Text of Hearing - Part 8

WASHINGTON (AP) _The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 8:

ROBERTS: And we were reiterating that position. This was before the Supreme Court issued its decision in Casey. That was the view of the administration and the conclusion.

I don't think there's anything in there that suggests we think or thought that anybody at that time who disagreed was unreasonable. That was our legal position. The other side's was obviously presented in those cases.

KOHL: So you are saying here that there is no support in the text, structure or history of the Constitution for that position. That's pretty flat out, pretty straight, pretty black and white.

ROBERTS: And in those cases, the other side argued that there was. And I don't think there's anything in either of those views that suggests you don't think that reasonable people can take different positions on those questions.

KOHL: You have today suggested on numerous occasions that the things that you represented in writing or an opinion back in the '80s and into the '90's, working for the Reagan administration and working for the attorney general and then finally working as deputy solicitor attorney general, were, in many cases, the opinions of people for whom you worked, not necessarily your own.

I assume, therefore, there are -- those are opinions that you are prepared to disavow?

ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked. And in some instances those are consistent with personal views. In other instances, they may not be. In most instances, no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.

KOHL: I appreciate that. And now that we are talking about you in an entirely different situation, of course, our curiosity is: Which of those positions were you supportive of or are you still supportive of and which would you disavow?

ROBERTS: Well, at this point, of course, we're now 23, 24 years later. I would not -- I would have to address each of those positions anew. I wouldn't try to transport myself back 24 years and say: What did you think 24 years ago? And that would require me to look at and examine all those things.

And of course, it's not how I would look at the issue if I were a judge. If I were a staff lawyer advancing a particular view, it's one thing. And a judge, I would want to confront the issue with an open mind, to fully and fairly consider the briefs and arguments of all parties, to consider the record -- we've talked today about how important a record is in a particular case -- consider the law and the precedent.

But, of course, the law and the precedents have changed in many of these areas dramatically over the past 24 years. ROBERTS: I'd have to consider all those before reaching a conclusion in any of those particular areas.

KOHL: It would be helpful to many of us to know which of those positions you took then no longer represent the position that you would take today. I think that would show a change as we grow and develop and experience life. That would be illuminating and enlightening, to many of us, to hear what some of those positions you took then no longer are represented in your thought process today.

Judge, as we all know, the Griswold v. Connecticut case guarantees that there is a fundamental right to privacy in the Constitution as it applies to contraception.

Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?

ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

That is the approach that the court has taken in subsequent cases, rather than in the (inaudible) and emanations that were discussed in Justice Douglas' opinion.

And that view of the result is, I think, consistent with the subsequent development of the law which has focused on the due process clause and liberty, rather than Justice Douglas' approach.

KOHL: Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception, that you've essentially accepted -- scholars have said this -- essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.

These scholars reason that it follows logically that, if a woman's right to privacy and her control of her body includes the right to contraception, that it also includes a woman's right to choose to terminate her pregnancy.

I am not sure whether you wish to comment on that. I just wanted to point out to you something that I'm sure you are familiar with, that there is, in constitutional thought, a follow from Griswold to Roe.

ROBERTS: Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. It was surprising when it came before the court in 1965, I think, to many people.

The other area is an area that is, to quote Justice Ginsburg from her hearings, live with business. There are cases that arise there.

And so that's an area that I do not feel it appropriate for me to comment on.

KOHL: Sure. I appreciate that.

Judge, as we all know, you were originally nominated to replace the first woman ever to sit on the Supreme Court, Sandra Day O'Connor. There was a lot of speculation when she announced her requirement that the president might choose a woman to replace her. And she even suggested a little disappointment, not with you, but with the fact that a woman was not chosen.

KOHL: Had the president told you that the selection was down to you and an equally qualified woman for the post, but that he thought a woman was needed, would you have seen that as a reasonable conclusion on his part?

ROBERTS: I certainly think presidents have and will consider a broad range of issues and characteristics and qualifications in selecting their nominees, and that's certainly one for a president to consider.

KOHL: All things being equal, in terms of qualifications, would you be pleased if the president chose a woman to replace Sandra Day O'Connor?

ROBERTS: The upcoming vacancy?

KOHL: Yes.


ROBERTS: I just wanted to make clear we weren't talking about this one.


I don't think it's appropriate for me to comment in any way about the president's future selections other than to say that I'm happy with his past ones.


KOHL: You're not an automaton.


Judge Roberts, in an October 3, 1983, memo you wrote that while you served as associate White House counsel for the Reagan administration, you expressed support for judicial term limits. You did specifically support the idea of limiting judicial terms to 15 years and you said, I quote, to ensure that federal judges would not lose all touch with reality through decades of ivory tower existence, unquote.

And do you still support in theory the idea of judicial term limits?

ROBERTS: You know, that would be one of those memos that I no longer agree with, Senator.


I didn't fully appreciate what was involved in the confirmation process when I wrote that.


You know, the sentiments that were expressed there I think are certainly something that's worth discussing.

Perhaps my basic point was when the framers established the system of life tenure, people didn't live as long as they do now.

You know, I do think there are concerns, though, that I may be a little bit more sensitive to now than I was then, and they have to do with sort of a definite cut-off point.

I am not sure that's healthy for the institution of the judiciary, for people to know, for example, well, it's sort of like as you say, term limits; that if we wait another year, this judge will be gone or that justice will be gone.

I'm not sure today, from where I sit, that that is a good or healthy thing for the judiciary.

MORE KOHL: So you do not support term limits anymore?

ROBERTS: I have to say I do not, because I do think that that restriction at the end, so litigants could look and shape their litigation in light of who they think the judges or justices might be, I think that's not a healthy development.

I would note that, if I'm remembering the memo correctly, I think it was a proposed constitutional amendment, which I'm not sure, but I think that obviously is a policy choice that the Constitution allows to be pursued through that process.

KOHL: All right.

Judge, as you know, confronted with a legal problem, most American families, unlike wealthy families and very large businesses, lack the resources to hire the largest and most preeminent law firms to do their bidding.

And do you agree that for our nation's working people securing civil justice is often rendered substantially much more difficult because it simply does cost too much?

Do you have suggestions for addressing this issue?

Do you worry that captivating national events, such as the O.J. Simpson and Michael Jackson trials, reinforce the view that in this country justice can be for sale and available to those who can afford it?

ROBERTS: You know, I do think that the availability of legal services is not as broad and widespread as it should be. There are so many things and areas where I think lawyers could make a valuable contribution, but it's too expensive.

There are a number of responses that I think the bar should be taking. Obviously, for those at the lowest end of the income scale, I think there's an obligation to provide pro bono legal services. I think the big firms, little firms, medium firms, everybody needs to get involved in that.

There's not enough appreciation about how you can do that. For example, everybody thinks in terms of bringing a big case, litigation. ROBERTS: You know, lawyers who do estate work can provide extremely valuable pro bono services. Lawyers who do tax work can provide extremely valuable pro bono services. The whole range of services -- corporate work. I know lawyers in my old firm would do a lot of pro bono services helping set up nonprofit organizations, ensuring that they're complying with the law.

People need to be a little more creative in the ways in which they can help. I regard that as an obligation of the bar.

And I do think that in fact in many cases the situation you get is the people at the lowest end have access to pro bono services. People at the highest end can pay. And it's the people in the middle who are left without legal services that could be extremely valuable. And I do think the bar needs to do more. I think firms need to do more. Individual lawyers need to do more.

KOHL: Judge Roberts, as you know, over the last two decades or so, there have been several bills introduced in Congress to strip the Supreme Court and all other federal courts of their jurisdiction over many issues. These bills are generally sponsored by people who are unhappy with various court decisions, including decisions on things like school prayer, remedies for school desegregation and even a woman's right to choose.

While you served in the Justice Department and in the White House Counsel's Office in the Reagan administration in the 1980s, you did state that you believed that bills stripping the court's jurisdiction were constitutionally permissible.

Do you still hold this view? Do you think it is the right way for us to go, to allow legislatures to strip your authority to review cases?

ROBERTS: I know the memos to which you are referring make the point -- answer to your second question -- I said that they were a bad idea. They were a bad policy. I had been asked earlier when I was -- back in 1981, I believe, when I was working in the attorney general's office, to present to him an affirmative case for the proposition that the proposals were constitutional.

He was getting an opinion that they were unconstitutional. He had to make that decision for the department's position. He wanted me to argue the other side. And I did. I prepared a memorandum presenting the best argument I could that these proposals were constitutional. ROBERTS: The two memos to which you refer in the White House, where I suggested I thought they were, suggest that my memo persuaded me, if nobody else. The attorney general adopted, instead, the contrary position. And I think my views may have had something to do with the proximity to my own advocacy at the time.

As I say, I did say they were a bad policy. The reason I thought they were a bad policy is because they lead to a situation where there's arguable inconsistency and disuniformity in federal law.

If you don't have the Supreme Court with jurisdiction to address that, then you get different decisions and that was a -- that's bad policy.

If I were to look at the question today, to be honest with you, I don't know where I would come out. I think one of the questions I would have is whether these concerns I had that I labeled as policy concerns might more appropriately be considered legal arguments; in other words, not a policy dispute, but a legal argument.

That's the way the opinion of the Office of Legal Counsel that the attorney general agreed with viewed it. They said these -- the fact of disuniformity and inconsistency is a legal argument against the constitutionality. It's not simply a bad policy decision.

And I'm not sure where I would regard that determination today.

KOHL: Really?

Are you saying that you're not sure where you would come out if you were faced with the decision to go along with or to fight legislative attempts to take away the court's authority?

ROBERTS: Well, I don't think -- on the question of legislative attempts, I think my view is the same now as it was 24 years ago, which is that these are -- it's a bad idea. It's bad policy.

I was talking about the other question about whether it's constitutional or not. And on that, of course, I don't think I should express a determinative view because, as you know, these proposals do come up and one may be enacted.

And if that is the case, then I'd have to address that question on the court. It could be on the court I'm on now or another court. KOHL: So in that case -- or in this case -- your heart might tell you that it's a bad idea; your mind might tell you it's constitutional?

ROBERTS: Well, I don't know what my mind would tell me.

KOHL: I mean, theoretically...

ROBERTS: But I feel comfortable with the conclusion, as I was 24 years ago, that it's a bad idea.

KOHL: All right.

ROBERTS: They're bad policy.

KOHL: Judge, since your nomination, literally -- as you know -- tens of thousands of pages of your writings as a young White House aide have been released and looked at very carefully.

In some of these writings, you took very pointed positions, as we discussed -- some political, some constitutional and some that have raised eyebrows.

I also think about myself when I was in my 20s and then when I was at the age which you are now and who I have become today and how I have changed, matured, and hopefully grown as I have gotten older.

I'm sure when you've had a chance to review some of your old work as part of this process, that there are things that you wrote back then that make you cringe perhaps today.

Are there positions you took back then as a 20-something lawyer that you would not take today?

Can you give us a couple of examples of positions that you took then that, as you have grown and developed and as are now sitting before us to be the chief justice of the United States of America, that you are today not the person that you were back when you were at 20-something?

ROBERTS: Well, we've talked about the term limits for judges. More generally, as I look at all of these documents -- and the numbers, somebody said 80,000 pages; it's a little daunting -- I don't know that there are particular issues. I mean, you have to remember this is 23, 22, 24 years ago.

In many of these cases, not only have I changed, the law has changed dramatically in more than two decades. You know, I'm sure -- and again, of the many that have been released, I will say that it's really only a handful that have attracted attention for one reason or another.

And I do think if you look at the whole body of work that I would hope people would leave that with a favorable impression.

Certainly, there are many areas where it appears that I knew a lot more when I was 25 than I think I know now when I'm 50. I had a lot of different experiences in the intervening period that give you valuable perspective.

In that intervening period, for example, I left the government, went out in the private sector, litigated a lot of cases against the government.

You do get a different view of things when you're on the other side. I think that's extremely valuable.

I hope, as you suggest, I've grown as a person over that period as well. And that also gives you some perspective. And that type of a perspective might cause somebody to moderate their tone with respect to some issues, and in some areas, and I'm sure that's the case.

I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers.

KOHL: I thank you, Judge Roberts.

Thank you, Mr. Chairman. ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Kohl.

Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

Judge, good afternoon.

ROBERTS: Good afternoon.

DEWINE: I guess the good news is that I represent halfway point.

SPECTER: On the first round.

DEWINE: The bad news is, it's the first round.


Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.

Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.

As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.

And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.

So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.

But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in. DEWINE: Because really it is a question of the utmost national security. These are people who are going to make sometimes life and death decisions for our country.

ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.

I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.

I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.

This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.

I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.

Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.

DEWINE: I appreciate your personal attention to that. I know how important you know it is, Judge.

And I would just add one more comment, that that court, as all courts do, but even more so, not only makes decisions, not only decides whether to issue the warrant or not, but it's the feedback that the Justice Department gets and the law enforcement agencies get that tells them what they can do and can't do. And that feedback is unbelievably important and it affects the intelligence operations in this country and is just vitally, vitally important. DEWINE: Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.

In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.

At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question.

The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. CIO, a 1939 case which you are well familiar with.

I want to quote it very briefly: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembling, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has from ancient times been a part of the privileges, immunities, rights and liberties of citizens, end of quote.

Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.