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NOMINATION

MARYLAND,
UNITED STAT

MON

The Committee met 325, Russell Senate Of of the Committee, pres

Present: Senators S sions, Graham, Corny Biden, Kohl, Feinstein,

Chairman SPECTER. begin these hearings or be Chief Justice of

the Judge Roberts of his be tive housekeeping detai which will be 10 minute sion of the opening stat tions by Senator Lugar then the administration opening statement.

So, Judge Roberts, if ily, we would appreciate

Judge ROBERTS. Than! happy to have my mot Roberts; my sisters Kat Burke; Barbara's husban ard Podrasky; and rep Podrasky. My wife, Jane daughter, Josephine, and tight grasp on Jack.

[Laughter.]
Chairman SPECTER. Tha

Judge Roberts had exp ductions early, said the power was 5 minutes, and you for doing that,

And now before beginni to my distinguished

LEAHY. Mr. Ch. consultations. I think

dial, we have talked to each other so often. And I have every coi fidence the Chairman will conduct a fair and thorough hearing.

Less than a quarter of those of us currently serving in the Senat have exercised the Senate's advice and consent responsibility i connection with a nomination to be Chief Justice of the Unite States. I think only 23 Senators have actually been involved i that. We are fortunate that a veteran of these proceedings i chairing this.

We are at a time of great stress in our Nation because of wha has happened in New Orleans and throughout much of the Gul Coast regions. I think the hearts and prayers of certainly my Stat of Vermont but all Americans are for those people, and I woul hope that they understand that while we were having these hear ings, they are first and foremost in our thoughts and prayers. I an sure they are with you, Judge.

This is the only time we are going to find out what he is, and so it is all the more important that we have a good hearing. Again Mr. Chairman, I appreciate our meetings on this. I appreciate the meeting earlier this morning with you and Judge Roberts. I think that you have set exactly the perfect tone for a hearing of this na ture. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.

SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. Thank you very much, Senator Leahy. And now we will begin the opening statements, as I have said, of 10 minutes' duration.

This hearing, Judge Roberts, is being held in the Senate Caucus Room, which has been the site of many historic hearings, going back to 1912 with the sinking of the Titanic; 1923, Teapot Dome; 1954, Army-McCarthy; 1973, Watergate; 1987, Iran-contra; and this chamber still reverberates with the testimony of Judge Bork in 1987, and it still reverberates with the testimony of Justice Clarence Thomas and Professor Anita Hill in 1991.

This is a very unique hearing—the first one in 11 years in the Senate for a Supreme Court Justice, and the first one in 19 years for a Chief Justice. And you would be, if confirmed, the 17th Chief Justice in the history of the country and the second youngest since Chief Justice Marshall was sworn in, in 1800.

Your prospective stewardship of the Court, which could last until the year 2040, or longer--the senior Justice now is Justice Stevens, who is 85, and projecting ahead 35 years, that would take us to the year 2040 and would present a very unique opportunity for a new Chief Justice to rebuild the image of the Court away from what many believe it has become, a super-legislature, and to bring consensus to the Court with the hallmark of the Court being 5-4 decisions-a 5-4 decision this year allowing Texas to display the Ten Commandments, and a 5-4 decision turning Kentucky down from displaying the Ten Commandments; a 5-4 decision 4 years ago striking down a section of the Americans With

Disabilities Act; and last year, a 5-4 decision upholding the Americans With Disabilities Act on the same Congressional record.

Beyond your potential voice for change and consensus, your vote

3

dial, we have talked to each other so often. And I have every con fidence the Chairman will conduct a fair and thorough hearing.

Less than a quarter of those of us currently serving in the Senate have exercised the Senate's advice and consent responsibility in connection with a nomination to be Chief Justice of the United States. I think only 23 Senators have actually been involved in that. We are fortunate that a veteran of these proceedings is chairing this.

We are at a time of great stress in our Nation because of what has happened in New Orleans and throughout much of the Gulf Coast regions. I think the hearts and prayers of certainly my State of Vermont but all Americans are for those people, and I would hope that they understand that while we were having these hearings, they are first and foremost in our thoughts and prayers. I am sure they are with you, Judge.

This is the only time we are going to find out what he is, so it is all the more important that we have a good hearing. Again, Mr. Chairman, I appreciate our meetings on this. I appreciate the meeting earlier this morning with you and Judge Roberts. I think that you have set exactly the perfect tone for a hearing of this na ture. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S.

SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. Thank you very much, Senator Leahy. And now we will begin the opening statements, as I have said, of 10 minutes' duration.

This hearing, Judge Roberts, is being held in the Senate Caucus Room, which has been the site of many historic hearings, going back to 1912 with the sinking of the Titanic; 1923, Teapot Dome 1954, Army-McCarthy; 1973, Watergate; 1987, Iran-contra; and this chamber still reverberates with the testimony of Judge Bork in 1987, and it still reverberates with the testimony of Justice Clarence Thomas and Professor Anita Hill in 1991.

This is a very unique hearing the first one in 11 years in the Senate for a Supreme Court Justice, and the first one in 19 years for a Chief Justice. And you would be, if confirmed, the 17th Chiei Justice in the history of the country and the second youngest since Chief Justice Marshall was sworn in, in 1800.

Your prospective stewardship of the Court, which could last until the year 2040, or longer—the senior Justice now is Justice Stevens, who is 85, and projecting ahead 35 years, that would take us to the year 2040 and would present a very unique opportunity for a new Chief Justice to rebuild the image of the Court away from what nany believe it has become, a super-legislature, and to bring conensus to the Court with the hallmark of the Court being 5-4 deciions—a 5-4 decision this year allowing Texas to display the Ten ommandments, and a 5-4 decision turning Kentucky down from isplaying the Ten Commandments; a 5-4 decision 4 years ago riking down a section of the Americans With Disabilities Act; and st year, a 5-4 decision upholding the Americans With Disabilities ct on the same Congressional record. Beyond your potential voice for change and consensus, your vote Il be critical on many, many key issues, such as Congressional

power, Presidential authority, civ
and affirmative action, defendant
for the future, and perhaps inst
looking for the day when the Court

This hearing comes at a time United States Senate. Turbulent the Senate faced the possibility of ters on one side of the aisle and o threat of the constitutional or nu mittee, with the leadership of Sena tisan approach. We had a promp General. We reported out bills whic being stalled for many years, on b tion. We have confirmed contentia have reported out unanimously the deliberate and complex hearings, re it has been quite a period for this Co

And now we face the biggest cha biggest challenge of the decade, in have reserved my own judgment hearings are concluded, and it is my to be a political tilt to the confirmati thought to be Republican or Democ bility to ask probing questions to d academic and professional standing.

These hearings, in my judgment, and in perception for all Americans confident that the Committee and th

There are no firmly established rul I have expressed my personal view th a question about how the nominee and I take that position because of the ence, that there ought not to be comm a nominee to secure confirmation. Bu ask whatever questions they choose, a the prerogative to answer the question swer them as you see fit.

It has been my judgment, after pa: be the tenth for me personally—that many questions as they think they firmed. It is a subtle minuet, and it great interest as to how we proceed.

I do not intend to ask you whether yo I will ask you whether you think the privacy, and I will ask questions about Roe v. Wade. I am very much concern be an imbalance in the separation of po and the Court. I am concerned about denigration by the Court of Congression preme Court of the United States struci islation to protect women against viol cause of our “method of reasoning.” And had carried the implication of judicial c of that is Congressional incompetence.

body, on fact finding--and there was an extensive record mad the case, in the legislation to protect women against violence, Court simply disregarded it.

And then the issue of States' rights, the Supreme Court of United States has elevated States' rights, but in a context tha is impossible to figure out what the law is. The Americans W Disabilities Act had a very extensive record, but when the c came up in 2001, Garrett, a woman who had breast cancer, the preme Court said that the section of the Act was unconstitution Four years later, in Lane v. Tennessee, you had a paraplegic cra ing up the steps access to a courtroom. The Court said that t] was constitutional, again 5-4, on what really turned out to be in plicable decisions.

You have a very extensive paper trail, and there will obviou be questions on that subject, and we will be concerned about wh your views are today contrasted with what your views may ha been in the past. Phyllis Schlafly, the president of the Eag Forum, said that they were smart-alecky comments by a bache who did not have a whole lot of experience. So she is putting an understandable gloss on that subject. But I know that will a matter of considerable interest.

In one of your earlier memoranda, you came forward with an i triguing thought, one of many in those early memoranda, as yo conceptualization power was evident, that Justices ought to be lir ited to a 15-year term. And with that idea in play, if time permit it is something I would like to explore, voluntary action on the pa of a Justice or perhaps the President could make that a conditio

Between now and the year 2040, or in the intervening year technology will present many, many novel issues, and there, agai if time permits, I would like to explore that.

I am down to 10 seconds, and I intend to stop precisely on tim and this Committee has a record for maintaining that time. Tha is it.

(Laughter.)
Judge ROBERTS. Thank you, Mr. Chairman.

Chairman SPECTER. I now yield to my distinguished colleague
Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT Senator LEAHY. Thank you, Mr. Chairman. Thank you for the way you have conducted the whole run-up to this hearing.

A few days ago, William Rehnquist passed away. He had 33 years of service on the Supreme Court. Last week, many of us paid our respects for his service at the monumental building across the street in which he devoted himself to protecting the independence of the Federal judiciary. I know, Judge Roberts, that was a particularly difficult time for you because of your close relationship with him. But I think of the facade of that Court with its marble from Vermont, and I think of how much our State served as a refuge for the Chief Justice, especially in the summer months.

Today, the devastation and despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have

body, on fact finding--and there was an extensive record made i
the case, in the legislation to protect women against violence, the
Court simply disregarded it.

And then the issue of States' rights, the Supreme Court of the
United States has elevated States' rights, but in a context that:
is impossible to figure out what the law is. The Americans Witt
Disabilities Act had a very extensive record, but when the case
came up in 2001, Garrett, a woman who had breast cancer, the Su
preme Court said that the section of the Act was unconstitutional
Four years later, in Lane v. Tennessee, you had a paraplegic craw
ing up the steps access to a courtroom. The Court said that that
was constitutional, again 5-4, on what really turned out to be iner-
plicable decisions.

You have a very extensive paper trail, and there will obvioush be questions on that subject, and we will be concerned about what your views are today contrasted with what your views may have been in the past. Phyllis Schlafly, the president of the Eagles Forum, said that they were smart-alecky comments by a bachela who did not have a whole lot of experience. So she is putting or an understandable gloss on that subject. But I know that will be a matter of considerable interest.

In one of your earlier memoranda, you came forward with an ir triguing thought, one of many in those early memoranda, as you conceptualization power was evident, that Justices ought to be lim ited to a 15-year term. And with that idea in play, if time permits it is something I would like to explore, voluntary action on the par of a Justice or perhaps the President could make that a condition

Between now and the year 2040, or in the intervening year technology will present many, many novel issues, and there, again if time permits, I would like to explore that.

I am down to 10 seconds, and I intend to stop precisely on time. and this Committee has a record for maintaining that time. That is it.

(Laughter.)
Judge ROBERTS. Thank you, Mr. Chairman.

Chairman SPECTER. I now yield to my distinguished colleague.
Senator Leahy.
STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR

FROM THE STATE OF VERMONT
Senator LEAHY. Thank you, Mr. Chairman. Thank you for the
way you have conducted the whole run-up to this hearing.

Å few days ago, William Rehnquist passed away. He had 33 years of service on the Supreme Court. Last week, many of us paid our respects for his service at the monumental building across

the street in which he devoted himself to protecting the independence of the Federal judiciary. I know, Judge Roberts, that was a particularly difficult time for you because of your close relationship with him. But I think of the facade of that Court with its marble from Vermont, and I think of how much our State served as a refuge for the Chief Justice, especially in the summer months.

Today, the devastation and despair facing millions of our fellow Americans in the Gulf region is a tragic reminder of why we have

Federal Government and why it is critical that our Government

be responsive. We need the Feder and security; to cast a lifeline to t resources, beyond the ability of ar for the common good.

The full dimensions of the disas loved ones need to be recovered, fa vivors need to be assisted. Long mental damage have to be assessed

But if anyone needed a reminder Government, the last few days ha a reminder of the growing poverty Americans, we now have it. And i the racial divide that remains in ou that we still have miles to go.

I believe that the American peopl mand a Government that will help tunity for all, and especially for t] their own, were born into poverty.! Government as good as they are wit We are all Americans, and all Ame tunity to earn a fair share of the bo ica has to offer.

And, Judge, we have been given know as well as anybody here, it United States, in Order to form a Justice, ensure domestic Tranquili defence, promote the general WelfarLiberty to ourselves and our Posterity Constitution for the United States of for our Government, the foundation of

In fact, Vermont joined the unior Rights was ratified. Those of us fron the Nation's 14th State, have histori our fundamental rights and liberties join the union until we were sure the go through. We understand the import the Bill of Rights.

In these hearings we are going to issues that may seem legalistic, but th fect every one of us every day. When Commerce Clause or Spending Power, about Congressional authority to pass water and children's and seniors' healt work places, even wetland protection ar our communities from natural disasters

Our constitutional values remain co the American promise of fairness and Constitution says "We the People.” W written, though, "We the People" did not or African-American slaves, but only fre four score years and a civil war before th ed to include all citizens, all persons b United States. Even then half of the pec mocracy's defining rights: women were n

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