Day three complete transcript Part 3

FEINSTEIN: Has anyone, when you were being interviewed for this position, ever asked your opinion on Roe?

ROBERTS: No.

FEINSTEIN: OK. That's good to know.

1973, 2005 -- 32 years -- over three generations of women have come, really, to feel that finally they have some autonomy over their body. And women are all different. Many of them are very pro-life. Many are pro-choice. People have different religious views, moral views. So it's this big diverse cosmopolitan of women.

But the growth has been enormous. And the ability of women to succeed -- I mean, I went into the workforce at the same time Sandra Day O'Connor did, with a year's graduate work. The door was closed. It's now open. And women are so lucky.

FEINSTEIN: And it seems to me that the living Constitution is that each person in this great country, man or woman, rich or poor, white or black, whatever it might be, can really reach their full potential.

And I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I've heard so many times, I can't really say because it may come before me. And yet, I don't expect you to say what you would do with Roe one way or another.

But I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice. You could be chief justice for 40 years. That's a very long time.

And because of the division -- and there's also a lot of fear out there -- where this new court, now with potentially two new justices, is going to go, whether you've got the ability to bring that court together, to end the 5-4 decisions, to see that big decisions are made so that they represent a much greater consensus.

And I'm trying to find out and see are those qualities really there. I was interested in a colloquy you had with Senator Biden on the end of life. And he used the word -- he asked a number of legal questions.

And then he says, OK, just talk to me as a father and tell me. Now, I have been through two end of life situations, one with my husband and one with my father, both suffering terrible cancers, a lot of pain, enormous debilitation.

FEINSTEIN: Let me ask you this question this way: If you were in that situation with someone you deeply love and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do?

To me, it's that stark because I've been through it.

ROBERTS: Well, Senator, in that situation, obviously, you want to talk and take into account the views and heartfelt concerns of the loved one that you're trying to help in that situation, because you know how they are viewing this. You know what they mean when they're saying things like what their wishes are and their concerns are and, of course, consulting with their physician.

But it seems to me that in that situation, you do want to understand and make sure that you appreciate the views of the loved one. And only you can do it because...

FEINSTEIN: That wasn't my question.

ROBERTS: I'm sorry.

FEINSTEIN: I'm trying to see your feelings as a man.

I'm not asking you for a legal view.

ROBERTS: I wasn't trying to give a legal view.

My point was that, obviously, you look to the views of the person involved. And if it's a loved one, you are the one who is in a position to make sure that you understand their views and can help them communicate those.

FEINSTEIN: How would you feel if you were in that position?

ROBERTS: An end of life situation?

You know, I do think it's one of those things that it's hard to conceptualize until you're there. I really would be hesitant to say this is what I would definitely want done or that's what I would definitely want done. You do need to confront that and appreciate all of the different concerns and impulses and considerations.

FEINSTEIN: And every situation is different.

ROBERTS: Yes.

And it's one of those things I think is difficult to put yourself in that position and say, Well, with any degree of confidence, if I were suffering and confronting the end of life, this is what I would want to do or that is what I would want to do.

ROBERTS: You can theorize it and try to come up with your views or how you would confront...

FEINSTEIN: That's right.

All I'm saying is you wouldn't want the government telling you what to do.

ROBERTS: Well, I'm happy to say that as a general matter.

FEINSTEIN: That there should be a basic right of privacy.

ROBERTS: Well, that's getting into a legal question.

FEINSTEIN: OK, I won't go there.

ROBERTS: And you don't want...

FEINSTEIN: I won't go there. Let me go somewhere else.

Commerce clause, the 14th Amendment, Lopez, which began a chain of about 36 cases, striking down major pieces of legislation. It's not easy to get a bill passed here. I mean, there are hearings, there are discussions, there are markups, there's one house, there's another house, there's a president.

It goes through most of the time scrubbed pretty good before it gets to the president.

Gun-free schools -- struck down in 1995, an impermissible use of the commerce clause.

'96, Moses Lake, Washington -- shooting in a school. '97, Bethel, Alaska, principal and one student killed. '97, Pearl, Mississippi, two students killed and seven wounded by a 16-year old. 1997, West Paducah, three students killed, five wounded.

Stamps, Arkansas, two students wounded. Jonesboro, '98, four students, one teacher killed; 10 others wounded outside West Side Middle School. Edinboro, Pennsylvania, one teacher killed, two students.

And on and on and on -- an impermissible use of the commerce clause to prohibit possession of a weapon in schools.

Now, at what point does crime influence commerce?

ROBERTS: Well, I think it does.

And one of the things that's important to understand about the Lopez decision is the court analyzed it -- and, again, I'm not taking a position on whether it was correctly decided or not.

FEINSTEIN: Right, right.

ROBERTS: But as the court analyzed it, one of the things about the act was that it did not have what's known as a jurisdictional requirement. It didn't have a requirement that the firearm be transported in interstate commerce -- a requirement that I think it would be easy to meet in most cases, because guns...

FEINSTEIN: But the firearm is transported in interstate commerce -- maybe not when that student had it, but to get to the student, the firearm has been transported in interstate commerce.

ROBERTS: My point is that the fix in Lopez, all that the court was saying was missing in there, or what was different about Lopez than many of the other cases, was that lack of a jurisdictional requirement.

And if the act had been -- as I understand the court's analysis, the act had required that, which I think, again, it's fairly easy to show in almost every case.

ROBERTS: As you say, these guns are transported in interstate commerce. Then that would have been within the Congress' power under the commerce clause.

I think it was an unusual feature of the legislation that it didn't have that requirement, as so many laws do. As you know, it often says in interstate commerce. And that's -- at least as I understand the Lopez decision -- what made it unusual.

FEINSTEIN: That's very helpful. You might get it back again someday, with that fix.

Let me turn to something else that Senator Leahy asked a number of questions on, and that's the Constitution and executive power.

I'm looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?

ROBERTS: Right.

FEINSTEIN: Which gives it the total weight of law.

Can a president, then, decide not to follow a treaty?

ROBERTS: As a general matter, the answer is no.

The treaty power, as long as it's ratified according to the requirements in the Constitution, by two-thirds of the Senate, you're perfectly correct, it is under the supremacy clause the supreme law of the land.

Now, I don't know if there are particular arguments about executive authority in that area with which I'm not familiar, and I don't mean to state categorically, but my general understanding is that treaties that are ratified -- and of course we have treaties that aren't ratified and executive agreements that aren't submitted for ratification and so on -- but the treaty that's ratified by the Senate under the supremacy clause is part of the supreme law of the land.

FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?

ROBERTS: Yes.

Now, there are questions, of course, that arise under those -- and have arisen under those -- about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated.

But that's an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.

FEINSTEIN: Let me take you to yesterday morning and stare decisis.

FEINSTEIN: Because you specifically discussed, when you were asked about Roe and Casey, precedent. Specifically, as we said, workability, reliance, pragmatic considerations, changed facts or circumstances and whether the underlying legal or constitutional doctrine would still be valid.

Are there any other factors that you think should be considered?

ROBERTS: Well, the court has been somewhat inconsistent on some other factors.

They, for example, talked about, in some cases, the length of a precedent, the idea that the longer it's been on the books, the more people have conformed their conduct to it.

In other cases, they've suggested that's not such an important consideration. In Payne v. Tennessee, the case said it noted how closely divided the court was and the prior case was a factor. But in other cases, the court has said that's not a major consideration.

So I put those factors on the table simply because, in some cases, the court looks to them; in others, it doesn't. But I think the ones I mentioned yesterday are ones that apply in every case, including the settled expectations, the workability, whether the doctrinal basis of a decision have been eroded.

FEINSTEIN: Yesterday, in answering Senator Specter on this very point, when you referred to Payne v. Tennessee, you did point out there were other considerations that come into play and they're laid out again in Dickerson and other cases, Payne v. Tennessee, Agostini, and a variety of decisions where the court has explained when it will revisit a precedent and when it will not.

ROBERTS: Yes.

FEINSTEIN: What do you think, when it should and should not?

ROBERTS: Well, I do think you do have to look at those criteria. And the ones that I pull from those various cases are, first of all, the basic principle that it's not enough that you think that the decision was wrongly decided. That's not enough to justify revisiting it. Otherwise, there'd be no role for precedent and no role for stare decisis.

Second of all, one basis for reconsidering it is the issue of workability. If a precedent has turned out not to provide workable rules, if courts get different results in similar cases because...

FEINSTEIN: Or if another case, like Casey, finds that Roe is workable.

ROBERTS: Well, again, that is a precedent of its own...

FEINSTEIN: Right.

ROBERTS: ... that obviously would be looked at under principles of stare decisis.

The issue of the erosion of precedent: If you have a decision that's based on three different cases and two of them have been overruled, maybe that's a basis that justifies revisiting the prior precedent.

The issue of settled expectations: The court has explained, you look at the extent to which people have conformed their conduct to the rule and have developed settled expectations in connection with it.

Perhaps the discussion earlier we had about the Dickerson case is a good example of that, where the chief justice thought Miranda was wrongly decided but explained that it had become part of the established rules of police conduct and was going to respect those expectations.

FEINSTEIN: Now, yesterday you said this: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that. The courts since Griswold has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.

Do you think that right of privacy that you're talking about there extends to single people, as well as married people?

ROBERTS: The courts held that in the Eisenstat case, which came shortly after Griswold, largely under principles of equal protection, and I don't have any quarrel with that conclusion in Eisenstat.

FEINSTEIN: OK. Do you think that that same right extends beyond family choices then about a child's education?

ROBERTS: Well, that's where it actually got started 80 years ago in the earliest cases. Meyer and Pierce involved questions about how to raise children, whether you could teach them a foreign language, whether you could send them to a private school. And those decisions are really what started that body of law.

FEINSTEIN: Justice argued that the statute gave the president the authority to change Iraq's designation as a state sponsor of terror and thereby relieve it, after the fact, of its responsibilities for prior acts of terror.

You wrote a concurring opinion in favor of overturning the district court's judgment. Although you agreed with the other two judges on the panel that the judgment should be reversed, you alone adopted the Department of Justice's argument that the statute granted the president total power to absolve Iraq of liability.

You reached this conclusion while acknowledging the question of statutory interpretation is close.

Can I ask my question?

SPECTER: Yes, you may finish your question.

FEINSTEIN: Do you believe that when, as in Acree, there is a close question of interpretation of a statute touching upon a foreign policy, that the executive deserves total deference?

ROBERTS: Oh, no. Senator, whether the question is close or not, I don't think there is any situation where a court concludes that the executive deserves total deference. And that was not the basis of my decision.

The judges were unanimous that the veterans were not entitled to relief. The panel was chosen from a point -- happened to be appointees of three different presidents. The view was unanimous that they were not entitled to relief.

The other two judges concluded there was no cause of action available to them. I concluded that there was no jurisdiction and wrote separately. The recognition that it was a closed question is also reflected in the view of the other two judges in addressing my concern. They acknowledged that it was a close question and I agreed with that.

But you did have legislation that said that the president can determine that these laws do not apply if he makes a determination under the criteria set forth in the statute. And he had done that. And my conclusion: that that extended to the provision that otherwise would have allowed suit.

The other two judges disagreed. They thought there was jurisdiction disagreed. They thought there was jurisdiction, but then concluded there was not right of action, so the end result of both of our positions was the same.

But it was not a question of deference. It was a question of interpreting the legal authority and consequences of an act that this body had passed and the president's finding under that.

ROBERTS: When it comes to interpreting of law, I go back to Marbury v. Madison. That is emphatically the province and duty of the judicial branch. We don't defer to the executive. We don't defer to the legislature in making that final decision about what the law is.

FEINSTEIN: If confirmed, maybe you will defer to the legislative a little bit.

Thank you...

ROBERTS: We defer -- just to clarify. We certainly defer in the standards of review that make sure that we are not (inaudible). But the final decision about what's constitutional or not rests with the judicial branch. The policy judgments, we certainly defer to the legislature.

FEINSTEIN: Thank you.

ROBERTS: Thank you.

SPECTER: Thank you, Senator Feinstein.

Senator Sessions.

SESSIONS: Thank you, Mr. Chairman. And thank you for your leadership as we move forward expeditiously, I think, today, and I think in a helpful way.

I think the hearings have been very good.

And, Judge Roberts, I salute you for your excellent manner and your forthrightness and professionalism as you answer these questions.

You know, I hope we are moving away, Senator Feinstein, from divisiveness. In some ways, we do have a divided country. But in other ways I think we have the potential to move together. And I frankly believe that one thing that causes divisiveness and frustration and angst is when a Supreme Court would render an opinion that really is more a political or social policy decision rather than a legal decision.

And when they say it amounts to the Constitution, a constitutional provision, then that Supreme Court opinion can only be changed by two-thirds of both Houses and three-fourths of the state.

Do you understand that danger, Judge Roberts, in opinions and is that perhaps one reason you think a judge should show modesty?

ROBERTS: Well, it is part of what I mean when I say a certain humility should characterize the judicial function. Judges need to appreciate that the legitimacy of their action is confined to interpreting the law and not making it.

And if they exceed that function and start making the law, I do think that raises legitimate concerns about legitimacy of their authority to do that.

SESSIONS: Well, I would observe that the American people are beginning to believe that is occurring, and I think it does threaten the legitimacy of the court in a way that all of us who love the law should be concerned.

And I do love the law. And I'm a big critic of the courts on these kind of activist cases. But I have practiced full time before federal judges. And as I said earlier, I believe, day after day, justice is done.

SESSIONS: You have said that, before your court, you are impressed with the objectivity and fairness that the judges bring.

Is the ideal of a blindfolded justice, a neutral umpire, is that a romantic, naive ideal? Or is that something that you believe we can and should strive to achieve in America?

ROBERTS: Well, I do know that there are sophisticated academic theorists, people who spend a lot more time theorizing in this area than I do -- and a lot smarter than I am addressing these issues -- who, some of whom conclude that in particular cases, it is difficult to do, it is different to avoid making the law while you are interpreting it.

And they kind of throw up their hands and suggest that we shouldn't even try, therefore.

And I don't agree with that. I think, as a practical matter, as a pragmatic matter, judges every day know the difference between interpreting the law and making the law.

Every day, judges put aside their personal views and belief and apply the law, whether the result is one they would agree with as a legislator or not agree with.

The question is what the law is, not what they think it should be.

I have seen that on the court of appeals. I have seen that as a practicing lawyer before the court. That is the ideal.

I'm sure judges -- I'm sure justices -- don't always achieve it in every case because it is a human endeavor, and error is going to infect any human endeavor.

But that is the ideal and I think good judges working hard can not only achieve it, but also achieve it together in a collegial way and benefit from the insight and views of each other.

SESSIONS: Well, I thank you for that. And I would share those views. And I absolutely believe the strength of our nation is our good legal system.

We have talked about the commerce clause and there has been a lot of criticism of some of the cases.

SESSIONS: I think there have only been two significant commerce clause cases maybe in the last 40 years, Lopez and Morrison. Senator Feinstein and you had a nice exchange about Lopez. I would certainly agree with your analysis.

Had the Congress placed in there a requirement that the firearm had been traveled in interstate commerce, I believe that statute would have been upheld. We could pass it again with that simple requirement, and virtually every firearm will have traveled in interstate commerce. A few states have manufacturers.

When I was a federal prosecutor, I prosecuted a lot of those cases. As a young prosecutor, I was sort of an expert at it in the '70s, and I proved sometimes the interstate commerce by simply putting an agent on there saying there was no gun manufacturer in Alabama. Or it said, Made in Italy, on it. I remember I got that affirmed one time as proof beyond a reasonable doubt that it was not made in Alabama.

So Lopez, I believe, is a good decision.

Also, with regard to crime, I would note that we've always had that nexus with interstate commerce. As a federal prosecutor, it's not prosecution for theft, it's prosecution for interstate transportation of stolen property. That's the federal crime. Theft is prosecuted only by the state courts unless it's theft from an interstate shipment. That's a federal crime. It's not stealing an automobile, it's interstate transportation of a stolen motor vehicle. ITSMV is the federal crime.

The Hobbs Act, the Extortion Act to use against politicians, you have to have an interstate nexus. And I've had cases where bribery was proven, but we were not able to prosecute it federally because it did not have an interstate nexus. RICO, even arson cases have to have it there.

So I just want to make sure that -- let me ask you this.

In general, wouldn't you agree if someone in Pennsylvania picks up a rock and murders their neighbor, that is a crime unreachable by federal prosecution under traditional interpretations of commerce clause and the reach of the federal government?

ROBERTS: Well, again, barring special circumstances of the sort you were talking about, that's generally something addressed by state authorities.

SESSIONS: We need to get this thing straight.

We have some people complaining we are federalizing too many crimes and then complaining that we are striking down some that go too far. States should prosecute these cases locally and effectively, and should do that -- guns in schools, and guns and that kind of thing.

In the Violence Against Women Act, that was a commerce clause case, where a woman was raped and then sued the people who assaulted and raped her. She wanted to sue in federal court under the Violence Against Women' act.

What the court held there was, as I read it, the court limited Congress' power to provide for civil damages, money damages. She could sue that rapist in state court, but not for money damages in federal court. Is that the holding of that case?

ROBERTS: That's my understanding of what the court held in the Morrison case, yes.

SESSIONS: And I don't think it is an utterly extreme position. It certainly did not gut the Violence Against Women Act. It has so many more provisions than just that.

If the action had been against a private business, could the damages have been rendered in that case?

ROBERTS: I'm not sure I know the answer to that, Senator.

SESSIONS: I will follow up on the Garrett case that several people mentioned. It involved the University of Alabama in a lawsuit against the state institution claiming violation of the Disabilities Act.

The state defended on the grounds that you could sue the state of Alabama for back pay. You could sue the state of Alabama to get your job back. You could sue the state of Alabama and get an injunction against the state to not discriminate again in the future.

But under the sovereign immunity doctrine that protects a state from lawsuits, you couldn't sue them for money damages.

Now, Senator Cornyn, who was attorney general of his state and attorney generals like Attorney General, now Judge Bill Pryor, who defended Alabama raised that defense.

And I don't think it is a bogus defense. I think it is a legitimate concern.

Judge, do you recall where the doctrine is that's so famous in the law, that the power to sue is the power to destroy? Do you remember where that came from in our legal history?

ROBERTS: I remember tax opinions talking about it; the power to tax being the power to destroy.

SESSIONS: But I think that the doctrine has been applied to the states. We attorney generals are familiar with it.

Under the sovereign immunity that the states have, if you are empowered to sue the state of Alabama in federal court, then you have virtually the power to destroy that state financially, if there's no real limit on it.

And so we have always provided and the states have provided a sovereign immunity that the states are only allowing themselves to be sued under certain circumstances and you cannot just sue them unnecessarily.

I know Senator Mark Pryor, our Democratic colleague, signed on the brief for the state of Alabama in the Garrett case, taking this position and the Supreme Court ruled with it.

So I also would note that it did not in any way destroy the Disabilities Act. It applied to only -- state employees only make up about 3.7 percent of the employees in the nation that might be covered by that.

So I think that there has been healthy trends in re-establishing that there's some limit to the reach of the commerce clause.

Would not you agree?

ROBERTS: Well, the interesting thing: The court's most recent decision is the medical marijuana decision in the Raich case. And the court there looked at the Lopez and Morrison decisions and tried to put them in context and said -- because the argument there was based on Lopez and Morrison, saying this is beyond Congress' power.

And the court said those are only two of our cases and they need to be put ion the broad sweep of commerce clause precedents for over 200 years.

Yes, there are two cases and it had been -- I think -- 65, 70 years since the court had focused on limitation under the commerce clause and concluded that it was beyond Congress' power.

But the Raich case concluded that this was within Congress' power. they said it's not as if Lopez and Morrison are junking all that came before. They just need to be considered in a broad context.

And, of course, there's decision after decision, going back to Gibbons against Ogden, one of Chief Justice John Marshall's early opinions about the scope of Congress' power to destroy.

SESSIONS: But I think that the doctrine has been applied to the states. We attorney generals are familiar with it.

Under the sovereign immunity that the states have, if you are empowered to sue the state of Alabama in federal court, then you have virtually the power to destroy that state financially, if there's no real limit on it.

And so we have always provided and the states have provided a sovereign immunity that the states are only allowing themselves to be sued under certain circumstances and you cannot just sue them unnecessarily.

I know Senator Mark Pryor, our Democratic colleague, signed on the brief for the state of Alabama in the Garrett case, taking this position and the Supreme Court ruled with it.

So I also would note that it did not in any way destroy the Disabilities Act. It applied to only -- state employees only make up about 3.7 percent of the employees in the nation that might be covered by that.

So I think that there has been healthy trends in re-establishing that there's some limit to the reach of the commerce clause.

Would not you agree?

ROBERTS: Well, the interesting thing: The court's most recent decision is the medical marijuana decision in the Raich case. And the court there looked at the Lopez and Morrison decisions and tried to put them in context and said -- because the argument there was based on Lopez and Morrison, saying this is beyond Congress' power.

And the court said those are only two of our cases and they need to be put ion the broad sweep of commerce clause precedents for over 200 years.

Yes, there are two cases and it had been -- I think -- 65, 70 years since the court had focused on limitation under the commerce clause and concluded that it was beyond Congress' power.

But the Raich case concluded that this was within Congress' power. they said it's not as if Lopez and Morrison are junking all that came before. They just need to be considered in a broad context.

And, of course, there's decision after decision, going back to Gibbons against Ogden, one of Chief Justice John Marshall's early opinions about the scope of Congress' power; and the recognition under the constitutional scheme that it is a broad grant of power; and the recognition that this body has the authority to determine when issues affecting interstate commerce merit legislative response at the federal level.

SESSIONS: I think you're going to another setting. But I think you are correct. These are some difficult areas in the court that you need a lot of attention to. But some recognition that there are limits to federal reach is, I think, legitimate for a court.

Judge, are you aware of the salary that you'll be paid if you become...

ROBERTS: In a vague way, yes.

SESSIONS: And I suppose you were, when you were affirmed to the court of appeals.

ROBERTS: Yes.

SESSIONS: You're not going to be back next week asking for a pay raise, are you?

(LAUGHTER)

ROBERTS: Not next week, no.

(LAUGHTER)

SESSIONS: Chief was pretty -- always over here knocking on our door about pay raises. But, you know, we have a deficit in our country...

(LAUGHTER)

And you're paid the same -- I guess the chief's maybe paid more than senators. But for the most part, judges are paid what members of Congress are paid. And I, frankly, am dubious that we should give ourselves big pay raises when we can't balance the budget.

I also chair the Courts Subcommittee, Courts and Administration. And as chief, you have a serious responsibility with regard to managing and providing guidance to the Congress on the needs of the court system.

I know that -- I'm sure that you will do that with great skill and determination. But let me ask you: Will you also seek to manage that court system -- and I hesitate, but I will use the word

bureaucracy at times -- effectively and efficiently and keep it a lean and effective management team and maintain as tight a budget as you can maintain?

ROBERTS: Well, if I am confirmed, Senator, the answer is yes. I'm aware that there is, for example, the administrative office and they provide valuable services to judges around the country.

As a consumer of their services for the past two years, I have certainly particular views about where I think they're effective and helpful to judges and other areas where -- like any bureaucracy -- where I think they can do better.

It is an area where my first priority is going to be to listen because I'm sure there are many considerations of which I'm not aware that are very important for the chief justice to take into account.

ROBERTS: And, after listening, I'll try to make the best decisions I can about administering that system.

SESSIONS: Well, there are a lot of problems. Judges are not happy with the General Services Administration, and sometimes GSA is not happy with the judges, and sometimes judges overreach and want to be treated awfully specially.

And so I think you have a challenge there. I would look forward to working with you. If you'll help us make sure that your court system is lean and efficient and productive, we'll try to make sure that you have sufficient resources to do those jobs.

One more thing that I'd just like to inquire about, and that deals with stare decisis, the deference you give to a prior decision of the Supreme Court. And you've mentioned a number of factors. And I recognize those as valid and worthy of great consideration.

But it almost strikes me that is a bit circular. In other words, the court is creating a wall around its opinions to try to avoid seeing them overruled.

Isn't it true that your first oath is to enforce the Constitution, as God gives you the ability to understand it, and that sometimes decisions have to be reversed if they are contrary to a fair and just reading of the Constitution?

ROBERTS: Yes, Senator, the oath we take is to uphold the Constitution and laws of the United States. That's true. And the way judges go about that is within a system of precedent and, consistent with rules of stare decisis, no judge starts the day by opening a blank slate and he said, What should the Constitution mean today?

You operate within those systems of precedents. That's the best way that we judges have determined to interpret the Constitution and laws consistent with principles of stare decisis.

SESSIONS: Judge, I would just conclude with noting that I remember when the court, in the 9th Circuit, ruled that striking down the Pledge of Allegiance -- then Majority Leader Tom Daschle came to the floor, as now Minority Leader Harry Reid did at the same afternoon, and they criticized the opinion and criticized the 9th Circuit and expressed concern about activism in that circuit, which I have done often myself.

SESSIONS: But I responded that my concern was not so much with the circuit, but with the confusing number of opinions from the Supreme Court and that I had no doubt that there was Supreme Court authority that would justify the 9th Circuit rendering the ruling that they did.

And I say that because we've just received word today that a judge in San Francisco has upheld -- has ruled that the pledge's reference to one nation under God violates the Constitution and should be stricken down.

So that case is going to be winding its way forward.

I'm not going to ask you to comment on it, because it will obviously come before you. But will you tell us whether or not you are concerned about the inconsistencies of these opinions? And will you work to try to establish a body of law in the Supreme Court that recognizes the free exercise rights of American citizens in regard to religion and to avoid a state establishment of a religion?

ROBERTS: Well, we talked about this in the committee hearings on a couple of occasions. And I think everyone would agree that the religion jurisprudence under the First Amendment, the establishment clause and the free exercise clause, could be clearer.

The Ten Commandments cases are the example right at hand. You have two decisions of the Supreme Court. Only one justice thinks both are right. That is an area in which I think the court can redouble its efforts to try to come to some consistency in its approach.

Now it obviously is an area that cases depend in a very significant way on the particular facts. And any time that's the case, the differences may be explained by the facts.

You do have the two provisions, as your question recognized, the establishment clause and the free exercise clause.

ROBERTS: And as I've said before, I think that both of those are animated by the principle that the framers intended the rights of full citizenship to be available to all citizens, without regard to their religious belief or lack of religious belief. That, I think, is the underlying principle, and hopefully the court's precedents over the years will continue to give life to that ideal.

SESSIONS: Well, thank you, Judge Roberts. You have by your testimony validated the high opinions that so many have of you. I'm confident you would make a great chief justice.

Thank you.

SPECTER: Thank you, Senator Sessions.

Senator Feingold?

FEINGOLD: Thank you, Mr. Chairman.

Judge, let me start off by taking up a couple of new topics.

In September 1985, when you were in the White House Counsel's Office, you recommended deleting the following line from the presidential briefing materials: quote, As far as our best scientists have been able to determine, the AIDS virus is not transmitted through casual or routine contact, unquote.

You said at the time that the conclusion was in dispute. We now know, of course, that the line is completely accurate. But I would say we also knew that then.

The Center for Disease Control guidelines issued the month before you wanted to delete that line said the following: quote, Casual person-to-person contact as would occur among school children appears to pose no risk, unquote.

Major news organizations had reported the CDC's conclusion.

In fact, the CDC had said as early as 1982 that it was unlikely that HIV could be spread through casual contact.

ROBERTS: I'm sorry, as early as when?

FEINGOLD: As 1982. That it was unlikely that HIV could be spread through casual contact.

Why did you recommend that that line be deleted?

ROBERTS: Well, for the reason I gave in the memorandum. This was a statement by the president and I didn't want the president giving out medical advice if it was a subject of some uncertainty.

I, obviously, was not a medical expert, and you said the CDC had issued a report a month before earlier in your commentary. I don't know what the 1982 issue was.

But I just thought it's purely a matter of caution and prudence to have the president make a pronouncement on it. You have to remember, this was at the very beginning of the AIDS coming into public consciousness, and I was just concerned that the president not be giving out medical statements if people weren't absolutely sure that it was correct.

FEINGOLD: Let me follow on that a little bit. It certainly was an early time and also a critical time. I'm wondering what you did to check or have someone check on these facts. I mean, you must have known that the issue was so important the president was saying something like this that it could have given a great reassurance to people all over the country, as well as helping children infected with the AIDS virus to live happier and more normal lives to know that this was the medical conclusion. So I'm just wondering why you wouldn't check...

ROBERTS: The flip side of that, Senator, of course, is if it turned out to be wrong it could have been disastrous to have the president announcing, because the president wasn't a medical expert, either.

ROBERTS: And I'm sure my suggestion would have caused the people drafting the president's speech to go back. And if they thought they were convinced and they were sure, then that's what would have gone in there.

It was just a question of concern. I wanted to make sure that they were 100 percent confident that what the president was going to be saying about a medical issue, they had complete confidence in it. I don't know actually whether they took it out or left it in, but at least it caused them to focus...

FEINGOLD: I don't want to belabor it, but I think that was a great opportunity for presidential leadership and reassurance and would just respectfully disagree with your judgment there.

ROBERTS: Well, my judgment, just so I could...

FEINGOLD: Fair enough...

ROBERTS: It wasn't my medical judgment.

FEINGOLD: I understand...

ROBERTS: The impact of my suggestion was, obviously, to cause the people who wanted that in there to go back and make sure they were sure that they wanted the president of the United States issuing a medical statement.

FEINGOLD: I think it was pretty certain at that time what the medical view was, as indicated by the medical community of our own government, but I'll leave it at that.

Do you believe that the Congress has the power under the constitution to prohibit discrimination against gays and lesbians in employment?

ROBERTS: I don't know if that's an issue that's going to come before the courts. I don't know if Congress has taken that step yet. And until it does, I think that's an issue that I have to maintain some silence on.

Personally, I believe that everybody should be treated with dignity in this area and respect. The legal question of Congress' authority to address that, though, is one that could come before the courts, and so I should...

FEINGOLD: Can you imagine an argument that would be contrary to that view?

ROBERTS: Well, I don't know what arguments people would make. I just know that I shouldn't be expressing an opinion on issues that could come before the court.

FEINGOLD: Let's go to something else then. I'd like to hear your views about the Second Amendment, the right to bear arms. This is an amendment where there's a real shortage of jurisprudence.

You mentioned the Third Amendment where there's even less jurisprudence, but the Second Amendment's close. So I think you can maybe help us understand your approach to interpreting the Constitution by saying a bit about it.

The Second Amendment raises interesting questions about a constitutional interpretation. I read the Second Amendment as providing an individual right to keep and bear arms as opposed to only a collective right. Individual Americans have a constitutional right to own and use guns. And there are a number of actions that legislatures should not take in my view to restrict gun ownership.

FEINGOLD: The modern Supreme Court has only heard one case interpreting the Second Amendment. That case is U.S. v. Miller. It was heard back in 1939. And the court indicated that it saw the right to bear arms as a collective right.

In a second case, in U.S. v. Emerson, the court denied cert and let stand the lower court opinion that upheld the statute banning gun possession by individuals subject to a restraining order against a second amendment challenge.

The appeals court viewed the right to bear arms as an individual right. The Supreme Court declined to review the Appeals Court decision.

So what is your view of the Second Amendment? Do you support one of the other views of the views of what was intended by that amendment?

ROBERTS: Yes. Well, I mean, you're quite right that there is a dispute among the circuit courts. It's really a conflict among the circuits.

The 5th Circuit -- I think it was in the Emerson case, if I'm remembering it correctly -- agreed with what I understand to be your view, that this protects an individual right. But they went on to say that the right was not infringed in that case. They upheld the regulations there.

The 9th Circuit has taken a different view. I don't remember the name of the case now. But a very recent case from the 9th Circuit has taken the opposite view that it protects only a collective right, as they said.

In other words, it's only the right of a militia to possess arms and not an individual right.

Particularly since you have this conflict -- cert was denied in the Emerson case -- I'm not sure it's been sought in the other one or will be. That's sort of the issue that's likely to come before the Supreme Court when you have conflicting views.

I know the Miller case side-stepped that issue. An argument was made back in 1939 that this provides only a collective right. And the court didn't address that. They said, instead, that the firearm at issue there -- I think it was a sawed-off shotgun -- is not the type of weapon protected under the militia aspect of the Second Amendment.

So people try to read the tea leaves about Miller and what would come out on this issue. But that's still very much an open issue.

FEINGOLD: I understand that case could come before you. I'm wondering if you would anticipate that in such a case that a serious question would be: Which interpretation is correct?

ROBERTS: Well, anytime you have two different courts of appeals taking opposite positions, I think you have to regard that as a serious question. That's not expressing a view one way or the other. It's just saying, I know the 9th Circuit thinks it's only a collective right. I know the 5th Circuit thinks it's an individual right. And I know the job of the Supreme Court is to resolve circuit conflicts. So I do think that issue is one that's likely to come before the court.

FEINGOLD: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court.

But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions.

So your answer that you would apply that principle doesn't help me very much in understanding your view of this. We know where all eight other members of the court stand on these opinions -- in their opinions. They either wrote or joined one of them.

Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court.

Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech.

But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision.

So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.

ROBERTS: They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process.

You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views.

The process of the opinion-writing -- you can't -- the opinion turns out it (inaudible) you have to change the result. The discipline of writing helps lead you to the right result.

You're asking me for my views, you know, right here without going through any of that process.

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice. People who would be arguing in that future case should not look at me and say, Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to.

They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing.

I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices -- every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.

FEINGOLD: I understand your view. I think it's narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn't have, as we say in Wisconsin, a snowball's chance with a couple of the justices because of what they had ruled previously.

But I didn't think that made the process in any way tainted. I knew that they simply weren't going to agree with this statute. I recognize your limitations.

So let me ask you about something else, the Hamdan.

Yesterday, you refused to answer any questions regarding your conduct in the Hamdan v. Rumsfeld case.

FEINGOLD: But today you answered questions from Senator Coburn regarding this matter. So I want to follow up in order to make sure the record is complete.

You interviewed with the attorney general of the United States concerning a possible opening on the Supreme Court on April 1, 2005. Is that correct?

ROBERTS: Yes. The specifics of the details I discussed in the response to the committee's questionnaire.

FEINGOLD: And that was six days before the oral argument in the Hamdan case. Isn't that right?

ROBERTS: I don't remember the exact date of it. I know it was shortly before that, yes.

FEINGOLD: You had further interviews on May 3rd concerning a possible appointment to the court with numerous White House officials, including Karl Rove, the vice president and the White House counsel before the decision in the Hamdan case was released. Isn't that correct?

ROBERTS: The decision was June 15th...

FEINGOLD: The question here is just: Did you have further interviews on May 3rd concerning a possible appointment to the court?

ROBERTS: May 3rd, yes. Well, whatever it was, I don't remember the exact dates, but...

FEINGOLD: You've had interviews with those individuals...

ROBERTS: In the Senate...

FEINGOLD: The record seems to indicate it was on May 3rd. You met again with Ms. Miers, the White House counsel, on May 23rd. Isn't that right?

ROBERTS: I'm relying on the -- if that's what I said in the questionnaire, yes. I don't have an independent recollection...

FEINGOLD: You have no good reason to doubt that those facts are correct. You never informed the counsel, in this case, of these meetings. Did you?

ROBERTS: I did not, no.

FEINGOLD: Mr. Gonzales' advice to the president concerning the Geneva Conventions was an issue in the case. Isn't that right?

ROBERTS: I don't want to discuss anything about what's at issue in the case. The case is still pending and pending before the Supreme Court.

FEINGOLD: Well how about this one? President Bush was named a defendant in the case. Right?

ROBERTS: Yes, in his official capacity.

FEINGOLD: The Hamdan decision was released on July 15th. Is it your testimony that no work on that decision took place after July 1?

ROBERTS: No, I didn't -- that was not my testimony. The opinions in the D.C. Circuit...

FEINGOLD: Oh, you're saying in your testimony now that no work on that decision took place after July 1?

ROBERTS: Opinions in the D.C. Circuit are complete and circulated to the panel a week before they're released. That was my -- the conclusion of when work was complete. And again, I wasn't the author of the opinion. It would have been a week before it was released.

FEINGOLD: Did you read over the opinion of the concurrence after July 1? Was there any editing that took place after that date?

ROBERTS: I don't recall, Senator, and...

FEINGOLD: But when was the issue of whether you should recuse yourselves from this case -- when did that first come to your attention?

ROBERTS: I saw -- was made aware of an article. I think it was an article. I don't remember when that took place. Whenever the article was published. And then I understand the legal opinions on the other side were requested by, I believe, the chairman. And I know that those were...

FEINGOLD: You don't recall when this matter first came up? One would think it would be something you'd remember when somebody suggested you should have recused yourself.

ROBERTS: I don't remember the date of the...

FEINGOLD: How about the approximate time?

ROBERTS: I think it was some time in July.

FEINGOLD: Mr. Chairman, so the record will be complete, I'd like to submit the article from Slate magazine by Professors Gillers, Luban and Lubet and a letter sent to you responding to Professor Rotunda's criticisms of their position. And I also want to submit an article by these three law professors that was published in the Los Angeles Times on this topic. I don't want to take anymore time on this, but I think these professors...

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

FEINGOLD: Thank you, Mr. Chairman.

I think these professors very convincingly answer Professor Rotunda's views and point out that his analysis of the case law is not particularly persuasive. And I'd urge any of my colleagues who really want to understand the issue with Judge Roberts' participation in the case, rather than just dismissing it because it's inconvenient, that they take a look at it and actually see what the issues were here.

But I appreciate your answer to those questions.

I will only be answer to get to some of my questions on the next subject, and hopefully in the next round can continue. But, Judge Roberts, as Senator Leahy mentioned earlier, when you came before the committee a couple of years ago we discussed the fact that more than 100 people on death row have been exonerated and released, and in fact I believe the number is now 121 people who we know were sentenced to die for crimes they did not commit.

I want to follow up on the work that Senators Durbin and Leahy have done in discussing with you the Herrera case. I do differ with your characterization of the case. The solicitor general brief that you signed presented the issue as whether the Constitution, quote,

requires that a prisoner have the right to seek judicial review of a claim of newly discovered evidence, unquote. That is, the question was not how strong the evidence of innocence must be, as you seemed to be suggesting earlier, but whether the Constitution requires that there be some avenue (inaudible) presenting evidence of innocence in federal court. Your brief argued that it does not.

Now, that brief also, as you know, contained a footnote that I'm going to ask you to comment on. It said, quote, There is no reason to fear that there is a significant risk that an innocent person will be executed under procedures that the states have in place. The direct review and collateral procedures that the federal government and the states have in place are more than ample to separate the guilty from the innocent. And yesterday you talked about the possible effect of DNA evidence on the legal framework in this type of case.

In light of the many cases of innocent people ending up on death row that have come to light in the past decade, and aside from what was the ultimate issue at stake in that case, do you still agree with your statement from the government's Herrera brief?

ROBERTS: Well, that was the administration position at the time. It was one that the Supreme Court agreed with; 6-3 I think was the ruling.

ROBERTS: I know Justice O'Connor was in the majority.

The issue -- and again, there was obviously argument at the time about what the issue really was in Herrera. And I thought it was quite inaccurate to view it as a case involving the question of whether actual innocence could be presented. Because it was a claim of newly discovered evidence. And it was a claim that somebody who just died was actually the murderer.

At the end of exhaustive appeals to the state system, exhaustive collateral review through the state system, exhaustive collateral review through the federal system, is there an obligation to decide at that point that a new claim that somebody else committed the crime...

FEINGOLD: I'm just running out of time and wonder if you'd just still stand by the statement, if you could just say yes or no.

ROBERTS: Well, that was the administration position that was presented.

FEINGOLD: All right, let me try to be quick on it. I'd like to know whether you think there's a risk that innocent people may be sentenced to death in today's criminal justice system.

I must say, Judge, Supreme Court justices do have the power of life and death in these matters.

ROBERTS: Senator, I think there is always a risk, in any enterprise that is a human enterprise, like the legal system. Obviously, the objective of the provision of the rights to a criminal defendant in trial, the provision of collateral review at the state level, the provision of collateral review at the federal level, the availability of, as you suggested, clemency, all of that is designed to ensure that the risk is as low as possible.

There are issues that are going to be presented about the availability of DNA evidence which may or may not help reduce the risk even further.

There's always a risk.

And obviously when you're dealing with something like capital punishment, the risk is something that has to be taken extremely seriously, at every stage of the process.

As we talked about more than two years ago at the prior hearing, I think the most effective way of minimizing that risk is to ensure that people facing that sanction have the best counsel available at every stage.

As you know from looking at this problem, the issue that comes up are questions that weren't raised that should have been raised if the person had a more capable lawyer. Avenues that weren't pursued that should have been pursued, if that lawyer had the resources.

And that's where I think the risk of wrongful conviction is going to be most effectively addressed, ensuring the availability of competent counsel at every stage of the proceeding.

FEINGOLD: Thank you, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Feingold.

Senator Graham?

GRAHAM: Thank you, Mr. Chairman.

Judge Roberts, your intellectually stamina impresses me because you can't see this on television. It must be 150 degrees in here.

(LAUGHTER)

And I just don't know how you're doing it. But I'm tremendously impressed.

Mr. Chairman, I would like permission to introduce into the record some law professor's opinion that being interviewed for the Supreme Court vacancy, when Judge Roberts was interviewed, did not require him to recuse himself and I'll...

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

GRAHAM: Well, let's think about that in kind of political terms. And I know that's not really your job.

If we took this to its logical conclusion, say I was president -- I don't think that's going to happen so you don't need to be overly worried about it but you could take someone to be chief justice from the people sitting on the court. Is that correct?

ROBERTS: Yes.

GRAHAM: So if you had a judge you didn't particularly like, the best thing you could do is go talk to him about the job and they couldn't decide anything. Would that be the logical conclusion of this?

ROBERTS: I think that would be the logical conclusion...

GRAHAM: Well, I'll remember that if I'm president. But on the record now, I don't think I have the right to do that. That's part of the process.

Some big things here. Were you proud to work for Ronald Reagan?

ROBERTS: Very much, Senator, yes.

GRAHAM: During your time of working with Ronald Reagan, were you ever asked to take a legal position that you thought was unethical or not solid?

ROBERTS: No, Senator, I was not.

GRAHAM: We talked about the Voting Rights Acts. Proportionality test in the Reagan administration's view was changing the Voting Rights Act to create its own harm. Is that correct?

ROBERTS: The concern that the attorney general had and the president was that changing Section 2 to the so-called effects test would cause courts to adopt a proportionality requirement, that if elected representatives were not elected in proportion to the racial composition in a particular jurisdiction, that there would be a violation shown that would have to be addressed.

GRAHAM: Do you think it would be fair to try to suggest that because you supported that position but you're somehow racially insensitive?

ROBERTS: No, Senator. And I would resist the suggestion that I'm racially insensitive. I know why the phrase, Equal Justice Under Law is carved in marble above the Supreme Court entrance. It is because of the fundamental commitment of the rule of law to ensure equal justice for all people without regard to their race or ethnic background or gender.

The courts are a place where people need to be able to go to secure a determination of their rights under the law in a totally unbiased way. That's a commitment all judges make when they take a judicial oath.

GRAHAM: Knowing this will not this line of inquiry but, at least, trying to put my stamp on what I think we've found from this long discussion, basically, the Supreme Court decided in Section 2 that the intent test was constitutionally sound. Is that correct?

ROBERTS: That was its determination in Mobile against...

GRAHAM: And Senator Kennedy disagreed because he wanted a different test. And I respect him. He is one of the great -- first, he's not part of the Reagan revolution. I think we all can agree with that. So I don't expect him to buy into it.

But I respect him greatly for his passion about his causes. He took it upon himself to try to change a Supreme Court ruling, to go away from the intent test to the effects test, and he was able to reach a political compromise with the administration.

And I just want that to be part of the record; that to say that Ronald Reagan or Judge Roberts, by embracing a concept approved by the court, equates to that administration or this person being incensed at people of color in this country I think is very unfair and off base.

You said something yesterday that was very compelling to me. I asked you, could you express or articulate what you thought might be one of the big threats to the rule of law. And I believe you said, Judges overstepping their boundaries, getting into the land of making the law, putting their social stamp on a cause, rather than interpreting the law, because that could over time, in the eyes of the public, undermine the confidence in the court.

Is that a correct summary?

ROBERTS: Yes, Senator.

GRAHAM: Well, we have before us today, Judge Roberts, a legal opinion just issued, hot off the presses, that says the establishment clause of the Constitution apparently is violated if an American recites the Pledge of Allegiance.

You will be on the court, I hope, and you will use your best judgment on how to reconcile the 9th Circuit opinion. And I'm not asking you to tell us how you might rule, I'm making a personal observation that this is an example, in my opinion, of where judges do not protect us from having the government impose religion upon us, but declare war on all things religious.

And that is my personal view and opinion. That's why most Americans sometimes are dumbfounded about what's going on in the name of religion. No American wants the government to tell them how to worship, where to worship or if to worship. But when we exercise our right to worship, it bothers me greatly that judges, who are unelected, confused the concept between establishment and free exercise.

And I will move on.

I think it is one of the cases that is undermining the confidence in the judiciary. And I'm glad that you're sensitive to that.

The war on terror. In my past legal life, I've spent most of my legal career associated with the military. And I'm proud to be a military lawyer. I'm the only Reservist in the Senate. I sit as an Air Force Court of Criminal Appeals judge. I handle the easy cases, because I don't have a whole lot of time and I help where I can.

But I understand, I think, very well what it means to abide by the judicial canons of ethics -- not to tip your hand, not to compromise yourself to get promoted or to get put on the court; promoted in the military or to get put on the board; trying to please your boss, trying to please a senator.

And my respect for you has gone up because you're unwilling to compromise your ethics. And I hope the Senate will understand that, in the past, other people were not required to do so.

Are you familiar with the Geneva Convention?

ROBERTS: Yes, Senator.

GRAHAM: Do you believe that the Geneva Convention, as a body of law, that it has been good for America to be part of that convention?

ROBERTS: I do, yes.

GRAHAM: Why?

ROBERTS: Well, my understanding in general is it's an effort to bring civilized standards to conduct of war -- a generally uncivilized enterprise throughout history; an effort to bring some protection and regularity to prisoners of war in particular.

And I think that's a very important international effort.

GRAHAM: As Senator Kyl said, this will be the only time we get to talk. And I don't want to compromise your role as a judge, but I do want you to help me express some concepts here that America needs to be more understanding of.

And I want to work with my Democratic friends to see if we can find some way to deal with us.

We're dealing with an enemy that is not covered by the Geneva Convention. Al Qaida, by their very structure and nature, are not signatories to the Geneva Convention and are not covered under its dictates.

An enemy combatant: Are you familiar with that term in the law?

ROBERTS: Yes, Senator, I am.

GRAHAM: What would an enemy combatant be under American jurisprudence? Who would they be?

ROBERTS: Well, I really have...

GRAHAM: Fair enough. Fair enough.

ROBERTS: Those cases are both pending. The ones that I've decided are pending before the Supreme Court and those issues are likely to come before...

GRAHAM: Fair enough. The Geneva Convention doesn't cover Al Qaida, but or president has said that anyone in our charge, terrorist or not, will be treated humanely.

I applaud the president, because, in fighting the war on terror, we need not become our enemy. Our strength as a nation is believing in the rule of law, even for the worst of those that we may encounter.

I admire Mr. Adams for representing the Redcoats. I cannot imagine how tough that must have been. But his willingness to take on the unpopular cause in the name of the rule of law has made it stronger.

When the president said that we will treat everyone humanely, even the worst of the worst, I think he's brought out the best in who we are.

But we're in a war, Judge Roberts, where the Geneva Convention doesn't apply. And we have before the courts a line of cases dealing with the dilemma this country faces.

When you capture an enemy combatant, non-citizen, foreign terrorist, there's three things I think we must do. We must aggressively interrogate them without changing who we are. We must have the ability to keep them off the battlefield for a long period of time to protect our nation.

GRAHAM: And we must have a system to hold them accountable for some of the most horrible crimes imaginable.

Justice Jackson was of your favorite justices. Is that correct?

ROBERTS: I think that's a fair description, yes.

GRAHAM: He has indicated in the Youngstown case that the presidency of the executive branch is at its strongest when it has concurrence with the legislative branch. Is that a fair summary of what he said?

ROBERTS: Yes. He divided up the area basically into three parts. Considering the executive's authority, he said when it has the support of Congress it's at its greatest, and, obviously, when it's in opposition to Congress it's at its lowest ebb, as he put it. And he described a middle area in which it was sometimes difficult to tell whether Congress was supporting the action or not.

GRAHAM: This is me speaking, not you.

Congress is AWOL, ladies and gentlemen, in the war on terror when it comes to detention, interrogation and prosecution of enemy noncitizen combatants.

Justice Scalia has written eloquently that Congress has the power to get involved in these issues and Congress is silent.

What is the case, is it the Rasul case, where the Supreme Court in a 5-4 decision has given habeas corpus rights to noncitizen foreign terrorists?

ROBERTS: I think that's correct, Senator.

GRAHAM: That is an amazing departure from what we've been as a nation for 200 years. I have been to Guantanamo Bay twice. The people running the prison tell me that 185 of detainees have lawyers in federal court. Justice Scalia says we've set up a situation where 94 different jurisdictions can hear habeas cases involving noncitizen foreign terrorists. The people running the jail say this process is undermining out ability to get good information.

A habeas corpus petition, would it allow a defense attorney to call a military commander in to answer for how this person was captured?

ROBERTS: I don't know, Senator, and I hesitate to opine on that without knowing.

GRAHAM: Well, the truth is that we've set up a situation where our military leaders and our military commanders and soldiers in the field can be called from all over the world, all over the country, to answer for why such person is detained.

We had a conversation in our office, my office. You said something to the effect, as Justice Scalia said in his dissenting opinion, that this would be an area where the courts would welcome some congressional involvement.

And right now, we have the executive branch carrying the load totally by themselves. We've got several cases before the court dealing with detention policy, interrogation policy and prosecution policy. Do you believe that this is an area, if the Congress acted, as Justice Jackson said, that it would strengthen the hand of the executive in a legal situation?

ROBERTS: My observation during our meeting, Senator, was not an expression of legal determination. And it doesn't necessarily mean a view that Congress' action or involvement would be determinative or would even be within the scope of legal authority, depending on what the issue and the arguments were.

I do know that when you are in the middle area, where it's difficult to determine whether Congress is supporting the president's action or is opposed to the president's action, that the court often has to try to read the tea leaves of related legislation.

If you look at the Dames and Moore decision coming out of the Iranian hostage crisis, what the court did in that case, applying the middle tier, was look at a vast array of legislation. And it was a very difficult enterprise to try to figure out what Congress' view was.

My point was simply that if we'd know what Congress' view was, it might make it easier to apply it in a particular case, and you wouldn't have to go through that process of trying to determine what position Congress was in, if that turned out to be pertinent under the particular legal challenge.

GRAHAM: Thank you.

Justice Scalia said in a very direct way, The courts are ill- equipped to deal with these issues.

In the Youngstown Steel case, Justice Jackson says, When the president acts pursuant to an express or implied authorization of Congress, his authority is at the maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate.

A seizure executed by the president pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who may attack.

GRAHAM: Do you agree with that?

ROBERTS: That was read from the Jackson -- I do. I agree with the basic proposition that the president's authority is at its greatest when he has the support of Congress.

GRAHAM: To my colleagues, I think it is imperative for this body to get involved in the war on terror when it comes to detaining, interrogating and prosecuting enemy combatants who are not citizens.

It is important that all three branches of government, in my opinion, feel comfortable with the policies of this nation, that we'll be stronger if the judicial branch, the legislative branch and the executive branch are working together to come up with policies that will allow for aggressive interrogation, appropriate detention and serious prosecution in a way that's within the values of our nation.

So that is why I will be introducing legislation on all those topics. And I will not ask you any further what you may or may not do about the legislation if it ever gets to the floor of the Senate and passed.

The Kelo case. Of all the things that have been decided, and I haven't been to my office since the recent case about the pledge -- though it may have trumped it -- I have gotten more phone calls about the Kelo case than anything the Supreme Court has done lately.

And for those who may be tuning in, the Kelo case basically said that the government can take your property, give it to someone else, another private person because it could be used at a higher and best use and it may generate more taxes.

I'm not going to ask you to tell me how you decide the Kelo case. But I just want you to know -- as Senator Kyl indicated, this is the only time you can hear from us -- that my phone is ringing off the hook and that every legislature that I know of is going into session as quickly as they can to correct that.

So I want to leave with you -- and when you meet your new colleagues, please let them know that some of the things they do that we watch. And that the courts are able to do their job because the public defers to the court and respects the court, but there is a limit.

GRAHAM: The office of chief justice of the United States is different, as you're the first among equals.

What do you believe as chief justice you can bring to the table that you could not as just a normal member of the court?

ROBERTS: Well, if I am confirmed, I think one of the things that the chief justice should have as a top priority is to try to bring about a greater degree of coherence and consensus in the opinions of the court.

I know that has been -- was a priority of the last chief justice. I actually believe that is something that should be a matter of concern for all of the justices, but as the chief, with responsibility for assigning opinions, I think he has greater scope for authority to exercise in that area and perhaps over time can develop greater persuasive authority to make the point.

And again, coming from the chief it may be a point that other justices would receive -- be more receptive to than they might coming from one of their colleagues; that we're not benefited by having six different opinions in a case; that we do need to take a step and think whether or not we really do feel strongly about a point in which a justice is writing a separate concurrence which only he or she is joining, or whether the majority opinion could be revised in a way that wouldn't affect anyone's commitment to the judicial oath to decide the cases as they see fit, but would allow more justices to join the majority so the court speaks as a court.

That is something that the priority should be, to speak as a court.

GRAHAM: So your goal as chief justice is where you can, and as often as you can, define consensus and unite the court, is that true?

ROBERTS: I think the court should be as united behind an opinion of the court as it possibly can.

ROBERTS: Now, obviously, in many cases it's not going to be possible.

GRAHAM: I applaud you because we're a divided nation, and the more united we can become at any level of government, the stronger we'll be. So I applaud you for that attitude.

SPECTER: Thank you very much, Senator Graham.

Senator Schumer?

SCHUMER: Thank you, Mr. Chairman.

And, Judge Roberts, it's nice to talk to you so early in the day.

Yesterday, you stated that you, quote, agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that, unquote. And you noted that the court's later decisions have based the constitutional right to privacy on the liberty component of the due process clause of the 14th Amendment.

Now, Justice Thomas, at his confirmation hearing, answered in a way very similar to the way you did. During his confirmation hearing, here's what he said, quote: I believe the approach that Justice Harlan took in Griswold in determining the -- or assessing -- the right to privacy was an appropriate way to go, unquote.

Now, we all know that Justice Harlan's approach located the right to privacy in the liberty interests of the due process clause of the 14th Amendment.

And Justice Thomas also said at his confirmation hearings, along the same lines, that he agreed with the court decision in Eisenstadt v. Baird, where the court held that single people have the same right to privacy as married people on the issue of procreation.

However, since he's been confirmed to the court, Justice Thomas has not applied the right to privacy to keep protections -- for instance, in Lawrence, in 2003, he declared that there is no general right to privacy in the Constitution.

Now, yesterday you said that, quote, Liberty is not limited to freedom from physical restraint.

SCHUMER: It does cover areas, as you said, such as privacy. It's not only protected in procedural terms, but protected substantively as well.

You said that you agreed that, quote, There's a right to privacy to be found in the liberty clause of the Fourteenth Amendment.

So that seems directly to contradict Justice Thomas' view, once he got on the court, as I outlined, in Lawrence.

I assume that you disagree with Justice Thomas's view that there is no general right to privacy, as he stated in Lawrence.

ROBERTS: Well, I think that question depends, obviously, on the modifier and what you mean by general.

I noted in going over the nomination hearings of Justice Breyer, he also said that the privacy interest is protected as part of the liberty protected by the due process clause. I think that is the general approach.

Now, the...

SCHUMER: Let's talk about Justice Thomas. He said there is no general right of privacy. You seemed to say yesterday -- you didn't seem to say; you said, that there was a right to privacy.

Let's forget that Justice Thomas said it. You would disagree that there is no general right to privacy in the Constitution.

ROBERTS: I wouldn't use the phrase general, because I don't know what that means. I don't know if by saying general they're trying to describe the particular scope to the right to privacy or not.

I think there is a right to privacy protected as part of the liberty guarantee in the due process clause.

SCHUMER: A substantive right to privacy?

ROBERTS: It's protected substantively, yes.

SCHUMER: Your reading of Justice Thomas' case in Lawrence, that he does not believe in that?

ROBERTS: No. I think his statement obviously focused on general. And his conclusion in that case was that the right to privacy protected under the due process clause that you noted he acknowledged at his hearings did not extend to include the activity at issue in Lawrence.

SCHUMER: This is obviously very important, because Justice Thomas seemed to be more full in his view of privacy at his confirmation hearing than later, when he was on the court, at least if you read his decisions.

And you are not willing to say that your view is different than the view Justice Thomas stated in Lawrence.

ROBERTS: I'm not willing to state a particular view on the Lawrence decision. And that's consistent with the approach that I've taken...

SCHUMER: Let me ask you a broader question. Do you disagree with Justice Thomas' interpretation of the right to privacy in any decided case?

ROBERTS: Senator, I'm not going to comment on whether I think particular cases were correctly decided or not, in areas...

SCHUMER: I didn't ask that.

ROBERTS: Well, I don't know which cases you're talking about.

SCHUMER: Any -- any one you want.

ROBERTS: Well, that would be commenting on whether that decision was correctly decided or not. If I'm agreeing or disagreeing with one of the justice's views in that case, that would be commenting on whether that view was correct or not. If it was in a dissent, it would be disagreeing.

ROBERTS: If it was in the majority, it would be agreeing. And because those are in areas that could come before the court, like every other nominee to come before this committee who's on the court today, I think it's inappropriate to comment on the correctness or incorrectness of those decisions in areas that could come before the court.

SCHUMER: So, you're not -- you don't have to answer this. It's obvious you will not state where you disagree with Justice Thomas, and it could well be that what he said at his hearing and you said at your hearing might lead to -- might -- lead you to rule in the same way on privacy.

ROBERTS: Well, again, my view on privacy -- as I've expressed, but there is a right to privacy, protected as part of the liberty under the due process clause.

SCHUMER: Would you say there's a general right to privacy?

ROBERTS: I don't know what general means.

SCHUMER: Substantive right to privacy.

ROBERTS: Well, substantive, yes. I have said that, that the protection extends to substantive protection. But when you say general, I don't know what that means. I don't know if that means...

SCHUMER: Excuse me. Didn't Justice Thomas disagree with the substantive right to privacy in Lawrence?

ROBERTS: His conclusion was that the liberty protected by the due process clause did not extend to that right, yes.

SCHUMER: Thank you. So, it would seem to me you disagree with him. I think you said it without saying it.

ROBERTS: No, Senator, you're asking me whether the right to privacy protected under the liberty clause extends to a particular right, the right at issue in Lawrence.

SCHUMER: I think what I'm asking you: Is there a substantive right to privacy? I don't apply it to a particular case.

ROBERTS: I have said there is a substantive right to privacy.

SCHUMER: And in Lawrence, Justice Thomas seemed to say there is no substantive right to privacy.

ROBERTS: No, as I understand it -- again, his testimony as a nominee was that there was. What he said was -- the quote you read in Lawrence --said there's no general right to privacy. Now, I don't know...

SCHUMER: His holding was that there was no substantive right to privacy under the liberty clause. Wasn't it? Wasn't that the whole thrust of his argument?

ROBERTS: No, I think, Senator, that his conclusion in Lawrence was that whatever right there was, it did not extend to the activity that was at issue in Lawrence.

SCHUMER: Bottom line is: You're unwilling to differentiate yourself from Justice Thomas's view on Lawrence.

ROBERTS: Well, it's consistent with the approach I've taken that I don't think it's appropriate to protect -- necessary to protect the independence and integrity of the court, to comment on whether that decision was correctly decided or not. And that is consistent with the approach that every member of the court...

SCHUMER: Yes, I just didn't ask you that. I asked if you disagreed with his particular holding.

SCHUMER: But let me ask you a few other questions here because I think you're cutting back a little on what you said yesterday, at least, if you look at the whole picture here and your unwillingness to disagree with Justice Thomas.

But let me ask you this about judges in general. You sit on a court, correct?

ROBERTS: Yes.

SCHUMER: OK. And sometimes you dissent. And that's routine, not just for you but for every judge.

ROBERTS: It's rare on our court, I'm happy to say.

SCHUMER: Yes, it is. It is. That is true. I've noticed that. But it happens in courts all the time.

OK. And in doing so, the dissenting judge is criticizing the majority opinion, right? Disagreeing with it? And I take it this happens on the Supreme Court quite often? And, in fact, there aren't that many unanimous Supreme Court cases on major cases these days.

ROBERTS: Actually, one point that statistics always show that more cases were unanimous than anything else.

SCHUMER: But there are a lot of dissenting...

ROBERTS: There are a lot.

SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?

Let's go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?

ROBERTS: Yes.

SCHUMER: In speeches, law review articles, it's a healthy process, wouldn't you say?

ROBERTS: I agree with that. Yes.

SCHUMER: And you did this occasionally when you were in private practice?

ROBERTS: Yes.

SCHUMER: OK. Nothing unseemingly about that?

ROBERTS: No.

SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That's what they do for a living.

And that's part of being a good lawyer.

And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?

ROBERTS: On occasion, yes.

SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, Roe was wrongly decided and should be overturned, unquote. Right?

ROBERTS: Yes.