Day three complete transcript Part 1

U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON THE NOMINATION OF JOHN ROBERTS TO BE CHIEF JUSTICE OF THE UNITED STATES

SEPTEMBER 14, 2005

SPEAKERS:
U.S. SENATOR ARLEN SPECTER (R-PA), CHAIRMAN
U.S. SENATOR ORRIN G. HATCH (R-UT)
U.S. SENATOR CHARLES E. GRASSLEY (R-IA)
U.S. SENATOR JON KYL (R-AZ)
U.S. SENATOR MIKE DEWINE (R-OH)
U.S. SENATOR JEFF SESSIONS (R-AL)
U.S. SENATOR LINDSEY O. GRAHAM (R-SC)
U.S. SENATOR JOHN CORNYN (R-TX)
U.S. SENATOR SAM BROWNBACK (R-KS)
U.S. SENATOR TOM COBURN (R-OK)

U.S. SENATOR PATRICK J. LEAHY (D-VT), RANKING MEMBER
U.S. SENATOR EDWARD M. KENNEDY (D-MA)
U.S. SENATOR JOSEPH R. BIDEN JR. (D-DE)
U.S. SENATOR HERBERT KOHL (D-WI)
U.S. SENATOR DIANNE FEINSTEIN (D-CA)
U.S. SENATOR RUSSELL D. FEINGOLD (D-WI)
U.S. SENATOR CHARLES E. SCHUMER (D-NY)
U.S. SENATOR RICHARD J. DURBIN (D-IL)

WITNESSES: JUDGE JOHN ROBERTS, NOMINATED TO BE CHIEF JUSTICE OF THE UNITED STATES

Transcript provided by CQ Transcriptions LLC

SPECTER: The committee will now proceed with the confirmation hearing of Judge Roberts to be chief justice of the United States.

One preliminary statement: I noted after the session yesterday that there was some comment about my statement when I asked Senator Biden to allow you to continue to respond, or to respond at all, and he then interjected that you were misleading the committee.

My statement was, While they may be misleading, they are his answers. It was in the subjective, and I was not suggesting that your answers were misleading. But in that moment, the object was to let you answer.

If somebody wants to characterize them one way or another, they can do that and you can respond. And I was not suggesting in any way, shape or form that they were misleading. And you picked it right up and said that they weren't misleading.

There are sometimes differences of opinion between the person asking the question and the person answering the question, but there was no doubt in my find as to the fact that they were not misleading.

We now proceed with the final two senators on the opening 30- minute round. And I recognize Senator Brownback.

BROWNBACK: Thank you very much, Mr. Chairman.

And I welcome you. Good morning, Judge Roberts and Mrs. Roberts. Glad to see you here this morning.

You're only two away from the end of this round, and we'll see how much further it goes. I hope you had a good night's sleep.

And I thought you had a great presentation yesterday.

I want to compliment you on the number of areas that you answered. My colleague from Texas went through the number of areas and commented about that yesterday and I was very impressed with the breadth, obviously, of your knowledge and your forthcomingness; how many of these areas you answered where prior nominees had not put answers forth.

And so I think you've revealed a great deal and yet not gone into those areas of active judicial action where there could be a lot of things coming forward.

I also want to compliment the chairman, Chairman Specter, who originates from my home state, and his stamina. He's been going through a lot lately, the chairman has, and yet you've pressed this committee so that many of us have difficulty keeping up with you.

And I want to compliment you on that stamina and the ability that you show. You always set a fast pace.

SPECTER: Well, Senator Brownback, being a Kansan yourself, you know where that stamina came from, because I'm a Kansan myself.

BROWNBACK: It's standing in the wind all day long; you just have to lean into it.

(LAUGHTER)

It makes you -- strengthens you quite a bit.

I want to go to a few areas that you haven't answered questions on yet; maybe surprise to some watching if there are any areas left but, actually, there are quite a few. And with your service on the court, you know on the bench you're going to get such a range of issues and topics that are going to come up.

It is noteworthy to me that a supermajority of committee members have asked you about privacy and leading up to questions on Roe, which I think only makes the point that this is an issue that should be left into the political system and not into the judicial system, where it is today.

That's something you'll have to resolve, as issues like partial- birth abortion come up to you.

But the very dominance of the question bespeaks of its interest within the political system and why it's best resolved within the political system and not the judicial one on a constitutional basis. But I'll get to that later.

I want to take you first to the takings clause issue. There was a recent case that came up that really shocked the system.

And you talked about shocks to the system when the judiciary acts. This is one that did it, in the Kelo v. New London case. In perhaps no other area of the law is stability more important than in the area of private property and property rights.

Even before the existence of the United States, William Blackstone, that famous English legal authority, stated this; he stated, quote, The law of the land postpones even public necessity to the sacred and inviolable rights of private property.

Mindful of the sentiment and the excesses of the king yet aware of the needs of a new and growing country, the framers of our Constitution established a strict limitation on the government's ability to take private property.

The takings clause of the Fifth Amendment of the Constitution provides that private property may not, quote, be taken for public use without just compensation. We all know those famous words.

Traditionally, this has meant that the government had to pay fair value when it sought to confiscate a homeowner's property in order to build a road or other public good. But now the notion of public use has taken a different hue to it.

In this Kelo v. the City of New London case, the Supreme Court had decided whether a private economic development plan, which a city government believed would yield greater economic benefits, qualified as a public use. So you had private property taken by the state and given back to private individuals, but it was having a greater economic use -- and whether that was sufficient under the takings clause.

In the words of the court, this economic development plan, quote, was projected -- not resulted, but projected -- to create in excess of a thousand jobs, increase taxes and other revenues.

On this basis, the court upheld the government confiscation as a public use and there was an uproar across the country. We thought that private property rights were established and set, and now it appears as if it's not; that the system is different. You can take private property, by the government's eminent domain ability, and give it back to a private individual.

Justice O'Connor, in her eloquent dissent, quotes this: Nothing is to prevent the state now from replacing any Motel 6 with a Ritz- Carlton, any home with a shopping mall, or any farm with a factory.

It is remarkable how this issue has stirred, as I mentioned, great criticism. I'm pleased the chairman is going to hold a hearing on it this next week.

Judge Roberts, what is your understanding of the state of the takings clause jurisprudence now after Kelo? Isn't it now the case that it's much easier for one man's home to become another man's castle?

ROBERTS: Well, under the Kelo decision, which, as you explained, was interpreting the public use requirement in the Constitution, the majority -- and, of course, as you mentioned, it was a closely divided case -- the majority explained its reasoning by noting the difficulty in drawing the line.

Everybody would agree, as you suggest, to build a road or to build a railroad, to situate a military base if that's the only suitable place, that the power of eminent domain is appropriate in those instances. And I think people agree further that when you're talking about a hospital or something like that, that satisfies public use.

And I think the reason the court gave, really, in the majority opinion was that it's kind of hard to draw the line.

Justice O'Connor's dissent didn't think it was that hard. She focused on the question of whether it was going to be a use open to the public as a road, a hospital, used for the public like in a military base, or private. And she would have drawn the line there and said even public benefits that derive from different private uses don't justify that aspect of it.

There was a caveat in the Kelo majority. They said they were only deciding this in the context of an urban redevelopment plan. They reserved the question if it's just taking one parcel and giving it to somebody else, not part of a broader plan. That question was still open.

And as you said, there's been a lot of reaction to it. I understand some states have even legislated restricting their power.

BROWNBACK: And we are considering it here in the Congress.

ROBERTS: And I think that's a very appropriate approach to consider. In other words, the court was not saying, You have to have this power, you have to exercise this power.

What the court was saying is, There is this power, and then it's up to the legislature to determine whether it wants that to be available, whether it wants it to be available in limited circumstances or whether it wants to go back to an understanding as reflected in the dissent that this is not an appropriate public use. That leaves the ball in the court of the legislature.

And I think it's reflective of what is often the case -- and that people sometimes lose sight of -- that this body and legislative bodies in the states are protectors of the people's rights as well.

It's not simply a question of legislating to address particular needs, but you, obviously, have to also be cognizant of the people's rights and you can protect them in situations where the court has determined, as it did 5-4 in Kelo, that they are not going to draw that line.

You still have the authority to draw.

BROWNBACK: I understand the authority we maintain. What I'm curious about is your view is: Does that right exist? I would not think Blackstone would agree that that right exists for the public to take private property for private use.

ROBERTS: Well, in the first year in law school, we all read the decision in Calder against Bull, which has this famous statement that the government may not take the property of A and give it to B. And that certainly was quoted in the dissent -- in Justice O'Connor's dissent.

The Kelo majority, though, said if the legislature wants to exercise that power, basically that the court's not going to second- guess the judgment that this is a public use.

And I do think that imposes a heavy responsibility on the legislature to determine what they're doing and whether it is a public use or if it's simply transferring from one private party to the next.

BROWNBACK: I take it you're not going to respond whether or not that right exists under the Constitution?

ROBERTS: Well, the Kelo decision, obviously, was just decided last year and I don't think I should comment on whether it was correct or not. It stands as a precedent of the court.

It did leave open the question of whether it applied in a situation that was not a broader redevelopment plan. And if the issue does come back before the court, I need to be able to address it without having previously commented on it. Let me take you to another area that's stewing here in legislative bodies, certainly, across the United States and, certainly, in Congress, and that's the issue of checks and balances of the court.

Any civics student can talk about checks and balances within the executive, the legislative and the judicial branch. And we all know that Congress, when it passes a bill, can be checked by a veto of the president. And we know the president's power can be checked by the power of the purse in the Congress -- those checks and balances. And when popularly elected branches of government enact bills contrary to the Constitution, the courts can strike the law down by exercising judicial review.

One curiosity, though, especially given the broad sweep of judicial power in America today and the angst that that stirs among so many people, is what check there is on the court and what checks there exist on the court. And it seems to me critical that we have this discussion at this point in time.

First check on the judiciary, of course, is the president's ability to populate the bench, of which you're a nominee, and our ability on advise and consent.

A greater problem arises once a federal judge is on the bench. And what's in Article 3, Section 1 -- and this is getting a lot of discussion now here in this body -- where judges hold office during good behavior -- which I know you will -- effectively have life tenure. But that's not really an effective check in the system.

There is also another area that you wrote about when you were working within the Reagan administration. That was the ability of Congress to limit the authority and the review of the courts of what you would have. And I want to look at that in particular.

It's the power to define jurisdiction that we would have. It's in Article 3, Section 2, and I just want to read this because I don't think it's well understood as the check and balance. And I want to get your reaction to it.

This is Article 3, Section 2: In all cases affecting ambassadors, other public ministers, counsels and those in which a state may be a party, the Supreme Court shall have original jurisdiction -- no question there.

Goes on: In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law in fact with such exceptions and under such regulations as the Congress shall make. That phrase, as you know, is known as the exceptions clause.

You wrote about this when you were in the Reagan White House, about this exceptions clause. And you stated this: It stands as a plenary grant of power to Congress to make exceptions to the appellate jurisdiction to the Supreme Court. A clause by its terms contains no limit -- these are your words -- and, quote, this clear and unequivocal language is the strongest argument in favor of congressional power and the inevitable stumbling block that those who would read the clause in a more restrictive fashion.

Now, I understand that you also argued on policy grounds this is not a good idea for the Congress to do. But would you agree with those earlier statements that you made about the nature of this power being a plenary power of the Congress and stands as a clear standard in favor of the Congress to be able to limit the jurisdiction of the courts?

ROBERTS: Well, you know, Senator, that that writing was done at the request of the attorney general. And he asked me specifically to present the arguments in favor of that power.

He was receiving, from elsewhere in the department, a memorandum saying that this was unconstitutional, the exercise of that authority. He wanted to see the other view before making up his mind for the department. So I was tasked to present the arguments in favor of constitutionality.

And as you say, they focus and start with the language in the Constitution, the exceptions clause, which is as you read it. And I went on to explain that it had been interpreted, in the famous case of Ex Parte McCardle, around the time of the Civil War, which seemed to suggest that the framers meant what that language says on its face.

Also, though, a later case, United States against Kline, suggested that there were limits on the power of Congress in this area. It is a central debate among legal scholars, the scope of that authority.

The argument on the other side -- the one that the attorney general adopted, rather than the argument he asked me to present -- is that it is the essential function of the Supreme Court to provide uniformity and consistency in federal law. And that if you carve out exceptions in its core constitutional area, that you deprive it of that ability and that that itself violates the constitutional scheme.

It's an area in which most distinguished scholars line up on either side, because it does call into question basic relationships between the Congress and the courts.

BROWNBACK: Could that language be any clearer, though, in the exceptions clause? I mean, I understand how legal scholars maybe can debate what a single word means, but that language is pretty clear, isn't it?

ROBERTS: The argument on the other side says that it's intended to apply to -- well, for example, we have clear situations in the lower federal courts like the amount in controversy; those cases are excluded; you can have rules about timing, you know.

The question is whether it was intended to address core constitutional areas or simply more administrative matters. The argument on the other side says, if you get into the core constitutional areas, that undermines the Supreme Court's authority and that the framers didn't intend that.

BROWNBACK: Then what check is there on the court's power?

ROBERTS: Well, I think the primary check is the same one that Alexander Hamilton talked about in the Federalist Papers, because the exact argument was raised in the debates about the Constitution. People were concerned about a new judiciary. What was it going to do? They were concerned that it might deprive them of their rights.

And, of course, Hamilton's famous answer was, the judiciary was going to be the least dangerous branch because it had no power. It didn't have the sword. It didn't have the purse.

And the judges were not going to be able to deprive people of their liberty because they were going to be bound down by rules and precedents; they were going to just interpret the law. And if judges just interpreted the law, there was no threat to liberty from the judicial branch.

So I would say the primary check on the courts has always been judicial self-restraint and a recognition on the part of judges that they have a limited task, that they are insulated from the people.

They're given life tenure, as you mentioned, precisely because they're not shaping policy. They're not supposed to be responsive; they're supposed to just interpret the law.

BROWNBACK: And I guess that's the area that has so many people concerned, is that the judiciary does not show restraint, and judicial restraint is the limitation on the courts, such as in the takings clause debate we just had, really, where the court is saying, Well, no, this is a broader power ; that if you don't restrain yourselves, then who does within this system? Obviously, there's restraints on the Congress. There's restraints on the president. And we like that system; we want that check and balance system. I think the framers put that exceptions clause and other things in there for a clear purpose and for a clear reason.

But let me take you on to another area, because that one, I think, you're going to see a lot of action as you get pushing back and forth between the three branches of government, and a number of people feeling like the judiciary has not shown judicial restraint in recent years.

I'm going to take you to the now probably most contentious social issue of our day -- and you've been debating and discussion it a great deal here already -- the issue of abortion.

It's at the root of much of the debate taking place in the country today. It has inflamed people. It has gotten them involved in the political process, folks that probably wouldn't have been previously, because the only way they saw that they could affect the system was get involved and try to elect a president, a Senate.

The president' lead applause line in the last election cycle was, I'll appoint judges who'll be judges, not legislators. That that's an applause line at a political rally should say something about people's angst toward what the courts have done, and particularly rooted in this issue of abortion.

The very root of the issue is the legal status of the unborn child. This is an old debate. Whether that child is a person or is a piece of property is the root of the debate.

In our legal system, everything's either one of the two: you're either a person or you're a piece of property. If you're a person, you have rights; if you're a piece of property, you can be done with as your master chooses.

And I believe everyone agrees that the unborn child is alive. And most agree that biologically it is a life, a separate genetic entity. But many will dispute whether it's a person. These may be legal definitions, but that's the way people would define it.

Could you state your view as to whether the unborn child is a person or is a piece of property?

ROBERTS: Well, Senator, because cases are going to come up in this area, and that could be the focus of legal argument in those cases, I don't think it would be appropriate for me to comment on that one way or another.

I will confront issues in this area as I would confront issues in any area that come before the court, and that would be to fully and fairly consider the arguments presented and decide them according to the rule of law. And I don't think it would be appropriate for me to express views in an area that could come before the court.

BROWNBACK: I hope you would agree with me that this is at the core of the issue, obviously, the competition between the woman's right to choose and the legal status of the unborn, and it permeates so much of our debate, and it's why a lot of us believe it should be within the political system to discuss.

I want to point out one thing to you, and I don't think it probably needs to be addressed, but I want to point it out.

In Plessy v. Ferguson, it's been cited yesterday along with the Brown decision, which my state is the proud home state host of Brown v. Board of Education. And I personally knew two of the lawyers that practiced in that case, and they were noble gentlemen.

They overturned Plessy, as you know, which was an 1896 case. So Plessy had stood for nearly 60 years.

We've had a discussion about this super stare decisis issue. And I just want to hold up a quick chart if I could -- if I've got it back here -- the notion that, because Roe has not been overturned in 30-some cases, makes it a super stare decisis: Plessy had not been overturned in a series of cases over a period of 60 years, where the court at each time looked at it, discussed it, decided against overturning it.

Yet I don't think anybody would agree that Plessy shouldn't have been overturned, and certainly not anybody from my state. We're the host state of Brown v. the Board of Education.

But the notion that by tenure a (inaudible) standing becomes a super stare decisis or by number of times that it's been looked at it become a super stare decisis I don't think finds a basis in law nor in practicality, as you noted. And some of these decisions up there, I would point out to you, are pretty onerous statements that the court put forward itself in how they upheld Plessy for a number of years.

And, yet, thank goodness that the court overruled it in the Brown v. the Board of Education's case that it eventually decided. I want to also point out to you something -- and you talked a lot about it yesterday, and I really appreciate this -- about facts matter in a case. And judges decide cases. And cases are built on facts. And you have the facts and you have the law but the facts matter.

There's no one in my state that wouldn't be honored to show you the school building where Brown v. the Board of Education was decided. We just dedicated it last year. The president was there, 50th-year anniversary.

You can see the path where the little girl walked to the school and had to walk by the all-white school to get there. And you look at that set of facts (inaudible). You look at it and you say, That's wrong. And you're ennobled that we no longer do that.

I held a hearing earlier this year on the factual setting of Roe v. Wade and Doe v. Bolton; the factual setting of these two cases. The two plaintiffs in those cases testified in front of the Judiciary Subcommittee. And I was there and Senator Feingold.

Both of them talked about the false statements of record that those cases were built upon, the false statements.

Listen to this statement by Sandra Cano. She's Doe of Doe v. Bolton. This is what she said, June 23rd, 2005, in Judiciary Subcommittee that I chaired.

Quote, Doe v. Bolton falsely created the health exception that led to abortion on demand and partial birth abortion.

This is her statements now.

I, Sandra Cano, only sought legal assistance to get a divorce from my husband and to get my children from foster care. Abortion never crossed my mind. Although, apparently, it was on the mind of the attorney from whom I sought help.

Further quote, At no time did I ever have an abortion. I did not seek an abortion nor do I believe in abortion.

This is Sandra Cano, the Doe of Doe v. Bolton.

And then she goes on to say, Doe v. Bolton is based on lies and deceit. It needs to be retired, retried or overturned -- which she's trying to get it retried. Doe is against my wishes. Abortion is wrong. That's Doe of Doe v. Bolton.

Now here's Norma McCorvey, Roe of Roe v. Wade. This is just the factual setting. I believe I was used and abused by the court system in America. Instead of helping a woman in Roe v. Wade, I brought destruction to me and millions of women throughout the nation.

Sandra McCorvey, quote, This is really troubling, too. I made up the story that I had been raped to help justify my abortion -- Sandra McCorvey.

Facts. Facts. In Roe v. Wade and Doe v. Bolton, falsified statements. And upon this we've based this constitutional right that's been found that we now have 40 million fewer children in this country to bless us with?

And I want to take another point on that to tell you -- we talked a lot about the disability community, and well we should, and the protection needed for the disability community. And that's important, because I think it really helps people that need help, but it helps the rest of us to be much more human and caring.

Senator Kennedy is helping me with a bill because a number of children never get here that have disabilities. Unborn children prenatally diagnosed with Down's Syndrome and other disabilities -- I don't know if you know this, but there was a recent analysis, and 80 percent to 90 percent of children prenatally diagnosed with Down's Syndrome never get here -- never get here. They're aborted in the system.

And people just say: Look, this child's got difficulties. And we even have waiting lists in America of people, today, willing to adopt children with Down's Syndrome. And we will protect that child -- as well we should, under the Americans with Disabilities Act and other issues -- when they get here.

But so much of the time, and with our increased ability of genetic testing, they don't get here. Diagnosed in the womb, system that encourages this child to be destroyed at that stage -- and this is all in the records.

And we are the poorer for it as a society.

All the members of this body know a young man with Down's Syndrome named Jimmy. Maybe you've met him, even. He runs the elevator that takes the senators up and down on the Senate floors. His warm smile welcomes us every day. We're a better body for him.

He told me the other day -- he frequently gives me a hug in the elevator afterwards. I know he does Senator Hatch often, too, who kindly gives him ties, some of which I question the taste of, Orrin...

(LAUGHTER)

... but he kindly gives ties.

HATCH: It doesn't have to get personal...

(LAUGHTER)

BROWNBACK: And Jimmy said to me the other day after he hugged me; he said Shhh, don't tell my supervisor. They're telling me I'm hugging too many people.

(LAUGHTER)

BROWNBACK: And, yet, we're ennobled by him and what he does and how he lifts up our humanity and 80 to 90 percent of the kids in this country like Jimmy never get here.

What does that do to us? What does that say about us. And I would just ask you, Judge Roberts, to consider -- and probably you can't answer here today, whether the individuals with disabilities have the same constitutional rights that you and I share while they're in the womb.

ROBERTS: Well, Senator, I appreciate your thoughts on the subject very much. I do think, though, since those precise questions could come before the courts that that is in the area that I have to refrain from answering.

BROWNBACK: Now, I just hope one thinks about people like Jimmy and a system, now, that scientifically can figure out the nature of this child's physical or mental state at an early point and is having many of them destroyed at that point in time. And that's taking place in our country today.

I have little time left. I want to say one final thing to you. And I appreciate you and I appreciate your inability to answer some of these questions. They're tough questions. And they're questions that are live in front of us as a society. I would just ask you really about your mentor or one of your mentors in Chief Justice Rehnquist who I admired greatly -- admired for his demeanor.

As you go on, and I anticipate you will be approved to be the chief justice of the United States, I would ask you just if you could briefly respond: How do you view his mentorship of you and your taking over if you are confirmed as chief justice? What does that mean personally to you and how will it impact you as chief justice?

ROBERTS: Well, it makes the opportunity a very special one, as I've said before. The chief was a mentor to many people. And like many great mentors, of course, he led by example not by precept.

His example of how he dealt with other people, not just other justices but everybody in the courthouse including the law clerks, in an open, friendly, balanced way was an example for everybody there.

Substantively, his approach to the role of a judge and the appropriate role of the court is, I think, a very important example. He was somebody who appreciated the appropriate limits on the judicial role and the judicial power and he was always careful and conscious of that. He was always asking whether or not this was something that it was appropriate for the courts to do.

And I do think it is important for judges at every level to always ask that question, because, as we had talked earlier, judicial self-restraint is the key check on the authority of the court. And if you're not asking yourself that question at every stage, Is this an appropriate thing for me to do as a judge, then they're's a great danger that you'll lose sight of that important judicial self- restraint.

And God bless you in your service to the country and your family.

Thank you, Mr. Chairman.

SPECTER: Thank you very much, Senator Brownback.

Senator Leahy has a doctor's appointment this morning, but will be joining us shortly. We now turn to Senator Coburn for his 30 minutes.

COBURN: Thank you, Mr. Chairman.

And, again, welcome. Good morning. ROBERTS: Good morning.

COBURN: There are so many legal terms yesterday bandied around that I was having trouble grabbing hold of, I thought I'd start out with medical terms this morning and see if you could keep up.

(LAUGHTER)

I also thought it was interesting, since you've been prophesied to have 35 years -- that's 12,675 days that the chairman prophesies that you'll be there -- that you've passed three of them. And congratulations on number three.

I want to go to something that Senator Kyl talked with you about. And I was very pleased with your answer. He asked you about referencing and using preference to select and pick precedents from foreign law yesterday. And I thought you gave a very reassuring answer to the American public.

You based your answer on two points.

One is that the democratic theory is that, in this country, with our law, the people are involved in that, both through the Senate, the House and the president who appoints you.

The other point you made is that relying on foreign precedent does not confine judges.

And I just want to kind of ask a couple of questions. Number one, the oath that you took for your appellate position and the oath that you will take states the following: that, I, John Roberts, do solemnly swear that I will administer justice without respect of persons and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties incumbent upon me, John Roberts, under the Constitution and the laws of the United States, so help me God. My question relates to the Constitution and what is said in Article 3 that judges, both of the Supreme and inferior courts, shall hold their offices during good behavior.

My question to you: Is relying on foreign precedent and selecting and choosing a foreign precedent to create a bias outside of the laws of this country, is that good behavior?

ROBERTS: Well, for the reasons I stated yesterday, I don't think it's a good approach. I wouldn't accuse judges or justices who disagree with that, though, of violating their oath. I'd accuse them of getting it wrong on that point and I'd hope to sit down with them and debate it and reason about it.

But I think the justices who reach a contrary result on those questions are operating in good faith and trying, as I do on the court I am on now, to live up to that oath that you read.

I wouldn't want to suggest that they're not doing not doing that. Again, I would think they're not getting it right in that particular case and with that particular approach. I would hope to be able to sit down and argue with it as I suspect they would like to sit down and debate with me.

But I wouldn't suggest they're not operating in good faith to...

COBURN: Can the American people count on you to not use foreign precedents in your decision-making on the Supreme Court?

ROBERTS: You know, I will follow the Supreme Court's precedents consistent with the principles of stare decisis. And there are cases in this area, of course. That's why we're having the debate. The court has looked at those.

I think it's fair to say, in the prior opinions, those are not determinative in the sense that the precedent turned entirely on foreign law, so it's not a question of whether or not you'd be departing from these cases if you decided not to use foreign law.

And for the reasons I gave yesterday, I'm going to be looking...

COBURN: I understand that, and I respect that, and I know that you can't be in a position to make a judgment on that.

But again, for the record, I want to read what the Constitution says, that the judges, both of the Supreme and inferior court, shall hold their offices during good behavior, and that the oath that they take references only the Constitution and the laws of this country.

And, if anything, I would like to send a message that that's what their oath states. And this judicial restraint that you've spoken of, I believe, includes that oath and the definition that our founders believed when they said: Here's what you should base your decisions on; it's the Constitution of the United States and the laws.

The other thing: Yesterday, you had an exchange with Senator Feingold on a case, and I think it was the Gonzaga, and you talked about congressional intent.

And I'd like for you for a moment to spend a minute giving us your opinion. And you may refuse to do so if you care to; that would be your privilege.

But one of my observations is that, oftentimes, we don't do a very good job with the laws that we write, because we're not very clear. Sometimes we're lazy. Sometimes we are politically expedient.

But, oftentimes, the very problems that you as a court make controversial decisions over are because we've not done a good job.

And I'd just like your thoughts as to: If you were to critique things that we could do better to make your job easier and clearer, what would you have to say to that?

ROBERTS: Well, sitting where I am, I'm not terribly inclined to be critical of...

(LAUGHTER)

... the Congress and wouldn't be, in any event.

But a lot of what judges spend their time doing -- not always in the momentous constitutional cases that we've been talking about, but sometimes in very mundane cases -- is the effort to discern congressional intent, trying to figure out what Congress meant when it used specific words that were passed by both houses and signed by the president into law.

Now, some of that is entirely unavoidable. The complexity of human endeavor is such that situations are going to arise that are not clearly answered by even the most specific language. And that's to be expected, and judges have to address those situations.

But as you suggest yourself in your question, there are situations where sometimes Congress punts the issue to the courts. They can't come to an agreement about how a particular provision should be applied, and so folks who want it to go one way and folks who want it to go the other way just sort of leave it ambiguous or leave it out and take their chances in court. And obviously that's a different situation.

I think all judges would tell you that to the extent Congress can address the issues and resolve the issues that are the policy questions entrusted to them, it makes it a lot easier for the courts to decide the cases that do come up, because then it's just a question of looking at the facts and the law is clear and you apply the facts to the law. If the law is unclear, that makes it that much more difficult.

You know, as I said, obviously a lot of these situations are unavoidable, but there are certainly -- and the Supreme Court has addressed many of these -- the issue of implied rights of action in the past. And they were getting case after case after case. And they finally adopted an approach in the early 1980's that said, look, we're not going to imply rights of action anymore. Congress, if you want somebody to have a right of action, just say so.

But this is not a good thing for the courts to be doing, deciding whether a particular right of action should be implied or not. And after the court developed that jurisprudence in the early 1980's, you know, the hope was -- and I think it has been realized to a large extent -- that there would be more addressing of that question in Congress, which is where it should be addressed.

COBURN: And you would agree, we could do a better job.

ROBERTS: Well, I'm sure everyone's doing as good a job as they can.

COBURN: That's the first answer I worry about that you've given the whole testimony. Let me go to another area.

(LAUGHTER)

As I mentioned in my opening statement, I'm a practicing physician, kind of an old-time G.P. I've delivered 4,000 babies. I take care of people at the end of life, at the beginning of life.

In all 50 states, death is recognized and defined as the irreversible cessation of the brain and heart activity.

Do you have any reason to dispute that?

ROBERTS: I don't know the medical terms or definitions, but no. I mean, if that's the law in the states, that's not to say that it has any particular legal significance...

COBURN: Right. I'm not asking you about legal significance.

Would you agree that the opposite of being dead is being alive?

ROBERTS: Yes.

(LAUGHTER)

I don't mean to be overly cautious in answering it.

(LAUGHTER)

COBURN: You know I'm going somewhere. One of the problems I have is coming up with just the common sense and logic that if brain wave and heartbeat signifies life, the absence of them signifies death, then the presence of them certainly signifies life.

And to say it otherwise, logically is schizophrenic. And that's how I view a lot of the decisions that have come from the Supreme Court on the issue of abortion.

And I won't pressure you on this issue. I know you can't. But for the listeners of this hearing, if, in fact, life is the presence of a heartbeat and brain wave, it's important for everybody in the country to know that at 16 days post-conception, a heartbeat is present; and that at 41 days, right now, we can assure ourselves that brain activity and brain waves are present. And as the technology improves, we're going to see that come earlier and earlier.

I make that point because so many of the decisions of the Supreme Court have been made in a vacuum of the scientific knowledge of what life is, when personhood is, when it begins, when it doesn't, when it exists, when it doesn't.

And it belies the scientific facts and medical facts that are out there today.

And so that was for your information and my ability to put forth a philosophy that I believe would solve a lot of the controversy in this country.

I want to cover one area that was discussed yesterday where the implication was made that you might have ruled on a case violating the judicial ethic, and that was the Hamdan v. Rumsfeld case. Senator Feingold asked you questions about the case. You invoked the canon code of conduct of U.S. judges that prohibits you from talking about a pending case.

I would like, Mr. Chairman, a copy of that canon to be placed in the record.

SPECTER: Without objection, so ordered.

COBURN: And canon three provides that, A judge should perform the duties of the office impartially and diligently. The judicial duties of a judge take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards and adjudicative responsibilities.

There's another one of those legal words I'm having trouble getting my hands around.

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel, subject to the judge's direction and control.

The official commentary to canon 3A(6) provides the admonition against public comment about the merits of a pending or impending action until completion of the appellate process.

I would also note that any criticism of your participation in this case is unwarranted. Numerous law professors who specialize in legal ethics have stated that you in no way have violated any ethics rules simply because you were considered for another judgeship. The opinion was finalized well before you met with the president -- I believe that's correct -- or was offered this nomination.

Is that correct?

ROBERTS: Yes.

COBURN: The argument, the initial vote, and the drafting of the opinion all took place before there was a Supreme Court vacancy at all. Is that correct?

ROBERTS: Yes.

COBURN: You did not write an opinion on that case. Is that correct?

ROBERTS: I joined Judge Randolph's opinion.

COBURN: Right. But you did not write a separate opinion.

ROBERTS: No.

COBURN: That's right.

I would also like to enter into the record the nonpartisan ethicists who agree that Judge Roberts did not violate any ethics rules.

SPECTER: Without objection, it will be make a part of the record.

COBURN: I want to go to one other area that I have some concern about. I know my concerns are opposite from some of those who have a different philosophy in life.

Many of the questions posed to you have focused on our concerns about an activist judiciary. My opening statement expressed some of those concerns. However, I'm equally concerned about an activist Congress that goes beyond its bounds, a Congress that routinely ignores its own constitutional boundaries.

Historically, the debate about the role and scope of Congress has focused on the general welfare clause. As we all know, Article I, Section 8, Clause 1 of the Constitution gives Congress the power to provide for the common defense and general welfare of the United States.

The 10th amendment also spells out limitations on congressional power. We had the discussion yesterday on the toad, I believe. The 10th amendment states the power not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people. And I want to give you a quote that James Madison said, because in his wisdom, he anticipated that would try to stretch the definition of the founders.

And we wrote with respect to the words general welfare : I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.

In Federalist Paper 45, Madison writes, The power is delegated by the proposed constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and infinite.

Do you agree with James Madison's interpretation of the general welfare clause, that the powers of the Congress should be fundamentally limited, or do you agree with the modern prevailing wisdom of both political parties, particularly appropriators, who believe Congress' role is fundamentally unlimited?

ROBERTS: Well, I agree with Madison's view in general that the Constitution does contain limitations on the federal authority. The general welfare clause, and in particular the necessary and proper clause of course, have been interpreted in many of Chief Justice John Marshall's early opinions to recognize, though, that the scope of authority given the Congress is broad and broad enough to confront the problems that, in Chief Justice John Marshall's case, were confronted by a young nation and helped to bind it together as a nation, and broad enough today to confront the problems that Congress addresses.

But the notion that the Constitution was one of limited powers, albeit broad under the necessary and proper clause and even the general welfare clause, as interpreted by Chief Justice John Marshall in these early opinions, that recognition doesn't undermine the framers' essential vision that we are dealing with the federal system in which vast powers reside with the states and that the federal government is one of limited powers; broad in, obviously, particular areas and broad under the necessary and proper clause but limited powers nonetheless.

COBURN: Thank you.

I just have one other comment. As you have been before our committee, I've tried to use my medical skills of observation of body language to ascertain your uncomfortableness and ill at ease with questions and responses.

And I've honed that over about 23, 24 years. And the other thing that I believe is integrity is at the basis of what we want in judges .

And I will tell you that I am very pleased, both in my observational capabilities as a physician to know that your answers have been honest and forthright as I watch the rest of your body respond to the stress that you're under. But I'm also pleased with our president that he's had the wisdom to pick somebody of such stature and such integrity.

Without integrity what you say here means nothing. And that's the very foundation of which I believe you've based your life. And I'm pleased to have you before us. And I thank you.

Mr. Chairman, I yield back the balance of my time.

SPECTER: Thank you very much, Senator Coburn.

Judge Roberts, before taking up the subject of the confrontation, we'll now proceed to the 20-minute round for each senator.

Before taking up the issue of the confrontation or clash between the Congress and the Supreme Court, I want to pick up a few strands from yesterday's testimony.

Near the end of my questioning, I commented on the case of United States v. Dickerson where if a chief justice had made a modification of his earlier objections to Miranda and said that the Miranda warnings ought to be upheld, contrasting his view in 1974 in a Supreme Court decision with his view in the year 2000, saying that Miranda should not be overruled because it has been embedded in routine police practices and become a part of our national culture -- that has all of the earmarks of the doctrine of a living constitution.

Dissenting in Poe v. Ullman, Justice John Marshall Harlan made one of the famous statements on this issue, saying that the -- commenting on liberty, the quote, The traditions from which it is developed, quote, that tradition is a living thing. And my question to you is: Do you regard the evolution of various interpretations on liberty as a living thing as Justice Harlan did and as Justice Rehnquist appeared to on the Miranda issue?

ROBERTS: Well, I think the framers, when they used broad language like liberty, like due process, like unreasonable with respect to search and seizures, they were crafting a document that they intended to apply in a meaningful way down the ages.

As they said in the preamble, it was designed to secure the blessings of liberty for their posterity.

They intended it to apply to changing conditions. And I think that, in that sense, it is a concept that is alive in the sense that it applies -- and they intended it to apply, in a particular way, but they intended it to apply -- down through the ages.

SPECTER: Well, when you talk about intent, I think that's a pretty tough interpretation. When the equal protection clause was passed by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn't have been their intent.

And the interpretation which occurs later really is captured by Justice Cardozo in the case of Palko v. Connecticut, a case which impressed me enormously back in the law school days.

When talking about the constitutional evolution, he referred to it as expressing values which are, quote, the very essence of a scheme of ordered liberty, close quote, quote, principles of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.

Would you agree with the Cardozo statement of jurisprudence which I just quoted?

ROBERTS: Well, the general approach of recognizing the values that inform the interpretation of the Constitution -- it applies to modern times. But, just to take the example that you gave of the equal protection clause, the framers chose broad terms, a broad applicability, and they state a broad principle.

And the fact that it may have been inconsistent with their practice may have meant that they were adopting a broad principle that was inconsistent with their practice, and their practices would have to change -- as they did -- with respect to segregation in the Senate galleries, with respect to segregation in other areas.

But when they adopt broad terms and broad principles, we should hold them to their word and imply them consistent with those terms and those principles.

And that means, when they've adopted principles like liberty, that doesn't get a crabbed or narrow construction. It is a broad principle that should be applied consistent with their intent, which was to adopt a broad principle. I depart from some views of original intent in the sense that those folks, some people view it as meaning just the conditions at that time, just the particular problem. I think you need to look at the words they use, and if the words adopt a broader principle, it applies more broadly.

SPECTER: Well, I'll accept that as an indication of your view not to have a, quote, crabbed interpretation, in applying the broad principles.

Let me refer you to a statement by Chief Justice Rehnquist in dissent in the Casey case which surprises me. And I ask you whether you agree with this.

He said, quote, A woman's interest in having an abortion is a form of liberty protected by the due process clause.

Do you agree with that?

ROBERTS: Well, that does get into an area where cases are coming up. The chief, in that position, was referencing, of course, the holding in Roe v. Wade and that was what the issue was in Casey.

But I don't think I should opine on the correctness or incorrectness of particular views in areas that are likely to come before the court.

SPECTER: I'm going to move now to the confrontation between Congress and the court and what I consider to be denigrating comments about the Congress.

In the Morrison case, in the face of an overwhelming factual record, the court, 5-4 decision, said that parts of the legislation to protect women against violence unconstitutional because of the congressional, quote, method of reasoning.

And then the dissent picked up the conclusion that the majority's view was, quote, dependent upon a uniquely judicial competence, close quote, with the other side of the coin being congressional incompetence.

And then in the dissent in Tennessee v. Lane, Justice Scalia says that the court engages in ill-advised proceedings to make itself the, quote, taskmaster, to see if the Congress has done its homework.

You commented a few minutes ago that you would be respectful of Congress. Do we have your commitment that you won't characterize your method of reasoning as superior to ours?

ROBERTS: I don't think it's appropriate...

SPECTER: In your particular case, maybe yours is, but...

(LAUGHTER)

ROBERTS: No, no...

SPECTER: As a generalization, we've gone around this with other nominees. And after they have gone to the court, they haven't been mindful as to what they have said here. But I take umbrage at what the court has said and so do my colleagues. There isn't a method of reasoning which changes when you move across the green from the Senate columns to the Supreme Court columns. And we do our homework, evidenced by what has gone on in this hearing. And we don't like being treated as school children, requiring, as Justice Scalia says, a taskmaster.

Will you do better on this subject, Judge Roberts?

ROBERTS: Well, I don't think the court should be taskmaster of Congress. I think the Constitution is the court's taskmaster, and it's Congress's taskmaster as well. And we each have responsibilities under the Constitution.

And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding, development of a record, and also, the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record. It's a question of whose job it is to make a determination based on the record.

SPECTER: On the record, in U.S. v. Morrison, the legislation to protect women against violence, the record showed that there were reports on gender bias from the task force in 21 states, and 8 separate reports issued by Congress and its committees over a long course of time leading to the enactment, and a characterization by the dissenters that there was a mountain of evidence.

What more does the Congress have to do to establish a record that will be respected by the court?

And this is where the five-person majority threw it over, not because of the record but because of the method of reasoning. Isn't that record palpably sufficient to sustain the constitutionality of the act?

ROBERTS: Well, Mr. Chairman, I don't want to comment on the correctness or incorrectness of a particular decision. What I will say...

SPECTER: Well, Judge Roberts, let me interrupt you there for a minute. Why not? The case is over. This isn't a case which is likely to come before you again. These are the specific facts based on the rape of the woman -- alleged rape -- by the three VMI students.

I liked your answers yesterday. You were willing to answer more questions about cases on the differentiation that they are not likely to come before the court. This is not likely to come before the court again.

Isn't this record sufficient in Morrison to...

ROBERTS: Well, Mr. Chairman...

SPECTER: ... uphold the act?

ROBERTS: Mr. Chairman, I must respectfully disagree. I have been willing to comment on cases that I think are not likely to come before the court again. I think particular question you ask about the adequacy of findings and make a determination of the impact on interstate commerce is likely to come before the court again. And expressing an opinion on whether the Morrison case was correct or incorrect would be prejudging those cases that are likely to come before the court again.

And that is the line -- it's not just a line that I'm drawing, it's a line that, as I've read the transcripts, every nominee who's sitting on the court today drew. Some of them drew the line far more aggressively and wouldn't even comment on cases like Marbury v. Madison.

What I can tell you is that with respect to review of congressional findings that my view of the appropriate role of a judge is a limited role and that you do not make the law.

And it seems to me that one of the warning flags that should suggest to you as a judge that you may be beginning to transgress into the area of making a law is when you are in a position of re- evaluating legislative findings because that doesn't look like judicial function. It's not an application of analysis under the Constitution; it's just another look at findings. Now, again, I don't feel it's appropriate to comment on Morrison.

I do feel it's appropriate to tell you that I appreciate the differences between Congress and the courts with respect to findings, both with respect to the issue of the capability and competence to undertake that enterprise and also with respect to the issue of authority to make a decision based on the findings.

SPECTER: Judge Roberts, we'll have to agree to disagree about that. I don't think the facts of Morrison are likely to come before the court. But I ask the questions; you answer them.

Let me come now to the Americans with Disabilities Act. And you have 5-4 decisions going opposite way. Ms. Garrett had breast cancer. The court in 2001 said that the title of the Disabilities Act was unconstitutional 5-4. On employment, discrimination. And then, three years later, you have the case coming up of Lane, a paraplegic, rolling up the steps, accommodations, 5-4: the act was upheld.

The record in the case was very extensive: 13 congressional hearings; a task force had held hearings at every state attended by more than 30,000, including thousands who had experienced discrimination.

And in the Garrett case, the Supreme Court of the United States used a doctrine which had been in vogue only since 1997 in the Boerne case. You and I discussed this in my office. They came up with the standard of what is congruent and proportionate; congruence and proportionality.

I was interested in your statement, when we talked informally, that you didn't find those in the Fourteenth Amendment. I didn't either.

Now they plucked congruence and proportionately right out of thin air. And when Scalia dissented, he said that the congruence and proportionality test was a, quote, flabby test, which is a, quote, invitation to judicial arbitrariness by policy-driven decision- making.

Now, you said yesterday that you did not think that there was judicial activism when the court overruled an act of Congress. Isn't this congruence and proportionality test, which comes out of thin air, a classic example of judicial activism where the view of congruence -- hard to find a definition for congruence; proportionality, hard to find a definition for proportionality -- I've searched and can't find any. Isn't that the very essence of what is in the eye of the beholder, where the court take carte blanche to declare acts of Congress unconstitutional?

ROBERTS: Well, these questions arise, of course, under, as you know, Section 5 of the Fourteenth Amendment, where the issue is Congress' power to address violations of the Fourteenth Amendment.

And it's an extraordinary grant of power. And the court has always recognized it as such.

And their decisions in recent years -- it's not just, as you point out, the Garrett case on the one hand and the Lane case on the other. You have the Hibbs case recently, which upheld Congress' exercise of authority.

The most recent cases, Lane and Hibbs, uphold Congress' exercise of authority to abrogate...

SPECTER: But, Judge Roberts, they uphold it at the pleasure of the court. Congress can't figure that out. There's no way we can tell what's congruent and proportional in the eyes of the court.

ROBERTS: Well, and that was Justice Scalia's position in dissent. He had originally...

SPECTER: Do you agree with Scalia?

ROBERTS: Well, again, this is -- the congruent and proportional test...

SPECTER: Do you disagree with Justice Scalia?

ROBERTS: I don't think it's appropriate, in an area...

(LAUGHTER)

... and there are cases coming up, as you know, Mr. Chairman. There's a case on the docket right now that considers the congruence and proportionality test.

SPECTER: That's why I'm raising it with you. I'd like to see a sensible interpretation with the court in that case.

ROBERTS: Well, and if I am confirmed and I do have to sit on that case, I would approach that with an open mind and consider the arguments.

I can't give you a commitment here today about how I will approach an issue that is going to be on the docket within a matter of months.

SPECTER: Judge Roberts, I'm not talking about an issue. I'm talking about the essence of jurisprudence. I'm talking about the essence of a man-, woman-made test in the Supreme Court which has no grounding in the Constitution, no grounding in the Federalist Papers, no grounding in the history of the country.

It comes out of thin air in 1997. And it's used in Lane and Garrett, two 5-4 decisions on identical records on an identical act, and the country and the Congress are supposed to figure out what the court means.

So I'm really talking about jurisprudence.

Judge Roberts, let me move to one other subject in the two minutes that I have remaining, and that is on the ability which you would have, if confirmed as chief justice, to try to bring a consensus to the court.

We have 5-4 decisions as the hallmark of the court. It's not unusual. You commented yesterday about what Chief Justice Warren did on Brown v. Board of Education, taking a very disparate court and pulling the court together.

As you and I discussed in my office, there are an overwhelming number of cases where there are multiple concurrences. A writes a concurring opinion in which B joins. Then B writes a concurring opinion in which A joins and C joins.

In reading the trilogy of cases on detainees from June of 2004 to figure out what we ought to do about Guantanamo, it was a patchwork of confusion.

I was intrigued by the comment which you made in our meeting about a dialogue among equals. And you characterized that as a dialogue among equals when you appear before the court, and they're on a little different level over there. I'm way behind you on Supreme Court arguments. It's 39-3. But I wouldn't have been an equal of theirs in any event; perhaps you are.

But I am intrigued by your concept. And I asked you how you'd be able to be the chief with Justice Scalia, who is 18 years older than you, and even Justice Thomas, who's seven years older than you.

Tell us what you think you can do on this dialogue among equals to try to bring some consensus to the court to try to avoid these proliferation of opinions and avoid all these 5-4 decisions.

Times up.

LEAHY: I'd like to hear the answer, because that's a question I was going to ask, too.

SPECTER: Well, now we're on Senator Leahy's time. Go ahead.

(LAUGHTER)

LEAHY: Oh, no, no. We're not on my time. We're not on my time. We're still on yours, Mr. Chairman. But I'd like to hear this answer.

SPECTER: It's permissible to have the answer on the red light, just not the question.

ROBERTS: Well, I don't want to be presumptuous about, if I am confirmed, what I would do.

I do think, though, it's a responsibility of all of the justices, not just the chief justice, to try to work toward an opinion of the court.

The Supreme Court speaks only as a court. Individually, the justices have no authority. And I do think it should be a priority to have an opinion of the court.

You don't, obviously, compromise strongly held views, but you do have to be open to the considered views of your colleagues. Particularly when it gets to a concurring opinion, I do think you do need to ask yourself, What benefit is this serving? Why is it necessary for me to state this separate reason? Can I go take another look at what the four of them think or the three of them think to see if I can subscribe to that or get them to modify it in a way that would allow me to subscribe to that?

Because an important function of the Supreme Court is to provide guidance. As a lower court judge, I appreciate clear guidance from the Supreme Court.

I think the last thing Chief Justice Rehnquist said in court, on the last day of the term, he was reading the disposition in a case and said, you know, A reaches this conclusion. He is joined by B. And then C has a separate concurrence, joined by D and E. And he ended up by saying, I didn't know we had that many judges on the court.

(LAUGHTER)

ROBERTS: And that undermines the importance of providing guidance.

I do think the chief justice has a particular obligation to try to achieve consensus consistent with everyone's individual oath to uphold the Constitution, and that would certainly be a priority for me if I were confirmed.

SPECTER: Thank you very much, Judge Roberts.

Senator Leahy?

LEAHY: Thank you, Mr. Chairman. Thank you for asking that question because it was one I wanted to ask, too.

Last night, we welcomed you to night court. Welcome to daytime court.

ROBERTS: Thank you, Senator.

LEAHY: It will probably become night court before we get done.

We talked just briefly about the First Amendment yesterday. And it's written primarily in terms of speech. But in a free and democratic nation, access to information, I think, is extraordinarily important, too.

Our framers knew that maximum knowledge is power. Actually, that was the maxim the administration used as the model for what was somewhat Orwellian, Total Information Awareness Program, until a Republican Congress. And I supported this, shut it down, because it was asking too much knowledge about individual Americans.

I also spoke about we, the people. If we, the people, know what our government's doing, why it's doing it, we can hold the government accountable and should.

So I worry about administration -- I'm not going into a specific case, but I'm worried about an administration that spreads misinformation, that is declaring more things secret and spending billions of dollars doing that, far more than any administration in history, probably all administrations put together. It punishes the whistleblowers. It bars the press and cameras from so many different events. And I believe very strongly that the people want to know what's going on. The courts are, if at all possible, supposed to take their side in making sure they know what's going on. Because our government should not be able to hide things unnecessarily from the people.

No matter who's in power, the people should know what's going on.

So I would like to know how you would approach such a case. Let me give you a few examples.

In the last couple of years, the administration fought to prevent the media from covering coffins returning from Iraq. It fought to keep disturbing images of U.S.-run prisons in Iraq from the media. And just last weekend, actually after they lost the initial bout in court, it abandoned its zero-access policy regarding scenes of devastation in New Orleans.

As you know, most of America found out what was going on in New Orleans really from the press not from our government, at least the first few days.

There's been a number of reasons, excuses, which seem to change day by day, for why these things are being blocked. I'm not going to ask you to evaluate them.

But my question is this: If the government seeks to broadly exclude media from access to images or events of public interest or concern, does the First Amendment require the government to justify that denial of access? And if so, what kind of standards -- not any particular case, but what kind of standards does the court have to apply?

ROBERTS: Senator, I haven't dealt with a lot of First Amendment access cases. I studied one about media access to prisons, for example; the issue about whether the media had a right of access to prisons -- they wanted to report on it. And so I'm not terribly familiar with the precise levels of scrutiny that apply.

There is, obviously, a balancing of sorts between particular interests, when you are dealing with governmental operations. And there's some perfectly valid reasons for excluding media.

On the other hand, simply disagreement about whether it's an appropriate issue for the public to see would not strike me as a very compelling governmental interest.

And I think the courts regularly balance these sorts of things when they get an issue about a challenge by the media saying their First Amendment rights are being violated because of a particular exclusion.

And again, I'm not terribly familiar with the precise legal standards or how they have developed since the prison access case that I'm familiar with, but it does require a consideration and weighing. And the values of the First Amendment, obviously, are something that have to be given careful weight by the court, for the very reasons that you have discussed.

Because the First Amendment serves a purpose. It's not there just because the framers thought this was in general a good idea. It serves a purpose with respect to the government. It provides access to information and allows the people in a free society to make a judgment about what their government is up to.

LEAHY: Like the chairman, I was a prosecutor. And if we move a little bit out of the prison situation, which raises all other kinds of questions and abilities to limit access, let's just go to something that the public might easily have access to, if they could just walk in there.

Suppose the government -- I'll use something like Katrina. Suppose they felt that the rescue operations of the government, whether it's state, local or federal, was being handled in an inept way, or evacuees are being mistreated. Does that give them a right to bar the media, who may want to expose that? ROBERTS: I think it's a general...

LEAHY: How would you analyze the claim, without citing a particular case?

The media comes and says, Look, the government screwed up. We're trying to get in there to take pictures to show how they screwed up and they say, 'You can't come in.' How would you analyze a claim like that?

ROBERTS: Well, you know, I do start with a general principle in this area. And I think it was Justice Brandeis who talked about, you know, sunlight being the best disinfectant.

And I think that's a lot of what the framers had in mind in guaranteeing freedom of speech and the other rights that go along with it. They appreciated the benefits that would come from public awareness. That's an important principle.

And, again, this is not an area that I feel completely up to speed on the precedents. And I obviously, if I were in a position as a judge and had to decide a particular case, would study them and become aware.

But my recollection is that there is great difficulty whenever you try to distinguish between public rights and media rights. And that if it's a situation in which the public is being given access, you can't discriminate against the media, and say, as a general matter, that the media don't have access, because their access rights, of course, correspond with those of the public. And as you said, they're in a position -- if there are a handful of people who might be able to have access, the media is in a position to make that information or knowledge, or whatever, available on a broader basis.

LEAHY: I raise this, because -- and I'm not trying to pin you on a particular case -- I think we're going to see more and more of this. We're in a digital age. A lot of information is readily available.

At the same time, the bad part about that is our government can acquire more and more and more information on us, just as your credit card company or anybody else does on you.

And some of us want to be in a position to be able to go in and find out what is being collected on us; to what extent are we giving up our privacy?

And usually, far more than the Congress or anybody else, it's been the media that's exposed when this has been overdone, when mistakes or violations are done. And I would hope that you would be committed to protecting just as much as possible access, rather than the other way around. Let me go to an issue we discussed yesterday -- or others did -- the issue of capital punishment.

We've held in this committee a number of hearings that show some real flaws in the administration of capital punishment: you know, sleeping lawyers, drunk lawyers, lawyers who didn't bother even to investigate or didn't have the funds to do it. More than 100 death- row inmates have been exonerated; some, though, who have spent years on death row under the most horrible conditions for a crime they never committed.

I think Senator Durbin mentioned a situation out in Illinois where a Republican governor had to, and did -- courageously I felt -- extend clemency to a whole lot of people who had been on death row.

Some say -- and I think you have even said this -- when they're exonerated, it shows the system works.

Well, let me tell you about the system in that case. One of the people is Anthony Porter: spent 16 years on death row. He was within two days of being executed.

The system didn't work on behalf of the government doing. A bunch of kids from Northwestern University, who had taken as an elective course a course on journalism, and the teacher said, Why don't you look into a couple of these? and these kids went out and did it.

The kids dug up the information that was there available to the police, available to the prosecutor, available to the defense. Nobody dug up. They found it, and within two days of his execution, the state's attorney dropped the case. They got somebody else to confess.

You said two years ago -- and I remember being at that hearing -- you said that, on the startling number of innocent men sentenced to death who are later exonerated, you responded somehow showed the system worked in exonerating them.

I worry about that statement, I really do.

It bothered me. You know, I voted for you for the circuit court, and there was a split vote in our party. But that one really bothered me, that statement. I found it almost mechanical, and I'll tell you why.

When we have people say innocent people who have been freed after years on death row shows the system was working, it doesn't. I think Sandra Day O'Connor said two years ago, If statistics are any indication, the system may well be allowing some innocent defendants to be executed. If that's the case, the system is not working. In Herrera, we've discussed that. The court grappled with it and didn't ultimately decide: Does the Constitution permit the execution of a person who is innocent?

And as principal deputy solicitor general, you co-authored the amicus brief for the U.S. in the Herrera case. You say the claim of actual innocence does not state a ground for federal habeas.

Actually, you said, quote, Does the Constitution require the prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process? In our view, the Constitution does not guarantee the prisoner such a right.

So let me ask you this, without going to the facts of Herrera: Is it your current personal view the death row inmate who can prove his innocence has no constitutional right to do so before a court before he's executed?

ROBERTS: Well, Senator, this is the basis of the disagreement in Herrera. Herrera is not a case about actual innocence. It's a question of whether you are entitled to bring a new claim.

LEAHY: Well, listen to my question. To the death row inmate who can prove he is innocent, do they have no constitutional right to do so in a court of law before they are executed?

ROBERTS: Well, prove his innocence, the issue arises before you get to the question of proof. And the question is: Do you allow someone who has raised several claims over the years to suddenly say at the last minute that somebody who just died was the person who committed the murder?

And does that mean you start the trial all over again simply on the basis of that last-minute claim or do you require more of a showing at that stage? That's what Herrera was about.

Now I don't think, of course, that anybody who is innocent should suffer as a result of a false conviction. If they have been falsely convicted and they are innocent, they shouldn't be in prison, let alone executed. But the issue...

LEAHY: Does the Constitution permit the execution of an innocent person?

ROBERTS: I would think not. But the question is never: Do you allow the execution of an innocent person? The question is: Do you allow particular claimants to raise different claims, fourth or fifth or sixth time to say at the last minute that somebody who just died was actually the person who committed the murder and let's have a new trial? Or do you take into account the proceedings that have already gone on?

LEAHY: I'm looking for broad principles here. You said -- let me read it again -- does the Constitution require that a prisoner have the right to seek judicial review of a claim of newly discovered evidence instead of being required to seek relief in the clemency process?

In our view, the Constitution does not guarantee the prisoner such a right.

Is that your view today?

ROBERTS: Well, that's what the court held in Herrera?

LEAHY: I know. Is that your view today?

ROBERTS: Well, I'm not in the position to comment on the correctness or incorrectness of particular court decisions. That's the court's precedent in Herrera. It agreed with the administration position, which was not that innocent people should be subject to imprisonment or execution.

LEAHY: That's a position you took. The Supreme Court's going to revisit this issue in House v. Bell. Because you stated a position on that, does that require you to recuse yourself in the House v. Bell?

ROBERTS: No, because the position was stated in a brief filed on behalf of the administration. And we've talked yesterday about the established principle that lawyers do not subscribe as a personal matter to the views they present on behalf of clients.

LEAHY: Well, in this case, the client's the United States. I mean, you're stating the position, sort of the -- what do they call it? The 10th justice?

ROBERTS: Well, I was the deputy solicitor general on the brief. I didn't argue the case. The solicitor general was the counsel of record in the case. But the position presented in the brief as an advocate is not necessarily the position of every lawyer on the brief.

LEAHY: I think you were more than just a lawyer on the brief. You were one of the most sought after jobs, picked because of your position. I was very impressed when I talked with you about your use of Latin, for example, and French.

And I'm always impressed with somebody with that facility. There is a Latin phrase. And this is not a (inaudible). I'll translate it: (SPEAKING IN LATIN). He who acts through another acts for himself. And that's not the case in Herrera?

ROBERTS: He who acts for another acts for himself? Well, it's the client acting through the lawyer and it's the client who is acting for themselves...

LEAHY: You are the client in this case when you are -- the solicitor general is the client, in effect.

ROBERTS: No, Senator, I disagree with that. The solicitor general represents the interest of the United States and those positions represent that client's position. And in the Herrera case, again, it was the solicitor general who was responsible for the position that was advanced. I'm not suggesting in any way that I disagree with it or agree with it. I'm just saying that it is a basic principle in our system that lawyers represent clients and you do not ascribe the position of the client to the lawyer.

It's a position that goes back to John Adams and the Revolution.

LEAHY: Let me ask you this, then. Let me ask you something that couldn't be ascribed to a justice of the Supreme Court. It's something that both the chairman and I have talked a lot about.

And that goes into some of the mechanics. And if you will let me take a moment, you understand these but, for the audience, the so- called rule of four: It takes only four justices to grant cert, but it takes five to grant a stay of execution.

Usually the courtesy is that, if you get four, a fifth one will sign on. That has not always been followed of late. Of course, we are dealing with the life or death issue. Senator Specter called it bizarre and unacceptable and sent in legislation to change it.

How do you feel if you were chief, if you had four other justices now voting for a stay of execution? Do you feel, as chief, you should do the courtesy of the rule of five and kick in the fifth one?

ROBERTS: It's an issue that I'm familiar with. I do know it arose. And I thought the common practice -- the current practice -- was that, if there are four votes to grant cert, that the court would grant the stay even though that does require the fifth vote, so that you don't have a situation..

LEAHY: It usually occurred -- yes, but that's because one more says, OK we've got four. We will put somebody else's name on here.

ROBERTS: Right.

LEAHY: But that hasn't been followed all the time recently. It usually was. And that's why both Senator Specter and I have raised concern.

Do you feel the earlier practice of once you have four...

(CROSSTALK)

ROBERTS: I think that practice makes a lot of sense. I don't want to commit to pursue a particular practice in an area that I'll obviously have to look at in the future. But it obviously makes great sense that, if you have four to grant and that's the rule, that you will consider an issue if there are four to grant; you don't want to moot the case by not staying the sentence.

LEAHY: Right. And I appreciate that, because I know we find a lot of cases where they are perfectly willing to grant cert on monetary damages, but here it's kind of get it right. It doesn't make much difference with an appeal after the execution. You wrote a memo regarding -- in fact, in '83, to the White House lawyer -- you wrote a memo regarding proposals by then Chief Justice Warren Burger to reduce the Supreme Court's case load.

In that memo you volunteered the following: If the justices truly think they're overlooked, the cure lies close at hand. For example, giving coherence to Fourth Amendment jurisprudence by adopting the good faith standard and advocating the role of fourth or fifth guesser in death-penalty cases would eliminate about a half dozen argued cases from the court's docket each term.

Are you saying that judges are just too busy to pay attention to death cases?

ROBERTS: No, Senator.

LEAHY: What are you saying. How do you feel today? That was '83. How do you feel now, 22 years later?

ROBERTS: Well, in '83, of course, they were hearing about 150 case as year. They hear about half that now. Again, I don't want to prejudge questions or even be presumptuous to look down the road, but it seems to me that there's the capability there to hear more cases today, not fewer.

And I'm sure there are reasons for the reduction in the case load that I'm not familiar with that I might become more familiar with, but they handled twice as many cases 20 years ago than they do today, and I think the capability to address more issues is there in the court.

LEAHY: My time is up, but I think you'll find both the chairman and ranking member of this committee believe they could handle more.

Thank you, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Leahy.

Senator Hatch?

HATCH: I think you have acquitted yourself as well as anybody I've seen in the 10 nominations for the Supreme Court that I have been part of. And I'm going to correct the record a little bit. It isn't the Ginsburg rule, although that's been referred to by almost all of us, including me.

It's the Thurgood Marshall rule, the Rehnquist rule, the Kennedy/Souter/Thomas/Ginsburg/Breyer rule -- just to name a few, because in every case, as I stated in my original remarks, the individual nominee has to draw a line as to what they can discuss and what they can't.

And you've drawn, I think, a fair line here throughout these proceedings, and I commend you for it. And there's just no excuse for being pushed to try and answer questions about cases that are likely to come before the court or presently are before the court. And I think the American people are starting to really fully realize that now as a result of this hearing.

Now, Judge Roberts, as you know, the war on terror is a unique challenge in American history. As a consequence, many novel issues regarding presidential authority to prosecute the war on terror will doubtless come before the Supreme Court.

I think we ought to recognize the need to be careful in our questioning so you're not placed in the position of precommitting yourself to any particular viewpoints on executive power that would compromise your ability to render a fair judgment as cases come before the court. But let me as ask a general question on terrorism.

It is a question that many in Congress and the administration and in the public have had to struggle with, particularly in the aftermath of the events of September 11th, 2001.

The question is this: What is the best way for our society to protect ourselves against terrorists not affiliated with a nation state, wear no uniforms, and really secrete themselves in ways that have never been done before?

On the one hand, there are very specific international rules embodied in the Geneva Conventions that specify how enemies in traditional warfare are to be treated.

On the other hand we have the traditional criminal law protections contained in Title XVIII of the United States Code that define the rights accorded to criminal such as the famous Miranda warning and the right to obtain counsel. What everyone is struggling with is how do we apply these two traditional methods against nontraditional enemies who clearly are nontraditional? Let us make no mistake, their goal is to destroy our society and way of life. And they will use weapons of mass destruction if they can. I don't think anybody doe doubts that.

Let me just ask you this general question: Will you give us assurance that you will keep an open mind as the administration and Congress adopt and implement new policies and legal procedures that govern the apprehension, interrogation and detention of suspected terrorists?

ROBERTS: Yes, Senator, I will. I certainly am not qualified to comment on the best approaches in the war on terror or the most effective approaches. That is the responsibility, obviously, of the other branches.

The responsibility of the judicial branch is to decide particular cases that are presented to them in this area according to the rule of law. And that is what I have tried to do and that is what I will continue to do. Either on the court of appeals or on other courts.

HATCH: Well, thank you.

Now, also yesterday, the Democrat staff of the committee released a press release stating that you failed to distance yourself from what it called your earlier cramped positions on Title 9 and women's rights.

After listening to you yesterday, I did not find your earlier positions cramped at all. In fact, as you explained here to the committee, many of the documents that questioners relied upon reflected the positions of the Reagan administration for which you worked. Now, what assurance can you give the committee that you will fairly interpret the civil rights laws including critical statutes such as Title IX, fully and fairly, consistent with the purposes Congress intended in passing these laws?

ROBERTS: Well, I can give the commitment that I appreciate that my role as a judge is different than my role as a staff lawyer for administration.

As a judge, I have no agenda. I have a guide in the Constitution and the laws and the precedents of the court and those are what I would apply with an open mind, after fully and fairly considering the arguments and assessing the considered views of my colleagues on the bench. That's the way I would approach cases in that area as in any other area.

The approach of someone who's obviously a staff lawyer in an administration is very different. The approach of someone who's an advocate for a client before the court is obviously very different.

Those are positions that I have held in the past. I am now a judge, and I have had the experience, and I think my record will establish that that is how I approach cases across the spectrum of issues that are raised before the courts.

HATCH: And reasonable people can differ on some of these issues.

ROBERTS: Oh, certainly.

HATCH: Now, in the Grove City case, you won that case, didn't you?

ROBERTS: The administration's position prevailed.

HATCH: That's right. In other words, the position that you had advocated prevailed.

Then we didn't like it up here on Capitol Hill. So we passed the Civil Rights Restoration Act. And we changed it, right?

ROBERTS: Yes.

HATCH: Which, of course, is always the prerogative of Congress when you're dealing with a question of statutory interpretation. And that's part of a regular interchange between the court and the Congress. Sometimes if the court gets something wrong, Congress can fix it. Even if the court gets it right but Congress thinks the approach ought to be changed, Congress is free to legislate for a different result.

So I find it strange to criticize you because you won a case in the Supreme Court and have not advocated against women's rights in any way, shape or form, ever in your career as far as I can understand. Is that correct?

ROBERTS: That's correct, Senator.

HATCH: And, in fact, you're a strong supporter of women's rights and gender equality.

ROBERTS: Yes, Senator.

HATCH: OK.

Now let me just ask you a question that relates to some of the answers you gave yesterday regarding the voting rights.

Even as the hearing was unfolding, again, Democratic staffers of the committee issued a press release that said that you had missed an opportunity to distance yourself from what the release called your earlier narrow positions on the reach of the Voting Rights Act.

Now, that is not what I heard you say nor do I believe that is what the public heard. The Democratic press release said that you had resorted to vague generalities about the importance of voting.

Now, as I heard you, I heard you explain the vigorous debate that took place regarding reauthorization of the Voting Rights Act in the 1980s.

And, by the way, I was part of that debate. I felt very deeply that the effects test should apply to Section 5, to those states that had a history of discrimination. But I also felt very deeply at the time that the intent test should apply to all the other states in Section 2. Which was the position, I think, the administration took that you had to do some research on within the administration.

Now, I lost in committee. Now, I was arguing that all of the states that did not have a history of discrimination should not be burdened by the effects test, which basically says, If the effects of what happens looks like discrimination, that therefore is, even if there was never an intent to commit discrimination.

Now, I lost. But I feel that the Voting Rights Act is the most important civil rights bill in history, and I felt it then. And I voted for the amended bill with the effects test language in Section 2 and have been a strong supporter ever since.

Would that be fair to describe your feelings about that?

ROBERTS: Well, yes, Senator.

The debate, as you remember, was over whether or not Section 2 should be extended without change, as interpreted by the Supreme Court in Mobile against Bolden, or whether it should be changed to incorporate the effects test and later the totality of the circumstances test.

The administration position at the time was to extend the Voting Rights Act for the longest period in history without change, and that was the position that I was working on at the time.

And Congress eventually decided -- Senator Dole and some other senators, developed a compromise position on Section 2, and that was enacted with the support of the administration.

And the one thing that was clear to me throughout those extended debates was that the people on both sides of the issue in good faith supported extension of the Voting Rights Act and recognized the importance of the Voting Rights Act in securing civil liberties for all Americans. It wasn't a dispute about the goal. It wasn't a dispute about the objective. It wasn't a dispute about the importance. It was a dispute about whether to extend the act without change or whether to make changes in the act. And that was what the debate was about.

HATCH: Well, and the difference was that the administration vehemently wanted to pass the Voting Rights Act as it existed that was somewhat difficult to pass originally when it was originally passed. And that was a decent, honorable position.

But when it was changed, through our democratic process up here on Capitol Hill, I felt for the worse at the time, but I feel like I was wrong at the time. Then we voted for it.

In fact, it was my friend Senator Kennedy who insisted that I come down to the White House as part of the bill-signing team, because he knew how deeply I felt about this.

But there was a legitimate reason to take the administration's position. And once the compromise was reached with Senators Dole and Kennedy, the administration accepted that as well and so did you.

And that's the point I just, kind of, wanted to make because I think it's important to realize that we can sometimes get to a point where we misconstrue the intentions of decent, honorable people. And I count myself one of those.

And even though I lost in committee -- I voted for this bill because to me it is the most important civil rights bill in history, albeit others are very important as well.

Now, I just want to tell you that, like I say, I've been here for 29 years and I've been through 10 of these -- I think 10, if I recall correctly. And in all of that time, we've seen some really sterling, brilliant, wonderful people before this committee. But I've never seen anybody who has done a better job of explaining himself than you have.

If people can't vote for you, then I doubt that they can vote for any Republican nominee.

You have made a very, very strong presentation here. And I hope the American people realize that, and I hope my colleagues on both sides of the aisle realize that. And I look forward to seeing you as chief justice of the United States Supreme Court. And will do everything in my power to see that you are confirmed.

With that, I have eight and a half minutes left. I reserve the balance of my time.

SPECTER: Thank you very much, Senator Hatch. Senator Kennedy?

KENNEDY: Thank you very much, Mr. Chairman.

Good morning.

ROBERTS: Good morning, Senator.

KENNEDY: I would like to, if we could, come back in the time that I have now, and perhaps in a follow-up round, to the issue on civil rights. Because as been mentioned here by others, it is the overarching issue, I think, for our country and our society.

I think our founders didn't get it right at the time of the drafting of the Constitution. We've had a Civil War. This country went through an extraordinary period of time, led by Dr. King in the 1950s, and then we had that extraordinary moment of Dr. King here at the Lincoln Memorial, which I think touched the conscience of the nation, people from all over the country.

We were stuck for months on the 1964 act, as you probably remember, and then with the action that was taken by Everett Dirksen that opened up the possibilities for reaching a compromise on the public accommodation provisions.

We spent eight hours, a number of us in the Judiciary Committee, with Nick Katzenbach over in the Capitol office, and had an agreement at that time there would be no amendments on the public accommodations; we could amend other provisions when the legislation went forward. And was monumental in its importance and consequence.

Then we came back and realized after that that the most important legislation that we could probably address -- we still had a ways to go on housing and employment; although employment was included in the '64 act, but not to a great extent -- was in the Voting Rights Act.

KENNEDY: And we had extensive hearings. And during the course of those hearings by this committee -- other committees, as well -- we listened to Attorney General Katzenbach, who had been working with Senator Dirksen -- really the architect, leadership of President Johnson, certainly, but the architect of the '64 act.

And he testified before this committee about the Section 2 provisions. And in his testimony on the Section 2 provisions, he said, Section 2 applies to any voting practice or procedure if its purpose or effect was to deny or abridge the right to vote on account of race or color. So for many of us, including the civil rights community, believed that the effects test was operative at that time.

That bill passed the House by 333-85, 77-19.

The next thing that happened is we had the series of tests, as you recall. And the overarching test case was the Zimmer case, but we had a number of cases -- Zimmer v. McKeithen. And it was the 5th Circuit, en banc, that dealt with the whole range -- for the most part -- range of states where many of these challenges had existed, although I certainly recognize we have a long ways to go in my own state of Massachusetts.

But this court en banc effectively in the Zimmer case; it was the lead case on the effects test. And that was followed by a series of cases -- U.S. v. Post (ph), Kendrick v. Walder -- for a long period of time.

You're aware of this history?

ROBERTS: I'm remembering it from when we addressed this debate of 23 years ago.

KENNEDY: But it sounds familiar?

Then we went up to 1980 and we had the Mobile case which effectively put the intent test in.

KENNEDY: And after the Mobile case, as you well remember, the Justice Department dropped a whole series of cases that had been prepared under the effects test because they did not believe that they could make the case on the intent test: whole series.

And this sent a very powerful message to individuals across the South, other parts of the country, that the additional kind of a burden to demonstrate intention was going to be so substantial, it was going to make, in terms of resources, and to try and determine the intent of individuals that lived many years ago, to virtually be prohibitive.

That happened. The Justice Department dropped scores of cases.

And it was one of the important reasons that the civil rights community and many of us believed that it was so important at the time of the extension of the voting rights case in 1982 that we put the effects test in.

You believed, as I remember, and as we have gone over, that it should have been a restatement of the existing law, as you correctly stated yesterday, which was the intent test. Am I correct so far?

ROBERTS: That was the administration's position.

KENNEDY: The administration's position. I remember French Smith testifying before this committee to that effect. I remember at that particular time.

Every civil rights group in 1982 included the effects test. This is the NAACP Legal Defense, National Urban League, Lawyers Committee on Civil Rights Under Law, Conference on Civil Rights, Mexican- American Legal National Council of Raza, League of United Latin American Voters, League of Women Voters -- the list goes on -- Congressional Black Caucus.

KENNEDY: And the House went ahead and passed the legislation with the effects test by 389-24 -- 389-24.

And in that legislation, the legislation included language which reflected the concern of the administration about whether the intent test was going to lead to either proportional representation or to quotas.

That language was included in the House legislation that passed. And it included the fact that members of a minority group have not been elected in numbers equal to the group's proportion of the population, should not, and in and of itself a constitutional violation of this section.

This addressed, for all intents and purposes, the concerns that the administration, I thought, and most of us -- the civil rights community -- thought that they had with regard to the issue of proportional representation.

You roughly remember that or aware without...

ROBERTS: I certainly remember the provision in the House bill at the time.

KENNEDY: So we also, now, included that language in the Senate bill. Now, the House bill passed. The Senate bill had 61 co-sponsors prior to the time that we adopted the Dole amendment.

That legislation was on its way. That legislation was good as done, quite frankly.

The Dole amendment was effectively a restatement of what was in the House bill, and it had been included.

But the administration, after that, said: Well, if they're going to include that as the Dole amendment, we will let up in our opposition and we'll eventually support it.

Now, during the time after the passage of the House bill and prior to the passage of the Senate bill, you -- even though the House had passed it -- you still strongly maintained the administration's position, did you not?