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

By:  Lindsey Graham
Date: Sept. 14, 2005
Location: Washington, DC


Senator Graham Questions Chief Justice Nominee John Roberts on Third Day of Confirmation Hearings

GRAHAM: Thank you, Mr. Chairman.

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

(LAUGHTER)

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

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

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

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

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

ROBERTS: Yes.

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

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

GRAHAM: Well, I'll remember that if I'm president. But on the record now, I don't think I have the right to do that. That's part of the process. Some big things here. Were you proud to work for Ronald Reagan?

ROBERTS: Very much, Senator, yes.

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

ROBERTS: No, Senator, I was not.

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

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

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

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

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

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

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

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

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

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

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

Is that a correct summary?

Yes, Senator.

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

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

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

And I will move on.

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

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

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

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

Are you familiar with the Geneva Convention?

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

ROBERTS: I do, yes.

GRAHAM: Why?

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

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

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

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

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

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

ROBERTS: Yes, Senator, I am.

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

ROBERTS: Well, I really have...

GRAHAM: Fair enough. Fair enough.

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

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

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

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

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

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

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

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

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

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

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

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

GRAHAM: This is me speaking, not you.

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

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

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

ROBERTS: I think that's correct, Senator.

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

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

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

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

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

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

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

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

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

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

GRAHAM: Thank you.

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

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

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

Do you agree with that?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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