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be injured by what the Government is doing, injured by Congress's action. Now, the injury doesn't have to be economic. The Supreme Court has explained in cases like Sierra Club v. Morton, it can be aesthetic, it can be environmental, it can cover a wide range of injuries, but you do have to show some injury that separates you from the general public, so you're just not voicing a gripe, you're trying to get a case decided. That's the importance of the standing doctrine.
Senator DEWINE. Appreciate the explanation, Judge. Let me ask you a more personal question. Last time you appeared before our Committee you were a lawyer in private practice. Since that time you have spent approximately 2 years on the Court of Appeals for the District of Columbia, a new experience for even a experienced practitioner like you. What surprised you about the last 2 years of judging? Judge ROBERTS. WellSenator DE WINE. If anything.
Judge ROBERTS. Well, I think I had the biggest surprise on the first day that I heard cases. Obviously, it's opening day and the first day of my career, so I prepared as well as I could. And the arguments were great. And went into the conference room, and I had my notes and all the books. It's just the judges, you know, just the three judges. We bring the record in. We're surrounded by the U.S. reports, by our Court of Appeals reports, by the United States Code that you folks have written.
And I was ready. I'm sitting there, and I remember the Chief Judge, who by tradition sits on a new judge's first day, and he was there and another judge. And I waited a while, and I looked and they were still waiting. I waited a while longer, and they were still waiting. And finally, the Chief Judge advised me that the tradition was that the junior judge goes first at these discussions, and so I was kind of put on the spot right off the bat.
And part of what that conference was like and throughout, really has—I don't know if I'd say a surprise, but it's been illuminating to me. The judges really do roll up their sleeves and try to find the right answer. It's just the judges. But as we say, “Well, we think this case is controlled by the Smith case,” we get out the Smith case. We open it up and look at it, reading over each other's shoulders and seeing exactly what it says. If somebody says, “Well, but in this case under the record there was no evidence about this or there was no objection raised about that,” well, you get out the record and you look, and there at page 223, you point to it and say, "Well, here's where the objection was raised.
And the judges are very open. It's a very encouraging part of the process from my point of view. Nobody goes in there with set views. They want the benefit of the collegial process, the benefit of each other's views, and you have to be able to substantiate your position. There's no place for rhetoric. People are pointing to the law, and I found that a very encouraging part of the process, what goes on in the conference room, which was of course a part of the process that I hadn't participated in before.
Senator DEWINE. That is something that we do not see either. Judge ROBERTS. Right.
Judge ROBERTS. Right. And the positive part of that process to me was that nobody was invested in anything other than getting the right result, and they are prepared to be convinced, contrary to initial impressions, and I was as well. It's, I found, a very encouraging part of the process.
Senator DEWINE. Judge, let me ask you-moving to the administrative law issue. As you know, in the 18th and 19th centuries we really did not have the governmental agencies that have such a profound influence, for better or worse, on the lives of Americans today, daily lives of Americans. Today administrative agencies set workplace safety rules, establish environmental regulations, lay down traffic safety standards, just to name a few things.
As far as I know there is no specific article in the Constitution dedicated to the administrative state that we live in today. In your view, what is there in the text or history of the Constitution that supports the growth of this administrative state that we live in? Is the growth of the administrative state an example of the Constitution being amended simply out of necessity, or is the administrative state consistent with the Constitution as drafted by our Founding Fathers? How do we get to where we are from a constitutional point of view?
Judge ROBERTS. Well, you know, we all of course begin in high school civics with the notion of three branches of Government, the executive, the legislative and the judicial, and we study that. And then only occasionally do people look at the real world and say, "Well, what is this agency? What is that? Is that legislative or is that judicial or is that executive?” Of course, the answer is, well, it's a little bit of each. It's exercising power delegated by Congress. It's executing it in a particular way. It's issuing regulations that have the force and effect of law, and quite often it's adjudicating particular disputes.
The activities of the administrative agencies are of course the bulk of what judges on the Court of Appeals for the D.C. Circuit do, and the principles of administrative law that have recognized the legitimacy of these agencies, and sought to ensure that their exercise of authority is consistent with constitutional provisions by basically—I mean I know the issue can seem arcane to many people, but the fundamentals of administrative law really go back to the basic principles of justice, is someone being given an opportunity to be heard? Is someone being treated fairly? Is someone who's making a decision doing it for a rational reason or an arbitrary reason?
These are the same basic principles that have animated the common law system since the time of Lord Cook, and they are being applied here as well. The objection is often, “This agency made a decision without adequately hearing our concerns,” or “This agency made an adjudicatory decision without hearing the record evi. dence," or "They did not explain.” That's the basic requirement of administrative law, explain your decision. That's the limitation on arbitrariness, and the agency didn't explain why it's doing this.
The notion that even in these arcane areas our legal system insists upon the observance of these basic requirements of—I don't want to say due process as a technical term, but that's the printhese agencies have been accepted into the constitutional system, because they have been required under principles of administrative law to comply with these basic precepts of procedural regularity.
Senator DEWINE. Judge, let me turn to the area of antitrust, a matter that is very important for the businesses and the consumers of this country. For over 100 years our antitrust laws have helped consumers by ensuring their economy is competitive and vibrant. Our antitrust laws are the oldest in the world, and many people, including me, think they are the best in the world. In fact, I am proud to say that John Sherman, Republican Senator from my own home State of Ohio, wrote the first antitrust law back in 1890.
Over the past 20 years we have achieved a great deal of consensus I think about how the antitrust laws should be enforced, Democrat and Republican administrations. As the Chair of this Committee's Subcommittee on Antitrust, Competition, Policy and Consumer Rights, I have worked very closely with Senator Kohl who asked you some questions about antitrust. I think we have worked in a bipartisan way to ensure that consumers and competition are protected.
It is a simple goal, but it is not always easy to achieve or put into practice. For example, recently, the rise and expansion of the Internet and the technological explosion of the so-called new economy have led to a marketplace that is changing faster and more often than we have really ever experienced before.
Judge, what challenges do you think the courts face in trying to square our old antitrust laws as they are currently written with new business strategies and the high-technology markets, and do you think that these laws give courts enough guidance to deal with these new economy issues?
Judge ROBERTS. Well, that was really the basic issue that I faced in the Microsoft case before the D.C. Circuit en banc. There was a lot of argument, academic commentary back and forth, the idea this is a whole new area. You can't apply the old principles. They don't work in this context. You need to do something different, the so-called new paradigm and all that.
At least the argument that I tried to make on behalf of the States was that the basic principles are the same. The Sherman Act was, as many have said, a charter of economic freedom and that those basic principles do have to be applied regardless of changes in the economics of the underlying businesses or the structure of the markets. Obviously, it requires a great deal of sensitivity on the part of the judges and it's a really challenge for the lawyers sometimes to be able to understand the economics, to be able to explain them to the judges, and judges appreciate that.
But my basic instinct, and it's nothing more than that, is that the principles are there and the issue is simply application in a new context.
Senator DEWINE. Good. Thank you. Judge, just one final comment. Yesterday, Senator Grassley asked you whether you think that there is, and I quote, “any room in constitutional interpretation for the judge's own values or beliefs.” In response, you said, and I quote, "No, I don't think there is. Sometimes it's hard to give look to your own values and beliefs. You look outside yourself to other sources,” end of quote.
You continued by saying that, and I quote, “Judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision,” end of quote.
Now, Judge, I know what you meant by that answer. Judges should not impose their own preferences from the bench. In fact, I said pretty much the same thing in my opening statement on Monday.
But, Judge, putting on a black robe does not mean that a judge should lose his character. You, sir, have a perfect resume and certainly an outstanding professional career. But a Supreme Court Justice is more than just impeccable academic credentials and impressive accomplishments. President Bush nominated John Roberts, the man. America has gotten to know John Roberts, the man And I am quite sure that the Senate is, in fact, going to confirm John Roberts, the man.
Over the past several months, we have examined your life, met with you in private, and now question you about your beliefs. Throughout this time, your honesty, your integrity, your wisdom, your judgment, and dare I say, yes, your values have shown through.
I would just say, sir, please don't check any of that at the door when you walk into the Supreme Court. By becoming John Roberts, the Chief Justice, don't ever forget to be John Roberts, the man.
I think this country needs you to remember how you got here and who you met along the way. We need you to bring to the Court your compassion and your understanding for the lives of others who haven't been as successful as you have been. We need you to bring to the Court your strong commitment to equal justice for all. And we need you to always remember that your decisions will make a real difference in the lives of real people.
When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul, the values you learned from your parents and others that you learned as you grew up in the wide open fields of your youth. Those values are strong, they are true. The President saw them when he nominated you and we have certainly seen them this week, and I must say, sir, that they must never leave you.
Justice Felix Frankfurter gave this same advice to his colleagues in 1949. “There comes a point,” Justice Frankfurter wrote, “where this Court should not be ignorant as judges of what we know as men.”
Great Justices are more than just legal automatons, legal technicians. They are more than just that. And though they lose their individuality when they put on a black robe, great Justices never forget who they are. I wish you well. Thank you, sir.
Judge ROBERTS. Thank you, Senator.
Judge, I subscribe to much of what Senator De Wine said. I want to tell you what I think perhaps a little differently and personally.
Senator Graham last night pointed out that Justice Scalia was confirmed by 98 votes of this body, and I thought then and I think now of how different the days were in 1986. There is so much water under the dam since then. The nation is divided. It is polarized. It is about 50–50. We are at war. Executive authority is very much on people's minds. The law as it relates to war, the Geneva Conventions, Conventions Against Torture, all of these things are very much on everyone's minds. We have seen in the last 10 years 193 five-to-four decisions of the Court, which suggests that on major questions, the Court is also very divided.
So in comes this young Justice. I was one on our side who voted for you for the D.C. Circuit Court. I did so because there were so many testimonials about what a fine lawyer you are, what a fine human being you are. And I voted for you, but there is more in this vote.
Senator DeWine just spoke about the man as opposed to the legal automaton. Yesterday morning, you spoke, I thought eloquently, in answering Senator Specter's questions on Roe. You discussed stare decisis as fully as I have ever heard it discussed. I am not a lawyer. I learned a lot from listening to you. You discussed the right to privacy. You were very full and forward speaking. And then after lunch, it was as if you shut down and became very cautious.
So my first question, did anybody caution you between the morning and the afternoon sessions?
Judge ROBERTS. No, Senator. No.
Senator FEINSTEIN. Has anyone, when you were being interviewed for this position, ever asked your opinion on Roe?
Judge ROBERTS. No.
Senator FEINSTEIN. Okay. That is good to know. From 1973 to 2005, 32 years, over three generations of women have come really to feel that finally they have some autonomy over their body. Women are all different. Many of them are very pro-life. Many are pro-choice. People have different religious views, moral views, so we have this big diverse population of women. The growth of women's ability to succeed has been enormous, I mean, I went into the workforce at the same time Sandra Day O'Connor did with a year's graduate work. The door was closed. It is now open and women are so lucky.
And it seems to me that the living Constitution is that each person in this great country, man or woman, rich or poor, white or black, whatever it might be, can really reach their full potential. And I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I have heard so many times, “I can't really say because it may come before me,” and yet I don't expect you to say what you would do with Roe one way or another.
But I do expect to know a little bit more about how you feel and how you think as a man, because you are a very young man to be Chief Justice. You could be Chief Justice for 40 years. That is a