we do express that concern. I think the Court has failed to exercise appropriate restraint in several matters.

One of the things that appeals to me from your approach to the law is that it appears to be a very traditional approach, which is that I am not sent there to make law, I am sent there to take whatever case comes before us and just decide the case. And that element of self-restraint and modesty is one which I think should be more the rule than it is today in courts at all levels. And I would commend that philosophy to all of the judges.

I think you have expressed it very well, and while I appreciate my colleagues' desire to try to draw you out on your personal views about matters, I think you have drawn the line at an appropriate place. And you have certainly provided us with a great deal of information in the process-and, again, partly because you have explained to us, when you could not completely satisfy a Senator's curiosity, why that was the case, but still tried to inform us about the basic issues that might exist in the case, the basic arguments that would be made on either side, but without giving us a hint as to which one of those you thought you might come down on the side of.

And I also think it is important that you have totally eschewed ideology here, saying that your own personal views or ideology do not have a place in your decisionmaking, and, therefore, they are pretty irrelevant to the questions that are asked here.

I have a whole notebook of questions here that, to one extent or another, have been dealt with, I think, by my colleagues. And I do not think it serves a purpose to go over them again. Let me just conclude with kind of a general comment, but before I do, just try to correct the record on-not necessarily correct, but add to the record on one very narrow point. You were discussing, I believe with Senator Kennedy, the Herrera v. Collins case, and he talked about innocence claims being heard by the Court, that a prisoner should have the right to present innocence claims.

I just wanted to ask you: Is it not the case that in Herrera v. Collins the Court did not address the proper route for bringing claims based on newly discovered forensic evidence such as DNA testing? Which is, of course, a relatively new phenomenon now, but not the issue presented in that case.

Judge ROBERTS. That's right. There wasn't-I don't know if they had as much access to that type of evidence back then when it was argued, but it was certainly not that type of evidence. It was a new claim that somebody else did it, somebody who had just died. That was the new claim that they sought to raise at the last stage there. And I do think any issue arising with respect to DNA evidenceand those issues are working their way up through the Court. Those cases would have to be addressed on their own terms.

Senator KYL. Thank you.

Well, let me conclude with this point. Some who are watching might come to the conclusion that there is a lot of repetition here, and that to some extent there is a lot of "Senator talk" expressing concern to you about different issues that are important to them. Frankly, I think this is a once-in-a-lifetime opportunity. It is the only time that, before you take your position on the Court, you will

in an appropriate way. We reflect the views of our constituents, and we have all got different issues on our minds. And there isn't a one of them that is not a legitimate issue or concern. I brought up the matter of applying foreign law to American decisions on our Constitution, for example.

To me it seems appropriate that you hear from us, the political branch, concerns that we have about the way that the Court approaches its job. We may be right, we may be wrong. But it is important for you to hear that. I know that Justices read the newspapers and so on. But this is a very good forum to have us express to you concerns that we have about various issues. And we would not be talking about them if we did not think that they would come before the Court. So, in a sense, virtually everything we are talking about, we are trying in some way to get a point across to you because we believe it is likely to be decided by you.

And I think that is fine. You need to hear from us what our concerns are, even though perhaps we are trying to draw you out in areas that you obviously cannot be drawn out in with respect to future cases.

It is also important for us to get the feedback from you. There will not be very many other times that we will have a group of Senators sit down with the person that will likely be the Chief Justice of the Supreme Court and have a legal conversation.

We will have to talk about matters relating to Court administration. That will be totally appropriate, and I am sure we will be doing that. But by and large, this is the only chance we have to have this kind of an interchange with you.

It is illuminating to me, as a student of constitutional law and someone who has practiced before the Court. I have learned a lot. Therefore, to those on the outside saying, well, it looks like a lot of Senators posturing, if they are listening very closely to your answers, I think they will find a great deal of meat, of knowledge, of the application of your wisdom to how you approach judging, and I find it very consistent with the traditions of our court and the rule of law in our country and this, therefore, becomes a very good reminder of what our rule of law is all about, what judging is based on, and the interrelationship between the representative bodies of our government and the third branch, which you represent.

I think this is all very instructive, very informative, and in my case, at least, with regard to your testimony, very comforting, because it seems to me that you are following the great tradition of the Court in your approach to the law, that you are careful, that you are cautious, and yet you are willing to look at the circumstances of our contemporary times in applying your judgment to the law that is before you.

Because I have that confidence, it is my intention to support your nomination, and because I think it unnecessary to delve into any other specific questions, I will yield back the remaining 5 minutes of my time.

Senator BIDEN. Mr. Chairman?

Chairman SPECTER. Senator Biden?

Senator BIDEN. A point of personal privilege, as we say in this

Senator KYL. On my time, since I had 5 minutes and I referred to Senator Biden. Please, take my time.

Senator BIDEN. Thank you. I have been quoted many times about what I said to Justice Ginsburg. With the permission of the Chairman, I will just take a second. I would like to read my whole quote, if I may, and then submit it all for the record.

Chairman SPECTER. Senator Biden, you may do that. You can even have more time. Senator Kyl has given—

Senator BIDEN. No, no, I don't want to use the time. Let me just say, here is what else I said. I said, "Now, I would hope, as I said to you very briefly, that the way in which you outline the circumstance under which you would reply and not reply, that you will not make a blanket refusal to comment on things because obviously everything we could ask you is bound to come before the Court. There is not a controversial issue in this country that does not have a prospect of coming before the Court."

Continuing, "[I]f a nominee, although it is their right, does not answer questions that don't go to what they would decide but how they would decide, I will vote against that nominee regardless of who it is," this is continuing the quote, "And you can thank Justice Scalia for that."

At the close of the testimony, I said, "I would also point out that my concerns about you not answering questions have been met. You have answered my questions the second day and third day. At least from my perspective, you have been as forthcoming as any recent witness we have had." I submit the entire statement for the record along with the answers to her questions from Senator Hatch, you, and others.

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

Senator BIDEN. I thank the Chairman for his courtesy and I thank the witness for listening.

Chairman SPECTER. It is now 12:30 and a vote, two votes have been scheduled at this time, so we will take a lunch recess until 1:45, a quarter of 2:00.

[Whereupon, at 12:30 p.m., the Committee recessed to reconvene at 1:45 p.m., this same day.]

AFTERNOON SESSION [1:46 p.m.]

Chairman SPECTER. The Committee will resume.

Senator Kohl, 20 minutes.

Senator KOHL. Judge Roberts.

Judge ROBERTS. Senator.

Senator KOHL. We spent quite a bit of time yesterday discussing how you would decide cases, and as we all know, it is your view that Supreme Court Justices are umpires who are neutrally deciding cases. I want to discuss with you another area where I believe your analogy falls somewhat short.

The Supreme Court not only, as you know, has the power to decide cases and to construe the Constitution, but it also has the sole and the absolute power to decide which cases it hears, which cases it decides, which parties get to be heard, and which parties do not get to be heard. So if you are confirmed, you will get to choose which cases will be placed on the Supreme Court's docket with the

this choice, your opinions, your perspectives, and your life experiences obviously matter quite a bit. Much more than an umpire calling balls and strikes, you are in that sense a manager who is really setting the field with players to decide what the menu is going to be like.

So this power is really quite important, and it is crucial and it is important that we understand that when we look at your role in terms of your own description.

In recent times, the Supreme Court has received appeals in nearly 7,000 cases a year, and as you know, in recent times, the Supreme Court has heard only about 80 cases a year. In other words, the Justices choose to hear only about 1 percent of the appeals that they receive.

My question for you, Judge Roberts, is: Should you be confirmed. how will you decide which cases will make the cut and will be heard by the Supreme Court? And what will guide your complete discretion to choose which cases to hear?

Judge ROBERTS. I appreciate the question, Senator. It is an area where I will happily concede that the Justices are not acting just like umpires in deciding which cases they're going to hear as opposed to how they're going to decide them. My perspective has changed a little bit in this area. Certainly when I was practicing law, a lot of what I spent my time trying to do was get the Supreme Court to take a case. As you know, you file these things called petitions for certiorari, which are really quite extensive arguments about why the Court should hear your case, having really not that much to do with the merits, whether it was right or wrong, but just why the Court needs to issue an opinion in this area. And I thought they weren't taking enough cases. When I became a court of appeals judge, I thought you didn't need to have more cases taken up for review.

But the considerations, some are pretty well established. The job of the Supreme Court is to ensure the uniformity and consistency of Federal law, in particular, interpretations of the Constitution. So the clearest case that the Court should hear, they should grant certiorari on, as they say, is when two different courts of appeals are interpreting a law differently. Obviously, the law should mean the same thing in every part of the country, and if two different courts take a different view of the law, that's the kind of case the Court ought to be taking.

I think the Court should, as a general matter—and, again, other Justices have expressed this view as well-grant review in cases in which a lower court strikes down an Act of Congress. I don't think that's an absolute rule, but certainly as a general matter, if an Act of Congress is going to be declared unconstitutional, I think the Supreme Court ought to be the one determining that as a final matter, and generally not leave it to a court of appeals.

So those are two categories: when there is a conflict, when an Act is found to be unconstitutional.

Beyond that-and this is where I agree with you the umpire analogy does not hold up-there is a lot of discretion in deciding whether it is the right time to grant review in a case. The people who practice before the Court talk about the Court letting an issue

decisions from the courts of appeals, wait until others have had a chance to weigh in. The theory is that makes it more likely the Supreme Court will get it right if they have the benefit of several decisions from the lower courts rather than just one. Other cases the Justices determine that that's not appropriate. It's not appropriate to wait until the issue develops a little more; they want to look at it expeditiously. And it's hard to lay down categorical rules in that

area.

I have expressed the view-and it may be a view that I'll have to be educated on further if I am confirmed, and I am not stating it as a solid view. I do think there is room for the Court to take more cases. They hear about half the number of cases they did 25 years ago. There may be good reasons for that that I will learn if I am confirmed, but just looking at it from the outside, I think they could contribute more to the clarity and uniformity of the law by taking more cases.

I have heard others say they could contribute to the clarity and uniformity of the law by taking fewer cases, but I don't subscribe to that view. I think there is room for additional cases on the docket.

Senator KOHL. I think we agree that it is an enormous power, that power of decision. It is a very active power. It is not benign in any way. If Justices, for example, decide not to hear a case, whatever the merits, that is the final decision. Is that not correct? Judge ROBERTS. That's right. The decision of the court of appeals stands in that case. Now, it is true that I think the Justices generally look at their duty and obligation to ensure consistency in a fairly dispassionate and objective way. In other words, it doesn't matter how a particular case came out. If it's different in one part of the country than another, most of the Justices in my experience readily agree that that's the kind of case they need to address.

Senator KOHL. I will just refer to two that were taken up without any reference from any lower court. One was Youngstown Sheet and Tube, which was, you know, the ability of the Government to seize a steel mill during a time of war. And, of course, another one that I'm interested in your comment on is Bush v. Gore, in which the Court decided to directly insert itself into a Presidential campaign. I am interested in not what happened after they decided to do that, but that the decision they made in terms of its propriety, its impact on the courts, the Court's standing in the country, you must have thought about it, I am sure, a great deal when it happened.

I am sure you have an opinion on their decision to enter that case, and I think we would like to know what that opinion is.

Judge ROBERTS. You mentioned first the Youngstown case, and it is a category-and I think perhaps the Bush v. Gore case, that perhaps the Justices concluded it fell into that category. There are certain cases-they don't come along all that often-that are, by their importance, significant enough for the Court to take. In other words, they don't fit the description of a conflict among the Courts of Appeals or an Act of Congress held unconstitutional, but they are otherwise sufficiently important that the Court will grant re