Text of Hearing - Part 13

WASHINGTON, (AP) _ The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 13.


SPECTER: The hearing will resume.

Just a little late in coming back because we were on the floor trying to figure out what the Senate schedule is going to be, when we would vote next. And while that's uncertain, I believe it is reasonable to conclude that we will not vote until 7:30. That gives us latitude to move ahead with five more rounds, where we will finish at about 7:30, a little later because we're not starting quite at 5, 7:45.

So we will proceed with Senator Feingold now, and then Senator Graham from 5:30 to 6, Senator Schumer from 6 to 6:30, Senator Cornyn from 6:30 to 7, and Senator Durbin from 7 to 7:30. That's back by 15 minutes, because we're 15 slow coming out of the gate.

LEAHY: You notice the sheer, undisguised glee on the face of Judge Roberts at the idea of going another three hours of this.

SPECTER: Well, I consulted with Senator Leahy, Judge Roberts, and the empirical evidence is overwhelming, without consultation, that you're fit to go indefinitely.

ROBERTS: I'm ready to go.

SPECTER: Is that judgment satisfactory to you, Judge Roberts?

ROBERTS: Absolutely.

SPECTER: Senator Feingold?

FEINGOLD: Thank you, Mr. Chairman.

Judge Roberts, the eyes of America are on you this week thanks to what our generation called the miracle of live television. Television plays an enormous role in providing information and bringing the country together in times of national pride, like the liftoffs and the landings of spacecrafts and presidential inaugurations, political conflict, like the 2000 election, and the 1999 impeachment trial President Clinton, the great tragedy of September 11th and the devastation wrought by Hurricane Katrina.

Americans can watch virtually every significant event of national importance on television, except for oral arguments and announcement of decisions at the Supreme Court. FEINGOLD: If you are confirmed, you will essentially disappear from public view. This hearing will, in some ways, be the last time that the nation will see you at work.

The possibility of televising trials raises some complicated issues, because we have to consider the safety and rights of criminal defendants and witnesses and jurors, but such concerns are not so present in the case of appellate proceedings.

There is no doubt that there is enormous public interest in Supreme Court oral arguments, but not very many seats in the courthouse.

I think it would benefit the country and the court if all Americans had the chance to see the court conduct its work. So I'd like to know if you as chief justice will support televising the court's public proceedings.

ROBERTS: Senator, it's not something that I have a settled view on. And I do think it's something that I would benefit from the views of my colleagues. And I know that some of them have particular views and some may not.

And I noticed the last time there was a formal response by the court to a request to televise a particular argument, the chief justice referred the matter to the whole court and then reported back on it.

I'm also aware that there are -- I'm not sure if the right word is experimental or trial efforts going on in some of the courts of appeals, the federal courts of appeals, to televise arguments there. And I know I've watched them. So I appreciate that opportunity.

And I don't know yet if there's been an evaluation of how that experiment proceeded, whether the judges thought it went fine, the lawyers or whatever. I just don't know.

At the Supreme Court level, I do know they've experimented recently in a few cases with releasing the audio tapes immediately after the conclusion of the argument. Again, I've listened to those on occasion. Not every case, but selected cases of particular interest.

I know that on our court, my court, I'm sorry, on the Court of Appeals for the D.C. Circuit, we broadcast, at least within the courthouse, simultaneously, the oral arguments. ROBERTS: So I know the technology is there to do that. And I certainly understand the interest and I understand how -- I know it was very well-received to have the audio tapes immediately available in some of those cases.

FEINGOLD: I hope you'll seriously consider this...

ROBERTS: Certainly.

FEINGOLD: It's a change from our good conversation we had about this before. Now you will be the principle decision-maker on this as the chief justice. And I hope you'll give it serious consideration.

Judge Roberts, on September 11, 2001, obviously an event occurred that had a profound effect on all of us in this country. We all have our own memories of that day.

During those first few hours after the attacks, I kept remembering a sentence from a case we both have probably studied in law school. These words were: While the Constitution protects against invasions of individual rights, it is not a suicide pact.

I took these words as a challenge to my concerns about civil liberties at that horrible time in our history. We have to be careful not to take civil liberties so literally that we allow ourselves to be destroyed.

But then, when I actually tracked down the case itself, not remembering what case it was from, it was Kennedy v. Mendoza-Martinez, and I found that Justice Arthur Goldberg made this statement but then went on to rule in favor of the civil liberties position in this case.

He actually affirmed the importance of civil liberties in wartime.

So I would like to start this part of my questions by asking you what kind of impact that day had on you and your belief system, and whether it changed your view of the importance of individual rights and civil liberties and how they can be protected.

ROBERTS: Well, I remember the day vividly, Senator. I think I was one of the last people in the country to find out about it. I had gone into a hearing. It was actually in an original action in the Supreme Court. The special master was at G.W. Law School. And we had a hearing -- I think it was starting a little before 9:00 that day.

We went in there. I remember, just as I was leaving, getting a report that a plane had struck the World Trade Center. But it was -- at the time, I thought it was like one of those tour planes. I had no idea what they were reporting.

I went into the proceeding and we conducted the hearing. It lasted several hours. Nobody notified us and we didn't know about it.

And I remember leaving and trying to walk back to my office -- I was at the law firm then -- and the street was blocked off. And I figured: Well, there's something going on at the White House.

I remember walking down further, and it was still blocked off and still blocked off. I finally went up to one of these Guards and I said, well you know, What's going on?

And he looked at me like, Where have you been?

And only then did I begin to appreciate it. I went back to my office because there was no way to get out of town by then...

FEINGOLD: But at what point did you start thinking about the implications of this, in terms of civil liberties and the challenges this...

ROBERTS: Well, it was when I went back to the office and saw the smoke rising from the Pentagon. And, as you can imagine, that was a chilling sight. And the basic issue of how you address the question of civil liberties in wartime and times of crisis is a critically important one. ROBERTS: The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis. There may be situations where the demands are different and they have to be analyzed appropriately so that things that might have been acceptable in times of war are not acceptable in times of peace.

I think everyone appreciates that. But the Bill of Rights is not suspended and the obligation of the courts to uphold the rule of law is not suspended.

FEINGOLD: Did you recognize at that moment that this might become a time when it would be harder to protect civil liberties?

ROBERTS: I think -- I don't recall recognizing that in particular, but that is, of course, always the challenge in times of war and in times of stress. Whatever the cause, I think it is the obligation of the courts to remember, just as within the model of the D.C. Circuit from our earliest case of the treason trial of Aaron Burr, to calmly poise the scales of justice.

And the emphasis is on calmly. It requires a certain dispassion, a certain separation from the passions of the moment.

FEINGOLD: That's absolutely right. And that's why I want to follow on what Senator Leahy asked about earlier, a different time, a different challenge.

As a nation, we can now look back at wartime Supreme Court decisions like Korematsu v. the United States with something like bewilderment. We talked about it earlier. To me, it seems inconceivable that the United States government would have decided to put huge numbers of citizens in detention centers based on their race and that the Supreme Court would have deferred to the president's decision to do so.

Do you believe that Korematsu was wrongly decided? ROBERTS: It's one of those cases that I don't think it's technically been overruled yet. But I think it's widely recognized as not having precedential value. I do think the result in that case -- Korematsu was actually considered the exclusion, not the actual detention, but the exclusion of individuals based on their ethnic and racial background from vast areas.

And it's hard for me to comprehend the argument that that would be acceptable these days.

FEINGOLD: It's often included, if you list decisions that are sort of considered some of the worst decisions in the history of the Supreme Court with Plessy v. Ferguson and Dred Scott and others. Is that a fair characterization of your view of Korematsu?


FEINGOLD: Are there any elements of the government's response to September 11th that you think, 50 or 60 years from now, we as a nation will look back on with regret?

ROBERTS: I'm sure there are some, Senator. And when you have the benefit of 50 or 60 years to look back as opposed to the particular demands of the moment and the perceived demands, I'm sure it's a different perspective.

I hesitate to mention any in particular because so many of these issues are coming before not only the Supreme Court but the court on which I now sit. And I will have to confront those cases, I think, regardless of what happens here.

So I would hesitate to identify particular areas of concern.

FEINGOLD: I understand your caution. I don't think we need to wait 50 or 60 years for some. For example, do you have any concerns about the practice of extraordinary rendition, of our government secretly sending people to countries that we know use torture?

ROBERTS: Well, again, Senator, that is something that could come before the court in one form or another. And I think I have to refrain from commenting on it.

FEINGOLD: How about the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation, which actually in this case the Justice Department inspector general later heavily criticized? Does that trouble you?

ROBERTS: Well, yes, certainly, at a basic level of appreciating that this is a reaction in a particular way that raises serious questions. I'm very hesitant, though, again to express a view on legality because those issues could come before the court. They are coming before the court and they're coming not only for the Supreme Court but the court on which I now sit.

FEINGOLD: Let's go to one that's already come before the court. The Hamdi case is one of the most significant recent decisions restraining executive branch power.

In that case, eight members of the court found that the government had gone too far in claiming the right to detain and hold a U.S. citizen incommunicado within the United States without access to a lawyer and without charging him with a crime. FEINGOLD: The case actually resulted in four different opinions with four different views on the president's power to detain a U.S. citizen indefinitely and without trial, ranging from Justices Souter and Ginsburg, who found that the president does not have any authority to detain citizens as enemy combatants because such detentions had not been congressionally authorized, to Justice Thomas, who would defer entirely to the executive branch.

Which of the four opinions in a case that's already been decided in Hamdi would you say best approximates your views on the executive powers to designate enemy combatants, the plurality opinion, the Souter/Ginsburg opinion, the Scalia/Stevens dissent, or the Thomas dissent?

ROBERTS: Well, Senator, that does get into the area asking me to comment on which opinions I think are correct that I don't feel it's appropriate for me to go.

I do know that the approach in this area is the approach set forth by Justice Jackson in his concurring opinion in the Youngstown case. That has set the framework for consideration of questions of executive power in times of war and with respect to foreign affairs since it was decided.

And as you know, the issue in those cases and in many of the cases in the Supreme Court is whether Congress has endorsed the executive action, in which case the president has his powers and the powers of Congress; whether Congress has prohibited the executive action, in which case all he has is whatever residual authority he has less the power of Congress; or what often happens, that vast middle area where it's impossible to tell or there's argument about whether Congress has approved the action or not.

The Dames Moore case that was decided in 1981 is an example of that when to resolve the Iranian hostage crisis, the president abrogated claims and relegated those with claims to the Iranian claims tribunal. The issue there, the court looked back at a variety of congressional enactments going way back to the Civil War to try to determine if this type of exercise of authority is something Congress endorsed or opposed. FEINGOLD: But with regard to these opinions, and I understand your hesitance to comment on a particular opinion or the nature of the reasoning, but which of the approaches in terms of the actual finding of the opinion do you find closest to your view?

ROBERTS: Well, again, I don't remember which of those opinions follows the Youngstown analysis the most closely. My understanding of the appropriate approach in this area is that it is the Youngstown analysis, the one sent forth in Justice Jackson's concurring opinion. And I think that is the most appropriate way to flesh out the issues.

You do need to understand, because this is an area in which judges need to understand, there is often conflict between the branches. And you do need to at least set the table correctly to understand, is the president acting with congressional support, against it, or do we have to try to determine which of those areas it is. And I think you do need to lay that analysis out before deciding the case.

FEINGOLD: Last month, when I was home in Wisconsin, a constituent came up and said to me that he believed the D.C. Circuit decision in the Hamdan case, a different case, which you joined in, to uphold the government's ability to try a Guantanamo Bay detainee by military commission, should disqualify you from being on the Supreme Court.

This is apart from the issue that Senator Schumer and I wrote you about, which I'll turn to later. I want to know with regard to the substance of the decision, why do you think someone would think that your decision in that case -- why would somebody come up to me and say that your decision in that case should disqualify you from consideration as a Supreme Court justice?

ROBERTS: Well, Senator, you've touched upon an area in which I cannot comment. That case is still pending. It's pending before the Supreme Court. Under the Judicial Canons of Ethics, Canon 3A(6), I'm not supposed to comment publicly in any way about a case that's still pending.

FEINGOLD: Not asking you to comment on the case. I'm asking you why you think somebody who I represent would care enough about this issue that they would say this should be a disqualify. In other words, characterize what is the issue in the case that would make somebody that concerned that he would make such a statement.

ROBERTS: Well, the issue involves the same sort of issues that you began the discussion with, the question of civil liberties in wartime.

MOREU.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 liberties in wartime.ROBERTS: And certainly I understand people having strong views on that particular question. But whether the decision on the merits was correctly resolved or not, or anything about it, I'm just absolutely prohibited from talking about it by those judicial canons.

There's even an advisory opinion that explains that that canon applies to a Senate confirmation hearing. So my ethical obligation not to comment publicly on a case that's still pending prevents me from saying anything more.

FEINGOLD: Of course I respect your judgment on these matters, but I believe that it's important that a nominee indicate a sense of why people in this country might have some anxiety at this point.

ROBERTS: Well, it's difficult...

FEINGOLD: Events that have occurred since September 11th, and how it creates a climate of fear and particularly fear of government power, that I think it's important not only for members of Congress, but even members of the Supreme Court help minimize. And I'm just trying to get a sense if you feel that concern in the nation.

ROBERTS: I certainly don't minimize the significance of a decision by a court of appeals or by the Supreme Court about the scope of executive authority in this area, about its impact on individual liberties, about the issues of separation of powers and whether the relation between the Congress and the executive, whether the executive is acting with congressional endorsement and support, or in the face of congressional opposition.

Those of course are very sensitive issues and always have been throughout our history. I certainly appreciate that. Those are significant matters. It's just that I'm prohibited from talking about the substance of the case.

FEINGOLD: Let me talk to an aspect of the case that I think you can speak to. Many people were surprised to learn in your questionnaire submitted to the committee that you were interviewed by the attorney general in connection with a possible vacancy on the Supreme Court on April 1st of this year.

Just six years before, you sat in the panel that heard oral arguments in the Hamdan case. While the case was still pending, before a decision was issued, you had additional interviews in May with the vice president, the White House counsel, Mr. Karl Rove and other top officials. FEINGOLD: I'm going to give you an opportunity to explain why you think it was not necessary for you to recuse yourself from this case, but first I'd like to know: Did the possibility of recusal, because you were under serious consideration for Supreme Court, occur to you or was it raised with you at any point prior to the oral argument in the case?

ROBERTS: Senator, that again is a question I can't answer for you. I can't address that.

There's a motion pending in the court seeking to file a petition to recuse and that motion is pending. It's a mater I can't talk about outside of the judicial process.

In addition, because the Hamdan case itself is still pending, I don't think it's appropriate for me to address that.

FEINGOLD: Judge, I'm a little disappointed with that answer. As you know, Senator Schumer and I sent you a letter asking questions about this issue, and then we received a letter on September 1 from the assistant attorney general for legislative affairs at the Department of Justice on your behalf.

It says, quote, Your August 24th letter requested Judge Roberts answer certain questions regarding the D.C. Circuit's recent decision, Hamdan v. Rusmfeld. As you know, Chairman Specter has scheduled hearings on Judge Roberts' nomination to begin immediately after Labor Day. At that time, Judge Roberts will be available to respond to questions from all senators on the committee, unquote.

Now, I took that to mean a little more than telling me you couldn't talk about it. Are you now refusing to answer a question even about when this issue came to your attention?

ROBERTS: Senator, we're talking about the canons of judicial ethics. They are quite clear on the subject. They say I may not talk about a matter that's pending before a court.

FEINGOLD: Even when it first came to your attention?

ROBERTS: That matter is still -- it's pending before the court. My hands are tied. It's not something I can discuss under the canons of ethics.

FEINGOLD: Guess I'll have to move on.

Let's go to voting rights. I want to follow up to Senator Kennedy's questions about the Voting Rights Act and, in particular, about your opposition to amendments to that act in 1982 when you were an adviser to the attorney general in the Reagan administration's Justice Department.

In 1982, Congress voted overwhelmingly to amend Section 2 to reinstate the test for vote delusion that many lower courts had used prior to the City of Mobile case -- one that looked, as we talked about earlier, at the effects of an electoral scheme on the ability of minorities to elect candidates of their choice rather than on the intent behind the scheme.

While you were in the Reagan Justice Department, you seemed to have done almost in your power to thwart that congressional effort. FEINGOLD: Your view was that the intent test should stand. This was the policy position of the Justice Department, which as you've indicated -- and you wholeheartedly supported at the time.

Your memos make that very clear. In one memo, you lamented that the House bill then under consideration would make it much easier to attack a, quote, such widely accepted practices as at-large voting, unquote.

Now those practices, of course, were among the most commonly used systems to prevent the election of any minorities to local government bodies.

We know that the effects test put into place in the 1982 amendments to the Voting Rights Act has been very successful in improving minority representation in Congress and at all levels of government.

Do you believe today that those gains have been good for the country?

ROBERTS: I think the gains under the Voting Rights Act have been very beneficial in promoting the right to vote which is preservative of all other rights.

The issue about how to extend the Voting Rights Act, again, my position was a member of staff in the Justice Department.

The administration position of extending the Voting Rights Act for the longest period in history as is without change was in no sense reflective of any disagreement with the proposition that the Voting Rights Act was extremely valuable in securing not just the right to vote but all other rights...

FEINGOLD: But what I'm trying to get at here, Judge, obviously, is this distinction between effects and intent. Let's follow up on the fact that you said that these gains have been good for the country. Do you believe that these gains we've seen in minority representation would have occurred if your review supporting the intent approach had prevailed in 1982?

ROBERTS: Well, I think some of them would have. I don't know if all of them would have. It's obviously impossible to tell, to go back and determine whether a particular application of a different approach would have had the same results or different results. I think that's very hard to...

FEINGOLD: Do you still believe that the intent test was the more appropriate standard by which to evaluate both dilution claims?