Day three complete transcript Part 2

ROBERTS: Well, I was still working for the administration, Senator.

KENNEDY: OK.

ROBERTS: President Reagan's position was to extend the act without change, as you mentioned. That was the attorney general's position. I was a special assistant to the attorney general and I was doing my best to implement their views and support their views.

KENNEDY: In your memoranda that was to the attorney general, Brad Reynolds, now -- the administration after the House bill, I think the history will show it, thought that the administration should alter its position.

Your memoranda said, Brad Reynolds has expressed some reservation about circulating any written statement on the question to the Hill. My own view is that something must be done.

Maybe that's a staffer, but it's separating yourself from Brad Reynolds, who was the leader on this issue at the time.

Then you...

ROBERTS: Well, with respect, Senator, my understanding -- and I've looked at that memorandum recently -- is that the issue was whether or not to circulate something, explaining the administration position.

KENNEDY: OK.

ROBERTS: And I didn't think Mr. Reynold's view was: you shouldn't do that because you didn't support the position; it was a question whether or not to circulate something at that time.

ROBERTS: And my view was whether or not I thought if the administration was advocating its position, it ought to get the position out.

KENNEDY: Well, I think that's good. You're a good advocate and a strong believer in this.

The reason in this memoranda that you circled -- and I have it right here -- make what parts of it available to the record -- in this, in the last paragraph, you said, On the issue of the effects standard nationwide, on the strength of the record, will be constitutionally suspect but also contrary to the most fundamental tenets of the legislative process, which the laws of this country are based.

Constitutionally suspect -- effects test.

The reason that I bring this up is to find out what you believed in then and what you believe today, because you, having raised in your memoranda that this is provision -- the effects test is constitutionally suspect -- is that still your position?

Because if it is your position on an issue as important as the Voting Rights Act that resulted in the elections of hundreds and thousands of local leaders of color in all parts of the country, representatives in the House of Representatives, and moved the whole democratic process forward, then I think the American people are entitled to know.

So, specifically, do you believe that the effects test in the Voting Rights Act, which is currently the law, is constitutional?

ROBERTS: Well, Senator, I don't know what the analysis -- you read a clause of a sentence -- and I would have to look at the whole memorandum to see exactly what the suggestion or the issue was in that case.

SPECTER: Senator Kennedy, would you make the memo available to him, please?

KENNEDY: Sure. Yes.

What I'm interested in doing is asking now whether you believe that the effects test is constitutionally suspect. I'm interested in today, quite frankly, more than what we had written before -- whether you believe that it is suspect today or whether you find that it is settled law.

It's fine if you want to, obviously, refer to it, but I'm interested in what's your view today, whether you...

ROBERTS: Well, we're referring to -- what I'm referring to in this paragraph is the court's determination -- if I'm looking at this correctly -- under Section 5, its determination -- the language you read notes the Supreme Court's conclusion under Section 5, which is the preclearance provision that applies to jurisdictions with a history of discrimination.

And what the court had said in that case was that requirement of preclearance was acceptable given the record that the Congress had established in the Voting Rights Act of 1965 of the practices in those jurisdictions.

And the concern was that if you extend the effects test nationwide, the record, which had been established only with respect to particular jurisdictions in the South, wouldn't apply nationwide, and that would be the basis for a constitutional challenge.

The application of the test under Section 2, which is -- as you know, we use the shorthand effects test. It's actually the totality of the circumstances test, and it lays forth a number of considerations. And I think there is some argument about how closely it tracks effects test under Section 5 or if it's a different totality of the circumstances approach.

ROBERTS: I'm not aware of any case that has questioned the constitutionality of the application of the totality of the circumstances case under Section 2.

And if an issue on that were to be presented to me on the Supreme Court, which it may be, given the pending extension of the Voting Rights Act, I would, of course, confront that issue as a judge and not as a staff attorney for an administration with a position.

And as a judge, I would come to the issue with an open mind and I would fully and fairly consider any arguments that might be presented. I don't know if an argument is going to be presented about the application of the totality of the circumstances test nationwide.

Again, I'm not aware of any challenges that have been presented to it since it was enacted. I don't know if any will be if or when the Voting Rights Act is extended again, but if it is I would confront that as a judge and not as a staff attorney for an administration with a particular position on that issue.

KENNEDY: Well, Judge, there hasn't been, at least that I know, in the legal circles, suspicion about the unconstitutionality of the effects test as it applies to Section 5. That's as grounded as it can be.

I'm asking the specific issue that was the -- really issue attention with the extension and really the most important part historically about the Voting Rights Act, whether you think that that provision is constitutionally suspect today.

KENNEDY: This is the backbone of effective voting in our country and our society.

And I think the American people are entitled to know whether you believe or suspect that that particular provision which, as passed just overwhelmingly by the House and the Senate, signed by President Reagan and has resulted in this extraordinary march to progress, is constitutionally sound?

That's what I'm asking.

ROBERTS: I have no basis. I'm not aware of any constitutional challenge that has been brought to Section 2 since it was enacted. And I have no basis for viewing it as constitutionally suspect and I don't.

If an issue were to arise before the Supreme Court or before the Court of Appeals, if I head back there, I would consider that issue with an open mind in light of the arguments.

I have got no basis for viewing it as constitutionally suspect today, and I'm not aware that it's been challenged in that respect since it was enacted. It may have been, but as I said, I'm not aware of it.

KENNEDY: I gather -- you've had an extensive answer -- that from that answer I did hear that it is not constitutionally suspect as far as your view today?

ROBERTS: Yes.

KENNEDY: OK.

Could I move on to the issue of affirmative action, please?

ROBERTS: Certainly.

KENNEDY: In the Grutter v. Bollinger case, the Supreme Court decided, very close, 5-4 decision, Sandra Day O'Connor, the deciding individual justice, the Supreme Court upheld the university practices that considered race as one factor in its admission decisions.

No one is talking today about quotas. We're talking about affirmative action as defined in this Grutter decision.

KENNEDY: The court found that there was a constitutional affirmative action program aimed at achieving a racially diverse student body.

In this decision, the court expressly gave great weight to the representation by military leaders -- military leaders -- that said a highly qualified, racially diverse officer corps is essential to the military's ability to fulfill its principal mission and to provide national security.

What weight would you give to that kind of a comment or statement or testimony by the military in considering any issue dealing with affirmative action?

ROBERTS: Well, the weight it was given was to help satisfy the test, as the court, as you know in Grutter, applied strict scrutiny because it was dealing with considerations on the basis of race.

And that required the showing of a compelling governmental interest to support that legislative action. And the testimony of the military officers, as the court explained, helped substantiate the compelling nature of the interest in having a diverse student body.

And that was the weight that the court gave it. There was, of course, the other case. There were two Michigan cases: the law school case and the university case, the Grats (ph) case where the court did say that it looked too much like a quota in that case because it was given determinative consideration as opposed to being one of a variety of factors that is considered.

And the two cases together kind of show where the court is coming out, at least in the area of higher education. The court permits consideration of race or ethnic background, so long as it's not sort of a make-or-break test.

KENNEDY: Do you agree then with Justice O'Connor, writing for the majority that gave great weight to the real-world impact of affirmative policies in universities?

KENNEDY: And the reason -- I've got 35 seconds left -- you might say: Well, this may eventually come on up before the court. But the fact is we know how every other justice has voted because they have all voted. And the American people would like to know where you stand on this very important public policy issue, particularly since Sandra Day O'Connor wrote such a compelling decision that was, I think, in the cause of fairness and justice.

ROBERTS: Well, Senator, I think I can answer the specific questions you've asked because, as you phrased the question: Do you agree with her that it's important to look at the real world significance and impact?

And I can certainly say that I do think that that is the appropriate approach without commenting on the outcome or the judgment in a particular case. But you do need to look at the real-world impact in this area and I think in other areas as well.

KENNEDY: Thank you very much. My time is up. Thank you.

SPECTER: Thank you, Senator Kennedy.

(RECESS)

SPECTER: We will resume the hearings. We're just a few minutes tardy because we just finished a vote.

And we now turn to Senator Grassley for his 20-minute second round.

GRASSLEY: Thank you.

Once again, I compliment you on how you've handled yourself at these hearings. You've done very well. It's going to be very hard for people to cast a no vote against you.

Judge Roberts, do you believe that every citizen who meets the qualifications set forth in the Constitution and our laws should have the opportunity to cast a free and unfettered vote?

And as a follow-up, will you, on the court, fairly apply the Voting Rights Act?

ROBERTS: I certainly agree that every citizen who meets the qualifications not only has a right to vote but should vote. I think it's a problem that we don't have more people voting. And any issues that come before me under the Voting Rights Act, I will confront those with an open mind and decide them after full and fair consideration of the arguments, in light of the precedents of the court and in light of the recognition of the critical role that the right to vote plays as preservative of all other rights.

GRASSLEY: Thank you.

The Supreme Court has repeatedly stated that the legislative history of a particular bill is critical to interpretation of the statute.

Of course, Justice Scalia is of the opinion that most expressions of legislative history, like committee reports or statements by the senators on the floor or the House, are not entitled a great weight because they are unreliable indicators of legislative intent.

Presumably, Judge Scalia believes that if the members don't actually write a report or don't actually vote on a report, then there's no need to defer to this expression of congressional intent.

Now, obviously, I have great regard for Justice Scalia, his intellect, legal reasoning. But, of course, as I told you in our office, I don't really agree with his position.

So I'd like to ask you five questions. They're relevantly short so I'll ask them all at once.

What is your opinion? How important is legislative history to you? How have you utilized it? And will it be any different from your use on the circuit court versus what you might do on the Supreme Court?

And did you refer to any committee reports of congressional debate in any of your 39 briefs before the Supreme Court?

And to what extent do you -- and don't start out with this last one -- to what extent do you share Justice Scalia's view on unreliability of legislative history although that's important.

And I can repeat those if you forget what I have asked.

ROBERTS: Sure. If I leave one out, you can remind me at the end.

But, obviously, when you're dealing with interpreting a statute, the most important part is the text. You begin with the text, and as the Supreme Court has said in many cases, perhaps most cases, that's also where you end -- the answer is clear.

I have, though, as a judge, relied on legislative history to help clarify ambiguity in the text. The Supreme Court stated once, and I think it's a very important principle, you look to legislative history to clarify ambiguity. You don't look to legislative history to create ambiguity.

In other words, if the text is clear, that is what you follow and that's binding. And you don't look beyond it to say, well, if you look here, though, maybe this clear word should be interpreted a different way.

On the other hand, we confront situations where the text is not clear and the legislative history can be helpful in resolving that ambiguity. It requires a certain sensitivity to what you're dealing with. All legislative history is not created equal.

There's a difference between the weight that you give a conference report and the weight you give a statement of one legislator on the floor. You have to, I think, have some degree of sensitivity in understanding exactly what you're looking at; appreciate where those comments were made in the legislative process; be careful to make sure that they're dealing with the same language that was eventually adopted.

You have to, for example, be very skeptical about statements by opponents of the bill. It's quite a common thing saying, well, this bill would do this and this and this, and so we shouldn't pass it. That's not always the best guide as to what the sponsors really intended in the language.

So it does require a certain sensitivity to what you're dealing with, but I have quoted and looked to legislative history in the past to help determine the meaning of ambiguous terms, and I would expect to follow that same approach on the Supreme Court.

I don't think there's a difference there in terms of what things you think it is appropriate to look to, help you do your job, which is to figure out what Congress intended.

GRASSLEY: And you didn't address Judge Scalia but let me put it another way so I don't put you in a bad position. You would see, at least in some instances, where it needs to be used -- reliability in legislative history.

ROBERTS: In some instances, I think if you look at it carefully, you can make an assessment that this is a reliable guide.

And one area I didn't touch on: In my arguments, I've certainly relied on legislative history in presenting arguments because, of course, in the Supreme Court you need five votes and not just the one, so you tend to cast your net as widely as possible.

And at argument sometimes, Justice Scalia would not be as receptive to an argument based on legislative history as some of the others but, again, the name of the game is counting to five when you're arguing up there, so I've certainly made arguments based on legislative history.

GRASSLEY: In regard to how you view and use legislative history, I'd like to discuss your opinion in Totten, Bombardier Corporation case, interpreting the False Claims Act.

The issue, on appeal, was whether interpreting Bombardier had met the presentment requirements of the False Claims Act. To violate the statute according to Section 37.29.A(1), a company must have presented its false claim to an officer or employee of the federal government.

Importantly, Section 37.29.C explicitly provides that the term

claim includes demands for payments submitted to government contractors whether or not they are resubmitted to the federal government.

In your opinion, you wrote that those facts of that case did not consist of a false claim under the False Claims Act because there can only be a false claim if it's literally presented to somebody that's a federal government employee, I assume.

It seems to me that to reach this result, you inserted a resubmission requirement into the law in place where it doesn't in fact appear, Section 37.29.A(1), and in fact gave short shrift to the legislative history which spelled out what Congress intended when it amended the act in '86.

GRASSLEY: The legislative history of the act in the Senate committee report -- and I didn't refer to my authorship of the legislation, but anyway, in our Senate committee report explaining that liability on the False Claims Act attaches to a submission of, and I quote, a false claim to the recipient of a grant from the United States or to a state under a program financed in part by the United States, end of quote.

The legislative history also states that Congress sought to ensure that, quote, A false claim was actionable, although the claim or false statements were made to a party other than the government if the payment thereon would ultimately result in a loss to the United States, end quote.

So, my question is whether, on reflection, that is a fair way to deal with the express wishes of Congress and whether it is possible that you misunderstood the statue when you decided the Totten case. Why did you reject legislative history if you referred to it? And maybe you didn't refer to it. But why did you reject legislative history regarding the resubmission requirement in the False Claims Act when you wrote the opinion in Totten?

ROBERTS: Well, Senator, the answer to your question is, it's certainly possible that the majority in that case didn't get it right. And the dissent, that was a very strong dissent, did get it right. I think the majority got it right. There we focused on particular language.

The issue in the case involved, as you know, a subcontractor claim. You have the United States giving the money to, in this case it was Amtrak and then Amtrak using that money to hire a subcontractor -- I think it was Bombardier -- to do a particular part of the job.

Everybody agreed that, under the precedents that are applied, Amtrak is not the government. It can't be considered part of the government. And the statue, as you noted, required -- it was triggered by the presentment of a false claim to an officer or employee of the United States.

And the majority's reasoning was that the false claim was one made by Bombardier to Amtrak and the claim was submitted to Amtrak.

ROBERTS: And since Amtrak was not the government, what Judge Rogers and I concluded was that that wasn't presentment of a false claim to an officer or employee of the United States.

There was an extensive discussion between the majority and the dissent. The view that you've articulated was certainly presented in a compelling way by Judge Garland, my colleague on the court of appeals, and we spent a great deal of time on the case. And I think it's reflected in the opinions. And that view was laid out.

Judge Rogers and I thought that the statutory language that said the claim had to be presented to an officer or employee presented too high a hurdle for us to get over in looking at the legislative history.

But I'm happy to concede that it was among the more difficult cases I've had over the past two years. Any time Judge Garland disagrees, you know you're in a difficult area. And the function of his dissent, to make us focus on what we were deciding and to make sure that we felt we were doing the right thing, I think was well- served.

But Judge Garland disagreed, and so it's obviously, to me, a case on which reasonable judges can disagree. And I just have to rest on the analysis in the majority opinion.

GRASSLEY: Let me tell you something you might not be aware of, and that is that the Bush administration has filed an amicus brief in the 11th Circuit, arguing that you had misread the False Claims Act in the Totten case.

And in Atkins v. McInteer, the administration has argued that there's no presentment requirement in Section 37.30.A(2) of the False Claims Act.

In fact, quote, The Totten majority misconstrued the language and purpose of the False Claims Act in concluding that the act does not encompass (inaudible) claims, records, statements, submitted to recipients of federal funds, absent resubmission to a United States officer or an employee.

And I assume if I ask you if you have an opinion on that, you can't answer it.

ROBERTS: Well, not on that one. I do know the Bush administration filed an amicus brief in our case as well. I guess this would be one of those cases I would cite in response to the question of whether I'm capable of ruling against the administration. We did in that case.

Again, the arguments I think were well-presented on both sides. Judge Rogers and I gave it our best shot. And the opinion will stand or fall on its own.

GRASSLEY: Well, I hope, sitting in the marble palace, you'll remember that I have great pride in the success of the False Claims Act...

(LAUGHTER)

... $8 billion coming back to the Federal Treasury.

Judge Roberts, you filed an amicus brief in the case of United States v. Halper, a case which raised the question of whether a civil False Claims Act case could implicate double jeopardy clause.

The Supreme Court agreed with your arguments and held that double jeopardy job protects a convicted criminal defendant from a second punishment in the form of a civil sanction that, quote, may not fairly be characterized as remedial, end of quote, because it is, quote, overwhelmingly disproportionate the damage the defendant has caused, end of quote.

As you know, the Halper decision was later overturned by Hudson. Judge Roberts, do you consider the False Claims Act treble damages provisions to be excessive, in the words of the court, overwhelmingly disproportionate, and also in the words of the court, not fairly characterized as remedial ?

ROBERTS: Well, you've touched on a case that is very close to my heart, Senator. It was the first case I argued before the Supreme Court. I was appointed by the court to argue it on behalf of Mr. Halper.

It was an unusual case. It arose -- the conspiracy at issue was a slight inflation of I believe it was Medicare or Medicaid claims that this individual was submitting. I think he added $1 or $2 to every claim.

ROBERTS: And yet under the law at that time, there was a minimum penalty for each false claim.

These numbers won't be right, but he had something like 300 false claims for a grand total of maybe $700. But under the statute, he was assessed a civil penalty of several million dollars, because each of the false claims was a separate penalty.

And the issue was, after having been sentenced criminally, would a civil penalty of several -- and again, I'm not sure of the numbers -- but several million dollars for $700 or so of fraud, was that remedial and civil or was it punishment?

And the court agreed with my submission at the time that that was punishment. It led to some difficulty, I think, in administering civil and criminal laws down the line.

And as you said, eight years later, they reversed course and overruled the Halper precedent.

But the provision that you specifically mentioned, treble damages, that's a little different. There, it's a much closer connection. Obviously, just three times whatever the damages are.

In the Halper case, it was a much more disproportionate impact. And that's what led the court, I think, to conclude that, that looks like punishment.

Treble damages is something that's familiar in the law in a number of areas and is not regarded as impermissible punishment in this context.

GRASSLEY: Are you familiar with the legal arguments that some opponents of the False Claims Act have made to the effect that its Qui Tam provisions are unconstitutional under Articles 2 and 3, and if so, do you have an opinion on these arguments?

And before you answer, I'd like to remind you that at least since the 1st Congress was involved in this, I'd like to assume that the framers of the Constitution, because the first Congress enacted several Qui Tam statutes that if that be any deference to you in giving -- whether this factor would make any difference to you when assessing the constitutionality of Qui Tam statutes today.

ROBERTS: I think, if my memory serves, that the Article 3 objections -- and just so we're on the same page, the Qui Tam statutes, of course, are when a private individual brings suit on behalf of the government for fraud on the government and, in return, gets a percentage of the recovery.

And, as you've noted, it's been, under the False Claims Act, very successful in securing recovery of funds on behalf of the government.

The Vermont case -- and I'm not remembering it anymore than that; it was a case from Vermont -- I think addressed most of the Article 3 issues. The objection was: That individual has no standing, I think, because he doesn't necessarily have an interest.

And what the court said was that the individual has standing as a result of the bounty, if you will, the percentage he gets. That satisfies the standing requirement. So those objections are out of the way.

I do know that some have raised additional objections under Article 2, which go to the fact that this might interfere with the executive's authority to execute the law; in other words, you have private individuals bringing suit.

I'm not sure that those issues have been finally resolved.

And obviously, if those cases do come up, I'll want to keep an open mind.

The factor you mentioned, obviously, about historic practice, that is something that the court does look to in assessing constitutionality. If it's something that the founders were familiar with or a practice that they engaged in and showed no disagreement with, while not determinative, that is a factor that the court would look at.

I don't know if any of those cases are going to come before the court. But if they do, that's one of the considerations that will have to be taken into account.

GRASSLEY: Other than the Totten case and the Halper case, have you ever written or spoken publicly about the issue of the constitutionality of Qui Tam or any other provisions of the False Claims Act?

To your memory?

ROBERTS: I don't remember any, no, Senator.

GRASSLEY: OK.

Judge Roberts, in 1986, while serving as an associate White House counsel, you approved Reagan administration testimony regarding Whistleblower Protection Act of '86.

GRASSLEY: You probably recall that the Reagan administration opposed that legislation, which is now law. Could you explain what role, if any, you had in formulating the administration's position on the Whistleblower Protection Act?

ROBERTS: I don't recall any role, Senator. Our office, the counsel's office, would routinely review testimony that was about to be given. We were just looking out for particular constitutional concerns or issues. We generally did not get into the substance. The substance of that would have been shaped over in the Justice Department, and we would have been really looking out for anything that we thought infringed on the constitutional authorities of the president or presented other consistency issues, but the substance of the testimony is not something that I was involved in.

GRASSLEY: Do you feel that you have any bias against the False Claims Act or the Whistleblower Protection Act that would impact on your ability to fairly decide cases on those statutes?

ROBERTS: No, Senator. I have had some whistleblower cases and different aspects I do recall coming up in the court of appeals. And I think in some cases we ruled in favor and in some cases we ruled against, so I have seen those cases and have had no difficulty fairly and objectively deciding them.

GRASSLEY: Are you against cameras in the courtroom like Justice Rehnquist was?

ROBERTS: Well, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of.

(LAUGHTER)

But I don't have a set view on that. I do think it's something that I would want to listen to the views of -- if I were confirmed -- to my colleagues.

GRASSLEY: I would suggest, then, to the chairman that we move quickly on that bill before he's go an opinion on it.

SPECTER: I intend to do just that, Senator Grassley, now that I have your support.

GRASSLEY: Thank you.

SPECTER: Thank you, Senator Grassley.

Senator Biden?

BIDEN: Good morning, Judge. How are you?

ROBERTS: Good morning, Senator. Fine, thanks.

BIDEN: I went back and looked at something you said yesterday, which -- I was reminded by my son, who's done some appellate work; nothing like you -- and he said I thought I heard him say this, and I went to staff, got it.

Yesterday morning you said, I went back once and counted the questions during my half hour. There were over 100 questions the court asked. So you're not at all offended by us interrupting you like we do.

You're used to being interrupted, aren't you?

ROBERTS: I'm used to being interrupted before the court. That's for sure, Senator.

(LAUGHTER)

BIDEN: Well, we're kind of a court here. We're kind of a court.

You're not entitled to the job. God love you, you've been nominated, and your job is to demonstrate that there's no presumption, as you well know.

So I hope you won't mind some questions -- I promise I won't interrupt, if you give short answers. OK?

ROBERTS: I'll try, Senator.

BIDEN: OK. All right. Great.

I'd like to follow up on yesterday. I asked you if you agreed there was a right of privacy to be found in the liberty clause of the Fourteenth Amendment. And you said, and I quote, I do, Senator. I think that the court's expression -- and I think if my reading of the precedent is correct, I think every justice on the court believes that to some extent or another. Is that correct?

ROBERTS: Yes.

BIDEN: Now, one of the things that's been amazing is you are one of the best witnesses that I think has come before this committee, and I've been here 30-some years. And is that you've convinced the folks who share Senator Brownback's view that you're going to be just right for them, and you've convinced the folks that share Senator Kennedy's view that you're going to be just right for them.

And I think I'd like to plumb a little bit more closely this notion of how you view this right of privacy.

Now, if you take a look at Justice Scalia's comment about that right to privacy found in the Fourteenth Amendment, as related to the Casey case, he said, The issue is whether abortion is liberty protected by the Constitution of the United States. I am sure it is not, because of two simple facts: The Constitution says absolutely nothing about it and the longstanding traditions, et cetera.

Then on that same case, the quote coming from -- I've got to make sure I get the right justice here -- from O'Connor, Kennedy and Souter's dissent, they said, The liberty of a woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full term is subject to anxieties and physical constraints, the pain that only she must bear. Her suffering is too intimate and personal for the state to insist, without more, upon its own version of a woman's role.

Two fundamentally different views of the right to privacy as it relates to that issue.

In Cruzan, the case relating to whether or not fully competent adults have the right to refuse unwanted medical treatment, Justice Scalia said in his opinion, quote, that the federal courts have no business in this field; that American law has always accorded to state the power to prevent, by force if necessary, suicide, including suicide by refusing appropriate measures necessary to preserve one's life.

BIDEN: Justice Kennedy, in the same case, as you -- I know you know all this. But I just want to try to get a sense where you are.

He said, Liberty presumes an autonomy of self. That includes freedom of thought, belief, expression and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its transential (ph) dimensions.

Obviously, fundamentally different.

And then the same goes when he talks about -- when O'Connor says,

I agree that to protect the liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions. And that refusal of artificially delivered food or water is encompassed within the liberty interest, Justice (inaudible).

The point I'm making is obvious that there are very, very, very disparate views.

Can you tell which side you come down closer on?

ROBERTS: Well, Senator, first of all...

BIDEN: I'm not asking you to comment on any case.

ROBERTS: I can say that it is my view that all of the justices -- I think of a case like the Glucksberg case, in which the majority subscribed to the view that there is an appropriate mode of analysis to determine the content of the liberty clause; that it does include protection beyond physical restraint; and that that protection applies in a substantive manner. Now, there are legal theorists; there are judges and jurists who do not agree with that, who do not agree that there is right of privacy protected under the due process clause, who do not agree that the liberty protected extends beyond freedom from physical restraint.

Their view is that it means you cannot be basically imprisoned or arrested without due process. And that means only that you get some type of procedural protection.

That is not my understanding of where the justices on the Supreme Court are and it's not my understanding.

I believe that the liberty protected by the due process clause is not limited to freedom from physical restraint; that it includes certain other protections, including the right to privacy, as you know, that the court has tried to map out in a series of cases that go back to Meyer v. Nebraska and Pearce and all that and in the various instances as the claims have arisen; and that it's protected not simply from procedural deprivation.

That is...

BIDEN: If I may interrupt, that's not the question I asked you. I thank you for that lesson and I understand what you're saying.

I'm asking you a specific question.

Do you side more within that context, with the views of Scalia and Thomas which say that consenting adults do not have, if they're both male or female, do not have the right to engage in sexual conduct; the state can determine that?

Let me put it another way. My family faced and I'm sure many people in this audience's families faced a difficult decision of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive.

It's of great moment to the American public now. And there is a view expressed by Justice Scalia that there is no right that is absolute -- or no fundamental right that exists for a family member -- assuming the person is not capable of making the decision themselves, to make that judgment.

BIDEN: He says, and I'm speaking in layman's terms, he says the state legislature can make that decision.

I firmly believe, unless there's some evidence that the family's incompetent, the husband or the wife, with the advice of the doctor, should be able to make that decision.

What do you think?

ROBERTS: Well, Senator, that does get into an area that is coming before the court. There is a case pending on the docket right now that raises the question of whether or not state legislatures have a prerogative to lay down rules on certain end of life issues.

BIDEN: It's suicide, isn't it, Judge?

ROBERTS: Well, in that case it's the application of the federal controlled substantive law.

The issue of illness in those cases do come before the court. The Glucksberg case raised a similar question. The Cruzan case that you mentioned presented it in a very difficult context of an incompetent individual no longer able to make a decision and the question of how the state law should apply in that situation.

Those cases do come before the court.

BIDEN: Do you think the state -- well, just talk to me as a father. Don't talk to me -- just tell me, just philosophically, what do you think? Do you think that is -- not what the Constitution says, what do you feel?

Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment -- they are comatose -- to prolong that life should be one that the legislators in Dover, Delaware, should make, or my mother should make?

ROBERTS: I'm not going to consider issues like that in the context as a father or a husband or anything else.

BIDEN: Well, you did...

ROBERTS: I think...

BIDEN: Sorry.

ROBERTS: I think obviously putting aside any of those considerations, these issues are the most difficult we face as people and they are profoundly affected by views of individuality and moral views and deeply personal views.

Now, that's obviously true as a general matter. But at the same time, the position of a judge is not to incorporate his or her personal views in deciding issues of this sort.

ROBERTS: If you're interpreting a particular statute that governs in this area, your job as a judge is to interpret and apply that according to the rule of law.

If you are addressing claims of a fundamental right under the liberty protected by the due process clause, again, the view of a judge on a personal matter or a personal level is not the guide to the decision.

BIDEN: All right.

Well, Judge, let me ask you then, with your permission, about your constitutional view. Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue -- he does not want to continue -- on a life support system?

ROBERTS: Well, Senator, I cannot answer that question in the abstract, because...

BIDEN: That's not abstract. That's real.

ROBERTS: Well, Senator, as a legal matter, it is abstract, because the question would be in any particular case: Is there a law that applies, that governs that decision? What does the law apply...

BIDEN: That's the question, Judge. Can any law -- can any law -- trump a fundamental right to die? Not to commit suicide, a right to decide, I no longer want to be hooked up to this machine, the only thing that's keeping me alive. I no longer want to have this feeding tube in my stomach -- a decision that I know I personally made, and many people out here have made.

And the idea that a state legislature could say to my mom -- your father wants the feeding tube removed, he's asked me, the doctors heard it -- and the state legislature's decided that, no, it can't be removed.

Are you telling me that's even in play?

ROBERTS: Well, Senator, what I'm telling you is, as you know, there are cases that come up in exactly that context so that it is in play and the (inaudible) is that there are cases involving disputes between people asserting their rights to terminate life, to remove feeding tubes either on their own behalf or on behalf of others.

There is legislation that states have passed in this area that governs that. And there are claims that are raised that the legislation is unconstitutional.

Those are issues that come before the court. And as a result, I will confront those issues, in light of the court's precedents, with an open mind. I will not take to the court whatever personal views I have on the issues. And I appreciate the sensitivity involved. They won't be based on my personal views. They will be based on my understanding of the law.

BIDEN: That's what I want to know about because without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.

We are going to face decisions, you are, and the American public is going to face decisions about whether or not, as I said, a patent can be issued for the creation of human life. You are going to be faced with decisions about whether or not there is a right to refuse extraordinary medical -- heroic medical efforts that you don't want as an individual. And you are fully capable, mentally of making that decision.

And the idea that without a specific fact pattern before you, as someone keeps -- it keeps getting repeated here -- the law is about life. It's about facts, specific facts.

What I'm asking you, there's no fact situation before you about whether or not a person, fully mentally capable of making a decision, chooses to say, I no longer want this feeding tube in my stomach; please remove it, and whether or not that is a fundamental constitutional right.

ROBERTS: Senator, that's asking me for an opinion in the abstract on a question that will come before the court. And when that question does come before the court, the litigants before me are entitled to have a justice deciding their case with an open mind based on the arguments presented, based on the precedents presented.

I've told you with respect how I would go about deciding that case.

ROBERTS: It begins with the recognition that the liberty protected by the due process clause, does extend to matters of privacy, that it's not limited to restraints on physical freedom, and that that protection extends in a substantive way and not simply procedurally.

I have also explained the sources that judges look to in determining the content of that privacy protected by the liberty clause. They're the ones that have been spelled out in the courts opinions, the nation's history, traditions and practices.

And I've explained how judges apply that history, tradition and practices in light of the limited role of the judge to interpret the law and not make the law, the limited role of the judge in light of the prerogative of the legislature.

BIDEN: Judge, I understand that. Justice Scalia says the same thing and draws a very fundamentally different conclusion than O'Connor...

BIDEN: See, you've told me nothing, Judge.

With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them.

There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.

The idea that the founders sat there and said, Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is -- as you are -- a decent, bright, honorable man, that's all we need to know. That's all we need to know.

Look, let's -- I only have three minutes and 45 seconds left -- and by the way, I'd ask permission for the record to introduce the number of questions asked by Senator Hatch and others, very specific questions, as to Justice O'Connor with very specific answers on these very questions. I'd like to ask that they be submitted to the record.

SPECTER: Without objection, they will be made part of the record.

BIDEN: Let me conclude..

ROBERTS: Senator, could I...

BIDEN: I still have the floor -- and I'll yield to you, since you can speak after the clock's out. I can't, OK. I'm sure you understand that.

And I'm sure if I'm ever before the Supreme Court, you'll give me more time. You won't interrupt me.

(LAUGHTER)

Here's the point I want to make: I asked -- and I'm sure you're not going to answer it -- I asked Justice Ginsburg a question about Footnote 5 in the Michael H. case. And the whole issue there is, as you well know, whether or not you keep talking -- it sounds wonderful to the uneducated ear, the non-lawyer's ear, that I'm going to look at history and tradition.

You and I both know how you determine history and tradition determines outcomes. In that case, as you'll recall, there was a question of whether or not the natural father -- you could prove by a blood test and DNA that he was the natural father of a child he wanted to see that happened to be born to a woman that was living with her married husband. So the child was illegitimate.

So in determining whether or not there are any visitation rights, there's a famous footnote there.

BIDEN: And I'm going to do this quickly at two minutes and seven seconds.

The court said -- Scalia said in footnote six, Look, you go back and look at the specific historical precedent. Short-circuiting it,

Have bastards ever been protected in the law? And Brennan (ph) said, No, no, that's not what you go back; you go back and look at fatherhood. Was fatherhood ever something that's part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?

Now, Scalia said, No, no, no, no. I looked up the record: Bastards have never been protected in English common law. Therefore, there's nothing going on here.

And by the way, You should never go back, he says, and look at the general proposition has fatherhood achieved a status of consequence? No, it's have bastards achieved it?

So, Judge, how do you -- I'm not asking you on any case. How do you -- do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?

ROBERTS: I mean, I think you're quite right that, that is quite often the critical question in these cases -- the degree of generality at which you define what the tradition, the history and the practice you are looking at.

The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage?

BIDEN: Thirty-three seconds left: Do you agree with O'Connor then?

ROBERTS: Well, I get extra time you said...

BIDEN: I know. But I don't. I get to get it in now before the chairman...

SPECTER: Judge Roberts, when his red light goes on, you'll have as much time as you want.

ROBERTS: Thank you.

The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.

ROBERTS: And you look at...

BIDEN: But which precedent do you agree with? There are competing precedents.

ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.

So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely certain.

BIDEN: But that's specific, Judge. The generality was the right to marry. That's the generality.

ROBERTS: Well, that's what I'm saying. The dispute is, do you look at it at that level of specificity or broader?

And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. You're saying there is, obviously, that statute that's part of the history.

So you look at it at a broader level of generality.

Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, We stand for election and we wouldn't be elected if we didn't tell people what we stand for.

Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that,

This judge should go on the bench because these are his or her positions and those are the positions they're going to apply.

Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.

That's inconsistent with the independence and integrity of the Supreme Court.

BIDEN: No one's asking for a promise.

SPECTER: Thank you very much, Senator Biden.

BIDEN: Thank you.

Thank you, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Senator Kyl?

KYL: Thank you, Mr. Chairman.

I think this last exchange is important because it goes back to what we talked about at the very beginning, when some of us in our opening statements pledged to defend you if you stopped short of answering every question the way that every senator felt important, based upon your view that the matter in question might come before the court; that the canons of judicial ethics preclude you from doing that.

KYL: A very wise senator on this committee once said something. Let me quote it to you. And by the way, I contend that he is still wise.

(CROSSTALK)

KYL: And this is what he said: Judge, you not only have a right to choose what you will answer and not answer. But, in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 different forms, probably, over your tenure on the court.

Now, as I said, that was wise then. It's wise now. It is the statement of then-Chairman Joseph Biden in the Ginsburg hearings. And in all sincerity, I do believe Senator Biden to be wise and I believe that that comment is wise.

It's what's animated your approach to answering, probably by now, hundreds of questions that have been asked of you. And you've answered every question. In some cases, however, you have stopped short of advising us what you believe the law to be because you felt that that matter is going to come before the court.

But you didn't stop there. When permitted, you expanded to tell us why you thought it was a matter that might come before the court and what your general approach to the case would be in terms of your judicial philosophy, how you would approach judging the case, but that you didn't want to talk about your view of what the law was, both because the case could come before the court and also because it's pretty hard to formulate in a question all of the factual considerations that would permit you to know what law would be specifically applicable to that particular case.

KYL: And you and I talked a little bit about the facial challenge to statutes versus the as-applied kind of problem.

So with respect to this last interchange you had with Senator Biden -- and by the way, I'll say, again, to compliment my colleagues, if anybody ever contended that senators weren't both diligent in pursuing what they want to pursue and also very imaginative, they should watch this hearing, because we've been blessed with most creative ways of trying to pull out of you commitments on matters that senators would like to have you make commitments on.

But as Senator Biden just said, and I'm paraphrasing here -- he said without the knowledge of your personal views -- he was talking at the time about end-of-life issues -- we're rolling the dice.

And your response to that, as I understand it, is: My personal views are irrelevant to a case that comes before me of Jones v. Smith, of X v. Y. What I personally think about issues has nothing to do with the resolution of the dispute between those two parties. And were I to let them intrude, I would not be doing my job as a judge, fairly taking the facts of their case and then applying the law that I understand it to be to reach a decision.

Moreover, Judge, isn't it the case that if you were to state your views on such subjects, as they might pertain to a case that would come before the court, wouldn't you actually have to recuse yourself from deciding that case and, therefore, all of the discussion, all of the effort to get you committed to a particular point of view would be for naught because if you expressed it you couldn't sit on the case anyway? Or am I incorrect in that?

ROBERTS: I think that's a concern that other nominees have raised in the past, particularly given the expression of the views as part of the confirmation process.

It's not supposed to be a bargaining process.

And if you start stating views with respect to particular issues of concern to one senator, then, obviously, everyone's going to have their list and when that individual nominee, if confirmed, if the bargain is successful from his or her point of view and he gets confirmed, he'll have to begin each case, not with the party's briefs and arguments, but with the transcript of the confirmation hearing to see what he or she swore to, under oath, was their view in a particular area of the law or particular case.

And I think that would undermine the independence of the Supreme Court. It would undermine the integrity of the judicial process. Everyone of the justices on the court today, everyone of them refused to engage in that type of process. And if I'm to sit with them, if I am confirmed, I feel I have to follow the same approach.

Now, I do think I've been more expansive than most nominees. I've gone back and read the transcripts and some of them would not talk about particular cases even if it were unlikely that the case was going to come before the court.

And the reason they gave was, Look, it's hard to draw the line. If I think this case is not going to come before the court, what about this one and maybe that will. And rather than trying to draw the line, I'm just not going to do it.

And those justices were confirmed.

I've taken what I think is a more pragmatic approach. If I think an issue is not likely to come before the court, I have told the committee what my views on that case were -- what my views on that case are.

Perhaps that means it's sometimes difficult to draw the line, perhaps that's right. But, again, if I make the judgment -- and other nominees may draw the line differently. They have drawn it differently in the past or differently in the future.

The nominee, I think, has to be comfortable with the proposition that they're not doing anything that's going to undermine the integrity of the court.

KYL: And I noted yesterday, in response to a question, you said,

Well, that's the reward for trying to be more expansive. You were talking about Griswold v. Connecticut. I thought at the time, boy, he's expressing a view on a relatively recent case and, at least, issues associated with it are clearly going to come before the court. And I wondered, does that go too far, does that cross the line?

But your point was the specific issue in the case and the precise holding of the case are not likely, in your view, to come before the court. And therefore, you expressed your opinion about that case and the law underlining the ruling in the case. So I would agree with you that, not only have you attempted to answer every one of our questions, but you have also ventured into expressing your personal views on matters that you didn't think would come before the court -- although, as you note, it's at least possible that some of them might.

So hopefully you haven't gone too far there.

This, I think, is a great civics lesson. Some of this hearing should be encapsulated in law school courses to remind us about the difference between elected officials who make policy and judges who are not supposed to make policy.

I thought the questioning, I believe it was by Senator Brownback earlier, was instructive. You noted that the primary check and balance on the judiciary was its own self-restraint.

Many of us believe that the court has not exercised appropriate self-restraint in all cases and that, when it doesn't, it naturally generates concern expressed by the citizens of the country, as reflected certainly by their elected representatives.

And we do express that concern.

I think the court has failed to exercise appropriate restraint in several matters. And one of the things that appeals to me from your approach to the law is that it appears to be a very traditional approach, which is that I'm not sent there to make law; I'm sent there to take whatever case comes before us and just decide the case.

And that element of self-restraint and modesty is one which I think should be more the rule than it is today in courts at all levels. And I would commend that philosophy to all of the judges.

I think you've expressed it very well. And while I appreciate my colleagues' desire to try to draw you out on your personal views about matters, I think you have drawn the line at an appropriate place, and you've certainly provided us with a great deal of information in the process.

KYL: And, again, partly because you've explained to us, when you could not completely satisfy a senator's curiosity, why that was the case, but still tried to inform us about the basic issues that might exist in the case, the basic arguments that would be made on either side, but without giving us a hint as to which one of those you thought you might come down on the side of.

And I also think it's important that you have totally eschewed ideology here, saying that your own personal views or ideology don't have a place in your decision making, and therefore they are pretty irrelevant to the questions that are asked here.

I've got a whole notebook of questions here that to one extent or another have been dealt with, I think, by colleagues. And I don't think it serves a purpose to go over them again.

Let me just conclude with kind of a general comment, but before I do just try to correct the record on -- not necessarily correct, but add to the record on one very narrow point.

You were discussing, I believe with Senator Kennedy, the Herrera v. Collins case, and he talked about innocence claims being heard by the court, that a prisoner should have the right to present innocence claims.

I just wanted to ask you, is it not the case that in that Herrera v. Collins case, that it did not address the proper route for bringing claims based on newly discovered forensic evidence, such as DNA testing, which is, of course, a relatively new phenomenon now, but that was not the issue presented in that case?

ROBERTS: That's right.

There wasn't -- I don't know if they had as much access to that type of evidence back then when it was argued.

ROBERTS: But it was certainly not that type of evidence.

It was a new claim that somebody else did it, somebody who had just died. That was the new claim that they sought to raise at the last stage there. And I do think any issue arising with respect to DNA evidence, and those issues are working their way up through the court, those cases would have to be addressed on their own terms.

KYL: Yes. Thank you.

Well, let me conclude with this point.

Some who are watching might come to the conclusion that there's a lot of repetition here, and that to some extent there's a lot of senator talk expressing concern to you about different issues that are important to them.

Frankly, I think this is a once in a lifetime opportunity. It is the only time that before you take your position on the court, you'll have the opportunity to be directly lobbied in the political context in an appropriate way.

We reflect the views of our constituents, and we've all got different issues on our minds, and there isn't a one of them that is not a legitimate issue or concern.

I brought up the matter of applying foreign law to American decisions on our Constitution for example. It seems to be appropriate that you hear from us, the political branch, concerns that we have about the way that the court approaches its job. We may be right, we may be wrong, but it's important for you to hear that.

I know that justices read the newspapers and so on, but this is a very good forum to have expressed to you concerns that we have about various issues. And we wouldn't be talking about them if we didn't think that they would come before the court.

So, in a sense, virtually everything we're talking about we're trying in some way to get a point across to you because we believe it is likely to be decided by you.

And I think that's fine. You need to hear from us what our concerns are, even though perhaps we're trying to draw you out in areas that you obviously can't be drawn out in with respect to future cases.

It's also important for us to get the feedback from you. There won't be very many other times that we will have as a group of senators to sit down with the person that will likely be the chief justice of the Supreme Court and have a legal conversation with you.

We'll have to talk about matters relating to court administration. That'll be totally appropriate. And I'm sure we'll be doing that.

But by and large, this is the only chance we have to have this kind of an interchange with you. It is illuminating to me, as a student of constitutional law, someone who's practiced before the court.

KYL: I've learned a lot.

And therefore, to those who, on the outside, say, well, it looks like a lot of senators posturing, if they're listening very closely to your answers, I think they will find a great deal of meat, of knowledge, of the application of your wisdom to how you approach judging.

And I find it very consistent with the traditions of our court and the rule of law in our country. And this, therefore, becomes a very good reminder of what our rule of law is all about, what judging is based on, and the inter-relationship between the representative bodies of our government and the third branch, which you represent.

I think this is all very instructive, very informative and in my case, at least, with regard to your testimony, very comforting. Because it seems to me that you are following the great tradition of the court in your approach to the law, that you are careful, that you are cautious, and yet you are willing to look at the circumstances of our contemporary times in applying your judgment to the law that is before you.

And because I have that confidence, it's my intention to support your nomination. And because I think it unnecessary to delve into any other specific questions, I will yield back the remaining five minutes of my time.

BIDEN: Mr. Chairman?

SPECTER: Senator Biden?

BIDEN: A point of personal privilege, as we say in this body.

KYL: On my time, since I had five minutes and I referred to Senator Biden, please, take my time.

BIDEN: Thank you.

I've been quoted many times about what I said to Justice Ginsburg. With the permission of the chairman, it will just take a second, I'd like to read my whole quote, if I may, and then...

SPECTER: Senator Biden, you may do that.

You can even have more time. Senator Kyl's given you...

BIDEN: No, no. I don't want to use his time.

Let me just say -- here's what else I said. I said, Now, I hope, as I said to you very briefly, that the way in which you outline a circumstance under which you would reply and not reply, that you will not make a blanket refusal to comment on things, because obviously everything we could ask you is bound to come before the court.

BIDEN: There is not a controversial issue in this country that does not have the prospect of coming before the court.

Continuing: If a nominee, although it is their right, does not answer questions that don't go to the way they would decide but how they would decide, I would vote against that nominee regardless of who it is.

It's a continued quote: And you can thank Justice Scalia for that.

At the close of testimony, I said, I would also point out that my concerns about you not answering questions have been met. You've answered my questions the second day and the third day. At least, from my perspective, you've been forthcoming as any recent witness has.

I submit the entire statement for the record, along with the answers to her questions from Senator Hatch, you and others.

SPECTER: Without objection, they will be made a part of the record.

BIDEN: I thank the chairman for his courtesy and I thank the witness for listening.

SPECTER: It is now 12:30, and two votes have been scheduled at this time. So we will take a lunch recess until 1:45, quarter of two.

ROBERTS: Thank you, Mr. Chairman.

(RECESS)

SPECTER: The committee will resume.

Senator Kohl, 20 minutes.

KOHL: Judge Roberts?

ROBERTS: Senator?

KOHL: We spent quite a bit of time yesterday discussing how you would decide cases. And as we all know, it is your view that Supreme Court justices are umpires who are neutrally deciding cases.

I want to discuss with you another area where I believe your analogy falls somewhat short.

The Supreme Court not only, as you know, has the power to decide cases and to construe the Constitution, but it also has the sole and the absolute power to decide which cases it hears, which cases it decides, which parties get to be heard, and which parties do not get to be heard.

So if you're confirmed, you will get to choose which cases will be placed on the Supreme Court's docket with the vote of yourself and only three other justices, as you know. Making this choice, your opinions, your perspectives and your life experiences obviously matter quite a bit. Much more than an umpire calling balls and strikes, you are in that sense a manager who is really setting the field with players to decide what the menu's going to be like.

So this power is really quite important and it's crucial, and it's important that we understand that when we look at your role in terms of your own description.

In recent times, the Supreme Court has received appeals in nearly 7,000 cases a year. And as you know, in recent times the Supreme Court has heard only about 80 cases a year.

In other words, the justices choose to heard about 1 percent of the appeals that they receive.

My question for you, Judge Roberts, is, should you be confirmed, how will you decide which cases will make the cut and will be heard by the Supreme Court and what will guide your complete discretion to choose which cases to hear?

ROBERTS: I appreciate the question, Senator. It is an area where I happily concede that the justices are not acting just like umpires in deciding which cases they're going to hear, as opposed to how they're going to decide them.

My perspective has changed a little bit in this area. Certainly when I was practicing law, a lot of what I spent my time trying to do was get the Supreme Court to take a case.

As you know, you file these things called petitions for certiorari, which are really quite extensive arguments about why the court should hear your case, having really not that much to do with the merits, whether it was right or wrong, but just why the court needs to issue an opinion in this area. And I thought they weren't taking enough cases.

When I became a court of appeals judge, I thought you didn't need to have more cases taken up for review.

ROBERTS: But the considerations, some are pretty well established. The job of the Supreme Court is to ensure the uniformity and consistency of federal law, in particular of interpretations of the Constitution.

So the clearest case that the court should hear, they should grant certiorari on, as they say, is when two different courts of appeals are interpreting a law differently.

Obviously a law should mean the same thing in every part of the country, and if two different courts take a different view of the law, that's the kind of case the court ought to be taking.

I think the court should, as a general matter -- and again, other justices have expressed this view as well -- grant review in cases in which a lower court strikes down an act of Congress. I don't think that's an absolute rule, but certainly as a general matter. If an act of Congress is going to be declared unconstitutional, I think the Supreme Court ought to be the one determining that as a final matter, and generally not leave it to a court of appeals.

So those are two categories: when there's a conflict, when an act is found to be unconstitutional.

Beyond that -- and this is where I agree with you, the umpire analogy does not hold up -- there is a lot of discretion in deciding whether it's the right time to grant review in a case. The people who practice before the court talk about the court letting an issue percolate a little bit; in other words, get more than just one or two decisions from the courts of appeals, wait until others have had a change to weigh in.

The theory is that makes it more likely the Supreme Court will get it right, if they have the benefit of several decisions from the lower courts, rather than just one.

Other cases, justices determine that that's not appropriate. It's not appropriate to wait until the issue develops a little more. They want to look at it expeditiously. And it's hard to lay down categorical rules in that area.

ROBERTS: I have expressed the view, and it may be a view that I'll have to be educated on further if I am confirmed. I'm not stating it as a solid view. I do think there's room for the court to take more cases. They hear about half the number of cases they did 25 years ago.

There may be good reasons for that that I'll learn if I am confirmed. But just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases.

I have heard others say they could contribute to the clarity and uniformity of the law by taking fewer cases, but I don't subscribe to that view. I think there's room for additional cases on the docket.

KOHL: I think we agree that it's an enormous power, that power of decision. It's a very active power. It's not benign in any way. If justices, for example, decide not to hear a case, whatever the merits, that is the final decision; is that not correct?

ROBERTS: That's right. The decision of the court of appeals stands in that case.

Now, it is true that I think the justices generally look at their duty and obligation to ensure consistency in a fairly dispassionate and objective way. In other words, it doesn't matter how a particular case came out. If it's different in one part of the country and another, most of the justices, in my experience, readily agree that that's the kind of case they need to address.

KOHL: But just to refer to two that were taken up without any reference from any lower court -- one was Youngstown Sheet and Tube, which was, you know, the ability of the government to seize a steel mill during a time of war.

And, of course, another one that I'm interested in your comment on is Bush v. Gore, in which the courts decide to directly insert itself into a presidential campaign. I'm interested in not what happened after they decided to do that, but the decision they made, in terms of its propriety, its impact on the court, the court's standing in the country.

You must have thought about it, I'm sure, a great deal when it happened.

KOHL: I'm sure you have an opinion on their decision to enter that case. And I think we'd like to know what that opinion is.

ROBERTS: Well, you mentioned first the Youngstown case and it's a category -- and I think perhaps the Bush v. Gore case, perhaps the justices concluded it fell into that category.

There are certain cases that don't come along all that often that are, by their importance, significant enough for the court to take. In other words, they don't fit the description of a conflict among the courts of appeals or an act of Congress held unconstitutional.

But they are, otherwise, sufficiently important that the court will grant review and take those cases.

Certainly, the Youngstown case was of that sort. It started out actually in the D.C. court. And the hearing was first there. And then the court granted (inaudible) decision by a president to seize the steel mills based on the Constitution.

That's an important enough issue. You want the Supreme Court to issue a final ruling on that.

On the decision in Bush v. Gore and the determination of whether to grant review in that case, again, that's not something that -- you don't know on what basis the justices make a decision to grant review. You just get an order that says review is granted.

In that case, you had the decision of a state court that apparently the justices thought should be reviewed. And, obviously, expeditious treatment was needed as I think it was in the Youngstown case as well. They're capable of moving expeditiously when an important matter requires them to do so.

KOHL: I asked you what your opinion of that decision was at that time.

ROBERTS: Well, that's an area where I've not been -- I've not felt free to comment whether or not I agree with particular decisions or...

KOHL: Well, it's not likely to come up again.

ROBERTS: Well, I do think that the issue about the propriety of Supreme Court review in matters of disputed electoral contests, it is a matter that could come up again. Obviously, the particular perimeters in that case won't, but it is a very recent precedent.

And that type of a decision is one where I thought it inappropriate to comment on whether I think they were correct or not.

KOHL: OK.

Judge Roberts, one of the most important constitutional events of our lifetime was the nomination of Robert Bork to the Supreme Court. Congress chose to exercise its role to advise and, in this case, not to consent, based upon judicial philosophy and the strongly held opinions of the nominee.

In effect, Congress told the president that we have an important role to play in the process, as well.

Do you believe that the Senate's rejection of Judge Bork in 1987 was a reasonable and respectable act, or instead do you view it as a period of unfair partisanship? What were your thoughts about that case as it unfolded?

ROBERTS: Senator, I don't think it's appropriate for me as a nominee to comment on the Senate's treatment of other nominees, and I would respectfully decline to do that.

KOHL: Judge Roberts, when we met a few weeks ago in my office, we discussed the Supreme Courts recent property rights decision.

In that case, Kelo v. the City of New London, the court found it permissible under the Constitution for a city to seize private homes against the wishes of their owner so that a large pharmaceutical company could build a private industrial park and a research facility.

A total of 15 homes were condemned, including a home lived in by an 87-year-old woman for her entire life, a home that her family had owned for over 100 years. Many people, including a majority, I believe, of people in my state, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding the eminent domain powers of local government.

We discussed this when you were in my office, and you told me that you were, quote, surprised, by the decision. So could you expand on it a bit this afternoon and explain why you were surprised?

ROBERTS: I did tell you that was my initial reaction. I remember hearing about the decision driving, actually, back from a judicial conference with another judge.

And we all learn in law school the first, one of the first cases you study is called Calder against Bull. It has a basic proposition: The government can't take property from A and give it to B.

When I read the decision, I understood what the majority's position was: the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range.

Of course, Justice O'Connor in her dissent thought the line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not rule on the starkest example, in other words just determining to take the property from A to B because you think B could make better use of it.

The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.

I do know there's been extensive legislative reaction to the decision. I know a number of states have passed laws already saying we do not authorize the use of the power of eminent domain to take for a use that's going to be from one private owner to another. And that's certainly an appropriate reaction to a court's decision in this area.

What the court is saying, what the majority is saying, is because of the difficulty of drawing a line, this issue is really left up to the legislature. And if the legislature wants to draw the line in a particular place, it has that authority.

ROBERTS: But it certainly is a decision that was closely divided, 5-4, and it has gotten a lot of legislative reaction.

The point I would only make is perhaps it's a good example of the fact that legislators have a responsibility to protect the rights of the people just as much as courts.

And one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, we will not use the imminent domain power to the broadest extent that the Supreme Court has said we are authorized to do.

KOHL: Did I understand your opinion on whether or not that case was correctly decided, or are you...

ROBERTS: Again, that's -- particularly since it's an area they do leave -- specifically leave open the question about whether it applies outside of a redevelopment project, that's an issue that could come before the court. It's not one I feel appropriate to comment on.

KOHL: It would or would not surprise you if we'd not heard the last of that?

ROBERTS: It's certainly one of those areas that could come before the court again, even in its present form. I know the author of the majority opinion said it was an area where he, as a personal policy matter, wouldn't have exercised that authority.

But, of course, the issue there was the legal issue, not policy preferences. It could come before the court again, yes.

KOHL: You will have a decision to make if it does rise up to that level. Is it possible that your decision, along with three other justices, might be to put that on the docket?

ROBERTS: That would be one of the decisions that, in the exercise of the cert process, as they call it, short for the certiorari decision, and that would certainly be an issue that could come before the court.

And they already have, of course, four dissenters who may be anxious to revisit it -- or not. I don't know. I don't want to presume how they would view it on an ongoing basis.

KOHL: Judge Roberts, I would like to talk a little about antitrust. I'm the ranking member on the Antitrust Subcommittee.

To me, antitrust is not some mysterious legal theory that only lawyers can talk about or understand. Antitrust is just another word for fair competition.

The laws that we use to protect consumers and competitors from unfair and illegal trade practice is what antitrust is all about.

Do you agree that government enforcement of antitrust law is crucial to ensuring that consumers are protected from anti-competitive practices such as price fixing and illegal maintenance and monopolies?

ROBERTS: Yes, I do, Senator. In fact, when I was in private practice, one of the cases I handled was the Microsoft antitrust case, on behalf of government officials.

The states in particular -- a number of states -- retained me to argue that case before the D.C. Circuit on bond.

So I certainly appreciate the role of governments -- both state and federal -- in enforcing the protections of the antitrust laws because, as you know, there's concurrent authority in that area: the Sherman Act, of course, on the federal level, and then what people call the baby Sherman Acts on the state level.

KOHL: I'm glad to hear you say that because on June 14th, 1983, which is more than 20 years ago, in a memo to the White House counsel Fred Fielding, you wrote, quote, Enforcement of federal rights is advanced most effectively by private suits in antitrust cases.

KOHL: So isn't it often true that individual consumers don't have the resources to pursue these private suits against large corporations? And isn't that why government enforcement of antitrust is essential? So you would perhaps not be feeling the same way today as you did 22 years ago when you made that comment?

ROBERTS: Well, I think it depends on what area you're talking about. I do think that the system established under the Sherman Act of private antitrust enforcement -- and of course the opportunity to recover additional damages and attorneys' fees and other aspects -- has been an effective tool in enforcing the law.

There are areas, as you mentioned, if the issue is mostly consumer rights as opposed to business rivals, that government action may be more necessary in those areas as opposed to the others.

And I know that government antitrust regulators make those determinations every day, that their resources are best directed to areas where consumers or attorneys bringing class actions on consumers' behalf, whatever the reason, where the incentive system for private litigation may not be as effective. And that's often the area where state attorneys general, the Justice Department, decide to get involved to supplement the private enforcement activity.

KOHL: All right. I'll just ask one more question before my time expires, and that's upon the important role that chief justice plays as the head of Judicial Conference, which is the organization of the entire federal judiciary.

As head of Judicial Conference, chief justice makes policy recommendations with respect to legal reform, reform of court procedures and advocates for the federal courts.

What, if you were confirmed, would be your agenda, your plans or your policy objectives to advance in connection with your role as the head of Judicial Conference?

ROBERTS: Well, I'm familiar with how the Judicial Conference operates for at least part of its role. I've been on the Advisory Committee on Appellate Rules. I was there as a lawyer, and I've kept on as a judge. In fact, I was slated to be the chairman of that committee starting in October.

KOHL: So I understand the role in promoting reform of rules that apply in the federal courts, both the appellate rules, civil rules, criminal rules and bankruptcy rules and evidence rules -- different committees there.

And I'm familiar with the process. They go through the advisory committee, a broader committee about rules in general, then they are submitted to the Judicial Conference for consideration.

And it is a very exhaustive process, but I think also a very responsive one. Particular problems are identified in practice by practitioners, by judges. They are submitted to the committees. They review them. They come up with proposals.

It is a very important part of the functioning of the federal system and it affects all the levels, not just the Supreme Court of course, but the courts of appeals and the trial courts.

Other issues of concern, obviously, pressing issues concerns with respect to security in light of different developments, those are addressed at the Judicial Conference -- any need for legislative action that the courts feel is appropriate.

I have to tell you that if I were to be confirmed, as an initial matter, I think my primary posture is going to be one of listening because there's obviously much I have to learn about matters of concern to different judges, different courts around the country.

And that's the good thing about the Judicial Conference, of course. They bring in judges from around the country to make sure that you get a national perspective on what needs to be done and you are not just focused on issues here in Washington or anywhere else.

But it is an area where I think I will have to listen a lot at the outset before being presumptuous enough to have a particular agenda.

KOHL: I thank you, Judge Roberts.

I thank you, Mr. Chairman.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Kohl.

Senator DeWine?

DEWINE: Thank you, Mr Chairman.

Judge, good afternoon.

ROBERTS: Good afternoon.

DEWINE: You know, Judge, our Constitution created federal courts with limited powers. And, in fact, Article 3 of the Constitution only gives federal courts the power to decide cases and controversies.

This case and controversy requirement means that federal courts will only hear real lawsuits involving real parties with real injuries. We talked about this over the last several days.

This has led to the development of a number of different rules about when people can bring lawsuits in federal court and when they cannot.

One of these rules, as you well know, is the principle of standing. You talked about this in 1993 in a law review article you wrote in the Duke Law Journal.

You said the following, and I'll quote briefly from this: The legitimacy of an unelected life tenured judiciary in our democratic republic is bolstered by the constitutional limitation of that judiciary's power in Article 3 to actual cases and controversies.

KOHL: You went on to later state the following: The Article 3 standing requirement ensures that the court is carrying out its function of deciding a case or controversy rather than fulfilling the executive responsibility of taking care of the laws we faithfully execute, end of quote.

Judge, could you elaborate on these statements today and maybe explain briefly what the doctrine of standing is and why that doctrine is really so important to our constitutional system?

ROBERTS: Well, Senator, your question really ties together a few themes we've already touched on. I don't remember if it was you or someone else who referenced Justice White's description of his obligation and what it was, and his answer was to decide cases.

KOHL: That was me.

ROBERTS: And the basis for the institution of judicial review, as explained by Chief Justice John Marshall in Marbury v. Madison, is similarly grounded on the obligation to decide cases and controversies.

Because if you look at the Constitution, it doesn't say in Article 3 that the judicial branch is established in order to tell us all what the Constitution means. It says that the judicial branch is established to decide cases and controversies arising under this Constitution and the laws. And that is the basis for the authority to interpret the Constitution.

As Marshall explained, we have to decide a case. If the argument is that it's inconsistent with the Constitution, we have to decide that.

Therefore, we have that authority. And I believe that's consistent with the intent of the framers.

But it does mean, and this is the point I was trying to make in that small little law review comment, that judges should be very careful to make sure they've got a real case or controversy before them, because that is the soul basis for the legitimacy of them acting in the manner they do in a democratic republic. They're not accountable to the people. As judges they have the obligation to decide cases according to the rule of law.

So, first, make sure you've got a real case and a real case is not simply, I'm interested in this area. I don't like what the government is doing. Or, I' don't like this law, and so I'm going to go to court. What the standing doctrine requires is that you actually be injured by what the government is doing, injured by Congress' action.

Now, the injury doesn't have to be economic. The Supreme Court has explained in cases, like Sierra Club v. Morton, it can be aesthetic. It can be environmental. It can cover a wide range of injuries. But you have to show some injury that separates you from the general public, so you're just not voicing a gripe; you're trying to get a case decided. That's the importance of the standing doctrine.

KOHL: I appreciate the explanation, Judge.

Let me ask you a more personal question.

KOHL: Last time you appeared before our committee, you were a lawyer in private practice. Since that time, you spend approximately two years on the Court of Appeals in the District of Columbia, a new experience, even for an experienced practitioner like you.

What surprised you about the last two years of judging, if anything?

ROBERTS: Well, I think I had the biggest surprise on the first day that I heard cases.

Obviously, it's opening day and the first day of my career, so I prepared as well as I could and the arguments were great and I went into the conference room and I had my notes and all the books. It's just the judges, you know; just the three judges. We bring the record in; we're surrounded by the U.S. reports, by our Court of Appeals reports, but the United States code that you folks have written.

And I was ready and I'm sitting there and I remember the chief judge, who by tradition sits on a new judge's first day. He was there and another judge and I waited a while and I looked and they were still waiting. I waited a while longer and they were still waiting. And, finally, the chief judge advised me that the tradition was that the junior judge goes first at these discussions.

And, so, I was kind of put on the spot right off the bat. And part of what that conference was like -- and throughout, it really has -- I don't know if I'd say a surprise, but it's been illuminating to me.

The judges really do roll up their sleeves and try to find the right answer. It's just the judges. But, as we say, Well, we think this case is controlled by the Smith case, we get out the Smith case and we open it up and we look at it, leaning over each other's shoulders and seeing exactly what it says.

If somebody says, Well, but in this case, under the record, there was no evidence about this or there was no objection raised about that, you get out the record and you look at page, you know, 223, and you point to it and say, Well, here's where the objection was raised.

And the judges are very open. Hit's a very encouraging part of the process from my point of view. Nobody goes in there with set views. They want the benefit of the collegial process, the benefit of each other's views.

And you have to be able to substantiate your position. There's no place for rhetoric. People are pointing to the law. And I found that a very encouraging part of the process, what goes on in the conference room, which was, of course, a part of the process that I hadn't participated in before.

KOHL: It's something that we don't see, either.

ROBERTS: Right.

KOHL: We have no way of seeing it.

ROBERTS: Right. And the positive part of that process to me was that nobody was invested in anything other than getting the right result. And they're prepared to be convinced, contrary to initial impressions. And I was as well. I found it a very encouraging part of the process.

KOHL: Let me ask you, moving to administrative law issues, if I could. As you know in the 18th and 19th centuries, we really did not have the governmental agencies that have such a profound influence, for better or worse, on the daily lives of Americans.

Today, administrative agencies set workplace safety rules, establish environmental regulations, lay down traffic safety standards, just to name a few things.

As far as I know, there's no specific article in the Constitution dedicated to the administrative state we live in today.

In your view, what is there in the text or history of the Constitution that supports the growth of this administrative state that we live in?

Is the growth of the administrative state an example of the Constitution being amended simply out of necessity or is the administrative state consistent with the Constitution as drafted by our founding fathers?

How do you get to where we are from a constitutional point of view?

ROBERTS: Well, you know, we all, of course, begin in high school civics, with the notion of three branches of government, the executive, the legislative and the judicial. And we study that. And then, only occasionally do people look at the real world and say: Well, what is this agency? What is that? Is that legislative? Or is that judicial? Or is that executive?

And of course, the answer is, well, it's a little bit of each. It's exercising power delegated by Congress. It's executing it in a particular way. It's issuing regulations that have the force and effect of law. And quite often it's adjudicating particular disputes.

The activities of the administrative agencies are, of course, the bulk of what judges on the Court of Appeals for the D.C. Circuit do (inaudible) of administrative law that have recognized the legitimacy of these agencies and sought to ensure that their exercise of authority is consistent with constitutional provisions, by basically -- I mean, I know the issue can seem arcane to many people, but he fundamentals of administrative law really go back to the basic principles of justice: Is someone being given an opportunity to be heard?

ROBERTS: Is someone being treated fairly? Is someone who's making a decision, doing it for a rational reason or an arbitrary reason?

These are the same basic principles that have animated the common law system since the time of Lord Cook -- and they're being applied here as well. And the objection is often: This agency made a decision without adequately hearing our concerns.

Or this agency made an adjudicatory decision without hearing the record evidence. Or they did not explain.

That's the basic requirement of administrative law: explain your decision. That's the limitation on arbitrariness. And the agency didn't explain why it's doing these.

The notion that, even in these arcane areas, our legal system insists upon the observance of these basic requirements of -- I don't want to say due process; that's a technical term -- but that's the principle that is being applied.

That goes a long way to explaining how these agencies have been accepted into the constitutional system, because they've been required under principles of administrative law, to comply with these basic precepts of procedural regularity.

DEWINE: Judge, let me turn to the area of antitrust, a matter that's very important for the businesses and the consumers of this country.

DEWINE: For over 100 years our antitrust laws have helped consumers by ensuring that our economy is competitive and vibrant. Our antitrust laws are the oldest in the world, and many people, including me, think they are the best in the world.

In fact, I'm proud to say that John Sherman, Republican senator from my own home state of Ohio, wrote the first antitrust law back in 1890.

Over the past 20 years we've achieved a great deal of consensus, I think, about how the antitrust laws should be enforced, Democrat and Republican administrations.

As the chair of this committee's Subcommittee on Antitrust, Competition Policy and Consumer Rights, I've worked very closely with Senator Kohl, who asked you some questions about antitrust. I think we've worked in a bipartisan way to ensure that consumers and competition are protected.

This is a simple goal but it's not always easy to achieve or put into practice. For example, recently the rise and expansion of the Internet and the technological explosion of the so-called new economy have led to a marketplace that's changing faster and more often than we have really ever experienced before.

Judge, what challenges do you think the courts face in trying to square our old antitrust laws as they are currently written with new business strategies and the high technology markets? And do you think that the laws, these laws, give courts enough guidance to deal with these new economy issues?

ROBERTS: Well, that was really the basic issue that I faced in the Microsoft case before the D.C. Circuit en banc. There was a lot of argument, academic commentary back and forth. The idea this is a whole new area, you can't apply the old principles, they don't work in this context, you need to do something different. A so-called new paradigm and all that.

And at least the argument that I tried to make on behalf of the states was that the basic principles are the same. The Sherman Act was, as many have said, you know, a charter of economic freedom, and that those basic principles do have to be applied regardless of changes in the economics of the underlying businesses or the structure of the markets. Obviously, it requires a great deal of sensitivity on the part of the judges and it's a real challenge for the lawyers sometimes to be able to understand the economics, to be able to explain them to the judges, and judges appreciate that.

But my basic instinct, and it's nothing more than that, is that the principles are there and the issue is simply application in a new context.

DEWINE: Thank you.

Judge, just one final comment: Yesterday, Senator Grassley asked you whether you think that there is, and I quote, any room in constitutional interpretation for the judge's own values or beliefs.

In response, you said, and I quote, No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case, but you don't look to your own values and beliefs. You look outside yourself to other sources, end of quote.

You contained by saying that, and I quote, Judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision, end of quote.

Now, Judge, I know what you meant by that answer: Judges should not impose their own preferences from the bench. In fact, I said pretty much the same thing in my opening statement on Monday.

But, Judge, putting on a black robe does not mean that judge should lose his character.

You, sir, have a perfect resume and, certainly, an outstanding professional career. But a Supreme Court justice is more than just impeccable academic credentials and impressive accomplishments. President Bush nominated John Roberts, the man. America has gotten to know John Roberts, the man.

And I'm quite sure that the Senate is in fact going to confirm John Roberts, the man.

Over the past several months, we've examined your life, met with you in private, and now questioned you about your beliefs.

Throughout this time, your honesty, your integrity, your wisdom and, dare I say, your values have shown through.

I would just say, sir, please don't check any of that at the door when you walk into the Supreme Court.

By becoming John Roberts the chief justice, don't ever forget to be John Roberts, the man.

DEWINE: I think this country needs you to remember how you got here and who you met along the way.

We need you to bring to the court your compassion and your understanding for the lives of others who haven't been as successful as you have been.

We need you to bring to the court your strong commitment to equal justice for all.

And we need you to always remember that your decisions will make a real difference in the lives of real people.

When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide, open fields of your youth.

Those values are strong, they are true. The president saw them when he nominated you. And we are certainly seeing them this week.

I must say, sir, they must never leave you.

Justice Felix Frankfurter gave this same advise to his colleagues in 1949.

There comes a point, Justice Frankfurter wrote, where this court should not be ignorant as judges of what we know as men. Great justices are more than just legal automatons, legal technicians. They are more than just that. And though they lose their individuality when they put on a black robes, great justices never forget who they are.

I wish you well. Thank you, sir.

ROBERTS: Thank you, Senator.

SPECTER: Thank you very much, Senator DeWine.

SPECTER: Senator Feinstein?

FEINSTEIN: Thank you very much, Mr. Chairman.

Judge, I subscribe to much of what Senator DeWine said. I want to tell you what I think, perhaps a little differently and personally.

Senator Graham, last night, pointed out that Justice Scalia was confirmed by 98 votes of this body. And I thought, then, and I think now how different the days were in 1986.

There's so much water under the damn since then. The nation is divided. It has polarized. It is about 50-50. We are at war. Executive authority is very much on people's minds. The law as it relates to war, the Geneva Conventions, the conventions against torture, all of these things, very much on everyone's minds.

We have seen, in the last 10 years, 193 5-4 decisions of the court, which suggests that, on major questions, the court is also very divided.

And so in comes this young justice. I was one on our side that voted for you for the D.C. Court. I did so because there were so many testimonials about what a fine lawyer you are, what a fine human being you are. And I voted for you.

But there's more in this vote. Senator DeWine just spoke about the man as opposed to the legal automaton.

FEINSTEIN: Yesterday morning, you spoke, I thought eloquently. In answering Senator Specter's questions on Roe, you discussed stare decisis as fully as I have ever heard it discussed. I am not a lawyer. I learned a lot from listening to you. You discussed the right to privacy. You were very full and forward speaking.

And then after lunch, it was as if you shut down and became very cautious. So my first question: Did anybody caution you between the morning and the afternoon sessions?

ROBERTS: No, Senator. No.