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S. HRG. 108–135, PT. 3
CONFIRMATION HEARINGS ON FEDERAL
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
APRIL 30, MAY 7, MAY 22, JUNE 25, AND JULY 9, 2003
Serial No. J–108–1
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
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
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
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
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
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
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.
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
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
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
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
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.
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
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
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
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
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
Senator KENNEDY. If there are others, I would be interested in
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
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.
Senator KENNEDY. There you go. Did you hear that, Orrin?
Chairman HATCH. That is what they think they are doing now.
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
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
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
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
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
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
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
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
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
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.
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
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
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
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
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
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.
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
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
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
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
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
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
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
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
Mr. ROBERTS. They were more specific in that they identified
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.
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
Mr. ROBERTS. No, and they certainly didn’t ask about any particular
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
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
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
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
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
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
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
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
Chairman HATCH. One more question, and then I would like to
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
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
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.
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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.
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
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,
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
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.