WASHINGTON -- The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 6:
And she said, That's a foul ball.
They can't do that.
Let me quote her. She said, in response to Senator -- I was going to say Brownback -- Senator Brown, when he was here, when she was up, of Colorado. She said, quote, Abortion prohibition by a state controls women and denies them full autonomy and full equality with men. It would be unconstitutional.
What is your view, according to the Ginsburg rule?
ROBERTS: Well, that is in an area where I think I should not respond because...
BIDEN: Why? You said you'd abide by the Ginsburg rule?
ROBERTS: Then Judge Ginsburg, now Justice Ginsburg, explained that she thought she was at greater liberty to discuss her writings. She had written extensively on that area, and I think that's why she felt at greater liberty to talk about those cases.
In other areas where she had not written, her response was that it was inappropriate to comment.
In particular, I remember her response on the Maher and the Harris cases. She said, Those are the court's precedents. I have no agenda to overrule them, and I will leave it at that.
And I think that's important to adhere to that.
Let me explain very briefly why. It's because if these questions come before me either on the court on which I now sit or if I am confirmed on the Supreme Court, I need to decide those questions with an open mind, on the basis of the arguments presented, on the basis of the record presented in the case and on the basis of the rule of law, including the precedents of the court -- not on the basis of any commitments during the confirmation process. The litigants have a right to expect that of the judges or justices before whom they appear.
And it's not just Justice Ginsburg who adhered to that rule. I've gone back and read...
BIDEN: Well, she obviously didn't adhere to it with regard...
ROBERTS: Well, I explained why she felt at liberty to comment...
BIDEN: Well, how's that different?
That -- I would suggest, Judge -- is a distinction without a difference in terms of litigants, the way you've just explained it. Does a litigant, in fact, said because the judge wrote about it and then spoke to it as a judge, that somehow I am being -- I'm going to be put at a disadvantage before that judge in the court?
That's a stretch, Judge.
ROBERTS: Well, that's how Judge Ginsburg explained it at her nomination hearings. She said she could talk about the issues on which she had written.
BIDEN: Did that make sense to you?
ROBERTS: I think it does make sense that she can be questioned about the articles that she had written, because they raised certain questions and she felt at liberty to discuss those.
I think it's something entirely different if you talk about an area that could come before the court. This is an area that cases are pending before the court and likely will be pending in the future.
BIDEN: Well, let's try some things she didn't write about that she talked about. Let's see if you can talk about them.
One is she talked about Moore v. East Cleveland. You're much more familiar with the case than I am.
That's a case where the city came along -- and I'm going to do this shorthand in the interest of time -- and said a grandmom living in an apartment with her blood grandchildren who were cousins, but not brothers, violated the law.
And the chief said in the minority opinion -- your mentor -- he said, The interest that grandmother may have in permanently sharing a single kitchen in the suite of contiguous rooms with some of her relatives simply does not rise to the level of a constitutional right. To equate this interest with fundamental decisions to marry and to bear and raise children is to extend the limited substantive contours of the Constitution beyond recognition.
Do you agree with his statement?
ROBERTS: You know, I have no quarrels with the majority's determination.
BIDEN: Not my question, Judge.
SPECTER: Let him finish his answer, Joe.
ROBERTS: I understand that.
And I'm concerned about ramifications in which the issue could come up. But I have no quarrel with the majority's determination.
BIDEN: Justice Ginsburg answered the question. She never wrote about it. She answered it specifically.
She went on to say that, and let me quote -- she said -- this is quoting Justice Ginsburg -- He goes on to say, 'History, counsel caution and restrain,' and I agree with him. He says, then -- this is referring to the majority opinion -- but it does not counsel abandonment, abandonment of the notion that people have a right to certain fundamental decisions about their lives without interference of the state.
And what he next says is, History doesn't counsel abandonment nor does it require what the city is urging here, cutting off the family right at the first boundary, which is a nuclear family. He rejects that. I'm taking a position I have all the time.
And she goes on to say -- she says, Uh-Uh. She thinks your old boss was dead wrong. She said so, and she said the majority was dead right.
Ginsburg rule: What do you think? She never wrote about it.
ROBERTS: Senator, I think nominees have to draw the line where they're comfortable.
BIDEN: You're not applying the Ginsburg rule.
SPECTER: Senator Biden, let him finish. .
BIDEN: I don't have much time but go ahead.
ROBERTS: It's a matter of great importance not only to potential justices but the judges. We're sensitive to the need to maintain the independence and integrity of the court.
I think it's vitally important that nominees, to use Justice Ginsburg's words, no hints, no forecasts, no previews.
They go on the court not as a delegate from this committee with certain commitments laid out and how they're going to approach cases, they go on the court as justices who will approach cases with an open mind and decide those cases in light of the arguments presented, the record presented and the rule of law. And the litigants before them have a right to expect that and to have the appearance of that as well.
That has been the approach that all of the justices have taken.
BIDEN: That is not true, Judge. Justice Ginsburg violated that rule, according to you. Justice Ginsburg said precisely what position she agreed on.
Did she, in fact, somehow compromise herself when she answered that question?
ROBERTS: She said no hints, no forecasts, no previews.
BIDEN: No, no. Judge, she specifically, in response to a question whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland said explicitly: I agree with the majority, and here's what the majority said and I agree with it.
My question to you is: Do you agree with it or not?
ROBERTS: Well, I do know, Senator, that in numerous other cases -- because I read the transcript...
BIDEN: So did I.
ROBERTS: ... she took the position that she should not comment.
Justice O'Connor took the same position. She was asked about a particular case.
BIDEN: Oh, Judge...
ROBERTS: She said, It's not correct for me to comment.
Now, there's a reason for that.
BIDEN: But you're going from the...
SPECTER: Wait a minute, Senator Biden. He's not finished his answer.
BIDEN: He's filibustering, Senator.
But OK, go ahead.
SPECTER: No, he's not. No, he's not.
ROBERTS: That's a bad word, Senator.
BIDEN: That's if we do it to you. Go ahead. Go ahead and continue not to answer.
ROBERTS: Senator, my answer is that the independence and integrity of the Supreme Court requires that nominees before this committee for a position on that court not forecast, give predictions, give hints about how they might rule in cases that might...
BIDEN: I got that.
ROBERTS: ... come before the court.
BIDEN: Did Justice Ginsburg give a hint when she answered...
ROBERTS: I'm not going to comment...
BIDEN: ... on the specific question?
ROBERTS: I'm not going to comment on whether or not a particular nominee adhered to the approach that they announced.
BIDEN: Well, let's make it clear: She did not. Let's stipulate: She did not adhere to the approach.
I don't have time, because we don't have as much time, but I could list you a half an hour the questions she answered, the questions Kennedy, Souter -- all of the justices almost, with one exception, answered specific questions which you're not answers.
Let me go on to my next question: violence against women. I realize it's a bit of a hobby horse for me, since I wrote the legislation. And I know people say they wrote things. I mean, I actually did write that my little old self, with my staff. And no one liked it, I might add, at first; women's groups or anybody else.
But in 1999, you said, in response to a question -- you were on a show, it was 1999, you were talking about a number of things. And you said, and I quote, You know, we've gotten to a 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's the Violence Against Women Act or anything else.
The fact of the matter is conditions are different in different states. And state laws are more relevant is, I think, exactly the right term. More attuned to different situations in New York as opposed to Minnesota. And that's what the federal system is based upon.
Judge, tell me how a guy beating up his wife in Minnesota is any different condition in New York.
ROBERTS: Senator, I was not speaking specifically to any piece of legislation there. That was making...
BIDEN: Well, you mentioned Violence Against Women.
ROBERTS: That was the issue that had come up on the show. And the general issue that was being addressed is a question of federalism.
I think it was part of the genius of the founding fathers to establish a federal system, with a national government to address issues of national concern; state and local government more close to the people to address issues of state and local concern. Obviously, issues of overlap as well.
I was not expressing the view on any particular piece of legislation. And I think the statement you read...
BIDEN: Well, let me ask you...
ROBERTS: ... confirms that.
Judge, is gender discrimination, as you've written in a memo, a perceived problem or is it a real problem?
ROBERTS: The memo you talked about, Senator, I've had a chance to look at it.
BIDEN: I'll bet you have.
ROBERTS: It concerned a 50-state inventory of particular proposals to address it. Perceived was not being used in that case to suggest that there was any doubt that there is gender discrimination and that it should be addressed. What it was referring to was a vast inventory. And I was not sure if the particular proposals in each case were supported in every state of the 50-state survey that was involved.
Of course gender discrimination is a serious problem. It's a particular concern of mine and always has been. I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all of the opportunities available to her without regard to any gender discrimination.
There's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender.
BIDEN: Let me ask you a question then, Judge. And I'm glad to hear that.
Do you think that if a state law distinguishes between a right that your daughter may have and your son may have, or your wife may have, or your sister may have and your brother may have, that the Supreme Court should engage in heightened scrutiny, not just look and see whether or not it makes any sense, but take an extra special look?
You and I know the terms, but the public listening here, the Supreme Court has said since 1971, you know, when a state passes a law that treats in any way a woman different than a man, there may be a rational for it, but the Supreme Court's going to take a very close look. Not strict scrutiny, which means you can hardly every get over that bar, like race, but going to take a heightened -- they're going to look at it more closely.
Do you think that that needs to be done, the Constitution calls for that?
ROBERTS: Yes, Senator, I do. And I, again, always have.
The confusion is in the use of the term. There are those who use the term heightened scrutiny to refer to what you just called
strict scrutiny, which is generally limited to issues of race or similar issues.
The discrimination on the basis of gender, distinctions on the basis of gender, is subject to what the Supreme Court has called intermediate scrutiny. There has to be a substantial government interest -- an important government interest and a substantial connection in the discrimination. But the Supreme Court's equal protection analysis has three tiers now.
BIDEN: I understand. My time's running out. I'd love to hear the explanation of the three tiers. But let's stick to this one for just a second.
Then, explain to me what you meant, 10 years after the decision laying out this level of scrutiny, when you wrote an '81 memo to your boss. You wrote that gender, quote, is not a criterion calling for heightened judicial review.
What'd you mean by that?
ROBERTS: Referring to what you called strict scrutiny.
BIDEN: He didn't know the difference between heightened and strict?
ROBERTS: Well, I was about to lay it out. You said you didn't want to hear about it.
ROBERTS: Strict scrutiny is the...
BIDEN: I know what that is. I wonder what you meant by that.
SPECTER: Senator Biden, let him finish his answer.
BIDEN: But I have no time left, Mr. Chairman. I understand the answer.
The Supreme Court has three levels of scrutiny. My point was, in the context of this memo, in the context of this memorandum, the question was whether or not the court should in fact have a heightened scrutiny.
ROBERTS: And, Senator, the memorandum is using heightened scrutiny the way you use strict scrutiny, which is scrutiny that's limited to the basis of race.
The gender discrimination is, as you know, subject to what's called intermediate scrutiny. And that is not what the memo is referring to with respect to heightened scrutiny. It's referring to the strict scrutiny that's restricted to issues of race and ethnicity
BIDEN: I'll come back to that in the second round because that's not my reading of what you said.
But let me get on to another issue here, again in the sex discrimination area.
The attorney general for civil rights, a former Delawarean not viewed as a darling of the left, Bradford Reynolds, decided that the federal government should take action against the state of Kentucky. And they said that there's a very strong record that Kentucky prison system discriminates against female prisoners. And I'm going to finish my whole question. And you wrote to the attorney general that I recommend you do not approve intervention in this case. And then you set out three reasons why you shouldn't approve of it. Not that there wasn't discrimination.
You said, one, that private plaintiffs are already bringing suit; secondly, the United States argument would have been based upon giving higher scrutiny to claims of gender classification; and, thirdly, that we need to be concerned about tight prison budgets, you say.
And you go on to explain that if in fact you hold them to the same standard, they may get rid of the program for the men.
Now explain to me your thinking there. I mean, that seems to be...
ROBERTS: I'm sorry. What was the date of the memo, Senator? I don't...
BIDEN: The date of the memo was February 12, 1982. I'll give you a copy. I have to bring down a copy of the memo.
ROBERTS: I can't elaborate on -- I can't elaborate on what's -- beyond what's in the memo.
BIDEN: Well, I hope you don't still hold that view, man. I mean, if the idea that you're not going to -- that the -- that a conservative civil rights -- head of the Civil Rights Division in the Reagan administration says it is pretty clear Kentucky is discriminating against women in their prison system -- and you say, in effect, that may be, but, look, we shouldn't move on it, I recommend we don't do anything about this -- and the reason we shouldn't do anything about this is threefold.
One, a private citizen already went ahead and filed suit on this; number two, if in fact you go ahead and do this, they may do away with the system for the men because there tight budgets -- and I forget the third one. You now have the memo.
ROBERTS: I have the memo and see that one of the areas that you mentioned, I say that -- and this is to the attorney general, and I say the reason we shouldn't do this is because you have publicly opposed such approaches. So again, it would have been...
BIDEN: It was only his idea then? I mean, you were just protecting him so he wouldn't be inconsistent?
ROBERTS: I was a lawyer on his staff. According to this memorandum -- and again, I don't remember anything independently of this 23 years ago. But the memorandum suggests that to a staff lawyer to his boss that this is inconsistent with what you have said. Again, I guess I would regard that as good staff work rather than anything else.
BIDEN: I would regard it as very poor staff work, with all due respect, Judge, because it seems to me you insert your views very strongly in here.
You don't say you said this. You say, by the way, there are other reasons why we shouldn't do this.
Assume you're saying you wouldn't go this route before, But I want to give you more ammunition here, Brad (ph).
Private plaintiffs have done this. It's inconsistent with three themes in your judicial restraint effort, equal protection claim, relief of a well-involved judicial inference, et cetera. And by the way, the end result may be with tight budgets, they may do away with this.
My time is running out. I'll come back to this. I hope you get a chance to study it between now and the time we get back to the second round.
Next question. You know, I find it fascinating, this whole thing about Title IX, and whether or not -- by Title IX, you and I know what we're talking about, but for the public at large who really has an interest in all this as well, the issue was whether or not, when a student gets aid, whether or not it only goes to the admissions piece of it.
Now, you said something that was accurate, but I don't think fulsome, to Senator Kennedy. And correct me if I'm wrong. You said: Look, we were arguing that it did apply, Title IX did apply. If a student got aid, it applied to the university.
That was one of the questions, whether or not you have no application or a narrow application. And you argued that it should apply to the admissions process.
But there's a second issue in that case, and the second issue is: Do you apply it narrowly only to an admissions policy, or do you apply it to if they are discriminating in dormitories?
I got your answer on the first part: You thought it should apply, at least narrowly.
Were you arguing that it should apply broadly?
And this was before -- let me make it clear.
The district court -- I say to my friends because I had forgotten this, the district court had ruled that this only applies to admissions. And there was a question -- the chairman of Reagan's commission on civil rights said, We should get in on the side of the plaintiff here and we should appeal this to the Supreme Court or to a higher court and say, 'No, no. This applies across the board; this applies if you don't put money in sports programs, you don't put money in dormitories, et cetera.'
What was your position on Reagan's civil rights chairman, Clarence Pendleton, suggesting that we appeal the decision of the circuit court, narrowly applying it only to the admissions office?
ROBERTS: Senator, I was a staff lawyer. I didn't have a position.
The administration had a position, and the administration's position was the two-fold position that you set forth. First, Title IX applies. Second, it applies to the office, the admissions office...
BIDEN: Only to the office, right? It applies narrowly?
SPECTER: Now, wait a minute. Let him finish his answer, Senator Biden.
BIDEN: His answers are misleading, with all due respect.
SPECTER: Now, wait a minute, wait a minute.
They may be misleading, but they are his answers.
BIDEN: OK, fine.
SPECTER: You may finish, Judge Roberts.
BIDEN: Fire away. Fire away.
At least I'm misunderstanding your answer.
ROBERTS: With respect, they are my answers. And, with respect, they're not misleading, they're accurate.
BIDEN: I have a minute, 45 seconds.
ROBERTS: This is a (inaudible) dispute that was 20-some years ago. The effort was to interpret what this body, Congress, meant.
The administration position was: federal financial aid triggers coverage; it's limited to the admissions office. The United States Supreme Court agreed on both counts, and so I would say that the administration correctly interpreted the intent of Congress in enacting that legislation.
BIDEN: Well, let me read you what wrote in that memo. You said you, quote, strongly agreed.
Now, when my staff sends me a memo saying, Senator, I recommend you do the following, and I strongly agree, that usually is a pretty good indication what they think.
Now, maybe they don't. Maybe they just like to use the word
strongly. They said strongly agreed, usually means they agree, number one.
Number two, you went on to say, and I quote, that if you have the broad interpretation, quote, the federal government will be rummaging, quote, willy-nilly through institutions. So you expressed not only that you strongly agreed, but you thought that if you gave them this power to broadly interpret it to apply to dormitories and all these other things, that they'd rummage willy-nilly through institutions.
Seems to me you had a pretty strong view back then. Maybe you don't have it now.
ROBERTS: And the Supreme Court's conclusion was that that administration position was a correct reading of the law that this body passed.
So if the view was strongly held, it was because I thought that was a correct reading of the law. The Supreme Court concluded that it was a correct reading of the law.
BIDEN: Thanks, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you very much, Senator Biden.
We will recess now until 2:15.