Judge ROBERTS. I think, if my memory serves, that the Article III objections, and just so we're on the same page, the qui tam statutes, of course, are when a private individual brings suit on behalf of the government for fraud on the government and in return gets a percentage of the recovery. And as you noted, it's been under the False Claims Act very successful in securing recovery of funds on behalf of the government.

The Vermont case and I'm not remembering it any more than that, it was a case from Vermont-I think addressed most of the Article III issues. The objection was that individual has no standing, I think, because he doesn't necessarily have an interest, and what the Court said was that the individual has standing as a result of the bounty, if you will, the percentage he gets. That satisfies the standing requirement, so those objections are out of the way. I do know that some have raised additional objections under Article II, which goes to the fact that this might interfere with the Executive's authority to execute the law. In other words, you have private individuals bringing suit. I'm not sure that those issues have been finally resolved, and obviously, if those cases do come up, I'll want to keep an open mind.

The fact that you mentioned, obviously, about historic practice, that is something that the Court does look to in assessing constitutionality. If it's something that the Founders were familiar with or a practice that they engaged in and showed no disagreement with, that, while not determinative, that is a factor that the Court would look at. I don't know if any of those cases are going to come before the Court, but if they do, it's one of the considerations that'll have to be taken into account.

Senator GRASSLEY. Other than the Totten case and the Halper case, have you ever written or spoken publicly about the issue of the constitutionality of qui tams or any other provisions of the False Claims Act, to your memory?

Judge ROBERTS. I don't remember any, no, Senator.

Senator GRASSLEY. Okay. Judge Roberts, in 1986, while serving as an Associate White House Counsel, you approved Reagan administration testimony regarding the Whistleblower Protection Act of 1986. You probably recall that the Reagan administration opposed that legislation, which is now law. Could you explain what role, if any, you had in formulating the administration's position on the Whistleblower Protection Act?

Judge ROBERTS. I don't recall any role, Senator. Our office-the Counsel's office would routinely review testimony that was about to be given. We were just looking out for particular constitutional concerns or issues. We generally did not get into the substance. The substance of that would have been shaped over in the Justice Department and we would have really been looking out for anything that we thought infringed on the constitutional authorities of the President or presented other consistency issues. But the substance of the testimony is not something I was involved in.

Senator GRASSLEY. Do you feel that you have any bias against the False Claims Act or Whistleblower Protection Act that would impact on your ability to fairly decide cases on those statutes?

Judge ROBERTS. No, Senator. I have had some whistleblower

peals and I think in some cases, we ruled in favor and in some cases, we ruled against. So I have seen those cases and had no difficulty fairly and objectively deciding them.

Senator GRASSLEY. Are you against cameras in the courtroom like Justice Rehnquist was?

Judge ROBERTS. Well, you know, my new best friend, Senator Thompson, assures me that television cameras are nothing to be afraid of

[Laughter.]

Judge ROBERTS.-but I don't have a set view on that. I do think it's something that I would have to-I would want to listen to the views of, if I were confirmed, to my colleagues

Senator GRASSLEY. I would suggest then to the Chairman that we move quickly on that bill before he has got an opinion on it. [Laughter.]

Chairman SPECTER. I intend to do just that, Senator Grassley, now that I have your support.

Senator GRASSLEY. Thank you.

Chairman SPECTER. Thank you, Senator Grassley.
Senator Biden?

Senator BIDEN. Good morning, Judge. How are you?
Judge ROBERTS. Good morning, Senator. Fine, thanks.

Senator BIDEN. I went back and looked at something you said yesterday, which I was reminded of by my son, who has done some appellate work-nothing like you-and he said, "I thought I heard him say this," and then I went to the staff and got it.

Yesterday morning you said, "I went back once and counted the questions during my half-hour. There were over 100 questions the Court asked." So you are not all offended by us interrupting you like we do. You are used to being interrupted, aren't you?

Judge ROBERTS. I am used to being interrupted before the court, that is for sure, Senator.

[Laughter.]

Senator BIDEN. Well, we are kind of the court here. We are kind of the court. You are not entitled to the job, God love you. You have been nominated and your job is to demonstrate that there is no presumption, as you well know. So I hope you won't mind some questions. I promise I won't interrupt if you give short answers. okay?

Judge ROBERTS. I'll try, Senator.

Senator BIDEN. All right. Great. I would like to follow up on yesterday. I asked you if you agreed there was a right of privacy to be found in the Liberty Clause of the 14th Amendment and you said, and I quote, "I do, Senator. I think that the Court's expression, and I think if my reading of the press is correct, I think every Justice on the Court believes that to some extent or another." Is that correct?

Judge ROBERTS. Yes.

Senator BIDEN. Now, one of the things that has been amazingyou are one of the best witnesses that I think has come before this committee, and I have been here 30-some years-is that you have convinced the folks who share Senator Brownback's view that you are going to be just right for them, and you have convinced the

just right for them. And I think I would like to plumb a little bit more closely this notion of how you view this right of privacy.

Now, if you take a look at Justice Scalia's comment about that right to privacy found in the 14th Amendment as it related to the Casey case, he said the issue is whether abortion is a liberty protected by the Constitution of the United States. I am sure it is not because of two simple facts. The Constitution says absolutely nothing about it and the longstanding traditions, et cetera.

Then, in that same case, the quote coming from-I have got to make sure I get the right Justice here from the O'Connor, Kennedy, and Souter dissent, they said "the liberty of the woman is at stake in a sense unique to the human condition and so unique to the law. The mother who carries a child to full-term is subject to anxieties to physical constraints, and to pain that only she must bear." Her suffering is too intimate and personal for the state to insist without more upon its own version of the woman's role. Two fundamentally different views of the right to privacy as it relates to that issue.

In Cruzan, the case relating to whether or not fully competent adults have the right to refuse unwanted medical treatment, Justice Scalia said in his opinion, quote, "that the Federal court have no business in this field; that American law has always accorded the State the power to prevent, by force if necessary, suicide-including suicide by refusing to take appropriate measures necessary to preserve one's life."

Justice Kennedy, in Lawrence, as you well-I know you know all this, but I just want to try to get a sense where you are. He said, "Liberty presumes an autonomy of self that includes freedom of thought, belief, certain intimate conduct. The instant case involves liberty of a person both in its spatial and more transcendent dimensions." Obviously, fundamentally different.

And then the same goes when O'Connor said, in Cruzan “I agree that a protected liberty interest in refusing unwanted medical treatment may be inferred from our prior decisions and that the refusal of artificially delivered food and water is encompassed within that liberty interest."

So the point I am making is obvious, that there are very, very, very disparate views. Can you tell me what side you come down closer on?

Judge ROBERTS. Well, Senator, first of all—

Senator BIDEN. I am not asking you to comment on any case.

Judge ROBERTS. Well, I can say that it is my view that all of the Justices-I think if a case like the Glucksberg case in which a majority subscribe to the view, there is an appropriate mode of analysis to determine the content of the Liberty Clause and it does include protection beyond physical restraint and that that protection applies in a substantive manner.

Now, there are legal theorists, there are judges and jurists who do not agree with that, who do not agree that there is a right of privacy protected under the Due Process Clause, who do not agree that the liberty protected extends beyond freedom from physical restraint. Their view is that it means you cannot be basically imprisoned or arrested without due process and that means only that you

That is not my understanding of where the Justices on the Supreme Court are and it's not my understanding. I believe that the liberty protected by the Due Process Clause is not limited to freedom from physical restraint, that it includes certain other protections, including the right to privacy. As you know, the Court has tried to map out in a series of cases that go back to Meyer v. Nebraska and Pierce and all that and in various instances as the claims have arisen, and that it's protected not simply from procedural depravation. That is

Senator BIDEN. If I may interrupt, that is not the question I asked you. Thank you for that lesson, and I understand what you are saying. I am asking you a specific question.

Judge ROBERTS. Well, and—

Senator BIDEN. Do you side more within that context with the views of Scalia and Thomas, which say that consenting adults do not have, if they are both male or female, do not have the right to engage in sexual conduct, the State can determine that-let me put it another way.

My family faced, I am sure many people in this audience's families have faced a difficult decision of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive. It is of great moment to the American public. There is a view expressed by Justice Scalia that there is no right that is absolute on the part-or no fundamental right that exists for a family member, assuming the person is not capable of making the decision themselves, to make that judgment. He says, and I am speaking in layman's terms, he says the State legislature can make that decision.

I firmly believe, unless there is some evidence that the family is incompetent, the husband or the wife, with the advice of the doctor, should be able to make that decision. What do you think?

Judge ROBERTS. Well, Senator, that does get into an area that is coming before the Court. There is a case pending on the docket right now that raises the question of whether or not State legislatures have a prerogative to lay down rules on certain end-of-life issues

Senator BIDEN. It is suicide, isn't it, Judge?

Judge ROBERTS. Well, in that case, it's the application of the Federal Controlled Substance law.

Senator BIDEN. Right.

Judge ROBERTS. The issue of illness in those cases do come before the Court. The Glucksberg case raised a similar question. The Cruzan case that you mentioned, presented it in a very difficult context of an incompetent individual, no longer able to make a decision, and the question of how the State law should apply in that situation. Those cases do come before the Court.

Senator BIDEN. Do you think the State-just talk to me as a father. Do not talk to me-just tell me, just philosophically, what do you think? Do you think-not what the Constitution says. What do you feel? Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making a judgment, they are comatose, to prolong that life should be one that the legis

Judge ROBERTS. No, I'm not going to consider issues like that in the context as a father or a husband or anything else.

Senator BIDEN. Well, you did

Judge ROBERTS. I think

Senator BIDEN. Sorry.

Judge ROBERTS. I think, obviously, putting aside any of those considerations, these issues are the most difficult we face as people, and they are profoundly affected by views of individuality and moral views, and deeply personal views. That's obviously true as a general matter. But at the same time, the position of a judge is not to incorporate his or her personal views in deciding issues of this sort. If you're interpreting a particular statute that governs in this area, your job as a judge is to interpret and apply that according to the rule of law. If you're addressing claims of a fundamental right under the liberty, protected by the Due Process Clause, again, the view of a judge on a personal matter or a personal level is not the guide to the decision, and

Senator BIDEN. Right. Well, Judge, let me ask you then, with your permission, about your constitutional view. Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue, he does not want to continue on a life support system?

Judge ROBERTS. Well, Senator, I can't answer that question in the abstract because

Senator BIDEN. It is not abstract, that is real.

Judge ROBERTS. Well, Senator, as a legal matter it is abstract because the question would be in any particular case, is there a law that applies that governs that decision? What does the law applySenator BIDEN. That is the question, Judge.

Judge ROBERTS. Well, no.

Senator BIDEN. Can any law trump a fundamental right to die? Not to commit suicide, a right to decide "I no longer want to be hooked up to this machine, the only thing that's keeping me alive." "I no longer want to have this feeding tube in my stomach," a decision that I know I have personally made, and many people out here have made, and the idea that a State legislature could say to my mom, "Your father wants the feeding tube removed. He's asked me. The doctors heard it," and the State legislature's decided that, no, it can't be removed. Are you telling me that is even in play?

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

Senator BIDEN. That is what I want to know about because with