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Certainly, the Youngstown case was of that sort. It started out actually in the D.C. Court, the hearing was first there, and then the Court granted that. But the decision by a President to seize the steel mills based on—constitutionally, that's an important enough issue you want the Supreme Court to issue a final ruling on that.
On the decision in Bush v. Gore and the determination of whether to grant review in that case, again, that's not something thatyou don't know on what basis the Justices make a decision to grant review. You just get an order that says "review is granted." In that case you had a decision of a State court that apparently the Justices thought should be reviewed, and obviously, expeditious treatment was needed, as I think it was in the Youngstown case as well. They're capable of moving expeditiously when an important matter requires them to do so.
Senator KOHL. I asked you what your opinion of that decision was at that time.
Judge ROBERTS. Well, that's an area where I have not been-I have not felt free to comment, whether or not I agree with particular decisions or
Senator Kohl. It is not likely to come up again.
Judge ROBERTS. I do think that the issue about the propriety of Supreme Court review in matters of disputed electoral contests is a matter that could come up again. Obviously, the particular parameters in that case won't, but it is a very recent precedent, and that type of decision is one where I thought it inappropriate to comment on whether I think they were correct or not.
Senator KOHL. Judge Roberts, one of the most important constitutional events of our lifetime was the nomination of Robert Bork to the Supreme Court. Congress chose to exercise its role to advise, and in this case not to consent, based upon judicial philosophy and the strongly held opinions of the nominee. In effect, Congress told the President that we have an important role to play in the process as well. Do you believe that the Senate's rejection of Judge Bork in 1987 was a reasonable and respectable act, or instead do you view it as a period of unfair partisanship? What were your thoughts about that case as it unfolded?
Judge ROBERTS. Senator, I don't think it's appropriate for me as a nominee to comment on the Senate's treatment of other nominees, and I would respectfully decline to do that.
Senator KOHL. All right. Judge Roberts, when we met a few weeks ago in my office, we discussed the Supreme Court's recent property rights decision. In that case, Kelo v. the City of New London, the Court found it permissible under the Constitution for a city to seize private homes against the wishes of their owners so that a large pharmaceutical company could build a private industrial park and a research facility. A total of 15 homes were condemned, including a home lived in by an 87-year-old woman for her entire life, a home that her family had owned for over 100 years. Many people, including a majority I believe of people in my State, as well as myself, were quite disturbed by this ruling which appears to place much private property at risk by greatly expanding
We discussed this when you were in my office, and you told me that you were “surprised by the decision." So could you expand on it a bit this afternoon and explain why you were surprised?
Judge ROBERTS. Well, I did tell you that was my initial reaction. I remember hearing about the decision driving actually back from a Judicial Conference with another judge, and we all learn in law school, one of the first cases you study is called Calder v. Bull, has a basic proposition the Government cannot take property from A and give it to B. When I read the decision, I understood what the majority's position was, the difficulty of drawing a line between things that are obviously public use like a railroad, a road, things that are traditionally the subject of the exercise of eminent domain, and other activities that are not as clearly within that range of course.
Justice O'Connor, in her dissent, thought that a line could be drawn between whether it was available to the public or not, and that certainly was available. The majority did say that it was not ruling on the starkest example, in other words, just determining to take the property from A to B because you think B could make better use of it. The issue arose, as you noted in your question, in the context of an urban renewal redevelopment project, and that may be limited to that context or may not.
I do know there's been extensive legislative reaction to the decision. I know a number of States have passed laws already, saying, "We do not authorize the use of the power of eminent domain to take-for a use that's going to be from one private owner to another," and that's certainly an appropriate reaction to the Court's decision in this area.
What the Court is saying, what the majority is saying is because of the difficulty of drawing a line, this issue is really left up to the legislature, and if the legislature wants to draw the line in a particular place, it has that authority. But it certainly is a decision that was closely divided, 5–4, and it has gotten a lot of legislative reaction.
The point I would only make is that it's perhaps a good example of the fact that legislatures, legislators have a responsibility to protect the rights of the people just as much as courts, and one way they can protect the rights of the people in this area, if they think it appropriate, is to restrict themselves in saying, "We will not use the eminent domain power to the broadest extent that the Supreme Court has said we are authorized to do."
Senator KOHL. Did I understand from your opinion on whether or not that case was correctly decided, or are you not
Judge ROBERTS. No. Again, that's—particularly since it's an area they do specifically leave open the question about whether it applies outside of a redevelopment project. That's an issue that could come before the Court. It's not one I feel appropriate to comment on.
Senator KOHL. It would or it would not surprise you if we had not heard the last of that?
Judge ROBERTS. It's certainly one of those areas that could come before the Court again, even in its present form. I know the author of the majority opinion has said it was an area where he, as a percourse, the issue there was the legal issue, not policy preferences. It could come before the Court again, yes.
Senator KOHL. You will have a decision to make if it does nise up to that level. Is it possible that your decision, along with three other Justices, might be to put that on the docket?
Judge ROBERTS. That would be one of the decisions that in the exercise of the cert process, as they call it, short for the certioran decision, and that would certainly be an issue that could come before the Court, and they already have, of course, four dissenters who may be anxious to revisit it or not. I don't know. I don't want to presume how they would view it on an ongoing basis.
Senator KOHL. Judge Roberts, I would like to talk a little bit about antitrust. I am the Ranking Member on the Antitrust Subcommittee. To me, antitrust is not some mysterious legal theory that only lawyers can talk about or understand. Antitrust is just another word for fair competition. The laws that we use to protect consumers and competitors from unfair and illegal trade practice is what antitrust is all about.
Do you agree that government enforcement of antitrust law is crucial to ensuring that consumers are protected from anticompetitive practices, such as price fixing and illegal maintenance of monopolies?
Judge ROBERTS. Yes, I do, Senator. In fact, when I was in private practice, one of the cases I handled was the Microsoft antitrust case on behalf of government officials, the States in particular. A number of States retained me to argue that case before the D.C. Circuit en banc. So I certainly appreciate the role of governments, both State and Federal, in enforcing the protections of the antitrust laws, because as you know, there is concurrent authority in that area, the Sherman Act, of course, on the Federal level and then what people call the "Baby Sherman Acts" on the State level.
Senator Kohl. I am glad to hear you say that because on June 14, 1983, which is more than 20 years ago, in a memo to the White House Counsel Fred Fielding, you wrote, quote, “Enforcement of Federal rights is advanced most effectively by private suits in antitrust cases.” So isn't it often true that individual consumers don't have the resources to pursue these private suits against large corporations, and isn't that why government enforcement of antitrust is essential? So you would, perhaps, not be feeling the same way today as you did 22 years ago when you made that comment?
Judge ROBERTS. Well, I think it depends on what area you're talking about. I do think that the system established under the Sherman Act of private antitrust enforcement, and, of course, the opportunity to recover additional damages and attorneys' fees and other aspects, has been an effective tool in enforcing the law. There are areas, as you mentioned. If the issue is mostly consumer rights as opposed to business rivals, government action may be more necessary in those areas as opposed to the others.
And I know that government antitrust regulators make those determinations every day, that their resources are best directed to areas where consumers or attorneys bringing class actions on consumers' behalf, whatever the reasons were, the incentive system for
where State Attorneys General, the Justice Department, decide to get involved to supplement the private enforcement activity.
Senator KOHL. All right. I will just ask one more question before my time expires and that is on the important role that the Chief Justice plays as the head of the Judicial Conference, which is the organization of the entire Federal Judiciary. As head of the Judicial Conference, the Chief Justice makes policy recommendations as to legal reform, with respect to legal reform, reform of court procedures and advocates for the Federal courts.
What, if you are confirmed, would be your agenda, your plans, or your policy objectives to advance in connection with your role as the head of the Judicial Conference?
Judge ROBERTS. Well, I am familiar with how the Judicial Conference operates for at least part of its role. I've been on the Advisory Committee on Appellate Rules. I was there as a lawyer and I kept on as a judge. In fact, I was slated to be the Chairman of that Committee starting in October.
So I understand the role in promoting the forum of rules that apply in the Federal courts, both the appellate rules, the civil rules, criminal rules, and bankruptcy rules, and evidence rules, different committees there, and I'm familiar with the process. They go through the Advisory Committee, a broader Committee about rules in general. Then they're submitted to the Judicial Conference for consideration, and it's a very exhaustive process, but I think also a very responsive one. Particular problems are identified in practice by practitioners, by judges. They're submitted to the committees. They review them. They come up with proposals. It's a very important part of the functioning of the Federal system and it affects all the levels, not just the Supreme Court, of course, but courts of appeals and the trial courts.
Other issues of concern, obviously pressing issues, concerns with respect to security in light of different developments. Those are addressed at the Judicial Conference. Any need for legislative action that the courts feel is appropriate.
I have to tell you that if I were to be confirmed, as an initial matter, I think my primary posture is going to be one of listening because there's obviously much I have to learn about matters of concern to different judges, different courts around the country, and that's the good thing about the Judicial Conference, of course. They bring in judges from around the country to make sure that you get a national perspective on what needs to be done and you're not just focused on issues here in Washington or anywhere else.
But it's an area where I think I will have to listen a lot at the outset before being presumptuous enough to have a particular agenda.
Senator Kohl. I thank you, Judge Roberts. I thank you, Mr. Chairman.
Judge ROBERTS. Thank you, Senator.
Senator DEWINE. As you know, Judge, our Constitution created Federal courts with limited powers. In fact, Article III of the Constitution only gives the Federal courts the power to decide cases and controversies. This case and controversy requirement means that Federal courts will only hear real lawsuits involving real parties with real injuries. We have talked about this in the last sereral days.
This has led to the development of a number of different rules about when people can bring lawsuits in Federal court and when they cannot. One of these rules, as you well know, is the principle of standing.
You talked about this in 1993 in a law review article you wrote in the Duke Law Journal. You said the following, and I am going to quote briefly from this. “The legitimacy of an unelected lifetenured judiciary in our democratic republic is bolstered by the constitutional limitation of that judiciary's power in Article III to actual cases and controversies.” You went on later to state the following. “The Article III standing requirement ensures that the court is carrying out its function of deciding a case or controversy rather than fulfilling the executive's responsibility of taking care that the laws be faithfully executed," end of quote.
Judge, could you elaborate on your statements today and maybe explain briefly what the doctrine of standing is and what that doctrine is really so important to our constitutional system?
Judge ROBERTS. Well, Senator, your question really brings-ties together a few things we've already touched on.
I don't remember if it was you or someone else who referenced Justice White's description of his obligation, what it was, and his answer was, “To decide cases."
Senator DEWINE. That was me.
Judge ROBERTS. And the basis for the institution of judicial review, as explained by Chief Justice John Marshall in Marbury v Madison is similarly grounded on the obligation to decide cases and controversies, because if you look at the Constitution it doesn't say in Article III that the judicial branch is established in order to tell us all what the Constitution means. It says that the judicial branch is established to decide cases and controversies arising under this Constitution and the laws.
And that is the basis for the authority to interpret the Constitution. As Marshall explained, we have to decide a case. If the argument is that it's inconsistent with the Constitution, we have to decide that. Therefore, we have that authority, and I believe that's consistent with the intent of the Framers.
But it does mean—and this is the point I was trying to make in that small little Law Review comment--that judges should be very careful to make sure they've got a real case or controversy before them, because that is the sole basis for the legitimacy of them acting in the manner they do in a democratic republic. They're not accountable to the people. As judges they have the obligation to decide cases according to the rule of law.
So first make sure you've got a real case, and a real case is not simply, you know, I'm interested in this area, I don't like what the Government's doing or I don't like this law, and so I'm going to go