Transcript: Day Three of the Roberts Confirmation Hearings

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Courtesy Morningside Partners/FDCH
Wednesday, September 14, 2005; 8:30 PM

(Back to Part II.)

SPECTER: The committee will resume.

Senator Kohl, 20 minutes.

KOHL: Judge Roberts?

ROBERTS: Senator?

KOHL: We spent quite a bit of time yesterday discussing how you would decide cases. And as we all know, it is your view that Supreme Court justices are umpires who are neutrally deciding cases.

I want to discuss with you another area where I believe your analogy falls somewhat short.

The Supreme Court not only, as you know, has the power to decide cases and to construe the Constitution, but it also has the sole and the absolute power to decide which cases it hears, which cases it decides, which parties get to be heard, and which parties do not get to be heard.

So if you're confirmed, you will get to choose which cases will be placed on the Supreme Court's docket with the vote of yourself and only three other justices, as you know. Making this choice, your opinions, your perspectives and your life experiences obviously matter quite a bit. Much more than an umpire calling balls and strikes, you are in that sense a manager who is really setting the field with players to decide what the menu's going to be like.

So this power is really quite important and it's crucial, and it's important that we understand that when we look at your role in terms of your own description.

In recent times, the Supreme Court has received appeals in nearly 7,000 cases a year. And as you know, in recent times the Supreme Court has heard only about 80 cases a year.

In other words, the justices choose to heard about 1 percent of the appeals that they receive.

My question for you, Judge Roberts, is, should you be confirmed, how will you decide which cases will make the cut and will be heard by the Supreme Court and what will guide your complete discretion to choose which cases to hear?

ROBERTS: I appreciate the question, Senator. It is an area where I happily concede that the justices are not acting just like umpires in deciding which cases they're going to hear, as opposed to how they're going to decide them.

My perspective has changed a little bit in this area. Certainly when I was practicing law, a lot of what I spent my time trying to do was get the Supreme Court to take a case.

As you know, you file these things called petitions for certiorari, which are really quite extensive arguments about why the court should hear your case, having really not that much to do with the merits, whether it was right or wrong, but just why the court needs to issue an opinion in this area. And I thought they weren't taking enough cases.

When I became a court of appeals judge, I thought you didn't need to have more cases taken up for review.

ROBERTS: But the considerations, some are pretty well established. The job of the Supreme Court is to ensure the uniformity and consistency of federal law, in particular of interpretations of the Constitution.

So the clearest case that the court should hear, they should grant certiorari on, as they say, is when two different courts of appeals are interpreting a law differently.

Obviously a law should mean the same thing in every part of the country, and if two different courts take a different view of the law, that's the kind of case the court ought to be taking.

I think the court should, as a general matter -- and again, other justices have expressed this view as well -- grant review in cases in which a lower court strikes down an act of Congress. I don't think that's an absolute rule, but certainly as a general matter. If an act of Congress is going to be declared unconstitutional, I think the Supreme Court ought to be the one determining that as a final matter, and generally not leave it to a court of appeals.

So those are two categories: when there's a conflict, when an act is found to be unconstitutional.

Beyond that -- and this is where I agree with you, the umpire analogy does not hold up -- there is a lot of discretion in deciding whether it's the right time to grant review in a case. The people who practice before the court talk about the court letting an issue percolate a little bit; in other words, get more than just one or two decisions from the courts of appeals, wait until others have had a change to weigh in.

The theory is that makes it more likely the Supreme Court will get it right, if they have the benefit of several decisions from the lower courts, rather than just one.

Other cases, justices determine that that's not appropriate. It's not appropriate to wait until the issue develops a little more. They want to look at it expeditiously. And it's hard to lay down categorical rules in that area.

ROBERTS: I have expressed the view, and it may be a view that I'll have to be educated on further if I am confirmed. I'm not stating it as a solid view. I do think there's room for the court to take more cases. They hear about half the number of cases they did 25 years ago.

There may be good reasons for that that I'll learn if I am confirmed. But just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases.

I have heard others say they could contribute to the clarity and uniformity of the law by taking fewer cases, but I don't subscribe to that view. I think there's room for additional cases on the docket.

KOHL: I think we agree that it's an enormous power, that power of decision. It's a very active power. It's not benign in any way. If justices, for example, decide not to hear a case, whatever the merits, that is the final decision; is that not correct?

ROBERTS: That's right. The decision of the court of appeals stands in that case.

Now, it is true that I think the justices generally look at their duty and obligation to ensure consistency in a fairly dispassionate and objective way. In other words, it doesn't matter how a particular case came out. If it's different in one part of the country and another, most of the justices, in my experience, readily agree that that's the kind of case they need to address.

KOHL: But just to refer to two that were taken up without any reference from any lower court -- one was Youngstown Sheet and Tube, which was, you know, the ability of the government to seize a steel mill during a time of war.

And, of course, another one that I'm interested in your comment on is Bush v. Gore, in which the courts decide to directly insert itself into a presidential campaign. I'm interested in not what happened after they decided to do that, but the decision they made, in terms of its propriety, its impact on the court, the court's standing in the country.

You must have thought about it, I'm sure, a great deal when it happened.

KOHL: I'm sure you have an opinion on their decision to enter that case. And I think we'd like to know what that opinion is.

ROBERTS: Well, you mentioned first the Youngstown case and it's a category -- and I think perhaps the Bush v. Gore case, perhaps the justices concluded it fell into that category.

There are certain cases that don't come along all that often that are, by their importance, significant enough for the court to take. In other words, they don't fit the description of a conflict among the courts of appeals or an act of Congress held unconstitutional.

But they are, otherwise, sufficiently important that the court will grant review and take those cases.

Certainly, the Youngstown case was of that sort. It started out actually in the D.C. court. And the hearing was first there. And then the court granted (inaudible) decision by a president to seize the steel mills based on the Constitution.

That's an important enough issue. You want the Supreme Court to issue a final ruling on that.

On the decision in Bush v. Gore and the determination of whether to grant review in that case, again, that's not something that -- you don't know on what basis the justices make a decision to grant review. You just get an order that says review is granted.

In that case, you had the decision of a state court that apparently the justices thought should be reviewed. And, obviously, expeditious treatment was needed as I think it was in the Youngstown case as well. They're capable of moving expeditiously when an important matter requires them to do so.

KOHL: I asked you what your opinion of that decision was at that time.

ROBERTS: Well, that's an area where I've not been -- I've not felt free to comment whether or not I agree with particular decisions or...

KOHL: Well, it's not likely to come up again.

ROBERTS: Well, I do think that the issue about the propriety of Supreme Court review in matters of disputed electoral contests, it is a matter that could come up again. Obviously, the particular perimeters in that case won't, but it is a very recent precedent.

And that type of a decision is one where I thought it inappropriate to comment on whether I think they were correct or not.

KOHL: OK.

Judge Roberts, one of the most important constitutional events of our lifetime was the nomination of Robert Bork to the Supreme Court. Congress chose to exercise its role to advise and, in this case, not to consent, based upon judicial philosophy and the strongly held opinions of the nominee.

In effect, Congress told the president that we have an important role to play in the process, as well.

Do you believe that the Senate's rejection of Judge Bork in 1987 was a reasonable and respectable act, or instead do you view it as a period of unfair partisanship? What were your thoughts about that case as it unfolded?

ROBERTS: Senator, I don't think it's appropriate for me as a nominee to comment on the Senate's treatment of other nominees, and I would respectfully decline to do that.

KOHL: Judge Roberts, when we met a few weeks ago in my office, we discussed the Supreme Courts recent property rights decision.

In that case, Kelo v. the City of New London, the court found it permissible under the Constitution for a city to seize private homes against the wishes of their owner so that a large pharmaceutical company could build a private industrial park and a research facility.

A total of 15 homes were condemned, including a home lived in by an 87-year-old woman for her entire life, a home that her family had owned for over 100 years.

KOHL: Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.

We discussed this when you were in my office, and you told me that you were, quote, "surprised," by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?

ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.

And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.

When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.

Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.

The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.

I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.

What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.

ROBERTS: But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.

The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.

And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.

KOHL: Did I understand your opinion on whether or not that case was correctly decided, or are you...

ROBERTS: Again, that's -- particularly since it's an area they do leave -- specifically leave open the question about whether it applies outside of a redevelopment project, that's an issue that could come before the court. It's not one I feel appropriate to comment on.

KOHL: It would or would not surprise you if we'd not heard the last of that?

ROBERTS: It's certainly one of those areas that could come before the court again, even in its present form. I know the author of the majority opinion said it was an area where he, as a personal policy matter, wouldn't have exercised that authority.

But, of course, the issue there was the legal issue, not policy preferences. It could come before the court again, yes.

KOHL: You will have a decision to make if it does rise up to that level. Is it possible that your decision, along with three other justices, might be to put that on the docket?

ROBERTS: That would be one of the decisions that, in the exercise of the cert process, as they call it, short for the certiorari decision, and that would certainly be an issue that could come before the court.

And they already have, of course, four dissenters who may be anxious to revisit it -- or not. I don't know. I don't want to presume how they would view it on an ongoing basis.

KOHL: Judge Roberts, I would like to talk a little about antitrust. I'm the ranking member on the Antitrust Subcommittee.

To me, antitrust is not some mysterious legal theory that only lawyers can talk about or understand. Antitrust is just another word for fair competition.

The laws that we use to protect consumers and competitors from unfair and illegal trade practice is what antitrust is all about.

Do you agree that government enforcement of antitrust law is crucial to ensuring that consumers are protected from anti-competitive practices such as price fixing and illegal maintenance and monopolies?

ROBERTS: Yes, I do, Senator. In fact, when I was in private practice, one of the cases I handled was the Microsoft antitrust case, on behalf of government officials.

The states in particular -- a number of states -- retained me to argue that case before the D.C. Circuit on bond.

So I certainly appreciate the role of governments -- both state and federal -- in enforcing the protections of the antitrust laws because, as you know, there's concurrent authority in that area: the Sherman Act, of course, on the federal level, and then what people call the baby Sherman Acts on the state level.

KOHL: I'm glad to hear you say that because on June 14th, 1983, which is more than 20 years ago, in a memo to the White House counsel Fred Fielding, you wrote, quote, "Enforcement of federal rights is advanced most effectively by private suits in antitrust cases."

KOHL: So isn't it often true that individual consumers don't have the resources to pursue these private suits against large corporations? And isn't that why government enforcement of antitrust is essential? So you would perhaps not be feeling the same way today as you did 22 years ago when you made that comment?

ROBERTS: Well, I think it depends on what area you're talking about. I do think that the system established under the Sherman Act of private antitrust enforcement -- and of course the opportunity to recover additional damages and attorneys' fees and other aspects -- has been an effective tool in enforcing the law.

There are areas, as you mentioned, if the issue is mostly consumer rights as opposed to business rivals, that government action may be more necessary in those areas as opposed to the others.

And I know that government antitrust regulators make those determinations every day, that their resources are best directed to areas where consumers or attorneys bringing class actions on consumers' behalf, whatever the reason, where the incentive system for private litigation may not be as effective. And that's often the area where state attorneys general, the Justice Department, decide to get involved to supplement the private enforcement activity.

KOHL: All right. I'll just ask one more question before my time expires, and that's upon the important role that chief justice plays as the head of Judicial Conference, which is the organization of the entire federal judiciary.

As head of Judicial Conference, chief justice makes policy recommendations with respect to legal reform, reform of court procedures and advocates for the federal courts.

What, if you were confirmed, would be your agenda, your plans or your policy objectives to advance in connection with your role as the head of Judicial Conference?

ROBERTS: Well, I'm familiar with how the Judicial Conference operates for at least part of its role. I've been on the Advisory Committee on Appellate Rules. I was there as a lawyer, and I've kept on as a judge. In fact, I was slated to be the chairman of that committee starting in October.

KOHL: So I understand the role in promoting reform of rules that apply in the federal courts, both the appellate rules, civil rules, criminal rules and bankruptcy rules and evidence rules -- different committees there.

And I'm familiar with the process. They go through the advisory committee, a broader committee about rules in general, then they are submitted to the Judicial Conference for consideration.

And it is a very exhaustive process, but I think also a very responsive one. Particular problems are identified in practice by practitioners, by judges. They are submitted to the committees. They review them. They come up with proposals.

It is a very important part of the functioning of the federal system and it affects all the levels, not just the Supreme Court of course, but the courts of appeals and the trial courts.

Other issues of concern, obviously, pressing issues concerns with respect to security in light of different developments, those are addressed at the Judicial Conference -- any need for legislative action that the courts feel is appropriate.

I have to tell you that if I were to be confirmed, as an initial matter, I think my primary posture is going to be one of listening because there's obviously much I have to learn about matters of concern to different judges, different courts around the country.

And that's the good thing about the Judicial Conference, of course. They bring in judges from around the country to make sure that you get a national perspective on what needs to be done and you are not just focused on issues here in Washington or anywhere else.

But it is an area where I think I will have to listen a lot at the outset before being presumptuous enough to have a particular agenda.

KOHL: I thank you, Judge Roberts.

I thank you, Mr. Chairman.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Kohl.

Senator DeWine?

DEWINE: Thank you, Mr Chairman.

Judge, good afternoon.

ROBERTS: Good afternoon.

DEWINE: You know, Judge, our Constitution created federal courts with limited powers. And, in fact, Article 3 of the Constitution only gives federal courts the power to decide cases and controversies. This case and controversy requirement means that federal courts will only hear real lawsuits involving real parties with real injuries. We talked about this over the last several days. This has led to the development of a number of different rules about when people can bring lawsuits in federal court and when they cannot. One of these rules, as you well know, is the principle of standing. You talked about this in 1993 in a law review article you wrote in the Duke Law Journal. You said the following, and I'll quote briefly from this: "The legitimacy of an unelected life tenured judiciary in our democratic republic is bolstered by the constitutional limitation of that judiciary's power in Article 3 to actual cases and controversies."

DEWINE: You went on to later state the following: "The Article 3 standing requirement ensures that the court is carrying out its function of deciding a case or controversy rather than fulfilling the executive responsibility of taking care of the laws we faithfully execute," end of quote. Judge, could you elaborate on these statements today and maybe explain briefly what the doctrine of standing is and why that doctrine is really so important to our constitutional system?

ROBERTS: Well, Senator, your question really ties together a few themes we've already touched on. I don't remember if it was you or someone else who referenced Justice White's description of his obligation and what it was, and his answer was to decide cases.

DEWINE: That was me.

ROBERTS: And the basis for the institution of judicial review, as explained by Chief Justice John Marshall in Marbury v. Madison, is similarly grounded on the obligation to decide cases and controversies. Because if you look at the Constitution, it doesn't say in Article 3 that the judicial branch is established in order to tell us all what the Constitution means. It says that the judicial branch is established to decide cases and controversies arising under this Constitution and the laws. And that is the basis for the authority to interpret the Constitution. As Marshall explained, we have to decide a case. If the argument is that it's inconsistent with the Constitution, we have to decide that. Therefore, we have that authority. And I believe that's consistent with the intent of the framers. But it does mean, and this is the point I was trying to make in that small little law review comment, that judges should be very careful to make sure they've got a real case or controversy before them, because that is the soul basis for the legitimacy of them acting in the manner they do in a democratic republic. They're not accountable to the people.

As judges they have the obligation to decide cases according to the rule of law. So, first, make sure you've got a real case and a real case is not simply, "I'm interested in this area. I don't like what the government is doing." Or, "I' don't like this law, and so I'm going to go to court." What the standing doctrine requires is that you actually be injured by what the government is doing, injured by Congress' action. Now, the injury doesn't have to be economic. The Supreme Court has explained in cases, like Sierra Club v. Morton, it can be aesthetic. It can be environmental. It can cover a wide range of injuries. But you have to show some injury that separates you from the general public, so you're just not voicing a gripe; you're trying to get a case decided. That's the importance of the standing doctrine.

DEWINE: I appreciate the explanation, Judge. Let me ask you a more personal question.

DEWINE: Last time you appeared before our committee, you were a lawyer in private practice. Since that time, you spend approximately two years on the Court of Appeals in the District of Columbia, a new experience, even for an experienced practitioner like you. What surprised you about the last two years of judging, if anything?

ROBERTS: Well, I think I had the biggest surprise on the first day that I heard cases. Obviously, it's opening day and the first day of my career, so I prepared as well as I could and the arguments were great and I went into the conference room and I had my notes and all the books. It's just the judges, you know; just the three judges. We bring the record in; we're surrounded by the U.S. reports, by our Court of Appeals reports, but the United States code that you folks have written. And I was ready and I'm sitting there and I remember the chief judge, who by tradition sits on a new judge's first day. He was there and another judge and I waited a while and I looked and they were still waiting. I waited a while longer and they were still waiting. And, finally, the chief judge advised me that the tradition was that the junior judge goes first at these discussions. And, so, I was kind of put on the spot right off the bat.

And part of what that conference was like -- and throughout, it really has -- I don't know if I'd say a surprise, but it's been illuminating to me. The judges really do roll up their sleeves and try to find the right answer. It's just the judges. But, as we say, "Well, we think this case is controlled by the Smith case," we get out the Smith case and we open it up and we look at it, leaning over each other's shoulders and seeing exactly what it says. If somebody says, "Well, but in this case, under the record, there was no evidence about this or there was no objection raised about that," you get out the record and you look at page, you know, 223, and you point to it and say, "Well, here's where the objection was raised." And the judges are very open. Hit's a very encouraging part of the process from my point of view. Nobody goes in there with set views. They want the benefit of the collegial process, the benefit of each other's views. And you have to be able to substantiate your position. There's no place for rhetoric. People are pointing to the law. And I found that a very encouraging part of the process, what goes on in the conference room, which was, of course, a part of the process that I hadn't participated in before.

DEWINE: It's something that we don't see, either.

ROBERTS: Right.

DEWINE: We have no way of seeing it.

ROBERTS: Right. And the positive part of that process to me was that nobody was invested in anything other than getting the right result. And they're prepared to be convinced, contrary to initial impressions. And I was as well. I found it a very encouraging part of the process.

DEWINE: Let me ask you, moving to administrative law issues, if I could. As you know in the 18th and 19th centuries, we really did not have the governmental agencies that have such a profound influence, for better or worse, on the daily lives of Americans. Today, administrative agencies set workplace safety rules, establish environmental regulations, lay down traffic safety standards, just to name a few things. As far as I know, there's no specific article in the Constitution dedicated to the administrative state we live in today. In your view, what is there in the text or history of the Constitution that supports the growth of this administrative state that we live in? Is the growth of the administrative state an example of the Constitution being amended simply out of necessity or is the administrative state consistent with the Constitution as drafted by our founding fathers? How do you get to where we are from a constitutional point of view?

ROBERTS: Well, you know, we all, of course, begin in high school civics, with the notion of three branches of government, the executive, the legislative and the judicial. And we study that. And then, only occasionally do people look at the real world and say: Well, what is this agency? What is that? Is that legislative? Or is that judicial? Or is that executive? And of course, the answer is, well, it's a little bit of each. It's exercising power delegated by Congress. It's executing it in a particular way. It's issuing regulations that have the force and effect of law. And quite often it's adjudicating particular disputes. The activities of the administrative agencies are, of course, the bulk of what judges on the Court of Appeals for the D.C. Circuit do (inaudible) of administrative law that have recognized the legitimacy of these agencies and sought to ensure that their exercise of authority is consistent with constitutional provisions, by basically -- I mean, I know the issue can seem arcane to many people, but he fundamentals of administrative law really go back to the basic principles of justice: Is someone being given an opportunity to be heard?

ROBERTS: Is someone being treated fairly? Is someone who's making a decision, doing it for a rational reason or an arbitrary reason? These are the same basic principles that have animated the common law system since the time of Lord Cook -- and they're being applied here as well. And the objection is often: This agency made a decision without adequately hearing our concerns. Or this agency made an adjudicatory decision without hearing the record evidence. Or they did not explain. That's the basic requirement of administrative law: explain your decision. That's the limitation on arbitrariness. And the agency didn't explain why it's doing these. The notion that, even in these arcane areas, our legal system insists upon the observance of these basic requirements of -- I don't want to say due process; that's a technical term -- but that's the principle that is being applied. That goes a long way to explaining how these agencies have been accepted into the constitutional system, because they've been required under principles of administrative law, to comply with these basic precepts of procedural regularity.

DEWINE: Judge, let me turn to the area of antitrust, a matter that's very important for the businesses and the consumers of this country.

DEWINE: For over 100 years our antitrust laws have helped consumers by ensuring that our economy is competitive and vibrant. Our antitrust laws are the oldest in the world, and many people, including me, think they are the best in the world. In fact, I'm proud to say that John Sherman, Republican senator from my own home state of Ohio, wrote the first antitrust law back in 1890. Over the past 20 years we've achieved a great deal of consensus, I think, about how the antitrust laws should be enforced, Democrat and Republican administrations. As the chair of this committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, I've worked very closely with Senator Kohl, who asked you some questions about antitrust. I think we've worked in a bipartisan way to ensure that consumers and competition are protected. This is a simple goal but it's not always easy to achieve or put into practice. For example, recently the rise and expansion of the Internet and the technological explosion of the so-called new economy have led to a marketplace that's changing faster and more often than we have really ever experienced before. Judge, what challenges do you think the courts face in trying to square our old antitrust laws as they are currently written with new business strategies and the high technology markets? And do you think that the laws, these laws, give courts enough guidance to deal with these new economy issues?

ROBERTS: Well, that was really the basic issue that I faced in the Microsoft case before the D.C. Circuit en banc. There was a lot of argument, academic commentary back and forth. The idea this is a whole new area, you can't apply the old principles, they don't work in this context, you need to do something different. A so-called new paradigm and all that. And at least the argument that I tried to make on behalf of the states was that the basic principles are the same. The Sherman Act was, as many have said, you know, a charter of economic freedom, and that those basic principles do have to be applied regardless of changes in the economics of the underlying businesses or the structure of the markets.

ROBERTS: Obviously, it requires a great deal of sensitivity on the part of the judges and it's a real challenge for the lawyers sometimes to be able to understand the economics, to be able to explain them to the judges, and judges appreciate that. But my basic instinct, and it's nothing more than that, is that the principles are there and the issue is simply application in a new context.

DEWINE: Thank you. Judge, just one final comment: Yesterday, Senator Grassley asked you whether you think that there is, and I quote, "any room in constitutional interpretation for the judge's own values or beliefs." In response, you said, and I quote, "No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case, but you don't look to your own values and beliefs. You look outside yourself to other sources," end of quote. You contained by saying that, and I quote, "Judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision," end of quote.

Now, Judge, I know what you meant by that answer: Judges should not impose their own preferences from the bench. In fact, I said pretty much the same thing in my opening statement on Monday. But, Judge, putting on a black robe does not mean that judge should lose his character. You, sir, have a perfect resume and, certainly, an outstanding professional career. But a Supreme Court justice is more than just impeccable academic credentials and impressive accomplishments. President Bush nominated John Roberts, the man. America has gotten to know John Roberts, the man. And I'm quite sure that the Senate is in fact going to confirm John Roberts, the man. Over the past several months, we've examined your life, met with you in private, and now questioned you about your beliefs. Throughout this time, your honesty, your integrity, your wisdom and, dare I say, your values have shown through. I would just say, sir, please don't check any of that at the door when you walk into the Supreme Court. By becoming John Roberts the chief justice, don't ever forget to be John Roberts, the man.

DEWINE: I think this country needs you to remember how you got here and who you met along the way. We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been. We need you to bring to the court your strong commitment to equal justice for all. And we need you to always remember that your decisions will make a real difference in the lives of real people. When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide, open fields of your youth. Those values are strong, they are true. The president saw them when he nominated you. And we are certainly seeing them this week. I must say, sir, they must never leave you.

Justice Felix Frankfurter gave this same advise to his colleagues in 1949. "There comes a point," Justice Frankfurter wrote, "where this court should not be ignorant as judges of what we know as men. Great justices are more than just legal automatons, legal technicians. They are more than just that. And though they lose their individuality when they put on a black robes, great justices never forget who they are." I wish you well. Thank you, sir.

ROBERTS: Thank you, Senator.

SPECTER: Thank you very much, Senator DeWine.

SPECTER: Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman. Judge, I subscribe to much of what Senator DeWine said. I want to tell you what I think, perhaps a little differently and personally. Senator Graham, last night, pointed out that Justice Scalia was confirmed by 98 votes of this body. And I thought, then, and I think now how different the days were in 1986. There's so much water under the damn since then. The nation is divided. It has polarized. It is about 50-50. We are at war. Executive authority is very much on people's minds. The law as it relates to war, the Geneva Conventions, the conventions against torture, all of these things, very much on everyone's minds. We have seen, in the last 10 years, 193 5-4 decisions of the court, which suggests that, on major questions, the court is also very divided. And so in comes this young justice. I was one on our side that voted for you for the D.C. Court. I did so because there were so many testimonials about what a fine lawyer you are, what a fine human being you are. And I voted for you. But there's more in this vote. Senator DeWine just spoke about the man as opposed to the legal automaton.

FEINSTEIN: Yesterday morning, you spoke, I thought eloquently. In answering Senator Specter's questions on Roe, you discussed stare decisis as fully as I have ever heard it discussed. I am not a lawyer. I learned a lot from listening to you. You discussed the right to privacy. You were very full and forward speaking. And then after lunch, it was as if you shut down and became very cautious. So my first question: Did anybody caution you between the morning and the afternoon sessions?

ROBERTS: No, Senator. No.

FEINSTEIN: Has anyone, when you were being interviewed for this position, ever asked your opinion on Roe?

 ROBERTS: No.

FEINSTEIN: OK. That's good to know. 1973, 2005 -- 32 years -- over three generations of women have come, really, to feel that finally they have some autonomy over their body. And women are all different. Many of them are very pro-life. Many are pro-choice. People have different religious views, moral views. So it's this big diverse cosmopolitan of women. But the growth has been enormous. And the ability of women to succeed -- I mean, I went into the workforce at the same time Sandra Day O'Connor did, with a year's graduate work. The door was closed. It's now open. And women are so lucky.

FEINSTEIN: And it seems to me that the living Constitution is that each person in this great country, man or woman, rich or poor, white or black, whatever it might be, can really reach their full potential. And I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I've heard so many times, "I can't really say because it may come before me." And yet, I don't expect you to say what you would do with Roe one way or another. But I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice. You could be chief justice for 40 years. That's a very long time. And because of the division -- and there's also a lot of fear out there -- where this new court, now with potentially two new justices, is going to go, whether you've got the ability to bring that court together, to end the 5-4 decisions, to see that big decisions are made so that they represent a much greater consensus.

And I'm trying to find out and see are those qualities really there. I was interested in a colloquy you had with Senator Biden on the end of life. And he used the word -- he asked a number of legal questions. And then he says, OK, just talk to me as a father and tell me. Now, I have been through two end of life situations, one with my husband and one with my father, both suffering terrible cancers, a lot of pain, enormous debilitation.

FEINSTEIN: Let me ask you this question this way: If you were in that situation with someone you deeply love and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do? To me, it's that stark because I've been through it.

ROBERTS: Well, Senator, in that situation, obviously, you want to talk and take into account the views and heartfelt concerns of the loved one that you're trying to help in that situation, because you know how they are viewing this. You know what they mean when they're saying things like what their wishes are and their concerns are and, of course, consulting with their physician. But it seems to me that in that situation, you do want to understand and make sure that you appreciate the views of the loved one. And only you can do it because...

FEINSTEIN: That wasn't my question.

ROBERTS: I'm sorry.

FEINSTEIN: I'm trying to see your feelings as a man. I'm not asking you for a legal view.

ROBERTS: I wasn't trying to give a legal view. My point was that, obviously, you look to the views of the person involved. And if it's a loved one, you are the one who is in a position to make sure that you understand their views and can help them communicate those.

FEINSTEIN: How would you feel if you were in that position?

ROBERTS: An end of life situation? You know, I do think it's one of those things that it's hard to conceptualize until you're there. I really would be hesitant to say this is what I would definitely want done or that's what I would definitely want done. You do need to confront that and appreciate all of the different concerns and impulses and considerations.

FEINSTEIN: And every situation is different.

ROBERTS: Yes. And it's one of those things I think is difficult to put yourself in that position and say, "Well, with any degree of confidence, if I were suffering and confronting the end of life, this is what I would want to do or that is what I would want to do."

ROBERTS: You can theorize it and try to come up with your views or how you would confront...

FEINSTEIN: That's right. All I'm saying is you wouldn't want the government telling you what to do.

ROBERTS: Well, I'm happy to say that as a general matter.

FEINSTEIN: That there should be a basic right of privacy.

ROBERTS: Well, that's getting into a legal question.

FEINSTEIN: OK, I won't go there.

ROBERTS: And you don't want...

FEINSTEIN: I won't go there. Let me go somewhere else. Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president. It goes through most of the time scrubbed pretty good before it gets to the president. Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause. '96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded. Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students. And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools. Now, at what point does crime influence commerce?

ROBERTS: Well, I think it does. And one of the things that's important to understand about the Lopez decision is the court analyzed it -- and, again, I'm not taking a position on whether it was correctly decided or not.

FEINSTEIN: Right, right.

ROBERTS: But as the court analyzed it, one of the things about the act was that it did not have what's known as a jurisdictional requirement. It didn't have a requirement that the firearm be transported in interstate commerce -- a requirement that I think it would be easy to meet in most cases, because guns...

FEINSTEIN: But the firearm is transported in interstate commerce -- maybe not when that student had it, but to get to the student, the firearm has been transported in interstate commerce.

ROBERTS: My point is that the fix in Lopez, all that the court was saying was missing in there, or what was different about Lopez than many of the other cases, was that lack of a jurisdictional requirement. And if the act had been -- as I understand the court's analysis, the act had required that, which I think, again, it's fairly easy to show in almost every case.

ROBERTS: As you say, these guns are transported in interstate commerce. Then that would have been within the Congress' power under the commerce clause. I think it was an unusual feature of the legislation that it didn't have that requirement, as so many laws do. As you know, it often says "in interstate commerce." And that's -- at least as I understand the Lopez decision -- what made it unusual.

FEINSTEIN: That's very helpful. You might get it back again someday, with that fix. Let me turn to something else that Senator Leahy asked a number of questions on, and that's the Constitution and executive power. I'm looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?

ROBERTS: Right.

FEINSTEIN: Which gives it the total weight of law. Can a president, then, decide not to follow a treaty?

ROBERTS: As a general matter, the answer is no. The treaty power, as long as it's ratified according to the requirements in the Constitution, by two-thirds of the Senate, you're perfectly correct, it is under the supremacy clause the supreme law of the land. Now, I don't know if there are particular arguments about executive authority in that area with which I'm not familiar, and I don't mean to state categorically, but my general understanding is that treaties that are ratified -- and of course we have treaties that aren't ratified and executive agreements that aren't submitted for ratification and so on -- but the treaty that's ratified by the Senate under the supremacy clause is part of the supreme law of the land.

FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?

ROBERTS: Yes. Now, there are questions, of course, that arise under those -- and have arisen under those -- about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated. But that's an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.

FEINSTEIN: Let me take you to yesterday morning and stare decisis.

FEINSTEIN: Because you specifically discussed, when you were asked about Roe and Casey, precedent. Specifically, as we said, workability, reliance, pragmatic considerations, changed facts or circumstances and whether the underlying legal or constitutional doctrine would still be valid. Are there any other factors that you think should be considered?

ROBERTS: Well, the court has been somewhat inconsistent on some other factors. They, for example, talked about, in some cases, the length of a precedent, the idea that the longer it's been on the books, the more people have conformed their conduct to it. In other cases, they've suggested that's not such an important consideration. In Payne v. Tennessee, the case said it noted how closely divided the court was and the prior case was a factor. But in other cases, the court has said that's not a major consideration. So I put those factors on the table simply because, in some cases, the court looks to them; in others, it doesn't. But I think the ones I mentioned yesterday are ones that apply in every case, including the settled expectations, the workability, whether the doctrinal basis of a decision have been eroded.

FEINSTEIN: Yesterday, in answering Senator Specter on this very point, when you referred to Payne v. Tennessee, you did point out there were other considerations that come into play and they're laid out again in Dickerson and other cases, Payne v. Tennessee, Agostini, and a variety of decisions where the court has explained when it will revisit a precedent and when it will not.

ROBERTS: Yes.

FEINSTEIN: What do you think, when it should and should not?

ROBERTS: Well, I do think you do have to look at those criteria. And the ones that I pull from those various cases are, first of all, the basic principle that it's not enough that you think that the decision was wrongly decided. That's not enough to justify revisiting it. Otherwise, there'd be no role for precedent and no role for stare decisis. Second of all, one basis for reconsidering it is the issue of workability. If a precedent has turned out not to provide workable rules, if courts get different results in similar cases because...

FEINSTEIN: Or if another case, like Casey, finds that Roe is workable.

ROBERTS: Well, again, that is a precedent of its own...

FEINSTEIN: Right.

ROBERTS: ... that obviously would be looked at under principles of stare decisis. The issue of the erosion of precedent: If you have a decision that's based on three different cases and two of them have been overruled, maybe that's a basis that justifies revisiting the prior precedent. The issue of settled expectations: The court has explained, you look at the extent to which people have conformed their conduct to the rule and have developed settled expectations in connection with it. Perhaps the discussion earlier we had about the Dickerson case is a good example of that, where the chief justice thought Miranda was wrongly decided but explained that it had become part of the established rules of police conduct and was going to respect those expectations.

FEINSTEIN: Now, yesterday you said this: "I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause." Do you think that right of privacy that you're talking about there extends to single people, as well as married people?

ROBERTS: The courts held that in the Eisenstat case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstat.

FEINSTEIN: OK. Do you think that that same right extends beyond family choices then about a child's education?

ROBERTS: Well, that's where it actually got started 80 years ago in the earliest cases. Meyer and Pierce involved questions about how to raise children, whether you could teach them a foreign language, whether you could send them to a private school. And those decisions are really what started that body of law.

FEINSTEIN: I have another question I could ask but you won't answer it, unless...

SPECTER: Give it a try, Dianne. Go ahead.

(LAUGHTER)

FEINSTEIN: Does it cover the right of a woman to decide whether to continue her pregnancy?

ROBERTS: Well, Senator, as I've explained, that is an area that's...

FEINSTEIN: Yes, apt to come before you and -- right. That message was well-conveyed. Could I ask you one question? I think I'll have time. In Acree v. the Republic of Iraq -- this was the case where 17 U.S. prisoners; they were our people -- suffered severe beating, starvation, mock executions, dark and unsanitary living conditions, et cetera, during the first Gulf War, and they sued the government of Iraq, the Iraqi intelligence services and Saddam Hussein for their brutal and inhumane treatment. The veterans won their case in district court in July of '03. They were awarded $959 million in damages. After the judgment, the Justice Department intervened in the suit to contest the district court's jurisdiction. The specific issue involved a statutory interpretation of the Emergency Wartime Supplemental Appropriations Act passed in 2003.

FEINSTEIN: Justice argued that the statute gave the president the authority to change Iraq's designation as a state sponsor of terror and thereby relieve it, after the fact, of its responsibilities for prior acts of terror. You wrote a concurring opinion in favor of overturning the district court's judgment. Although you agreed with the other two judges on the panel that the judgment should be reversed, you alone adopted the Department of Justice's argument that the statute granted the president total power to absolve Iraq of liability. You reached this conclusion while acknowledging the question of statutory interpretation is close. Can I ask my question?

SPECTER: Yes, you may finish your question.

FEINSTEIN: Do you believe that when, as in Acree, there is a close question of interpretation of a statute touching upon a foreign policy, that the executive deserves total deference?

ROBERTS: Oh, no. Senator, whether the question is close or not, I don't think there is any situation where a court concludes that the executive deserves total deference. And that was not the basis of my decision. The judges were unanimous that the veterans were not entitled to relief. The panel was chosen from a point -- happened to be appointees of three different presidents. The view was unanimous that they were not entitled to relief. The other two judges concluded there was no cause of action available to them. I concluded that there was no jurisdiction and wrote separately. The recognition that it was a closed question is also reflected in the view of the other two judges in addressing my concern. They acknowledged that it was a close question and I agreed with that. But you did have legislation that said that the president can determine that these laws do not apply if he makes a determination under the criteria set forth in the statute. And he had done that. And my conclusion: that that extended to the provision that otherwise would have allowed suit. The other two judges disagreed. They thought there was jurisdiction disagreed. They thought there was jurisdiction, but then concluded there was not right of action, so the end result of both of our positions was the same. But it was not a question of deference. It was a question of interpreting the legal authority and consequences of an act that this body had passed and the president's finding under that.

ROBERTS: When it comes to interpreting of law, I go back to Marbury v. Madison. That is emphatically the province and duty of the judicial branch. We don't defer to the executive. We don't defer to the legislature in making that final decision about what the law is.

FEINSTEIN: If confirmed, maybe you will defer to the legislative a little bit. Thank you...

ROBERTS: We defer -- just to clarify. We certainly defer in the standards of review that make sure that we are not (inaudible). But the final decision about what's constitutional or not rests with the judicial branch. The policy judgments, we certainly defer to the legislature.

FEINSTEIN: Thank you.

ROBERTS: Thank you.

SPECTER: Thank you, Senator Feinstein. Senator Sessions.

SESSIONS: Thank you, Mr. Chairman.

And thank you for your leadership as we move forward expeditiously, I think, today, and I think in a helpful way. I think the hearings have been very good. And, Judge Roberts, I salute you for your excellent manner and your forthrightness and professionalism as you answer these questions. You know, I hope we are moving away, Senator Feinstein, from divisiveness. In some ways, we do have a divided country. But in other ways I think we have the potential to move together. And I frankly believe that one thing that causes divisiveness and frustration and angst is when a Supreme Court would render an opinion that really is more a political or social policy decision rather than a legal decision. And when they say it amounts to the Constitution, a constitutional provision, then that Supreme Court opinion can only be changed by two-thirds of both Houses and three-fourths of the state. Do you understand that danger, Judge Roberts, in opinions and is that perhaps one reason you think a judge should show modesty?

ROBERTS: Well, it is part of what I mean when I say a certain humility should characterize the judicial function. Judges need to appreciate that the legitimacy of their action is confined to interpreting the law and not making it. And if they exceed that function and start making the law, I do think that raises legitimate concerns about legitimacy of their authority to do that.

SESSIONS: Well, I would observe that the American people are beginning to believe that is occurring, and I think it does threaten the legitimacy of the court in a way that all of us who love the law should be concerned. And I do love the law. And I'm a big critic of the courts on these kind of activist cases. But I have practiced full time before federal judges. And as I said earlier, I believe, day after day, justice is done.

SESSIONS: You have said that, before your court, you are impressed with the objectivity and fairness that the judges bring. Is the ideal of a blindfolded justice, a neutral umpire, is that a romantic, naive ideal? Or is that something that you believe we can and should strive to achieve in America?

ROBERTS: Well, I do know that there are sophisticated academic theorists, people who spend a lot more time theorizing in this area than I do -- and a lot smarter than I am addressing these issues -- who, some of whom conclude that in particular cases, it is difficult to do, it is different to avoid making the law while you are interpreting it. And they kind of throw up their hands and suggest that we shouldn't even try, therefore. And I don't agree with that. I think, as a practical matter, as a pragmatic matter, judges every day know the difference between interpreting the law and making the law. Every day, judges put aside their personal views and belief and apply the law, whether the result is one they would agree with as a legislator or not agree with. The question is what the law is, not what they think it should be. I have seen that on the court of appeals. I have seen that as a practicing lawyer before the court. That is the ideal. I'm sure judges -- I'm sure justices -- don't always achieve it in every case because it is a human endeavor, and error is going to infect any human endeavor. But that is the ideal and I think good judges working hard can not only achieve it, but also achieve it together in a collegial way and benefit from the insight and views of each other.

SESSIONS: Well, I thank you for that. And I would share those views. And I absolutely believe the strength of our nation is our good legal system. We have talked about the commerce clause and there has been a lot of criticism of some of the cases.

SESSIONS: I think there have only been two significant commerce clause cases maybe in the last 40 years, Lopez and Morrison. Senator Feinstein and you had a nice exchange about Lopez. I would certainly agree with your analysis. Had the Congress placed in there a requirement that the firearm had been traveled in interstate commerce, I believe that statute would have been upheld. We could pass it again with that simple requirement, and virtually every firearm will have traveled in interstate commerce. A few states have manufacturers. When I was a federal prosecutor, I prosecuted a lot of those cases. As a young prosecutor, I was sort of an expert at it in the '70s, and I proved sometimes the interstate commerce by simply putting an agent on there saying there was no gun manufacturer in Alabama. Or it said, "Made in Italy," on it. I remember I got that affirmed one time as proof beyond a reasonable doubt that it was not made in Alabama. So Lopez, I believe, is a good decision.

 Also, with regard to crime, I would note that we've always had that nexus with interstate commerce. As a federal prosecutor, it's not prosecution for theft, it's prosecution for interstate transportation of stolen property. That's the federal crime. Theft is prosecuted only by the state courts unless it's theft from an interstate shipment. That's a federal crime. It's not stealing an automobile, it's interstate transportation of a stolen motor vehicle. ITSMV is the federal crime. The Hobbs Act, the Extortion Act to use against politicians, you have to have an interstate nexus. And I've had cases where bribery was proven, but we were not able to prosecute it federally because it did not have an interstate nexus. RICO, even arson cases have to have it there. So I just want to make sure that -- let me ask you this. In general, wouldn't you agree if someone in Pennsylvania picks up a rock and murders their neighbor, that is a crime unreachable by federal prosecution under traditional interpretations of commerce clause and the reach of the federal government?

ROBERTS: Well, again, barring special circumstances of the sort you were talking about, that's generally something addressed by state authorities.

SESSIONS: We need to get this thing straight. We have some people complaining we are federalizing too many crimes and then complaining that we are striking down some that go too far. States should prosecute these cases locally and effectively, and should do that -- guns in schools, and guns and that kind of thing. In the Violence Against Women Act, that was a commerce clause case, where a woman was raped and then sued the people who assaulted and raped her. She wanted to sue in federal court under the Violence Against Women' act. What the court held there was, as I read it, the court limited Congress' power to provide for civil damages, money damages. She could sue that rapist in state court, but not for money damages in federal court. Is that the holding of that case?

ROBERTS: That's my understanding of what the court held in the Morrison case, yes.

SESSIONS: And I don't think it is an utterly extreme position. It certainly did not gut the Violence Against Women Act. It has so many more provisions than just that. If the action had been against a private business, could the damages have been rendered in that case?

ROBERTS: I'm not sure I know the answer to that, Senator.

SESSIONS: I will follow up on the Garrett case that several people mentioned. It involved the University of Alabama in a lawsuit against the state institution claiming violation of the Disabilities Act. The state defended on the grounds that you could sue the state of Alabama for back pay. You could sue the state of Alabama to get your job back. You could sue the state of Alabama and get an injunction against the state to not discriminate again in the future. But under the sovereign immunity doctrine that protects a state from lawsuits, you couldn't sue them for money damages. Now, Senator Cornyn, who was attorney general of his state and attorney generals like Attorney General, now Judge Bill Pryor, who defended Alabama raised that defense. And I don't think it is a bogus defense. I think it is a legitimate concern. Judge, do you recall where the doctrine is that's so famous in the law, that the power to sue is the power to destroy? Do you remember where that came from in our legal history?

ROBERTS: I remember tax opinions talking about it; the power to tax being the power to destroy.

SESSIONS: But I think that the doctrine has been applied to the states. We attorney generals are familiar with it. Under the sovereign immunity that the states have, if you are empowered to sue the state of Alabama in federal court, then you have virtually the power to destroy that state financially, if there's no real limit on it. And so we have always provided and the states have provided a sovereign immunity that the states are only allowing themselves to be sued under certain circumstances and you cannot just sue them unnecessarily. I know Senator Mark Pryor, our Democratic colleague, signed on the brief for the state of Alabama in the Garrett case, taking this position and the Supreme Court ruled with it. So I also would note that it did not in any way destroy the Disabilities Act. It applied to only -- state employees only make up about 3.7 percent of the employees in the nation that might be covered by that. So I think that there has been healthy trends in re-establishing that there's some limit to the reach of the commerce clause. Would not you agree?

ROBERTS: Well, the interesting thing: The court's most recent decision is the medical marijuana decision in the Raich case. And the court there looked at the Lopez and Morrison decisions and tried to put them in context and said -- because the argument there was based on Lopez and Morrison, saying this is beyond Congress' power. And the court said those are only two of our cases and they need to be put ion the broad sweep of commerce clause precedents for over 200 years. Yes, there are two cases and it had been -- I think -- 65, 70 years since the court had focused on limitation under the commerce clause and concluded that it was beyond Congress' power. But the Raich case concluded that this was within Congress' power. they said it's not as if Lopez and Morrison are junking all that came before. They just need to be considered in a broad context. And, of course, there's decision after decision, going back to Gibbons against Ogden, one of Chief Justice John Marshall's early opinions about the scope of Congress' power; and the recognition under the constitutional scheme that it is a broad grant of power; and the recognition that this body has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.

SESSIONS: I think you're going to another setting. But I think you are correct. These are some difficult areas in the court that you need a lot of attention to. But some recognition that there are limits to federal reach is, I think, legitimate for a court. Judge, are you aware of the salary that you'll be paid if you become...

ROBERTS: In a vague way, yes.

SESSIONS: And I suppose you were, when you were affirmed to the court of appeals.

ROBERTS: Yes.

SESSIONS: You're not going to be back next week asking for a pay raise, are you?

(LAUGHTER)

ROBERTS: Not next week, no.

(LAUGHTER)

SESSIONS: Chief was pretty -- always over here knocking on our door about pay raises. But, you know, we have a deficit in our country...

(LAUGHTER)

 And you're paid the same -- I guess the chief's maybe paid more than senators. But for the most part, judges are paid what members of Congress are paid. And I, frankly, am dubious that we should give ourselves big pay raises when we can't balance the budget. I also chair the Courts Subcommittee, Courts and Administration. And as chief, you have a serious responsibility with regard to managing and providing guidance to the Congress on the needs of the court system. I know that -- I'm sure that you will do that with great skill and determination. But let me ask you: Will you also seek to manage that court system -- and I hesitate, but I will use the word "bureaucracy" at times -- effectively and efficiently and keep it a lean and effective management team and maintain as tight a budget as you can maintain?

ROBERTS: Well, if I am confirmed, Senator, the answer is yes. I'm aware that there is, for example, the administrative office and they provide valuable services to judges around the country. As a consumer of their services for the past two years, I have certainly particular views about where I think they're effective and helpful to judges and other areas where -- like any bureaucracy -- where I think they can do better. It is an area where my first priority is going to be to listen because I'm sure there are many considerations of which I'm not aware that are very important for the chief justice to take into account.

ROBERTS: And, after listening, I'll try to make the best decisions I can about administering that system.

SESSIONS: Well, there are a lot of problems. Judges are not happy with the General Services Administration, and sometimes GSA is not happy with the judges, and sometimes judges overreach and want to be treated awfully specially. And so I think you have a challenge there. I would look forward to working with you. If you'll help us make sure that your court system is lean and efficient and productive, we'll try to make sure that you have sufficient resources to do those jobs. One more thing that I'd just like to inquire about, and that deals with stare decisis, the deference you give to a prior decision of the Supreme Court. And you've mentioned a number of factors. And I recognize those as valid and worthy of great consideration. But it almost strikes me that is a bit circular. In other words, the court is creating a wall around its opinions to try to avoid seeing them overruled. Isn't it true that your first oath is to enforce the Constitution, as God gives you the ability to understand it, and that sometimes decisions have to be reversed if they are contrary to a fair and just reading of the Constitution?

ROBERTS: Yes, Senator, the oath we take is to uphold the Constitution and laws of the United States. That's true. And the way judges go about that is within a system of precedent and, consistent with rules of stare decisis, no judge starts the day by opening a blank slate and he said, "What should the Constitution mean today?"

You operate within those systems of precedents. That's the best way that we judges have determined to interpret the Constitution and laws consistent with principles of stare decisis.

SESSIONS: Judge, I would just conclude with noting that I remember when the court, in the 9th Circuit, ruled that striking down the Pledge of Allegiance -- then Majority Leader Tom Daschle came to the floor, as now Minority Leader Harry Reid did at the same afternoon, and they criticized the opinion and criticized the 9th Circuit and expressed concern about activism in that circuit, which I have done often myself.

SESSIONS: But I responded that my concern was not so much with the circuit, but with the confusing number of opinions from the Supreme Court and that I had no doubt that there was Supreme Court authority that would justify the 9th Circuit rendering the ruling that they did.

And I say that because we've just received word today that a judge in San Francisco has upheld -- has ruled that the pledge's reference to one nation under God violates the Constitution and should be stricken down.

So that case is going to be winding its way forward.

I'm not going to ask you to comment on it, because it will obviously come before you. But will you tell us whether or not you are concerned about the inconsistencies of these opinions? And will you work to try to establish a body of law in the Supreme Court that recognizes the free exercise rights of American citizens in regard to religion and to avoid a state establishment of a religion?

ROBERTS: Well, we talked about this in the committee hearings on a couple of occasions. And I think everyone would agree that the religion jurisprudence under the First Amendment, the establishment clause and the free exercise clause, could be clearer.

The Ten Commandments cases are the example right at hand. You have two decisions of the Supreme Court. Only one justice thinks both are right. That is an area in which I think the court can redouble its efforts to try to come to some consistency in its approach.

Now it obviously is an area that cases depend in a very significant way on the particular facts. And any time that's the case, the differences may be explained by the facts.

You do have the two provisions, as your question recognized, the establishment clause and the free exercise clause.

ROBERTS: And as I've said before, I think that both of those are animated by the principle that the framers intended the rights of full citizenship to be available to all citizens, without regard to their religious belief or lack of religious belief. That, I think, is the underlying principle, and hopefully the court's precedents over the years will continue to give life to that ideal.

SESSIONS: Well, thank you, Judge Roberts. You have by your testimony validated the high opinions that so many have of you. I'm confident you would make a great chief justice. Thank you.

SPECTER: Thank you, Senator Sessions.

Back to Part II of the Sept. 14 transcript. Go to Part IV of the Sept. 14 transcript.

Courtesy Morningside Partners/FDCH


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