "I no longer want to be hooked up to this machine, the only thing that's keeping me alive. I no longer want to have this feeding tube in my stomach" -- a decision that I know I personally made, and many people out here have made.

And the idea that a state legislature could say to my mom -- your father wants the feeding tube removed, he's asked me, the doctors heard it -- and the state legislature's decided that, no, it can't be removed.

Are you telling me that's even in play?

ROBERTS: Well, Senator, what I'm telling you is, as you know, there are cases that come up in exactly that context so that it is in play and the (inaudible) is that there are cases involving disputes between people asserting their rights to terminate life, to remove feeding tubes either on their own behalf or on behalf of others.

There is legislation that states have passed in this area that governs that. And there are claims that are raised that the legislation is unconstitutional.

Those are issues that come before the court. And as a result, I will confront those issues, in light of the court's precedents, with an open mind. I will not take to the court whatever personal views I have on the issues. And I appreciate the sensitivity involved. They won't be based on my personal views. They will be based on my understanding of the law.

BIDEN: That's what I want to know about because without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.

We are going to face decisions, you are, and the American public is going to face decisions about whether or not, as I said, a patent can be issued for the creation of human life. You are going to be faced with decisions about whether or not there is a right to refuse extraordinary medical -- heroic medical efforts that you don't want as an individual. And you are fully capable, mentally of making that decision.

And the idea that without a specific fact pattern before you, as someone keeps -- it keeps getting repeated here -- the law is about life. It's about facts, specific facts.

What I'm asking you, there's no fact situation before you about whether or not a person, fully mentally capable of making a decision, chooses to say, "I no longer want this feeding tube in my stomach; please remove it," and whether or not that is a fundamental constitutional right.

ROBERTS: Senator, that's asking me for an opinion in the abstract on a question that will come before the court. And when that question does come before the court, the litigants before me are entitled to have a justice deciding their case with an open mind based on the arguments presented, based on the precedents presented.

I've told you with respect how I would go about deciding that case.

ROBERTS: It begins with the recognition that the liberty protected by the due process clause, does extend to matters of privacy, that it's not limited to restraints on physical freedom, and that that protection extends in a substantive way and not simply procedurally.

I have also explained the sources that judges look to in determining the content of that privacy protected by the liberty clause. They're the ones that have been spelled out in the courts opinions, the nation's history, traditions and practices.

And I've explained how judges apply that history, tradition and practices in light of the limited role of the judge to interpret the law and not make the law, the limited role of the judge in light of the prerogative of the legislature.

BIDEN: Judge, I understand that. Justice Scalia says the same thing and draws a very fundamentally different conclusion than O'Connor...

BIDEN: See, you've told me nothing, Judge.

With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.

There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.

The idea that the founders sat there and said, "Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is" -- as you are -- "a decent, bright, honorable man, that's all we need to know. That's all we need to know."

Look, let's -- I only have three minutes and 45 seconds left -- and by the way, I'd ask permission for the record to introduce the number of questions asked by Senator Hatch and others, very specific questions, as to Justice O'Connor with very specific answers on these very questions. I'd like to ask that they be submitted to the record.

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

BIDEN: Let me conclude..

ROBERTS: Senator, could I...

BIDEN: I still have the floor -- and I'll yield to you, since you can speak after the clock's out. I can't, OK. I'm sure you understand that.

And I'm sure if I'm ever before the Supreme Court, you'll give me more time. You won't interrupt me.

(LAUGHTER)

Here's the point I want to make: I asked -- and I'm sure you're not going to answer it -- I asked Justice Ginsburg a question about Footnote 5 in the Michael H. case. And the whole issue there is, as you well know, whether or not you keep talking -- it sounds wonderful to the uneducated ear, the non-lawyer's ear, that I'm going to look at history and tradition.

You and I both know how you determine history and tradition determines outcomes. In that case, as you'll recall, there was a question of whether or not the natural father -- you could prove by a blood test and DNA that he was the natural father of a child he wanted to see that happened to be born to a woman that was living with her married husband. So the child was illegitimate.

So in determining whether or not there are any visitation rights, there's a famous footnote there.

BIDEN: And I'm going to do this quickly at two minutes and seven seconds.

The court said -- Scalia said in footnote six, "Look, you go back and look at the specific historical precedent." Short-circuiting it, "Have bastards ever been protected in the law?" And Brennan (ph) said, "No, no, that's not what you go back; you go back and look at fatherhood. Was fatherhood ever something that's part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?"

Now, Scalia said, "No, no, no, no. I looked up the record: Bastards have never been protected in English common law. Therefore, there's nothing going on here."

And by the way, "You should never go back," he says, "and look at the general proposition has fatherhood achieved a status of consequence? No, it's have bastards achieved it?"

So, Judge, how do you -- I'm not asking you on any case. How do you -- do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?

ROBERTS: I mean, I think you're quite right that, that is quite often the critical question in these cases -- the degree of generality at which you define what the tradition, the history and the practice you are looking at.

The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage?

BIDEN: Thirty-three seconds left: Do you agree with O'Connor then?

ROBERTS: Well, I get extra time you said...

BIDEN: I know. But I don't. I get to get it in now before the chairman...

SPECTER: Judge Roberts, when his red light goes on, you'll have as much time as you want.

ROBERTS: Thank you.

The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.

ROBERTS: And you look at...

BIDEN: But which precedent do you agree with? There are competing precedents.

ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.

So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely certain.

BIDEN: But that's specific, Judge. The generality was the right to marry. That's the generality.

ROBERTS: Well, that's what I'm saying. The dispute is, do you look at it at that level of specificity or broader?

And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. You're saying there is, obviously, that statute that's part of the history.

So you look at it at a broader level of generality.

Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, "We stand for election and we wouldn't be elected if we didn't tell people what we stand for."

Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that, "This judge should go on the bench because these are his or her positions and those are the positions they're going to apply."

Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.

That's inconsistent with the independence and integrity of the Supreme Court.

BIDEN: No one's asking for a promise.

SPECTER: Thank you very much, Senator Biden.

BIDEN: Thank you.

Thank you, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Senator Kyl?

KYL: Thank you, Mr. Chairman.

I think this last exchange is important because it goes back to what we talked about at the very beginning, when some of us in our opening statements pledged to defend you if you stopped short of answering every question the way that every senator felt important, based upon your view that the matter in question might come before the court; that the canons of judicial ethics preclude you from doing that.

KYL: A very wise senator on this committee once said something. Let me quote it to you. And by the way, I contend that he is still wise.

(CROSSTALK)

KYL: And this is what he said: "Judge, you not only have a right to choose what you will answer and not answer. But, in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 different forms, probably, over your tenure on the court."

Now, as I said, that was wise then. It's wise now. It is the statement of then-Chairman Joseph Biden in the Ginsburg hearings. And in all sincerity, I do believe Senator Biden to be wise and I believe that that comment is wise.

It's what's animated your approach to answering, probably by now, hundreds of questions that have been asked of you. And you've answered every question. In some cases, however, you have stopped short of advising us what you believe the law to be because you felt that that matter is going to come before the court.

But you didn't stop there. When permitted, you expanded to tell us why you thought it was a matter that might come before the court and what your general approach to the case would be in terms of your judicial philosophy, how you would approach judging the case, but that you didn't want to talk about your view of what the law was, both because the case could come before the court and also because it's pretty hard to formulate in a question all of the factual considerations that would permit you to know what law would be specifically applicable to that particular case.

KYL: And you and I talked a little bit about the facial challenge to statutes versus the as-applied kind of problem.

So with respect to this last interchange you had with Senator Biden -- and by the way, I'll say, again, to compliment my colleagues, if anybody ever contended that senators weren't both diligent in pursuing what they want to pursue and also very imaginative, they should watch this hearing, because we've been blessed with most creative ways of trying to pull out of you commitments on matters that senators would like to have you make commitments on.

But as Senator Biden just said, and I'm paraphrasing here -- he said without the knowledge of your personal views -- he was talking at the time about end-of-life issues -- we're rolling the dice.

And your response to that, as I understand it, is: My personal views are irrelevant to a case that comes before me of Jones v. Smith, of X v. Y. What I personally think about issues has nothing to do with the resolution of the dispute between those two parties. And were I to let them intrude, I would not be doing my job as a judge, fairly taking the facts of their case and then applying the law that I understand it to be to reach a decision.

Moreover, Judge, isn't it the case that if you were to state your views on such subjects, as they might pertain to a case that would come before the court, wouldn't you actually have to recuse yourself from deciding that case and, therefore, all of the discussion, all of the effort to get you committed to a particular point of view would be for naught because if you expressed it you couldn't sit on the case anyway? Or am I incorrect in that?

ROBERTS: I think that's a concern that other nominees have raised in the past, particularly given the expression of the views as part of the confirmation process.

It's not supposed to be a bargaining process.

And if you start stating views with respect to particular issues of concern to one senator, then, obviously, everyone's going to have their list and when that individual nominee, if confirmed, if the bargain is successful from his or her point of view and he gets confirmed, he'll have to begin each case, not with the party's briefs and arguments, but with the transcript of the confirmation hearing to see what he or she swore to, under oath, was their view in a particular area of the law or particular case.

And I think that would undermine the independence of the Supreme Court. It would undermine the integrity of the judicial process. Everyone of the justices on the court today, everyone of them refused to engage in that type of process. And if I'm to sit with them, if I am confirmed, I feel I have to follow the same approach.

Now, I do think I've been more expansive than most nominees. I've gone back and read the transcripts and some of them would not talk about particular cases even if it were unlikely that the case was going to come before the court.

And the reason they gave was, "Look, it's hard to draw the line. If I think this case is not going to come before the court, what about this one and maybe that will. And rather than trying to draw the line, I'm just not going to do it."

And those justices were confirmed.

I've taken what I think is a more pragmatic approach. If I think an issue is not likely to come before the court, I have told the committee what my views on that case were -- what my views on that case are.

Perhaps that means it's sometimes difficult to draw the line, perhaps that's right. But, again, if I make the judgment -- and other nominees may draw the line differently. They have drawn it differently in the past or differently in the future.

The nominee, I think, has to be comfortable with the proposition that they're not doing anything that's going to undermine the integrity of the court.

KYL: And I noted yesterday, in response to a question, you said, "Well, that's the reward for trying to be more expansive." You were talking about Griswold v. Connecticut. I thought at the time, boy, he's expressing a view on a relatively recent case and, at least, issues associated with it are clearly going to come before the court. And I wondered, does that go too far, does that cross the line?

But your point was the specific issue in the case and the precise holding of the case are not likely, in your view, to come before the court. And therefore, you expressed your opinion about that case and the law underlining the ruling in the case.

KYL: So I would agree with you that, not only have you attempted to answer every one of our questions, but you have also ventured into expressing your personal views on matters that you didn't think would come before the court -- although, as you note, it's at least possible that some of them might.

So hopefully you haven't gone too far there.

This, I think, is a great civics lesson. Some of this hearing should be encapsulated in law school courses to remind us about the difference between elected officials who make policy and judges who are not supposed to make policy.

I thought the questioning, I believe it was by Senator Brownback earlier, was instructive. You noted that the primary check and balance on the judiciary was its own self-restraint.

Many of us believe that the court has not exercised appropriate self-restraint in all cases and that, when it doesn't, it naturally generates concern expressed by the citizens of the country, as reflected certainly by their elected representatives.

And we do express that concern.

I think the court has failed to exercise appropriate restraint in several matters. And one of the things that appeals to me from your approach to the law is that it appears to be a very traditional approach, which is that I'm not sent there to make law; I'm sent there to take whatever case comes before us and just decide the case.

And that element of self-restraint and modesty is one which I think should be more the rule than it is today in courts at all levels. And I would commend that philosophy to all of the judges.

I think you've expressed it very well. And while I appreciate my colleagues' desire to try to draw you out on your personal views about matters, I think you have drawn the line at an appropriate place, and you've certainly provided us with a great deal of information in the process.

KYL: And, again, partly because you've explained to us, when you could not completely satisfy a senator's curiosity, why that was the case, but still tried to inform us about the basic issues that might exist in the case, the basic arguments that would be made on either side, but without giving us a hint as to which one of those you thought you might come down on the side of.

And I also think it's important that you have totally eschewed ideology here, saying that your own personal views or ideology don't have a place in your decision making, and therefore they are pretty irrelevant to the questions that are asked here.

I've got a whole notebook of questions here that to one extent or another have been dealt with, I think, by colleagues. And I don't think it serves a purpose to go over them again.

Let me just conclude with kind of a general comment, but before I do just try to correct the record on -- not necessarily correct, but add to the record on one very narrow point.

You were discussing, I believe with Senator Kennedy, the Herrera v. Collins case, and he talked about innocence claims being heard by the court, that a prisoner should have the right to present innocence claims.

I just wanted to ask you, is it not the case that in that Herrera v. Collins case, that it did not address the proper route for bringing claims based on newly discovered forensic evidence, such as DNA testing, which is, of course, a relatively new phenomenon now, but that was not the issue presented in that case?

ROBERTS: That's right.

There wasn't -- I don't know if they had as much access to that type of evidence back then when it was argued.

ROBERTS: But it was certainly not that type of evidence.

It was a new claim that somebody else did it, somebody who had just died. That was the new claim that they sought to raise at the last stage there. And I do think any issue arising with respect to DNA evidence, and those issues are working their way up through the court, those cases would have to be addressed on their own terms.

KYL: Yes. Thank you.

Well, let me conclude with this point.

Some who are watching might come to the conclusion that there's a lot of repetition here, and that to some extent there's a lot of senator talk expressing concern to you about different issues that are important to them.

Frankly, I think this is a once in a lifetime opportunity. It is the only time that before you take your position on the court, you'll have the opportunity to be directly lobbied in the political context in an appropriate way.

We reflect the views of our constituents, and we've all got different issues on our minds, and there isn't a one of them that is not a legitimate issue or concern.

I brought up the matter of applying foreign law to American decisions on our Constitution for example. It seems to be appropriate that you hear from us, the political branch, concerns that we have about the way that the court approaches its job. We may be right, we may be wrong, but it's important for you to hear that.

I know that justices read the newspapers and so on, but this is a very good forum to have expressed to you concerns that we have about various issues. And we wouldn't be talking about them if we didn't think that they would come before the court.

So, in a sense, virtually everything we're talking about we're trying in some way to get a point across to you because we believe it is likely to be decided by you.

And I think that's fine. You need to hear from us what our concerns are, even though perhaps we're trying to draw you out in areas that you obviously can't be drawn out in with respect to future cases.

It's also important for us to get the feedback from you. There won't be very many other times that we will have as a group of senators to sit down with the person that will likely be the chief justice of the Supreme Court and have a legal conversation with you.

We'll have to talk about matters relating to court administration. That'll be totally appropriate. And I'm sure we'll be doing that.

But by and large, this is the only chance we have to have this kind of an interchange with you. It is illuminating to me, as a student of constitutional law, someone who's practiced before the court.

KYL: I've learned a lot.

And therefore, to those who, on the outside, say, well, it looks like a lot of senators posturing, if they're listening very closely to your answers, I think they will find a great deal of meat, of knowledge, of the application of your wisdom to how you approach judging.

And I find it very consistent with the traditions of our court and the rule of law in our country. And this, therefore, becomes a very good reminder of what our rule of law is all about, what judging is based on, and the inter-relationship between the representative bodies of our government and the third branch, which you represent.

I think this is all very instructive, very informative and in my case, at least, with regard to your testimony, very comforting. Because it seems to me that you are following the great tradition of the court in your approach to the law, that you are careful, that you are cautious, and yet you are willing to look at the circumstances of our contemporary times in applying your judgment to the law that is before you.

And because I have that confidence, it's my intention to support your nomination. And because I think it unnecessary to delve into any other specific questions, I will yield back the remaining five minutes of my time.

BIDEN: Mr. Chairman?

SPECTER: Senator Biden?

BIDEN: A point of personal privilege, as we say in this body.

KYL: On my time, since I had five minutes and I referred to Senator Biden, please, take my time.

BIDEN: Thank you.

I've been quoted many times about what I said to Justice Ginsburg. With the permission of the chairman, it will just take a second, I'd like to read my whole quote, if I may, and then...

SPECTER: Senator Biden, you may do that.

You can even have more time. Senator Kyl's given you...

BIDEN: No, no. I don't want to use his time.

Let me just say -- here's what else I said. I said, "Now, I hope, as I said to you very briefly, that the way in which you outline a circumstance under which you would reply and not reply, that you will not make a blanket refusal to comment on things, because obviously everything we could ask you is bound to come before the court."

BIDEN: "There is not a controversial issue in this country that does not have the prospect of coming before the court."

Continuing: "If a nominee, although it is their right, does not answer questions that don't go to the way they would decide but how they would decide, I would vote against that nominee regardless of who it is."

It's a continued quote: "And you can thank Justice Scalia for that."

At the close of testimony, I said, "I would also point out that my concerns about you not answering questions have been met. You've answered my questions the second day and the third day. At least, from my perspective, you've been forthcoming as any recent witness has."

I submit the entire statement for the record, along with the answers to her questions from Senator Hatch, you and others.

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

BIDEN: I thank the chairman for his courtesy and I thank the witness for listening.

SPECTER: It is now 12:30, and two votes have been scheduled at this time. So we will take a lunch recess until 1:45, quarter of two.

ROBERTS: Thank you, Mr. Chairman.

Back to Part 1 of the Sept. 14 transcript. Go to Part III of the Sept. 14 transcript.

Courtesy Morningside Parnters/FDCH.


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