Text of Hearing - Part 14

WASHINGTON (AP) _The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 14.

ROBERTS: Senator, my personal view of the Voting Rights Act is not somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a senator.

FEINGOLD: I'm not questioning what your view was then...

ROBERTS: I'm just saying...

FEINGOLD: ... I'm asking what you think now, having -- this is pretty settled area; I think you'd agreeing -- having seen all this, having been intimately involved in it, knowing it as well as you do, do you believe that the intent test was still the more appropriate standard by which to evaluate vote dilution claims?

ROBERTS: Senator, I haven't studied the Voting Rights Act to determine whether the intent test or the effects test would have different results in different cases under section two. I'm in no position to make a judgment on that.

FEINGOLD: It would be my sense that you would be a person who would, with your enormous abilities and background, to have some sense about that. Obviously, understand that requiring a voter to prove any additional factor makes it harder for the voter to win the case and that to prove the intent of an entire legislative body can be very difficult, especially when a voting system was put in place many years ago, requiring African Americans, Latino voters, many of whom have had limited financial resources, to find evidence of intent was adding an enormous hurdle for them to overcome.

In the Mobile v. Bolden case itself, which was pursued after the Supreme Court's decision in 1980 and before Congress amended the law in 1982, makes it very clear, I think clear to all of us over the years, how difficult that standard was.

African Americans from Mobile, Alabama, had been unable to elect any candidates to the position of city commissioner for every election cycle for something like seven decades. They challenged the method of electing city commissioners that allowed the same majority to choose all the commissioners all the time in at-large elections, and the evidence was very clear that as a practical mater, although African Americans could register and vote, they couldn't elect anyone.

But to get relief under the Supreme Court standard, which you appear to have supported, they had to go to enormous effort and financial expense to prove discriminatory intent, including hiring a historian who could piece together the motivations of city officials who had designed the electoral system almost 100 years earlier.

In this situation, the administration was not bound by a Supreme Court decision in deciding what position to take on the proposed Voting Rights Act amendment. So why at that point did you want to make section two cases so difficult to prove? ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships.

I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point. And it was my job to promote the attorney general's view and the president's view on that issue. And that's what I was doing.

FEINGOLD: I recognize that. What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about whether you were right about -- or the department, let's say, since you were working for them -- whether the department was right on seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.

ROBERTS: Well, Senator, I haven't followed the issue of the particular litigation. I had involvement in some litigation when I was in the Solicitor General's Office in which we were effective in proving violations under the Voting Rights Act.

Many of those cases arose under issues under Section 5 -- pre- clearance issues -- and not under Section 2. I, as a judge, had a case -- a three-judge district court case -- again arising under the pre-clearance provisions. But I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

FEINGOLD: Well, with all respect, and I realize I should move on to another topic, but it just seems how strongly you stated some of these memos -- and I understand you were doing your job -- I would think you'd have a view today whether or not those strong statements still make sense.

But, let me move on. As you know, 42 U.S.C. 1983 is a federal law that allows Americans to sue those who deprive them of their rights under the Constitution or federal statutes.

Section 1983 is a very important law because it has enabled individual whose are deprived of their rights to such things as Medicaid, public housing, child support enforcement and public assistance to enforce those rights in federal court. FEINGOLD: And I'm a little concerned that you seem to consistently argue for making it harder to bring Section 1983 lawsuits. In briefs you have filed, you advanced a series of arguments to effectively reverse decades of Supreme Court decisions and restrict Americans' ability to enforce federal statutory rights under Section 1983.

As deputy solicitor general, you co-authored an amicus brief and argued in front of the Supreme Court in a case called Wilder v. Virginia Hospital Association.

You said that individual Medicaid providers should not be able to sue under Section 1983 to enforce a provision of the Medicaid statute which requires states to reimburse them for services at reasonable rates.

One of the arguments you made is that in order for a statutory right to be enforceable under Section 1983, the court must find that the Congress clearly intended, quote, to authorize private enforcement of that right in federal court, unquote.

You repeated this argument in another case you later argued when you were in private practice, Gonzaga University v. Doe.

The Supreme Court rejected your arguments in Wilder and found that the Medicaid providers could sue. In the later Gonzaga case, the Supreme Court specifically rejected your argument and found that it was not necessary for plaintiffs in a 1983 case to show that Congress intended to create a private right of action to bring a lawsuit, since Section 1983 already supplies a cause of action.

What role did you play in deciding that the government would participate as amicus in the Wilder case? And what role did you play in developing the argument that it made? And did you agree with the position that the government took in the case?

ROBERTS: I'll answer the question, but before I do so, the position I advanced in the Gonzaga case prevailed.

The argument that we made on behalf of the university -- I was obviously representing the university's position -- and they prevailed before the Supreme Court.

In the Wilder case, the determination to participate as an amicus was made by the solicitor general, and I don't recall a particular role in that case. I worked on the brief; I presented the argument. We lost that case 5-4. It was a close issue.

All of these issues go to the question of what Congress intended to do. If Congress had spelled out whether or not a right should be enforceable in court, that is what the determination would be in court. These issues arise only because of confusion over whether or not Congress has spelled out that a right should be enforceable in federal court for damages or not. ROBERTS: And in the Wilder case, the court determined 5-4 that the right should be enforceable in federal court. We were as an amicus supporting one of the states. I don't remember which one it was. And the state was making the argument that there is -- the right is -- the issue in all of these cases is whether the right should be enforceable administratively as opposed to...

FEINGOLD: Excuse me, I'm about to run out of time.

Let me point out that the Supreme Court did not accept the argument that the plaintiffs had to show that Congress intended to create a private right of action.

And I'm wondering now: Do you now agree with the argument that you've consistently made, both as a government lawyer in Wilder and while in private practice in Gonzaga, that individuals should not be able to sue under Section 1983 to enforce a right unless the Supreme Court finds that Congress clearly intended to authorize private enforcement of that particular right in federal court?

ROBERTS: Well, the Gonzaga decision, which there were various arguments made in the brief, the ruling of the court was in favor of the university that I was representing.

And the determination in the Gonzaga case about what should be shown and what has to be shown is one of the precedents of the court that I would follow as any other consistent with rules of stare decisis.

That's not an area in which I have any particular view.

I've argued both sides of that issue: on behalf of plaintiffs, argued in favor of it; and on behalf of defendants, against it.

Again, the issue is not the enforceability as in Gonzaga. The issue was: Should individuals be allowed to bring suit as opposed to action by, in that case, the Department of Education?

FEINGOLD: Thank you for your answers, Judge Roberts.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Feingold.

Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

I imagine the reason that you argued different positions is because people paid you. Is that correct?

ROBERTS: That's how I made my living, Senator.

GRAHAM: OK. I can relate to that.

I imagine it must be very hard to figure out what Congress intends. Do you agree with that?

ROBERTS: Sometimes it's easier than others and sometimes it's hard to read the tea leaves.

GRAHAM: I can relate to that also.

I want to read an excerpt from the National Association of Women Lawyers and their evaluation of you -- 8/30/05 -- As a lawyer and judge, based on interviews the committee conducted, Judge Roberts has treated individual women lawyers fairly and with respect, has fostered careers of women lawyers, has been helpful in enabling women to address work/life balance issues while advancing professionally, and has been consistently described as respectful to female colleagues, female lawyers appearing before him and female employees. GRAHAM: You've been asked about every case, I think, ever written by anyone. I would like to talk to you a little about life.

The idea of judging you based on this section of the commerce clause and that section of the commerce clause is important, but I think most Americans want to know a little bit about you.

And from what I can tell, the people who've worked with you and against you generally like you, and that you've been described as brilliant, one of the best legal minds of your time, well-qualified.

The adjectives go on and on. And I want the record to reflect: That comes from people who know you the best. The best indication of a good lawyer is how people on the other side think of you. And we'll get some excerpts from the record to put that into the record.

Apparently, from what I can tell, you've conducted your life in a noble, honorable manner; that you've been a good litigant; and that you have fought for your causes and you have done so to earn respect of those on both sides of the aisle.

But there's a greater issue here about who you are.

Justice Rehnquist was your mentor, is that correct?

ROBERTS: He's certainly someone from whom I learned a great deal, yes.


So if I was trying to figure out who John Roberts is and a little bit about him, I will ask this question: Write the legacy of Justice Rehnquist for a minute or two. What would you say if given that task?

ROBERTS: Well, you know, I think if you were able to ask him, he would talk about being a grandfather, being a father...

GRAHAM: I'm asking you.

ROBERTS: ... being a husband.

GRAHAM: I'm asking you.

ROBERTS: But the important point is that those were important things in his life and he appreciated the need to recognize that those are the most important things.

With respect to the law to which he devoted his professional life, I think a big part of the legacy that he leaves is a Supreme Court in which all of the members respected and admired him because of his fairness in administering the court and conducting the important responsibilities like managing the conference and assigning opinions. GRAHAM: You can go back in history and look at what other chief justices did.

Some were -- in terms of that administrative responsibility -- some were disasters.

You look at Harlan Stone, his idea of running the conference, he said what he thought, then the next senior justice said what he thought. Then Justice Stone critiqued that. Then the next justice, and then Justice Stone critiqued that.

And the result was the conferences went on for days and everybody ended up hating each other.

So he ran a good ship. I think we all agree with that. And his colleagues respected him whether they disagreed with him or not.

But the basic question is, when you write about the legacy of a Supreme Court justice, you write more than about being a grandfather -- more about running a tight ship, especially chief justice: Would you agree with the idea that, from a conservative point of view, he was the gold standard?

ROBERTS: I think he was a very effective advocate on the bench for a view of the Constitution that is one of limited and separated powers.

GRAHAM: Do you share that view?

ROBERTS: I do. I think that the -- now, I have to tell you that whether as a judge on the court of appeals or if I am confirmed on the Supreme Court, I will certainly be my own man and there are...

GRAHAM: No one is doubting that. No one is doubting that you will not try to be fair. But the big thing, 30,000-foot view of you, is that when you look at Judge Roberts, you're looking at someone in the mold of a Rehnquist. Is that a fair assessment?

ROBERTS: Well, you know, I admire the late chief justice very much. But I will have to insist that I will be my own man and I hesitate to be put in anybody's mold. And I would certainly approach the cases according to the judicial philosophy that I have developed over the years.

In many respects, it's similar to his: in its recognition, I think, of the limited role that judges should have, an appropriate modesty and humility, a recognition that...

GRAHAM: The idea of a dramatic departure under your watch from the Rehnquist era is probably not going to happen, is that true?

ROBERTS: Given my view of the role of a judge which focuses on appropriate modesty and humility, the notion of dramatic departures is not one that I would hold out much hope for. GRAHAM: I know people don't like being labeled, Put me in that category. But I'm in a business where people label me all the time. But I ask for it, I run for office.

But we do tend in our business of politics to try to label people, particularly when we're talking about judges.

When the president introduced you to the United States, to the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words?

ROBERTS: Well, I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their posterity. They were looking ahead. And so they often used phrases that they intended to have...


GRAHAM: Does that term make you feel uncomfortable?


GRAHAM: Now, from a 30,000-foot view of things, it seems to be that we're going to have a referendum on the Reagan era here, which I welcome. I sort of enjoyed it, he won 49 states. He did pretty good.

You were part of the Reagan era as a young lawyer. When I use the word -- term -- Reagan revolution, what does it mean to you?

ROBERTS: Well, it means to me generally a change in attitude. President Reagan always presented an optimistic view. He always told us that the best days of our country were ahead of us. And he reasserted basic fundamental truths in areas like foreign relations. We are going to stand up to the Soviet Union. We're proud of our system of government. That's the right approach, not the Soviet approach. And people who have come of age after the Berlin Wall has fallen sometimes don't understand what it meant at that time.

GRAHAM: When it comes to the law, what does the term Reagan revolution mean to you? ROBERTS: I think it means a belief that we should interpret the Constitution according to its terms; that judges don't shape policy; that judges interpret the law and that legislators shape policy; that the executive branch executes the law.

GRAHAM: Does it also mean that when you talk about affirmative action and you set up a quota system, that's not right?

ROBERTS: President Reagan's policy was opposed to quotas, which were much more rigid at the time.

People need to appreciate 24 years ago the idea of a quota was a rigid set-aside. We now have the recent Supreme Court decisions talking about consideration of particular factors as one factor in an affirmative action program.

President Reagan was in favor of affirmative action and he was opposed to quotas.

GRAHAM: When it comes to voting rights, as I understand -- and we talked a lot about it, and we probably know more than all of us ever dreamed we would know about the Voting Rights Act -- that you were implementing a policy of President Reagan that wanted to pass the Voting Rights Act in its form that you received it. Is that correct?

ROBERTS: The proposal was to extend it for the longest period in history without change.

GRAHAM: And we've been through a long discourse about the effect and intent test. I think you've explained yourself very well that the Supreme Court in the Mobile case said the intent test applies to Section 2. Is that right?

ROBERTS: Section 2.

GRAHAM: But politics took over after that, didn't it? Because the effect test no longer -- that's not the test. Isn't it some compromise between Senator Kennedy and Senator Dole?

ROBERTS: There was a compromise in the test under Section 2, which is articulated in a paragraph describing what the criteria are, including a caution that this should not be read to promote proportional representation, which was some of the concern that the attorney general and President Reagan had.

GRAHAM: So between Dole, Senator Kennedy and President Reagan, a new test was called the totality of the circumstances?


GRAHAM: Now, when you said that you -- Senator Kennedy said something I thought was very important: that courts should not stand in the way of elected officials who are trying to right wrongs. GRAHAM: And the point I'm trying to make here is that you were picked by a conservative president because you have associated yourself with the conservative administrations in the past, advising conservative presidents about conservative policies.

And there's another selection to be made, and you're going to get the same type person.

And you can -- I'm not even talking to you now.


To expect anything else is just not fair. I don't expect -- I didn't expect -- President Clinton to pick you. It's not because you're not well-qualified, not because you're a good person; just a different political, legal philosophy.

Now, that's what we're going to have to come to grips with here.

Justice Scalia: Do you consider him conservative?


GRAHAM: Do you think you're more conservative than he is?

ROBERTS: Oh, I don't know. I mean, I wouldn't...

GRAHAM: Well, he got 98 votes. And I think you're a conservative, but I think you're one of the great minds of our generation, of our time. And I'm dying to find out if you get any votes on the other side.

Time will tell.

Let's talk about righting wrongs here. I think it stinks that somebody can burn the flag and that's called speech.

What do you think about that?

ROBERTS: Well...


We had the Flag Protection Act after the Supreme Court concluded that it was protected speech.

GRAHAM: Show me where the term symbolic speech is in the Constitution.

ROBERTS: Well, it's not.

GRAHAM: It's not. They just made it up, didn't they? And I think it stinks that a kid that can't go to school and say a prayer if he wants to voluntarily.

What do you think about that?

ROBERTS: That's something that's probably inappropriate for me to comment on.

GRAHAM: What do you think Ronald Reagan thought about that?

ROBERTS: His view was that voluntary school prayer was appropriate.

GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn. GRAHAM: What do you think about that?

ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because...

GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials?

ROBERTS: Well, again, those are issues that come before the court on a regular basis in particular cases. And on my current court or the future court, I need to be able to approach those cases with an open mind and not on the basis of statements I make during a confirmation hearing.

GRAHAM: The point is that righting wrongs is a very subjective thing. And you will be asked to decide the fate of people with individual needs and individual desires, based on particular fact patterns and legal briefs.

I'm confident you can do that and that you will do that. And I don't think you need to make a bargain with me to right all the wrongs that I see in life to sit on the Supreme Court.

What's it like to go through the nominating process in 2005 from a personal point of view? I've been watching television, channel flipping, and I see some awful things said about you. Have you seen those things?

ROBERTS: I've seen some things, yes.

GRAHAM: How does that make you feel?

ROBERTS: Well, some of the mischaracterizations, you know, you get annoyed at them. I don't like them. Some of the things you see you get pretty upset about.

GRAHAM: How's it make your family feel?

ROBERTS: I would say they get upset about some of the things, as well.

GRAHAM: But, you know, it's a free country and that's just the way it is. Right?

ROBERTS: It is, and it's an expression I've been using a lot lately. It is a free country, and it's a good thing that it is.

GRAHAM: Let's not talk about you now, but I would like you to comment, give us some advice here. We're always trying to advise the president through you.

What's the long-term effect on the quality of candidates that we'll be able to recruit for jobs like the Supreme Court if the current process continues and grows over time?