ROBERTS: I think it is a very serious threat to the independence and integrity of the courts to politicize them. I think that is not a good development, to regard the courts as simply an extension of the political process. That's not what they are.
I have been fortunate for the past two years to serve on a court in which all of the judges -- and they come, the D.C. Circuit, they come from very active careers in public life and sometimes very identified politically -- but it's a court where those judges put aside those ties and those views and become judges all focused on the same mission of vindicating the rule of law.
And if you look at the decisions on the D.C. Circuit, you'll see that we are almost always unanimous, we almost always come out the same way. And to the extent there are disagreements, they don't shape up along political lines.
That is an ideal. But the more and more that the process becomes politicized, the less likely that that's going to happen.
GRAHAM: Another line of inquiry that's been disturbing to me is that we talk about the clients you represent, whether it be the Ronald Reagan administration or some private sector client, and we tend to hold that maybe unpopular position against the lawyer. There's more and more of that happening.
We've had court of appeal nominees that were accused of being insensitive to the disabled population when they won their case 9-0 in the Supreme Court defending a university from the idea that they were not covered under the Americans with Disabilities Act.
I really do worry that in the future that if we up here start holding who you represent against you, that young lawyers in the future will pass on the hard cases.
What's your thoughts about that?
ROBERTS: You know, it's a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients.
The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. ROBERTS: Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it.
And that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.
GRAHAM: Do you believe it's being eroded?
ROBERTS: I do think there is an unfortunate tendency to attack lawyers because of the positions they press on behalf of clients. And I think that's unfortunate.
GRAHAM: I'm going to give you some examples of a sitting Supreme Court justice and her positions and basically take us back to the good old days where you could have what I think are extreme positions and still make it.
Are you familiar with the ACLU?
GRAHAM: In the conservative world, how does that rank on the food chain?
ROBERTS: I don't know that I could comment on that, but they have a consistent position of promoting civil liberties and a particular view on that.
GRAHAM: If you came to the Reagan administration and the top thing on their resume was the general counsel for the ACLU, do you think they would hire you?
ROBERTS: Might make it a little harder.
I think that's a good observation.
Well, we have, on the sitting Supreme Court now, the former general counsel for the American Civil Liberties Union, who is a very nice lady, extremely qualified -- I don't agree with her hardly at all -- but a great lawyer.
She has written that the age of consent for women should be 12, that all prisons to have gender equality, men and women should be in the same prison because, when you separate them, women prisoners somehow are discriminated against.
She wanted to do away or argued the idea that Mother's and Father's Day should be done away with because it stereotypes men and women -- that there's a constitutional right to prostitution.
I can give you -- and I'll introduce into the record -- writings from her point of view that most conservatives would find totally unacceptable. But this person, this lady, the former ACLU executive counsel, is sitting on the Supreme Court, and she got 96 votes.
She said that there should be federal funding for abortion. 90 percent of our caucus is pro-life -- is that about right? Pretty close? I could assure you that, if a Republican was going to make their vote based on abortion thinking, she would have gotten no votes. Most Americans don't want federal funding of abortion, even though they're divided on the issue of a woman's right to choose. GRAHAM: She has argued that the equal protection clause guarantees a right to abortion.
Now, I completely differ with that, and I'm sure the conservatives in the Senate at the time of her confirmation completely differed with that: the idea the age of consent should be 12, that bigamy statutes are discriminatory to women.
I can go on and on and on.
And the point I'm trying to make is that all of that was put aside, who she represented and what she believed and the position she took, and somehow back then they're able to see in Justice Ginsburg a well-qualified, brilliant legal mind and they deferred to President Clinton because he won the election.
Whether that happens to you, I don't know.
But for the sake of the country and the rule of law, I hope you can be in the ballpark of where she wound up.
Last two questions.
In your opening statement, you articulated the rule of law in a way that I thought was just outstanding. It was emotional, it made sense, average people could understand it: that the courtroom is a quiet place, Judge Roberts, where you park your political ideology and you call the balls and you call the strikes, and you try to give every American a fair shake and you put politics in its perspective.
What is your biggest concern, if any, about the rule of law as it exists in America? And what are the biggest threats to the rule of law as we know it today?
ROBERTS: Well, you know, the rule of law is always vulnerable because the Supreme Court, as has been pointed out often in history, has only the persuasive power of its opinions to command respect.
There have been famous episodes in the past, you know -- President Jackson, Chief Justice Marshall has given his opinion; let's see him enforce it -- other episodes of that sort.
But over time, the legitimacy of the Supreme Court has been established and it's generally recognized across the political spectrum that it is the obligation of the court to say what the law is and that the other branches have the obligation to obey what the Supreme Court says the law is. ROBERTS: The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law.
And because it's the Supreme Court, people are going to follow it even though they're making the law.
The judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before, and I'll just repeat myself: The framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, Let's take all the difficult issues before us and let's have the judges decide them. That would have been the farthest thing from their mind.
The judges had the obligation to decide cases and the authority to interpret the Constitution because they had to decide cases. And they were going to decide those cases according to the law, not according to their personal preferences.
Judges have to have the courage to make the unpopular decisions when they have to. That sometimes involves striking down acts of Congress. That sometimes involves ruling that acts of that executive are unconstitutional. That is a requirement of the judicial oath. You have to have that courage, but you also have to have the self- restraint to recognize that your role is limited to interpreting the law and does not include making the law.
GRAHAM: What would you like history to say about you when it's all said and done?
ROBERTS: I'd like them to start by saying: He was confirmed.
Whether they say that or not, I would like -- the answer is the same, I would like them to say I was a good judge.
GRAHAM: Thank you very much. I have no further questions.
SPECTER: Thank you very much, Senator Graham.
SCHUMER: Thank you, Mr. Chairman.
And thank you, Judge. SCHUMER: It's been a long day, and I guess we have a little bit longer to go.
But you've been talking something about baseball. We've been talking about it this morning.
I'll start out by pitching you something of a softball, an issue I think on which reasonable Americans can agree, and those are the recent and abhorrent attacks on the federal judiciary.
Many Americans have become concerned that the judiciary have come under escalating and, many would say, inappropriate and unjustified criticism from certain quarters -- not just criticism of the legal reasoning, but it goes way beyond that. The rhetoric gets pretty hot.
And, as you know, one of your mentors and our late Chief Justice Rehnquist was a passionate defender of the independence of the judiciary. I didn't agree on with him on a whole lot of things, but I sure respected that. And he did a good job both with our committee and everywhere else, making sure that happened.
So you will be chief justice. We haven't talked about your role much here much as chief justice -- the chief, the leader of the courts, the head of the judiciary. And I think one of your important roles is to defend the independence of the judiciary.
So I'm going to read you a few statements that were made about federal judges in recent months. Televangelist Pat Robertson claims that, quote, An out-of-control judiciary is the single greatest threat to democracy, unquote; that judges are creating a, quote,
tyranny of oligarchy, unquote; and that the threat posed by the federal judiciary is, quote, probably more serious than a few bearded terrorists who fly into buildings.
Do you find that -- do you disagree with that statement?
ROBERTS: I do disagree with that conclusion, Senator. I think it's perfectly appropriate for people to criticize decisions of judges. That comes with the territory. It's a healthy thing. That type of criticism and analysis, saying the judge got it wrong, the court got it wrong, is healthy and good.
ROBERTS: And the only thing I would say is I'm not sure whether that criticism is along that lines.
But personal attacks on judges for doing their best to live up to the judicial oath, that is something that I don't think is appropriate.
SCHUMER: Isn't this language -- I'm asking about this language. This doesn't seem to be a legal didaction about a court case. When somebody says...
ROBERTS: No, it's not an analysis.
SCHUMER: ... judges are probably more serious -- the threat posed by federal judges is, quote, probably more serious than a few bearded terrorists who fly into buildings, isn't that kind of quote abhorrent and inimical to our system?
ROBERTS: I don't agree with that. And all I'm saying is that I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges -- and certainly even judges with whom I disagree on the results or particular merits -- they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate.
SCHUMER: Would you be a little stronger than that in terms of language like this? I mean, not appropriate, is kind of mild in these kinds of sort of inflammatory-type statements about the judiciary that you may soon be entrusted with protecting.
ROBERTS: Senator, I said yesterday that if confirmed I would be vigilant to protect the independence and integrity of the Supreme Court and the judicial branch, and that is true. An independent judiciary is one of the keys to safeguarding the rule of law. Again, I said that yesterday and I believe that. And to the extent the judiciary is attacked, I will be vigilant to respond and defend it.
SCHUMER: Let me read you two more and just tell me how you'd characterize them.
Conservative lawyer and author Edwin V. Aris (ph) suggested that Justice Kennedy, an appointee of Ronald Reagan, ought to be impeached for his decisions, and quoted Stalin's infamous problem-solving solution of, quote, no man, no problem.
And Tony Perkins of the Family Research Council said, quote, The court has become increasingly hostile to Christianity and it poses a greater threat to representative government more than anything, more than budget deficits, more than terrorist groups.
Do you strongly disagree?
Don't those statements turn your insides a little bit?
ROBERTS: You know, again, I don't agree with them.
But it's a free country. They're free to say what they wish.
But the issue of impeachment was resolved in the Salmon Chase hearing. The basic principle was established: You don't impeach judges if you disagree with their decisions.
That's not what the impeachment provision is for.
SCHUMER: Take it and just answer.
If you became chief justice, you would do whatever you could to dispel these kinds of notions and oppose people who said things like this when they say these things?
ROBERTS: Well, I would do what I can, Senator, to make clear to people -- and I do think it's an important educating function -- that what judges do promotes the rule of law, and that the rule of law preserves liberties for all Americans.
I'm obviously not going to infringe anybody's First Amendment rights. People are free to say what they are.
SCHUMER: I'm not asking that.
I'm asking just your First Amendment opinion of these kinds of things, and the most I guess you said is you disagree.
ROBERTS: Senator, people from all across the political spectrum have attacked judges. They do it now. I've seen some very virulent attacks from all over the political spectrum and certainly throughout history.
Again, judges can stand the criticism of their opinions, but personal attacks I think are beyond the pale.
SCHUMER: OK. I'd like to go over some other things here.
I have to say I've been pleasantly surprised by some of your answers today.
As you know from our private meetings and my opening statement yesterday, my principal concern is ensuring that we don't have people on our court who will dismantle the structural protections that have guaranteed our most fundamental constitutional rights. SCHUMER: And what troubles me and why I think many people are bothered by this right now, is that the president has openly stated that nominees will be chosen in the mold of justices who have stated, repeatedly, their desire to roll back the clock on some of these basic protections.
In my view, over the past 60 or 70 years, maybe longer, three legs have sustained our constitutional rights: the Fourteenth Amendment's guarantees of equal protection and substantive due process; the right to privacy; and a broad delegation of authority to Congress to pass legislation -- usually under the commerce clause -- necessary to protect our nation's security, the environment, Americans' health and workers' civil rights.
On the first two, you have given answers that I think show that you want to protect those rights. And I just want to repeat them and just make sure that you're on the record for them.
To Senator Biden -- he asked: Do you agree there's a right to privacy to be found in the liberty clause of the Fourteenth Amendment? And you responded, I do, Senator. Liberty is not limited to freedom from physical restraint. It does cover areas, as you said, such as privacy, and it's not protected only in procedural terms but it's protected substantively as well.
That accurately states your view?
SCHUMER: And on the Griswold case and the right to privacy there, you said, in reference to Senator Kohl's question, quote, I agree with the Griswold's court's conclusion that marital privacy extends to contraception and availability of that.
The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interests protected under the due process clause.
That is your accurate view?
ROBERTS: Yes, sir.
SCHUMER: Just one question. I know this could take the rest of our time, but if you could answer it succinctly, just tell me how -- I'm interested in how you will divine what that right to privacy means. I mean this is going to be an issue in the 21st century that's before us in many, many different ways. And there's no words in the Constitution.
ROBERTS: Well, the court in, for example, I think most recently in the Glucksberg case, talked about the necessity of considering the nation's history, traditions and practices.
As Justice Harlan always explained in his opinions, you need to do that with an appropriate sensitivity to the limitations on the judicial role.
Again, you need to recognize that it is not your job to make policy, either under the Constitution or under the statutes. ROBERTS: You are interpreting the Constitution.
And the appropriate judicial role focuses on those considerations, tradition and history and practice, as developed in the court's precedents. And that's where I would start.
In any case where the issue came up as to whether or not a particular issue was presented under the due process clause, you begin with the precedents. You analyze them under principles of stare decisis -- the precedents in this area, just like precedents in any other area -- and analyze them in light of those different factors.
All the justices recognize that in this area that you need to be especially careful about the source of the content that you're giving to the right at issue, because it is an area in which the danger of judges going beyond their appropriately limited authority is presented because of the nature of the sources of the authority. You're not construing the text narrowly, you're not looking at a particular statute with legislative history. All of the justices recognize that it presents particular challenges.
SCHUMER: OK, thank you.
Now as I said, there are a few things that I think that many of us were pleasantly surprised about. There are some that we are troubled about.
I think you've answered some questions, but not answered a whole lot of others. And I'm going to get into that at another point.
But I do find it very perplexing -- and I'm not going to ask you to comment on this -- your use of the so-called Ginsburg precedent. It seems you cite it when you don't want to answer something. But a few times here when Ginsburg had actually answered those specific questions, you didn't want to answer them and you ignored the precedent. And I don't think that's what precedents are, even in this more unique role.
So I hope you'll think about that overnight because I'll get back to that tomorrow.
The other thing that troubled me was the issue of civil rights. Many of us consider racism the nation's poison. De Tocqueville wrote about that since 1832. And we know you wrote these series of memos 20 to 25 years ago. Some of them are written in a tone that suggest you may have been insensitive to discrimination and hostile to equal rights.
SCHUMER: And I've talked to people who might have felt just that. People have said that.
So my question is not the substance, but do you regret the tone of some of these memos? Do you regret some of the inartful phrases you used in those memos, a reference to illegal amigos in one memo?
ROBERTS: Senator, in that particular memo, for example, it was a play on the standard practice of many politicians, including President Reagan. When he was talking to a Hispanic audience he would throw in some language in Spanish.
Again, the memos were from me to Fred Fielding. I think Mr. Fielding always found the tone...
SCHUMER: Don't regret using that term? Could you think that some people might have found it offensive?
ROBERTS: It was meant to convey the notion, again, as I described, that when politicians speak to a particular audience in that language, is that offensive to the audience? It was meant to convey that. It was an issue concerning a particular radio interview.
You know, the tone was, I think, generally appropriate for a memo from me to Mr. Fielding, and I know that he never suggested that it was anything other than appropriate.
SCHUMER: I'd have to disagree with you, but we'll leave it at that.
On a more substantive level, in light of where we are in 2005, admittedly we've progress in civil rights since 1982, can you identify any policy or piece of legislation you argued for or supported in the Reagan era that you now believe went too far, that you now believe would not be good enough for America?
I'm not challenging that you were representing somebody else then, as you've said to us before, but I'm asking, in hindsight, it's now 2005, you're almost double the years on this earth, any of those policies that you think now, using hindsight, shouldn't have been done?
ROBERTS: Senator, I think some 80,000 pages have been released of memoranda that I wrote.
SCHUMER: You can just pick one or two.
ROBERTS: You know, I have not gone back and reevaluated all those policies, no. I do know, though, for example, in the area of civil rights people have talked about memos I wrote about the administration's policy against busing or the administration's policy against quotas.
Being against busing and being against quotas is not the same as being against civil rights. President Reagan was against busing, President Reagan was against quotas, but he was in favor of civil rights and that was the administration position that I was advancing in those memoranda.