Text of hearing - Part 19

WASHINGTON (AP) _The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 19.

ROBERTS: Again, I know there are those theorists who think that's futile, or because it's hard in particular cases, we should just throw up our hands and not try.

In any case -- and I don't subscribe to that -- I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.

CORNYN: Well, as a good lawyer, you also know the danger of an analogy is that people will take it and run away with it, perhaps use it against you.

And I heard today that yesterday we were talking about baseball, but today we're talking about dodge ball.

Some have suggested that you have been less than forthcoming about your answers to the questions, and I just couldn't disagree with that more. And I want to go over this just a minute, because I think it bears some repetition.

First of all, you were confirmed by the United States Senate by unanimous consent just a little over two years ago to the District of Columbia Court of Appeals, what some have call the second most important or powerful court in the nation .

So you've been before the committee before. You've been thoroughly investigated, examined and scrutinized, perhaps more than anyone else in history.

The reason I say that is because, since your nomination -- first as associate justice and now as chief justice -- there have been more than 100,000 documents produced about your background and record, Some in the government sector and some in the private sector.

And of course, we've heard today how perhaps a line or a word or a choice of phrase can be used, perhaps out of context, to try to create an impression that may or may not be borne out by looking at the entire context of your record or even the document.

But I do believe you have been forthcoming. I know before we had the last two rounds of questions, you'd answered 35 questions on civil rights, 10 on following precedents.

CORNYN: You answered 40 questions about the role of a judge, 25 on abortion and privacy rights, and 11 on presidential powers.

So I would just disagree with the characterization that someone might make -- I don't think it's fair or accurate -- that you've been anything less than completely forthcoming, and that we frankly know an awful lot about you, and that's not been a bad thing.

I think from my point of view, the more that we have learned about you, the more confidence many of us have in the judgment of the president in your selection.

But, of course, you're not there yet. We still have a lot of questions to task before voting.

I want to also talk to you a little bit about one area of questioning. I believe it was Senator Biden who was asking you about Justice Ginsburg and the fact that she answered some questions, but declined others. And we've talked about the Ginsburg standard. I think Senator Schumer referred to that as well.

And what I understand that to mean, what I mean by that when I say it is that she has recognized that there is a line that a nominee cannot step over in terms of prejudging cases or issues that may come back before the Supreme Court, and that's the line I understand you to have drawn.

But Justice Ginsburg, as I believe Senator Graham pointed out, had an extensive paper trail and record, and she did feel at some liberty to talk about issues where she -- her views were already public or where she had already written.

Is that the distinction? Or could you explain your understanding of the distinction she was making, or how she handled it, perhaps in a way that's different from the way you were handling questions?

ROBERTS: My understanding, based on reading the transcripts not just of Justice Ginsburg's hearing, but of the hearings for every one of the justices on the court, is that that was her approach; that she would generally decline to comment on whether she viewed particular cases as correctly decided or not.

ROBERTS: She at one point said that was the court's precedent, she had no agenda to reconsider it, and that was all she was going to say. And in areas where she had written, she thought it was appropriate to discuss more fully because it was an area that she'd already publicly commented on. And I understand that to be the distinction as to why she commented in particular areas, but not others.

CORNYN: To your knowledge, is the line that you have attempted to walk in these proceedings about being as forthcoming as you can, but recognizing that you have a responsibility not to jeopardize your impartiality, either the perception or the reality or the impartiality and independence of the judiciary, has that been the line that you've attempted to walk and, as you understand, previous nominees have attempted to walk?

ROBERTS: It is, Senator, with an exception. And the exception is that I've tried to share more of my views with respect to particular cases. I know other nominees have declined, for example, to comment on even a case like Marbury v. Madison, because they thought as a theoretical matter it could come before the court.

I tend to take a more practical and pragmatic approach to things, rather than a theoretical or ideological approach. I think as a practical matter an issue about Marbury v. Madison is not likely to come before the court. Same with Brown v. Board of Education. So I've gone farther than many nominees and have been willing to talk about my views on those particular cases.

But I do think when it gets into an area where the correctness or incorrectness or my agreement or disagreement with a particular precedent is in an area that is likely to come before the court or could well come before the court, I do have to draw the line there.

And it's not out of any interest to dodge questions or anything. My views on the cases that I think are not likely to come before the court, I'm perfectly willing to discuss. It's based on the concern that the independence and integrity of the Supreme Court depends upon justices who go there and will decide the issues there with an open mind, based on the judicial decisional process, not based on prior commitments they made during the nomination hearing.

ROBERTS: All of the justices have adhered to that approach for that reason. And if I'm to join their number, I need to be able to look them in the eye in the conference room and say I kept the same faith with the independence and integrity of this court.

CORNYN: Well, I think it also may reflect the fact that you seem to be quite comfortable responding to questions from the committee. You've had a lot of experience responding to questions from the bench and having to distinguish cases, answer hypothetical questions and the like.

And I think we have gained an appreciation, a greater appreciation for the skills that you've acquired and your ability.

But I understand the line you're walking. And I think it's really a constitutional standard that you're trying to observe. And I applaud you for it.

A couple other areas I want to ask you about, but first let me ask you this: Judges are not in the business of picking winners and losers before they've actually heard the case, of course. I mean, that's fundamental to our concept of justice, that a judge be open minded, be willing to listen to the facts and arguments of counsel, and then make a decision.

And the process that you use is by applying neutral principles. In other words, when you make a decision based on the commerce clause, or even based on stare decisis, does that really have anything to do with the ultimate result? In other words, do you start with the results you want to reach first and then go back and try to rationalize it or justify it by the way you read the commerce clause of the Constitution or apply the legal doctrine of stare decisis?

ROBERTS: No, Senator. Saying a judge is result-oriented, that type of judge, that's about the worst thing you can say about a judge.

CORNYN: Those are almost fighting words.

ROBERTS: It's about the worst thing you can say, because what you're saying is you don't apply the law to tell you what the result should be. You don't go through the judicial decisional process. You don't look to the principles that are established in the Constitution or the law.

You look to what you think the results should be, and then you go back and try to rationalize it. And that's not the way the system is supposed to work.

CORNYN: Well, I know that we've heard today about a number of terms, from stare decisis to pro hac vice, to pro forma -- the only one we haven't heard is res ipsa loquitor, and a number of other Latin phrases that we learned in law school.

But let me ask you about stare decisis.

CORNYN: I have heard fascinating discussion back and forth about the precedent and how you would deal with a case. Let's say the example of Roe v. Wade. Some have suggested -- law professors and maybe others -- that somehow that's a super-precedent, or in the words of our inimitable chairman, a super-duper precedent.

I think we're introducing new words to the legal lexicon as this hearing goes on.

But in all seriousness, if -- well, let me ask you this: Is stare decisis an insurmountable obstacle to revisiting a decision based on an interpretation of the Constitution?

ROBERTS: What the Supreme Court has said, in the Casey decision, for example, is that it is not an inexorable command. In other words, it's not an absolute rule.

And that's why they have these various cases that explain the circumstances under which you should revisit a prior precedent that you think may be flawed, and when you shouldn't.

CORNYN: I can -- excuse me. I didn't mean to interrupt you.

ROBERTS: I was just going to say: There are significant cases in the court's history, in the nation's history, where the court has revisited precedents, like Brown v. Board of Education, like the cases that overruled the decisions of the Lochner era.

CORNYN: And you started to make the point I was going to try to make next. And that is: Stare decisis did not prevent the United States Supreme Court from revisiting Plessy v. Ferguson, which established the separate but equal doctrine, or otherwise Brown v. Board of Education would never be the law of the land.

Stare decisis did not prevent the Supreme Court from overruling Bowers v. Hardwick and Lawrence v. Texas or Stanford v. Kentucky, in this recent term of the court where they said the death penalty for 17-year old murderers was unconstitutional -- Roper v. Simmons.

So would you agree with me, Judge, that this is a neutral principle? In other words, it's not a result-oriented principle, if there is such a thing.

And you have pledged to apply neutral principles, not result- oriented processes, in arriving at your decisions, if confirmed.

ROBERTS: That's right. It is a neutral principle. The factors that the court looks at in deciding whether to overrule prior precedent or not do not depend upon what the decision is or what area it's in, other than some various things we've talked about. For example, a statutory decision is much less likely to be overturned than a constitutional decision, just because Congress can address those issues themselves.

But the principles of stare decisis are neutral and should be applied in a neutral way to cases, without regard to the substance of the decisions being considered.

CORNYN: And when you said this morning, in response to questions about Roe v. Wade, that it is settled as a precedent of the court, entitled to respect under principles of stare decisis, you were saying just that.

CORNYN: In other words, it is a precedent of the court; there has to be a strong case made for why that issue should be revisited, if at all.

But you weren't making any commitment one way or another about the outcome of any challenge brought under that or any other legal doctrine, were you?

ROBERTS: No, Senator, and I tried as scrupulously as possible today to avoid making any commitments about cases that might come before the court.

CORNYN: I agree you have, and I just wanted to make sure that we were all on the same page in that understanding.

Senator Schumer asked about the commerce clause, and I've been fascinated by this debate about the commerce clause.

Of course, you know, when this nation got started -- of course, first we had the Articles of Confederation, where the states were supreme and the nation couldn't function unless all states agreed. And so the federal government was essentially impotent, which led, of course, to the Constitutional Convention and a federal form of government where states and the federal government shared powers.

And now it's interesting to hear -- of course, we've seen a growth of national power over the years, through a series of court decisions. And Congress, frankly, has pushed the envelope and tried to argue that Congress has virtually unlimited power to legislate and can crowd out state governments completely out of any field it wants to.

But is it true that there are specific jurisdictional bases upon which the Congress can legislate?

CORNYN: In other words, under the Fourteenth Amendment, Section 5, under the commerce clause -- in other words, the Constitution of the United States was supposed to be a constitution of delegated or enumerated powers, and interstate commerce being one of those enumerated powers -- of course, there are other provisions like the necessary and proper clause.

There have been a lot of decisions over the years about whether it's only powers expressed, or implied and the like.

But isn't it true that the Supreme Court in the last decade has finally said in Lopez and Morrison, for example, that federal power is not unlimited; that there is some limit and the fight is really over where those limits are? Would you agree with that?

ROBERTS: Yes, Senator.

And I do think that a proper consideration of Lopez and Morrison has to take into account the more recent Supreme Court decision in Raich, where the court made the point that, yes, we have these decisions in Lopez and Morrison, but they are part of a 218-year history of decisions applying the commerce clause and they need to be taken into account in the broad scope. It's an appreciation; again, the first one in 65, 70 years that recognized a limitation on what was within the commerce power.

But they're not sort of -- they didn't junk all the cases that came before. They didn't set a new standard. That's what the court said in Raich. It said, yes, we have those two cases, don't over read them, put them into context and move on from there.

And as the court in Raich concluded, they upheld the exercise of Congress' authority there.

CORNYN: Well, I don't think it would come as any surprise to anyone who's listening to these proceedings outside of the Beltway that our government was premised in part on the notion that all wisdom does not emanate from Washington, D.C., and that the states do have areas of competence and authority to the exclusion of the federal government.

And one of the great things, I think, about this hearing is that a lot of people I think are learning and hearing about concepts that perhaps they had never heard about before.

CORNYN: But really these are debates that have occurred since the beginning of America itself and since the formation of our government.

So I hope that this is an educational experience or maybe even a refresher course for many of us about some basic principles upon which our government was founded.

And of course the most important principle from my standpoint is that articulated in the Declaration of Independence itself that says that our laws are based on consent of the governed, which means that most of the debates we have about the laws and the policies that will govern us and affect our families and our jobs are going to be decided in the political realm, where people can muster majorities and vote and have laws signed, and people who are in the minority may live to fight another day and turn that law over in the political forum.

And very few cases, very few issues will be completely removed from that political forum, and those are the cases where the Constitution precludes legislative activity.

But I very much appreciate your expression of the role of the judge as one having a sense of humility and modesty. That's not to say, from the way I look at it, or I'm sure the way you look at it, that the job of a judge is unimportant. Being a judge is not easy all the time because you have to make tough decisions, which may not be politically popular. But that's what goes along with the territory.

But I appreciate the distinction that you've made and articulated for us here in preserving the vast majority of the debates and issues that affect each of us in America and our families and our jobs as one where we can govern ourselves through our elected representatives. And if we don't like the way that our elected officials are deciding things, we can throw the rascals out.

But we can't do that when it comes to an appointed lifetime tenured judge on the Supreme Court. And so I appreciate very much the distinction that you're drawing.

With that, Mr. Chairman, I'll surrender back two and a half minutes.

SPECTER: Thank you very much, Senator Cornyn.

SPECTER: Senator Durbin?

ROBERTS: I thank you, too.

DURBIN: Thank you, Mr. Chairman.

Judge Roberts, Mrs. Roberts, family and friends, the end is near, at least for this leg of the race.

Welcome to Night Court.


I was struck by a question and answer by Senator Grassley to you earlier today. The question was this: Is there any room in constitutional interpretation for the judge's own values or beliefs? And your response: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case, but you don't look to your own values and beliefs. You look outside yourself, to other sources.

Judge Roberts, I recently finished a book about Justice Blackmun and his service on the Supreme Court, and it was a fascinating book about his life on the court and his life in the federal judiciary.

And I found it interesting that near the end of his term on the court, a couple cases occurred which really spoke to the heart of the man. One was DeShaney v. Winnebago County, a poor little boy who had been beaten and abused, left retarded, by dereliction of duty by many of the county officials or state officials in Wisconsin in an effort by his mother to hold them accountable.

And they failed in the Supreme Court, but Justice Blackmun wrote a dissent, which he prefaced, Poor Joshua. And he said at one point, in response to someone who wrote him afterwards about the court, Sometimes we overlook the individual's concern, the fact that these are live human beings that are so deeply and terribly affected by our decisions.

The other thing that occurred in Blackmun's legal career, his judicial career, was a real change in his view on the death penalty. And I think most of us are aware of the famous statement which he made: From this day forward, I no longer shall tinker with the machinery of death.

DURBIN: The last case that he voted with the majority on, in favor of the death penalty, was a case that you were involved in, the Herrera case. You were deputy solicitor general, at that time.

It involved the case of individual in Texas who had been accused of killing two police officers. He tried to reopen his case, offering evidence that his brother, who had since died, had actually been the killer.

He turned to the federal court because he lost his time for reconsideration of the case by Texas law. He argued a claim of actual innocence.

Justice Blackmun, in his statement at the end of this case, said:

Of one thing, however, I am certain. Just as an execution without adequate safeguards is unacceptable, so too in an execution when a condemned prisoner can prove that he is innocent. The execution of a person who can show he is innocent comes perilously close to simple murder.

That was a dissent -- or, I should say, a Blackmun opinion in that case -- that addressed your position that you had espoused as deputy solicitor general.

Did you read that -- Blackmun?

ROBERTS: Yes, Senator, I did.

DURBIN: Were you struck by the language there? And the reason I ask that question is, it's been 11 years since we've had a Supreme Court nominee before us, and a lot of things have happened in relation to the death penalty in America.

We look closely at defendants who are young, those who are not mentally sufficient to stand trial. And we also now have the issue of DNA.

In my state of Illinois, we found 12 people on death row who were innocent people, and the Republican governor pardoned them after the evidence came out.

Tell me in that context, as you look at this, and talk about what appeared to be a very sterile and bloodless process, as you answered Senator Grassley, tell me goes through your mind and your heart when you think about addressing the death penalty, what happened in the Herrera case, and what we should look to from the court in the future when it comes to the Eighth Amendment and the death penalty.

ROBERTS: Well, I think it's important, first of all, to appreciate that the issue in the Herrera case I think was misportrayed as an issue of actual innocence. The issue in the Herrera case is: At what point should new claims, in this case the claim after his brother died -- Well, guess what? I didn't do it, my brother did it, and he's dead now. That is to some extent a claim of innocence. But it's the sort of claim that did not have, as the courts determined there, sufficient factual support to be taken seriously.

That's quite different from a claim, for example, of the DNA evidence. Now, that's an issue that's working its way up and I don't know want to comment on it other than to say that it seems to me that that type of claim, that somebody who just died was the actual murderer, is different from the scientific issue. They're just different cases.

So I don't think that one should be taken as suggesting a view on the other.

Obviously, any case involving the death penalty is different. The court has recognized that. The irrevocability calls for the most careful scrutiny.

It is not an area in which I've had to consider cases as a judge up to this point.

And I certainly know the magnitude of the concern and the scrutiny that all of the justices bring to that question. It's just different than other cases. There's no doubt about that.

And DNA evidence obviously I think is a very important and critical issue.

No one wants an innocent person executed, period. And the availability of that type of evidence, that opportunity in some cases I think is something that's a very significant development in the law.

Now, as I said, there are cases coming up in there, so I don't want to say anything further on that.