Hearing of Senate Committee on the Judiciary on Nomination of Judge John Roberts to be Chief Justice of the Supreme Court

By:  Lindsey Graham
Date: Sept. 13, 2005
Location: Washington, DC


Hearing of Senate Committee on the Judiciary on Nomination of Judge John Roberts to be Chief Justice of the Supreme Court

SEN. LINDSEY GRAHAM: Thank you, Mr. Chairman.

I imagine the reason that you argued different positions is because people paid you. Is that correct?

JUDGE JOHN ROBERTS: That's how I made my living, Senator.

GRAHAM: OK. I can relate to that.

I imagine it must be very hard to figure out what Congress intends. Do you agree with that?

ROBERTS: Sometimes it's easier than others and sometimes it's hard to read the tea leaves.

GRAHAM: I can relate to that also.

I want to read an excerpt from the National Association of Women Lawyers and their evaluation of you -- 8/30/05 -- As a lawyer and judge, based on interviews the committee conducted, Judge Roberts has treated individual women lawyers fairly and with respect, has fostered careers of women lawyers, has been helpful in enabling women to address work/life balance issues while advancing professionally, and has been consistently described as respectful to female colleagues, female lawyers appearing before him and female employees.

You've been asked about every case, I think, ever written by anyone. I would like to talk to you a little about life.

The idea of judging you based on this section of the commerce clause and that section of the commerce clause is important, but I think most Americans want to know a little bit about you.

And from what I can tell, the people who've worked with you and against you generally like you, and that you've been described as brilliant, one of the best legal minds of your time, well-qualified.

The adjectives go on and on. And I want the record to reflect: That comes from people who know you the best. The best indication of a good lawyer is how people on the other side think of you. And we'll get some excerpts from the record to put that into the record.

Apparently, from what I can tell, you've conducted your life in a noble, honorable manner; that you've been a good litigant; and that you have fought for your causes and you have done so to earn respect of those on both sides of the aisle.

But there's a greater issue here about who you are.

Justice Rehnquist was your mentor, is that correct?

ROBERTS: He's certainly someone from whom I learned a great deal, yes.

GRAHAM: OK.

So if I was trying to figure out who John Roberts is and a little bit about him, I will ask this question: Write the legacy of Justice Rehnquist for a minute or two. What would you say if given that task?

ROBERTS: Well, you know, I think if you were able to ask him, he would talk about being a grandfather, being a father...

GRAHAM: I'm asking you.

ROBERTS: ... being a husband.

GRAHAM: I'm asking you.

ROBERTS: But the important point is that those were important things in his life and he appreciated the need to recognize that those are the most important things. With respect to the law to which he devoted his professional life, I think a big part of the legacy that he leaves is a Supreme Court in which all of the members respected and admired him because of his fairness in administering the court and conducting the important responsibilities like managing the conference and assigning opinions.

GRAHAM: You can go back in history and look at what other chief justices did.

Some were -- in terms of that administrative responsibility -- some were disasters.

You look at Harlan Stone, his idea of running the conference, he said what he thought, then the next senior justice said what he thought. Then Justice Stone critiqued that. Then the next justice, and then Justice Stone critiqued that.

And the result was the conferences went on for days and everybody ended up hating each other. So he ran a good ship. I think we all agree with that. And his colleagues respected him whether they disagreed with him or not.

But the basic question is, when you write about the legacy of a Supreme Court justice, you write more than about being a grandfather -- more about running a tight ship, especially chief justice: Would you agree with the idea that, from a conservative point of view, he was the gold standard?

ROBERTS: I think he was a very effective advocate on the bench for a view of the Constitution that is one of limited and separated powers.

GRAHAM: Do you share that view?

ROBERTS: I do. I think that the -- now, I have to tell you that whether as a judge on the court of appeals or if I am confirmed on the Supreme Court, I will certainly be my own man and there are...

GRAHAM: No one is doubting that. No one is doubting that you will not try to be fair. But the big thing, 30,000-foot view of you, is that when you look at Judge Roberts, you're looking at someone in the mold of a Rehnquist. Is that a fair assessment?

ROBERTS: Well, you know, I admire the late chief justice very much. But I will have to insist that I will be my own man and I hesitate to be put in anybody's mold. And I would certainly approach the cases according to the judicial philosophy that I have developed over the years.

In many respects, it's similar to his: in its recognition, I think, of the limited role that judges should have, an appropriate modesty and humility, a recognition that...

GRAHAM: The idea of a dramatic departure under your watch from the Rehnquist era is probably not going to happen, is that true?

ROBERTS: Given my view of the role of a judge which focuses on appropriate modesty and humility, the notion of dramatic departures is not one that I would hold out much hope for.

GRAHAM: I know people don't like being labeled, Put me in that category. But I'm in a business where people label me all the time. But I ask for it, I run for office.

But we do tend in our business of politics to try to label people, particularly when we're talking about judges.

When the president introduced you to the United States, to the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words?

ROBERTS: Well, I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their posterity. They were looking ahead. And so they often used phrases that they intended to have...

(CROSSTALK)

GRAHAM: Does that term make you feel uncomfortable?

ROBERTS: No.

GRAHAM: Now, from a 30,000-foot view of things, it seems to be that we're going to have a referendum on the Reagan era here, which I welcome. I sort of enjoyed it, he won 49 states. He did pretty good.

You were part of the Reagan era as a young lawyer. When I use the word -- term -- Reagan revolution, what does it mean to you?

ROBERTS: Well, it means to me generally a change in attitude. President Reagan always presented an optimistic view. He always told us that the best days of our country were ahead of us. And he reasserted basic fundamental truths in areas like foreign relations. We are going to stand up to the Soviet Union. We're proud of our system of government. That's the right approach, not the Soviet approach. And people who have come of age after the Berlin Wall has fallen sometimes don't understand what it meant at that time.

GRAHAM: When it comes to the law, what does the term Reagan revolution mean to you?

ROBERTS: I think it means a belief that we should interpret the Constitution according to its terms; that judges don't shape policy; that judges interpret the law and that legislators shape policy; that the executive branch executes the law.

GRAHAM: Does it also mean that when you talk about affirmative action and you set up a quota system, that's not right?

ROBERTS: President Reagan's policy was opposed to quotas, which were much more rigid at the time.

People need to appreciate 24 years ago the idea of a quota was a rigid set-aside. We now have the recent Supreme Court decisions talking about consideration of particular factors as one factor in an affirmative action program.

President Reagan was in favor of affirmative action and he was opposed to quotas.

GRAHAM: When it comes to voting rights, as I understand -- and we talked a lot about it, and we probably know more than all of us ever dreamed we would know about the Voting Rights Act -- that you were implementing a policy of President Reagan that wanted to pass the Voting Rights Act in its form that you received it. Is that correct?

ROBERTS: The proposal was to extend it for the longest period in history without change.

GRAHAM: And we've been through a long discourse about the effect and intent test. I think you've explained yourself very well that the Supreme Court in the Mobile case said the intent test applies to Section 2. Is that right?

ROBERTS: Section 2.

GRAHAM: But politics took over after that, didn't it? Because the effect test no longer -- that's not the test. Isn't it some compromise between Senator Kennedy and Senator Dole?

ROBERTS: There was a compromise in the test under Section 2, which is articulated in a paragraph describing what the criteria are, including a caution that this should not be read to promote proportional representation, which was some of the concern that the attorney general and President Reagan had.

GRAHAM: So between Dole, Senator Kennedy and President Reagan, a new test was called the totality of the circumstances?

ROBERTS: Yes.

GRAHAM: Now, when you said that you -- Senator Kennedy said something I thought was very important: that courts should not stand in the way of elected officials who are trying to right wrongs.

And the point I'm trying to make here is that you were picked by a conservative president because you have associated yourself with the conservative administrations in the past, advising conservative presidents about conservative policies.

And there's another selection to be made, and you're going to get the same type person.

And you can -- I'm not even talking to you now.

(LAUGHTER)

To expect anything else is just not fair. I don't expect -- I didn't expect -- President Clinton to pick you. It's not because you're not well-qualified, not because you're a good person; just a different political, legal philosophy.

Now, that's what we're going to have to come to grips with here.

Justice Scalia: Do you consider him conservative?

ROBERTS: Yes.

GRAHAM: Do you think you're more conservative than he is?

ROBERTS: Oh, I don't know. I mean, I wouldn't...

GRAHAM: Well, he got 98 votes. And I think you're a conservative, but I think you're one of the great minds of our generation, of our time. And I'm dying to find out if you get any votes on the other side.

Time will tell.

Let's talk about righting wrongs here. I think it stinks that somebody can burn the flag and that's called speech.

What do you think about that?

ROBERTS: Well...

(LAUGHTER)

We had the Flag Protection Act after the Supreme Court concluded that it was protected speech.

GRAHAM: Show me where the term symbolic speech is in the Constitution.

ROBERTS: Well, it's not.

GRAHAM: It's not. They just made it up, didn't they? And I think it stinks that a kid that can't go to school and say a prayer if he wants to voluntarily.

What do you think about that?

ROBERTS: That's something that's probably inappropriate for me to comment on.

GRAHAM: What do you think Ronald Reagan thought about that?

ROBERTS: His view was that voluntary school prayer was appropriate.

GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn.

What do you think about that?

ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because...

GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials?

ROBERTS: Well, again, those are issues that come before the court on a regular basis in particular cases. And on my current court or the future court, I need to be able to approach those cases with an open mind and not on the basis of statements I make during a confirmation hearing.

GRAHAM: The point is that righting wrongs is a very subjective thing. And you will be asked to decide the fate of people with individual needs and individual desires, based on particular fact patterns and legal briefs.

I'm confident you can do that and that you will do that. And I don't think you need to make a bargain with me to right all the wrongs that I see in life to sit on the Supreme Court.

What's it like to go through the nominating process in 2005 from a personal point of view? I've been watching television, channel flipping, and I see some awful things said about you. Have you seen those things?

ROBERTS: I've seen some things, yes.

GRAHAM: How does that make you feel?

ROBERTS: Well, some of the mischaracterizations, you know, you get annoyed at them. I don't like them. Some of the things you see you get pretty upset about.

GRAHAM: How's it make your family feel?

ROBERTS: I would say they get upset about some of the things, as well.

GRAHAM: But, you know, it's a free country and that's just the way it is. Right?

ROBERTS: It is, and it's an expression I've been using a lot lately. It is a free country, and it's a good thing that it is.

GRAHAM: Let's not talk about you now, but I would like you to comment, give us some advice here. We're always trying to advise the president through you.

What's the long-term effect on the quality of candidates that we'll be able to recruit for jobs like the Supreme Court if the current process continues and grows over time?

ROBERTS: I think it is a very serious threat to the independence and integrity of the courts to politicize them. I think that is not a good development, to regard the courts as simply an extension of the political process. That's not what they are.

I have been fortunate for the past two years to serve on a court in which all of the judges -- and they come, the D.C. Circuit, they come from very active careers in public life and sometimes very identified politically -- but it's a court where those judges put aside those ties and those views and become judges all focused on the same mission of vindicating the rule of law.

And if you look at the decisions on the D.C. Circuit, you'll see that we are almost always unanimous, we almost always come out the same way. And to the extent there are disagreements, they don't shape up along political lines.

That is an ideal. But the more and more that the process becomes politicized, the less likely that that's going to happen.

GRAHAM: Another line of inquiry that's been disturbing to me is that we talk about the clients you represent, whether it be the Ronald Reagan administration or some private sector client, and we tend to hold that maybe unpopular position against the lawyer. There's more and more of that happening.

We've had court of appeal nominees that were accused of being insensitive to the disabled population when they won their case 9-0 in the Supreme Court defending a university from the idea that they were not covered under the Americans with Disabilities Act.

I really do worry that in the future that if we up here start holding who you represent against you, that young lawyers in the future will pass on the hard cases.

What's your thoughts about that?

ROBERTS: You know, it's a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients.

The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law.

Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it. And that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice.

GRAHAM: Do you believe it's being eroded?

ROBERTS: I do think there is an unfortunate tendency to attack lawyers because of the positions they press on behalf of clients. And I think that's unfortunate.

GRAHAM: I'm going to give you some examples of a sitting Supreme Court justice and her positions and basically take us back to the good old days where you could have what I think are extreme positions and still make it.

Are you familiar with the ACLU?

ROBERTS: Certainly.

GRAHAM: In the conservative world, how does that rank on the food chain?

ROBERTS: I don't know that I could comment on that, but they have a consistent position of promoting civil liberties and a particular view on that.

GRAHAM: If you came to the Reagan administration and the top thing on their resume was the general counsel for the ACLU, do you think they would hire you?

ROBERTS: Might make it a little harder.

(LAUGHTER)

GRAHAM: Yes.

(LAUGHTER)

I think that's a good observation. Well, we have, on the sitting Supreme Court now, the former general counsel for the American Civil Liberties Union, who is a very nice lady, extremely qualified -- I don't agree with her hardly at all -- but a great lawyer.

She has written that the age of consent for women should be 12, that all prisons to have gender equality, men and women should be in the same prison because, when you separate them, women prisoners somehow are discriminated against.

She wanted to do away or argued the idea that Mother's and Father's Day should be done away with because it stereotypes men and women -- that there's a constitutional right to prostitution.

I can give you -- and I'll introduce into the record -- writings from her point of view that most conservatives would find totally unacceptable. But this person, this lady, the former ACLU executive counsel, is sitting on the Supreme Court, and she got 96 votes.

She said that there should be federal funding for abortion. 90 percent of our caucus is pro-life -- is that about right? Pretty close? I could assure you that, if a Republican was going to make their vote based on abortion thinking, she would have gotten no votes. Most Americans don't want federal funding of abortion, even though they're divided on the issue of a woman's right to choose.

GRAHAM: She has argued that the equal protection clause guarantees a right to abortion.

Now, I completely differ with that, and I'm sure the conservatives in the Senate at the time of her confirmation completely differed with that: the idea the age of consent should be 12, that bigamy statutes are discriminatory to women.

I can go on and on and on.

And the point I'm trying to make is that all of that was put aside, who she represented and what she believed and the position she took, and somehow back then they're able to see in Justice Ginsburg a well-qualified, brilliant legal mind and they deferred to President Clinton because he won the election.

Whether that happens to you, I don't know.

But for the sake of the country and the rule of law, I hope you can be in the ballpark of where she wound up.

Last two questions.

In your opening statement, you articulated the rule of law in a way that I thought was just outstanding. It was emotional, it made sense, average people could understand it: that the courtroom is a quiet place, Judge Roberts, where you park your political ideology and you call the balls and you call the strikes, and you try to give every American a fair shake and you put politics in its perspective.

What is your biggest concern, if any, about the rule of law as it exists in America? And what are the biggest threats to the rule of law as we know it today?

ROBERTS: Well, you know, the rule of law is always vulnerable because the Supreme Court, as has been pointed out often in history, has only the persuasive power of its opinions to command respect.

There have been famous episodes in the past, you know -- President Jackson, Chief Justice Marshall has given his opinion; let's see him enforce it -- other episodes of that sort.

But over time, the legitimacy of the Supreme Court has been established and it's generally recognized across the political spectrum that it is the obligation of the court to say what the law is and that the other branches have the obligation to obey what the Supreme Court says the law is.

The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law.

And because it's the Supreme Court, people are going to follow it even though they're making the law.

The judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before, and I'll just repeat myself: The framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, Let's take all the difficult issues before us and let's have the judges decide them. That would have been the farthest thing from their mind.

The judges had the obligation to decide cases and the authority to interpret the Constitution because they had to decide cases. And they were going to decide those cases according to the law, not according to their personal preferences.

Judges have to have the courage to make the unpopular decisions when they have to. That sometimes involves striking down acts of Congress. That sometimes involves ruling that acts of that executive are unconstitutional. That is a requirement of the judicial oath. You have to have that courage, but you also have to have the self- restraint to recognize that your role is limited to interpreting the law and does not include making the law.

GRAHAM: What would you like history to say about you when it's all said and done?

ROBERTS: I'd like them to start by saying: He was confirmed.

(LAUGHTER)

Whether they say that or not, I would like -- the answer is the same, I would like them to say I was a good judge.

GRAHAM: Thank you very much. I have no further questions.

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