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Third Day of Roberts Hearings

September 14, 2005 at 12:00 AM EDT

KWAME HOLMAN: After fielding questions for more then nine hours yesterday, Judge John Roberts returned this morning for another round before the Senate Judiciary Committee.

SEN. SAM BROWNBACK: Hope you have a good night’s sleep.

KWAME HOLMAN: Kansas Republican Sam Brownback led off just after 9 AM, asking Judge Roberts about the recent Supreme Court ruling in Kilo versus New London. That decision allowed the city of New London to seize a swath of private land for commercial purposes. The five to four ruling drew outrage from lawmakers in both parties and from the dissenting Sandra Day O’Connor, who said it infringes on individual ownership rights.

SEN. SAM BROWNBACK: Judge Roberts, what is your understanding of the state of the takings clause jurisprudence now after Kilo? Isn’t it now the case that it’s much easier for one man’s home to become another man’s castle?

JUDGE JOHN ROBERTS: The majority explained its reasoning by noting the difficulty in drawing the line. They said they were only deciding this in the context of an urban redevelopment plan. They reserve the question if it’s just taking one parcel and giving it to somebody else, not part of a broader plan. That question was still open. And as you say, there’s been a lot of reaction to it. I understand some states have even legislated restricting their power.

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

JUDGE JOHN ROBERTS: And I think that’s a very appropriate approach to consider. In other words, the court was not saying you have to have this power; you have to exercise this power. What the court was saying is there is this power and then it’s up to the legislature to determine whether it wants that to be available, whether it wants it to be available in limited circumstances or whether it wants to go back to an understanding as reflected in the dissent, that this is not an appropriate public use.

That leaves the ball in the court of the legislature. And I think it’s reflective of what is often the case and people sometimes lose sight of that this body and legislative bodies in the states are protectors of the people’s rights as well.

KWAME HOLMAN: During his turn, Committee Chairman Arlen Specter complained that in several rulings members of the high court had criticized Congress.

SEN. ARLEN SPECTER: The dissent in Tennessee versus Lane, Justice Scalia says that the court engages in ill-advised proceedings to make itself the “taskmaster” — to see if Congress has done its homework. I take umbrage at when the court said and so do my colleagues. And we don’t like be treated as schoolchildren and requiring, as Justice Scalia says, a taskmaster. Will you do better on this subject, Judge Roberts?

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

SEN. ARLEN SPECTER: In U.S. versus Morrison, the legislation to protect women against violence, the record showed that there were reports on gender bias from the task force in 21 states and eight separate reports issued by Congress and its and committees over what long course of time leading to the enactment and the characterization by the dissenters that there was a mountain of evidence. What more does the Congress have to do to establish a record that will be respected by the court?

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

SEN. ARLEN SPECTER: Judge Roberts, let me interrupt you there for a minute. Why not? The case is over. This isn’t a case which is likely to come before you again. I liked your answers yesterday. You were willing to answer more questions about cases of differentiation that they are not likely to come before the court. This is not likely to come before the court again. Isn’t this record sufficient on Morrison —

JUDGE JOHN ROBERTS: Well, Mr. Chairman, I must respectfully disagree. I have been willing to comment on cases that I think are not likely to come before the court again, and expressing an opinion on whether the Morrison case was correct or incorrect would be prejudging those cases that are likely to come before the court again and that is the line; it’s not just a line that I’m drawing; it’s a line that as I read the transcripts every nominee who’s sitting on the court today drew.

KWAME HOLMAN: Delaware Democrat Joseph Biden tried to get Judge Roberts to reveal his personal views on the right to end life support for an ailing family member.

SEN. JOSEPH BIDEN: Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue, he, does not want to continue on a life support system?

JUDGE JOHN ROBERTS: Well, Senator, I can’t answer that question in the abstract because…

SEN. JOSEPH BIDEN: That’s not abstract. That’s real.

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

SEN. JOSEPH BIDEN: That’s the question, Judge? Can any law — can any law trump a fundamental right to die? And the idea that a state legislature could say to my mom, your father wants the feeding tube removed, he’s asked me, the doctors heard it, and the state legislature’s decided that, no, it can’t be removed — are you telling me that’s even in play?

JUDGE JOHN ROBERTS: Well, Senator, what I’m telling you is, as you know, there are cases that come up in exactly that context so that it is in play and the sense is that there are cases involving disputes between people asserting their rights to terminate life, to remove feeding tubes either on their own behalf or on behalf of others. There is legislation that states have passed in this area that governs that, and there are claims that are raised the legislation is unconstitutional. Those are issues that come before the court, and as a result I will confront those issues in light of the court’s precedence with an open mind. I will not take to the court whatever personal views I have on the issues and I appreciate the sensitivity involved. They won’t be based on my personal views; they will be based on my understanding of the law.

KWAME HOLMAN: This afternoon, Herb Kohl, Democrat from Wisconsin, asked Judge Roberts how the Supreme Court should decide which cases it accepts each session.

SEN. HERBERT KOHL: How will you decide which cases will make the cut and will be heard by the Supreme Court and what will guide your complete discretion to choose which cases to hear?

JUDGE JOHN ROBERTS: The job of the Supreme Court is to ensure the uniformity and consistency of federal law, in particular of interpretations of the constitution. So the clearest case that the court should hear, they should grant certiorari on, as they say, is when two different courts of appeals are interpreting the law differently. Obviously, the law should mean the same thing in every part ever country, and if two different courts take a different view of the law, that’s the kind of case the court ought to be taking.

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

I do think there’s room for the court to take more cases. They hear about half the number of cases they did 25 years ago. There may be good reasons for that that I’ll learn if I am confirmed but, just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases. I have heard others say they could contribute to the clarity and uniformity of the law by taking fewer cases but I don’t subscribe to that view. I think there’s room for additional cases on the docket.

KWAME HOLMAN: Later, Kohl’s Wisconsin colleague, Democrat Russ Feingold pressed Judge Roberts on why throughout these hearings he has refused to give opinions on past court cases on which sitting justices have ruled. Feingold referred to the case of Yasser Hamdi, an American citizen classified by the government as an enemy combatant.

SEN. RUSS FEINGOLD: Why shouldn’t the public have some idea where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in time of war? They know a great deal about how each of the other justices approached these issues. Why is your situation different?

JUDGE JOHN 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. 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 a judicial process. You’re now asking me for my opinion outside of that.

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

JUDGE JOHN ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice. The 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.

KWAME HOLMAN: However, New York Democrat Charles Schumer pursued the issue of Roberts’ candor.

SEN. CHARLES SCHUMER: 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. 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 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 cinema photography. And I ask, no, give me an example of a good movie, you don’t name one. I say, give me an example of a bad movies, you won’t name one, and I ask you if you like Casablanca, and you respond by saying lots of people like Casablanca. You tell me it’s widely settled that Casablanca is one of the great movies.

SPOKESMAN: Sen. Schumer, now that you’re time is over are you asking him a question?

SEN. CHARLES SCHUMER: Yes, 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.

JUDGE JOHN ROBERTS: First, Doctor Zhivago, and North by Northwest. (Laughter in room)

KWAME HOLMAN: That moment of levity broke the tension that had built during the afternoon and then Judge Roberts added this thought about expressing his opinion.

JUDGE JOHN ROBERTS: And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is that –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.

KWAME HOLMAN: The questioning of Judge John Roberts will continue tomorrow.