Text of Hearing - Part II

WASHINGTON (AP) _ The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 11.

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.

Do you think that's an appropriate analogy?

ROBERTS: Well, Senator, it was a position and an argument that the administration made that was accepted by the Supreme Court by a vote of 6-3.

The underlying point was that under the statute at issue in Bray, the Ku Klux Klan Act, required under the Supreme Court's precedent that people engaged in the challenged activity must be motivated by a discriminatory animus.

Obviously, under the Ku Klux Klan Act, the classic case, racial hostility.

And the issue was: Are people opposed -- in the Bray case -- opposed to abortion opposed to women?

And the determination of the court was that, no, that there are people who are opposed to abortion and that does not constitute opposition or discriminatory animus against women and, therefore, that the Ku Klux Klan Act didn't apply.

Many other provisions obviously apply in a case of abortion protester violence, including state law and other provisions of federal law, but the Supreme Court concluded 6-3 that there is no discriminatory animus based on opposition to abortion.

FEINSTEIN: Thank you. I would like to move to another subject because my time is moving on. And that's what's been happening in the court in the last 10 years.

As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause. FEINSTEIN: Yet, in the last decade, the court's reinterpretation of the commerce clause has been used to strike down more than three dozen cases.

The court's future decisions will determine whether the Congress will be able to take necessary action to stop child pornography, combat violent crime, ensure child support payments, prevent discrimination, improve our schools and protect our environment.

My question is, do you agree with the direction in which the Supreme Court has moved in more narrowly interpreting congressional authority to enact laws under the commerce clause?

ROBERTS: Well, of course, I've tried to avoid saying whether I agree or disagree with particular cases, but I would point out in this area in particular, I think it's very important to look at the most recent case, which is the Raich case, the medical marijuana case, because the argument was that these two decisions that you are talking about, that were the first in the 60 years, Lopez and Morrison, the argument there was based on Lopez and Morrison -- Congress lacks the power in this area.

And what the Supreme Court said in the Raich case, which I think is very important, it said there are a lot more precedents on the commerce clause besides Lopez and Morrison.

And the appropriate way to regard those is two decisions in more than 200-year sweep of decisions in which the Supreme Court has given extremely broad -- has recognized extremely broad authority on Congress's part, going all the way back to Gibbons v. Ogden and Chief Justice John Marshall when those commerce clause decisions were important in binding the nation together as a single commercial unit.

So, again, without commenting on whether particular decisions are correct or not, I do think it's important to recognize that the court itself in its most recent decision has said, you need to focus on the broad sweep and not just on those two decisions.

Let me move to the case of the hapless toad, known more commonly as Rancho Viejo v. Norton. Do you believe there's a basis for sustaining the Endangered Species Act other than the commerce clause?

ROBERTS: Well, the opinion I wrote there noted that the panel decision that I thought should be reheard en banc looked at one ground under the commerce clause, and the concluding paragraph in my opinion said that we ought to rehear the case to look at other grounds that were also under the commerce clause, but they were not the particular prong of the commerce clause analysis that the panel opinion had relied on. ROBERTS: And the reason was that, as I explained in the opinion, another circuit court had suggested pointedly that the approach in the panel opinion was inconsistent with the Supreme Court.

And I thought, if there was another basis for sustaining the Endangered Species Act that was not inconsistent in the view of another circuit court, that we ought to look at that and try to do it.

It really reflects a restrained and minimalist approach. If there's a ground that doesn't cause another circuit court to say, you're violating the Supreme Court precedent, we ought to look at that and see if we can...

FEINSTEIN: But the point I'm trying to get at is you're saying that the fact that the toad was almost only found in California means that it was an impermissible use of the Endangered Species Act.

Well, then that raises the question, what if the toad strays across the border, or what if the toad is the last remaining toad?


But the one point I would emphasize is my opinion did not conclude that there was no authority under the commerce clause in just that situation.

There was another dissenting opinion that was filed by another judge who said, this violates the commerce clause. I did not join that opinion.

I wrote separately to say that we should hear this en banc with all of the judges, because there are other ways of sustaining this act that don't implicate the concern that has caused the other circuit to question our approach, that had caused the dissenting judge to conclude there was no authority.

And I thought we ought to look at those other grounds, because if we could sustain it without implicating that objection, that would be better all around.

I did not take the position that it was outside the scope of the commerce clause. It was a question of which ground under the commerce clause we ought to look at.

FEINSTEIN: There's a great deal of concern as to what this then means for the implication for all environmental law, the Clean Water Act, the Clean Air Act.

But if I understand you correctly, what you are saying is that you do not believe that the commerce clause should prohibit legislation in this area, is that correct?

ROBERTS: I have not had occasion to decide that.

I did not decide it in the Rancho Viejo case. ROBERTS: One of the other judges did, and I did not join that opinion. What I said is: We should consider these other grounds.

Now, I didn't have the opportunity, because it was a dissent, from rehearing to consider those other grounds. Those other grounds were what other courts, the 5th Circuit in the GDF case, had used to sustain application of the Endangered Species Act in the cases that came before them.

They didn't get into the question of whether you look at the regulated activity, the building or the actually what was prohibited, the taking of the toad; they analyzed the protection of the endangered species as implicating a commercial activity.

And that allowed them to sustain the act without regard to whether it had an interstate effect itself.

FEINSTEIN: Thank you very much.

I would like to ask a question or two on church and state. I mentioned in my opening statement that, for centuries, people have been persecuted for their religious beliefs. And our country grows more diverse every day, and tensions among different beliefs have grown.

I really believe that there is a brilliance in what the founding fathers did in drafting the First Amendment and how it protected an individual's right to practice their belief, whatever it may be, but also protect against using religion against individuals by prohibiting the government from becoming and/or imposing religion.

In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion.

And he even said, I believe in an America where the separation of church and state is absolute. ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers' experience.

Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers' experience.

FEINSTEIN: You can't answer my question yes or no?

ROBERTS: Well, I don't know what you mean by absolute separation of church and state.

For example, recently in the Ten Commandments case, the court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it. They struck down the posting of the Ten Commandments in a Kentucky courthouse.

Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?

So I don't know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.

FEINSTEIN: It has been reported that during your meeting with Senator Wyden, while discussing end-of-life issues, you cited the dissent of Justice Brandeis in Olmstead.

I would like to quote from it: The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.

They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred as against the government the right to be left alone, the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

Do you agree with Justice Brandeis? ROBERTS: I agree with his expression that it's a basic right to be left alone, and I think that animating principle is a very important one.

With regard to particular restrictions he was talking about, wiretapping or -- I forget the interception actually at issue there -- you know, I don't think it's appropriate to comment on.

But as a general statement of the principle -- and again, it reflects just the basic understanding that it's a free country and the right to be left alone is one of our basic rights. I do agree with that.

FEINSTEIN: I do think the implication of what you said to Senator Wyden -- and I have discussed this with him -- was that one has the right to make their end-of-life decision.

ROBERTS: Well, that's an issue that is before the court in particular cases, and I can't comment on a case that's coming before the court.

If I am confirmed, I would have to confront that case with an open mind in light of the arguments presented, in light of the precedents of the court.

And the litigants in those cases are entitled to have judges that haven't expressed views on that particular case.

FEINSTEIN: Well, let me ask you this question, then: In an interview on PBS after the court ruled in Washington v. Glucksberg, a case involving a state statute that banned assisted suicide, you said,

I think it's important not to have too narrow a view of protecting personal rights --what did you mean by that?

ROBERTS: Well, I went on to explain that any time there's an assertion of a right, there's quite often an assertion of a contrary right.

I think it was similar to the point Senator Kyl was making earlier, that for example, if you are asserting a right against government regulation, then the right of the people to regulate through their elected representatives that's being struck down, that right is being restricted.

So it's usually not -- it's often not we can view that there's a right on one side and there's nothing on the other side. There's often an assertion of a right on the other side.

And what the courts have to do is make sure they provide a level playing field in which people disputing the impact of the Constitution on whose right prevails have judges who will decide that case according to the rule of law and not according to whether they think one right should prevail or another. FEINSTEIN: But do you believe, then, that the federal courts should become involved in end-of-life decisions?

ROBERTS: Well, Senator, that is exactly one of the questions that is before the court. And I cannot answer that in the abstract. I have to answer that on the basis of the parties' arguments, on the basis of the record in the case, on the basis of the precedents. An abstract opinion that would prejudge that case would be inappropriate for a nominee to express.

FEINSTEIN: Let me ask it another way. Do you believe that the courts should have a limited role in that situation?

ROBERTS: I think courts have a limited role in general, and that is that they only interpret the law. They don't make the law. They don't shape the policy.

Now the application of that basic principle, which is very important to me, in a particular case, is obviously something that has to wait for the litigation of that case, the arguments in that case, the arguments of the lawyers about whether it's consistent with the precedents or inconsistent with the precedents. But the basic principle that courts should not be shaping public policy, that's for the legislators, is a fundamental principle with which I agree.

FEINSTEIN: Thank you, Mr. Chairman.

Thank you.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Feinstein.

Since I announced the break at 4:15, I have been advised that there's a vote at 4:30. So Senator Sessions has graciously agreed to split his 30-minute round -- 15 minutes -- and then we'll go vote.

So we'll now turn to Senator Sessions for 15 minutes, and we'll break at that time and take a 15-minute break to go vote.

SESSIONS: Thank you very much, Mr. Chairman.

Judge Roberts, I want to congratulate you on your excellent testimony. You have validated the president's confidence in you. Many people said President Bush obviously looked around and looked around and finally decided to choose the best. And I think that you have proven that correctly.

The ABA has rated you unanimously, American Bar Association, in their formal rating process, unanimously rated you well-qualified, the highest possible rating that they give. And they have quite a number of lawyers that vote on that, so to get a unanimous vote is not that frequent. And for a higher office, they have a higher standard. And I think that particularly is worthwhile that you received that recognition.

I note that some of our legal professional journals have given you remarkable accolades. The American Lawyer in 2004 wrote that you were, quote, one of the Supreme Court's finest practitioners.

And the Legal Times, said, quote, you are one of the top appellate lawyers of your generation. The Legal Times also said that you are, quote, viewed by many as the best Supreme Court advocate in private law firm practice.

Those are high praises, and I think today we have seen why people would think that of you. SESSIONS: I also would offer for the record, Mr. Chairman, a letter from former Democratic attorney general Bill Blatchley from Alabama. He prosecuted the first prosecution of the church bombing cases in Birmingham successfully. He is a lifelong Democrat as he notes, and an elected member of the state Democratic executive committee.

SPECTER: Without objection, it will be made a part of the record.

SESSIONS: He said this: Senator, I know Judge Roberts well. I have entrusted three important appellate matters to him. In each instance, I met with him and engaged him in extensive conversation upon a wide range of topics. Because he is a man of such remarkable intellectual brilliance, I sought him out upon private as well as professional topics, enjoyed more than one meal with him and was, each time, overwhelmed, not only by his intelligence but also his innate sense of fairness, by his sensitivity to every aspect and angle of consideration of every issue addressed by him and by his somber sense of decency and justice.

A somber sense of decency and justice -- pretty good phrase.

My love of my country surpasses politics, Mr. Batchly (ph) says. It compels me to support Judge Roberts in every possible way in order that justice might most effectively prevail in the United States Supreme Court. I am confident in the ability of Judge Roberts to fairly, and without any agenda of any kind, address each legal issue which comes before him. I'm equally confident of his ability to lead the Supreme Court in an administrative capacity. I have no doubt that the diverse opinions of each associate justice sitting on the United States Supreme Court will receive greater deference and consideration under his leadership than under any other chief justice with whom they have ever served. This wise and circumspect man deserves this office.

So I think we have seen a great bipartisan recognition of your capabilities and the respect that you have reaches broadly.

I also would recall, Judge Roberts, that in my opening statement I suggested that the pattern around here is to take out old statements and memorandum and bring them up out of context, and particularly the outside groups and sometimes senators would get confused, or sometimes these groups, I think, deliberately have attempted to paint a picture of you or the positions you took that are not fair or accurate.

I would just want to go over a few cases and deal with some of the issues that you have already been questioned with to make sure that we're square about it. SESSIONS: On the Gwinnett case, the Title IX, the women's education case, the position you took that would deny the right to sue a state entity, a government entity for money damages, wasn't that a position consistent with the position of the Court of Appeals that had written the only opinion on that subject?


SESSIONS: So the Supreme...


ROBERTS: That was the Court of Appeals' position.

SESSIONS: So you, in advocating on that position, were expressing a view that was the view of the highest federal court in the land at that time?


SESSIONS: With the question to the Grove City case, it was good that Senator Grassley -- I'm from Iowa, I knew about that. And I think he clarified that question well here.

With regard to Bolden v. City of Mobile, you and Senator Kennedy had an exchange.

Well, I'm from Mobile. I was not involved in the litigation but know something about that litigation.

And when the exchange ended, as I recall, Senator Kennedy was insisting that the Zimmer case was the established law and that a number of cases had said that effects test applied, whereas you are contending that at the time you took the position you did, that the Supreme Court had ruled that an intent standard was required and that Bolden set the decision on that.

.SESSIONS: And I guess the question for us today, who was right? You or Senator Kennedy?

ROBERTS: Well, I...

SESSIONS: I didn't want to ask you, but go ahead.

ROBERTS: No, I don't know if...

SESSIONS: I see the senator has returned.

ROBERTS: It was a renewal of a debate that was had between the administration and Senator Kennedy 20-plus years ago. And certainly, the issue of whether the Supreme Court had interpreted Section 2 and what it had said and whether or not it was correct was mooted.

Senator Kennedy's position eventually prevailed as a matter of legislation. Through the good offices of Senator Dole and others, the compromise was worked out and the totality of the circumstances test enacted under Section 2.

SESSIONS: Now -- but the truth is, is it not, that Bolden v. City of Mobile had been decided by the Supreme Court, and Bolden v. City of Mobile said that you had to show, when you consider a form of a local government, that before you could throw it out, create a new government for that city, you had to show that it was designed in a way to intentionally deny equal rights to the minority citizens?

ROBERTS: That was my understanding, and certainly the administration's understanding of Mobile and its interpretation of Section 2.

And as I said, the debate was largely mooted by the legislative change that was enacted.

SESSIONS: No, I'm just trying to get this thing straight because I don't want anybody to be misinterpreted.

Bolden v. City of Mobile quoted Zimmer. It was the final word on the matter. And it ruled that before the federal government could throw out a government of a city and require a new government to be established, there had to be an intent to discriminate. And that was consistent with the Voting Rights Act.