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will not share it with us, we are rolling the dice with you, Judge We are going to face decisions, you are, and the American public is going to face decisions about whether or not, as I said, patents can be issued for the creation of human life. You are going to be faced with decisions about whether or not there is a right to refuse extraordinary medical, heroic medical efforts that you do not want as an individual, and you are fully capable, mentally, of making that decision. The idea is that without a specific fact pattern before you, as keeps getting repeated here, the law is about life, it is about facts. We are not asking you—there is no fact situation before you—about whether or not a person, fully mentally capable of making a decision, chooses to say, “I no longer want this feeding tube in my stomach. Please remove it.” And whether or not that is a fundamental constitutional right.

Judge ROBERTS. Senator, that's asking me for a opinion in the abstract on a question that will come before the Court. And when that question does come before the Court, the litigants before me are entitled to have a Justice deciding their case with an open mind, based on the arguments presented, based on the precedents presented. I have told you with respect how I would go about deciding that case. It begins with the recognition that the liberty protected by the Due Process Clause does extend to matters of privacy, that it is not limited to restraints on physical freedom, and that that protection is protected—it extends in a substantive way, and not simply procedurally.

I have also explained the sources that judges look to in determining the content of that privacy protected by the Liberty Clause. They're the ones that have been spelled out in the Court's opinion, the Nation's history, traditions and practices.

And I have explained how judges apply that history, tradition and practices in light of the limited role of a judge to interpret the law and not make the law. The limited role of the judge in light of the prerogatives of the legislature.

Senator BIDEN. Judge, I understand that. Justice Scalia says the same thing, and draws a very fundamentally different conclusion, and O'Connor. So you have told me nothing, Judge. With all due respect, look, this is—it is kind of interesting, this kabuki dance we have in these hearings here, as if the public does not have a right to know what you think about fundamental issues facing them. There is no more possibility that any one of us here would be elected to the United States Senate without expressing broadly, and sometimes specifically, to our public what it is we believe. The idea that the Founders sat there and said, “Look, here's what we're going to do. We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as Senator, President or Congressman, but guess what? We're going to have a third coequal branch of Government that gets to be there for life, never, ever, ever again to be able to be asked a question they don't want to answer. And you know what? He doesn't have to tell us anything. It's okay as long as he is"as you are—"a decent, bright, honorable man. That's all we need to know. That's all we need to know."

Look, I only have 3 minutes and 45 seconds left, and by the way, questions asked by Senator Hatch and others, very specific questions to Justice Ginsburg with very specific answers on these very questions. I would like to ask for that to be submitted for the record.

Chairman SPECTER. Without objection, they will be made a part of the record.

Judge ROBERTS. Senator, could I

Senator BIDEN. I still have the floor, and I will yield to you since you can speak after the clock is out and I cannot, okay? I am sure you understand that. And I am sure if I am ever before the Supreme Court, you will give me more time and you will not interrupt me.


Senator BIDEN. Look, here is the point I want to make. I askedand I am sure you are not going to answer it-I asked Justice Ginsburg a question about footnote 6 in the Michael H. case, and the whole issue there is, as you well know, whether or not you keep talking-it sounds wonderful to the uneducated ear, the non-lawyer's ear-that you are going to look at history and tradition. You and I both know that how you determine history and tradition determines outcomes.

In that case, as you will recall, there was a question of a natural father-you could prove by a blood test and DNA that he was the natural father-of a child he wanted to see, that happened to be born to a woman who was living with her married husband, so the child was illegitimate. And so in determining whether or not there are any visitation rights, there is a famous footnote there. I am going to do this quickly, I have 2 minutes and 7 seconds.

The Court said, Scalia said in footnote 6, “Look, you go back and look at the specific historical precedent, in short-have bastards ever been protected in the law.” And then said, “No, no, no, that's not how you go back. You go back and look at fatherhood. Was fatherhood ever something that was part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?"

Now, Scalia said, “No, no, no, no, no. I looked up the record. Bastards have never been protected in English common law; therefore, there is nothing going on here.” “And, by the way, you should never go back,” he says, “and look at the general proposition has fatherhood achieved a status of consequence. No, it is ‘have bastards achieved?'”

So, Judge, how do you-I am not asking you about a case. How do you—do you look at the narrowest reading of whether or not such an asserted right has ever been protected, or do you look at it more broadly? What is the methodology you use?

Judge ROBERTS. I mean, I think you're quite right that that is quite often the critical question in these cases, the degree of generality at which you define what the tradition, the history, and the practice you're looking at. The example, I think, that I've always found it easiest to grasp was Loving v. Virginia. Do you look at the history of miscegenation statutes, or do you look at the history of marriage?

Senator BIDEN. Thirty-three seconds left. Do you agree with

Judge ROBERTS. Well, I get extra time, you said.
Senator BIDEN. I know. But I don't. I've got to get it in now.

Chairman SPECTER. Judge Roberts, when his red light goes on, you will have as much time as you want.

Judge ROBERTS. Thank you. The point is that, again, the Court has precedents on precisely that question, about how you should phrase the level of generality. And you look at

Senator BIDEN. But which precedent do you agree with? There are competing precedents.

Judge ROBERTS. Well, you do not look at the level of generality that is the issue that's being challenged. So, for example, in Loving v. Virginia, if the challenge is, it seems to me and this is what the Court's precedents say. If the challenge is to miscegenation statutes, that's not the level of generality because you're going to answer it's completely circular.

Senator BIDEN. But that is specific, Judge. The generality was the right to marry. That is the generality.

Judge ROBERTS. Well, that's what I'm saying. The dispute is do you look at it at that level of specificity or broader. And I'm saying you do not look at the narrowest level of generality, which is the statute that's being challenged, because obviously that's completely circular. You are saying there is obviously that statute that's part of the history. So you look at it at a broader level of generality.

Now, the only point I was going to make earlier–because I do think it is an important one. You make the point that we stand for election and we wouldn't be elected if we didn't tell people what we stand for. Judges don't stand for election. I'm not standing for election, and it is contrary to the role of judges in our society to say that this judge should go on the bench because these are his or her positions and those are the positions they're going to apply.

Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed. That's inconsistent with the independence and integrity of the Supreme Court.

Senator BIDEN. No one is asking for a promise.
Chairman SPECTER. Thank you very much, Senator Biden.
Senator BIDEN. Thank you. Thank you, Judge.
Judge ROBERTS. Thank you, Senator.
Chairman SPECTER. Senator Kyl?

Senator KYL. Thank you, Mr. Chairman. I think this last exchange is important because it goes back to what we talked about at the very beginning when some of us in our opening statements pledged to defend you if you stopped short of answering every question the way that every Senator felt important based upon your view that the matter in question might come before the Court, that the Canons of Judicial Ethics preclude you from doing that.

A very wise Senator on this Committee once said something. Let me quote it to you. And, by the way, I contend that he is still wise.

Senator BIDEN. I bet I am the wise one.
Senator KYL. I am sorry?

And this is what he said: "Judge, you not only have a right to

should not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms, probably over your tenure on the Court.”

Now, as I said, that was wise then. It is wise now. It is the statement of then-Chairman Joseph Biden in the Ginsburg hearings, and in all sincerity, I do believe Senator Biden to be wise, and I believe that comment is wise. It is what has animated your approach to answering probably by now hundreds of questions that have been asked of you. And you have answered every question; in some cases, however, you have stopped short of advising us on what you believe the law to be because you felt that the matter was going to come before the Court. But you did not stop there. When permitted, you expanded to tell us why you thought it was a matter that might come before the Court and what your general approach to the case would be in terms of your judicial philosophy, how you would approach judging the case, but that you did not want to talk about your view of what the law was, both because the case could come before the Court and also because it is pretty hard to formulate in a question all of the factual considerations that would permit you to know what law would be specifically applicable to that particular case. And you and I talked a little bit about the facial challenge to statutes versus the “as applied" kind of problem.

So with respect to this last interchange you had with Senator Biden-and, by the way, I will say again to compliment my colleagues, if anybody ever contended that Senators were not both diligent in pursuing what they want to pursue and also very imaginative, they should watch this hearing because we have been blessed with the most creative ways of trying to pull out of you commitments on matters on which Senators would like you to make commitments.

But as Senator Biden just said and I am paraphrasing herehe said without the knowledge of your personal views-he was talking at the time about end-of-life issues—we are rolling the dice. And your response to that, as I understand it, is: My personal views are irrelevant to a case that comes before me of Jones v. Smith, of X v. Y. What I personally think about issues has nothing to do with the resolution of the dispute between those two parties. And were I to let them intrude, I would not be doing my job as a judge—fairly taking the facts of their case and then applying the law as I understand it to be to reach a decision.

Moreover, Judge, isn't it the case that if you were to state your views on such subjects as they might pertain to a case that would come before the Court, wouldn't you actually have to recuse yourself from deciding that case and, therefore, all of the discussion, all of the effort to get you committed to a particular point of view, would be for naught, because if you expressed a particular point of view, you couldn't sit on the case anyway, or am I incorrect in that?

Judge ROBERTS. I think that's a concern that other nominees have raised in the past, particularly given the expression of views as part of the confirmation process. It's not supposed to be a bargaining process, and if you start stating views with respect to particular issues of concern to one Senator, then obviously everyone is firmed, if the bargain is successful from his or her point of view and he gets confirmed, he will have to begin each case not with the parties' briefs and arguments but with the transcript of the confirmation hearing to see what he or she swore to under oath was their view in a particular area of the law or a particular case. And I think that would undermine the independence of the Supreme Court. It would undermine the integrity of the judicial process. Every one of the Justices on the Court today, every one of them refused to engage in that type of process. And if I am to sit with them, if I am confirmed, I feel I have to follow the same approach.

Now, I do think I have been more expansive than most nominees. I have gone back and read the transcripts, and some of them would not talk about particular cases even if it were unlikely that the case was going to come before the Court. And the reason they gave was, look, it is hard to draw the line. If I think this case is not going to come before the Court, what about this one? And maybe that will. And rather than trying to draw the line, I am just not going to do it. And those Justices were confirmed.

I have taken what I think is a more pragmatic approach.

If I think an issue is not likely to come before the Court, I have told the Committee what my views on that case were, what my views on that case are. You know, perhaps that means I am init is sometimes difficult to draw the line. Perhaps that's right. But, again, if I make the judgment—and other nominees may draw the line differently, may have drawn it differently in the past or differently in the future, the nominee I think has to be comfortable with the proposition that they're not doing anything that's going to undermine the integrity of the Court.

Senator KYL. And I noted yesterday in response to a question, you said, “Well, that is the reward for trying to be more expansive." You were talking about Griswold v. Connecticut, and I thought at the time, boy, he is expressing a view on a relatively recent case, and at least issues associated with it are clearly going to come before the Court. And I wondered, Does that go too far? Does that cross the line? But your point was the specific issue in the case and the precise holding of the case are not likely in your view to come before the Court, and, therefore, you expressed your opinion about that case and the law underlying the ruling in the case.

So I would agree with you that not only have you attempted to answer every one of our questions, but you have also ventured into expressing your personal views on matters that you didn't think would come before the Court, although, as you note, it is at least possible that some of them might. So hopefully you have not gone too far there.

This I think is a great civics lesson. Some of this hearing should be encapsulated in law school courses to remind us about the difference between elected officials, who make policy, and judges, who are not supposed to make policy. I thought the questioning-I believe it was by Senator Brownback-earlier was instructive. You noted that the primary check and balance on the judiciary was its own self-restraint. Many of us believe that the Court has not exercised appropriate self-restraint in all cases, and that when it does not, it naturally generates concern expressed by the citizens of the

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