Complete Day 2 Transcript, Part III of III

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Below the fold is a complete transcript of the September 13 Roberts hearing, Part III, courtesy of CQ Transcriptions. Part I ended with questions from Senator Kennedy. Part II ended with questions from Senator Kohl. Part III begins with Senator DeWine and goes to the end of the day.

Second Day of Hearings on the Nomination of Judge Roberts (Part III)

The following is the transcript of the hearings on the nomination of Judge John G. Roberts as transcribed by CQ Transcriptions.

Senator DeWine?

DEWINE: Thank you, Mr. Chairman.

Judge, good afternoon.

ROBERTS: Good afternoon.

DEWINE: I guess the good news is that I represent halfway point.

SPECTER: On the first round.

DEWINE: The bad news is, it's the first round.

(LAUGHTER)

Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.

Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.

As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.

And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.

So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.

But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in.

DEWINE: Because really it is a question of the utmost national security. These are people who are going to make sometimes life and death decisions for our country.

ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.

I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.

I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.

This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.

I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.

Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.

DEWINE: I appreciate your personal attention to that. I know how important you know it is, Judge.

And I would just add one more comment, that that court, as all courts do, but even more so, not only makes decisions, not only decides whether to issue the warrant or not, but it's the feedback that the Justice Department gets and the law enforcement agencies get that tells them what they can do and can't do. And that feedback is unbelievably important and it affects the intelligence operations in this country and is just vitally, vitally important.

DEWINE: Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.

In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.

At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question.

The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. CIO, a 1939 case which you are well familiar with.

I want to quote it very briefly: Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembling, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has from ancient times been a part of the privileges, immunities, rights and liberties of citizens, end of quote.

Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.

In a recent case, a Wisconsin woman was kicked off a city bus. And this is what she was kicked off a city bus for doing: She was trying to distribute a book containing Bible stories to individuals sitting next to her.

Another case that's repeated time and time again across this country and has been for many years in towns and cities, villages across the country: Individuals are prohibited from placing political signs -- and it could be not just for candidates; it could be for school levy, against the school levy -- on their own property, on their own property, except during specified times and specified ways.

Government tells them, so many days before the election: You can't put that up there until so many days before the election -- not just for candidates but for bond issues, whatever the issue that they want to talk about through their own political speech, on their own property.DEWINE: Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.

In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.

At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question. The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. CIO, a 1939 case which you are well familiar with.

Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.

Now, the particular mode of analysis that the Supreme Court uses in addressing these types of public speech issues is to some extent unsettled. Public forum doctrine, as it's called, for many years, you tried to characterize an issue: Is this a public forum, is it a quasi-public forum, is it a private forum? And the definition sort of carried with it the conclusion about what could be allowed. And many of the justices thought that the reasoning was awfully circular.

I remember, years ago, I argued one of the cases in the Supreme Court about post office and what could be done in a post office area and whether the restriction of that area to postal business meant they could exclude people who wanted to engage in political speech. And I remember thinking at the time that the precedents were very unsettled.

And I'm not sure that the court has made much progress since then.

If it's a more limited public forum, it's only been open for certain types of speech, or the nature of the forum requires there to be a restriction -- that was the government's argument in the post office case I litigated -- then it's a less-demanding standard in those situations. DEWINE: Let me just follow up that with a short question, if you can give me just a reaction to this, if I could. Do you think the First Amendment is flexible enough in the year 2005 to account for what I believe, at least, is the shrinking public square?

ROBERTS: It's not a provision in the law. But it's a basic American approach that I think is important, and that's captured in the expression, you know: It's a free country. And when you're talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it's a free country and it's a wonderful thing that people can say things in the public that you may not agree with, because you, of course, have the same right. Now, the particular mode of analysis that the Supreme Court uses in addressing these types of public speech issues is to some extent unsettled. Public forum doctrine, as it's called, for many years, you tried to characterize an issue: Is this a public forum, is it a quasi-public forum, is it a private forum? And the definition sort of carried with it the conclusion about what could be allowed. And many of the justices thought that the reasoning was awfully circular.

And I'm not sure that the court has made much progress since then.

But you do try to focus a little bit on whether you are dealing with a public forum, one that has traditionally been open to expression, and if it has, then any restrictions on expression are going to be subject to a very exacting standard before they'll be upheld. If it's a more limited public forum, it's only been open for certain types of speech, or the nature of the forum requires there to be a restriction -- that was the government's argument in the post office case I litigated -- then it's a less-demanding standard in those situations. DEWINE: Let me just follow up that with a short question, if you can give me just a reaction to this, if I could. Do you think the First Amendment is flexible enough in the year 2005 to account for what I believe, at least, is the shrinking public square?

DEWINE: Now, I know we have the Internet, we have TV, we have radio; a lot of things that we didn't have when our founders wrote the Constitution. But I think there is a shrinking public square.

What do I mean by this? Someone who wants to run for school board today, someone who wants to support a school levy, oppose a school levy -- when you and I were growing up -- you are younger than I am, but when we were growing up in the Midwest, you could go downtown -- if you supported a school levy, let's say, you could go downtown and pass out literature in front of the hardware store or the grocery store. And that was a public place, because there was a sidewalk. And you knew everybody in town was probably going to go by there.

If you lived in a city, there were communities in the city where you could do the same thing.

Today, most people -- we just don't live that way. Most people don't. Some do, but most don't.

Today people get in their car and they go to the grocery store. They go to a strip mall, and they go to a grocery store that is surrounded all by private property, and the people who own that strip mall usually say, You cannot come on and distribute any literature of any kind on this facility. And basically they're upheld in that right, because it's private property.

Or they go buy their clothes or everything else, their hardware, they do in a big mall, and that mall clearly -- there's a Supreme Court case right on point that says they can be excluded.

So the traditional public forum, as we know it, is really shrunk.

Does the court take that into consideration when they look at the precedents, they look at all the decisions that have been made? How does that -- without deciding any case or talking about any specifics...

ROBERTS: Well, I do know...

DEWINE: The world that we live in today.

ROBERTS: I appreciate the point. And I do know that even the analysis in this particular area, one of the factors that the court considers is the availability of alternative avenues for expression, and a concern, if they're cutting off a particular mode of expression, a particular avenue, are there alternatives available?

DEWINE: Now, I know we have the Internet, we have TV, we have radio; a lot of things that we didn't have when our founders wrote the Constitution. But I think there is a shrinking public square. What do I mean by this? Someone who wants to run for school board today, someone who wants to support a school levy, oppose a school levy -- when you and I were growing up -- you are younger than I am, but when we were growing up in the Midwest, you could go downtown -- if you supported a school levy, let's say, you could go downtown and pass out literature in front of the hardware store or the grocery store. And that was a public place, because there was a sidewalk. And you knew everybody in town was probably going to go by there. If you lived in a city, there were communities in the city where you could do the same thing.

Today, most people -- we just don't live that way. Most people don't. Some do, but most don't.

Or they go buy their clothes or everything else, their hardware, they do in a big mall, and that mall clearly -- there's a Supreme Court case right on point that says they can be excluded. So the traditional public forum, as we know it, is really shrunk. Does the court take that into consideration when they look at the precedents, they look at all the decisions that have been made? How does that -- without deciding any case or talking about any specifics...

ROBERTS: Well, I do know...

DEWINE: The world that we live in today.

ROBERTS: And I think that's a very important consideration. I think you're quite right that this one of those areas in which technology is going to figure in a very prominent way. And the question of whether this type of analysis that grew up when you are talking about a public square or town hall-type thing applies in the Internet situation and whether there's changes that do need to be made in the analysis.

DEWINE: Since you've talked about the Internet, let me turn to a disturbing trend in regards to the Internet. And that has, quite frankly, to do with pornography. We have passed several bills in Congress -- Communications Decency Act -- to protect our children. The Supreme Court struck it down. I'm not going to ask you to comment about that. A few years later, we passed the Child Online Protection Act, again, with the intent to protect our children. Again, the court struck it down. Unlike the traditional public square, the Internet has really become a place for the distribution of some, I find, very troubling material, and that is pornography.

And I guess what bothers me about these cases is they failed to account for something that, to me, at least, is very relatively simple. And that is that at the core of the First Amendment is, to me, at least, the protection of political speech, speech on matters of public concern I have talked about this before.

But it seems to me that pornography is different, particularly pornography that children can easily access. It seems to me that that should be treated differently than political speech.

Famous case: Young v. American Mini Theatres. In that case, the court upheld zoning regulations on adult theaters. Justice Stevens, hardly a right-winger, had this to say, and I quote, Even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials and have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different and lesser magnitude than the interest in untrammeled political debate.

Few of us would march our sons and daughter off to war to preserve the citizens' right to see, quote, 'specified sexual activities,' end of quote, exhibited in the theaters of our choice, end of quote.

DEWINE: Judge, in light of that question, here are my questions. Are there or should there be different levels of speech under the First Amendment? Should pornography, for instance, be treated with less regard than Mark Twain's Huck Finn ? And how would you, if confirmed to the Supreme Court, decide what protection, if any, certain kinds of expressions are entitled to under the First Amendment?

ROBERTS: Well, Senator, it's my understanding, under the Supreme Court's doctrine, that pornographic expression is not protected to the same extent, at least, as political and core speech. And the difficulty that the court has addressed in these different areas, of course, is always defining what is or is not pornography and what is entitled to protection under the First Amendment and what is not. That question is, sort of, antecedent to the question of what the level of protection is, to determine whether it's entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment.

There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don't think I can give a more precise answer.

DEWINE: Judge, let me turn to the area of congressional power. It's been talked about before here. I want to talk about it a little bit more. Really, this has to do with federalism cases.

As you know, the court has handed down a number of cases that have restricted the power of Congress to pass important legislation. The court has struck down portions of the Violence Against Women Act, the Americans with Disabilities Act, the Age Discrimination Employment Act and the Religious Freedom Restoration Act, just to name a few.

In some of these cases, the court restricted Congress's power under the commence clause. In some, it relied on the 11th Amendment. And in some it cited Section 5 of the 14th Amendment.

The particular provision is not that important for this discussion.

DEWINE: Let me be perfectly frank: I think there's some problems with these decisions. I think it is wrong for judges to take on the role of policy-makers. I realize that, if a statute was blatantly unconstitutional, the judge has to do their duties. But I think -- for the reason I'm going to discuss in a minute -- that was not true in these cases. I want to cite one example -- just because of time I only can go through one -- and that is the Garrett case: 5-4 decision, Board of Trustees v. Garrett. As you know, this case involved a woman who said that she had been discriminated against because she was disabled. She was employed by the state of Alabama. She sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, holding that there was no evidence that the state discriminated against the disabled in employment decisions. I think the problem with Garrett is that the court ignored findings by Congress. There were other cases that had been decided where we didn't have findings; you are familiar with those. I understand the court's decision. I might like them or not like them, but I understand them. This case: We made findings. While we were considering the Americans with Disabilities Act, we held 13 hearings, and we set up a task force; a task force that held hearings in every state and was attended by more than 30,000 individuals.

Based on these hearings, we found 300 examples of disabled individuals being discriminated against in employment decisions. We found that two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all, even though a large majority of them were capable of doing so.

And we found that this discrimination flowed from stereotypic assumptions about the disabled as well as, quote, purposeful unequal treatment, end of quote.

All findings by this elected Congress of the United States.

Here, however, the court said this was not enough. It rejected our fact-finding, holding that we had not pointed to any evidence that the states discriminated in employment decisions against the disabled.

DEWINE: Judge, you have stressed repeatedly in your writings and your opinions -- and I have a great deal of respect for you and appreciate these writings and opinions -- but you stress the limited role that judges must play in our system of government.

I applaud you for that approach.

It's important for me to ensure that you still hold to this belief.

In your opinion, what role should a judge play when reviewing congressional fact-findings? In your view, how much deference do congressional fact-findings deserve?

I understand you're not going to talk about this case or any of the cases I just cited. I wanted to lay that kind of as a predicate. I wanted to tell you where I'm coming from.

But just talk in general about when you see fact-findings by Congress, when we have held hearings, when we have established the record, how do you approach it, what are the tools that you use, Judge, based on the precedents and based on what you think the role of the judge is?

ROBERTS: Well, again -- and of course, without getting into the particulars, the reason that congressional fact-finding and determination is important in these cases is because the courts recognize that they can't do that.

Courts can't have, as you said -- whatever it was -- the 13 separate hearings before passing particular legislation.

Courts -- the Supreme Court can't sit and hear witness after witness after witness in a particular area and develop that kind of a record.

Courts can't make the policy judgments about what type of legislation is necessary in light of the findings that are made.

So the findings play an important role.

And I think it's correct to say under the law, in this area and others, they're neither necessary nor necessarily sufficient, but I know as a judge that they're extremely helpful when there are findings.

And judges know when they look at those that they're the result of an exhaustive process, of a sort that the court cannot duplicate.

ROBERTS: We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. So that is sort of the basis for the deference to the fact-finding that is made. It's institutional competence. The courts don't have it, but Congress does. It's constitutional authority. It's not our job. It is your job.

So the deference to congressional finds in this area has a solid basis.

Now in the particular area you are talking about, under Section 5 of the Fourteenth Amendment, the Garrett case -- there are, of course, the more recent cases that you know of, the Tennessee against Lane and the Hibbs case, Nevada against Hibbs, where the court did defer to the fact-finding in those cases, and particularly in the Hibbs case focused on the legislative recognition based on its examination of the factual record developed at hearings about the statute that was at issue there and the particular approach that they were taking to remedy discrimination under the Fourteenth Amendment, which is the authority that Congress has.

Now the legal requirement that the court has articulated there came, of course, from the City of Boerne case -- the remedial approach has to be congruent and proportional.

Justice Scalia signed on to that approach in the City of Boerne case. In the Lane case, he said he'd changed his mind and he no longer agreed with that.

Any area of the law where Justice Scalia is changing his mind has got to be one that's particularly difficult, and one that I think is appropriately regarded as still evolving and emerging.

And so I don't know if the more recent cases in Lane and Hibbs represent a swinging of the pendulum away from cases like Garrett and Kimmel on the other side, or if it's simply part of the process of the court trying to come to rest with an approach in this area.

But it is an area that the court has found difficult. And just as a general matter, I think when you get to the point of reweighing congressional finding that starts to look more like a legislative function, and the courts need to be very careful as they get into that area to make sure that they're interpreting the law and not making it.

DEWINE: Well, Judge, I appreciate your answer. And I'm going to move on, but I would just say that, one of the more disturbing things to me about Garrett is that the dissent and majority opinion got into a dispute -- verbal dispute -- about what the facts were.

And, you know, their dispute about the facts, that seems to me that's not usually what the Supreme Court gets involved in. And it seems if there's a dispute in the facts, you would normally defer to the fact-finder, Congress.

Let me take off on Garrett and maybe talk about another way to get at this. Rather than focus on the problem caused by Garrett, maybe there's another way to solve some of the problems that would be raised by this. Congress still has the power to protect the disabled under the spending clause of the Constitution. We have the power of the purse.

In South Dakota v. Dole, we wanted to establish a national drinking age of 21. You're well aware of that. It was upheld by the court. We did it through the power of the purse in the Dole case. I just wonder if Congress might be able to use this approach to require the states to weigh their immunity from suit under statutes like the Americans with Disabilities Act.

It seems to me that under the spending clause, we have at our disposal the power to protect the disabled, to protect other groups and effectively overturn cases like Garrett and these other cases that limit legislative power. You seem to take that approach in a case entitled Barber (ph) v. Washington Metropolitan Transit Authority.

That case concerned a disabled person who was suing a state entity under the Rehabilitation Act. In that case, you held that the suit could go forward even though the state entity was immune from suit under the Eleventh Amendment. In your view, the state entity had agreed to waive its immunity in exchange for receiving federal mass transit dollars.

DEWINE: I think this case is important. It's important to me, at least, Judge. It seems to show us what you think about Congress' power under the spending clause, and also it gives us a model, I think, for how we might be able to protect those who are discriminated against under the Americans with Disabilities Act.

So if you'll just take a moment -- I've got two minutes left. Will you take a moment and tell us about the issue in the Barbour case and what was your reasoning for permitting a disabled person to sue in federal court for discrimination in that case?

ROBERTS: Certainly.

DEWINE: It's your case. You were involved in the case. You were in the majority opinion.

ROBERTS: Yes. It was a divided decision.

DEWINE: Right.

ROBERTS: The argument was whether Congress had the authority under the spending clause, as a condition of the receipt of federal funds, that WMATA, the Metro here in D.C., receives, that they waive their sovereign immunity to suit under the disability provisions.

And the argument was that Congress lacked that authority, that they could not impose a waiver of sovereign immunity as a condition for the receipt of federal funds to allow an individual alleging discrimination on the basis of disability to sue.

There was no issue about whether there was sovereign immunity in the absence of a waiver, and the WMATA governing body was opposing the suit on the ground that it had not waived immunity. And they were arguing that Congress lacked the authority to condition the receipt of funds on a waiver of the immunity.

It was a divided decision. Two to one vote. The dissenter argued that this was an inappropriate exercise of the spending clause power.

The majority concluded that, no, this was within Congress' authority. It could condition the receipt of federal funds on a waiver of sovereign immunity that allowed an individual alleging he was discriminated against in employment because of his disability to proceed with the suit.

The arguments we rejected were arguments of germaneness. The idea was the funds were for transportation, not for employment. And so it wasn't a germane condition.

The majority rejected those arguments. The dissent would have ruled the other way.

DEWINE: Judge, thank you very much.

Thank you, Mr. Chairman.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator DeWine.

Senator Feinstein?

FEINSTEIN: Thank you very much.

SPECTER: We're going to take a 15-minute break when Senator Feinstein concludes her questioning, at about 4:15.

FEINSTEIN: Thanks very much, Mr. Chairman.

Good afternoon, Judge Roberts. I want to follow up on something that Senator Kohl said in his last question, which was sort of asking you to do a look-back into some of the things you've written and said. And you have written -- and this involves women -- either in margin notes or in comments or in memos -- and I'll list for you some of the comments and ask you what do you think of them today.

FEINSTEIN: In a memorandum to Fred Fielding, White House counsel under President Reagan, about the nomination of a woman to be recognized for moving from homemaker to lawyer, and your response to nominating this woman for an award was this, quote: Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that's for the judges to decide.

In a memo responding to a letter from three Republican congresswomen that raised concerns about the pay gap that women experience, you said, and I quote, Their slogan may as well be, 'From each according to his ability, to from each according to her gender.'

You also wrote that the congresswomen's concerns quote, ignore the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the workforce for extended periods of time, et cetera.

In another memo, you implied that it's a canard that women are discriminated against because they received 59 cents at that time, to every $1 earned by men.

In a September 26th, 1983 memo to Fred Fielding, you rejected an alternative proposed constitutional amendment guaranteeing equal rights to women.

In 1982, you wrote a memo to then attorney general in which refer to the task force which was to conduct a government-wide review to determine those laws which discriminate on the basis of gender as the ladies' task force. I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way. Did you really think that way, and do you think that way today?

ROBERTS: Senator, I have always supported and support today equal rights for women, particularly in the workplace. ROBERTS: I was very pleased when I saw, for example, the report of the National Association of Women Lawyers, who went out and talked and interviewed with women lawyers who have worked with me, who have appeared before me.

And the conclusion was that I not only always treated women lawyers with respect and equal dignity, but that I had made special accommodations for life/work issues to ensure that women could continue to progress, for example, at my law firm, and had always treated women who appeared before me in a perfectly professional way.

FEINSTEIN: Then why say those things?

ROBERTS: Well, let's take the first one you mentioned.

I'm -- it is to me, obvious, in the memo that I wrote to Fred Fielding that it was about whether or not it's good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it.

The point was, is it good to have more lawyers? That's the way I intended it, and I'm sure that's the way...

FEINSTEIN: And you don't think it was good to have more lawyers?

ROBERTS: I think there were probably -- the point that Mr. Fielding and I had commented on, on many occasions, was that in many areas there were too many lawyers.

And that's a common joke that goes back to Shakespeare. It has nothing to do with homemakers.

The notion that that was my view is totally inconsistent and rebutted by my life.

I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.

FEINSTEIN: I don't want to belabor it.

I'm just trying to understand how you think, because you appear -- you know, you speak about modesty and humility, and yet none of these comments are modest or humble.

ROBERTS: Well, those comments were in the nature of the tone that was encouraged in our office.

It was a small office. They expected return projects around very quickly. We were expected to be candid. And if making a joke about lawyers would make for a more enjoyable day on the part of the people in the office, that's what we did.

FEINSTEIN: So it's fair to say you don't think that way? Is that correct?

ROBERTS: Well, I don't think in any way that is based on anything other than full equal citizenship rights on the basis of gender.

I might tell a lawyer's joke that there are too many lawyers today, but that's all it was back then.

ROBERTS: On the memo, you quoted with respect to the issue of comparable work.

The one thing the memorandum made clear is that the position of the administration was there must be equal pay for equal work. That wasn't the issue in that case. The issue there was whether there should be equal pay for different work and whether judges should determine what type of work was equal.

FEINSTEIN: I'm not arguing that. I'm just arguing what you -- or bringing to your attention what you said then. But I don't want to belabor it. I think you have answered the question.

Now, let me ask you a question on Canerino v. Wilson. This is about the same time in 1982. And you pointed out in answers to prior questions whether -- that you were staff and you generally did what people asked you to do.

In this case, William Bradford Reynolds, the top attorney in the Civil Rights Division, indicated that there had been substantial, he thought, discrimination in prisons in Kentucky and that the Justice Department had done an investigation. And they found that male prisoners were given training for higher paid jobs, for greater variety of jobs and were given training for longer periods of time.

Your memo contradicted his recommendation to intervene. Why would that be if you just follow the policy of the office?

ROBERTS: My understanding there was that there was a question -- whether intervention in that case -- the case was being pursued by private litigants already. The question whether intervention by the federal government in that case was consistent with the attorney general's approach to institutional litigation.

That was an approach that he had laid out in several speeches, memoranda. And as a staff member it was my job to call to his attention areas where I thought there may be inconsistencies in areas where he wanted to set policy priorities.

FEINSTEIN: In response to the chairman's question this morning about the right to privacy, you answered that you believed that there is an implied right to privacy in the Constitution, that it's been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning.

Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?

ROBERTS: Well, Senator, first of all, I don't necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated...

FEINSTEIN: Part of liberty, then.

ROBERTS: Yes. And the exact scope of it, with respect to the beginning of life and the end of life, those are issues that are coming before the court in both respects, and I don't think that I should go further to elaborate upon whether or not it applies in those particular situations.

FEINSTEIN: All right.

ROBERTS: Obviously, it has been articulated by the court in both contexts, in the Cruzan case with respect to the end of life, the Glucksberg case following Cruzan.

But I don't think it's appropriate for me, given the fact that cases arise on both of those questions, to go further.

FEINSTEIN: All right. Let's move right along.

This morning, there was a discussion about stare decisis. You pointed out there were factors in a consideration of stare decisis. I think one of the things you said was workability of framework is one of the main principles you look for in stare decisis.

Well, in its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case.

In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable.

FEINSTEIN: Do you agree with this conclusion?

ROBERTS: Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis. I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the court. It is a precedent on precedent. In other words, it has examined Roe and...

FEINSTEIN: So you agree that the court said that, obviously.

ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the court.

But in terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line and that's where I've drawn the line.

FEINSTEIN: So workability is clearly one thing. Is another one reliance?

ROBERTS: Certainly -- or, as it's often expressed in the court's opinions, the settled expectations. People expect that the law is going to be what the court has told them the law is going to be. And that's an important consideration.

FEINSTEIN: And in Casey, again, the court stated, and I quote, 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 and that this ability to control their reproductive lives was enough of a reliance to sustain Roe.

Correct?

ROBERTS: That's what the court concluded -- I think you're reading from the plurality opinion -- the joint opinion in the case.

FEINSTEIN: That's correct. That's correct.

Now, 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?

FEINSTEIN: Do you agree with this conclusion?

FEINSTEIN: So you agree that the court said that, obviously.

ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the court.

FEINSTEIN: So workability is clearly one thing. Is another one reliance?

FEINSTEIN: And in Casey, again, the court stated, and I quote,

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 and that this ability to control their reproductive lives was enough of a reliance to sustain Roe.

Correct?

ROBERTS: That's what the court concluded -- I think you're reading from the plurality opinion -- the joint opinion in the case.

FEINSTEIN: That's correct. That's correct.

Now, 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?

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 that the joint opinion in the court entitled to respect it 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.

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-Senator 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?

ROBERTS: That is what Casey held, yes. And 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.

FEINSTEIN: Thank you.

One other reading from Justice Ginsburg's testimony: Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred; that two strands, equality and autonomy, both figure in the full portrayal.

Do you agree or disagree?

ROBERTS: Well, I think then Justice -- then-Judge -- Ginsburg felt at greater liberty to discuss that precisely for the reason that you noted, that she had given a lecture on the subject.

Those are issues that come up again and again before the court. And, consistent with what I understand the approach to have been of other nominees, I don't think I should express a view on that.

FEINSTEIN: I'd like to move on.

FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender.

Specifically, your brief stated, quote, Unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender, end quote.

In your oral argument you went on to make this point by comparing Operation Rescue's attempts to prevent a woman from exercising her privacy right to make decisions about her pregnancy to an ecologist's efforts to block an Indian tribe from using their exclusive fishing rights.v Do you think that's an appropriate analogy?

ROBERTS: Well, Senator, it was a position and an argument that the administration made that was accepted by the Supreme Court by a vote of 6-3.

The underlying point was that under the statute at issue in Bray, the Ku Klux Klan Act, required under the Supreme Court's precedent that people engaged in the challenged activity must be motivated by a discriminatory animus.

Obviously, under the Ku Klux Klan Act, the classic case, racial hostility.

And the issue was: Are people opposed -- in the Bray case -- opposed to abortion opposed to women?

And the determination of the court was that, no, that there are people who are opposed to abortion and that does not constitute opposition or discriminatory animus against women and, therefore, that the Ku Klux Klan Act didn't apply.

Many other provisions obviously apply in a case of abortion protester violence, including state law and other provisions of federal law, but the Supreme Court concluded 6-3 that there is no discriminatory animus based on opposition to abortion.

FEINSTEIN: Thank you. I would like to move to another subject because my time is moving on. And that's what's been happening in the court in the last 10 years. As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause.

FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender.

Specifically, your brief stated, quote, Unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender, end quote.

Do you think that's an appropriate analogy?

ROBERTS: Well, Senator, it was a position and an argument that the administration made that was accepted by the Supreme Court by a vote of 6-3.

Obviously, under the Ku Klux Klan Act, the classic case, racial hostility.

And the issue was: Are people opposed -- in the Bray case -- opposed to abortion opposed to women?

FEINSTEIN: Thank you. I would like to move to another subject because my time is moving on. And that's what's been happening in the court in the last 10 years.

As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause.

FEINSTEIN: Yet, in the last decade, the court's reinterpretation of the commerce clause has been used to strike down more than three dozen cases.

The court's future decisions will determine whether the Congress will be able to take necessary action to stop child pornography, combat violent crime, ensure child support payments, prevent discrimination, improve our schools and protect our environment.

My question is, do you agree with the direction in which the Supreme Court has moved in more narrowly interpreting congressional authority to enact laws under the commerce clause?

ROBERTS: Well, of course, I've tried to avoid saying whether I agree or disagree with particular cases, but I would point out in this area in particular, I think it's very important to look at the most recent case, which is the Raich case, the medical marijuana case, because the argument was that these two decisions that you are talking about, that were the first in the 60 years, Lopez and Morrison, the argument there was based on Lopez and Morrison -- Congress lacks the power in this area.

And what the Supreme Court said in the Raich case, which I think is very important, it said there are a lot more precedents on the commerce clause besides Lopez and Morrison.

And the appropriate way to regard those is two decisions in more than 200-year sweep of decisions in which the Supreme Court has given extremely broad -- has recognized extremely broad authority on Congress's part, going all the way back to Gibbons v. Ogden and Chief Justice John Marshall when those commerce clause decisions were important in binding the nation together as a single commercial unit.

So, again, without commenting on whether particular decisions are correct or not, I do think it's important to recognize that the court itself in its most recent decision has said, you need to focus on the broad sweep and not just on those two decisions.V Let me move to the case of the hapless toad, known more commonly as Rancho Viejo v. Norton. Do you believe there's a basis for sustaining the Endangered Species Act other than the commerce clause?

ROBERTS: Well, the opinion I wrote there noted that the panel decision that I thought should be reheard en banc looked at one ground under the commerce clause, and the concluding paragraph in my opinion said that we ought to rehear the case to look at other grounds that were also under the commerce clause, but they were not the particular prong of the commerce clause analysis that the panel opinion had relied on.

ROBERTS: And the reason was that, as I explained in the opinion, another circuit court had suggested pointedly that the approach in the panel opinion was inconsistent with the Supreme Court.

And I thought, if there was another basis for sustaining the Endangered Species Act that was not inconsistent in the view of another circuit court, that we ought to look at that and try to do it.

It really reflects a restrained and minimalist approach. If there's a ground that doesn't cause another circuit court to say, you're violating the Supreme Court precedent, we ought to look at that and see if we can...

FEINSTEIN: But the point I'm trying to get at is you're saying that the fact that the toad was almost only found in California means that it was an impermissible use of the Endangered Species Act.

Well, then that raises the question, what if the toad strays across the border, or what if the toad is the last remaining toad?

ROBERTS: Right.

But the one point I would emphasize is my opinion did not conclude that there was no authority under the commerce clause in just that situation.

There was another dissenting opinion that was filed by another judge who said, this violates the commerce clause. I did not join that opinion.

I wrote separately to say that we should hear this en banc with all of the judges, because there are other ways of sustaining this act that don't implicate the concern that has caused the other circuit to question our approach, that had caused the dissenting judge to conclude there was no authority.

And I thought we ought to look at those other grounds, because if we could sustain it without implicating that objection, that would be better all around.

I did not take the position that it was outside the scope of the commerce clause. It was a question of which ground under the commerce clause we ought to look at.

FEINSTEIN: There's a great deal of concern as to what this then means for the implication for all environmental law, the Clean Water Act, the Clean Air Act. But if I understand you correctly, what you are saying is that you do not believe that the commerce clause should prohibit legislation in this area, is that correct?

ROBERTS: I have not had occasion to decide that. I did not decide it in the Rancho Viejo case.

ROBERTS: One of the other judges did, and I did not join that opinion. What I said is: We should consider these other grounds. Now, I didn't have the opportunity, because it was a dissent, from rehearing to consider those other grounds. Those other grounds were what other courts, the 5th Circuit in the GDF case, had used to sustain application of the Endangered Species Act in the cases that came before them. They didn't get into the question of whether you look at the regulated activity, the building or the actually what was prohibited, the taking of the toad; they analyzed the protection of the endangered species as implicating a commercial activity. And that allowed them to sustain the act without regard to whether it had an interstate effect itself.

FEINSTEIN: Thank you very much. I would like to ask a question or two on church and state. I mentioned in my opening statement that, for centuries, people have been persecuted for their religious beliefs. And our country grows more diverse every day, and tensions among different beliefs have grown. I really believe that there is a brilliance in what the founding fathers did in drafting the First Amendment and how it protected an individual's right to practice their belief, whatever it may be, but also protect against using religion against individuals by prohibiting the government from becoming and/or imposing religion. In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion.

And he even said, I believe in an America where the separation of church and state is absolute. My question is: Do you?

ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers' experience. Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers' experience.

FEINSTEIN: You can't answer my question yes or no?

ROBERTS: Well, I don't know what you mean by absolute separation of church and state.

For example, recently in the Ten Commandments case, the court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it. They struck down the posting of the Ten Commandments in a Kentucky courthouse.

Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?

So I don't know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.

FEINSTEIN: It has been reported that during your meeting with Senator Wyden, while discussing end-of-life issues, you cited the dissent of Justice Brandeis in Olmstead. I would like to quote from it: The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred as against the government the right to be left alone, the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. Do you agree with Justice Brandeis?

ROBERTS: I agree with his expression that it's a basic right to be left alone, and I think that animating principle is a very important one. With regard to particular restrictions he was talking about, wiretapping or -- I forget the interception actually at issue there -- you know, I don't think it's appropriate to comment on. But as a general statement of the principle -- and again, it reflects just the basic understanding that it's a free country and the right to be left alone is one of our basic rights. I do agree with that.

FEINSTEIN: I do think the implication of what you said to Senator Wyden -- and I have discussed this with him -- was that one has the right to make their end-of-life decision.

ROBERTS: Well, that's an issue that is before the court in particular cases, and I can't comment on a case that's coming before the court. If I am confirmed, I would have to confront that case with an open mind in light of the arguments presented, in light of the precedents of the court. And the litigants in those cases are entitled to have judges that haven't expressed views on that particular case.

FEINSTEIN: Well, let me ask you this question, then: In an interview on PBS after the court ruled in Washington v. Glucksberg, a case involving a state statute that banned assisted suicide, you said,

I think it's important not to have too narrow a view of protecting personal rights --what did you mean by that?

ROBERTS: Well, I went on to explain that any time there's an assertion of a right, there's quite often an assertion of a contrary right.

I think it was similar to the point Senator Kyl was making earlier, that for example, if you are asserting a right against government regulation, then the right of the people to regulate through their elected representatives that's being struck down, that right is being restricted.

So it's usually not -- it's often not we can view that there's a right on one side and there's nothing on the other side. There's often an assertion of a right on the other side.

And what the courts have to do is make sure they provide a level playing field in which people disputing the impact of the Constitution on whose right prevails have judges who will decide that case according to the rule of law and not according to whether they think one right should prevail or another.

FEINSTEIN: But do you believe, then, that the federal courts should become involved in end-of-life decisions?

ROBERTS: Well, Senator, that is exactly one of the questions that is before the court. And I cannot answer that in the abstract. I have to answer that on the basis of the parties' arguments, on the basis of the record in the case, on the basis of the precedents. An abstract opinion that would prejudge that case would be inappropriate for a nominee to express.

FEINSTEIN: Let me ask it another way. Do you believe that the courts should have a limited role in that situation?

ROBERTS: I think courts have a limited role in general, and that is that they only interpret the law. They don't make the law. They don't shape the policy.

Now the application of that basic principle, which is very important to me, in a particular case, is obviously something that has to wait for the litigation of that case, the arguments in that case, the arguments of the lawyers about whether it's consistent with the precedents or inconsistent with the precedents. But the basic principle that courts should not be shaping public policy, that's for the legislators, is a fundamental principle with which I agree.

FEINSTEIN: Thank you, Mr. Chairman.

Thank you.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Feinstein.

Since I announced the break at 4:15, I have been advised that there's a vote at 4:30. So Senator Sessions has graciously agreed to split his 30-minute round -- 15 minutes -- and then we'll go vote.

So we'll now turn to Senator Sessions for 15 minutes, and we'll break at that time and take a 15-minute break to go vote.

SESSIONS: Thank you very much, Mr. Chairman.

Judge Roberts, I want to congratulate you on your excellent testimony. You have validated the president's confidence in you. Many people said President Bush obviously looked around and looked around and finally decided to choose the best. And I think that you have proven that correctly.

The ABA has rated you unanimously, American Bar Association, in their formal rating process, unanimously rated you well-qualified, the highest possible rating that they give. And they have quite a number of lawyers that vote on that, so to get a unanimous vote is not that frequent. And for a higher office, they have a higher standard. And I think that particularly is worthwhile that you received that recognition.

I note that some of our legal professional journals have given you remarkable accolades. The American Lawyer in 2004 wrote that you were, quote, one of the Supreme Court's finest practitioners.

And the Legal Times, said, quote, you are one of the top appellate lawyers of your generation. The Legal Times also said that you are, quote, viewed by many as the best Supreme Court advocate in private law firm practice.

Those are high praises, and I think today we have seen why people would think that of you.

SESSIONS: I also would offer for the record, Mr. Chairman, a letter from former Democratic attorney general Bill Blatchley from Alabama. He prosecuted the first prosecution of the church bombing cases in Birmingham successfully. He is a lifelong Democrat as he notes, and an elected member of the state Democratic executive committee.

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

SESSIONS: He said this: Senator, I know Judge Roberts well. I have entrusted three important appellate matters to him. In each instance, I met with him and engaged him in extensive conversation upon a wide range of topics. Because he is a man of such remarkable intellectual brilliance, I sought him out upon private as well as professional topics, enjoyed more than one meal with him and was, each time, overwhelmed, not only by his intelligence but also his innate sense of fairness, by his sensitivity to every aspect and angle of consideration of every issue addressed by him and by his somber sense of decency and justice.

A somber sense of decency and justice -- pretty good phrase.

My love of my country surpasses politics, Mr. Batchly (ph) says. It compels me to support Judge Roberts in every possible way in order that justice might most effectively prevail in the United States Supreme Court. I am confident in the ability of Judge Roberts to fairly, and without any agenda of any kind, address each legal issue which comes before him. I'm equally confident of his ability to lead the Supreme Court in an administrative capacity. I have no doubt that the diverse opinions of each associate justice sitting on the United States Supreme Court will receive greater deference and consideration under his leadership than under any other chief justice with whom they have ever served. This wise and circumspect man deserves this office.

So I think we have seen a great bipartisan recognition of your capabilities and the respect that you have reaches broadly.

I also would recall, Judge Roberts, that in my opening statement I suggested that the pattern around here is to take out old statements and memorandum and bring them up out of context, and particularly the outside groups and sometimes senators would get confused, or sometimes these groups, I think, deliberately have attempted to paint a picture of you or the positions you took that are not fair or accurate.

I would just want to go over a few cases and deal with some of the issues that you have already been questioned with to make sure that we're square about it. SESSIONS: On the Gwinnett case, the Title IX, the women's education case, the position you took that would deny the right to sue a state entity, a government entity for money damages, wasn't that a position consistent with the position of the Court of Appeals that had written the only opinion on that subject?

ROBERTS: Yes.

SESSIONS: So the Supreme...

(CROSSTALK)

ROBERTS: That was the Court of Appeals' position.

SESSIONS: So you, in advocating on that position, were expressing a view that was the view of the highest federal court in the land at that time?

ROBERTS: Yes.

SESSIONS: With the question to the Grove City case, it was good that Senator Grassley -- I'm from Iowa, I knew about that. And I think he clarified that question well here.

With regard to Bolden v. City of Mobile, you and Senator Kennedy had an exchange.

Well, I'm from Mobile. I was not involved in the litigation but know something about that litigation.

And when the exchange ended, as I recall, Senator Kennedy was insisting that the Zimmer case was the established law and that a number of cases had said that effects test applied, whereas you are contending that at the time you took the position you did, that the Supreme Court had ruled that an intent standard was required and that Bolden set the decision on that.

SESSIONS: And I guess the question for us today, who was right? You or Senator Kennedy?

ROBERTS: Well, I...

SESSIONS: I didn't want to ask you, but go ahead.

ROBERTS: No, I don't know if...

SESSIONS: I see the senator has returned.

ROBERTS: It was a renewal of a debate that was had between the administration and Senator Kennedy 20-plus years ago. And certainly, the issue of whether the Supreme Court had interpreted Section 2 and what it had said and whether or not it was correct was mooted.

Senator Kennedy's position eventually prevailed as a matter of legislation. Through the good offices of Senator Dole and others, the compromise was worked out and the totality of the circumstances test enacted under Section 2.

SESSIONS: Now -- but the truth is, is it not, that Bolden v. City of Mobile had been decided by the Supreme Court, and Bolden v. City of Mobile said that you had to show, when you consider a form of a local government, that before you could throw it out, create a new government for that city, you had to show that it was designed in a way to intentionally deny equal rights to the minority citizens?

ROBERTS: That was my understanding, and certainly the administration's understanding of Mobile and its interpretation of Section 2.

And as I said, the debate was largely mooted by the legislative change that was enacted.

SESSIONS: No, I'm just trying to get this thing straight because I don't want anybody to be misinterpreted.v

Bolden v. City of Mobile quoted Zimmer. It was the final word on the matter. And it ruled that before the federal government could throw out a government of a city and require a new government to be established, there had to be an intent to discriminate. And that was consistent with the Voting Rights Act.

SESSIONS: And then when the Voting Rights Act came up for reauthorization, the legislature, the Congress, passed a law and changed the law that, in effect, said the effects test -- if it had the effect of discriminating or keeping African American citizens from being elected to office, that that could justify the removal of the existing form of government and establishing a new government.

ROBERTS: Well, that's right. And it's in many areas -- well, certainly every area involving an interpretation of the statute, the final say is not with the Supreme Court, the final say on a statute is with Congress. And if they don't like the Supreme Court's interpretation of it, they can change it. And that's what happened in this case.

SESSIONS: Well, the Voting Rights Act, let me say, is a tremendously critical historical event. It transformed the South. I think Senator Kennedy or others said that grandchildren and children today are being able to vote because of this right, and that's true. Not only are they being able to vote, they are being able to be judges who supervise elections, sheriffs, mayors, city councilmen, county commissioners. Alabama has more elected African-American officeholders than any other state in America, and we're proud of that.

But this was a powerful act, and it did change the make-up of county commissions, city commissions, statewide boards all over Alabama, all over America, and it was a big step.

But the Congress made that, and you were correct when you said that your position was consistent with what the Supreme Court ruled at that time. With regard to the question of comparable worth, I think Senator Feinstein was clear about this, but I'd like to make it a little bit clearer. You have consistently favored equal pay for equal work, have you not, and did not President Reagan also favor that explicitly and openly?

ROBERTS: Absolutely.

SESSIONS: It's the question of this comparable worth theory that apparently one district court found in favor of, but that every circuit court and every other court that considered it rejected it, that said that some body, some commission, I guess, would decide whether a secretary should be paid as much as a truck driver and make those kind of value-judgment decisions. Isn't that the difference between (inaudible) two aspects?

ROBERTS: That's right. Yes, there is no question of equal pay for equal work. It's the idea that someone should decide that different jobs are of comparable worth and that therefore they should be paid the same. And the district court adopted that approach. It was reversed by the 9th Circuit Court of Appeals in an opinion by then-Judge Anthony Kennedy.

SESSIONS: Well, that's right. I know he did write on that, and I think that the 6th, 7th, 10th and 9th Circuits all rejected that idea and, frankly, hadn't been heard from since.

I'm glad that you and President Reagan didn't agree to that at the time. We would have commissions of incredible complexity trying to decide very important matters.

The National Academy of Sciences, in fact, found that and declared it did not believe that the value or worth of jobs could be determined by fair and scientific methods.

So I think that's important.

Judge Roberts, I tried a lot of cases in federal district court. I have written appeals to the federal appellate courts and argued a few times in the Court of Appeals.

I'd like for you to help explain to us how this court system works and what an appellate judge does. I mean, appellate judges don't go about to set policy in America, they don't go out to supervise and superintend the legislative and executive branches; they decide cases that come before them.

SESSIONS: So isn't it true that, normally, a case would be initiated in a federal district court or state trial court, and a trial would be held -- often with a jury -- and a judgment is rendered?

ROBERTS: That's what most people, most of us, think of when we think of going to court. You're there, you bring in the witnesses, they testify, they're cross-examined by the other side. There is one judge supervising the trial. If it's a jury case, the jury is there.

That's where most of the fact-finding takes place. People have different versions of events. You know, who was there? What did they do? And people tell different stories. And that's where you try to sort that out, either before the jury or the single judge.

SESSIONS: And a judge has to rule. He has to rule on evidentiary matters, on legal matters. Sometimes a judge is in the midst of trial and maybe he makes an error, maybe he doesn't make an error.

But every word of that trial is put down. It's recorded. And so, after the trial, if the losing party is unhappy, they can take an appeal, and when they do that it goes to the federal Court of Appeals for that circuit, and they point out to the Court of Appeals where they think the judge made an error. And they say, This was wrong and we want a new trial judge or remittiture (ph) or some other remedy.

Isn't that what happens when...

ROBERTS: That's right. And the big difference when you get up to the Court of Appeals is that the facts are not really in play anymore. Somebody's been determined -- they think you are guilty or they buy your versions of the events.

The Court of Appeals usually just looks at the legal issues. Somebody says, The judge made a mistake. He shouldn't have let that witness testify, or, He should have recognized that the police had no authority to conduct that search in a criminal case. And that's appealed to the Court of Appeals where, in the federal system, there are three judges and they're just looking at that legal question.

And they just go back and look at the law, the precedents and determine whether or not the law was correctly applied in the trial court or if a mistake had been made and they need to do it over again.

SESSIONS: And if they appeal, the lawyers write sometimes beautiful, carefully written briefs that point out the reasons why they think an error may or may not have occurred.

Isn't that correct?

ROBERTS: As a Court of Appeals judge, that's exactly the kind of brief you are looking for, and every now and then you get one.

(LAUGHTER)

SESSIONS: And sometimes when you read the first brief you are persuaded and when you read the second brief you think maybe you weren't so -- maybe it wasn't as clear as you thought it was when you read the first one.

ROBERTS: Not just sometimes, Senator. Quite often that's my reaction.

ROBERTS: That's part of the adversary system. And you need to have lawyers doing a good job presenting the best arguments on either side, so you can feel comfortable that you're making as good a decision as you can.

SESSIONS: And so the lawyers in the case and the clients and the parties want a judge who will carefully read those briefs and be fair and careful in analyzing whether or not they've got a fair trial to ensure justice took place.

ROBERTS: That's what I was always looking for when I was a lawyer, Senator, yes.

SESSIONS: Mr. Chairman, I see the clock is going around in circles down here, I think. What do you want to do about time?

SPECTER: Well, they haven't started the vote. And we all know that that's not totally predictable, even when they say 4:30. Would you care to continue until the vote starts?

SESSIONS: I would be pleased, if the chairman would. So do you know what my time is, now?

SPECTER: You can run the red to -- well, it just went off.

SESSIONS: This is like a football referee -- put so much time back on the clock. It says a minute left. (LAUGHTER)

SPECTER: You can run the red until seven minutes and 30 seconds.

SESSIONS: All right. Very good. (LAUGHTER)

Who am I to disagree with our chairman?

SPECTER: Senator Sessions, if you would...

SESSIONS: I'll have 15 minutes after this?

SPECTER: You have 15 minutes left, yes. Start the clock back at 15 minutes.

SESSIONS: OK. Good. (CROSSTALK)

SESSIONS: Thank you. A doctor down here is good at mathematics.

(LAUGHTER)

Businessman, too.

So, now, but it's even more complicated than that in doing justice. And on the Supreme Court, if a case comes up to you, you will probably have briefs from both parties, you will receive the transcript of the trial that the issue arises from and you'll study that. And you have several law clerks who will help you study that. Every one of the nine Supreme Court justices are also studying this same record and all these briefs. Isn't it true that friends of the court can submit briefs?

ROBERTS: Well, at the Supreme Court level, that's very common. In some cases, there are quite literally hundreds of so-called friends of the court or amicus briefs. Different organizations that are interested in the particular ruling and have a particular perspective. A few of them are even helpful.

SESSIONS: So you review that, and then you frequently set the case, or normally set the case for oral argument.

ROBERTS: If the Supreme Court decides to -- this is, of course, a very big part of their function. They get some 10,000 petitions every year of people saying, I want you to hear my case. You know, all lawyers say they're going to take it all the way to the Supreme Court; 10,000 people try to do that every year. These days the court hears about 80 of those, 80 of those 10,000. And the selection of which 80 to take is obviously a big part of the court's function. But once they've selected those 80 cases, then they go in and have new briefs on the merits and all these amicus briefs are filed from different organizations presenting their arguments or their particular perspective. And then it's set for argument.

SESSIONS: So the lawyers from both sides then appear before the court, over in the Supreme Court building, and they answer questions and make their presentations as to why they think the court should rule the way they would like it to?

ROBERTS: They usually get an hour for the whole case. So each side gets a half hour and that half hour is taken up almost entirely by the justices' questions. I went back once and counted the questions during my half hour and there were over 100 questions. Obviously, some of them were rapid-fire questions. If you follow the court, you could probably guess who was asking those. And others are more elaborate questions but more than 100 in a half hour. So the job of the lawyer there is to be totally prepared to answer all of those questions. And, of course, some of them are going to lead into traps. And you have to be careful about that. Others are going to be the very difficult questions that the court is eventually going to base its decision on. But it's a very both exhilarating and demanding process to go through an oral argument before the Supreme Court.

SESSIONS: And I think there's little doubt that you are the best practitioner of it in the country. But with regard to that you then finish, and do the judges then meet in conference to discuss the case?

ROBERTS: They do. The justices, each of whom has prepared the case by not only reading all these briefs and attending the argument, talking it over with their law clerks, but also reading back over the cases, the precedents that the lawyers have been arguing about -- they go back and look at those. And then just the justices in the conference room -- no clerks, no staff, just the nine justices -- sit in the conference room and talk about it, thrash out the case.

Eventually, they get to a point where they take a vote on what they think the disposition should be. The decision should either be affirmed or reversed or sometimes something else in between -- half affirmed, half reversed, sent back, whatever.

And then the opinion is assigned, and that's still very much part of the process -- the writing of the opinion -- because, quite often, or maybe not quite often, but often enough, the justices find out that, as they try to write a particular opinion, different problems come up; it's not writing as they thought it would.

And sometimes they have to go back and revisit the case because the judge -- the justice -- assigned the opinion decides that it should come out the other way or there should be a different reason, a different basis for the decision.

And then, once the justice who is writing is comfortable with the opinion, they send it around to all of the other chambers, and the individual justices, if they agree with it, they send a memo around to everybody else that says, Please join me. That's just the jargon the justices use. It means please join my name to your opinion.

And sometimes they will have suggestions. You know, I'd be happy to join your opinion, but I disagree with this section, or I disagree with this footnote, or I disagree with this line of reasoning. If you could change that, I would be able to join. Well, if you are a justice who is getting -- this is the first reaction you have gotten, the first vote back, you might be a little more willing to make change to accommodate that suggestion.

If you've got seven votes already in the bank and somebody says, Please change this or change that, maybe you're a little less willing, because maybe then some of the others say, Well, now I'm not happy with that change.

ROBERTS: And it can obviously get to be a very complicated process as the memos fly back and forth and the court tried to come to some consensus around an opinion. Often -- maybe too often -- there is not total agreement and somebody will write a dissent and send that around and others will join that. Concurrence: I can't agree with your reason, but I agree with the result, and so I'm writing separately to give you my reasons. And the balance changes. Somebody can write a concurrence and, all of a sudden, they've got five votes and it's the majority. And the original majority becomes the concurrence. But the analysis is done -- and this has been my experience on the court of appeals as well -- a very high level. And I think it's critically important that it's just the justices alone who go into conference room, just as on my court now it's just the judges who go into their conference room because judges and justices in that situation can be a lot more open with their views. And it's been quite common in my experience over the past more than two years to have a judge say, This is how I view the case, and then another judge say, Well what about this? And the judge says, Well, I thought about that, or, The record says this. And you get out the record. You get it out there and look at it.

SESSIONS: But, at some point, you agree to sign on an opinion one way or the other. Right? And that becomes a decision of a judge and maybe the majority of the court of maybe a dissent. But that's a decision that's made. Isn't that why you should not, in this hearing today, blithely start expressing opinions on complex matters when you haven't been through that process and start prejudging matters before you've read the briefs, before you've read the transcript, before you've heard the arguments, before you've talked to your clerks, before you've discussed it with other judges? Isn't that the essence of what justice is, this careful process that leads us to as fair result as humanly possible?

ROBERTS: I think that's perfectly accurate. And, if you had the experience, as I know every judge and every justice has, of having your original view changed when you read either the other side's brief in a case after reading the opening brief, or had your view changed as a result of the discussion at conference, or had your view changed when you tried to write the opinion one way and it came out the other way, then you appreciate the significance of that process.

ROBERTS: And it's a total distortion and a perversion of that process to start out by saying, Well, I testified under oath that I thought this decision was correct. So, I'm done, you know. No need to read the briefs, no need to listen to the arguments, no need to go into conference and talk with the other judges on the bench. I have already given my view under oath. Or even if you are going to be open to reconsideration, to start with that barrier, I testified under oath that this is the correct approach, that this is the right result. Now, maybe you can persuade me otherwise. Well, that's not the burden that the litigant should have to take. The litigant should be able to know that all of the judges, all the justices that, that person is arguing before have an open mind and are fully open to the process.

SESSIONS: You wouldn't want to call Senator Biden and ask him permission to change the commitment you made, would you, in that hearing?

ROBERTS: No.

SESSIONS: Just a joke there a little bit.

(LAUGHTER) You don't want to have to read a transcript of this hearing...

(CROSSTALK)

SESSIONS: ... by the time when you try to decide how to rule on a case to make sure you didn't make some commitment.

I mean, I think that's all I wanted to -- the point I would like to make there. You know, Senator Specter came right out of the chute asking you about stare decisis and Roe and other related-type matters and that's an important question.

As I understand it, you committed to Senator Specter that you would bring no hidden agendas to this matter, that you would consider any case that came up under Roe or any other case that might impact stare decisis and that you would apply reasonable, professional analysis to that, drawing on the history of courts and their opinions in dealing with these cases and would try to make a fair and honest and objective decision.

Is that what I understood you to say?

ROBERTS: That's what I understood my testimony to be, yes, Senator.

SESSIONS: And you are not saying, one way or the other, how you would rule on Roe or some of the other cases that have been...

ROBERTS: No. I feel that it would be very inappropriate for me as a nominee to tell how I would rule on a particular case that might come before the court.

SESSIONS: Well, I would like to know how you would rule on a lot of those cases, too, but 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.

SESSIONS: 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. And I think that's most important. And I would just say I don't know the answer to those questions legally and how a law comes out, but I would just offer that our polling data continues to show that our young people and numbers in general are showing that the people are more hostile to abortion than they used to be. Perhaps it's seeing the sonograms and those kind of things, they -- 75 percent, according to a Harris survey, said that they didn't think an abortion was proper in the second trimester; 85 percent said they didn't think it was proper in the last trimester. I just saw an interesting article by Mr. Benjamin Wittes. He writes for The Washington Post. He declares he's pro-choice, and says, let go of Roe. And he goes into an analysis of it. He says -- he said, I'm not necessarily thinking Roe ought to legally be overturned, but if it does die, I won't attend its funeral. Nor would I lift a finger to prevent a conservative president from nominating a justice who might bury it once and for all. This is in Atlantic Monthly, January of this year. And he goes on to say, Roe puts liberals in the position of defending a lousy opinion. It disenfranchised millions of conservatives on an issue about which they care deeply, while freeing those conservatives from any obligation to articulate a responsible policy that might command majority support. He goes on -- as have others -- he goes on to say this, The right to an abortion remains a highly debatable position, both jurisprudentially and morally.

SESSIONS: And he also noted that, In the years since the decision, an enormous body of academic literature has tried to put the right to an abortion on firmer legal ground, but thousands of pages of scholarship notwithstanding, the right to abortion remains a constitutionally shaky proposition. Abortion policy is a question that the Constitution, even broadly construed, cannot convincingly be read to resolve.

So that's one opinion, I'm just saying, you will have to deal with. 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 -- we will 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?

ROBERTS: Absolutely, Senator.

And I would confront issues in this area, as 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.

SESSIONS: Well, I'm of the view that the Constitution is a contract with the American people, that developments will occur that clearly fit within the ambit of a fair reading of that Constitution that were never contemplated by the founders.

Things do change and we have to apply new circumstances. But wouldn't you agree a judge should never make an opinion that is beyond what a fair interpretation of the Constitution would call for?

ROBERTS: Yes.

SESSIONS: Judge Roberts, thank you for responding to my questions and to those of the other members of this body.

You have been open, honest and direct in providing a great view of your judicial philosophy and how you approach cases.

I appreciate the fact that you have correctly avoided some questions, some you should not answer. You hadn't read the briefs and heard the arguments and thought about it -- but you have carefully answered the appropriate questions, and we respect you for it.

Thank you, Mr Chairman. SPECTER: Thank you, Senator Sessions.

The vote is now in progress.

We will recess until 5:05, at which point we will call on Senator Feingold for his 30 minutes of questioning. We stand in recess.

SPECTER: The hearing will resume. Just a little late in coming back because we were on the floor trying to figure out what the Senate schedule is going to be, when we would vote next. And while that's uncertain, I believe it is reasonable to conclude that we will not vote until 7:30. That gives us latitude to move ahead with five more rounds, where we will finish at about 7:30, a little later because we're not starting quite at 5, 7:45.

So we will proceed with Senator Feingold now, and then Senator Graham from 5:30 to 6, Senator Schumer from 6 to 6:30, Senator Cornyn from 6:30 to 7, and Senator Durbin from 7 to 7:30. That's back by 15 minutes, because we're 15 slow coming out of the gate.

LEAHY: You notice the sheer, undisguised glee on the face of Judge Roberts at the idea of going another three hours of this.

SPECTER: Well, I consulted with Senator Leahy, Judge Roberts, and the empirical evidence is overwhelming, without consultation, that you're fit to go indefinitely.

ROBERTS: I'm ready to go.

SPECTER: Is that judgment satisfactory to you, Judge Roberts?

ROBERTS: Absolutely.

SPECTER: Senator Feingold?

FEINGOLD: Thank you, Mr. Chairman.

Judge Roberts, the eyes of America are on you this week thanks to what our generation called the miracle of live television. Television plays an enormous role in providing information and bringing the country together in times of national pride, like the liftoffs and the landings of spacecrafts and presidential inaugurations, political conflict, like the 2000 election, and the 1999 impeachment trial President Clinton, the great tragedy of September 11th and the devastation wrought by Hurricane Katrina.

Americans can watch virtually every significant event of nnational importance on television, except for oral arguments and announcement of decisions at the Supreme Court.

FEINGOLD: If you are confirmed, you will essentially disappear from public view. This hearing will, in some ways, be the last time that the nation will see you at work.

There is no doubt that there is enormous public interest in Supreme Court oral arguments, but not very many seats in the courthouse.

I think it would benefit the country and the court if all Americans had the chance to see the court conduct its work. So I'd like to know if you as chief justice will support televising the court's public proceedings.

ROBERTS: Senator, it's not something that I have a settled view on. And I do think it's something that I would benefit from the views of my colleagues. And I know that some of them have particular views and some may not.

And I noticed the last time there was a formal response by the court to a request to televise a particular argument, the chief justice referred the matter to the whole court and then reported back on it. I'm also aware that there are -- I'm not sure if the right word is experimental or trial efforts going on in some of the courts of appeals, the federal courts of appeals, to televise arguments there. And I know I've watched them. So I appreciate that opportunity. And I don't know yet if there's been an evaluation of how that experiment proceeded, whether the judges thought it went fine, the lawyers or whatever. I just don't know. At the Supreme Court level, I do know they've experimented recently in a few cases with releasing the audio tapes immediately after the conclusion of the argument. Again, I've listened to those on occasion. Not every case, but selected cases of particular interest. I know that on our court, my court, I'm sorry, on the Court of Appeals for the D.C. Circuit, we broadcast, at least within the courthouse, simultaneously, the oral arguments.

FEINGOLD: If you are confirmed, you will essentially disappear from public view. This hearing will, in some ways, be the last time that the nation will see you at work.

The possibility of televising trials raises some complicated issues, because we have to consider the safety and rights of criminal defendants and witnesses and jurors, but such concerns are not so present in the case of appellate proceedings. There is no doubt that there is enormous public interest in Supreme Court oral arguments, but not very many seats in the courthouse. I think it would benefit the country and the court if all Americans had the chance to see the court conduct its work. So I'd like to know if you as chief justice will support televising the court's public proceedings.

I'm also aware that there are -- I'm not sure if the right word is experimental or trial efforts going on in some of the courts of appeals, the federal courts of appeals, to televise arguments there. And I know I've watched them. So I appreciate that opportunity.

And I don't know yet if there's been an evaluation of how that experiment proceeded, whether the judges thought it went fine, the lawyers or whatever. I just don't know.

At the Supreme Court level, I do know they've experimented recently in a few cases with releasing the audio tapes immediately after the conclusion of the argument. Again, I've listened to those on occasion. Not every case, but selected cases of particular interest.

I know that on our court, my court, I'm sorry, on the Court of Appeals for the D.C. Circuit, we broadcast, at least within the courthouse, simultaneously, the oral arguments. ROBERTS: So I know the technology is there to do that. And I certainly understand the interest and I understand how -- I know it was very well-received to have the audio tapes immediately available in some of those cases.

FEINGOLD: I hope you'll seriously consider this...

ROBERTS: Certainly.

FEINGOLD: It's a change from our good conversation we had about this before. Now you will be the principle decision-maker on this as the chief justice. And I hope you'll give it serious consideration.

Judge Roberts, on September 11, 2001, obviously an event occurred that had a profound effect on all of us in this country. We all have our own memories of that day.

During those first few hours after the attacks, I kept remembering a sentence from a case we both have probably studied in law school. These words were: While the Constitution protects against invasions of individual rights, it is not a suicide pact.

I took these words as a challenge to my concerns about civil liberties at that horrible time in our history. We have to be careful not to take civil liberties so literally that we allow ourselves to be destroyed.

But then, when I actually tracked down the case itself, not remembering what case it was from, it was Kennedy v. Mendoza-Martinez, and I found that Justice Arthur Goldberg made this statement but then went on to rule in favor of the civil liberties position in this case.

He actually affirmed the importance of civil liberties in wartime.

So I would like to start this part of my questions by asking you what kind of impact that day had on you and your belief system, and whether it changed your view of the importance of individual rights and civil liberties and how they can be protected.

ROBERTS: Well, I remember the day vividly, Senator. I think I was one of the last people in the country to find out about it. I had gone into a hearing. It was actually in an original action in the Supreme Court. The special master was at G.W. Law School. And we had a hearing -- I think it was starting a little before 9:00 that day.

We went in there. I remember, just as I was leaving, getting a report that a plane had struck the World Trade Center. But it was -- at the time, I thought it was like one of those tour planes. I had no idea what they were reporting.

I went into the proceeding and we conducted the hearing. It lasted several hours. Nobody notified us and we didn't know about it.

And I remember leaving and trying to walk back to my office -- I was at the law firm then -- and the street was blocked off. And I figured: Well, there's something going on at the White House.

I remember walking down further, and it was still blocked off and still blocked off. I finally went up to one of these Guards and I said, well you know, What's going on?

And he looked at me like, Where have you been?

And only then did I begin to appreciate it. I went back to my office because there was no way to get out of town by then...

FEINGOLD: But at what point did you start thinking about the implications of this, in terms of civil liberties and the challenges this...

ROBERTS: Well, it was when I went back to the office and saw the smoke rising from the Pentagon. And, as you can imagine, that was a chilling sight. And the basic issue of how you address the question of civil liberties in wartime and times of crisis is a critically important one.

ROBERTS: The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis. There may be situations where the demands are different and they have to be analyzed appropriately so that things that might have been acceptable in times of war are not acceptable in times of peace.

I think everyone appreciates that. But the Bill of Rights is not suspended and the obligation of the courts to uphold the rule of law is not suspended.

FEINGOLD: Did you recognize at that moment that this might become a time when it would be harder to protect civil liberties?

ROBERTS: I think -- I don't recall recognizing that in particular, but that is, of course, always the challenge in times of war and in times of stress. Whatever the cause, I think it is the obligation of the courts to remember, just as within the model of the D.C. Circuit from our earliest case of the treason trial of Aaron Burr, to calmly poise the scales of justice.

And the emphasis is on calmly. It requires a certain dispassion, a certain separation from the passions of the moment.

FEINGOLD: That's absolutely right. And that's why I want to follow on what Senator Leahy asked about earlier, a different time, a different challenge.

As a nation, we can now look back at wartime Supreme Court decisions like Korematsu v. the United States with something like bewilderment. We talked about it earlier. To me, it seems inconceivable that the United States government would have decided to put huge numbers of citizens in detention centers based on their race and that the Supreme Court would have deferred to the president's decision to do so.

Do you believe that Korematsu was wrongly decided?

ROBERTS: It's one of those cases that I don't think it's technically been overruled yet. But I think it's widely recognized as not having precedential value. I do think the result in that case -- Korematsu was actually considered the exclusion, not the actual detention, but the exclusion of individuals based on their ethnic and racial background from vast areas.

And it's hard for me to comprehend the argument that that would be acceptable these days.

FEINGOLD: It's often included, if you list decisions that are sort of considered some of the worst decisions in the history of the Supreme Court with Plessy v. Ferguson and Dred Scott and others. Is that a fair characterization of your view of Korematsu?

ROBERTS: Yes.

FEINGOLD: Are there any elements of the government's response to September 11th that you think, 50 or 60 years from now, we as a nation will look back on with regret?

ROBERTS: I'm sure there are some, Senator. And when you have the benefit of 50 or 60 years to look back as opposed to the particular demands of the moment and the perceived demands, I'm sure it's a different perspective.

I hesitate to mention any in particular because so many of these issues are coming before not only the Supreme Court but the court on which I now sit. And I will have to confront those cases, I think, regardless of what happens here.

So I would hesitate to identify particular areas of concern.

FEINGOLD: I understand your caution. I don't think we need to wait 50 or 60 years for some. For example, do you have any concerns about the practice of extraordinary rendition, of our government secretly sending people to countries that we know use torture?

ROBERTS: Well, again, Senator, that is something that could come before the court in one form or another. And I think I have to refrain from commenting on it.

FEINGOLD: How about the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation, which actually in this case the Justice Department inspector general later heavily criticized? Does that trouble you?

ROBERTS: Well, yes, certainly, at a basic level of appreciating that this is a reaction in a particular way that raises serious questions. I'm very hesitant, though, again to express a view on legality because those issues could come before the court. They are coming before the court and they're coming not only for the Supreme Court but the court on which I now sit.

FEINGOLD: Let's go to one that's already come before the court. The Hamdi case is one of the most significant recent decisions restraining executive branch power.

In that case, eight members of the court found that the government had gone too far in claiming the right to detain and hold a U.S. citizen incommunicado within the United States without access to a lawyer and without charging him with a crime.

FEINGOLD: The case actually resulted in four different opinions with four different views on the president's power to detain a U.S. citizen indefinitely and without trial, ranging from Justices Souter and Ginsburg, who found that the president does not have any authority to detain citizens as enemy combatants because such detentions had not been congressionally authorized, to Justice Thomas, who would defer entirely to the executive branch.

Which of the four opinions in a case that's already been decided in Hamdi would you say best approximates your views on the executive powers to designate enemy combatants, the plurality opinion, the Souter/Ginsburg opinion, the Scalia/Stevens dissent, or the Thomas dissent?

ROBERTS: Well, Senator, that does get into the area asking me to comment on which opinions I think are correct that I don't feel it's appropriate for me to go.

I do know that the approach in this area is the approach set forth by Justice Jackson in his concurring opinion in the Youngstown case. That has set the framework for consideration of questions of executive power in times of war and with respect to foreign affairs since it was decided.

And as you know, the issue in those cases and in many of the cases in the Supreme Court is whether Congress has endorsed the executive action, in which case the president has his powers and the powers of Congress; whether Congress has prohibited the executive action, in which case all he has is whatever residual authority he has less the power of Congress; or what often happens, that vast middle area where it's impossible to tell or there's argument about whether Congress has approved the action or not.

The Dames Moore case that was decided in 1981 is an example of that when to resolve the Iranian hostage crisis, the president abrogated claims and relegated those with claims to the Iranian claims tribunal. The issue there, the court looked back at a variety of congressional enactments going way back to the Civil War to try to determine if this type of exercise of authority is something Congress endorsed or opposed.

FEINGOLD: But with regard to these opinions, and I understand your hesitance to comment on a particular opinion or the nature of the reasoning, but which of the approaches in terms of the actual finding of the opinion do you find closest to your view?

ROBERTS: Well, again, I don't remember which of those opinions follows the Youngstown analysis the most closely. My understanding of the appropriate approach in this area is that it is the Youngstown analysis, the one sent forth in Justice Jackson's concurring opinion. And I think that is the most appropriate way to flesh out the issues.

You do need to understand, because this is an area in which judges need to understand, there is often conflict between the branches. And you do need to at least set the table correctly to understand, is the president acting with congressional support, against it, or do we have to try to determine which of those areas it is. And I think you do need to lay that analysis out before deciding the case.

FEINGOLD: Last month, when I was home in Wisconsin, a constituent came up and said to me that he believed the D.C. Circuit decision in the Hamdan case, a different case, which you joined in, to uphold the government's ability to try a Guantanamo Bay detainee by military commission, should disqualify you from being on the Supreme Court.

This is apart from the issue that Senator Schumer and I wrote you about, which I'll turn to later. I want to know with regard to the substance of the decision, why do you think someone would think that your decision in that case -- why would somebody come up to me and say that your decision in that case should disqualify you from consideration as a Supreme Court justice?

ROBERTS: Well, Senator, you've touched upon an area in which I cannot comment. That case is still pending. It's pending before the Supreme Court. Under the Judicial Canons of Ethics, Canon 3A(6), I'm not supposed to comment publicly in any way about a case that's still pending.

FEINGOLD: Not asking you to comment on the case. I'm asking you why you think somebody who I represent would care enough about this issue that they would say this should be a disqualify. In other words, characterize what is the issue in the case that would make somebody that concerned that he would make such a statement.

ROBERTS: Well, the issue involves the same sort of issues that you began the discussion with, the question of civil liberties in wartime.

ROBERTS: Senator, my personal view of the Voting Rights Act is not somebody was interested in. You have people who serve on your staff, and their job is to help you implement your views as a senator.

FEINGOLD: I'm not questioning what your view was then...

ROBERTS: I'm just saying...

FEINGOLD: ... I'm asking what you think now, having -- this is pretty settled area; I think you'd agreeing -- having seen all this, having been intimately involved in it, knowing it as well as you do, do you believe that the intent test was still the more appropriate standard by which to evaluate vote dilution claims?

ROBERTS: Senator, I haven't studied the Voting Rights Act to determine whether the intent test or the effects test would have different results in different cases under section two. I'm in no position to make a judgment on that.

FEINGOLD: It would be my sense that you would be a person who would, with your enormous abilities and background, to have some sense about that. Obviously, understand that requiring a voter to prove any additional factor makes it harder for the voter to win the case and that to prove the intent of an entire legislative body can be very difficult, especially when a voting system was put in place many years ago, requiring African Americans, Latino voters, many of whom have had limited financial resources, to find evidence of intent was adding an enormous hurdle for them to overcome.

In the Mobile v. Bolden case itself, which was pursued after the Supreme Court's decision in 1980 and before Congress amended the law in 1982, makes it very clear, I think clear to all of us over the years, how difficult that standard was.

African Americans from Mobile, Alabama, had been unable to elect any candidates to the position of city commissioner for every election cycle for something like seven decades. They challenged the method of electing city commissioners that allowed the same majority to choose all the commissioners all the time in at-large elections, and the evidence was very clear that as a practical mater, although African Americans could register and vote, they couldn't elect anyone.

But to get relief under the Supreme Court standard, which you appear to have supported, they had to go to enormous effort and financial expense to prove discriminatory intent, including hiring a historian who could piece together the motivations of city officials who had designed the electoral system almost 100 years earlier.

In this situation, the administration was not bound by a Supreme Court decision in deciding what position to take on the proposed Voting Rights Act amendment. So why at that point did you want to make section two cases so difficult to prove?

ROBERTS: Senator, you keep referring to what I supported and what I wanted to do. I was a 26-year-old staff lawyer. It was my first job as a lawyer after my clerkships.

I was not shaping administration policy. The administration policy was shaped by the attorney general, on whose staff I served. It was the policy of President Reagan. It was to extend the Voting Rights Act without change for the longest period in history at that point. And it was my job to promote the attorney general's view and the president's view on that issue. And that's what I was doing.

FEINGOLD: I recognize that. What I'm trying to figure out is, given the fact that you've followed this issue for such a long time, I would think you would have a view at this point about whether you were right about -- or the department, let's say, since you were working for them -- whether the department was right on seeking to keep the intent test or whether time has shown that the effects test is really the more appropriate test.

ROBERTS: Well, Senator, I haven't followed the issue of the particular litigation. I had involvement in some litigation when I was in the Solicitor General's Office in which we were effective in proving violations under the Voting Rights Act.

Many of those cases arose under issues under Section 5 -- pre- clearance issues -- and not under Section 2. I, as a judge, had a case -- a three-judge district court case -- again arising under the pre-clearance provisions. But I'm certainly not an expert in the area and haven't followed and have no way of evaluating the relative effectiveness of the law as amended or the law as it was prior to 1982.

FEINGOLD: Well, with all respect, and I realize I should move on to another topic, but it just seems how strongly you stated some of these memos -- and I understand you were doing your job -- I would think you'd have a view today whether or not those strong statements still make sense.

But, let me move on. As you know, 42 U.S.C. 1983 is a federal law that allows Americans to sue those who deprive them of their rights under the Constitution or federal statutes.

Section 1983 is a very important law because it has enabled individual whose are deprived of their rights to such things as Medicaid, public housing, child support enforcement and public assistance to enforce those rights in federal court.

FEINGOLD: And I'm a little concerned that you seem to consistently argue for making it harder to bring Section 1983 lawsuits. In briefs you have filed, you advanced a series of arguments to effectively reverse decades of Supreme Court decisions and restrict Americans' ability to enforce federal statutory rights under Section 1983.

As deputy solicitor general, you co-authored an amicus brief and argued in front of the Supreme Court in a case called Wilder v. Virginia Hospital Association.

You said that individual Medicaid providers should not be able to sue under Section 1983 to enforce a provision of the Medicaid statute which requires states to reimburse them for services at reasonable rates.

One of the arguments you made is that in order for a statutory right to be enforceable under Section 1983, the court must find that the Congress clearly intended, quote, to authorize private enforcement of that right in federal court, unquote.

You repeated this argument in another case you later argued when you were in private practice, Gonzaga University v. Doe.

The Supreme Court rejected your arguments in Wilder and found that the Medicaid providers could sue. In the later Gonzaga case, the Supreme Court specifically rejected your argument and found that it was not necessary for plaintiffs in a 1983 case to show that Congress intended to create a private right of action to bring a lawsuit, since Section 1983 already supplies a cause of action.

What role did you play in deciding that the government would participate as amicus in the Wilder case? And what role did you play in developing the argument that it made? And did you agree with the position that the government took in the case?

ROBERTS: I'll answer the question, but before I do so, the position I advanced in the Gonzaga case prevailed.

The argument that we made on behalf of the university -- I was obviously representing the university's position -- and they prevailed before the Supreme Court.

In the Wilder case, the determination to participate as an amicus was made by the solicitor general, and I don't recall a particular role in that case. I worked on the brief; I presented the argument. We lost that case 5-4. It was a close issue.

All of these issues go to the question of what Congress intended to do. If Congress had spelled out whether or not a right should be enforceable in court, that is what the determination would be in court. These issues arise only because of confusion over whether or not Congress has spelled out that a right should be enforceable in federal court for damages or not.

ROBERTS: And in the Wilder case, the court determined 5-4 that the right should be enforceable in federal court. We were as an amicus supporting one of the states. I don't remember which one it was. And the state was making the argument that there is -- the right is -- the issue in all of these cases is whether the right should be enforceable administratively as opposed to... FEINGOLD: Excuse me, I'm about to run out of time.

Let me point out that the Supreme Court did not accept the argument that the plaintiffs had to show that Congress intended to create a private right of action.

And I'm wondering now: Do you now agree with the argument that you've consistently made, both as a government lawyer in Wilder and while in private practice in Gonzaga, that individuals should not be able to sue under Section 1983 to enforce a right unless the Supreme Court finds that Congress clearly intended to authorize private enforcement of that particular right in federal court?

ROBERTS: Well, the Gonzaga decision, which there were various arguments made in the brief, the ruling of the court was in favor of the university that I was representing.

And the determination in the Gonzaga case about what should be shown and what has to be shown is one of the precedents of the court that I would follow as any other consistent with rules of stare decisis.

That's not an area in which I have any particular view.

I've argued both sides of that issue: on behalf of plaintiffs, argued in favor of it; and on behalf of defendants, against it.

Again, the issue is not the enforceability as in Gonzaga. The issue was: Should individuals be allowed to bring suit as opposed to action by, in that case, the Department of Education?

FEINGOLD: Thank you for your answers, Judge Roberts.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Feingold. Senator Graham?

GRAHAM: Thank you, Mr. Chairman. I imagine the reason that you argued different positions is because people paid you. Is that correct?

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.

GRAHAM: 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.