First Round of Questions
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KWAME HOLMAN: Everything was different today. Judiciary Committee Chairman Arlen Specter moved the confirmation hearings from the historic Senate Caucus Room in the Russell Office Building to a modern, more spacious hearing room in the Hart Building. And the senators’ scripted opening statements that filled yesterday’s session were replaced by pointed case- specific questions.
In fact, 30 seconds after he gaveled today’s hearing into session, Chairman Specter went directly to the 1973 landmark abortion decision Roe versus Wade and whether it is considered settled law.
SEN. ARLEN SPECTER: And I begin collaterally with the issue of stare decisis and the issue of precedents. Black’s Law dictionary defined stare decisis as “let the decision stand, to adhere to precedence and not to unsettle things which are established.”
KWAME HOLMAN: Specter cited as an example Casey versus Planned Parenthood, the court’s 1992 decision that for the most part upheld Roe.
SEN. ARLEN SPECTER: In Casey, the key test on following precedence moved to the extent of reliance by the people on the precedent and the… Casey had this to say in a rather earthy way: “People have ordered their thinking and living around Roe. To eliminate the issue of reliance one would need to limit cognizable reliance to specific instances of sexual activity. For two decades of economic and social developments, people have organized intimate relationships in reliance on the availability of abortion in the event contraception should fail.” That’s the joint opinion, rather earthy in its context. Would you agree with that?
JUDGE JOHN ROBERTS: Well, Senator, the importance of settled expectations in the application of stare decisis is a very important consideration. That was emphasized in the Casey opinion but also in other opinions outside that area of the law. The principles of stare decisis look at a number of factors, settled expectations, one of them as you mentioned; whether or not particular precedents have proven to be unworkable is another consideration on the other side — whether the doctrinal bases of a decision have been eroded by subsequent developments.
For example, if you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent.
SEN. ARLEN SPECTER: But there’s no doctrinal basis erosion in Roe, is there, Judge Roberts?
JUDGE JOHN ROBERTS: I feel the need to stay away from a discussion of particular cases. I’m happy to discuss the principles of stare decisis.
SEN. ARLEN SPECTER: The joint opinion after the statement as to sexual activity to come to the core issue about women being able to plan their lives, quote, the joint opinion says the ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives. Do you agree with that statement, Judge Roberts?
JUDGE JOHN ROBERTS: Yes, Senator, as a general proposition. But I do feel compelled to point out that I should not, based on the precedent of prior nominees, agree or disagree with particular decisions. And I’m reluctant to do that. That’s one of the areas where I think prior nominees have drawn the line when it comes to, do you agree with this case or do you agree with that case? And that’s something that I’m going to have to draw the line in the same place.
SEN. ARLEN SPECTER: Well I’m not going to ask you whether you’re going to vote to overrule Roe or sustain it. But we’re talking here about the jurisprudence of the court and their reasoning. Let me come to another key phase of Casey where the joint opinion says, a, quote, “terrible price would be paid for overruling Roe.”
JUDGE JOHN ROBERTS: I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and even-handedness. It is not enough– and the court has emphasized this on several occasions– it is not enough that you may think the prior decision was wrongly decided. That really doesn’t answer the question. It just poses the question.
And you do look at these other factors, like settled expectations, like the legitimacy of the court, like whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments. All of those factors go into the determination of whether to revisit a precedent under the principles of stare decisis.
KWAME HOLMAN: Chairman Specter then moved to a broader discussion about the right to privacy and whether Judge Roberts believed it was protected by the Constitution.
JUDGE JOHN ROBERTS: Senator, I do. The right to privacy is protected under the Constitution in various ways. It’s protected by the Fourth Amendment, which provides that the right of people to be secure in their persons, houses, effects and papers is protected. It’s protected under the First Amendment dealing with prohibition on establishment of a religion and guarantee of free exercise, protects privacy in matters of conscience. It was protected by the framers in areas that were of particular concern to them that may not seem so significant today — the Third Amendment protecting their homes against the quartering of troops.
And in addition the court has over a… in a series of decisions going back 80 years has recognized that the personal privacy is a component of the liberty protected by the due process clause. The court has explained that the liberty protected is not limited to freedom from physical restraint and that it’s protected not simply procedurally but as a substantive matter as well.
And those decisions have sketched out over a period of 80 years certain aspects of privacy that are protected as part of the liberty in the due process clause under the Constitution.
KWAME HOLMAN: The committee’s top Democrat Patrick Leahy of Vermont went next and challenged Judge Roberts to defend several opinions he wrote as a Justice Department lawyer in the Reagan administration.
SEN. PATRICK LEAHY: You objected to a bill that would give certain preferences to veterans would had served in Lebanon between Aug. 20, 1982, and, quote, the date the operation ends, close quote. The day would be either set by presidential proclamation or a concurrent resolution of Congress. And you wrote that the difficulty with such a bill is that it recognizes a role for Congress in terminating the Lebanon operation. And you wrote further, quote, I do not think we would want to concede any definite role for Congress in terminating the Lebanon operation even by joint resolution presented to the president.
JUDGE JOHN ROBERTS: The memo you refer to, I was working in the White House Counsel’s Office then. The White House Counsel’s Office is charged to be vigilant to protect the executive’s authority just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch.
I believe very strongly in the separation of powers. It was a very important principle that the framers set forth that is very protective of our individual liberty to make sure the legislative branch legislates, the executive executes and the judicial branch decides the law.
SEN. PATRICK LEAHY: But your position in this memo in President Reagan’s office seemed to indicate that Congress has… does not have an ability to end hostilities.
JUDGE JOHN ROBERTS: With respect, Senator, you’re vastly over reading the memorandum.
SEN. PATRICK LEAHY: Tell me why.
JUDGE JOHN ROBERTS: Well, because it had nothing to do with terminating hostilities. It had to do with the eligibility for certain pension benefits.
And the question then was whether or not who should be determining when the hostilities ceased or should cease and I suspect if you asked any lawyer for any president of any administration whether they wanted to concede that general principle or if, as careful lawyers, they would prefer that that provision were rewritten or not in there, I’m fairly confident that regardless of the administration that a lawyer for the executive would take the same position.
KWAME HOLMAN: Utah Republican Orrin Hatch asked Judge Roberts about the pro bono work he has done throughout his career.
SEN. ORRIN HATCH: The position that you have been nominated for is chief justice of the United States. Do you plan to use that role as a bully pulpit to encourage members of the bar to take seriously their responsibility to undertake pro bono work as you have done throughout your legal career?
JUDGE JOHN ROBERTS: Yes, Senator, if I am confirmed I would hope to do that. If I’m not I would hope to do that back on the court of appeals. I think it’s a very important part of a lawyer’s obligation.
KWAME HOLMAN: But Edward Kennedy of Massachusetts launched into a long criticism of Roberts’ opinions — again while a Reagan administration lawyer — on civil rights issues such as extension of the Voting Rights Act.
SEN. EDWARD KENNEDY: I’m deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings. In the only documents that have been made available to us it appears that you did not fully appreciate the problem of discrimination in our society. It also seems that you were trying to undo the progress that so many people had fought for and died for in this country.
KWAME HOLMAN: Kennedy interrupted several times as Judge Roberts attempted to explain his positions, finally setting up this exchange.
JUDGE JOHN ROBERTS: And the Supreme Court….
SEN. EDWARD KENNEDY: That’s all….
SEN. ARLEN SPECTER: Let him finish his answer, Sen. Kennedy.
JUDGE JOHN ROBERTS: The point is at and again this is revisiting a debate that took 23 years ago.
SEN. EDWARD KENNEDY: I’m interested today in your view. Do you support the law that Ronald Reagan signed into law and that was co-sponsored —
JUDGE JOHN ROBERTS: Certainly. The point I would make is two-fold. That those like President Reagan, like Attorney General Smith, who were advocating extension of the Voting Rights Act without change were as fully committed to protecting the right to vote as anyone.
SEN. EDWARD KENNEDY: Could I….
SEN. ARLEN SPECTER: Let him finish his answer, Sen. Kennedy.
JUDGE JOHN ROBERTS: And the articulation of views that you read from represented my effort to articulate the views of the administration and the position of the administration for whom I worked, for which I worked, 23 years ago.
KWAME HOLMAN: The questions posed by Iowa Republican Chuck Grassley dealt with the role of the judiciary in connection with the other two branches of government, the executive and the legislative.
SEN. CHUCK GRASSLEY: Some legal scholars claim that when the political branches of government are slow to act, the broad and spacious terms of the Constitution lend themselves to court-created solutions. Do you agree with this role of the court?
JUDGE JOHN ROBERTS: I have said that it is not the job of the court to solve society’s problems, and I believe that. It is the job of the court to decide particular cases. Now sometimes cases are brought and the courts have to decide them, even though the other branches have been slow to act, as you say.
Brown versus Board of Education is a good example. The other branches in society were not addressing the problems of segregation in the schools. They were not just slow to act, they weren’t acting. But that didn’t mean the court should step in and act.
But when the courts were presented with a case that presented the challenge, this segregation violates the equal protection clause — the courts did have the obligation to decide that case and resolve it – and in the course of doing that, of course, changed the course of American history.
KWAME HOLMAN: Along those same lines, Wisconsin Democrat Herb Kohl asked Judge Roberts how the courts should react to the tragedy that unfolded following Hurricane Katrina.
SEN. HERB KOHL: But in spite of all of our laws and all of our rules, we still saw what happened down in New Orleans. The people who were left behind were people who had not had educational or employment opportunities. The question I asked was whether you as a person who aspires to become the chief justice of the United States sees a particular role other than continuing the role that you observe we are following now, the particular role for improving our ability to respond to the needs of those people who live under those circumstances.
JUDGE JOHN ROBERTS: Well, the courts are, of course, passive institutions. We hear cases that are brought before us. We don’t go out and bring cases. We don’t have the constitutional authority to execute the law. We don’t have the constitutional authority to make the law. Our obligation is to decide the cases that are presented. Now I’m confident just in the nature of things that there will be cases presented arising out of that horrible disaster, of all sorts. And many of those will be federal cases, I’m sure. Others will be in the state courts.
And, again, the obligation of the federal judiciary and the state judiciary is to make sure they provide a place where people can have their claims, their litigation decided fairly and efficiently according to the rule of law.
KWAME HOLMAN: California Democrat Diane Feinstein is the lone woman on the Judiciary Committee. And this afternoon she returned to the morning’s discussion of two of the court’s abortion- related decisions, Roe v. Wade, and Casey versus Planned Parenthood.
SEN. DIANNE FEINSTEIN: Unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient?
JUDGE JOHN ROBERTS: Well, again, I think that’s asking me whether I think the decision was correct or not on that point. It certainly was the analysis of the joint opinion in the court entitled to respect as precedent like any other decision of the court under principles of stare decisis.
And that would certainly be where I would begin if any of these issues come before the court. If I were to be confirmed I would begin with the precedent that the court has laid out in this area.
SEN. DIANNE FEINSTEIN: One other question on Casey. And I’d like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing in a discussion with then Sen. Brown: The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner. And Casey, which in other respects has been greeted in some quarters with great distress answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband. Do you agree?
JUDGE JOHN ROBERTS: That is what Casey held, yes. That’s, as I said before, a precedent of the court, like any other precedent of the court entitled to respect under principles of stare decisis.
KWAME HOLMAN: Alabama Republican Jeff Sessions added his own thoughts.
SEN. JEFF SESSIONS: Well, I would like to know how you’d rule on a lot of those cases too. I didn’t ask you when you came and talked with me. And I don’t think it’s appropriate.
I don’t think those of us who are politically conservative ought to look to the courts to promote our conservative agenda through the manipulation of interpreting words of the Constitution or statutes.
I don’t think liberals have a right to ask the court to promote their agenda by twisting the plain meaning of words to accomplish an agenda. What we need is what you said, an umpire — fair and objective that calls it like they see it based on the discreet case that comes before the judge. I think that’s most important.
And I just don’t think that we ought to take the view that that matter is open and shut. And I hope that you will take… we’ll take you at your word that your mind is open and you will evaluate the matter fairly according to the high standards of justice that you can bring to bear to that issue and any others like it that come up. Will you give us that commitment?
JUDGE JOHN ROBERTS: Absolutely, Senator. I would confront issues in this area as in any other area with an open mind in light of the arguments, in light of the record, after careful consideration of the views of my colleagues on the bench and I would confront these questions just as I would any others that come before the court.
KWAME HOLMAN: And in response to a question from Wisconsin democrat Russ Feingold Judge Roberts said he hadn’t settled on an opinion about whether to allow cameras to televise Supreme Court proceedings but he’s thinking about it.
A second round of questions for Judge John Roberts will begin tomorrow morning.