Text of Hearing - Page 10

WASHINGTON, (AP)_ The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 10.

In a memo responding to a letter from three Republican congresswomen that raised concerns about the pay gap that women experience, you said, and I quote, Their slogan may as well be, 'From each according to his ability, to from each according to her gender.'

You also wrote that the congresswomen's concerns quote, ignore the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the workforce for extended periods of time, et cetera.

In another memo, you implied that it's a canard that women are discriminated against because they received 59 cents at that time, to every $1 earned by men.

In a September 26th, 1983 memo to Fred Fielding, you rejected an alternative proposed constitutional amendment guaranteeing equal rights to women.

In 1982, you wrote a memo to then attorney general in which refer to the task force which was to conduct a government-wide review to determine those laws which discriminate on the basis of gender as the ladies' task force.

I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way. Did you really think that way, and do you think that way today?

ROBERTS: Senator, I have always supported and support today equal rights for women, particularly in the workplace. ROBERTS: I was very pleased when I saw, for example, the report of the National Association of Women Lawyers, who went out and talked and interviewed with women lawyers who have worked with me, who have appeared before me.

And the conclusion was that I not only always treated women lawyers with respect and equal dignity, but that I had made special accommodations for life/work issues to ensure that women could continue to progress, for example, at my law firm, and had always treated women who appeared before me in a perfectly professional way.

FEINSTEIN: Then why say those things?

ROBERTS: Well, let's take the first one you mentioned.

I'm -- it is to me, obvious, in the memo that I wrote to Fred Fielding that it was about whether or not it's good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it.

The point was, is it good to have more lawyers? That's the way I intended it, and I'm sure that's the way...

FEINSTEIN: And you don't think it was good to have more lawyers?

ROBERTS: I think there were probably -- the point that Mr. Fielding and I had commented on, on many occasions, was that in many areas there were too many lawyers.

And that's a common joke that goes back to Shakespeare. It has nothing to do with homemakers.

The notion that that was my view is totally inconsistent and rebutted by my life.

I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.

FEINSTEIN: I don't want to belabor it.

I'm just trying to understand how you think, because you appear -- you know, you speak about modesty and humility, and yet none of these comments are modest or humble.

ROBERTS: Well, those comments were in the nature of the tone that was encouraged in our office.

It was a small office. They expected return projects around very quickly. We were expected to be candid. And if making a joke about lawyers would make for a more enjoyable day on the part of the people in the office, that's what we did.

FEINSTEIN: So it's fair to say you don't think that way? Is that correct?

ROBERTS: Well, I don't think in any way that is based on anything other than full equal citizenship rights on the basis of gender.

I might tell a lawyer's joke that there are too many lawyers today, but that's all it was back then. ROBERTS: On the memo, you quoted with respect to the issue of comparable work.

The one thing the memorandum made clear is that the position of the administration was there must be equal pay for equal work. That wasn't the issue in that case. The issue there was whether there should be equal pay for different work and whether judges should determine what type of work was equal.

FEINSTEIN: I'm not arguing that. I'm just arguing what you -- or bringing to your attention what you said then. But I don't want to belabor it. I think you have answered the question.

Now, let me ask you a question on Canerino v. Wilson. This is about the same time in 1982. And you pointed out in answers to prior questions whether -- that you were staff and you generally did what people asked you to do.

In this case, William Bradford Reynolds, the top attorney in the Civil Rights Division, indicated that there had been substantial, he thought, discrimination in prisons in Kentucky and that the Justice Department had done an investigation. And they found that male prisoners were given training for higher paid jobs, for greater variety of jobs and were given training for longer periods of time.

Your memo contradicted his recommendation to intervene. Why would that be if you just follow the policy of the office?

ROBERTS: My understanding there was that there was a question -- whether intervention in that case -- the case was being pursued by private litigants already. The question whether intervention by the federal government in that case was consistent with the attorney general's approach to institutional litigation.

That was an approach that he had laid out in several speeches, memoranda. And as a staff member it was my job to call to his attention areas where I thought there may be inconsistencies in areas where he wanted to set policy priorities. FEINSTEIN: In response to the chairman's question this morning about the right to privacy, you answered that you believed that there is an implied right to privacy in the Constitution, that it's been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning.

Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?

ROBERTS: Well, Senator, first of all, I don't necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated...

FEINSTEIN: Part of liberty, then.

ROBERTS: Yes. And the exact scope of it, with respect to the beginning of life and the end of life, those are issues that are coming before the court in both respects, and I don't think that I should go further to elaborate upon whether or not it applies in those particular situations.

FEINSTEIN: All right.

ROBERTS: Obviously, it has been articulated by the court in both contexts, in the Cruzan case with respect to the end of life, the Glucksberg case following Cruzan.

But I don't think it's appropriate for me, given the fact that cases arise on both of those questions, to go further.

FEINSTEIN: All right. Let's move right along.

This morning, there was a discussion about stare decisis. You pointed out there were factors in a consideration of stare decisis. I think one of the things you said was workability of framework is one of the main principles you look for in stare decisis.

Well, in its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case.

In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable.

FEINSTEIN: Do you agree with this conclusion?

ROBERTS: Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis. I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the court. It is a precedent on precedent. In other words, it has examined Roe and...

FEINSTEIN: So you agree that the court said that, obviously.

ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the court.

But in terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line and that's where I've drawn the line.

FEINSTEIN: So workability is clearly one thing. Is another one reliance?

ROBERTS: Certainly -- or, as it's often expressed in the court's opinions, the settled expectations. People expect that the law is going to be what the court has told them the law is going to be. And that's an important consideration.

FEINSTEIN: And in Casey, again, the court stated, and I quote,

The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives and that this ability to control their reproductive lives was enough of a reliance to sustain Roe.


ROBERTS: That's what the court concluded -- I think you're reading from the plurality opinion -- the joint opinion in the case.

FEINSTEIN: That's correct. That's correct.

Now, unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient? ROBERTS: Well, again, I think that's asking me whether I think the decision was correct or not on that point.

It certainly was the analysis that the joint opinion in the court entitled to respect it as precedent like any other decision of the court under principles of stare decisis.

And that would certainly be where I would begin. If any of these issues come before the court, if I were to be confirmed, I would begin with the precedent that the court has laid out in this area.

FEINSTEIN: One other question on Casey, and I'd like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing, in a discussion with then-Senator Brown.

The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner.

And Casey, which, in other respects, has been greeted in some quarters with great distress, answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband.

Do you agree?

ROBERTS: That is what Casey held, yes. And that's, as I said before, a precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.

FEINSTEIN: Thank you.

One other reading from Justice Ginsburg's testimony: Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred; that two strands, equality and autonomy, both figure in the full portrayal.

Do you agree or disagree?

ROBERTS: Well, I think then Justice -- then-Judge -- Ginsburg felt at greater liberty to discuss that precisely for the reason that you noted, that she had given a lecture on the subject.

Those are issues that come up again and again before the court. And, consistent with what I understand the approach to have been of other nominees, I don't think I should express a view on that. FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender.

Specifically, your brief stated, quote, Unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender, end quote.

In your oral argument you went on to make this point by comparing Operation Rescue's attempts to prevent a woman from exercising her privacy right to make decisions about her pregnancy to an ecologist's efforts to block an Indian tribe from using their exclusive fishing rights.