WASHINGTON (AP) _The text of the Senate Judiciary Committee hearing on John Roberts' nomination to the Supreme Court, part 20 (final).
DURBIN: I understand that.
It is unfortunate that the decision was made by the White House not to provide the memos and writings on the 16 cases when you served as deputy solicitor general. This was one of the cases, Herrera.
And so we might have learned a little more about the thinking at that time that led to your conclusion.
Let me ask you -- I've been here most of the day and you've been here all day -- and I've noted how often you distance yourself from the memos written as a 26-year old staff attorney. And I understand that. That's a long time ago. When we met in my office, I think that's exactly what you said when I referred to one of those memos.
But I'd like to ask you this: When you were serving the Reagan administration, the first Bush administration, was there ever a time when you stood up to your conservative colleagues and advocated a position that was more favorable to victims of discrimination or the disadvantaged?
ROBERTS: There certainly were internal disagreements and internal disputes about which approach to take. And in many cases I'd be on one side; in other cases I'd be on the other side. Certainly.
Now again, those are internal deliberations. But there was debate and disagreement on a regular basis. That's part of the nature of the job.
DURBIN: But there was one case, one case in particular that hasn't been mentioned today that I'd like to ask you about, and that was the case involving Bob Jones University.
That was one of the most troubling decisions of the Reagan administration. It was a decision to argue before the Supreme Court that Bob Jones University should keep its tax-exempt status with the IRS, even though it had an official policy that banned interracial dating, denied admission to any applicants who engaged in interracial marriage or were known to advocate interracial marriage or dating.
When the Reagan administration took that position, it reversed the position of three previous administrations, including two Republicans, all of whom argued that Bob Jones was not eligible for this tax-exempt status.
This sudden reversal by the Reagan Justice Department, which you were part of at the time, led to the unusual step of the Supreme Court appointing a special counsel, William Coleman, as a friend of the court, to argue in support of the IRS.
In 1983, the Supreme Court ruled 8-1 against the Reagan administration and against Bob Jones University.
Judge Roberts, there was a heated debate within the Justice Department about whether or not to defend Bob Jones University and its racist policies. More than 200 lawyers and employees of the Civil Rights Division, representing half of all the employees in that division, signed a letter of protest. William Bradford Reynolds, the head of the Civil Rights Division, strongly supported defending Bob Jones. Ted Olsen -- another person well known in Washington -- opposed this defense of Bob Jones.
Which side were you on? What role did you play in the decision to defend Bob Jones University policy?
ROBERTS: Senator, I was ethically barred from taking a position on that case. I was just coming off of my clerkship on the Supreme Court, which ended in the summer of 1981.
Supreme Court rules said that you could not participate in any way in a matter before the Supreme Court for a certain period of time. I think it was two years or whatever it was. And it was within that period. This involved an issue before the Supreme Court.
So I was ethically barred from participating in that in any way.
DURBIN: The memo that you wrote about the Bob Jones University position, the memo of December 5th, 1983, that summarized it, leads one to believe in reading it that you were present during deliberations on this policy. Is that true?
ROBERTS: No, Senator.
DURBIN: You were not?
ROBERTS: I was not involved in the policy because of the bar on participation.
DURBIN: There appears to be another memo, which I'm going to send to you, dated September 29th, 1982, with your handwriting in it, relative to this same issue. And I don't want to surprise you with it. I'll send it to you, and if tomorrow we get a chance, we can revisit it.
Let me ask you this...
SPECTER: Senator Durbin, may we have the numbers there? The staff needs those in order to track them for the record.
DURBIN: I'd be happy to. This is dated September 29th, 1982.
SPECTER: And it has a number on it?
DURBIN: No number, but we'll give you a copy.
SPECTER: OK. Thank you.
DURBIN: We'll share it with the judge. I want you to have -- this is not a surprise, I just want you to take a look at it.
We had a nominee for the 9th Circuit Court of Appeals, Carolyn Kuhl. Do you know her personally?
DURBIN: Served in the Justice Department with her.
DURBIN: When she came before this committee, Senator Leahy asked her several questions, and she said when she testified, quote, I regret having taken the position I did in support of the government's change of position on Bob Jones. The nondiscrimination principle and the importance of enforcement of civil rights laws by the executive branch should have taken sway and should have been primary in making that decision.
I appreciated her candor on that.
What is your belief? Was the Reagan administration position on Bob Jones University the right position to take?
ROBERTS: No, Senator.
In retrospect, I think it's clear the people who were involved in it, as you say, themselves think that it was an incorrect position. I certainly don't disagree with that.
DURBIN: Thank you.
Let me move to another topic.
LEAHY: I'm sorry, Senator. I didn't hear the answer.
ROBERTS: The answer is no.
I don't think it was the correct position to take.
DURBIN: Thank you.
Earlier, Senator Feinstein asked you about the separation of church and state, and I would like to follow up on this if I could.
She asked whether you believe the separation of church and state was absolute. And I have your answer here, relative to the two recent cases on the Ten Commandments. It appears now that there is a debate within the court as to whether or not they will stand behind the Lemon v. Kurtzman standards under the establishment clause, the three-part test, which I won't go through in detail.
As deputy solicitor general of the Bush administration, you co- authored two legal briefs in which you urged the Supreme Court to overrule the Lemon standard -- Board of Education v. Mergens and Lee v. Weisman. You argued, instead, for what has been characterized in shorthand as the legal coercion test.
So I'd like to ask you at this point in time, what is your view on the establishment clause and the Lemon standard?
ROBERTS: Well, the Lemon test is a survivor, there's no other way to put it.
When we wrote the brief in Lee v. Weisman, we had a long footnote explaining that I think it was six different members of the current court had expressed their criticisms of the Lemon test. They never got together at the same time. And the test has endured.
The approach that we were advocating in Lee v. Weisman did focus on the question of coercion and argued that in certain circumstances, recognition of ceremonial religious practices, an invocation at a graduation was the one at issue there, were permissible. And again, that, I think, lost 5:4.
And the Lemon test, to this day, is the test that the court applies. I think one of the justices recently explained, you know, it's not so much how good the Lemon test is, it's that nobody can agree on an alternative to take its place. And there may be something to that.
There are cases where the court doesn't apply the Lemon test, it seems to follow a different approach.
The great benefit of the Lemon test, the three-part test that everybody's familiar with, of course, is that it's very sensitive to factual nuances.
The disadvantage of the Lemon test, I think, is that it's very sensitive to factual nuances. And you get a situation like with the Ten Commandments case -- and again, I'm not commenting on the correctness or not -- but those are two decisions, and there's exactly one justice that thinks they're both right.
Nobody would suggest that this is an area of the law where the court's precedents are crystal clear. And I think there may be some inevitability to that.
There is a tension of sorts between the establishment clause on the one hand and the free exercise clause on the other, and the court's cases in recent years have tried to consider: When is an accommodation for religious belief -- when does that go too far and become an establishment of religion?
The court has a case on its docket coming up.
I think the animating principle of the framers, that's reflected in both of the religion clauses, is that no one should be denied the rights of full citizenship because of their religious belief or their lack of religious belief.
That is the underlying principle. That is, I think, what the framers were trying to accomplish.
The jurisprudence -- again, it's an area where the court has adhered through thick and thin to the Lemon test, probably because they can't come up with anything better. But the results sometimes, I think, are a little difficult to comprehend.
DURBIN: Now, of course Justice Rehnquist had a different point of view -- or at least he alluded to one when he appeared before this committee in 1986.
Senator Simon asked him a question. He replied as follows: I have, in my opinions, read the establishment clause more narrowly than some of my colleagues, but I also think, Senator Simon, these are almost questions of degree and that there is not a tremendous amount of difference there as to the broad principles the establishment clause are uncontroverted. And those kinds of cases do not get up to us because they're pretty well settled. It is these kinds of frontier-type cases that come and reflect divisions among us. I certainly have read the establishment clause more narrowly than some of my colleagues.
Do you feel that you are reading the establishment clause from a narrow point of view, or from the traditional Lemon point of view?
ROBERTS: Well, I don't think I've had an establishment clause case.
The cases where I have argued obviously was representing the position of the administration, which was that the Lemon test was regarded by the administration as too manipulable, not determinative, and in some senses, inconsistent with the understanding of the framers.
So that was the position that we were advocating there.
I haven't expressed my personal views on the establishment clause in any context.
DURBIN: Well, let me read what you wrote in a memo on June 4, 1985, to Fred Fielding, again, this period of time when you were serving as a staff attorney related to Wallace v. Jaffrey. And here's what you wrote in reference to establishment clause and the Lemon test.
Thus, as I see it, Rehnquist took a tenuous five-person majority and tried to revolutionize establishment clause jurisprudence and end up losing the majority, which is not to say the effort was misguided. In the larger scheme of things, what is important is not whether this law is upheld or struck down, but what test is applied.
I know you've said over and over again that you were just doing what you were paid to do, to tell the administration what they wanted to hear. Is that what happened here?
ROBERTS: I don't think I said that.
DURBIN: Well, that's correct. Strike that from the record.
Let me just say you were a staff attorney reflecting the views the administration you worked for. Is that a correct characterization?
ROBERTS: It's a correct view.
The views of the administration were quite clear with respect to the moment of silence, which was the issue in Wallace against Jaffrey. It was the president's view that it was constitutional -- through the attorney general, that it was constitutional to observe a moment of silence.
Now, what the court held in Wallace, of course, was that you couldn't look at just the moment of silence.
There was a history there about school-led prayer and to substitute it and suddenly say, well, now it's a moment of silence -- they didn't look at it in those terms, but looked at it in the long history.
And the issue of whether a real moment of silence, without that kind of background and history, whether that would prevail or not, was one that the court didn't address in Wallace.
DURBIN: Let me just wrap this up by asking -- I think you've alluded to this -- is it your belief that what we are trying to establish in the constitutional protection on the exercise of religion is not only to protect minorities, religious minorities, but also nonbelievers?
The court's decisions in that area are quite clear.
And I think the framers' intent was as well; that it was not their intent just to have a protection for denominational discrimination. It was their intent to leave this as an area of privacy apart -- a conscience from which the government would not intrude.
DURBIN: Thank you.
The next topic I would like to talk about for a moment is executive power, which has been addressed earlier. It has not been a major focus in previous hearings, but obviously is now that we are at war.
You have been asked a lot of questions about it, because I think there's so much at stake. We will probably be involved in this war effort, as Senator Leahy said early this morning, for some time.
Throughout American histories, even some of our greatest presidents, including one from Illinois named Lincoln, tried to restrict liberty in an effort to provide more safety and security in our nation. This administration is no exception.
It claimed the right to seize an American citizen in the United States and hold him indefinitely without charging him with a crime. They have claimed that the courts have no right to intervene.
I think that threatens all of our freedoms.
Just last week, Judge Luttig authored an opinion upholding the administration's position. And if you are confirmed, you may have the final word on this question.
You and others have compared the role of a judge to an umpire, and I promised I wouldn't get into the baseball analogies. That's one thing I will spare you from.
But let me ask you this: When it comes to this use of executive power, you referred time and again to Justice Jackson in the Youngstown case. Here's what he said: A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive powers as they actually present themselves.
So if you're confirmed, you'll play a significant role in determining what limits, if any, the Constitution places on a president during times of war. That's why the American people have the right to know what you think about executive power.
There was an exchange earlier today between you and Senator Kyl about a statement I made yesterday, about whether, as a justice, you will expand freedom in America. And Justice Kyl -- Senator Kyl -- I don't know something secret about that.
But Senator Kyl seemed to suggest it was a zero-sum approach, that you couldn't enlarge the freedom of one person or group in America without taking away the freedom of another group.
It's a curious point of view. It's the same point of view that Robert Bork had that he tried to defend unsuccessfully before this committee many years ago.
But my point to you is this: I'd like to ask you a question. What is it in your background or experience that can convince the members of this committee and the American people following this that you are willing to stand up to this president, if he oversteps his authority in this time of war, even if it's an unpopular thing to do?
ROBERTS: Well, Senator, I would just say that my demonstrated commitment to the rule of law. You can see that, I think, in my opinions over the past two years. You can see it in how I approach my job as a lawyer, arguing, and what types of arguments I make and how I make those arguments and how faithful they are to the precedents. And you can see it in my history of public service.
The idea that the rule of law -- that's the only client I have as a judge. The Constitution is the only interest I have as a judge. The notion that I would compromise my commitment to that principle that has been the lode star of my professional life since I became a lawyer, because of views toward a particular administration is one that I reject entirely. That would be inconsistent with the judicial oath.
And Justice Jackson is a perfect example of that. He is someone who was a strong advocate for executive power when he was FDR's attorney general, one of the strongest.
And yet he could issue a decision like the Youngstown decision, not only concluding that President Truman lacked the authority, even in times of war, to seize the steel mills but also setting forth the framework, with the language of the sort that you just quoted, setting forth the framework about how to analyze these decisions in a way that is particularly sensitive to the role of Congress as well.
That's the key feature of his framework -- the examination of where Congress is on the spectrum in determining whether the executive has that authority.
DURBIN: I hate to keep referring back to these ancient memos, but it's said that if a hammer's the only tool you have, every problem looks like a nail. And in this case, this is the only tool we have to try to find out what's going on in your mind and in your heart.
And so, in a memo of 1983, to White House counsel Fred Fielding, you wrote: The independent prerogative of the chief executive to determine that a given law is unconstitutional -- you talked about the power of the executive to determine that a law is unconstitutional.
We are going through this debate that Senator Leahy alluded to earlier, relative to this torture memo and the idea that the administration would walk away from commitments that have been made under the Geneva Conventions and under the convention on torture and would, instead, establish a new standard.
So my question to you is this: Would the anti-torture statute be unconstitutional simply because it conflicts with an order issued by the president as commander in chief?
ROBERTS: No, Senator. Not simply because of the conflict.
And have I to say I don't know -- that's one of the 80,000 memos I don't know about. So I would have to understand what the point was, what the issue was, and the language you read in context before I could respond to that.
But, no, the president has an obligation. He takes an oath, as we all do, to uphold the Constitution and to make a determination. And his determination that certain things are either constitutional or unconstitutional can, of course, in an appropriate case, be tested in court. And the ultimate arbiter of that under our system is the federal judiciary.
DURBIN: Justice Jackson thought the bottom line on executive power was clear. In Youngstown he said, No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role. I assume you agree with that statement by Justice Jackson.
ROBERTS: Yes, I do. It simply reflects the basic principle that no man is above the law, not the president and not the Congress. And that's why the courts have the obligation, and have had since Marbury v. Madison, to say what the law is.
And if that means that Congress has acted unconstitutionally, they strike down the law. And if it means that the executive has acted unconstitutionally, they have the obligation to block the executive action.
DURBIN: We can imagine a hypothetical statute that would clearly intrude on a president's power as commander in chief, ordering the movement of troops and that sort of thing. On the other hand, the anti-torture statute is clearly within the area, I believe, where Congress can legislate.
As you noted this morning, Article I, Section 8 of the Constitution enumerates Congress's powers. Speaking clearly to this, it says: The Congress shall have the power to make rules for the government in regulation of the land and naval sources.
So I hope -- I think we've exhausted this topic, and I think we're in common feeling and agreement about it. I hope we are -- at least close.
Let me ask you one last question in the few minutes remaining here. I've listened to some of the questions asked about gender and sex discrimination. They've come up repeatedly during the course of this.
And as you look at the standards that are applied to the equal protection, for a variety of different circumstances there are different standards. I think you started to explain them at one point today. Maybe you got through the explanation. I'm not sure.
But under strict scrutiny, the suspect classifications include race and national origin, religion, alienage and the like.
Then there is, of course, the other standard, of what is characterized as middle-tier scrutiny, which includes quasi-suspect classifications of gender and illegitimacy.
As you look back at the sweep of history that created these different standards, can you rationalize the difference between discrimination based on race and based on gender?
ROBERTS: Well, I can tell you what the court has done.
There are justices who aren't comfortable with the different tiers. They say there's one equal protection clause and -- but the different tiers are fairly well-established as an approach to the different areas in discrimination. And the rationale for it is that there are areas in which you think it is almost never the case that distinctions that are drawn can be legitimate, distinctions based on race or ethnicity. And so they are subject to the most heightened scrutiny.
The rational relation test, which applies across the board to any type of law, I think there it's quite often the case that distinctions drawn on whatever basis Congress wants are likely to reflect the different sorts of policy judgments.
Gender issues are in the middle tier, because the court thinks that there are situations where distinctions can be justified and there are other situations, but it's more than just the rational relation, but not as suspect as the most heightened level because there may be other justifications.
Cases throughout the court's history where they have upheld distinctions under that analysis -- like the all-male draft, for example. That was upheld.
Now, if you had applied strict scrutiny to that type of classification, perhaps the result would have been different, and the all-male draft would have been struck down.
It reflects the court's determination that these are not sort of almost always inherently irrational and discrimination rather than legitimate governmental distinctions, but that it's entitled to a heightened degree of scrutiny beyond the rational relation test.
Justice Ginsburg I think in her opinion in the VMI case said that the intermediate scrutiny had to be applied with -- I forget the exact phrase -- exacting rigor, or something along those lines, to indicate that it is well beyond the rational relation test, but it's not as inherently suspect as racial classifications.
DURBIN: Judge Roberts, thank you today for your patience with the committee...
ROBERTS: Thank you, Senator.
DURBIN: ... and your responses to my questions. I think we all understand the gravity of this hearing, as you do, and we thank you very much for bringing your family and friends to be with you.
ROBERTS: Thank you.
SPECTER: Thank you, Senator Durbin.
And thank you all for sitting through a very long proceeding today. We're in our 11th hour.
Thank you, Judge Roberts.
Thank you, Senator Leahy.
LEAHY: Thank you.
SPECTER: Here all day. And thank all my colleagues, most of whom have been here practically all day. Senators have other responsibilities. And when we set the time and stick to it, they know when to come in to find the time.
There's been, I think, a spirit of good will generally, dignified generally, contentious at times, but, I think, productive.
We will begin tomorrow morning at 9:00 o'clock, 9:00 a.m., instead of 9:30 -- begin at 9:00 a.m. and we will start with the questioning, 30 minutes to Senator Brownback.
That concludes our day's session.