Transcript: Day Three of the Roberts Confirmation Hearings
Wednesday, September 14, 2005; 8:56 PM
FEINGOLD: Thank you, Mr. Chairman.
Judge, let me start off by taking up a couple of new topics.
In September 1985, when you were in the White House Counsel's Office, you recommended deleting the following line from the presidential briefing materials: quote, "As far as our best scientists have been able to determine, the AIDS virus is not transmitted through casual or routine contact," unquote.
You said at the time that the conclusion was in dispute. We now know, of course, that the line is completely accurate. But I would say we also knew that then.
The Center for Disease Control guidelines issued the month before you wanted to delete that line said the following: quote, "Casual person-to-person contact as would occur among school children appears to pose no risk," unquote.
Major news organizations had reported the CDC's conclusion.
In fact, the CDC had said as early as 1982 that it was unlikely that HIV could be spread through casual contact.
ROBERTS: I'm sorry, as early as when?
FEINGOLD: As 1982. That it was unlikely that HIV could be spread through casual contact.
Why did you recommend that that line be deleted?
ROBERTS: Well, for the reason I gave in the memorandum. This was a statement by the president and I didn't want the president giving out medical advice if it was a subject of some uncertainty.
I, obviously, was not a medical expert, and you said the CDC had issued a report a month before earlier in your commentary. I don't know what the 1982 issue was.
But I just thought it's purely a matter of caution and prudence to have the president make a pronouncement on it. You have to remember, this was at the very beginning of the AIDS coming into public consciousness, and I was just concerned that the president not be giving out medical statements if people weren't absolutely sure that it was correct.
FEINGOLD: Let me follow on that a little bit. It certainly was an early time and also a critical time. I'm wondering what you did to check or have someone check on these facts. I mean, you must have known that the issue was so important the president was saying something like this that it could have given a great reassurance to people all over the country, as well as helping children infected with the AIDS virus to live happier and more normal lives to know that this was the medical conclusion. So I'm just wondering why you wouldn't check...
ROBERTS: The flip side of that, Senator, of course, is if it turned out to be wrong it could have been disastrous to have the president announcing, because the president wasn't a medical expert, either.
ROBERTS: And I'm sure my suggestion would have caused the people drafting the president's speech to go back. And if they thought they were convinced and they were sure, then that's what would have gone in there.
It was just a question of concern. I wanted to make sure that they were 100 percent confident that what the president was going to be saying about a medical issue, they had complete confidence in it. I don't know actually whether they took it out or left it in, but at least it caused them to focus...
FEINGOLD: I don't want to belabor it, but I think that was a great opportunity for presidential leadership and reassurance and would just respectfully disagree with your judgment there.
ROBERTS: Well, my judgment, just so I could...
FEINGOLD: Fair enough...
ROBERTS: It wasn't my medical judgment.
FEINGOLD: I understand...
ROBERTS: The impact of my suggestion was, obviously, to cause the people who wanted that in there to go back and make sure they were sure that they wanted the president of the United States issuing a medical statement.
FEINGOLD: I think it was pretty certain at that time what the medical view was, as indicated by the medical community of our own government, but I'll leave it at that.
Do you believe that the Congress has the power under the constitution to prohibit discrimination against gays and lesbians in employment?
ROBERTS: I don't know if that's an issue that's going to come before the courts. I don't know if Congress has taken that step yet. And until it does, I think that's an issue that I have to maintain some silence on.
Personally, I believe that everybody should be treated with dignity in this area and respect. The legal question of Congress' authority to address that, though, is one that could come before the courts, and so I should...
FEINGOLD: Can you imagine an argument that would be contrary to that view?
ROBERTS: Well, I don't know what arguments people would make. I just know that I shouldn't be expressing an opinion on issues that could come before the court.
FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.
You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.
The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.
FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.
In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.
The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.
So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?
ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.
The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.
The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.
In other words, it's only the right of a militia to possess arms and not an individual right.
Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.
I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.
So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.
FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?
ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, "I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts." So I do think that issue is one that's likely to come before the court.
FEINGOLD: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court.
But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions.
So your answer that you would apply that principle doesn't help me very much in understanding your view of this. We know where all eight other members of the court stand on these opinions -- in their opinions. They either wrote or joined one of them.
Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court.
Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech.
But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision.
So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?
ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.
ROBERTS: They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process.
You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views.
The process of the opinion-writing -- you can't -- the opinion turns out it (inaudible) you have to change the result. The discipline of writing helps lead you to the right result.
You're asking me for my views, you know, right here without going through any of that process.
FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?
ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice. People who would be arguing in that future case should not look at me and say, "Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to."
They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing.
I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices -- every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.
FEINGOLD: I understand your view. I think it's narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn't have, as we say in Wisconsin, a snowball's chance with a couple of the justices because of what they had ruled previously.
But I didn't think that made the process in any way tainted. I knew that they simply weren't going to agree with this statute. I recognize your limitations.
So let me ask you about something else, the Hamdan.
Yesterday, you refused to answer any questions regarding your conduct in the Hamdan v. Rumsfeld case.
FEINGOLD: But today you answered questions from Senator Coburn regarding this matter. So I want to follow up in order to make sure the record is complete.
You interviewed with the attorney general of the United States concerning a possible opening on the Supreme Court on April 1, 2005. Is that correct?
ROBERTS: Yes. The specifics of the details I discussed in the response to the committee's questionnaire.
FEINGOLD: And that was six days before the oral argument in the Hamdan case. Isn't that right?
ROBERTS: I don't remember the exact date of it. I know it was shortly before that, yes.
FEINGOLD: You had further interviews on May 3rd concerning a possible appointment to the court with numerous White House officials, including Karl Rove, the vice president and the White House counsel before the decision in the Hamdan case was released. Isn't that correct?
ROBERTS: The decision was June 15th...
FEINGOLD: The question here is just: Did you have further interviews on May 3rd concerning a possible appointment to the court?
ROBERTS: May 3rd, yes. Well, whatever it was, I don't remember the exact dates, but...
FEINGOLD: You've had interviews with those individuals...
ROBERTS: In the Senate...
FEINGOLD: The record seems to indicate it was on May 3rd. You met again with Ms. Miers, the White House counsel, on May 23rd. Isn't that right?
ROBERTS: I'm relying on the -- if that's what I said in the questionnaire, yes. I don't have an independent recollection...
FEINGOLD: You have no good reason to doubt that those facts are correct. You never informed the counsel, in this case, of these meetings. Did you?
ROBERTS: I did not, no.
FEINGOLD: Mr. Gonzales' advice to the president concerning the Geneva Conventions was an issue in the case. Isn't that right?
ROBERTS: I don't want to discuss anything about what's at issue in the case. The case is still pending and pending before the Supreme Court.
FEINGOLD: Well how about this one? President Bush was named a defendant in the case. Right?
ROBERTS: Yes, in his official capacity.
FEINGOLD: The Hamdan decision was released on July 15th. Is it your testimony that no work on that decision took place after July 1?
ROBERTS: No, I didn't -- that was not my testimony. The opinions in the D.C. Circuit...
FEINGOLD: Oh, you're saying in your testimony now that no work on that decision took place after July 1?
ROBERTS: Opinions in the D.C. Circuit are complete and circulated to the panel a week before they're released. That was my -- the conclusion of when work was complete. And again, I wasn't the author of the opinion. It would have been a week before it was released.
FEINGOLD: Did you read over the opinion of the concurrence after July 1? Was there any editing that took place after that date?
ROBERTS: I don't recall, Senator, and...
FEINGOLD: But when was the issue of whether you should recuse yourselves from this case -- when did that first come to your attention?
ROBERTS: I saw -- was made aware of an article. I think it was an article. I don't remember when that took place. Whenever the article was published. And then I understand the legal opinions on the other side were requested by, I believe, the chairman.
ROBERTS: And I know that those were...
FEINGOLD: You don't recall when this matter first came up? One would think it would be something you'd remember when somebody suggested you should have recused yourself.
ROBERTS: I don't remember the date of the...
FEINGOLD: How about the approximate time?
ROBERTS: I think it was some time in July.
FEINGOLD: Mr. Chairman, so the record will be complete, I'd like to submit the article from Slate magazine by Professors Gillers, Luban and Lubet and a letter sent to you responding to Professor Rotunda's criticisms of their position. And I also want to submit an article by these three law professors that was published in the Los Angeles Times on this topic. I don't want to take anymore time on this, but I think these professors...
SPECTER: Without objection, it will be made a part of the record.
FEINGOLD: Thank you, Mr. Chairman.
I think these professors very convincingly answer Professor Rotunda's views and point out that his analysis of the case law is not particularly persuasive. And I'd urge any of my colleagues who really want to understand the issue with Judge Roberts' participation in the case, rather than just dismissing it because it's inconvenient, that they take a look at it and actually see what the issues were here.
But I appreciate your answer to those questions.
I will only be answer to get to some of my questions on the next subject, and hopefully in the next round can continue. But, Judge Roberts, as Senator Leahy mentioned earlier, when you came before the committee a couple of years ago we discussed the fact that more than 100 people on death row have been exonerated and released, and in fact I believe the number is now 121 people who we know were sentenced to die for crimes they did not commit.
I want to follow up on the work that Senators Durbin and Leahy have done in discussing with you the Herrera case. I do differ with your characterization of the case. The solicitor general brief that you signed presented the issue as whether the Constitution, quote, "requires that a prisoner have the right to seek judicial review of a claim of newly discovered evidence," unquote. That is, the question was not how strong the evidence of innocence must be, as you seemed to be suggesting earlier, but whether the Constitution requires that there be some avenue (inaudible) presenting evidence of innocence in federal court. Your brief argued that it does not.
Now, that brief also, as you know, contained a footnote that I'm going to ask you to comment on. It said, quote, "There is no reason to fear that there is a significant risk that an innocent person will be executed under procedures that the states have in place. The direct review and collateral procedures that the federal government and the states have in place are more than ample to separate the guilty from the innocent." And yesterday you talked about the possible effect of DNA evidence on the legal framework in this type of case.
In light of the many cases of innocent people ending up on death row that have come to light in the past decade, and aside from what was the ultimate issue at stake in that case, do you still agree with your statement from the government's Herrera brief?
ROBERTS: Well, that was the administration position at the time. It was one that the Supreme Court agreed with; 6-3 I think was the ruling.
ROBERTS: I know Justice O'Connor was in the majority.
The issue -- and again, there was obviously argument at the time about what the issue really was in Herrera. And I thought it was quite inaccurate to view it as a case involving the question of whether actual innocence could be presented. Because it was a claim of newly discovered evidence. And it was a claim that somebody who just died was actually the murderer.
At the end of exhaustive appeals to the state system, exhaustive collateral review through the state system, exhaustive collateral review through the federal system, is there an obligation to decide at that point that a new claim that somebody else committed the crime...
FEINGOLD: I'm just running out of time and wonder if you'd just still stand by the statement, if you could just say yes or no.
ROBERTS: Well, that was the administration position that was presented.
FEINGOLD: All right, let me try to be quick on it. I'd like to know whether you think there's a risk that innocent people may be sentenced to death in today's criminal justice system.
I must say, Judge, Supreme Court justices do have the power of life and death in these matters.
ROBERTS: Senator, I think there is always a risk, in any enterprise that is a human enterprise, like the legal system. Obviously, the objective of the provision of the rights to a criminal defendant in trial, the provision of collateral review at the state level, the provision of collateral review at the federal level, the availability of, as you suggested, clemency, all of that is designed to ensure that the risk is as low as possible.
There are issues that are going to be presented about the availability of DNA evidence which may or may not help reduce the risk even further.
There's always a risk.
And obviously when you're dealing with something like capital punishment, the risk is something that has to be taken extremely seriously, at every stage of the process.
As we talked about more than two years ago at the prior hearing, I think the most effective way of minimizing that risk is to ensure that people facing that sanction have the best counsel available at every stage.
As you know from looking at this problem, the issue that comes up are questions that weren't raised that should have been raised if the person had a more capable lawyer. Avenues that weren't pursued that should have been pursued, if that lawyer had the resources.
And that's where I think the risk of wrongful conviction is going to be most effectively addressed, ensuring the availability of competent counsel at every stage of the proceeding.
FEINGOLD: Thank you, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Feingold.
GRAHAM: Thank you, Mr. Chairman.
Judge Roberts, your intellectually stamina impresses me because you can't see this on television. It must be 150 degrees in here.
And I just don't know how you're doing it. But I'm tremendously impressed.
Mr. Chairman, I would like permission to introduce into the record some law professor's opinion that being interviewed for the Supreme Court vacancy, when Judge Roberts was interviewed, did not require him to recuse himself and I'll...
SPECTER: Without objection, it will be made a part of the record.
GRAHAM: Well, let's think about that in kind of political terms. And I know that's not really your job.
If we took this to its logical conclusion, say I was president -- I don't think that's going to happen so you don't need to be overly worried about it but you could take someone to be chief justice from the people sitting on the court. Is that correct?
GRAHAM: So if you had a judge you didn't particularly like, the best thing you could do is go talk to him about the job and they couldn't decide anything. Would that be the logical conclusion of this?
ROBERTS: I think that would be the logical conclusion...
GRAHAM: Well, I'll remember that if I'm president. But on the record now, I don't think I have the right to do that. That's part of the process.
Some big things here. Were you proud to work for Ronald Reagan?
ROBERTS: Very much, Senator, yes.
GRAHAM: During your time of working with Ronald Reagan, were you ever asked to take a legal position that you thought was unethical or not solid?
ROBERTS: No, Senator, I was not.
GRAHAM: We talked about the Voting Rights Acts. Proportionality test in the Reagan administration's view was changing the Voting Rights Act to create its own harm. Is that correct?
ROBERTS: The concern that the attorney general had and the president was that changing Section 2 to the so-called effects test would cause courts to adopt a proportionality requirement, that if elected representatives were not elected in proportion to the racial composition in a particular jurisdiction, that there would be a violation shown that would have to be addressed.
GRAHAM: Do you think it would be fair to try to suggest that because you supported that position but you're somehow racially insensitive?
ROBERTS: No, Senator. And I would resist the suggestion that I'm racially insensitive. I know why the phrase, "Equal Justice Under Law" is carved in marble above the Supreme Court entrance. It is because of the fundamental commitment of the rule of law to ensure equal justice for all people without regard to their race or ethnic background or gender.
The courts are a place where people need to be able to go to secure a determination of their rights under the law in a totally unbiased way. That's a commitment all judges make when they take a judicial oath.
GRAHAM: Knowing this will not this line of inquiry but, at least, trying to put my stamp on what I think we've found from this long discussion, basically, the Supreme Court decided in Section 2 that the intent test was constitutionally sound. Is that correct?
ROBERTS: That was its determination in Mobile against...
GRAHAM: And Senator Kennedy disagreed because he wanted a different test. And I respect him. He is one of the great -- first, he's not part of the Reagan revolution. I think we all can agree with that. So I don't expect him to buy into it.
But I respect him greatly for his passion about his causes. He took it upon himself to try to change a Supreme Court ruling, to go away from the intent test to the effects test, and he was able to reach a political compromise with the administration.
And I just want that to be part of the record; that to say that Ronald Reagan or Judge Roberts, by embracing a concept approved by the court, equates to that administration or this person being incensed at people of color in this country I think is very unfair and off base.
You said something yesterday that was very compelling to me. I asked you, could you express or articulate what you thought might be one of the big threats to the rule of law. And I believe you said, Judges overstepping their boundaries, getting into the land of making the law, putting their social stamp on a cause, rather than interpreting the law, because that could over time, in the eyes of the public, undermine the confidence in the court."
Is that a correct summary?
ROBERTS: Yes, Senator.
GRAHAM: Well, we have before us today, Judge Roberts, a legal opinion just issued, hot off the presses, that says the establishment clause of the Constitution apparently is violated if an American recites the Pledge of Allegiance.
You will be on the court, I hope, and you will use your best judgment on how to reconcile the 9th Circuit opinion. And I'm not asking you to tell us how you might rule, I'm making a personal observation that this is an example, in my opinion, of where judges do not protect us from having the government impose religion upon us, but declare war on all things religious.
And that is my personal view and opinion. That's why most Americans sometimes are dumbfounded about what's going on in the name of religion. No American wants the government to tell them how to worship, where to worship or if to worship. But when we exercise our right to worship, it bothers me greatly that judges, who are unelected, confused the concept between establishment and free exercise.
And I will move on.
I think it is one of the cases that is undermining the confidence in the judiciary. And I'm glad that you're sensitive to that.
The war on terror. In my past legal life, I've spent most of my legal career associated with the military. And I'm proud to be a military lawyer. I'm the only Reservist in the Senate. I sit as an Air Force Court of Criminal Appeals judge. I handle the easy cases, because I don't have a whole lot of time and I help where I can.
But I understand, I think, very well what it means to abide by the judicial canons of ethics -- not to tip your hand, not to compromise yourself to get promoted or to get put on the court; promoted in the military or to get put on the board; trying to please your boss, trying to please a senator.
And my respect for you has gone up because you're unwilling to compromise your ethics. And I hope the Senate will understand that, in the past, other people were not required to do so.
Are you familiar with the Geneva Convention?
ROBERTS: Yes, Senator.
GRAHAM: Do you believe that the Geneva Convention, as a body of law, that it has been good for America to be part of that convention?
ROBERTS: I do, yes.
ROBERTS: Well, my understanding in general is it's an effort to bring civilized standards to conduct of war -- a generally uncivilized enterprise throughout history; an effort to bring some protection and regularity to prisoners of war in particular.
And I think that's a very important international effort.
GRAHAM: As Senator Kyl said, this will be the only time we get to talk. And I don't want to compromise your role as a judge, but I do want you to help me express some concepts here that America needs to be more understanding of.
And I want to work with my Democratic friends to see if we can find some way to deal with us.
We're dealing with an enemy that is not covered by the Geneva Convention. Al Qaida, by their very structure and nature, are not signatories to the Geneva Convention and are not covered under its dictates.
An enemy combatant: Are you familiar with that term in the law?
ROBERTS: Yes, Senator, I am.
GRAHAM: What would an enemy combatant be under American jurisprudence? Who would they be?
ROBERTS: Well, I really have...
GRAHAM: Fair enough. Fair enough.
ROBERTS: Those cases are both pending. The ones that I've decided are pending before the Supreme Court and those issues are likely to come before...
GRAHAM: Fair enough. The Geneva Convention doesn't cover Al Qaida, but or president has said that anyone in our charge, terrorist or not, will be treated humanely.
I applaud the president, because, in fighting the war on terror, we need not become our enemy. Our strength as a nation is believing in the rule of law, even for the worst of those that we may encounter.
I admire Mr. Adams for representing the Redcoats. I cannot imagine how tough that must have been. But his willingness to take on the unpopular cause in the name of the rule of law has made it stronger.
When the president said that we will treat everyone humanely, even the worst of the worst, I think he's brought out the best in who we are.
But we're in a war, Judge Roberts, where the Geneva Convention doesn't apply. And we have before the courts a line of cases dealing with the dilemma this country faces.
When you capture an enemy combatant, non-citizen, foreign terrorist, there's three things I think we must do. We must aggressively interrogate them without changing who we are. We must have the ability to keep them off the battlefield for a long period of time to protect our nation.
GRAHAM: And we must have a system to hold them accountable for some of the most horrible crimes imaginable.
Justice Jackson was of your favorite justices. Is that correct?
ROBERTS: I think that's a fair description, yes.
GRAHAM: He has indicated in the Youngstown case that the presidency of the executive branch is at its strongest when it has concurrence with the legislative branch. Is that a fair summary of what he said?
ROBERTS: Yes. He divided up the area basically into three parts. Considering the executive's authority, he said when it has the support of Congress it's at its greatest, and, obviously, when it's in opposition to Congress it's at its lowest ebb, as he put it. And he described a middle area in which it was sometimes difficult to tell whether Congress was supporting the action or not.
GRAHAM: This is me speaking, not you.
Congress is AWOL, ladies and gentlemen, in the war on terror when it comes to detention, interrogation and prosecution of enemy noncitizen combatants.
Justice Scalia has written eloquently that Congress has the power to get involved in these issues and Congress is silent.
What is the case, is it the Rasul case, where the Supreme Court in a 5-4 decision has given habeas corpus rights to noncitizen foreign terrorists?
ROBERTS: I think that's correct, Senator.
GRAHAM: That is an amazing departure from what we've been as a nation for 200 years. I have been to Guantanamo Bay twice. The people running the prison tell me that 185 of detainees have lawyers in federal court. Justice Scalia says we've set up a situation where 94 different jurisdictions can hear habeas cases involving noncitizen foreign terrorists. The people running the jail say this process is undermining out ability to get good information.
A habeas corpus petition, would it allow a defense attorney to call a military commander in to answer for how this person was captured?
ROBERTS: I don't know, Senator, and I hesitate to opine on that without knowing.
GRAHAM: Well, the truth is that we've set up a situation where our military leaders and our military commanders and soldiers in the field can be called from all over the world, all over the country, to answer for why such person is detained.
We had a conversation in our office, my office. You said something to the effect, as Justice Scalia said in his dissenting opinion, that this would be an area where the courts would welcome some congressional involvement.
And right now, we have the executive branch carrying the load totally by themselves. We've got several cases before the court dealing with detention policy, interrogation policy and prosecution policy. Do you believe that this is an area, if the Congress acted, as Justice Jackson said, that it would strengthen the hand of the executive in a legal situation?
ROBERTS: My observation during our meeting, Senator, was not an expression of legal determination. And it doesn't necessarily mean a view that Congress' action or involvement would be determinative or would even be within the scope of legal authority, depending on what the issue and the arguments were.
I do know that when you are in the middle area, where it's difficult to determine whether Congress is supporting the president's action or is opposed to the president's action, that the court often has to try to read the tea leaves of related legislation.
If you look at the Dames and Moore decision coming out of the Iranian hostage crisis, what the court did in that case, applying the middle tier, was look at a vast array of legislation. And it was a very difficult enterprise to try to figure out what Congress' view was.
My point was simply that if we'd know what Congress' view was, it might make it easier to apply it in a particular case, and you wouldn't have to go through that process of trying to determine what position Congress was in, if that turned out to be pertinent under the particular legal challenge.
GRAHAM: Thank you.
Justice Scalia said in a very direct way, "The courts are ill- equipped to deal with these issues."
In the Youngstown Steel case, Justice Jackson says, "When the president acts pursuant to an express or implied authorization of Congress, his authority is at the maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate.
"A seizure executed by the president pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who may attack."
GRAHAM: Do you agree with that?
ROBERTS: That was read from the Jackson -- I do. I agree with the basic proposition that the president's authority is at its greatest when he has the support of Congress.
GRAHAM: To my colleagues, I think it is imperative for this body to get involved in the war on terror when it comes to detaining, interrogating and prosecuting enemy combatants who are not citizens.
It is important that all three branches of government, in my opinion, feel comfortable with the policies of this nation, that we'll be stronger if the judicial branch, the legislative branch and the executive branch are working together to come up with policies that will allow for aggressive interrogation, appropriate detention and serious prosecution in a way that's within the values of our nation.
So that is why I will be introducing legislation on all those topics. And I will not ask you any further what you may or may not do about the legislation if it ever gets to the floor of the Senate and passed.
The Kelo case. Of all the things that have been decided, and I haven't been to my office since the recent case about the pledge -- though it may have trumped it -- I have gotten more phone calls about the Kelo case than anything the Supreme Court has done lately.
And for those who may be tuning in, the Kelo case basically said that the government can take your property, give it to someone else, another private person because it could be used at a higher and best use and it may generate more taxes.
I'm not going to ask you to tell me how you decide the Kelo case. But I just want you to know -- as Senator Kyl indicated, this is the only time you can hear from us -- that my phone is ringing off the hook and that every legislature that I know of is going into session as quickly as they can to correct that.
So I want to leave with you -- and when you meet your new colleagues, please let them know that some of the things they do that we watch. And that the courts are able to do their job because the public defers to the court and respects the court, but there is a limit.
GRAHAM: The office of chief justice of the United States is different, as you're the first among equals.
What do you believe as chief justice you can bring to the table that you could not as just a normal member of the court?
ROBERTS: Well, if I am confirmed, I think one of the things that the chief justice should have as a top priority is to try to bring about a greater degree of coherence and consensus in the opinions of the court.
I know that has been -- was a priority of the last chief justice. I actually believe that is something that should be a matter of concern for all of the justices, but as the chief, with responsibility for assigning opinions, I think he has greater scope for authority to exercise in that area and perhaps over time can develop greater persuasive authority to make the point.
And again, coming from the chief it may be a point that other justices would receive -- be more receptive to than they might coming from one of their colleagues; that we're not benefited by having six different opinions in a case; that we do need to take a step and think whether or not we really do feel strongly about a point in which a justice is writing a separate concurrence which only he or she is joining, or whether the majority opinion could be revised in a way that wouldn't affect anyone's commitment to the judicial oath to decide the cases as they see fit, but would allow more justices to join the majority so the court speaks as a court.
That is something that the priority should be, to speak as a court.
GRAHAM: So your goal as chief justice is where you can, and as often as you can, define consensus and unite the court, is that true?
ROBERTS: I think the court should be as united behind an opinion of the court as it possibly can.
ROBERTS: Now, obviously, in many cases it's not going to be possible.
GRAHAM: I applaud you because we're a divided nation, and the more united we can become at any level of government, the stronger we'll be. So I applaud you for that attitude.
SPECTER: Thank you very much, Senator Graham.
SCHUMER: Thank you, Mr. Chairman.
And, Judge Roberts, it's nice to talk to you so early in the day.
Yesterday, you stated that you, quote, "agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that," unquote. And you noted that the court's later decisions have based the constitutional right to privacy on the liberty component of the due process clause of the 14th Amendment.
Now, Justice Thomas, at his confirmation hearing, answered in a way very similar to the way you did. During his confirmation hearing, here's what he said, quote: "I believe the approach that Justice Harlan took in Griswold in determining the -- or assessing -- the right to privacy was an appropriate way to go," unquote.
Now, we all know that Justice Harlan's approach located the right to privacy in the liberty interests of the due process clause of the 14th Amendment.
And Justice Thomas also said at his confirmation hearings, along the same lines, that he agreed with the court decision in Eisenstadt v. Baird, where the court held that single people have the same right to privacy as married people on the issue of procreation.
However, since he's been confirmed to the court, Justice Thomas has not applied the right to privacy to keep protections -- for instance, in Lawrence, in 2003, he declared that there is no general right to privacy in the Constitution.
Now, yesterday you said that, quote, "Liberty is not limited to freedom from physical restraint."
SCHUMER: It does cover areas, as you said, such as privacy. It's not only protected in procedural terms, but protected substantively as well.
You said that you agreed that, quote, "There's a right to privacy to be found in the liberty clause of the Fourteenth Amendment."
So that seems directly to contradict Justice Thomas' view, once he got on the court, as I outlined, in Lawrence.
I assume that you disagree with Justice Thomas's view that there is no general right to privacy, as he stated in Lawrence.
ROBERTS: Well, I think that question depends, obviously, on the modifier and what you mean by general.
I noted in going over the nomination hearings of Justice Breyer, he also said that the privacy interest is protected as part of the liberty protected by the due process clause. I think that is the general approach.
SCHUMER: Let's talk about Justice Thomas. He said there is no general right of privacy. You seemed to say yesterday -- you didn't seem to say; you said, that there was a right to privacy.
Let's forget that Justice Thomas said it. You would disagree that there is no general right to privacy in the Constitution.
ROBERTS: I wouldn't use the phrase "general," because I don't know what that means. I don't know if by saying general they're trying to describe the particular scope to the right to privacy or not.
I think there is a right to privacy protected as part of the liberty guarantee in the due process clause.
SCHUMER: A substantive right to privacy?
ROBERTS: It's protected substantively, yes.
SCHUMER: Your reading of Justice Thomas' case in Lawrence, that he does not believe in that?
ROBERTS: No. I think his statement obviously focused on general. And his conclusion in that case was that the right to privacy protected under the due process clause that you noted he acknowledged at his hearings did not extend to include the activity at issue in Lawrence.
SCHUMER: This is obviously very important, because Justice Thomas seemed to be more full in his view of privacy at his confirmation hearing than later, when he was on the court, at least if you read his decisions.
And you are not willing to say that your view is different than the view Justice Thomas stated in Lawrence.
ROBERTS: I'm not willing to state a particular view on the Lawrence decision. And that's consistent with the approach that I've taken...
SCHUMER: Let me ask you a broader question. Do you disagree with Justice Thomas' interpretation of the right to privacy in any decided case?
ROBERTS: Senator, I'm not going to comment on whether I think particular cases were correctly decided or not, in areas...
SCHUMER: I didn't ask that.
ROBERTS: Well, I don't know which cases you're talking about.
SCHUMER: Any -- any one you want.
ROBERTS: Well, that would be commenting on whether that decision was correctly decided or not. If I'm agreeing or disagreeing with one of the justice's views in that case, that would be commenting on whether that view was correct or not. If it was in a dissent, it would be disagreeing.
ROBERTS: If it was in the majority, it would be agreeing. And because those are in areas that could come before the court, like every other nominee to come before this committee who's on the court today, I think it's inappropriate to comment on the correctness or incorrectness of those decisions in areas that could come before the court.
SCHUMER: So, you're not -- you don't have to answer this. It's obvious you will not state where you disagree with Justice Thomas, and it could well be that what he said at his hearing and you said at your hearing might lead to -- might -- lead you to rule in the same way on privacy.
ROBERTS: Well, again, my view on privacy -- as I've expressed, but there is a right to privacy, protected as part of the liberty under the due process clause.
SCHUMER: Would you say there's a general right to privacy?
ROBERTS: I don't know what general means.
SCHUMER: Substantive right to privacy.
ROBERTS: Well, substantive, yes. I have said that, that the protection extends to substantive protection. But when you say general, I don't know what that means. I don't know if that means...
SCHUMER: Excuse me. Didn't Justice Thomas disagree with the substantive right to privacy in Lawrence?
ROBERTS: His conclusion was that the liberty protected by the due process clause did not extend to that right, yes.
SCHUMER: Thank you. So, it would seem to me you disagree with him. I think you said it without saying it.
ROBERTS: No, Senator, you're asking me whether the right to privacy protected under the liberty clause extends to a particular right, the right at issue in Lawrence.
SCHUMER: I think what I'm asking you: Is there a substantive right to privacy? I don't apply it to a particular case.
ROBERTS: I have said there is a substantive right to privacy.
SCHUMER: And in Lawrence, Justice Thomas seemed to say there is no substantive right to privacy.
ROBERTS: No, as I understand it -- again, his testimony as a nominee was that there was. What he said was -- the quote you read in Lawrence --said there's no general right to privacy. Now, I don't know...
SCHUMER: His holding was that there was no substantive right to privacy under the liberty clause. Wasn't it? Wasn't that the whole thrust of his argument?
ROBERTS: No, I think, Senator, that his conclusion in Lawrence was that whatever right there was, it did not extend to the activity that was at issue in Lawrence.
SCHUMER: Bottom line is: You're unwilling to differentiate yourself from Justice Thomas's view on Lawrence.
ROBERTS: Well, it's consistent with the approach I've taken that I don't think it's appropriate to protect -- necessary to protect the independence and integrity of the court, to comment on whether that decision was correctly decided or not. And that is consistent with the approach that every member of the court...
SCHUMER: Yes, I just didn't ask you that. I asked if you disagreed with his particular holding.
SCHUMER: But let me ask you a few other questions here because I think you're cutting back a little on what you said yesterday, at least, if you look at the whole picture here and your unwillingness to disagree with Justice Thomas.
But let me ask you this about judges in general. You sit on a court, correct?
SCHUMER: OK. And sometimes you dissent. And that's routine, not just for you but for every judge.
ROBERTS: It's rare on our court, I'm happy to say.
SCHUMER: Yes, it is. It is. That is true. I've noticed that. But it happens in courts all the time.
OK. And in doing so, the dissenting judge is criticizing the majority opinion, right? Disagreeing with it? And I take it this happens on the Supreme Court quite often? And, in fact, there aren't that many unanimous Supreme Court cases on major cases these days.
ROBERTS: Actually, one point that statistics always show that more cases were unanimous than anything else.
SCHUMER: But there are a lot of dissenting...
ROBERTS: There are a lot.
SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?
Let's go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?
SCHUMER: In speeches, law review articles, it's a healthy process, wouldn't you say?
ROBERTS: I agree with that. Yes.
SCHUMER: And you did this occasionally when you were in private practice?
SCHUMER: OK. Nothing unseemingly about that?
SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That's what they do for a living.
And that's part of being a good lawyer.
And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?
ROBERTS: On occasion, yes.
SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, "Roe was wrongly decided and should be overturned," unquote. Right?
SCHUMER: OK. But in this hearing room, you don't want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary.
You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you've done it until very recently. You could probably do it before you just walked into this hearing room.
And if you're confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room -- when it is more important than at any other time that the American people, and we the senators, understand your views.
Why this room should be some kind of a cone of silence is beyond me. The door outside this room doesn't say, "check your views at the door."
So your failure to answer questions is confounding me. You've done it in instance after instance after instance after instance.
What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day?
In each case, they have to state their opinion. They have to do it as part of their job, if you will -- writing a brief, rendering an opinion, writing an article.
In each case, they're stating their views, which might bias them. You've done it.
Yet, only here you can't state your views. If the argument -- and, by the way, there's a very god countervailing reason that you should state your views, because, as the founding fathers so constructed, this is the one time you go before an elected body before a lifetime appointment.
SCHUMER: And it seems to me this is something of an argument of convenience. Senator Specter said it well. He said you'll answer as many questions as you have to to get confirmed. That may be the actual fact, but it's not the right thing to do, in my judgment.
And so, please tell us why is the bias, why is the fact that you have already stated an opinion, any different when you sit in this room in terms of jeopardizing your future as a judge than it is when you're doing all these other things that you've done?
And let me just remind you -- going to give you a chance the answer this -- but I think it's bothering a lot of people, in this room and out of this room.
Justice Ginsburg, people who have sat in your very chair, just about every single justice, with one or two exceptions, has given their opinions of existing cases. Justice Ginsburg said on Roe v. Wade, "My view is that if Roe had been less sweeping people would have accepted it more readily." Do you think she was unable to keep an open mind in cases implicating Roe? Do you? Do you think she was unable to keep an open mind? Just answer me about her, not about what...
ROBERTS: Senator, I'll explain why she expressed her views on that particular issue. It was an explanation that she gave at the time, that she had written extensively on that subject, and she thought that her writings were fair game for discussion. She took a different view...
SCHUMER: But she -- excuse me, because I want to -- she would be expressing an opinion, which might yield bias, whether she wrote before or not. She did it over and over again. She praised Learned Hand's First Amendment decision in :Masses" publication. I don't think she was biased to keep her mind open on courts in that line. As Joe Biden said, in Moore v. City of Cleveland, she candidly -- and I don't think she had writings on that one -- she expressed the opinion has difficulties.
And other justices have done it: Justice Breyer talked about U.S. v. Booker; Justice Powell about Miranda; Justice Souter about Miranda. Didn't bias him in the Dickerson case. Not all have these people had previously written.
You can make a distinction to every single example I give. You can say, well, she wrote on that one.
SCHUMER: But when you add it all up, you are being less forthcoming. I know you're doing what you feel is right. But you're being less forthcoming with this committee than just about any other person who has come before us. You are so bright and you know so much, but there's another aspect to this, which is letting us know what you think.
And you've set up your own little construct. It's not really the Ginsburg precedent, or it isn't Canon 5, which you cited repeatedly at your Court of Appeals hearing.
And so let me ask you this one question and then you can answer it in general: Has there been any judge that you're aware of who has had to recuse himself or herself because of what they said at a confirmation hearing?
Can you name for me a judge who you think was biased or not able to render justice because they gave their opinion at a confirmation hearing, sitting at this table as you do?
ROBERTS: I think because the justices have followed the approach that I am following -- and as I said, I've gone back and read every one of the transcripts for the justices -- they have avoided commenting on whether they think decisions were correctly decided or not.
If you look at what Justice Ginsburg said when she was asked whether she thought the Maher and Harris cases were correctly decided, you will see she said, "I'm not going to comment on that." She said, "I know what the precedents are, I have no agenda to overrule them, and that's all I'm going to say."
SCHUMER: She commented on many other cases, as you went through with Senator Biden yesterday, and as we've gone through a little bit here. She commented on many different cases, didn't she?
ROBERTS: My understanding...
SCHUMER: There were reasons, but she did comment on other cases, didn't she?
ROBERTS: My understanding of the cases she felt appropriate to comment on, as I said, were the ones where she had already written on it. And she said, "I think my writings are appropriate."
SCHUMER: There are no cases she commented on where she hadn't written?
ROBERTS: I thought she adhered to her view.
Her view was "no hints, no forecasts, no previews." That's exactly what she said. That's an exact quote from her hearing transcript.
SCHUMER: I have to say, sir, I disagree with you.
I've looked at her testimony. She didn't comment on some cases and commented on others.
SCHUMER: If you look at how many she commented on and how many she didn't, it's a far different balance than you, who have commented on Marbury, Brown, Griswold and not much else.
And each time, even when we talked yesterday about Wickard v. Filburn -- and it's a 1942 case, it's at the root of a large -- it's a trunk of a large tree of constitutional law, you were unwilling to comment.
And of course you say it might come before the court, but that's a prediction. Some may, some may not. Maybe a Brown case would come before the court. Maybe a Griswold case would come before the court.
And if you had wanted to, you could have easily said those may come before the court and not answer those. It's sort of your own little way of doing it.
I just have one more question here.
The president, as I said -- and this motivates some of us -- he said he wants to nominate judges in the mold of Thomas and Scalia.
I want to ask you: Are you in the mold of Thomas and Scalia? The president said he wanted to nominate people that way.
ROBERTS: Well, Senator, I'll give the same answer I gave yesterday to Senator Graham when he asked if I would be in the mold of the chief justice.
ROBERTS: And the answer is: I will be my own man on the Supreme Court, period.
SCHUMER: I appreciate that.
Do you think they are activist judges?
ROBERTS: I'm not going to criticize them with respect to any general description of that sort.
I'm sure there are cases where I would agree with them and there are cases where I would disagree with them, as with all of the justices.
Now -- by the way, I'll note, I don't think I have time here, but you did criticize in a memo back when you were working in Attorney General Fred Fielding's office, Brennan and Marshall as activist judges.
Now, I don't think that was the official position of the Reagan administration, so it seemed to be your opinion.
Can you tell me in 30 seconds, so I can just ask one more question: How is it different not to want to characterize Justices Thomas and Scalia, but it was OK to characterize Justices Marshall and Brennan?
ROBERTS: Well, that was -- it was a reflection of the views of the attorney general at the time. And that was part of the...
SCHUMER: But it wasn't official Reagan policy?
ROBERTS: I don't think it was official policy. It was an expression that the attorney general had made on various occasions.
SCHUMER: Let me just say, sir, in all due respect -- and I respect your intelligence and your career and your family -- this process is getting a little more absurd the further we move.
You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers.
It's as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, "I like movies with good acting. I like movies with good directing. I like movies with good cinematography."
And I ask you, "No, give me an example of a good movie." You don't name one. I say, "Give me an example of a bad movie."
SCHUMER: You won't name one. Then I ask you if you like "Casablanca," and you respond by saying, "Lots of people like 'Casablanca.'"
You tell me it's widely settled that "Casablanca" is one of the great movies.
SPECTER: Senator Schumer, now that your time is over, are you asking him a question?
I am saying, sir -- I am making a plea here. I hope we're going to continue this for a while, that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.
SPECTER: We will now take a 15-minute break, reconvene at 4:25.
ROBERTS: Mr. Chairman, could I address some of the...
SPECTER: Oh, absolutely. Absolutely.
I didn't hear any question, Judge Roberts...
ROBERTS: Well, there were several along the way.
LEAHY: ... want to break anyway. You go right ahead.
ROBERTS: I'll be very succinct.
SPECTER: You are privileged to comment.
This is coming out of his next round, if there is one.
SCHUMER: I guess there'll be.
ROBERTS: First, "Dr. Zhivago" and "North by Northwest."
SCHUMER: Now, how about on the more important subject of what...
SPECTER: Let him finish his answer. You're out of time.
SCHUMER: Not out of movies.
ROBERTS: The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences.
The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion.
And in my experience, every one of those stages can cause you to change your view.
The view you ask then of me, "Well, what do you think, is it correct or not?" or "How would you come out?" That's not a result of that process. And that's why I shouldn't respond to those types of questions.
Now, the professor, how is that different? That professor is not sitting here as a nominee before the court. And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is turning this into a bargaining process.
It is not a process under which senators get to say, "I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you."
That's not a bargaining process.
Judges are not politicians. They cannot promise to do certain things in exchange for votes.
And if you go back and look at the transcripts, Senator, I would just respectfully disagree. I think I have been more forthcoming than any of the other nominees. Other nominees have not been willing to tell you whether they thought Marbury v. Madison was correctly decided. They took a very strict approach.
I have taken what I think is a more pragmatic approach and said, if I don't think that's likely to come before the court, I will comment on it.
ROBERTS: And, again, perhaps that's subject to criticism, because it is difficult to draw the line sometimes. But I wanted to be able to share as much as I can with the committee in response to the concerns you and others have expressed, and so I have adopted that approach.
SPECTER: 4:25 -- we're anxious to move ahead to try to conclude your testimony, Judge Roberts, as early as we can. I know you'll agree with that.
ROBERTS: Thank you, Mr. Chairman.
Thank you for the accommodation.
SPECTER: The hearing will continue.
We found out as soon as we had completed the recess that a vote had been called, and the senators have been over voting, which accounts for the slight hiatus here. But we're now going to proceed. And it's the turn of Senator Cornyn for a 20-minute round.
LEAHY: And I'm sure, Mr. Chairman, the judge just missed us terribly, couldn't wait for us all to get back here.
ROBERTS: Glad we're back.
SPECTER: He may have missed us under the theory that the sooner we start, the sooner we end.
But that principle may not apply here. Stare decisis would suggest that it does not.