Day three complete transcript Part 4

SCHUMER: OK. But in this hearing room, you don't want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary.

You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you've done it until very recently. You could probably do it before you just walked into this hearing room.

And if you're confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room -- when it is more important than at any other time that the American people, and we the senators, understand your views.

Why this room should be some kind of a cone of silence is beyond me. The door outside this room doesn't say, check your views at the door.

So your failure to answer questions is confounding me. You've done it in instance after instance after instance after instance.

What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day?

In each case, they have to state their opinion. They have to do it as part of their job, if you will -- writing a brief, rendering an opinion, writing an article.

In each case, they're stating their views, which might bias them. You've done it.

Yet, only here you can't state your views. If the argument -- and, by the way, there's a very god countervailing reason that you should state your views, because, as the founding fathers so constructed, this is the one time you go before an elected body before a lifetime appointment. And it seems to me this is something of an argument of convenience. Senator Specter said it well. He said you'll answer as many questions as you have to to get confirmed. That may be the actual fact, but it's not the right thing to do, in my judgment.

And so, please tell us why is the bias, why is the fact that you have already stated an opinion, any different when you sit in this room in terms of jeopardizing your future as a judge than it is when you're doing all these other things that you've done?

And let me just remind you -- going to give you a chance the answer this -- but I think it's bothering a lot of people, in this room and out of this room.

Justice Ginsburg, people who have sat in your very chair, just about every single justice, with one or two exceptions, has given their opinions of existing cases. Justice Ginsburg said on Roe v. Wade, My view is that if Roe had been less sweeping people would have accepted it more readily. Do you think she was unable to keep an open mind in cases implicating Roe? Do you? Do you think she was unable to keep an open mind? Just answer me about her, not about what...

ROBERTS: Senator, I'll explain why she expressed her views on that particular issue. It was an explanation that she gave at the time, that she had written extensively on that subject, and she thought that her writings were fair game for discussion. She took a different view...

SCHUMER: But she -- excuse me, because I want to -- she would be expressing an opinion, which might yield bias, whether she wrote before or not. She did it over and over again. She praised Learned Hand's First Amendment decision in :Masses publication. I don't think she was biased to keep her mind open on courts in that line. As Joe Biden said, in Moore v. City of Cleveland, she candidly -- and I don't think she had writings on that one -- she expressed the opinion has difficulties.

And other justices have done it: Justice Breyer talked about U.S. v. Booker; Justice Powell about Miranda; Justice Souter about Miranda. Didn't bias him in the Dickerson case. Not all have these people had previously written.

You can make a distinction to every single example I give. You can say, well, she wrote on that one.

SCHUMER: But when you add it all up, you are being less forthcoming. I know you're doing what you feel is right. But you're being less forthcoming with this committee than just about any other person who has come before us. You are so bright and you know so much, but there's another aspect to this, which is letting us know what you think.

And you've set up your own little construct. It's not really the Ginsburg precedent, or it isn't Canon 5, which you cited repeatedly at your Court of Appeals hearing.

And so let me ask you this one question and then you can answer it in general: Has there been any judge that you're aware of who has had to recuse himself or herself because of what they said at a confirmation hearing?

Can you name for me a judge who you think was biased or not able to render justice because they gave their opinion at a confirmation hearing, sitting at this table as you do?

ROBERTS: I think because the justices have followed the approach that I am following -- and as I said, I've gone back and read every one of the transcripts for the justices -- they have avoided commenting on whether they think decisions were correctly decided or not.

If you look at what Justice Ginsburg said when she was asked whether she thought the Maher and Harris cases were correctly decided, you will see she said, I'm not going to comment on that. She said,

I know what the precedents are, I have no agenda to overrule them, and that's all I'm going to say.

SCHUMER: She commented on many other cases, as you went through with Senator Biden yesterday, and as we've gone through a little bit here. She commented on many different cases, didn't she?

ROBERTS: My understanding...

SCHUMER: There were reasons, but she did comment on other cases, didn't she?

ROBERTS: My understanding of the cases she felt appropriate to comment on, as I said, were the ones where she had already written on it. And she said, I think my writings are appropriate.

SCHUMER: There are no cases she commented on where she hadn't written?

ROBERTS: I thought she adhered to her view.

Her view was no hints, no forecasts, no previews. That's exactly what she said. That's an exact quote from her hearing transcript.

SCHUMER: I have to say, sir, I disagree with you.

I've looked at her testimony. She didn't comment on some cases and commented on others.

SCHUMER: If you look at how many she commented on and how many she didn't, it's a far different balance than you, who have commented on Marbury, Brown, Griswold and not much else.

And each time, even when we talked yesterday about Wickard v. Filburn -- and it's a 1942 case, it's at the root of a large -- it's a trunk of a large tree of constitutional law, you were unwilling to comment.

And of course you say it might come before the court, but that's a prediction. Some may, some may not. Maybe a Brown case would come before the court. Maybe a Griswold case would come before the court.

And if you had wanted to, you could have easily said those may come before the court and not answer those. It's sort of your own little way of doing it.

I just have one more question here.

The president, as I said -- and this motivates some of us -- he said he wants to nominate judges in the mold of Thomas and Scalia.

I want to ask you: Are you in the mold of Thomas and Scalia? The president said he wanted to nominate people that way.

ROBERTS: Well, Senator, I'll give the same answer I gave yesterday to Senator Graham when he asked if I would be in the mold of the chief justice.

SCHUMER: OK.

ROBERTS: And the answer is: I will be my own man on the Supreme Court, period.

SCHUMER: I appreciate that.

Do you think they are activist judges?

ROBERTS: I'm not going to criticize them with respect to any general description of that sort.

I'm sure there are cases where I would agree with them and there are cases where I would disagree with them, as with all of the justices.

SCHUMER: OK.

Now -- by the way, I'll note, I don't think I have time here, but you did criticize in a memo back when you were working in Attorney General Fred Fielding's office, Brennan and Marshall as activist judges.

Now, I don't think that was the official position of the Reagan administration, so it seemed to be your opinion.

Can you tell me in 30 seconds, so I can just ask one more question: How is it different not to want to characterize Justices Thomas and Scalia, but it was OK to characterize Justices Marshall and Brennan?

Is that...

ROBERTS: Well, that was -- it was a reflection of the views of the attorney general at the time. And that was part of the...

(CROSSTALK)

SCHUMER: But it wasn't official Reagan policy?

ROBERTS: I don't think it was official policy. It was an expression that the attorney general had made on various occasions.

SCHUMER: Let me just say, sir, in all due respect -- and I respect your intelligence and your career and your family -- this process is getting a little more absurd the further we move.

You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers.

It's as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, I like movies with good acting. I like movies with good directing. I like movies with good cinematography.

And I ask you, No, give me an example of a good movie. You don't name one. I say, Give me an example of a bad movie.

SCHUMER: You won't name one. Then I ask you if you like

Casablanca, and you respond by saying, Lots of people like 'Casablanca.'

(LAUGHTER)

You tell me it's widely settled that Casablanca is one of the great movies.

SPECTER: Senator Schumer, now that your time is over, are you asking him a question?

SCHUMER: Yes.

(LAUGHTER)

I am saying, sir -- I am making a plea here. I hope we're going to continue this for a while, that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.

SPECTER: We will now take a 15-minute break, reconvene at 4:25.

ROBERTS: Mr. Chairman, could I address some of the...

SPECTER: Oh, absolutely. Absolutely.

I didn't hear any question, Judge Roberts...

ROBERTS: Well, there were several along the way.

(CROSSTALK)

LEAHY: ... want to break anyway. You go right ahead.

ROBERTS: I'll be very succinct.

SPECTER: You are privileged to comment.

This is coming out of his next round, if there is one.

(LAUGHTER)

SCHUMER: I guess there'll be.

ROBERTS: First, Dr. Zhivago and North by Northwest.

(LAUGHTER)

SCHUMER: Now, how about on the more important subject of what...

(CROSSTALK)

SPECTER: Let him finish his answer. You're out of time.

(LAUGHTER)

SCHUMER: Not out of movies.

ROBERTS: The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences.

The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion.

And in my experience, every one of those stages can cause you to change your view.

The view you ask then of me, Well, what do you think, is it correct or not? or How would you come out? That's not a result of that process. And that's why I shouldn't respond to those types of questions.

Now, the professor, how is that different? That professor is not sitting here as a nominee before the court. And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is turning this into a bargaining process.

It is not a process under which senators get to say, I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you.

That's not a bargaining process.

Judges are not politicians. They cannot promise to do certain things in exchange for votes.

And if you go back and look at the transcripts, Senator, I would just respectfully disagree. I think I have been more forthcoming than any of the other nominees. Other nominees have not been willing to tell you whether they thought Marbury v. Madison was correctly decided. They took a very strict approach.

I have taken what I think is a more pragmatic approach and said, if I don't think that's likely to come before the court, I will comment on it.

ROBERTS: And, again, perhaps that's subject to criticism, because it is difficult to draw the line sometimes. But I wanted to be able to share as much as I can with the committee in response to the concerns you and others have expressed, and so I have adopted that approach.

SPECTER: 4:25 -- we're anxious to move ahead to try to conclude your testimony, Judge Roberts, as early as we can. I know you'll agree with that.

ROBERTS: Thank you, Mr. Chairman.

Thank you for the accommodation.

(RECESS)

SPECTER: The hearing will continue.

We found out as soon as we had completed the recess that a vote had been called, and the senators have been over voting, which accounts for the slight hiatus here. But we're now going to proceed. And it's the turn of Senator Cornyn for a 20-minute round.

LEAHY: And I'm sure, Mr. Chairman, the judge just missed us terribly, couldn't wait for us all to get back here.

ROBERTS: Glad we're back.

SPECTER: He may have missed us under the theory that the sooner we start, the sooner we end.

(LAUGHTER)

But that principle may not apply here. Stare decisis would suggest that it does not.

(LAUGHTER)

Senator Cornyn?

CORNYN: Thank you, Mr. Chairman.

Judge Roberts, my observation is that you have been completely bipartisan when it comes to refusing to answer questions, either from this side of the aisle or that side of the aisle, that you feel would compromise your independence as a judge or violate your code of conduct as a judge.

I have to tell you, though, that there are people who may be keeping score of how many questions you're answering propounded by this side and that side. And I guess one way to sort of run the score up would be to keep asking questions that you know you can't answer and thus to claim some grievance or advantage when it comes to making that comparison. But I hope we don't do that.

I want to talk to you a little bit -- well, first of all, before we go there, I know one of the questions involved the Code of Judicial Conduct and whether you were proscribed by that and the differences between what you have felt at liberty to testify to and Justice Ginsburg did.

CORNYN: But I noticed that in the commentary to Canon 5, the Model Code of Judicial Conduct, the last sentence says this section applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment.

Is that your recollection of the code's scope?

ROBERTS: Yes, Senator.

CORNYN: And I would ask unanimous consent that that be made a part of the record.

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

CORNYN: Thank you, Mr. Chairman.

And I won't dwell on this any more, about the numbers of questions asked, but I know we're now up to about 66 questions that you've responded to on the role of a judge and your judicial philosophy, 48 on civil rights and discrimination, 44 on abortion and privacy.

Let me ask you this: If we keep asking the same question over and over and over again, but try to approach it from a slightly different way, to get you to answer a question that you don't feel you can ethically answer, are you going to give us a different answer? Or are you going to give us the same answer?

ROBERTS: I hope my answer would be the same, Senator.

CORNYN: Well, I'm sure that's the case.

We talked about the Code of Judicial Conduct and your ethical obligation. We've talked about the practical aspects of being a judge and the importance. And I guess this is not just practical; it's really a constitutional duty that judges have to maintain judicial independence, even from the legislative branch by making commitments of performance in office as a condition to your confirmation.

But I want to also ask you what I would -- I guess for lack of a better phrase -- practical reasons why it's hard, if not impossible, even if a judge wanted to, to be able to accurately predict how you might decide a particular matter.

I was interested to hear Senator Biden earlier ask you about right-to-die issues. And you said, I can't answer the question in the abstract. And he said, that's not abstract; that's real.

And you said: Well, Senator, as a legal matter, it is abstract, because the question would be, in any particular case: Is there a law that applied that governs that decision?

CORNYN: And that prompted me to think of, in addition to, as I think Senator DeWine asked you about, the case or controversy limitation in Article 3 of the Constitution that limits the manner in which you might reach a particular issue. So it requires a case or controversy.

He talked about standing and the importance of litigants actually having a stake in the outcome so they're willing to fight hard in the adversarial process.

Could you explain, for example, why the adversarial process is so important, and it's important for judges to make sure that people have an actual stake in the outcome, rather than, let's say, doing -- well, I know Senator Brownback, Senator Coburn, all of us get letters from constituents that say, What is your position on the Base Realignment and Closure Commission?

And why we just can't write judges letters and ask what your opinion is just sort of for an advisory capacity...

ROBERTS: Well, that actually goes back very far in our history, as you know, to the early stages when John Jay, I believe, the first chief justice, was asked for his opinion on a matter. And he made the determination that it would be inappropriate to give that kind of advice.

It was really one of the leading historical episodes that contributed to implementing the separation of powers. I think he appreciated that, if he started just giving advice on legal questions that were of concern to the president, that he would be acting more like an attorney general, and it wouldn't be separated from the executive. And then he would be in a position of giving the president advice while at the same time ruling on the legality of his conduct.

And I think the reason John Jay decided that was not appropriate for these new judges, on the new Supreme Court, to give advisory opinions is because he appreciated that they were in the judicial department, as the Constitution put it, not in the executive department -- or if the request for advice had come from the legislature.

It's an important part of the separation of powers that our courts don't give advisory opinions.

ROBERTS: Some state courts do. They have a different system of separation of powers. And in some state courts, the supreme court will give an advisory opinion. But the federal rule has always been that you have to have a constitutional case or controversy.

CORNYN: And is that a constitutional limitation?

ROBERTS: It's in Article 3, yes.

CORNYN: I mean it's not something you can take or leave?

ROBERTS: No. The requirement of an actual case or controversy is derived from the Constitution. There are some aspects of standing doctrine that are, they say, prudential; in other words, that it's up to the court whether to apply them or not. But the core requirement that the litigants have a stake in the issue, a case or controversy, is a constitutional requirement.

CORNYN: Well, in getting back to Senator Biden's question about right to die and what you believe or what your position would be if that were to come before the court, it just occurred to me you'd have to determine whether there was, in fact, a case or controversy, whether there was actually a person that had standing; that is, with a concrete stake in the outcome that brought the lawsuit so as to preserve that adversarial process.

I imagine, if you're sitting as an appellate judge, either on the circuit court or Supreme Court, you'd want to look and see what the evidence is. And maybe, for example, whether it'd make any difference in a right to die case, whether someone had a living will or not, and what the evidence was in the court below before you could really sort of make a pronouncement from on high that, yes, right to die trumps everything.

ROBERTS: Well, it's hard to know whether it trumps something until you know what the other something is. And that includes what the legislation might be.

I've had many questions before this committee about the importance of deferring to the legislature in areas in which Congress is given authority under the Constitution.

Well, as a judge, before I'd propound the idea of a right that it doesn't matter what the issue is on the other side, I'd like to know if a legislature has addressed that issue.

Now, sometimes, as you know, legislatures can exceed their constitutional bounds, and there are rights under the Constitution that individuals have that trump efforts by the legislature to address those or infringe upon them. But you need to know what the issue is in terms of the conflict between an asserted right and an asserted power of the legislature.

I don't think members of a legislative body would accept the principle that you would decide a case like that without even knowing what the legislature had enacted or what the issue was or why they had decided that this was an appropriate area of legislature. That's not deciding the controversy, it's just saying we need to have the issue narrowed in a way that courts are familiar with addressing.

CORNYN: Well, of course, juries in many instances are the fact finder, and their determination is usually binding on not only the court below, but also appellate courts reviewing that.

CORNYN: And I guess citizens would feel that they were engaged in a futile exercise of serving on juries and listening to evidence and trying to decide disputed facts if the judge on appeal was just going to say, Let's throw that out the window. We don't really care because this is the result we want to reach in a particular case.

ROBERTS: Well, judges, when they sit down to decide a case, when the case has come into the chambers, judges don't sit and decide,

What do I think about issues under the Fourth Amendment or the Fifth Amendment or the Seventh Amendment?

They want to know what the case is about. And that begins with knowing what the factual dispute is about and what the record is.

Then they want to know what law applies in resolving that question. And they want to know what the arguments are. That's why we have briefs on one side and briefs on the other.

And I'm sure you've had the same experience that I've had which is that you'll find the opening brief can be very persuasive, then you move on to the second one and you see it in an entirely different light.

And maybe your view of the case will change again as you consult with your colleagues on the bench or as you hear the oral argument.

I know I spent a lot of time doing those briefs and arguments. And I certainly hope they had some impact on a case from time to time.

And then when you sit down with the judges, all of these things, your view of a case is going to change in some way at every stage. And to say that it's the same thing when you sit down and ask an abstract question as when you've been through the judicial process and reached a decision, including having to reduce it to writing -- the requirement that judges write opinions is an important discipline on the decision of process. And those opinions are going to be submitted to the public. And everyone's going to be able to see your reasoning.

And so it has to be coherent and reasonable and something that can stand the glare of publicity and the scrutiny of scholars and other judges.

That's a very important discipline. It means, it's quite a bit different than saying, What do you think about this, whatever opinion you might give.

CORNYN: I'm also, of course, intrigued by how poorly senators, presidents, and others who try to predict how a life-tenured judge or justice on the Supreme Court is likely to look at issues next year, 10 years, 20 years down the road.

CORNYN: And it just occurs to me that there's a long list of examples where life tenure and the lack of electoral or political accountability has cause judges to change the way they perhaps have looked at things over time and, I guess, how badly presidents have guessed sometimes about how a judge will decide cases in the future.

And I think one of my favorites is Teddy Roosevelt and Oliver Wendell Holmes, when he said, I could carve more backbone in a banana than demonstrated by this justice. He was pretty hot.

So in addition to the ethical, the constitutional, the practical limitations, it just seems to me that we're engaged in a little bit of a futility here because when you're confirmed, and I expect that you will be confirmed, the designers of our Constitution expected and created a system where you would be immunized, or at least insulated, I should say, from political or other pressures.

I know there were questions about -- I want to move quickly to your participation in a lawsuit. You say it was a Hamdi case? Hamdan case?

ROBERTS: Hamdan.

CORNYN: Hamdan?

ROBERTS: I'm sorry. Hamdi was the one in the Supreme Court.

CORNYN: Sometimes I confuse those.

ROBERTS: It's a common source of confusion.

CORNYN: And we've had a little back and forth. I think Senator Feingold asked about the ethics about your participation. Senator Graham, I thought, made a very good point in talking about, if a president wanted to disqualify a judge in a case, just call the judge up and tell him you're being considered for a federal appointment, which certainly can't be right.

CORNYN: But do you know for a fact that Justice Breyer, when he was being considered about a possible nomination to the Supreme Court, sat and decided seven cases while sitting on the D.C. Circuit Court of Appeals. Are you familiar with that statistic?

ROBERTS: No, I'm not, Senator.

CORNYN: OK. Well, our research reveals that that is, in fact, what happened. And so if Justice Breyer could participate fully in the court's decision-making process while being considered by President Clinton for nomination to the Supreme Court, it strikes me that we should not have a different standard -- and I'm not asking you to comment on that, because you said you're not familiar with Justice Breyer's record.

But if that's true, and I believe it is -- that he sat on seven different cases involving the United States government and the executive branch while he was being considered for the Supreme Court -- we shouldn't hold John Roberts to a different standard.

And that's my view.

We've got about five minutes. Let me just ask you, just as a practical matter: I worry when I see that the Supreme Court's opinions are so fractured and divided as you alluded to, I believe, on the question of the Ten Commandments.

The only one that agreed with both decisions, that the Ten Commandments could be displayed in Texas but not in Kentucky, was Justice Breyer.

And there were 10 opinions in those two cases, which led the former Chief Justice Rehnquist to quip: Well, that's more opinions than we have justices -- 10 opinions for nine justices in that case, which decided the constitutionality of the Ten Commandments.

Well, it strikes me that one of the goals of the court ought to be -- of any court ought to be -- to write decisions that can be read and understood by a person of reasonable intelligence and, frankly, Judge, I have to tell you that lawyers struggle -- no doubt circuit court judges, trial court judges, such as in the court you serve on now, struggle to try to figure out just what in the world the law actually is.

And it breeds additional litigation, a lot of money, a lot of time spend just litigating issues that the court could, if it had the will, clearly decide.CORNYN: And in some ways I think it leads some observers to wonder whether the Supreme Court is firmly grounded in the reality of how their decisions will actually be read and understood and implemented, either by lower courts or by litigants who are trying to figure out what is the law, so how can I conform my behavior and how can I make plans in a way that I can rely upon is legal.

I'd be interested in your observations.

ROBERTS: Well, Senator, I hope we haven't gotten to the point where Supreme Court opinions are so abstruse that the educated lay person can't pick them up and read them and understand them.

You shouldn't have to be a lawyer to understand what the Supreme Court opinions mean.

One of the reasons I've given previously for admiring Justice Jackson is he was one of the best writers the court has ever had. And I think you didn't have to be a lawyer to pick up one of his opinions and understand exactly what his reasoning is and why he's saying that. And if he's citing and relying on precedents, he can cite them and explains them. They're not written in jargon or legalese.

But an educated person whose life, after all, is being affected by these decisions can pick them up and read them, and you don't have to hire a lawyer to tell you what it means.

I hope we haven't gotten to a point where that's an unattainable ideal.

Now I'm not suggesting that I've always lived up to that. And I'd hate to have somebody go back and look at my opinions and critique them under that exacting standard.

But I do think that's something that it's worth shooting for, at least in most cases, that opinions should be accessible to educated people without regard to whether they're lawyers or not.

CORNYN: I think your experience as both a lawyer practicing before the Supreme Court and advising clients as well as being a circuit court judge and trying to apply those as an intermediate appellate court will help you understand that and the importance of that.

In the last few seconds we have here, you know, I was reflecting on the Ten Commandments cases, and I was thinking that as crazy as it struck me that they would uphold it in Texas, but strike it down in Kentucky, you know, I wondered -- I'm glad they didn't take out their blue pencil and try to edit the Ten Commandments, because several of them, Thou shalt not murder, thou shalt not steal, thou shalt not give false testimony against your neighbor, it's hard for me to see how those violate the establishment clause. But maybe that's another topic for another day.

CORNYN: Thank you very much, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Cornyn.

Senator Leahy and I have been discussing the schedule. And there had been a request for 30 additional minutes, all to be done tomorrow. And a schedule has been structured which will conclude shortly before 8 o'clock this evening. And we'll take a little time in the morning and then move ahead to the public witnesses so that what we'll be having is Senator Durbin will have his 20 minutes from 5:35 until 5:55. Senator Brownback will then have his 20 minutes. And Senator Coburn will have his 20 minutes of time yielded back.

The Republicans met and decided we would not take the third round in order to expedite the process.

And tomorrow morning, Senator Kennedy is willing to negotiate 30 down to 20 if it's tomorrow morning.

So he'll be on at 9 o'clock. And Senator Feinstein will be on this evening from 6:30 to 6:45 and again, tomorrow morning, from 9:20 to 9:35. And I'll post these so everybody knows exactly where everybody stands.

And Senator Feinstein will have the advantage to some extent of an overnight transcript which she had been concerned about.

And then I believe we will proceed next week to -- we have an exec set for the 20th but with agreement among the Democrats that we can hold it on the...

LEAHY: Is the 20th the -- the 20th a Tuesday?

SPECTER: It's a Tuesday.

LEAHY: My proposal -- and I would commit to you on this, that just so people watching understand, the judge knows this, under our rules, when we have a mark-up, an exec, when the nomination would come up, any senator has the right, for any reason whatsoever, no reason, to put it over for one week which for this is now for Tuesday which would put it over to the following Tuesday.

My proposal, and the chairman has been accommodating of what we've been trying to do, and I would commit to him that we would move the exec to Thursday of next week, which would give everybody plenty of time to read all the transcripts, everything else.

LEAHY: On Thursday, we would waive -- and I'm sure nobody on your side is going to ask to put it over by one day. So we will debate it whatever appropriate time that is on Thursday. We will vote on Thursday within the committee. Then, of course, it's out of our hands and it's up to the leadership to schedule what time they want on the floor. I understand they want to do it some time...

SPECTER: I think Senator Frist, the leader, will want to bring it to the floor on Monday, the 26th. He will make the final judgment on that. And Senator Leahy and I have talked between ourselves on the exec. We're going to set the pattern for 10-minute statements and ask that that pattern be followed. All senators have rights as they choose.

I personally am opposed to a third round, but in the face of requests by many of my colleagues on the other side of the aisle for a third round, and in light of this being a lifetime appointment for chief justice and all the other factors, I want to accommodate people as best I can.

And I don't want to run too far into tomorrow, because I want to finish the public witnesses tomorrow. We may have to run very late, but it's easy to run later with the public witnesses because we've got 31 and six panels, and they'll all be fresh.

And Judge Roberts, whom I conferred with before discussing the matter with Senator Leahy, is a very, very good sport. And the one question he answered positive and affirmatively was whether he could take it until 8:00 this evening, and he said he could. And I don't think it advisable to take him beyond that time. So he'll spill over a little bit into tomorrow morning.

LEAHY: Mr. Chairman, I know you have been fair in listening to us. We all -- and I think Judge Roberts would be the first to say this. This is a very serious thing we're talking about, the chief justice of the United States. We should take time to do it right.

I commend Mrs. Roberts, who has sat through this.

And, of course, you, Judge, can't see her, but a look of love and devotion is probably what is sustaining you through these long hours, from Mrs. Roberts. And I commend her for doing it. But I also want to applaud the chairman. He has been fair. We've discussed -- I said yesterday or the day before -- they blur -- that the chairman and I, I think, have each other's home numbers on speed dial, we talk so much.

He has fulfilled every one of his commitments. We have worked hard to fulfill ours. We all take this seriously.

A number of people have announced how they're going to vote. And that's fine. Everybody has a right to do it. Every member of the Senate is going to think of this seriously, and he or she is going to vote if they're going to vote.

I just want to make sure that, when anybody votes, that they know what they have.

And with that, Mr. Chairman, I commend you again for running a very fair, very open and very honest hearing.

SCHUMER: Mr. Chairman...

SPECTER: Thank you for your cooperation, Senator Leahy.

In just a moment I'll recognize you, Senator Schumer.

I don't want anybody to feel they've been shortchanged by the spilling over a little. I feel my duty is to have this matter resolved by October 3rd and that, if confirmed, Judge Roberts can take the seat as chief justice on October 3rd.

And that's what I'm looking for. And, to the extent possible, I want people on this committee to feel good about what we're doing and have sufficient time.

Senator Schumer?

SCHUMER: Mr. Chairman, I just wanted to go over the schedule. So we will start the third round this evening, of 15-minute rounds, and then continue tomorrow?

SPECTER: Well that's correct, except for Senator Leahy, who's taking 10 and 10 as ranking, and Senator Kennedy is going to take 20 -- but all tomorrow morning, giving up 10 minutes for the morning.

FEINSTEIN: I get 15 tomorrow morning?

SPECTER: You have 15 tomorrow morning and have 15 this evening.

SCHUMER: Same here.

SPECTER: And the same for Senator Schumer.

SCHUMER: Mr. Chairman, I just want to thank you. I think you're being -- I want to commend you and Senator Leahy. You're being fair and we're getting a full opportunity to ask questions.

SPECTER: I understand you're waiving the fourth round, Senator Schumer.

(LAUGHTER)

Senator Durbin, you're recognized.

(CROSSTALK)

SPECTER: Senator Durbin, you're recognized for 20 minutes.

On to business, Judge Roberts.

DURBIN: Thank you very much, Mr. Chairman, and thank you for your fairness.

Judge Roberts, good to see you again.

Mrs. Roberts, friends and family.

Yesterday and again today, you've continued to prove your legal talents. I remember law students with your talents when I was in law school. I had to get to know them in the first year, because they were then off to the law review and I was off to buy another Gilbert's outline. I didn't see them again.

But today, I've noticed the questions have changed some. The questions now are more -- they've gone beyond your resume and beyond your legal skills. And I think it relates to the fact that so frequently, when asked, you have said, appropriately, that you will be driven and inspired by the rule of law, which is an appropriate term, but a hard and cold term by itself.

We know you have the great legal mind and have proven it with the questions here. But the questions that have been asked more and more today really want to know what's in your heart. And I think those are appropriate. When you look down from the bench or read a trial transcript, do you just see plaintiffs and parties and precedents, or more?

Do you see the people behind the precedents? The families behind the footnotes? I think that's what many of us are driving at with these questions.

You've lived a comfortable life. Court cases often involve people who have not. Many times contests between the powerful and the powerless, as someone said in the opening statement, the powerless, just with the rule of law and the Constitution on their side, praying for relief, for their day in court.

Aside from a few pro bono cases, as important as they are -- and I salute you for being involved in them -- what would the powerless, the disenfranchised, minorities and others see in your life experience that would lead them to believe that they would have a fighting chance in your court?

ROBERTS: Well, Senator, I think there are many things that people could look to.

ROBERTS: You said I had a comfortable life. I think that's a fair characterization. I had a middle-class upbringing in Indiana. As part of that, I worked in the steel mills outside of Gary during the summers as soon as I was old enough to do that and throughout my life have been exposed to and mixed with at school, learned and played with people of a wide variety of backgrounds.

Comfortable, yes. But isolated in no sense. I was, I would say, a typical middle class kid growing up in Indiana and had, I think, a great upbringing. I was privileged in the sense of having my parents and sisters contributing to my upbringing and education. And I think people looking at my life would see someone in that experience -- and, obviously, with limitations.

I wasn't raised in other places in the country and might have a different perspective if I were. I wasn't raised in different circumstances and would have different experiences if I were.

As you look at the Supreme Court, the people on there come from widely different backgrounds and experiences and I think that's a healthy thing.

But as far as someone going into court, and looking too see why they would expect to get a fair hearing from me, I think -- and I could answer this with respect to the court I'm on now.

DURBIN: Yes, please.

ROBERTS: It's hard for me to imagine what their case is about, that I haven't been on their side at some point in my career.

If it's somebody who's representing welfare recipients who have had their benefits cut off, I've done that.

If it's somebody who is representing a criminal defendant who's facing a long sentence in prison, I've done that.

If it's a prosecutor who's doing his job to defend society's interest against criminals, I've been on the side of the prosecution.

If it's somebody who's representing environmental interests, environmentalists in the Supreme Court, I've done that.

If it's somebody who is representing the plaintiffs in an anti- trust case, I've been in that person's shoes.

ROBERTS: I've done that.

If it's somebody representing a defendant in any trust case, I've done that as well.

It's one of the, I think, great benefits of the opportunity I've had to practice law as I have is that it has not been a specialized practice. I've not just represented one side or the other. I've represented all of those interests.

And I think those people will know that I have had their perspective. I've been on the other side of the podium with a case just like theirs. And that should, I hope -- and I hope it does now -- encourage them that I will be fair and that I will decide the case according to law but I will have seen it from their perspective.

DURBIN: So let me follow through on that because I think that's what people need to hear. But we need to apply it to your real-life and legal experiences.

Let me talk to you about a case that you were a private attorney and involved in. Today, there are about 45 million uninsured people in America. Too often, Americans with insurance can't receive coverage for medically necessary procedures and have to fight the insurance companies.

In my home state of Illinois we have a law called the Illinois Health Maintenance Organization Act. I think you're familiar with it. It provides that if a patient's primary care physicians deems a proposed procedure to be medically necessary but their HMO disagrees and denies coverage for the procedure, the patient may have the HMO's decision reviewed by an outside physician, the determination of that outside physician binding on the HMO.

You challenged this law on behalf of an HMO that refused to pay $95,000 for the shoulder surgery of Debra Moran of my state of Illinois.

Case went to the Supreme Court in 2002. You argued for Rush Prudential and you argued they weren't subject to the Illinois law and the governing HMOs because you said they weren't really an insurance company.

You claimed that since the HMO was not providing health care, but merely a promise to pay for health care, it was exempt.

Thankfully, from my point of view, you lost the case. If you had won it it would have put millions of American consumers and families at risk of losing coverage for necessary health care.

Judge Roberts, did you have any reservations about taking this case?

ROBERTS: No, Senator, I did not.

The result in the case, I did lose. I lost 5-4 if I'm remembering correctly. In other words, four of the justices on the Supreme Court thought the argument I was making on behalf of my client was correct.

It has always been my position that I do not sit in judgment other than once I have satisfied myself that the legal arguments are reasonable ones, within the mainstream, if you will, that I don't decide whether that's the way I would rule as a judge or whether I would rule the other way.

My practice has been to take the cases that come to me and if the other side in that case had come to me first I would have taken their side.

DURBIN: So you didn't step back at any point in your practice and say, No, I'm not going to do this; I can't be associated with a case or cause even though it may be legal and ethical that might cause so much harm to so many innocent people ?

ROBERTS: That's a judgment for the legal system to make, asserting legal rights. Lawyers aren't judges when they're representing clients. They don't sit there and say -- well, maybe some do, I don't. I think it's a basic fundamental principle of the legal system and the bar that you take clients who have reasonable arguments -- now, I'm not talking about frivolous arguments. I don't take cases in which those are raised.

But the lawyers aren't the judges. The judges are. Now the case you mentioned, you've explained the arguments on one side, there were legal arguments on the other side. And four justices agreed with those.

This isn't an extreme case when it's decided 5-4. And that's one of the very point I was making earlier; that I take cases on all sides of the issue.

ROBERTS: You can go through and find cases. For example, when I was asked to assist an inmate on Florida's death row, I didn't step back and say: Well, is this really a good thing for me to assist this individual guilty of -- convicted of particular murders? I took the case.

IN the various pro bono activities in which my firm was involved, I didn't sit in judgment and say: Is that something I agree with? Is it not something I agree with?

I was a lawyer involved in that area of the law and I felt it my obligation to take the cases that come in.

DURBIN: Many of the organizations that oppose your nomination represent minorities in America. You have the distinction of being opposed by LULAC. This, of course, is the first time this Hispanic organization has ever opposed a Supreme Court nominee.

You're also opposed by MALDF. I personally think that their feelings go beyond the comment, illegal amigos, that you talked about yesterday.

And I want to point you to one particular area that they find troubling when I speak to them and I find troubling, and it goes back to the case of Plyler v. Doe: 1982, Supreme Court case held it unconstitutional to deny elementary education to children on the basis of their immigration status. It was a Texas case.

The court struck down the Texas law and allowed elementary schools 23 years ago to refuse entrance to undocumented children, struck down the law that allowed the schools to refuse entrance.

On the day the case was decided -- and I think the timing is important here, because it appears to be kind of a gratuitous comment; it isn't as if you were asked for an opinion.

On the day it was decided, you co-authored a memo that criticizes solicitor's general's office for failing to file a brief supporting the Texas law, which would have refused education to these children.

Your memo disagreed with the administration's position on the case, so it isn't as if you were arguing the Reagan administration's position. They had taken a different position on the case.

Can you describe your involvement in the case, and I guess more importantly, can you describe now how you feel about this today 23 years later -- I'll just finish and I'll leave you the time you need to answer -- when the largest, fastest growing segment of America's population is Hispanic; when the major Hispanic organizations feel that this showed real insensitivity to who they were and what their children needed?

Can you explain that memo that really wasn't part of the Reagan agenda? Why did you say this?

ROBERTS: Well, I think, Senator, if I'm remembering the memo, and it was 23 years ago, and the case that was decided was, I believe, again, a divided decision by the Supreme Court, if I'm remembering the memo correctly, it was making the point that the position was inconsistent with the attorney general's litigation policy approach, if that's the right memorandum.

DURBIN: It is.

ROBERTS: Well, in that case, again, as a staff lawyer I thought it was my obligation to call to the attorney general's attention activities in the department that I thought were inconsistent with what he had articulated as his approach.

And that's what I would have been doing in that case. And, again, it would have been apparently supporting the state of Texas in its legislative determination in that area.

DURBIN: Well, did you agree with the decision now -- or, pardon me, then? Or do you agree with it now?

ROBERTS: I haven't looked at the decision in Plyler v. Doe in 23 years, Senator.

And there's nothing gratuitous about the memorandum. It obviously came out because the decision came out. That would have been why I was advising the attorney general with respect to it.

Obviously, the importance of the availability of education for all is vital. That's a different question than the legal issues involved in whether a state law should be struck down...

DURBIN: So let me say this. Twenty-three years later, millions of children have benefited from this decision. They have been educated in America. Many have gone on to become citizens. Some are business people, some are professionals, some are serving in our military today because Plyler was decided in a way that you apparently disagreed with 23 years ago.

So my question to you, for the Hispanic groups that oppose your candidacy at this point -- or your nomination, I should say -- what is your feeling? Is this settled law, as far as you are concerned, about our commitment in education...

ROBERTS: Senator, as I said, I have not looked at the decision in Plyler v. Doe in 23 years. It's not an area that I focused on.

And the issue is not my policy view about what is a good idea for educational policy or national policy or whether what the Texas legislators determined was a good idea for Texas policy.

The question was a particular legal issue. And, again, the Supreme Court was divided on that, so it's not as if we're talking about a position outside the mainstream.

And what I was explaining, this was viewed, as the memo states, if it were looked at in full, it was something that I thought was inconsistent with what I understood the attorney general's approach to be, and it was my job to call that to his attention, which is what I did.

DURBIN: OK. I think you have accurately taken refuge in the fact that you were working for someone. The fact that this memo came out the day after the decision I think is an important circumstance.

But let me go back to the beginning, the first question, the first day, with Senator Specter. Wouldn't it be a jolt to the system in America if we decided that we would no longer offer education to these children?

ROBERTS: Of course. Well, of course, Senator.

DURBIN: And so...

ROBERTS: And the decision in Plyler is a precedent of the court. I don't think -- I'm not aware that it's been called into question in the intervening 23 years that have passed since the time I wrote those two paragraphs in the memo.

And that, as a precedent, is entitled to respect under principles of stare decisis. And it's something that is where I would begin if an issue arose in this area. I'm not aware that any is arising in this area, but if an issue were to arise, that's where I would begin...

DURBIN: I just think millions of Americans would like to have heard you say, I think it's a good idea. I'm glad we did it for America. But if you can't say it, you can't.

ROBERTS: Well, Senator, if I could just make the point that the issue is not whether or not I thought it was a good idea. That's not the job of a lawyer presenting legal advice and legal -- the legal implications of an issue to his boss, the attorney general.

ROBERTS: He wasn't interested in whether I thought it was a good idea or not. He was interested in the legal question of whether or not this was consistent with his policy and his approach.

That's not taking refuge; that's explaining the circumstances of a memorandum. And it's not avoiding an expression about whether it's a good idea or not. It's explaining that what we're dealing with...

DURBIN: But you've been unequivocal in your statement supporting Brown v. Board of Education. No one has suggested, in any respectful way, that we should return to the bad old days of separate but equal. I mean, you've accepted that's part of America.

And the point I'm trying to make to you is whether we're talking about millions of uninsured people or millions of Hispanic children, I would think that it would be a basic value, you'd say, this is good for America, for people to have insurance, and bad for them to be denied. It is good for America to see children with education, rather than to see them in the streets, ignorant. It seems so fundamental.

ROBERTS: Senator, I don't think you want judges who will decide cases before them under the law on what they think is good -- simply good policy for America. There are legal questions there.

And I'm sure there are clients that I have represented in court that you would agree with; you would say, That's the right side of the cause to be on, whether it's the environmental interests I represented in the Tahoe case, whether it's the welfare recipients I represented pro bono in the Bivens case, whether it's the cause of the inmate on death row that I assisted in in Florida, whether it's the environmental interest in Glacier Bay that I represented or in the Grand Canyon on a pro bono basis.

I am sure I could go down my list of clients and find clients that you would say, That's the right side. That's the cause of justice. And there are others with whom you'd disagree.

My point is simply this, that in representing clients, in serving as a lawyer, it's not my job to decide whether that's a good idea or a bad idea. The job of the lawyer is to articulate the legal arguments on behalf of the client.

DURBIN: I'm just trying to get to the bottom line about your values. And if it is strictly a question about whether this is a legal and ethical legal question, or an ethical legal question, that can be contested, then there are many positions you can take in the law. Some I wouldn't be comfortable with. Some you may not be comfortable with.

DURBIN: Let me ask you one other question. Senators Coburn and Brownback have, I think, sincerely and accurately expressed their views on the issue of abortion. I think they have been very articulate in saying so.

Many would argue that it's one of the most divisive legal and political issues we faced in our generation.

I would like to ask you this question: Why do you think this issue is so important to so many women in America -- the whole question of Roe v. Wade, the question of reproductive freedom and the question of freedom of choice? Why do you think it's so important?

ROBERTS: Well, I think it's important -- and again, to women on both sides of the issue, and also, I think, to men as well, but obviously it's an issue that directly affects women. It's a fundamental question, as the court has addressed in Roe and in Casey, that obviously affects the lives, directly, of millions of Americans, and the availability of rights under that decision affects women.

But I know there are people who have strongly held views on both sides of the issue. And I know that the responsibility of a judge confronting this issue is to decide the case according to the rule of law consistent with the precedents; not to take sides in a dispute as a matter of policy, but to decide it according to the law.

And your questions earlier about, you know, causes we agree with, causes we don't agree with -- I do want to emphasize that there is a unifying theme in my approach, both as a lawyer and as a judge. And that is the cause that I believe in passionately, the one to which I have devoted my professional career, is the vindication of the rule of law.

And I tried to explain in my opening statement on Monday why that's important: Because, without it, any other rights that you may agree with as a matter of policy are meaningless. You need to have courts that will enforce the rule of law if you're going to have rights that mean anything.

DURBIN: I'm running out of time, but I do want to give you an opportunity. Last night, I passed a memo along to you relative to the Bob Jones University case.

I don't know if you've had a chance to look at it and can tell me whether that is your handwriting on that memo, whether you were, in fact, in a meeting involving the Bob Jones University decision with the Reagan administration.

DURBIN: Did you provide any input in the meeting or have any conversations with Justice Department personnel about the case?

ROBERTS: It is my handwriting. It's a list -- it's apparently a meeting to discuss a number of civil rights issues -- six of them, I see.

I did not participate in any way in the Bob Jones case. That was apparently discussed, according to this memo, at the meeting. The recusal rule that was at issue says that I shouldn't participate by way of consultation or advice, and I did not.

DURBIN: Thank you for clarifying that.

Thank you, Mr. Chairman.

SPECTER: Thank you, Senator Durbin.

Senator Brownback?

BROWNBACK: Thank you very much, Mr. Chairman.

Judge Roberts, again.

Mr. Chairman, I want to enter into the record something that's been cited to already, but sent yesterday from the ABA: the statement by the ABA that Judge John Roberts is well qualified, as a unanimous opinion by the ABA, for the position of chief justice of the United States.

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

BROWNBACK: Thank you.

And, Judge Roberts, I would note, now you've done 18 hours and 30 minutes of testimony. Just for reference, because people like statistics and records, Judge Breyer was 18 hours and he was through. You may have the end in sight, but you're not there yet, and you're going to pass Breyer and perhaps others.

I want to take you back to the First Amendment discussions. And this is an issue in an area that I've just not understood where the court's been going, and I hope you're going to be willing to answer some of this analysis or give me, at least, your thought on how the court got to where they did on these issues.

First Amendment, everybody knows: Congress shall make no law abridging the freedom of speech.

Well-known, well-regarded, highly -- broadly interpreted by the courts to the point that you would get court opinions -- and I just want to quote these. This is actually in a Supreme Court opinion, that the court would in the past four years when this opinion was issued, in -- I think it was 2003 -- the last four years, the court had sternly disapproved -- sternly disapproved -- restrictions upon certain forms of speech such as virtual child pornography. The court said, can't do that, limit that speech. Tobacco advertising: the court said, can't limit that speech. Dissemination of illegally intercepted communications: you can't limit that speech. Sexually explicit cable programming: can't limit that speech.

BROWNBACK: All right, so the court has been, it seems to me, very pronounced in this area -- free speech, can't limit it -- basically to the Congress. Can't limit it.

And to the point, you know, where it goes to the issue of virtual child pornography -- and that was the case of Ashcroft v. Free Speech Coalition. And I want to describe this in a little bit of detail, because I want to back it up and ask another question associated with it.

Ashcroft v. Free Speech Coalition, the court struck down a congressional statute regulating pornography, in this case Child Pornography Prevention Act of 1996, expanded the federal prohibition on pornography to include virtual child pornography -- realistic images which were made without the use of actual children.

But the Congress based its opinion on the basis that pedophiles will use this material to recruit, over the Internet, individuals to draw in children into sexual activity.

And so we found out about that, investigated it, did a number of hearings and said, We've got to stop this stuff.

The court says you can't do it. It's limitation on free speech.

Then, not long ago -- as a matter of fact, the opinion was issued in 2003 -- we had a big debate on campaign finance reform, in front of the Congress. One of the members of our committee, Senator Feingold, was one of the lead sponsors of the McCain-Feingold piece of legislation.

And it came in front of the courts -- McConnell v. Federal Election Commission. And the court largely upheld the McCain-Feingold law, one section of which did this: prohibited corporations, labor unions and other organizations from political advertisement that mentioned a specific candidate or office holder within 60 days of a general election.

You may be -- you're probably very familiar with this. It was a big national debate.

Under the court decision, this congressional action prohibiting speech -- and not just any speech, and not just pornography. This is political speech close to the time when people are making decisions on elections.

The court decided that this congressional action prohibiting political speech was upheld under a First Amendment ostensibly designed to protect this, I would contend, form of political participation and speech.

And I looked at that. I voted on the McCain-Feingold law. I did not think there was any way the court would hold that this is constitutional, because you're limiting political free speech, and right when people are making their decision.

And one of the lead reasons or lead abilities we have in this country is to be able to criticize the government, and certainly at a point in time when it matters the most -- right ahead of elections.

How do you square such a broad interpretation of the First Amendment in these cases and such a limitation on political free speech? Can you explain that to me?

ROBERTS: Well, Senator, I'm not sure that I can put the two together side by side and talk about it, other than to say that I think the court tends to address each case on its own terms.

And in the case of the bipartisan Campaign Reform Act, I do know that we're dealing there with an extraordinarily extensive record in that case. The judicial opinions addressing the issue before the three-judge district court I know went on for several hundred pages, just dealing with the records and the issues involved -- the record that had been developed, including before Congress.

And my reading of the court's opinion in the bipartisan Campaign Reform Act case is that that was a case where the court decision was driven in large part by the record that had been compiled by Congress. I think the determination there was based -- just reading the opinion; it's no great insight -- that the extensive record carried a lot of weight with the justices.

Now, with respect to the other areas, again, I think the court would tend to look at those, sort of put the one case aside and then move on to the next case. And they're dealing there with developments in that area. And again, I...

BROWNBACK: Doesn't this strike you as odd, these two side by side under the same First Amendment?

ROBERTS: Only in the sense, Senator, that obviously they come out different ways.

And your point that the political speech is generally regarded as at the core of what the First Amendment was designed to protect and some of the other speech is not, I certainly appreciate that concern.

But whether, again, whether the particular cases were correctly decided or not is not something I feel it's appropriate for me to say.

BROWNBACK: I looked at those, and I just -- this didn't make much sense. If you're going to read it expansively on the First Amendment, which I agree with, that should be consistently done.

I want to go with an issue that is likely to come in front of you, and I recognize you're not going to give a pre-opinion on it, but I wanted to just make a point in talking about it. And that's the issue of marriage and its definition by the courts, and the taking of the issue of marriage from legislative bodies to the court.

And this is one of the most driving issues in the political environment in the United States today.

BROWNBACK: If the court comes in and trumps this issue and says legislative bodies cannot decide this issue -- here it is as a matter of constitutional law -- it will create this enormous jolt in the system.

In a series of laws, marriage has been decided by legislative bodies in the states. The definition of marriage as the union of a man and a woman has been passed and 45 of our 50 states have either constitutional amendments or statutes on the book that preserve the traditional definition of marriage. It's been in all regions of the country.

I bring it up for you because a federal court has now ruled in Nebraska, one federal judge has said that the Nebraska constitutional amendment -- now all the states are rushing to pass constitutional amendments, but everybody is scared of what the U.S. Supreme Court's going to do -- Nebraska passed a state constitutional amendment by 70 percent vote of the Nebraskan people. And these are good-hearted, good people. They want to try to do what's right.

And one federal judge comes in and then he throws all these federal constitutional issues on it -- violated the First Amendment right to free association, violated equal protection guarantees and then -- I don't know where he got this one -- represented an unconstitutional bill of attainder, which is legislation drafted at a particular individual.

I just hope if you're confirmed on the court that you would look at what happens if the court comes in and stomps on this issue today that has stirred up so much discussion.

And these are issues properly left to legislative bodies and people to shape and to look at and to debate and to consider and move back and forth with in legislative arenas.

But if you come in and you say there is a constitutional right to a broader definition of marriage and you do that and the court says that's the way it's going to be, it takes something out of the system that should be in the discussion.

BROWNBACK: And it should be allowed to mature through there and come up at some point, rather than the fire storm that that will create. And we'll be here years later like in the series of Roe cases where, after 30 years now, there's not more acceptance of the Roe opinion, there's less in America.

Not like Brown v. the Board of Education: After it's resolved and solved over the years, and society looks, OK, that was the right way to go. And we would all say that today.

Roe has gone the other way. And this would create another one if that one is picked up and stomped on by the courts.

I'm going to talk with you on another issue and just get your opinion of the Constitution. And then I'm going to frame it. You would agree, under the Constitution, that the legislative bodies, and particularly under the U.S. Constitution, the Congress has the power to appropriate money?

ROBERTS: Yes. The framers regarded that as the basic legislative power, the power of the purse.

BROWNBACK: And that that power is not given to the judiciary, it is given to the legislative branch of government?

ROBERTS: Yes. Alexander Hamilton, in making his point -- I think it was Hamilton -- that this was the least dangerous branch, emphasized that the courts have neither the power of the sword nor the power of the purse.

BROWNBACK: I want to point out to you, and this is happening in state judiciaries, this is happening and being considered now in the U.S. federal courts -- the court's role in appropriating money.

You'll have in front of you a case, the Solomon amendment that was considered here.

This was a recent 3rd Circuit of Appeals case. Struck down the Solomon amendment on constitutional grounds.

Solomon amendment passed by Congress -- Jerry Solomon, long-term member of Congress, wonderful gentleman, since passed away -- had conditioned university receipts of federal funds on the universities granting equal access to the military for purposes of recruiting students.

BROWNBACK: So he said, you know, you need to allow military personnel access if you want to receive federal funds.

It was considered by Congress, was passed. Third Circuit Court struck down the Solomon amendment on constitutional grounds. The decision's been appealed to you.

I obviously don't want you to declare your position on this. I would ask you, if you can state on this, the obvious one first. We have the role, the power of the purse is in the Congress, not in the judiciary.

May the Congress attach conditions to the receipt of federal funds?

ROBERTS: Well, Congress historically has done that. The spending clause power, for example, South Dakota against Dole, said that if you accept federal highway funds you have to raise the drinking age to 21. And that was upheld by the Supreme Court. So, certainly as a general proposition, the Congress has that authority.

I considered a case involving a waiver of sovereign immunity. The condition on the receipt of federal funds was that Washington's Metro system waive its sovereign immunity with respect to disability claims. And by a 2-1 vote, we upheld that exercise of authority under the spending clause.

BROWNBACK: Well, the Solomon amendment will be in front of you if you're confirmed, and obviously you can't comment on it.

It's just that if the courts start appropriating money through this route, the rub between the systems and the branches of government I think will be absolutely extraordinary.

And there will become more and more innovative ways that the Congress will try to find to limit the judiciary. And it's not healthy for the system, and it's certainly not healthy for the judiciary if it starts into the business -- goes further into the business of appropriating funds.

BROWNBACK: And it bleeds down through the system. It's not just then in the U.S. Supreme Court, it goes through the state court systems as well.

And I would hope that that right of the Congress would be respected with adequate judicial restraint -- as you noted with me this morning, that being the major check on the judiciary.

Well, I think we can limit what the judiciary can review under the Constitution.

I want to get you, in the limited time I have left, just two quick points.

One is on the end-of-life issues. You've had a discussion with several members on end-of-life issues. And this was discussed, for instance, Washington v. Glucksberg is the lead recent case, 1997 case, upheld a state statute banning assisted suicide.

Would you agree that that case held that there is not a constitutional right to die -- a right to die does not exist in the Constitution?

ROBERTS: I think that's an accurate conclusion of the holding in that case.

Again, without expressing views on correctness or not, since that's where the line has been drawn in terms of what nominees can say, my understanding is that that court rejected the conclusion.

It went through the analysis of what liberty interests protected by the due process clause included. And it concluded that there wasn't a right under the liberty clause that trumped the regulation that was at issue in that case.

BROWNBACK: And I believe even the standard that the court held in this case was the rationally related standard, the lowest level of review, that the state can find a rational basis, they can limit these assisted-suicide bans, efforts across the country.

ROBERTS: Once the court concluded that there wasn't a fundamental right that was in conflict with the state regulation, then the court applied the rational relation test to uphold the state law.

BROWNBACK: And you have -- that would be subject to, in your opinion, the continued status of stare decisis as an opinion of the court. And the deference and the dependency that the society has had on that ruling would have the same status as any opinion of the U.S. Supreme Court on the basis of stare decisis, in your opinion.

ROBERTS: It would be subject to the same analysis as any other precedent of the court, yes.

BROWNBACK: Regardless of whether it's a recent opinion, later opinion, this has the same standing because it's an opinion of the courts?

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