Text of Hearing (Part of Jeff Sessions' Q&A) - Part 12

WASHINGTON (AP) _The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 12.

SESSIONS: And then when the Voting Rights Act came up for reauthorization, the legislature, the Congress, passed a law and changed the law that, in effect, said the effects test -- if it had the effect of discriminating or keeping African American citizens from being elected to office, that that could justify the removal of the existing form of government and establishing a new government.

ROBERTS: Well, that's right.

And it's in many areas -- well, certainly every area involving an interpretation of the statute, the final say is not with the Supreme Court, the final say on a statute is with Congress. And if they don't like the Supreme Court's interpretation of it, they can change it. And that's what happened in this case.

SESSIONS: Well, the Voting Rights Act, let me say, is a tremendously critical historical event. It transformed the South.

I think Senator Kennedy or others said that grandchildren and children today are being able to vote because of this right, and that's true. Not only are they being able to vote, they are being able to be judges who supervise elections, sheriffs, mayors, city councilmen, county commissioners.

Alabama has more elected African-American officeholders than any other state in America, and we're proud of that.

But this was a powerful act, and it did change the make-up of county commissions, city commissions, statewide boards all over Alabama, all over America, and it was a big step.

But the Congress made that, and you were correct when you said that your position was consistent with what the Supreme Court ruled at that time.

With regard to the question of comparable worth, I think Senator Feinstein was clear about this, but I'd like to make it a little bit clearer.

You have consistently favored equal pay for equal work, have you not, and did not President Reagan also favor that explicitly and openly?

ROBERTS: Absolutely.

SESSIONS: It's the question of this comparable worth theory that apparently one district court found in favor of, but that every circuit court and every other court that considered it rejected it, that said that some body, some commission, I guess, would decide whether a secretary should be paid as much as a truck driver and make those kind of value-judgment decisions.

Isn't that the difference between (inaudible) two aspects?

ROBERTS: That's right.

Yes, there is no question of equal pay for equal work.

It's the idea that someone should decide that different jobs are of comparable worth and that therefore they should be paid the same. And the district court adopted that approach. It was reversed by the 9th Circuit Court of Appeals in an opinion by then-Judge Anthony Kennedy.

SESSIONS: Well, that's right.

I know he did write on that, and I think that the 6th, 7th, 10th and 9th Circuits all rejected that idea and, frankly, hadn't been heard from since.

I'm glad that you and President Reagan didn't agree to that at the time. We would have commissions of incredible complexity trying to decide very important matters.

The National Academy of Sciences, in fact, found that and declared it did not believe that the value or worth of jobs could be determined by fair and scientific methods.

So I think that's important.

Judge Roberts, I tried a lot of cases in federal district court. I have written appeals to the federal appellate courts and argued a few times in the Court of Appeals.

I'd like for you to help explain to us how this court system works and what an appellate judge does. I mean, appellate judges don't go about to set policy in America, they don't go out to supervise and superintend the legislative and executive branches; they decide cases that come before them. SESSIONS: So isn't it true that, normally, a case would be initiated in a federal district court or state trial court, and a trial would be held -- often with a jury -- and a judgment is rendered?

ROBERTS: That's what most people, most of us, think of when we think of going to court. You're there, you bring in the witnesses, they testify, they're cross-examined by the other side. There is one judge supervising the trial. If it's a jury case, the jury is there.

That's where most of the fact-finding takes place. People have different versions of events. You know, who was there? What did they do? And people tell different stories. And that's where you try to sort that out, either before the jury or the single judge.

SESSIONS: And a judge has to rule. He has to rule on evidentiary matters, on legal matters. Sometimes a judge is in the midst of trial and maybe he makes an error, maybe he doesn't make an error.

But every word of that trial is put down. It's recorded. And so, after the trial, if the losing party is unhappy, they can take an appeal, and when they do that it goes to the federal Court of Appeals for that circuit, and they point out to the Court of Appeals where they think the judge made an error. And they say, This was wrong and we want a new trial judge or remittiture (ph) or some other remedy.

Isn't that what happens when...

ROBERTS: That's right. And the big difference when you get up to the Court of Appeals is that the facts are not really in play anymore. Somebody's been determined -- they think you are guilty or they buy your versions of the events.

The Court of Appeals usually just looks at the legal issues. Somebody says, The judge made a mistake. He shouldn't have let that witness testify, or, He should have recognized that the police had no authority to conduct that search in a criminal case. And that's appealed to the Court of Appeals where, in the federal system, there are three judges and they're just looking at that legal question.

And they just go back and look at the law, the precedents and determine whether or not the law was correctly applied in the trial court or if a mistake had been made and they need to do it over again.

SESSIONS: And if they appeal, the lawyers write sometimes beautiful, carefully written briefs that point out the reasons why they think an error may or may not have occurred.

Isn't that correct?

ROBERTS: As a Court of Appeals judge, that's exactly the kind of brief you are looking for, and every now and then you get one.


SESSIONS: And sometimes when you read the first brief you are persuaded and when you read the second brief you think maybe you weren't so -- maybe it wasn't as clear as you thought it was when you read the first one.

ROBERTS: Not just sometimes, Senator. Quite often that's my reaction. .ROBERTS: That's part of the adversary system. And you need to have lawyers doing a good job presenting the best arguments on either side, so you can feel comfortable that you're making as good a decision as you can.

SESSIONS: And so the lawyers in the case and the clients and the parties want a judge who will carefully read those briefs and be fair and careful in analyzing whether or not they've got a fair trial to ensure justice took place.

ROBERTS: That's what I was always looking for when I was a lawyer, Senator, yes.

SESSIONS: Mr. Chairman, I see the clock is going around in circles down here, I think. What do you want to do about time?

SPECTER: Well, they haven't started the vote. And we all know that that's not totally predictable, even when they say 4:30. Would you care to continue until the vote starts?

SESSIONS: I would be pleased, if the chairman would. So do you know what my time is, now?

SPECTER: You can run the red to -- well, it just went off.

SESSIONS: This is like a football referee -- put so much time back on the clock. It says a minute left.


SPECTER: You can run the red until seven minutes and 30 seconds.

SESSIONS: All right. Very good.


Who am I to disagree with our chairman?

SPECTER: Senator Sessions, if you would...

SESSIONS: I'll have 15 minutes after this?

SPECTER: You have 15 minutes left, yes. Start the clock back at 15 minutes.



SESSIONS: Thank you. A doctor down here is good at mathematics.


Businessman, too.

So, now, but it's even more complicated than that in doing justice. And on the Supreme Court, if a case comes up to you, you will probably have briefs from both parties, you will receive the transcript of the trial that the issue arises from and you'll study that. And you have several law clerks who will help you study that. Every one of the nine Supreme Court justices are also studying this same record and all these briefs. Isn't it true that friends of the court can submit briefs?

ROBERTS: Well, at the Supreme Court level, that's very common. In some cases, there are quite literally hundreds of so-called friends of the court or amicus briefs. Different organizations that are interested in the particular ruling and have a particular perspective. A few of them are even helpful.

SESSIONS: So you review that, and then you frequently set the case, or normally set the case for oral argument. ROBERTS: If the Supreme Court decides to -- this is, of course, a very big part of their function. They get some 10,000 petitions every year of people saying, I want you to hear my case. You know, all lawyers say they're going to take it all the way to the Supreme Court; 10,000 people try to do that every year.

These days the court hears about 80 of those, 80 of those 10,000. And the selection of which 80 to take is obviously a big part of the court's function. But once they've selected those 80 cases, then they go in and have new briefs on the merits and all these amicus briefs are filed from different organizations presenting their arguments or their particular perspective. And then it's set for argument.

SESSIONS: So the lawyers from both sides then appear before the court, over in the Supreme Court building, and they answer questions and make their presentations as to why they think the court should rule the way they would like it to?

ROBERTS: They usually get an hour for the whole case.

So each side gets a half hour and that half hour is taken up almost entirely by the justices' questions.

I went back once and counted the questions during my half hour and there were over 100 questions. Obviously, some of them were rapid-fire questions. If you follow the court, you could probably guess who was asking those. And others are more elaborate questions but more than 100 in a half hour.

So the job of the lawyer there is to be totally prepared to answer all of those questions. And, of course, some of them are going to lead into traps. And you have to be careful about that. Others are going to be the very difficult questions that the court is eventually going to base its decision on. But it's a very both exhilarating and demanding process to go through an oral argument before the Supreme Court.

SESSIONS: And I think there's little doubt that you are the best practitioner of it in the country. But with regard to that you then finish, and do the judges then meet in conference to discuss the case? ROBERTS: They do. The justices, each of whom has prepared the case by not only reading all these briefs and attending the argument, talking it over with their law clerks, but also reading back over the cases, the precedents that the lawyers have been arguing about -- they go back and look at those.

And then just the justices in the conference room -- no clerks, no staff, just the nine justices -- sit in the conference room and talk about it, thrash out the case.

Eventually, they get to a point where they take a vote on what they think the disposition should be. The decision should either be affirmed or reversed or sometimes something else in between -- half affirmed, half reversed, sent back, whatever.

And then the opinion is assigned, and that's still very much part of the process -- the writing of the opinion -- because, quite often, or maybe not quite often, but often enough, the justices find out that, as they try to write a particular opinion, different problems come up; it's not writing as they thought it would.

And sometimes they have to go back and revisit the case because the judge -- the justice -- assigned the opinion decides that it should come out the other way or there should be a different reason, a different basis for the decision.

And then, once the justice who is writing is comfortable with the opinion, they send it around to all of the other chambers, and the individual justices, if they agree with it, they send a memo around to everybody else that says, Please join me. That's just the jargon the justices use. It means please join my name to your opinion.

And sometimes they will have suggestions. You know, I'd be happy to join your opinion, but I disagree with this section, or I disagree with this footnote, or I disagree with this line of reasoning. If you could change that, I would be able to join.

Well, if you are a justice who is getting -- this is the first reaction you have gotten, the first vote back, you might be a little more willing to make change to accommodate that suggestion.

If you've got seven votes already in the bank and somebody says,

Please change this or change that, maybe you're a little less willing, because maybe then some of the others say, Well, now I'm not happy with that change. ROBERTS: And it can obviously get to be a very complicated process as the memos fly back and forth and the court tried to come to some consensus around an opinion.

Often -- maybe too often -- there is not total agreement and somebody will write a dissent and send that around and others will join that.

Concurrence: I can't agree with your reason, but I agree with the result, and so I'm writing separately to give you my reasons.

And the balance changes. Somebody can write a concurrence and, all of a sudden, they've got five votes and it's the majority. And the original majority becomes the concurrence.

But the analysis is done -- and this has been my experience on the court of appeals as well -- a very high level. And I think it's critically important that it's just the justices alone who go into conference room, just as on my court now it's just the judges who go into their conference room because judges and justices in that situation can be a lot more open with their views.

And it's been quite common in my experience over the past more than two years to have a judge say, This is how I view the case, and then another judge say, Well what about this? And the judge says,

Well, I thought about that, or, The record says this.

And you get out the record. You get it out there and look at it.

SESSIONS: But, at some point, you agree to sign on an opinion one way or the other. Right?

And that becomes a decision of a judge and maybe the majority of the court of maybe a dissent. But that's a decision that's made.

Isn't that why you should not, in this hearing today, blithely start expressing opinions on complex matters when you haven't been through that process and start prejudging matters before you've read the briefs, before you've read the transcript, before you've heard the arguments, before you've talked to your clerks, before you've discussed it with other judges?

Isn't that the essence of what justice is, this careful process that leads us to as fair result as humanly possible?

ROBERTS: I think that's perfectly accurate. And, if you had the experience, as I know every judge and every justice has, of having your original view changed when you read either the other side's brief in a case after reading the opening brief, or had your view changed as a result of the discussion at conference, or had your view changed when you tried to write the opinion one way and it came out the other way, then you appreciate the significance of that process.

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U.S. Senator Arlen Specter (R-Pa) Holds A Hearing On The Nomination Of John Roberts To Be Chief Justice Of The Supreme Court,

U.S. Senator Arlen Specter (R-Pa) Holds A Hearing On The Nomination Of John Roberts To Be Chief Justice Of The Supreme Court,

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XXX of that process.ROBERTS: And it's a total distortion and a perversion of that process to start out by saying, Well, I testified under oath that I thought this decision was correct.

So, I'm done, you know. No need to read the briefs, no need to listen to the arguments, no need to go into conference and talk with the other judges on the bench. I have already given my view under oath.

Or even if you are going to be open to reconsideration, to start with that barrier, I testified under oath that this is the correct approach, that this is the right result. Now, maybe you can persuade me otherwise.

Well, that's not the burden that the litigant should have to take. The litigant should be able to know that all of the judges, all the justices that, that person is arguing before have an open mind and are fully open to the process.

SESSIONS: You wouldn't want to call Senator Biden and ask him permission to change the commitment you made, would you, in that hearing?


SESSIONS: Just a joke there a little bit.


You don't want to have to read a transcript of this hearing...


SESSIONS: ... by the time when you try to decide how to rule on a case to make sure you didn't make some commitment.

I mean, I think that's all I wanted to -- the point I would like to make there.

You know, Senator Specter came right out of the chute asking you about stare decisis and Roe and other related-type matters and that's an important question.

As I understand it, you committed to Senator Specter that you would bring no hidden agendas to this matter, that you would consider any case that came up under Roe or any other case that might impact stare decisis and that you would apply reasonable, professional analysis to that, drawing on the history of courts and their opinions in dealing with these cases and would try to make a fair and honest and objective decision.

Is that what I understood you to say?

ROBERTS: That's what I understood my testimony to be, yes, Senator.

SESSIONS: And you are not saying, one way or the other, how you would rule on Roe or some of the other cases that have been...


I feel that it would be very inappropriate for me as a nominee to tell how I would rule on a particular case that might come before the court.

SESSIONS: Well, I would like to know how you would rule on a lot of those cases, too, but I didn't ask you when you came and talked with me, and I don't think it's appropriate.

I don't think those of us who are politically conservative ought to look to the courts to promote our conservative agenda through the manipulation of interpreting words of the Constitution or statutes. SESSIONS: I don't think liberals have a right to ask the court to promote their agenda by twisting the plain meaning of words to accomplish an agenda.

What we need is what you said -- an umpire, fair and objective, that calls it like they see it, based on the discreet case that comes before the judge. And I think that's most important.

And I would just say I don't know the answer to those questions legally and how a law comes out, but I would just offer that our polling data continues to show that our young people and numbers in general are showing that the people are more hostile to abortion than they used to be.

Perhaps it's seeing the sonograms and those kind of things, they -- 75 percent, according to a Harris survey, said that they didn't think an abortion was proper in the second trimester; 85 percent said they didn't think it was proper in the last trimester.

I just saw an interesting article by Mr. Benjamin Wittes. He writes for The Washington Post. He declares he's pro-choice, and says, let go of Roe.

And he goes into an analysis of it. He says -- he said, I'm not necessarily thinking Roe ought to legally be overturned, but if it does die, I won't attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating a justice who might bury it once and for all.

This is in Atlantic Monthly, January of this year.

And he goes on to say, Roe puts liberals in the position of defending a lousy opinion. It disenfranchised millions of conservatives on an issue about which they care deeply, while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support.

He goes on -- as have others -- he goes on to say this, The right to an abortion remains a highly debatable position, both jurisprudentially and morally. SESSIONS: And he also noted that, In the years since the decision, an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground, but thousands of pages of scholarship notwithstanding, the right to abortion remains a constitutionally shaky proposition. Abortion policy is a question that the Constitution, even broadly construed, cannot convincingly be read to resolve.

So that's one opinion, I'm just saying, you will have to deal with.

And I just don't think that we ought to take the view that, that matter is open and shut.

And I hope that you -- we will take you at your word that your mind is open and you will evaluate the matter fairly according to the high standards of justice that you can bring to bear to that issue and any others like it that come up.

Will you give us that commitment?

ROBERTS: Absolutely, Senator.

And I would confront issues in this area, as any other area, with an open mind in light of the arguments, in light of the record, after careful consideration of the views of my colleagues on the bench -- and I would confront these questions just as I would any others that come before the court.

SESSIONS: Well, I'm of the view that the Constitution is a contract with the American people, that developments will occur that clearly fit within the ambit of a fair reading of that Constitution that were never contemplated by the founders.

Things do change and we have to apply new circumstances.

But wouldn't you agree a judge should never make an opinion that is beyond what a fair interpretation of the Constitution would call for?


SESSIONS: Judge Roberts, thank you for responding to my questions and to those of the other members of this body.

You have been open, honest and direct in providing a great view of your judicial philosophy and how you approach cases.

I appreciate the fact that you have correctly avoided some questions, some you should not answer. You hadn't read the briefs and heard the arguments and thought about it -- but you have carefully answered the appropriate questions, and we respect you for it.

Thank you, Mr Chairman.

SPECTER: Thank you, Senator Sessions.

The vote is now in progress.

We will recess until 5:05, at which point we will call on Senator Feingold for his 30 minutes of questioning.

We stand in reces