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Press Release

    Judge Roberts Confirmation Hearing, 2003

    07/26/2005

    S. HRG. 108–135, PT. 3
    CONFIRMATION HEARINGS ON FEDERAL
    APPOINTMENTS
    HEARINGS
    BEFORE THE
    COMMITTEE ON THE JUDICIARY
    UNITED STATES SENATE
    ONE HUNDRED EIGHTH CONGRESS
    FIRST SESSION
    APRIL 30, MAY 7, MAY 22, JUNE 25, AND JULY 9, 2003
    Serial No. J–108–1
    PART 3
    Printed for the use of the Committee on the Judiciary

    I think we have a real opportunity to bring this perplexing matter
    to conclusion, to be a benefit to the victims, be a benefit to the companies,
    a benefit to the American economy, and I think that the
    court systems will probably breathe a huge sigh of relief if we are
    able to do that.

    Chairman HATCH. Well, thank you, Senator.

    Mr. Roberts, if you will stand and be sworn? Do you solemnly
    swear to tell the truth, the whole truth, and nothing but the truth,
    so help you God?

    Mr. ROBERTS. I do.

    Chairman HATCH. Thank you. Mr. Roberts, we welcome you
    again to the Committee. We are honored to have you back, and do
    you have any statement you would care to make?

    STATEMENT OF JOHN G. ROBERTS, JR., NOMINEE TO BE
    CIRCUIT JUDGE FOR THE DISTRICT OF COLUMBIA CIRCUIT

    Mr. ROBERTS. No, Mr. Chairman, other than to introduce my
    parents, Jack and Rosemary Roberts; my sister, Peggy; and my
    wife, Jane.

    Chairman HATCH. Please stand up. We are really happy to welcome
    you all here once again. Okay.

    Chairman HATCH. Then we will just start with questions, if it all
    right with you. Senator Leahy, I will turn to you.

    Senator LEAHY. Well, thank you.

    Mr. Roberts, over the last decade, the Supreme Court has issued
    a series of 5–4 decisions. These struck down legislation on federalism
    grounds. And some see this as a federalism crusade and a
    very activist Court. It has included—those who have seen laws to
    protect them struck down have included people with disabilities,
    older workers, children in gun-infested schools, intellectual property
    owners, and victims of violence motivated by gender. I am
    talking about such cases as Alden v. Maine, Florida Prepaid, Garrison,
    Morrison, Lopez, Kimmel. You are familiar with all those, I
    know. You have commented publicly on some of these decisions
    that have overruled Congressional enactments as unconstitutional.

    My questions are these: Do you believe that they represent a departure
    or a continuing trend? And what has contributed to this
    dramatic shift, mostly in the past decade, in the Supreme Court’s
    interpretations of the powers of Congress?

    Mr. ROBERTS. Well, I think the first of the series of those cases,
    to limit myself to the State sovereign immunity cases, the Seminole
    Tribe case, the question whether it was a departure or a continuation
    was one of the issues that the Court addressed at some
    length, both the majority and the dissent. There was a particular
    prior precedent that seemed to have addressed the question of
    whether Congress under the Commerce Clause could override State
    sovereign immunity, and the majority explained why they didn’t
    read the case that way; and if it was going to be read that way,
    it would be no longer controlling. And the dissent, of course, joined
    issue on that.

    So the Court has addressed in that first case the question of
    whether it was a departure or a continuation, and I think recognized
    that, at least to some extent, to the extent they were moving
    away from that prior arguable precedent that the majority and the
    dissent read differently, it certainly can be regarded as a departure.
    The cases since then have addressed different refinements on
    that issue, and that certainly is a continuation of the lead Seminole
    Tribe case. These cases construe the 11th Amendment, and this is
    not the first time in our history that the 11th Amendment has been
    a cause of some division. When the Supreme Court early in its existence
    decided Chisholm v. Georgia and held that a citizen of another
    State could sue the State of Georgia, that prompted a reaction
    in the country that led to the 11th Amendment. And then I
    think perhaps the key departure, if you will, came in the case of
    Hans v. Louisiana, where the Court held that although the 11th
    Amendment addressed only the issue of a citizen of another State
    suing a State, its reasoning, its principle applied when a citizen of
    the same State sued.

    Senator LEAHY. Mr. Roberts, I hesitate to interrupt but—and I
    appreciate the history and I don’t disagree with that. But I am
    wondering why so many in the past few years. Do you see this as
    a basic shift? Do you see this as a reaction to Congress? Do you
    see this as a trend that is going to continue?

    Mr. ROBERTS. Well, I think there’s—so many in the last few
    years is because, given that Seminole Tribe was sort of the first of
    the decisions—again, this is the debate, whether it’s a departure or
    continuation. But it was the first of them, and the ones you’ve had
    following in the wake of it are kind of fleshing out that principle,
    the application of the 11th Amendment and the question whether
    it can be abrogated under the Commerce Clause, which was the
    issue in Seminole Tribe or some of the other principles.
    Others cases I think may well follow, which is in a reaction to
    the sovereign immunity decisions, because the Court has recognized
    there are ways for the Federal Government to—I don’t want
    to say get around the 11th Amendment, but address this issue
    without running afoul of it. Section 5 of the 14th Amendment—
    Senator LEAHY. It seems that some of the cases coming down in
    the last few years are finding less and less ways—again, we are
    even going to intellectual property cases and copyright.

    Mr. ROBERTS. Well, what you have—

    Senator LEAHY. It is almost as though copyright was something
    new even though it is in our Constitution.

    Mr. ROBERTS. Well, the patent and copyright clause, you know,
    in Seminole Tribe the issue was: Does the Commerce Clause allow
    the Federal Government to overrule it? Then you’re sort of going
    down each of the different provisions. Does the Intellectual Property
    Clause allow Congress to overrule it? And they’re addressing
    those.

    But the Court has—

    Senator LEAHY. Well, don’t Lopez and Morrison—would you
    agree with Judge Noonan’s contention that the ones most likely to
    overturn Congressional statutes are conservative judges?
    He uses, I believe, Morrison and Lopez as an example of that.

    Mr. ROBERTS. Well, I do not know that conservative or liberal
    justices are more likely to overturn laws. Certainly, in the Warren
    Court era, for example, I would suppose it would be the justices
    you would consider more liberal who were overturning laws.

    Senator LEAHY. So you do not agree with Judge Noonan, then.

    Mr. ROBERTS. I have not read his book. I know it is there.

    Senator LEAHY. I would recommend it to you. It is not a beach
    book, by any means, but it is one where when it came out, I got
    it and read it. And I am not one who has always agreed with Judge
    Noonan, but the book is well worthwhile.
    I do not, let me quickly add, Mr. Chairman, I do not get any percentage
    of the profits on the books, and I am not a noted author
    like you are, but I thought this was a—I also read his book.
    But what worries me on it, on this whole issue of federalism, it
    seems to me the Court is going more and more to saying they
    would superimpose their views, an unelected court, on the views of
    an elected representative form of Government, the Congress, in disability
    areas, and intellectual property and others, and I worry
    about that, and I worry about that trend.

    Now, I realize, on the court you are going on, of course you are
    restricted to stare decisis, but you know you are not going to have
    too many cases that fit on all fours, and there is a great deal of
    flexibility. It is very easy for somebody up for either a district or
    a circuit court judgeship to say, ‘‘Well, I have to follow the dictates
    of the next higher court.’’

    But usually when they get to the Circuit Court of Appeals for the
    District of Columbia, you do not have many cases that get all of
    the way up to you guys that they are on all fours, on something
    that the Supreme Court has ruled on. There is hardly any use for
    it.

    You mentioned, in your earlier hearing, that in certain situations
    the Constitution is very clear. Then, you said there are certain
    areas where literalism obviously does not work. If you are dealing
    with the Fourth Amendment, something on unreasonable search
    and seizure, the text is only going to get you so far, well, then what
    does guide you? Take the Commerce Clause, take the spending
    power, what does guide you? Obviously, the text is not enough by
    itself, but I agree with you on that. You cannot go by the literal
    words on a number of these things in a changing economic world,
    but what does guide you? What is your lodestone?

    Mr. ROBERTS. Well, certainly, as a circuit judge, of course, my
    lodestar would be the Supreme Court precedence, and they have
    volumes of them on how to interpret the Commerce Clause, fewer
    precedents on how to interpret the Spending Clause. I think there
    are going to be more important cases in that area in the future.
    But starting with McCullough v. Maryland, Chief Justice Marshall
    gave a very broad and expansive reading to the powers of the
    Federal Government and explained that—and I don’t remember the
    exact quote—but if the ends be legitimate, then any means chosen
    to achieve them are within the power of the Federal Government,
    and cases interpreting that, throughout the years, have come down.
    Certainly, by the time Lopez was decided, many of us had
    learned in law school that it was just sort of a formality to say that
    interstate commerce was affected and that cases weren’t going to
    be thrown out that way. Lopez certainly breathed new life into the
    Commerce Clause.

    I think it remains to be seen, in subsequent decisions, how rigorous
    a showing, and in many cases, it is just a showing. It’s not
    a question of an abstract fact, does this affect interstate commerce
    or not, but has this body, the Congress, demonstrated the impact
    on interstate commerce that drove them to legislate? That’s a very
    important factor. It wasn’t present in Lopez at all. I think the
    members of Congress had heard the same thing I had heard in law
    school, that this is an important—and they hadn’t gone through
    the process of establishing a record in that case.

    Other cases are different. But, again, as a circuit judge—

    Senator LEAHY. We have got some cases, like the Disability Act,
    where we have had hundreds and hundreds of hearings around the
    country, thousands of pages of testimony, and the Court says, of
    course, we have not established a record. You sometimes think that
    there is picking and choosing.

    For example, in your NPR interview, you talked about an
    originalist approach to Constitution interpretation, but how do you
    do that? Does a judge pick and choose, based on his or her own
    predilections, whether they are going to use the context of the 18th
    century or the context of the 21st century? Obviously, there are
    some things that it would be impossible, although Justice Scalia
    said that the Constitution means today what it meant when it was
    written, and he even uses an 18th century dictionary to understand
    what the 1789 words meant.

    Do you believe judges pick and choose? I mean, how do you do
    a literal interpretation?

    Mr. ROBERTS. Well, we talked about this some at the first hearing.
    Again, the Supreme Court has given some guidance on particular
    areas and said that when you’re interpreting this particular
    provision, this is the kind of approach you should use. The example
    I like to give is the Seventh Amendment. The Court has said: We
    take a very historical approach to deciding whether you have a
    right to a jury trial because of the way the Seventh Amendment
    is worded.

    So even if I decided I am going to be a textualist or an originalist
    or whatever, I do not have the flexibility, when I get to a Seventh
    Amendment case. The approach, not just the particular results, but
    the approach is laid out as well there.

    Now, when you get to the Eleventh Amendment, the one thing
    we know from the Supreme Court’s decision is that strict adherence
    to a text doesn’t give you what the Supreme Court says are
    the right answers. You have to look at the historical context a little
    more, and it varies with provisions, as we’ve said. There’s a provision
    in the Constitution that says a two-thirds vote of the Senate
    is required. Well, even if you think provisions should be interpreted
    in light of evolving standards, that doesn’t mean two-thirds can become
    three-fifths.

    Unreasonable searches and seizures, that’s a little more difficult
    to say just based on the text I know what’s unreasonable and
    what’s not. You have to look beyond the text in interpreting that.
    Senator LEAHY. Thank you. I will have further questions. I will
    submit some for the record, and I know that the distinguished
    Chairman intends to have a Committee vote next week, and I
    would urge you to get answers back in time so that we can have
    a chance to review them in case there are follow-ups.

    Mr. ROBERTS. Thank you, Senator.

    Senator LEAHY. It is good to see you again.

    Mr. ROBERTS. Thank you.

    Chairman HATCH. Thank you, Senator.
    We will turn to Senator Kennedy. Senator Kennedy?

    Senator KENNEDY. Thank you, Mr. Chairman.
    Welcome back.

    Mr. ROBERTS. Senator Kennedy, thank you.

    STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR
    FROM THE STATE OF MASSACHUSETTS

    Senator KENNEDY. We welcome the nominee back to the Committee
    to continue the hearing which began 3 months ago.
    The advice and consent function assigned to us by the Framers
    of the Constitution is vital to the proper functioning of our Government.
    It was a major feature of the structure of the Framer’s design,
    not only for themselves, but for all future generations, and we
    do not sit here today merely to express our individual preferences
    about particular judges or even to express the preference of our
    constituents. We act today as inheritors of a great tradition and a
    great responsibility to balance the powers of the Executive Branch
    in selecting the members of the Judicial Branch.

    We were given the advice and consent power over judicial appointments
    so that the two elected branches—the Executive and
    the Legislative—would share coordinate and co-equal responsibility
    for the third branch, the undemocratic branch, in which the judges
    are insulated from us, and from the President and from the electorate
    by lifetime appointments.

    But the Framers gave us insulation, too, so that we could exercise
    our functions, including the advice and consent function, fearlessly
    and freely, even when required to consider the actions of a
    popular President. We were given 6-year terms, longer the House,
    longer the President. We were given staggered terms so no more
    than a third of us would be elected at one time, and we were given
    the authority to set our own rules for the way we exercise our responsibilities,
    including advice and consent.

    We had the constitutional obligation to assure the Judicial
    Branch remains free and independent, is not a political tool of the
    Executive, that its obligation is to the constitutional principles, constitutional
    rights which lie at the heart of our democracy. Our role
    is positive and proactive, not passive and reactive, regardless of
    whether the President shares our political or philosophical views.
    And we, on the Judiciary Committee, have a unique role which
    we cannot fulfill unless we have ample opportunity in Committee
    to question the nominee and to discuss in detail how we think the
    advice and consent power should be exercised with respect to each
    nominee, and that process resumes today with respect to Mr. Roberts.
    His nomination is a special one because he has been nominated
    for a special court. The D.C. Circuit makes the decision with national
    impact on the lives of all of the American people.
    Its decisions govern the scope and the effectiveness of our Occupational
    Health and Safety laws, o of our consumer protection laws,
    of Federal labor laws, of fair employment laws, including race, gender,
    disability and discrimination cases, of workers’ rights to organize,
    Clean Air Act rules, Freedom of Information rules, First
    Amendment rights in broadcast media and many other rights of individuals
    under the Constitution laws enacted by Congress, and so
    we must take special care with this and all other appointments to
    this court.

    No one has the right to be appointed to any Federal appellate
    court. The burden is on the President and the nominee to demonstrate
    that the nomination should have our consent. The less
    weight the President places on the Senate’s advice role, the more
    weight must be placed on our consent role. Because the District of
    Columbia has no Senators of its own, the usual prenomination consultation
    has not occurred, leaving an even heavier burden on the
    process that we conduct today. So let us approach it with the seriousness
    of purpose and deliberation it deserves.
    Mr. Roberts, you responded to questions, the written questions,
    for which I am grateful. I would like to pick up on some of these.
    You describe your judicial philosophy as insisting that judges
    confine themselves to adjudication of the cases before them and not
    legislate. You want judges to show an essential humility, grounded
    in the limited role of an undemocratic judiciary, reflected in deference
    to legislative policy judgments and judicial restraint, not
    shaping policy.

    Now, as you are well aware, in the recent years, we in Congress
    have made bipartisan legislative judgments about policy on issues
    vital to the public, based on extensive hearings and findings, yet
    we have had our policy discussion second-guessed by appellate
    judges.

    How would you describe the presumption of validity that should
    attach to our actions, and what do you think we can do to insulate
    ourselves from this second-guessing on policy issues by judges who
    do not adhere to the humility and deference standard you prescribe?
    And what in your writings, in your professional record, should
    demonstrate and reassure us that, as a judge, you would, in fact,
    act with the humility and deference to Congressional judgments
    which you claim is your philosophy?

    Mr. ROBERTS. Well, the Supreme Court has, throughout its history,
    on many occasions described the deference that is due to legislative
    judgments. Justice Holmes described assessing the constitutionality
    of an act of Congress as the gravest duty that the Supreme
    Court is called upon to perform.

    I’m familiar with those quotations because I’ve used them in
    briefs many times when I was in the Justice Department representing
    the United States and defending acts of Congress before
    the Supreme Court, and it’s a principle that is easily stated and
    needs to be observed in practice, as well as in theory.
    Now, the Court, of course, has the obligation, and has been recognized
    since Marbury v. Madison, to assess the constitutionality
    of acts of Congress, and when those acts are challenged, it is the
    obligation of the Court to say what the law is.

    The determination of when deference to legislative policy judgments
    goes too far and becomes abdication of the judicial responsibility,
    and when scrutiny of those judgments goes too far on the
    part of the judges and becomes what I think is properly called judicial
    activism, that is certainly the central dilemma of having an
    unelected, as you describe it correctly, undemocratic judiciary in a
    democratic republic. And certainly the most gifted commentators
    we’ve had have struggled with that.

    I think the doctrines of deference that have developed over the
    years, when you’re assessing a legislative classification and an area
    that doesn’t implicate a protected class like race or gender, disability,
    then all you have to show is a rational basis, and that
    shouldn’t be too hard.

    If you’re in one of those other areas, the Court has developed a
    stricter scrutiny because they think in those areas there is more
    reason to probe a lot more deeply. But you asked what in my work
    sort of shows that, I guess I would look to the job I did when I was
    deputy solicitor general and was defending acts of Congress before
    the Supreme Court.

    Senator KENNEDY. I am going to come back to the judicial deference
    in a minute. We had, in your exchanges with Senator Leahy
    about the power of the Congress, we have seen that the Supreme
    Court has limited the ability to legislate under the Commerce
    Clause, the Lopez case.

    And under Section 5 of the Fourteenth Amendment—that is the
    ADA case and the RFRA case—we had extensive hearings, listened
    to Republican and Democrat Attorneys General. There is no even
    suggestion at that time that we were not going to meet the constitutional
    requirement.

    For some of us, the last great authority is the spending power,
    and the concern that many of us have is where you are going to
    be on this issue, further limitation of the power of the Congress in
    using the spending power. The Supreme Court has ruled on this,
    as you well know, that in the Dole case involving Congress, could,
    under the Spending Clause, condition Federal highway funds on
    States, raise the minimum drinking age. Rehnquist authored the
    opinion. White, Marshall, Blackmun, Powell, Stevens, even Scalia,
    agreed with that.

    What is your own view about the authority in the Spending
    Clause and the power of Congress to use the Spending Clause to
    achieve its objectives? Is there anything, in terms of your own view,
    that would, in any way, find that that Spending Clause would be
    compromised to permit to—to undermine the Dole case?

    Mr. ROBERTS. Well, first of all, of course, if I were to be confirmed,
    my own personal views would not be relevant. I would follow
    the Supreme Court precedent. There is not a lot of precedent in this area.

    Senator KENNEDY. The only problem is we have seen the changes
    and the difference in the interpretation by the Court in the Commerce
    Clause and in Section 5 of the Fourteenth Amendment. I
    mean, I was the Chairman of the Committee when we had those,
    and we listened, and there was not going to be a problem on that.
    And, of course, there were decisions that were made that reinterpreted
    past history on it.

    I want to know whether we are taking a chance with you on the
    Spending Clause. That is the last real authority for us.

    Mr. ROBERTS. You discussed the Dole case, South Dakota v. Dole,
    and in that case, the justices you listed reaffirmed Congress’s
    power to say: If you’re going to accept Federal funds, here’s what
    you’ve got to do.

    Senator KENNEDY. You are not troubled by that?

    Mr. ROBERTS. No, it’s a basic principle, and I would just point
    out, as an aside, you listed the justices who agreed with that, the
    justices who disagreed and dissented in South Dakota v. Dole were
    Justices Brennan and O’Connor. It is not necessarily the sort of division,
    sort of the typical conservative/liberal lines at all.

    In South Dakota v. Dole, the Court referred to a prior precedent.
    I think it is the Stewart Machine case. And the argument has been
    made, well, aren’t—the issue that I think the Court will address
    is are there limits on that; is it if you accept one dime of Federal
    money you have to do all sorts of things, even if they’re not germane
    or proportional? Those are the two standards that had been
    developed in the prior cases. It wasn’t an issue in South Dakota v.
    Dole.

    If you didn’t lower the drinking age, you lost highway funds.
    There was certainly a relationship between underage drinking and
    highway accidents. So the Court ruled in that case that that was
    an appropriate proportional and germane response.
    I worked on a brief in that case with my—I was an associate at
    that time—

    Senator KENNEDY. You understand this is the law, and this
    would be the precedent that you would follow.

    Mr. ROBERTS. The South Dakota case.

    Senator KENNEDY. Yes, the Dole.

    Mr. ROBERTS. Yes.

    Senator KENNEDY. Let me move on, if I could. I do not mean to
    cut you off.
    You talked about the judicial activism. Would you agree that activism
    can come from both sides of the ideological spectrum?

    Mr. ROBERTS. Certainly.

    Senator KENNEDY. Could you give us some examples of any of
    the appellate cases you believe that show impermissible activism
    on each side.

    Mr. ROBERTS. Well, I cited in my written responses a case from
    California, an old case from the California Supreme Court, because
    I thought it was important to avoid criticizing binding Supreme
    Court precedent, in which the California Supreme Court—it was a
    Lochner era-type case—struck down, on substantive due process
    grounds, a California law that required employers to pay employees
    at certain intervals. Their reasoning was that employees are free
    to negotiate whatever agreements they want, and if they don’t negotiate
    that, you shouldn’t interfere with their liberty of contract.
    Several Supreme Court cases follow the same principle in what
    people loosely call the Lochner era. I think that’s an example of judicial
    activism. A policy judgment had been made by the State legislature
    in that case to address a real problem, the inequity in negotiating
    positions, the fact that employers were frequently not
    paying employees. I think there were a lot in the mining industry
    that were directly affected when wages were due, but many months
    later, and that was a policy judgment. I don’t think that was a constitutional
    evaluation.

    Senator KENNEDY. How about on the other side of the philosophical
    spectrum, do you see other examples? I mean, conservative/
    liberal, how would you find? Do you think there has been activism
    on both sides of the spectrum? And, if so, how would you define
    that?

    Mr. ROBERTS. Well, I do think there has been activism on both
    sides. I haven’t given any thought to a particular Supreme Court
    case that I thought exhibited liberal judicial activism. Again, I feel
    reluctant to criticize pending or binding—

    Senator KENNEDY. Well, I can understand that, but we are trying
    to give life to your words. You talk about your professed philosophy
    of deference and humility as real and not just words. That is what
    I am trying to see from your own kind of experience, in response
    to those questions, whether you had examples that would give light
    to those words.

    President Bush ran on a platform of selecting judges who will be
    like Justice Scalia and Justice Thomas. We all understand that
    meant judges who will be activists in reducing the power of Congress
    to protect people’s rights. You must understand, as everyone
    else does, that you were selected because those at the White House
    and the Justice Department knew your record and assured the
    President your decisions would please President Bush.
    What can you tell us which will reassure us that you will not
    necessarily follow the lead of Justice Scalia and Thomas?

    Mr. ROBERTS. Well, I will follow the lead of the Supreme Court
    majority in any precedents that are applicable there. And if Justices
    Scalia and Thomas are in dissent in those cases, I am not
    going to follow the dissent. I’m going to follow the majority.

    Senator KENNEDY. Are there any cases which you believe that either
    one of them showed insufficient deference to Congress and became
    judicial activists?

    Mr. ROBERTS. No, I haven’t gone through and looked for particular
    occasions. If they were majority opinions by either of those
    justices, I would not feel it appropriate for me to criticize those because
    I would have to apply that majority opinion, whether I agree
    with it or not.

    And I think it’s important for the Committee to understand I
    have been asked questions in some areas I think because people
    wonder whether I’m going to follow a particular precedent or because
    they’re concerned I might not, and in other areas the concern
    seems to be that I might, depending on whether a particular questioner
    is critical or supportive of those decisions.

    I am going to follow both the decisions I agree with and the decisions
    that I don’t agree with, regardless of any personal view.

    Senator KENNEDY. Well, as you understand, I am not trying to
    get the outcome of your judgment on a particular fact situation, but
    I have listened for 40 years nominees say that they are going to
    follow the precedent and interpret the law, and yet every single
    day on just about every single court, they come out in different directions.
    Some are in the majority and some are in the minority,
    and they have sat here and given similar kind of answers.

    And what I am trying to find out is what is behind those answers
    so that we can give some light to it. Because, as you understand,
    every single day people are applying what they understand is the
    law and applying what the President—and there is, in many, many
    instances, a wide difference. Certainly, there is even in the courts.
    So our ability for—you give words about, particularly on the authority
    and responsibility of Congress, you are talking you would
    be a nonjudicial activist, and we are trying to find out what these
    words mean in terms of your own kind of life experience, either by
    your writings, your statements or your opinions about this, and
    that I think we are entitled to find out.

    Mr. ROBERTS. I guess what I would point to, Senator—I’m obviously
    not a sitting judge. I don’t have decisions—but I do have a
    history of litigating cases, and when you talk about the ability to
    set aside personal views and apply precedent without regard to
    personal ideology or personal views, that’s something I’ve been able
    to do in my practice.

    My practice has not been ideological in any sense. My clients and
    their positions are liberal and conservative across the board. I have
    argued in favor of environmental restrictions and against takings
    claims. I’ve argued in favor of affirmative action. I’ve argued in
    favor of prisoners’ rights under the Eighth Amendment. I’ve argued
    in favor of antitrust enforcement.

    At the same time, I’ve represented defendants charged with antitrust
    cases. I’ve argued cases against affirmative action. And what
    I’ve been able to do in each of those cases is set aside any personal
    views and discharge the professional obligation of an advocate.
    And I would urge you to look at cases on both sides. Look at the
    brief, look at the argument where I was arguing the pro environmental
    position. Take a brief and an argument where I was arguing
    against environmental enforcement on behalf of a client. See if
    the professional skills applied, the zealous advocacy is any different
    in either of those cases. I would respectfully submit that you’ll find
    that it was not.

    Now, that’s not judging, I understand that, but it is the same
    skill, setting aside personal views, taking the precedents and applying
    them either as an advocate or as a judge.

    Senator KENNEDY. Well, now, I hear you on this. But, every day,
    responsible disagree with one another, and there is an implicit
    band of discretion in the decisions before them. In many cases,
    there is an explicit role for judicial discretion. That is what I am
    interested in. That is what I am interested in.

    Do you really believe that the judge’s sensitivity to the purpose
    and the result of the laws they interpret is irrelevant to the way
    they will exercise their discretionary review of other judges or review
    other judge’s exercise of discretion. I am interested in what
    in your background or expertise demonstrate you will be sensitive
    to the human impact of your decisions.

    You are going to be a judge that is going to be making judgments
    and decisions on these range of issues—health and safety, consumer
    protection, the labor laws, fair employment, gender, race,
    disability, Clean Air, workers’ rights, Freedom of Information, a
    whole range, a whole range, a whole range.

    What can you tell us, in your own experience, would reflect on
    your judgment in being sensitive to the human conditions that are
    going to be involved in the great numbers of cases there are going
    to be for that?

    Mr. ROBERTS. I don’t know if this is responsive or not because,
    of course, when you are an advocate, you’re advocating a client’s
    position, and you’re concerned about a particular human impact
    and not others. Certainly, when you’re a judge, you want to apply
    the law and, yes, you have to be sensitive to the impact of your decision,
    but at the same time apply the law fairly without regard—
    what the judicial oath says—without regard to persons.

    At the same time, I appreciate the fact that the law has impact
    on people in society, and I think it’s, for example, an important obligation
    of a lawyer to do pro bono work, to address the situation
    of people impacted by the law who don’t have the resources to respond.

    Senator KENNEDY. Maybe you can tell us. Talk about that.

    Mr. ROBERTS. One of the cases I handled before the D.C. Court
    of Appeals was Little v. Barry. I represented a class of general public
    welfare recipients in the District who had had their welfare benefits
    terminated, and we argued, and argued on the basis of Goldberg
    v. Kelly, a landmark civil rights case, that those individuals
    were entitled to individualized hearings before their welfare benefits
    were terminated. I argued that before the court of appeals on
    a pro bono basis. And that was a case where the law had a very
    real and direct impact on the most needy citizens in our country,
    and I was happy to take that case on behalf of that class of welfare
    recipients.

    Senator KENNEDY. If there are others, I would be interested in
    it.

    Mr. ROBERTS. Well, there are other—

    Senator KENNEDY. We can talk now, but there is going to be this
    band of discretion. You are going to apply the law, as you have outlined.
    You can be on the pro and con. You have answered that kind
    of question, but there is that band of discretion which judges are
    exercising, and this court makes judgments on matters that have
    enormous impact in terms of the quality of life and rights of individuals.
    And I am looking for that ingredient in your kind of life
    experience that would help to show that the human element that
    is being considered in this is something that you both understand,
    appreciate and would be concerned with.

    Mr. ROBERTS. Senator, there are other examples. The first case
    I argued in the Supreme Court was on a pro bono basis on behalf
    of an individual facing the almighty might of the U.S. Government,
    going after him criminally and civilly.

    I regularly participate, our firm has a Community Services Department
    that does pro bono work. Whenever there is an appeal involved,
    I and members of our appellate group help prepare. We
    have recently done issues involving termination of parental rights.
    I can’t imagine a more direct impact on an individual. Minority voting
    rights is another case we participated in, in which we prepare
    the people arguing pro bono for the appeals.
    I do a street law program that I think is important.

    Senator KENNEDY. With the law school or with—

    Mr. ROBERTS. It’s done in conjunction with the Supreme Court
    Historical Society. Every summer high school teachers who are
    teaching about the courts come to learn a little bit about it, and
    I talk to them about how the Supreme Court functions, and it’s a
    very, I’ve always found it very rewarding to sit with the high school
    teachers and hear what they, the difficulties they have in communicating
    with their students about the justice system.

    Senator KENNEDY. That is very, I am interested in it, and I appreciate
    your response to these questions and anything else on this
    would be useful.

    I just had one final. I know I am out of time, but I have one final
    question, Chairman.

    In your answers to the committee’s questions, you indicate your
    understanding the Framers insulated the judges from the public
    pressures. Do you also understand and agree that in keeping the
    Senate small and giving us the staggered terms, letting us make
    our own rules for exercising the key responsibility of the advice and
    consent also intended to insulate us to exercise our authority to
    prevent the Executive Branch from going too far in the assertion
    of their powers and the exertion of the Executive Branch powers?

    Mr. ROBERTS. Well, I don’t know about in particular reference to
    advice and consent, but certainly, as I understand the structure of
    the Constitution, the Senate was, as you indicated earlier, given a
    longer term, given staggered terms because it was supposed to exercise
    something of a restraining influence on the more popularly
    responsive branches of government.

    Senator KENNEDY. This is a well-rooted responsibility, as I understand.
    I mean, we have seen at times when you can take—the
    most obvious historic would be the court-packing by President Roosevelt,
    when there would be an important responsibility by the
    Congress to stand up to a President, actions of the Executive
    Branch. And as someone who is a constitutional authority, such as
    yourself, where of that historic responsibility and role and thought
    about it, if there is anything you can tell—

    Mr. ROBERTS. Well, I don’t claim to be a constitutional authority,
    but certainly the Senate obviously has a critical responsibility in
    this area. My memory may not be correct, but I believe original
    drafts of the Constitution provided that the Senate would actually
    be appointing the judges.

    [Laughter.]

    Senator KENNEDY. There you go. Did you hear that, Orrin?

    Chairman HATCH. That is what they think they are doing now.

    [Laughter.]

    Mr. ROBERTS. Cooler heads prevailed before the end.

    Chairman HATCH. I am glad you added that last part.

    Mr. ROBERTS. But I am happy to be scrutinized under whatever
    standard the Committee or the Senate wishes to apply.

    Senator KENNEDY. Thank you very much.

    Chairman HATCH. We will turn to Senator Durbin now.

    STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR
    FROM THE STATE OF ILLINOIS

    Senator DURBIN. Thank you very much, Mr. Chairman.
    Mr. Roberts, thank you for coming back. I am glad we had a
    chance for this hearing, and I thank the Chairman. I think we
    have reached an accommodation here that may be helpful in moving
    this Committee forward in a better environment.
    I understand my fate in life as a back-bencher in the minority
    in the Senate with a Republican President, that nominees that
    come before us are not likely to share my political philosophy. That
    is a fact of life.

    I also understand that I have a responsibility under the Constitution
    to ask questions of those nominees to satisfy my judgment
    that they would be well-suited to serve on the Federal bench. Many
    of the nominees have been forthcoming, and open, and candid in
    their answers, others have not. As a politician, I can certainly identify
    with that. I have danced around questions in my life, Waltz
    steps, Polka steps, Samba steps, I try them all when I do not want
    to answer a question.

    And now I am going to ask you a question, just a limited number
    of questions relating to some dance steps I see in your answers
    here.

    So, in 1991, you are in the Solicitor General’s Office, and in Rust
    v. Sullivan, you end up signing on to a brief which calls for overturning
    Roe v. Wade, one of the more controversial Supreme Court
    cases of my lifetime. When we asked repeatedly in questions of you
    what your position is on Roe v. Wade, you have basically danced
    away and said, ‘‘No, no, my personal views mean nothing. I am just
    going to apply the law.’’

    This, in my mind, is evasive. I need to hear something more definitive
    from you. Was the statement in that brief an expression of
    your personal and legal feelings about Roe v. Wade, that it should
    be repealed?

    What is your position today, in terms of that decision?

    Mr. ROBERTS. The statement in the brief was my position as an
    advocate for a client. We were defending a Health and Human
    Services program in which the allegation was that the regulations
    issued by the Department of Health and Human Services burdened
    the constitutional right to an abortion recognized in Roe v. Wade.
    At that time, it was the position of the administration, articulated
    in four different briefs filed with the Supreme Court, briefs
    that I hadn’t worked on, that Roe v. Wade should be overturned.
    Now, if Roe v. Wade were to be overturned, the challenge to the
    regulations that we were tasked with defending would fail, and so
    it was appropriate in that case to include that argument. I think
    it was all of one or two sentences. The bulk of the brief was addressed
    to why the regulations were valid, in any event.

    But since that was the administration position, and the administration
    was my client, I reiterated that position in the brief because
    it was my responsibility to defend that HHS program.

    Senator DURBIN. Understood. I have been an attorney, represented
    a client, sometimes argued a position that I did not necessarily
    buy, personally. And so I am asking you today what is
    your position on Roe v. Wade?

    Mr. ROBERTS. I don’t—Roe v. Wade is the settled law of the land.
    It is not—it’s a little more than settled. It was reaffirmed in the
    face of a challenge that it should be overruled in the Casey decision.
    Accordingly, it’s the settled law of the land. There’s nothing
    in my personal views that would prevent me from fully and faithfully
    applying that precedent, as well as Casey.

    Senator DURBIN. Then, let me ask you this question. You make
    a painful analogy, from my point of view, when you suggest that
    calling for the overturn of Roe v. Wade was not any different than
    the Government calling for overturning Plessy v. Ferguson and
    Brown v. Board of Education. Plessy v. Ferguson, separate, but
    equal, was really the basis for racial discrimination and segregation
    in America for decades.

    I hope that that is just a strict legal analogy and does not reflect
    your opinion of Roe v. Wade policy compared to Plessy v. Ferguson
    policy.

    Mr. ROBERTS. Senator, the question I was asked, were there
    other occasions in which the Department—if I am remembering
    correctly—if there were other occasions in which the Solicitor General
    had urged that a Supreme Court precedent be overturned, and
    that is just—Brown v. Board of Education is the most prominent
    one. The answer wasn’t meant to draw a particular substantive
    analogy.

    Senator DURBIN. And I will not push any further because I was
    hoping that is what your response would be.

    So in the panel that you were on the last time before us, Justice
    Deborah Cook of the Ohio Supreme Court was one of the members
    of the panel, and I sent a written question to her, which I sent to
    you. And the basic question goes into the cliches we use in this
    Committee about strict construction, and where are you, and how
    do you compare yourself to Justice Scalia and Justice Thomas, and
    then try to draw some conclusions.

    Now, as oblique as those questions may be, that is as good as it
    gets in this Committee. That is as close as we can get to trying to
    find out what is really ticking in your heart when it comes to your
    judicial philosophy.

    And her answers were, as I have said, painful, but painfully honest.
    She said she was not a strict constructionist, but she conceded
    in answers to question that if the Supreme Court had a majority
    of strict constructionists, it is not likely they would have reached
    the same conclusion in Brown v. Board of Education, the Miranda
    decision or Roe v. Wade. I thought that was the most honest answer
    we have been given by a Bush nominee, and I have used it
    as kind of a standard ever since to just see how far other nominees
    would go in their candor and honesty.

    I found your answer evasive. When I look at what you had to say
    about your philosophy, you said, ‘‘In short, I do not think beginning
    with an all-encompassing approach to constitutional interpretation
    is the best way to faithfully construe the document,’’ and then you
    went on to say I am not going to draw any conclusions on the Supreme
    Court decisions.

    I need more. I need to hear more from you about where you are
    coming from and, at least hypothetically, if you agree that those
    who call themselves strict constructionists would not likely be in
    the vanguard of the socially important Supreme Court decisions
    that we have seen in Brown v. Board, Miranda or Roe v. Wade.
    Mr. ROBERTS. Well, Senator, I don’t know if that’s a flaw for a
    judicial nominee or not, not to have a comprehensive philosophy
    about constitutional interpretation, to be able to say, ‘‘I’m an
    originalist, I’m a textualist, I’m a literalist or this or that.’’ I just
    don’t feel comfortable with any of those particular labels. One reason
    is that as the Constitution uses the term ‘‘inferior court judge,’’
    I’ll be bound to follow the Supreme Court precedent regardless of
    what type of constructionist I, personally, might be.

    The other thing is, in my review over the years and looking at
    Supreme Court constitutional decisions, I don’t necessarily think
    that it’s the best approach to have an all-encompassing philosophy.
    The Supreme Court certainly doesn’t. There are some areas where
    they apply what you might think of as a strict construction; there
    are other areas where they don’t. And I don’t accept the proposition
    that a strict constructionist is necessarily hostile to civil rights.
    For example, Justice Black thought he was a strict constructionist
    of the First Amendment. No law means no law. Well, that’s
    a very sympathetic view to people who have First Amendment
    claims. I can see the argument that someone who is going to be a
    strict constructionist on the Eleventh Amendment might result,
    come forward with decisions that are more acceptable to some of
    the questions Senator Leahy was raising earlier. The Eleventh
    Amendment says the citizen of another State, so how does it apply
    with citizen of the same State if you are going to be a strict constructionist?
    The Supreme Court doesn’t apply a uniform and consistent approach.
    I certainly don’t feel comfortable with any uniform or consistent
    approach because the constitutional provisions are very different.
    You have a very different approach in saying how are you
    going to give content to the Fourth Amendment prohibition on unreasonable
    searches and seizures. That’s one thing. It doesn’t mean
    that you apply the same approach to a far more specific provision
    like the Seventh Amendment.

    Senator DURBIN. That is a reasonable answer. It is also a safe
    answer, and I am not going to question your motive in that answer.
    I accept it at face value as being an honest answer, but it raises
    the question that comes up time and again. If this job is so automatic,
    if the role of a judge is strictly to apply the precedent, then,
    frankly, I think we would have as many Democrats being proposed
    by the Bush White House as we do Republicans, but we do not.
    They understand that it is not automatic, it is not mechanical.
    There are going to be discretionary and subjective elements in
    decisions, and that is why we have people coming from major law
    firms who have made a living representing rather wealthy clients.
    We have people who are conservative in their philosophy. We have
    many, many members of the vaunted Federalist Society, which my
    Chairman is so proud to be part of, all of these people come before
    us because I think, when it gets beyond the obvious, we understand
    that there is subjectivity here.

    The last question I will ask you is a quote, and you better take
    care when you get quoted, but you were asked about the Rehnquist
    Supreme Court in 2000, for your opinion.

    Now, many people had characterized it as a very conservative
    Court, but you said, ‘‘I don’t know how you can call the Rehnquist
    Court conservative.’’

    When asked specifically about the 1999–2000 Supreme Court
    term, a term in which the Court rendered numerous, highly controversial
    decisions, you said, ‘‘Taking this term as a whole, the
    most important thing it did was to make a compelling case that we
    do not have a very conservative Supreme Court.’’
    What were you talking about?

    Mr. ROBERTS. Well, that was the labels that people had been
    tossing about, and I thought that it didn’t help public understanding
    of what the Court does to not look beyond that label. In
    that particular term, 1999 to 2000, some of the things the Supreme
    Court did was reaffirm the constitutional basis of the Miranda
    rule; strike down a restriction on partial-birth, late-term abortions
    in the case out of Nebraska; strike down, as violating the First
    Amendment, the giving of an invocation at school. In other words,
    reinforced Miranda, reinforced Roe, reinforced the ban on school
    prayer.

    It issued the Apprendi decision, a great benefit to criminal defendants
    in sentencing. If there is going to be an enhancement of
    your sentence, you have all of the constitutional rights before that
    enhancement can be applied.

    In the Nixon case out of Missouri, it even upheld constitutional
    limits on campaign contributions. In the Playboy Enterprises case,
    it struck down an act of this body, this Congress, trying to regulate
    indecent speech. And I’m thinking, sitting there, well, there are six
    cases, every one of which—again, the labels are not helpful—but
    every one of which you would describe not as a conservative Court.
    It’s a conservative Court giving criminal defendants a big break, reaffirming
    Miranda, reaffirming Roe, striking down regulation of indecent
    broadcasts, striking down school prayer.

    Now, you can tell, if you’re being interviewed for public consumption,
    you can say it’s a conservative Court, it’s a liberal Court. I
    think if you want to educate a little bit about what the Court does,
    they need to know that even when other people would say this is
    a conservative Court, there are those decisions. It’s much more
    complicated than those labels.

    Senator DURBIN. Thank you, Mr. Roberts.

    Mr. ROBERTS. Thank you, Senator.

    Senator DURBIN. Thank you, Mr. Chairman.

    Chairman HATCH. Senator Feingold?

    STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
    FROM THE STATE OF WISCONSIN

    Senator FEINGOLD. Thank you, Mr. Chairman.
    I would like to welcome Mr. Roberts. Many of us wanted to have
    you back before the Committee for quite some time. So I want to
    thank the Chairman for scheduling this hearing. I hope this is a
    first step toward restoring some measure of regular order to our
    consideration of judicial nominations, and I do think, Mr. Chairman,
    if we work together in good faith it will be possible to bridge
    some of the differences we have on the issues.

    Mr. Roberts, I enjoyed your reference to the Missouri Shrink
    case, which I agree is an important case.
    Let me ask you something else. You were interviewed on the
    radio in 1999 and said, ‘‘We have gotten to the point these days
    where we think the only way we can show we’re serious about a
    problem is if we pass a Federal law, whether it is the Violence
    Against Women Act or anything else. The fact of the matter is conditions
    are different in different States, and State laws can be more
    relevant is I think exactly the right term, more attune to the different
    situations in New York, as opposed to Minnesota, and that
    is what the Federal system is based on.’’

    That is your quote, and I certainly do not disagree with some of
    the sentiments of it, but could you elaborate a little bit on the
    statement. Were you referring there simply to the constitutional
    limits on Congress’s power that were being asserted in the case
    that challenged VAWA or were you saying that Congress was going
    too far in trying to address Violence Against Women, even if the
    Court were to hold that it could constitutionally take the action
    that it did?

    Mr. ROBERTS. I didn’t have any particular reference. I think that
    it was the VAWA case that had come up, if I am remembering the
    interview correctly, and I didn’t mean to be passing either a policy
    or a legal judgment on the general policy question. I just wanted
    to make the basic point, and I’m sure it is a judgment that Senators
    deal with every day, that simply because you have a problem
    that needs addressing, it’s not necessarily the case that Federal
    legislation is the best way to address it.

    I do think that’s correct. And it’s a proposition, for example, I
    know the Annual Report on the Judiciary the point was made at
    one time that you’ve got to keep in mind what the impact of these
    types of cases are going to be on the Federal courts every time you
    have a new Federal remedy, a new Federal right that has an impact
    on the Federal courts.

    Obviously, there are many areas where the Federal response is
    not only appropriate, but required because of a variety of circumstances.
    You don’t want different rules in different States, but
    I was just making the point that every problem doesn’t necessarily
    need a Federal solution.

    Senator FEINGOLD. So it is not a situation where you think the
    constitutional limitation has to do with whether State laws can be
    more attune to local conditions.

    Mr. ROBERTS. Oh, no. No, of course, not. I mean the constitutional
    limitation doesn’t turn on whether it’s a good idea. There is
    not a ‘‘good idea’’ clause in the Constitution. It can be a bad idea,
    but certainly still satisfy the constitutional requirements.
    Senator FEINGOLD. Let me switch to another subject. I supported
    the National AMBER Alert Act, which I am pleased will become
    law today as a part of a larger bill. It became part of the Child Abduction
    Prevention Act. I, and others, were troubled that the final
    bill also included new and separate departure procedures for sentencing
    of child-related and sex offenses.

    These new rules will take sentencing discretion away from
    judges, and it was never even debated in the Senate Judiciary
    Committee before being inserted in the bill. In fact, Chief Justice
    Rehnquist, who rarely comments on pending legislation, spoke out
    against the original House version of the new rules. He wrote that
    the legislation ‘‘would do serious harm to the basic structure of the
    sentencing guideline system and would seriously impair the ability
    of courts to impose just and responsible sentences.’’

    We have heard complaints about these new rules from a diverse
    group of organizations and individuals about the final bill, including
    the Judicial Conference, distinguished judges from around the
    country, the entire current Sentencing Commission, all living
    former chairpersons of the Sentencing Commission, the American
    Bar Association, the Washington Legal Foundation, the Leadership
    Conference on Civil Rights and the Cato Institute.

    You may soon become a Federal judge. I would like to know what
    you think of the efforts of some in Congress to reduce the already
    limited sentencing discretion of Federal judges. And more specifically
    what is your impression of the provisions inserted into the
    Child Abduction Prevention Act during conference that take away
    or severely hamper the ability of judges to depart downwards when
    imposing a sentence, but do nothing to limit the ability of judges
    to depart in the other direction?

    Mr. ROBERTS. I haven’t looked at those provisions, Senator, so I
    don’t want to comment on those specifically. I do know that under
    Supreme Court precedent, the determination of appropriate sentences
    and how they’re to be applied is a quintessential legislative
    function. It is for the legislature to decide an appropriate sentence
    and how it’s to be administered.

    I know judges have strong views on sentencing guidelines, and
    I think the debate about whether the guidelines are good or bad
    is carried forward in the debate about how you should review departures
    and enhancements. I did handle one case challenging a
    departure under the sentencing guidelines, and we went up to the
    Supreme Court several times. And each time it would go back, the
    district judge would find another way to impose the same sentence.
    It would go back, it would get thrown out again.

    So I know it’s a system on which judges have strong views. From
    my own point of view, the only thing that I feel comfortable opining
    on is that it is in an area that is quintessentially, as I said, for the
    Congress to decide what the sentence should be and how it should
    be administered.

    Senator FEINGOLD. I am somewhat struck by that answer because
    the Chief Justice of the United States felt comfortable commenting,
    in fact, in a critical manner, on these new provisions, obviously
    believing that it is appropriate for him to indicate that
    going too far in limiting judges’ discretion is not a good idea.
    I would be interested, given the life term that you will shortly
    I think probably receive, what are your views on that fundamental
    question, which is—

    Mr. ROBERTS. Well, I—

    Senator FEINGOLD. And if your view is that Congress gets to decide
    the whole thing, so be it, but it is a big deal in terms of what
    our judges do, I think.

    Mr. ROBERTS. Well, again, subject to constitutional limitations,
    you obviously can’t have different sentencing schemes based on different
    racial impacts and things like that, but it is a Congressional
    legislative decision to determine the sentence.

    Now, I’m sure that the Chief Justice is appropriately commenting
    on what he thinks about it as head of the Federal judiciary because
    it will have an impact on the Federal courts.

    The debate goes back, of course. I mean, I understand the value
    of discretion, and before the imposition of the guidelines you had
    a situation that troubled Congress sufficiently to put the guidelines
    in. Where you do the same crime in one place and you do the same
    crime in another, and somebody’s getting 30 years, and the other
    person is getting 2 years, and you can’t see any distinction, that
    type of inequity I think does call for a legislative response, and
    that’s what the guidelines were all about.

    I know a lot of district judges didn’t like it. They’re used to sitting
    there and making more of a Solomonic decision about what
    this particular defendant deserves or whatnot, but there is a value
    in ensuring some uniformity across the country. That’s why the
    guidelines were imposed.

    I know the rules for departure and enhancement were intended
    to accommodate the discretion. But, again, beyond the judgment
    that that’s for the legislature to make, I don’t feel comfortable commenting.

    Chairman HATCH. I suspect when you become a judge, you won’t
    like it either.

    [Laughter.]

    Senator FEINGOLD. Well, and that’s why, Mr. Chairman, I want
    to just follow for a second, not ask another question, but just comment.
    I certainly agree with you that the notion of uniformity, to
    the extent that a legislature can help make that happen, has tremendous
    value, but it is also the case that justice often can only
    be served with judicial discretion.

    And I again repeat the words of the Chief Justice, Chief Justice
    Rehnquist, that this series of provisions, at least in the form they
    were in the House, would, in his words ‘‘seriously impair the ability
    of courts to impose just and responsible sentences.’’ That, to me, is
    a countervailing value that has to be balanced, and I appreciate
    your attempt to answer the question.

    Chairman HATCH. Would the Senator yield on that point just for
    a second?

    As you know, I brought about a compromise where we changed
    that greatly, but I have agreed to hold hearings on the whole sentencing.

    Senator FEINGOLD. Pardon me, Mr. Chairman?

    Chairman HATCH. I have agreed to hold hearings on the whole
    sentencing matter. I have my own qualms about some of these
    things, as I know you do. As an intelligent member of this Committee,
    you are certainly not going to be ignored with regard to
    those issues.

    Senator FEINGOLD. I appreciate that. I have heard from sitting
    judges, many of whom are very conservative judges, about how
    pained they are at the lack of discretion in a number of these cases,
    but let me go to the last subject because I know Senator Shumer
    would like to ask some questions.

    In response to a written question from Senator Durbin, you stated
    that you have assisted your colleagues at Hogan & Hartson in
    the firm’s representation of an inmate on Florida’s death row.
    Could you tell me more about that case, and your involvement and
    what was the outcome?

    Mr. ROBERTS. Well, he is still alive. That is sort of the goal in
    representing inmates facing the death penalty. I’m certainly not—
    don’t have lead responsibility in the case.

    What happened, and this was some years ago, a motion was
    being made in connection with one of his many sentences, and I
    was asked to assist in reviewing the motion. It had moved up to
    an appellate stage, and that was my specialty, and I looked at that
    and worked on that motion. I think it actually was not successful,
    but the long-term representation, as I said, he’s still with us.

    Senator FEINGOLD. Well, I congratulate you on your involvement
    in this. You and your firm represented the Florida death row inmate
    pro bono. Hogan & Hartson, of course, has enormous resources
    and is one of the best law firms in the Nation. Of course,
    not all death row inmates are lucky enough to secure such talented,
    well-resourced representation, especially at the trial stages
    of a capital prosecution. And I understand that law firms like yours
    typically don’t get involved in capital cases until the appellate
    stage.

    Given your experience with that case, do you believe that all capital
    defendants receive adequate legal representation in the current
    death penalty system, and are you concerned that poor defendants
    may not receive adequate legal representation, especially at the
    trial level of a capital case?

    Mr. ROBERTS. I don’t know sufficiently what the situation is with
    respect to appointed counsel. I have certainly seen the cases where
    the counsel, whether attained or appointed, has been inadequate.
    I mean, some of them, you know, where the counsel was asleep or
    not present or the type of conduct, even apart from whether particular
    motions were made or not.

    So the answer to your question is, no, it certainly can’t be the
    case that in all cases they receive adequate representation. I
    have—

    Senator FEINGOLD. Does it rise to a level where you have concerns?

    Mr. ROBERTS. Well, certainly. If you’re in a capital case and the
    lawyer is asleep, of course.

    I have long been of the view that whether you’re in favor of the
    death penalty or opposed to it, the system would work a lot better,
    to the extent that defendants have adequate representation from
    the beginning. The reason a lot of these cases drag out so long is
    because you spend decades scrutinizing the conduct of the lawyer
    in the initial case. If you make sure that there is adequate representation
    in the beginning, that should obviate the necessity for
    that, in most cases.

    Senator FEINGOLD. Finally, on this issue, and my last question,
    as you may know our Nation last year reached a troubling milestone.
    Over 100 death row inmates have now been exonerated in
    the modern death penalty era—people who were actually on death
    row, having been sentenced to death.

    What is your sense of the fairness of the administration of the
    death penalty in our Nation today? Do you think that the current
    system is fair or do you agree with an ever-increasing number of
    Americans that it risks executing the innocent?

    Mr. ROBERTS. I think one thing that is unfair about the system
    is that it is not, and I believe this is one of the Supreme Court
    cases saying that it would be applied this way, it’s not certain, it’s
    not definite, and there doesn’t seem to be any reasonable time limitation.
    The effectiveness, if you believe in capital punishment, the
    effectiveness of capital punishment diminishes if the crime was
    committed 30 years ago. And if it takes that long to get through
    the system, it’s not working, whether you’re in favor of the death
    penalty or opposed to it.

    Senator FEINGOLD. But what about the fact that 100 people have
    been exonerated, who were already sentenced to death, how do you
    feel about that?

    Mr. ROBERTS. Well, obviously, the first reaction is that the system
    worked in exonerating them. I don’t know the details of the
    particular cases, but if they’ve been exonerated, that’s how it’s supposed
    to work.

    Senator FEINGOLD. Is it your guess that we’ve gotten all the ones
    that are innocent on death row?

    Mr. ROBERTS. Of course, it causes concern whenever somebody
    gets to that stage. It would be important to know at what stage it
    is. If it’s on direct review, you feel a little more comfortable about
    it. If it is something coming out years later that should have come
    out before, that does cause some degree of discomfort. Because, of
    course, when you’re talking about capital punishment, it is the ultimate
    sanction, and sort of getting it right in most cases isn’t good
    enough. I agree with that.

    Senator FEINGOLD. Thank you, Mr. Chairman. Thank you, Mr.
    Roberts.

    Chairman HATCH. Thank you.

    Senator Schumer, you will be our last questioner.

    STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR
    FROM THE STATE OF NEW YORK

    Senator SCHUMER. Thank you, Mr. Chairman. I want to thank
    you for holding this hearing. I want to thank Mr. Roberts for returning
    to the hearing today. I know it wasn’t your choice to be
    scheduled the same day we had hearings for two other controversial
    nominees, and I for one am sorry you didn’t get your own hearing
    earlier, but I am glad you are here today.

    Now, after your hearing, I sent you several written questions.
    For all intents and purposes, you refused to answer three of them.
    I know you had your reasons for refusing to answer, but to be
    frank, I don’t find the reasons compelling, I don’t find them fair,
    and I don’t find them really in accord with your responsibility to
    let this Committee know as part of the advise and consent process
    your views.

    The Senate has a duty, as you know, to thoroughly vet individuals
    nominated to the Federal courts, but that duty is especially
    sacred when it comes to the most important courts, and there is no
    question that the D.C. Circuit, the court to which you have been
    nominated, qualifies on that score. I have called it in the past ‘‘the
    second most important court in the land.’’ I was at the naming of
    our courthouse for Thurgood Marshall in New York City, and my
    friends from New York on the Second Circuit took a little umbrage,
    but it is true. The D.C. Circuit I think is the second most important
    court in the land.

    But when I say we have a sacred duty in this process, I mean
    it. That is not just verbiage for me. The Founding Fathers worked
    long and hard to achieve balance in our system of Government.
    They struggled to ensure that no one branch would dominate the
    others. And an essential part of that balance is the advise and consent
    clause. It is true at any time in our history, but it is especially
    the case in an era when the President seems to have an ideological
    prism with whom he nominates. Clearly, the nominees that have
    come from the White House, if you sprinkled them throughout the
    political spectrum, wouldn’t land evenly throughout.

    And that is a President’s prerogative. I have nothing against the
    President doing it. But I truly do object to the idea that we
    shouldn’t ask and you shouldn’t answer questions, particularly at
    a time when the President is seeing things through an ideological
    prism, when he has stated, to his credit, he wants to appoint Justices
    in the mold of Scalia and Thomas, who are not moderate
    mainstream judges, but whatever your views of their views, they
    tend to be way over to the right side, and every one—not every one,
    but most of their decisions show that.

    So I think we have a duty to ask questions, and assuming that
    the questions are not improper, the nominees have a duty to answer
    them. I don’t think it is enough for a nominee to tell us or
    for you to tell us you will be fair and impartial. I do not believe
    it is sufficient to say, ‘‘I will follow the law.’’ Every nominee says
    that.

    We have the right to know the responsibility how you will approach
    the difficult and important legal questions that come before
    the D.C. Circuit, not to know how you will rule in a specific case
    but generally your way of thinking.

    The law, as you know from your extensive experience as an appellate
    litigator, is not something that a judge divines or that is
    handed down from above. Law and truth are not always one and
    the same. Judges disagree because there is a degree of subjectivity
    of the law. You can’t avoid it. If there weren’t, there wouldn’t be
    dissenting opinions. There wouldn’t be legal debate. We could put
    black robes on computers and put them on the bench instead of
    going through this process.

    So I think the questions that I asked you were fair and proper.
    Now, you disagree and that is your right, but I have to tell you
    that you will have a hard time winning my vote if you don’t answer
    these questions. I don’t think it is the way a nominee should come
    before this Committee.

    So I want to discuss the questions you have refused to answer,
    and I first want to focus on Question 5 from the written questions
    I sent you. I asked you to identify three Supreme Court cases of
    which you are critical, and I asked you to limit your answers to
    cases that haven’t been reversed and that have not been criticized
    publicly previously by you. In not responding, you cited Lloyd Cutler’s
    remark that, ‘‘Candidates should decline to reply when efforts
    are made to find out how they would decide a particular case.’’ Fair
    enough. And you relied on Canon 5 of the ABA Model of Judicial
    Conduct.

    But I want to be very clear with you here. I am not trying to
    make any effort to find out how you would decide a particular case.
    I agree it would be inappropriate for me to ask you about a particular
    case. If I were to say what is your view on what Enron did
    and how you might rule on it, for instance, you should decline. If
    I ask you what are your views on corporate ethics and what are
    your views of a certain holding of the Court, that is a different situation
    altogether. I am not even asking you about a hypothetical
    case.

    So while I think engaging in discussions of hypothetical scenarios
    are useful in certain circumstances, those questions are closer to
    the line and I am not willing to pursue them.

    The question I have asked is as narrowly drawn as it can be to
    achieve my goal of learning how you approach the law while protecting
    you from announcing how you will rule on a given case.
    And just because I am hardly an expert here, I contacted the Nation’s
    leading legal ethics expert, Stephen Gillers, the Vice Dean at
    NYU Law School, and asked him to tell us whether there is any
    ethical problem with a nominee answering the question I posed to
    you, Question 5. He said, emphatically and unequivocally, that
    there is no problem.

    In fact, Mr. Chairman, I have a letter from Vice Dean Gillers to
    me on this, and I would ask unanimous consent to submit to the
    record.

    Chairman HATCH. Without objection.

    Senator SCHUMER. I don’t know if the folks at DOJ showed you
    the letter that Dean Gillers sent. We tried to contact you and your
    DOJ handlers yesterday to make sure you knew we would be asking
    this question. But I hope you will read it now because he
    makes a compelling argument.

    I promise you you will have a full chance to respond to that. But
    before I do, I would note that other judicial nominees have answered
    this question. Miguel Estrada clearly did not. But he was
    the apotheosis of avoiding any questions asked by this Committee.
    And I hope you won’t follow in that direction.

    Linda Reade, who is now a judge on the district court, was particularly
    forthcoming when we considered her the same day we considered
    Miguel Estrada. And no one has even thought remotely of
    saying she violated Canon 5.

    I have made it my practice to ask the question of people I consider
    for judgeships in New York. Every one of them has answered
    the question.

    Just recently, Dora Irizarry, the President’s most recent nominee
    in New York, came to meet me, and she answered the question
    forthrightly, naming and discussing some very recent cases. She
    wasn’t violating Canon 5. That is a ruse. And it was used as a ruse
    by Miguel Estrada. I hope you won’t follow in those footsteps. Let
    me repeat that.

    And just in case people think this issue is partisan, several Republican
    Senators agree that these questions are proper because
    they asked them, nearly identical questions of President Clinton’s
    nominees. Again, no one—no one—said there was any violation of
    the canons.

    So, first, let me ask you: Will you reconsider and answer the
    question? If not, in light of Dean Gillers’ letter, in light of the inapplicability
    of Canon 5, and in light of the answers given by other
    nominees, in light of the fact that several Republican Senators believe
    the questions are proper, and in light of the importance of the
    process in which we are participating, why won’t you? And how do
    you differentiate you from all the others who have been willing to
    ask or answer this question? And I just hope that you will give us
    some insight on how you approach questions like this? They are
    important for me to make up my mind fairly about whether to support
    you or not.

    So now I have spoken for a while. Please answer.

    Mr. ROBERTS. Thank you, Senator, and I appreciate the opportunity
    to address the question again. I want to be responsive, but
    at the same time, I think it is important that I avoid doing anything
    that is going to be harmful to the Federal courts as an institution.
    I did get a copy of Professor Gillers’ letter just before the start
    of the hearing and looked at it, and I think it is important you said
    that other Senators have asked these kinds of questions. One of the
    things I did in preparing for this hearing was go back and look at
    Justice Ginsburg’s hearings. And she on numerous occasions said
    it would not be proper for her to comment on particular Supreme
    Court precedents. She was asked by Senators on both sides of the
    aisle, and she said she was religiously adhering to that guidance
    because she thought it would be harmful to the Supreme Court for
    nominees to answer those kinds of questions.

    Now, let me just explain briefly why I answered—

    Senator SCHUMER. Give me an example of one of the questions
    that she refused to answer. Are they similar to these or were they
    more specific?

    Mr. ROBERTS. They were more specific in that they identified
    particular cases.

    Senator SCHUMER. Exactly.

    Mr. ROBERTS. I don’t see a principled distinction. It seemed to me
    if you are able to say I disagree with this binding Supreme Court
    precedent and here is why, I don’t see how that would prevent anybody
    from then saying, all right, well, what about this one? And
    you are going to have your list of ten cases you want to know
    about, and Chairman Hatch is going to have his list of ten cases.
    And the reason Justice Ginsburg gave for—I don’t know about
    technically whether it violates an ethical standard or not, but the
    reason that she thought it was inappropriate to answer that question
    is because it is an effort to obtain a forecast or a hint about
    how a judge will rule on a particular case.

    If I were to tell you here’s a case I disagree with, the Lopez case,
    I think that’s wrong, that gives you a hint of forecast about how
    I would apply the Commerce Clause in a particular case related to
    Lopez. And another reason, it certainly raises very serious appearance
    problems. Let’s say I tell you I disagree with the Smith case
    and we get into a discussion and here’s why the Smith case was
    wrongly decided, and I’m confirmed and a case comes before me
    and the lawyer’s saying this is governed by the Smith case, you
    should apply that, and I don’t. That lawyer—that party is going to
    feel like he got a raw deal, and it’s because I disagreed with the
    Smith case, because, look, at the confirmation hearing they asked
    you about that and you said you disagreed with it.

    Certainly—

    Senator SCHUMER. How is this different—let me just interrupt
    you. How is this different than us examining the precedents of
    judges who have written, you know, pages and pages of cases? And
    how does that—is that any different—

    Mr. ROBERTS. Yes.

    Senator SCHUMER. —in terms of jeopardizing their futures and
    their future impartiality than your asking a case that you didn’t
    happen—answering the same situation of cases you didn’t judge?
    You are making this an absurd process, sir, when you are saying
    that you can’t answer even broad questions about specific jurisprudence,
    when you can’t say how you feel about previous court cases.
    I am not asking you a specific fact situation. That is what Gillers
    says Canon 5 is all about. And when you say you can’t answer any
    of those, although countless judges have through the decades, I
    think you are making—you are rendering the advise and consent
    process useless from my point of view.

    Let me ask you this: Did they ask you any of these questions at
    the White House?

    Mr. ROBERTS. No.

    Senator SCHUMER. They didn’t ask you how you felt on any issue
    at all?

    Mr. ROBERTS. No, and they certainly didn’t ask about any particular
    cases. I—

    Senator SCHUMER. How about the types of questions that you refused
    to answer here, they didn’t ask you those?

    Mr. ROBERTS. No, Senator. I’m trying to adhere to the line that
    I understand Justice Ginsburg—and she drew a distinction between
    cases that she had decided. She thought that was an appropriate
    line of inquiry. But when asked about particular Supreme
    Court cases, she said it would not be proper for her to answer
    those.

    Now, in Professor Gillers’ letter, he talks about the Republican
    Party case. With respect, a very different question of whether—
    that was a First Amendment case. I’m not saying, you know, just
    because it wouldn’t violate—or it would violate the First Amendment
    to restrict people from talking means it’s a good idea. And,
    second of all, it involved the election of judges in State campaigns,
    and I certainly hope that’s not the type of process. The Framers in
    the Constitution didn’t provide for elected judges, and I don’t want
    to get into that type of process.

    Senator SCHUMER. The Framers, let me ask, when they had John
    Rutledge, the first nominee before the Senate—and I believe it was
    12 of the 22 Senators were actual Framers—they talked about—
    you know, they talked about his views on the Jay Treaty. They
    clearly intended specific issues and specific cases to be discussed.
    Mr. ROBERTS. Well, Senator, all I can say is that my understanding
    of the practices of the Committee—and I’m happy to talk
    more generally. You said I have declined to answer broad questions.
    I don’t think that’s accurate. I’ve answered broad questions
    about judicial philosophy, about my approach to judging. It is when
    you get to particular binding Supreme Court precedents. I will be
    bound, if I am confirmed, to apply those precedents whether I
    agree with them or not. And I think it would distort the process
    for nominees to be subject to questioning about those precedents.

    As a lawyer practicing—

    Senator SCHUMER. Let me just—go ahead, please.

    Mr. ROBERTS. I was just going to say, as a lawyer practicing before
    the court, I look at precedents that have been decided. But if
    it’s now the case that judges are going to be quizzed about their
    personal views about particular precedents, I’ll have to start researching
    the confirmation hearings of the judges on the panel.

    Senator SCHUMER. Let me ask you one more question. Did the
    people you worked with in the Justice Department tell you not to
    answer any of these questions? Did you discuss it with them? Because
    here is what I worry about. I think you are a fine guy. I
    mean, I have seen your record. My guess is it is possible that because
    Miguel Estrada didn’t answer those questions, they didn’t
    want you to.

    Mr. ROBERTS. Oh, well—

    Senator SCHUMER. That is my guess. Now, you don’t have to
    speculate on that, but I do want to ask you: Did you discuss with
    them whether you should answer the specific questions I asked
    you? You can answer that yes or no.

    Mr. ROBERTS. Well, I would like to do a little more than yes or
    on. The answer is I wrote the answers to the questions—

    Senator SCHUMER. I understand that, but that was not my question.

    Mr. ROBERTS. —and I sent them—the second part of my answer
    is that I sent those to the Justice Department for their review before
    they were—before they were finalized, before I finalized them.
    I don’t recall them making changes in any of these.

    Senator SCHUMER. Did you discuss it with them before you wrote
    the answers?

    Mr. ROBERTS. I asked—I did ask if they had access to prior hearing
    transcripts so I could see how other judges had answered them,
    and I got a lot of different transcripts that I went through.

    Senator SCHUMER. So you did discuss some aspects of this with
    them.

    Mr. ROBERTS. To that extent.

    Senator SCHUMER. Okay. That is fair enough. I mean, that is not
    dispositive to me, but I think we ought to know because I think
    knowing who you are and knowing some people who know you
    well—and, again, I think you are a fine person. I think something
    is going on here when you don’t answer this question, which so
    many others have done. But let me go on.

    You said you didn’t want to discuss philosophies, so let’s move
    on to Question 3. You were willing to discuss philosophies. I asked
    you in Question 3—here is my question to you: What two Supreme
    Court Justices do you believe have the most divergent judicial philosophies?
    It is a discussion about philosophy. How would you characterize
    the judicial philosophies or each—these are my questions,
    I am just quoting—e.g., strict constructionist, originalist?
    Of the two you name in terms of judicial philosophy, which Justice
    do you anticipate you will more closely approximate and why?
    You responded by saying that you ‘‘do not believe that a nominee
    should, as part of the confirmation process, compare and critique
    the judicial philosophies of sitting Justices.’’

    You also expressed concern that answering the question would
    violate your ethical obligations to clients with matters before the
    court. I have to say, again, I am somewhat baffled by your reasons
    for not answering. I am not asking you who is the worst Supreme
    Court Justice. I am not asking you to insult or criticize any of
    them. There is a rich tradition of Supreme Court litigators in debate,
    in commentary, discussing not only the jurisprudence of but
    even the personalities—I didn’t ask you that—of sitting Supreme
    Court Justices before whom they practice. They don’t see this as a
    problem, and I am wondering why you do, and even if you do. You
    are being asked by this Committee—you are being nominated to a
    very important position, and it seems to me, even if you wouldn’t
    want to answer the question because maybe one of your clients
    might take some umbrage in one way or another—I don’t know; I
    don’t know your clients—that you should, anyway. But this was a
    question about philosophy, and you did actually, in response to
    Senator Durbin’s written questions, you discussed at length the ju-
    dicial philosophies of Justices Scalia and Thomas. And for your
    purposes, that was Question 10 answered on page 10.

    So why did you refuse to answer my question?

    Mr. ROBERTS. Well, Senator Durbin’s question specifically asked
    what is Justice Scalia’s originalist approach, what is Justice Thomas’,
    and since they had given addresses and written articles on that
    particular point, I was able to draw from those and answer as best
    as I could what they had said their approach and philosophy was.
    I guess I did think it was inappropriate for someone who is going
    to be sitting on a circuit court to criticize the judicial philosophy
    and approach of—

    Senator SCHUMER. I didn’t ask you to criticize it—

    Mr. ROBERTS. —the Justices.

    Senator SCHUMER. —any more than it is called criticism—

    Mr. ROBERTS. Well, you said who has—the question—

    Senator SCHUMER. The most divergent. That is not—that is a
    neutral word.

    Mr. ROBERTS. Well—

    Senator SCHUMER. Some people would like divergent. In fact, I
    think a Supreme Court would be best if it had one Brennan and
    one Scalia, not five of either.

    Mr. ROBERTS. I think it—I guess maybe part of the reluctance to
    answer is that I’m not sure that I could give an intelligent answer
    because I do think the philosophies of the Justices are pretty hard
    to pin down. When they’re articulating them in articles and addresses,
    you can look at it and see if you think they’re living up
    to those standards. But to go back and analyze all of the cases and
    see was this Justice adopting this philosophy in this case or this
    one that philosophy in another case, I guess I just didn’t feel capable
    of doing that because I think certainly the case probably for all
    nine of them would tell you—and I think it’s true to a large extent—
    they begin with the case. They don’t begin with the philosophy.
    And in some cases, looking at the case drives them to a particular
    result, and you can look, easily see decisions where you
    think this is not an originalist approach, and yet that Justice might
    describe himself in that particular way.

    And so when you get down to the way the question was presented
    of who has the most divergent, I just didn’t see how I
    could—

    Senator SCHUMER. Okay. That is not how you answered the
    question when I asked you. You said it was—and I quoted your answer
    a minute ago, but you said it was—you didn’t think you
    should comment on their philosophies, not that you couldn’t answer
    the question. And then you did talk about philosophies with Senator
    Durbin—

    Mr. ROBERTS. And I’m happy—well, and he asked what the—
    those two Justices had written about their philosophies.
    Senator SCHUMER. And I don’t feel left out. He’s my roommate.
    I mean, I just think that it’s not—there is not a consistency here.

    Mr. ROBERTS. I’m happy to talk, and I have discussed at length
    with some of the other questioners my approach to judicial philosophy
    and the fact—and this may reflect—my answer may reflect
    this more than anything else, that I don’t feel that I bring a coherent,
    universal approach that applies across the board to all the pro-
    visions of the Constitution. Again, I don’t know if you regard that
    as a flaw or as a positive thing, but that is the case.

    Senator SCHUMER. I don’t think that is relevant to whether you
    can answer my question or not. Most people probably don’t have a
    divergent thing.

    Chairman HATCH. Senator—

    Senator SCHUMER. I have one more question, Mr. Chairman.

    Chairman HATCH. If you will wind up, because I have given you
    double the time.

    Senator SCHUMER. You have, which I appreciate, although this is
    an important—

    Chairman HATCH. One more question, and then I would like to
    finish.

    Senator SCHUMER. This is an important nomination, and we have
    been here for 3 hours, I guess, 2 and a half. I don’t think it is too
    much to ask.

    Chairman HATCH. No, you can go ahead.

    Senator SCHUMER. Thank you.

    Chairman HATCH. But I would like to end with this last question.

    Senator SCHUMER. Okay. One of my questions that you did answer,
    which was Question 4 on mine, was a question regarding how
    you define judicial activism. You also at my request named one
    case, albeit a California State case from 1899, of judicial activism.
    So I want to ask how your definition applies to some more recent
    and higher profile matters. Was Brown v. Board an instance of judicial
    activism?

    Mr. ROBERTS. The Court in that case, of course, overruled a prior
    decision. I don’t think that constitutes judicial activism because obviously
    if the decision is wrong, it should be overruled. That’s not
    activism. That’s applying the law correctly. So if that’s the aspect
    of it, the overruling, I don’t think I would characterize it in that
    way.

    The Court had a concrete—my definition of judicial activism is
    when the Court moves beyond the role of deciding a concrete case
    or controversy and begins to either legislate or execute the laws
    rather than decide the case and say what the law is. And I don’t
    see that there’s anything about Brown, obviously, a momentous decision
    with dramatic impact on society, but what the Court was
    doing in that case was deciding and telling what the law was, that
    the Equal Protection Clause properly interpreted does not mean
    you can have separate but equal, because that is inherently unequal.
    So I—that would not—

    Senator SCHUMER. How about Miranda, was that—Miranda v.
    Arizona, was that—

    Mr. ROBERTS. Well, we have some guidance from the Supreme
    Court in the Dickerson case recently in which the Court explained
    that the rules it articulated in that case were constitutionally
    based. If that’s correct—and the Supreme Court has said it, so as
    a matter of law it is correct—that is an interpretation, an application
    of the Constitution. That, again, strikes me as being within
    Marbury v. Madison framework of saying what the law is.
    I guess what Dickerson was about is really whether Miranda was
    an instance of improper judicial activism or not. If the Court had
    determined that was not constitutionally based, then I think the
    argument would have been the other way.

    Senator SCHUMER. All right. How about Roe v. Wade?

    Mr. ROBERTS. Roe v. Wade is an interpretation of the Court’s
    prior precedents. You can read the opinion beginning not just with
    Griswold, which is the case everybody begins with, but going even
    further back in other areas involving the right to privacy, Meyer v.
    Nebraska, pierce v. Society of Sisters, cases involving education.
    And what the Court explained in that case was the basis for the
    recognition of that right.

    Now, that case and these others—certainly Brown was subjected
    to criticism at the time as an example of judicial activism. Miranda
    was as well. But, again, all I can do as a nominee is look to the
    rationale that the Supreme Court has articulated.

    Senator SCHUMER. So you don’t think Roe v. Wade was judicial
    activism as you defined it in your—

    Mr. ROBERTS. The Court explained in its opinion the legal basis,
    and because the Court has done that, I don’t think it’s appropriate
    for me to criticize it as judicial activism. The dissent certainly
    thought it was and explained why, but the Court has explained
    what it saw as the constitutional basis for its decision.
    My definition of judicial activism is when the Court departs from
    applying the rule of law and undertakes legislative or executive decisions.
    Now—

    Senator SCHUMER. Well, can you—since you seem to make the
    argument if the Court rules that it is not judicial activism, that
    would not be true of many people who write and comment and everything
    else, can you give me a Supreme Court case that you
    think was judicial activism?

    Mr. ROBERTS. Senator, again, you are sort of getting back into
    the area where following Justice Ginsburg’s—

    Senator SCHUMER. Getting back into the area of a hard question,
    that is all.

    Mr. ROBERTS. No. With respect, Senator, you’re getting back in
    the area of asking me to criticize particular Supreme Court precedents.
    Justice Ginsburg thought that was inappropriate because it
    would be harmful to the Supreme Court. I think it’s inappropriate
    because it would be harmful to the independence and integrity of
    the Federal judiciary. The reason I think key to the independence
    and strength of the Federal judiciary is that judges come to the
    cases before them, unencumbered by prior commitments, beyond
    the commitment to apply the rule of law and the oath that they
    take. I think that is essential. And if you get into the business
    where hints, forecasts are being required of a nominee because you
    need to know what he thinks about this case or that case, that will
    be very harmful to the judiciary.

    Senator SCHUMER. Then you are getting us into the absurd position
    that we cannot ask questions about just about anything that
    will matter once you get on the court.

    Mr. ROBERTS. No. With respect—

    Senator SCHUMER. Just one final one, and then I will let you—
    what about Morrison, you know, the VAWA case, was that judicial
    activism?

    Mr. ROBERTS. Again, Senator, you’re asking me—the Court articulated
    the basis for its decision in the rule of law, and I don’t
    think it’s appropriate to criticize that by characterizing it in a particular
    way. The legal basis for the decision—

    Senator SCHUMER. So are you saying that the four Justices who
    dissented in Morrison were—I mean, I don’t even get where this
    goes, that they were being inappropriate?

    Mr. ROBERTS. I guess where it goes, Senator, is I will be, if I’m
    confirmed, called upon to apply the Morrison case, among others.
    And I think it is a distortion—

    Senator SCHUMER. The dissent was strong. I mean, it was—

    Mr. ROBERTS. I think there’s a distortion of the process if I have
    been compelled to give personal views about the propriety of that
    decision.

    Senator SCHUMER. Why is that? Could you just explain that to
    me again? I don’t understand. I think—

    Mr. ROBERTS. Sure—

    Senator SCHUMER. —it far more damages the process when you
    don’t. But tell me why. Is this because people will think you are
    unfair or people will think you are biased?

    Mr. ROBERTS. If you are a litigant—let’s just say that, you know,
    the Smith case, and you want to know my views on that, and I tell
    you personal views on it, yes, I will be bound to apply it, but, by
    the way, I think it was a horrible decision, I think it was wrongly
    decided, I think it was judicially active, or whatever. And then I
    am confirmed and a case comes along and one of the litigants says
    this case is controlled by the Smith case or the Smith case should
    be extended to cover this case, and I rule no, I think that party will
    walk away saying, well, that’s because he disagrees with the Smith
    case.

    Chairman HATCH. They might move to recuse you to begin with,
    just because you had made some comment.

    Senator SCHUMER. Well, let me ask you this: Then why doesn’t
    every person who is involved in federalism or violence against
    women who goes before the Court think that the four Justices who
    dissented are biased and the process is damaged? I mean, this is
    an absurd argument, in all due respect. Justices on the bench dissent.
    They criticize opinions that, by definition they are in dissent,
    that become part of the law. And that would mean on a whole variety
    of different instances every one of the nine Supreme Court Justices
    would be held not to be fair, not to be unbiased. People have
    their opinions. We all know that.

    So the first time you dissent, if you get to the D.C. Circuit, you
    will be—you are saying that on that particular area of law, anyone
    who comes before you will think that you are not going to be fair
    to them.

    Mr. ROBERTS. I think there is a difference between the exercise
    of the judicial function. And again I am adhering to the line that
    Justice Ginsburg applied—I don’t think it was absurd when she
    said it—and that is that it does cast a cloud of unfairness if, as
    part of the confirmation process—and that is what is most troubling,
    Senator. It is not part of the judicial process where you are
    deciding a particular case and stating your reasons in a dissent. It
    is part of the confirmation process. So the concern is that you are
    giving commitments, forecasts, hints, even at the extreme, bargains,
    for confirmation and that carries forward.

    Senator SCHUMER. One final question. Is it better or worse if, in
    fact, you have opinions, which clearly you must, but these opinions
    aren’t revealed? How does it make it any different?

    Mr. ROBERTS. I don’t know if it is better or worse.

    Senator SCHUMER. So you are saying that people will think you
    are biased if you reveal the opinion. Won’t people think you are biased
    if you have an opinion? And that again gets to the absurd argument
    that every one of us then who might be a judge is biased
    because we all have opinions.

    Mr. ROBERTS. The problem, Senator, is that, if confirmed as a
    judge, I will be called upon to apply the rule of law. And, of course,
    I have opinions about particular decisions. Probably every decision
    I read, I have an opinion whether I think it is good, bad or—

    Senator SCHUMER. You are saying when you offer those opinions,
    people will think you are biased here, right here.

    Mr. ROBERTS. When you offer those opinions, it will distort the
    process. It is either an effort to obtain a prior commitment for
    someone as a nominee about how they will decide the case, and I
    think that is very inappropriate, or it will have a distorted effect
    on how that judge will appear to parties appearing before him.
    I think it will distort the process because people will now go back
    to Committee hearing transcripts to find out what judges thought
    about precedents that they are litigating about rather than the rule
    of law as established in those precedents.

    And it also forces the nominee to make a decision not in the judicial
    context in a manner that could be premature. I think of the
    Dickerson case a couple of years ago. The Chief Justice issued the
    opinion saying that Miranda is constitutionally based. I don’t know
    if that is what he would have said if he were forced at his nomination
    to say ‘‘do you think Miranda is constitutionally based?’’ But
    when he got to the decisional process and saw the briefs and the
    arguments and the cases, he was able to make a decision in that
    instance.

    Senator SCHUMER. So your argument now has sort of shifted. Instead
    of worrying that other people will think you are biased, it
    will lock you into thinking, or at least pre-dispose you to thinking
    a different way about the case because you have told us something
    that you think.

    Mr. ROBERTS. The argument hasn’t shifted. There are a number
    of reasons why my answering such questions, I think, is inappropriate.
    The last one was one that Justice Kennedy recently discussed
    in his address at the University of Virginia Law School.
    He says because as a judge when you are called upon to make
    a decision, you go through an entirely different process. I think
    that is one reason nominees should be put in that position.
    The other reason, because it is an effort to obtain a forecast or
    a hint about how they are going to rule, and that, President Lincoln
    said long ago, is not something nominees should answer. And
    that is a line, as I said, that Justice Ginsburg followed. And another
    reason is, as I said, it distorts the process.

    Senator SCHUMER. So every nominee who has been here before
    us and answered questions more directly and forthrightly than you
    on these things has contributed to distorting the process, including
    some of your potential future colleagues who will sit on the bench
    in the D.C. Circuit, including some Supreme Court nominees?
    Chairman HATCH. Senator, with all due respect, I don’t know
    anybody who has answered these questions that has come before
    the Committee in 27 years. What you are asking is way beyond—
    I mean, you have a right to ask whatever you want to.

    Senator SCHUMER. Your own colleagues, sir, asked those same
    questions of Paez, Berzon and others.

    Chairman HATCH. And I made the comment to my colleagues
    that any Senator on this Committee can ask any question he
    wants, no matter how stupid it is.

    Now, to make a long story short, I have given you more time
    than anybody else on this Committee and frankly I don’t think we
    are getting anywhere. I don’t blame him. I would find fault if he
    did answer those questions, and I think so would a whole bunch
    of others.

    I found fault with people on our side who tried to ask the same
    type of questions. In fact, I criticized one Senator, in particular,
    and it was embarrassing to do it. I didn’t like doing it, but I just
    felt it was way out of line.

    Now, look, you have a right to ask these questions. He has given,
    I think, very articulate answers that I would respect in anybody
    because he is nominated for one of the most important courts in
    the country. And I don’t blame any nominee that comes before this
    Committee for not wanting to put themselves in a position where
    somebody can misconstrue what they have said here in Committee,
    when they have to make decisions later.

    I don’t know anybody, including Democrat nominees for the Supreme
    Court and other Democrat nominees, who have had to answer
    these types of questions other than the way he has answered
    them, and I think that he has answered them fairly.

    But, Senator, you have now had 35 minutes and I think you are
    beating it to death, is my point.

    Senator SCHUMER. May I say this, Mr. Chairman?

    Chairman HATCH. Yes. I respect you and I don’t want to
    mischaracterize, but I think you are beating it to death.

    Senator SCHUMER. What I would say is this: If you are correct,
    then we ought not have these hearings.

    Chairman HATCH. Heavens, no. There have been all kinds of revelations
    in this—

    Senator SCHUMER. We ought to find out the resumes of each person.
    We ought to then have some detectives and see if they have
    broken little rules here and there, but we ought not have these
    hearings because—

    Chairman HATCH. Senator, if you are right, then we ought to get
    the secret police to examine every aspect of everybody’s lives that
    come before the Committee.

    Senator SCHUMER. No, no, just the opposite, just the opposite.

    Chairman HATCH. That is what you seem to be saying.

    Senator SCHUMER. Orrin, what I am saying is those things
    shouldn’t matter, and they have mattered in the past because they
    were a kabuki game for what people really wanted to know, which
    is the questions that I am asking. And I would just say to you—

    Chairman HATCH. Senator—

    Senator SCHUMER. I would like to finish.

    Chairman HATCH. Go ahead.

    Senator SCHUMER. I would like to say to you that if refusal to
    answer questions like this will become the norm, then we have
    done real damage to the advise and consent process and to the
    Constitution. And I know you disagree.

    Chairman HATCH. I do violently disagree.

    Senator SCHUMER. But that is the bottom line.
    Mr. Roberts, I just want to conclude. I think you are a fine person.
    I think you are a good lawyer, an excellent lawyer, far better
    than I would ever be. But I guess my hope is that you are in a difficult
    position right here, given the circumstances as things have
    occurred, because I think you should have been more direct in answer
    to these questions for the good of the process.

    Thank you, Mr. Chairman.

    Chairman HATCH. Thank you, Senator Schumer.
    I think Senator Schumer has the right to say whatever he says
    and ask any questions he wants. And you have certainly the right
    to answer them the way you want to, as well, and I think you have
    answered them very appropriately. In fact, you have gone beyond
    the pale.

    Now, let me just also say that I would like to note that we on
    the Republican side did not receive a copy of Professor Gillers’ letter
    until 9:30 this morning. So we have only just read over it, and
    very cursorily at that. But let me say that I don’t personally—and
    I don’t think anybody on our side—consider Professor Gillers the
    definitive word on this, especially when you consider the nominees
    whom this Committee has confirmed who refused to answer similar
    questions.

    Senator SCHUMER. Mr. Chairman, we gave you that letter.

    Chairman HATCH. I am not griping about it. I am just saying we
    didn’t have enough time to really look at it. But I certainly would
    not call him the definitive last word. I have seen him give letters;
    whatever you want, he gives them to you. I am not talking about
    you, in particular, but on the Democrat side.

    Senator SCHUMER. I just want the record to show that the minority
    was given this letter on the last day we voted on the Roberts
    nomination, which was about 2 months ago.

    Chairman HATCH. Not that I know of. My understanding is that
    Mr. Roberts got this letter via voice mail, left for you around 8:00
    p.m. last night.

    Now, let me give you some examples. I think it is important to
    set this record straight.

    In 1967, during his confirmation hearing for the Supreme Court,
    Justice Thurgood Marshall responded to a question about the Fifth
    Amendment by stating, ‘‘I do not think you want me to be in a position
    of giving you a statement on the Fifth Amendment and then,
    if I am confirmed, sit on the Court and when a Fifth Amendment
    case comes up, I will have to disqualify myself.’’

    Now, you have said it more articulately than that. But, in essence,
    that is what your answers have been, at least some of them.
    During Justice Sandra Day O’Connor’s confirmation hearing, the
    Senator from Massachusetts, Senator Kennedy, the former Chair-
    man of the Judiciary Committee, defended her refusal to discuss
    her views on abortion. He said, quote, ‘‘It is offensive’’—this is Senator
    Kennedy—‘‘for a Republican nominee’’—he said ‘‘It is offensive
    to suggest that a potential Justice of the Supreme Court must pass
    some presumed test of judicial philosophy. It is even more offensive
    to suggest that a potential Justice must pass the litmus test of any
    single-issue interest group,’’ unquote. Now, that is Senator Kennedy.

    Likewise, Justice John Paul Stevens testified during his confirmation
    hearing, quote, ‘‘I really don’t think I should discuss this
    subject generally, Senator. I don’t mean to be unresponsive, but in
    all candor I must say that there have been many times in my experience
    in the last 5 years where I found that my first reaction to
    a problem was not the same as the reaction I had when I had the
    responsibility of decisions. And I think that if I were to make comments
    that were not carefully thought through, they might be
    given significance they really did not merit,’’ unquote.

    Pretty much what you have said, because until you get the briefs
    and the arguments and you see everything involved, it is pretty
    hard to give opinions in advance, no matter how good you are, and
    you are good. And I think anybody with brains would say you are
    one of the best people that has ever come before this Committee.
    Justice Ruth Bader Ginsburg also declined to answer certain
    questions, stating—I am just giving you a few illustrations; I could
    give you hundreds of them—quote, ‘‘Because I am and hope to continue
    to be a judge, it would be wrong for me to say or to preview
    in this legislative chamber how I would cast my vote on questions
    the Supreme Court may be called upon to decide. Were I to rehearse
    here what I would say and how I would reason on such
    questions, I would act injudiciously.’’

    I would have trouble with you if you answered some of those
    questions.

    In addition, Justice Ginsburg just last year said in dissent in the
    case of Republican Party of Minnesota v. White, which is cited by
    Professor Gillers, by the way, quote, ‘‘In the context of the Federal
    system, how a prospective nominee for the bench would resolve
    particular contentious issues would certainly be’’—quote within a
    quote—’of interest’—unquote within a quote—‘‘to the President and
    the Senate. But in accord with a longstanding norm, every member
    of this Court declined to furnish such information to the Senate,
    and presumably to the President as well,’’ precisely what you have
    said here.

    Now, all of these questions have one thing in common. They are
    designed to force the nominee to disclose his personal views on hotbutton
    social or other issues. This is inappropriate, in my view, at
    least, and I think has always been, in this Committee’s view, as
    evidenced by Senator Kennedy’s remarks in protecting Sandra Day
    O’Connor, a Republican nominee, something for which he deserves
    credit.

    I think it is inappropriate because a good judge will follow the
    law, regardless of his or her personal views. And you have made
    that very clear throughout your testimony not only today, but in
    the 12-hour marathon we had before, where I admit you weren’t
    asked an awful lot of questions. You were asked plenty, but not as
    much as our colleagues wanted. That is why we are having this
    second hearing.

    Discussion of a nominee’s personal views, I think, can lead to an
    appearance of bias and I think that is improper. It is just another
    attempt in my book to change the ground rules of the confirmation
    process.

    Now, look, I have a lot of respect for Senator Schumer. We are
    good friends. He is a smart lawyer. He is very sincere. He comes
    to these meetings and he asks questions. Most of them, I believe,
    are very intelligent questions. Some, I totally disagree with. Some,
    I think, are dumb-ass questions, between you and me. I am not
    kidding you.

    [Laughter.]

    Chairman HATCH. I mean, as much as I love and respect you, I
    just think that is true.

    Senator SCHUMER. Would the Senator like to revise and extend
    his remarks?

    Chairman HATCH. No. I am going to keep it exactly the way it
    is. I mean, I hate to say it. I feel badly saying it, between you and
    me, but I do know dumb-ass questions when I see dumb-ass questions.

    [Laughter.]

    Chairman HATCH. I do want to note that Professor Gillers’ letter
    is dated February 26 of this year. So I was wrong in my comments
    earlier as well, so I want to make that point.

    Senator SCHUMER. I would say you were acting in a DA way by
    doing that.

    Chairman HATCH. Senator Schumer and I are going to be
    friends, no matter what, because I am going to force him to like
    me, I just want you to know.

    Senator SCHUMER. You have done a very good job this morning,
    Mr. Chairman.

    Chairman HATCH. Just like he tried to force you to screw up here
    and make a terrible mistake.

    I do care for him and I care for everybody on this Committee. I
    have to admit I get very disturbed by some of the things that go
    on here. This Committee is one of the most partisan committees,
    one of the most partisan institutions I have ever belonged to. I
    would like it to be less partisan; I would like it to work. I would
    like us to be fair to witnesses.

    Admittedly, some on my side were unfair, not many, but some
    were unfair from time to time. I didn’t like it any better then than
    I do now and I am doing my best to do something about it.
    Let me just say, in conclusion on this hearing, I have seen an
    awful lot of witnesses who have been nominees for Federal judgeships
    come before this Committee and I venture to say that I am
    not sure I have ever seen one who has been any better than you.
    I understand why you are held in such high esteem by I think
    every Justice on the Supreme Court. I have chatted with a number
    of them. Some have ventured to say to me that you are one of the
    two top appellate advocates in the country. That is high praise indeed.
    I have had other judges say what a fine person you are and
    what a terrific lawyer you are.

    I expect you, when you get on the Circuit Court of Appeals for
    the District of Columbia—and I think you will have bipartisan support
    to get there; I would hope so. But I expect you to become one
    of the premiere judges in this country. You have what it takes to
    do it. You have tremendous capacity and ability, and anybody with
    any brains can recognize it.

    Anybody with any sense of fairness is going to vote for you, and
    I intend to see that votes occur in accordance with our agreement.
    So we will put you on the Committee markup tomorrow morning.
    You will not come up in Committee tomorrow because I have
    agreed to at least put you over until the next Thursday, and we
    will vote on you Thursday from tomorrow.

    Then, assuming you come out of the Committee—and I think
    that is a given; you had bipartisan support last time and I expect
    it to even increase—then within a week, according to my friends
    on the other side, you should have a vote on the floor.

    I want to accommodate my friends as much as I can, and I want
    to compliment them for agreeing to this and agreeing to Justice
    Cook’s vote up and down on the floor and for agreeing to Jeffrey
    Sutton’s vote. It wasn’t easy for some on the other side who really
    feel very deeply about these issues, as does my friend from New
    York. But I am grateful to them.

    And I am grateful to you for the patience that you have had during
    this hearing and during the other hearing, because you sat
    there for 12 solid hours. Frankly, I have to just show tremendous
    respect for you. You deserve it, and I hope that we can have this
    all work out just the way I have announced it, the way we have
    agreed.

    I think the Circuit Court of Appeals for the District of Columbia,
    and perhaps many, many other courts in this country will benefit
    from having a person of your stature and your ability on the court.
    So with that, we are grateful that we have had this second hearing.
    I want you to get your written answers back as soon as you
    possibly can. We expect all questions to be in by Friday. We would
    love you to have them back as soon as you can because next Thursday
    you are going to be voted upon and I would like my colleagues
    to have the benefit of having your answers to their questions.
    With that, we are going to allow you and your family to go. We
    really appreciate your being here for so long and your patience in
    being before the Committee.

    Mr. ROBERTS. Thank you very much, Mr. Chairman.

    Chairman HATCH. Thank you.