NOMINATION OF JOHN G. ROBERTS, JR., OF MONDAY, SEPTEMBER 12, 2005 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 12:00 p.m., in room 325, Russell Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Hatch, Grassley, Kyl, DeWine, Sessions, Graham, Cornyn, Brownback, Coburn, Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold, Schumer, and Durbin. Chairman SPECTER. Good afternoon, ladies and gentlemen. We begin these hearings on the confirmation of Judge John Roberts to be Chief Justice of the United States, with first the introduction by Judge Roberts of his beautiful family, and then a few administrative housekeeping details before we begin the opening statements, which will be 10 minutes in length by each Senator. At the conclusion of the opening statements, we will then turn to the introductions by Senator Lugar, Senator Warner, and Senator Bayh, and then the administration of the oath to Judge Roberts and to his opening statement. So, Judge Roberts, if you would at this time introduce your family, we would appreciate it. Judge ROBERTS. Thank you very much, Mr. Chairman. I am very happy to have my mother and father here, Jack and Rosemary Roberts; my sisters Kathy Godbey, Peggy Roberts, and Barbara Burke; Barbara's husband, Tim Burke, is also here; my uncle, Richard Podrasky; and representing the cousins, my cousin, Jean Podrasky. My wife, Jane, is right here front and center, with our daughter, Josephine, and our son, Jack. You will see she has a very tight grasp on Jack. [Laughter.] Chairman SPECTER. Thank you very much, Judge Roberts. Judge Roberts had expressed his appreciation to have the introductions early, said the maximum time of the children's staying power was 5 minutes, and that is certainly understandable. Thank you for doing that, Judge Roberts. And now before beginning the opening statements, let me yield to my distinguished ranking member, Senator Leahy. Senator LEAHY. Mr. Chairman, I want to thank you for all the consultations. I think we have each other's home phones on speed dial, we have talked to each other so often. And I have every cor 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 would 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. 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 power, Presidential authority, civil rights, including voting rights and affirmative action, defendants' rights, prayer, many decisions for the future, and perhaps institutional changes in the Court, looking for the day when the Court may be televised. This hearing comes at a time of turbulent partisanship in the United States Senate. Turbulent partisanship. Earlier this year, the Senate faced the possibility of a virtual meltdown, with filibusters on one side of the aisle and on the other side of the aisle the threat of the constitutional or nuclear confrontation. This Committee, with the leadership of Senator Leahy, has moved to a bipartisan approach. We had a prompt confirmation of the Attorney General. We reported out bills which have become legislation, after being stalled for many years, on bankruptcy reform and class action. We have confirmed contentious circuit court nominees. We have reported out unanimously the PATRIOT Act and, after very deliberate and complex hearings, reported out asbestos reform. So it has been quite a period for this Committee. And now we face the biggest challenge of the year, perhaps the biggest challenge of the decade, in this confirmation proceeding. I have reserved my own judgment on your nomination until the hearings are concluded, and it is my firm view that there ought not to be a political tilt to the confirmation of a Supreme Court Justice, thought to be Republican or Democratic. We all have a responsibility to ask probing questions to determine qualification beyond academic and professional standing. These hearings, in my judgment, ought to be in substantive fact and in perception for all Americans, that all Americans can feel confident that the Committee and the full Senate has done its job. There are no firmly established rules for questions and answers. I have expressed my personal view that it is not appropriate to ask a question about how the nominee would vote on a specific case, and I take that position because of the key importance of independence, that there ought not to be commitments or promises made by a nominee to secure confirmation. But Senators have the right to ask whatever questions they choose, and you, Judge Roberts, have the prerogative to answer the questions as you see fit or not to answer them as you see fit. It has been my judgment, after participating in nine-this will be the tenth for me personally-that nominees answer about as many questions as they think they have to in order to be confirmed. It is a subtle minuet, and it will be always a matter of great interest as to how we proceed. I do not intend to ask you whether you will overrule Roe v. Wade. I will ask you whether you think the Constitution has a right of privacy, and I will ask questions about precedents as they bear on Roe v. Wade. I am very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the Court. I am concerned about what I bluntly say is the denigration by the Court of Congressional authority. When the Supreme Court of the United States struck down a portion of the legislation to protect women against violence, the Court did so because of our "method of reasoning." And the dissent noted that that had carried the implication of judicial competence, and the inverse body, on fact finding-and there was an extensive record made 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 that is impossible to figure out what the law is. The Americans W Disabilities Act had a very extensive record, but when the ca came up in 2001, Garrett, a woman who had breast cancer, the S preme Court said that the section of the Act was unconstitution Four years later, in Lane v. Tennessee, you had a paraplegic cray ing up the steps access to a courtroom. The Court said that th 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 obvious 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 Eagl Forum, said that they were smart-alecky comments by a bachel 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 in triguing thought, one of many in those early memoranda, as you conceptualization power was evident, that Justices ought to be lin 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 par of a Justice or perhaps the President could make that a condition Between now and the year 2040, or in the intervening years 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. 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 rd made it olence, the ourt of the ext that cans With the case er, the Su titutional gic craw that that be iner obviously out what ay have Eagles Dachel ting on will be an in Is your be lim ermits e par dition years gain time That gue be responsive. We need the Federal Government for our protection and security; to cast a lifeline to those in distress; to mobilize vital resources, beyond the ability of any State or local government, all for the common good. The full dimensions of the disaster are not yet known. Bodies of loved ones need to be recovered, families need to be reunited, survivors need to be assisted. Long-term health risk and environmental damage have to be assessed. But if anyone needed a reminder of the need for and role of the Government, the last few days have provided it. If anyone needed a reminder of the growing poverty and despair among too many Americans, we now have it. And if anyone needed a reminder of the racial divide that remains in our Nation, no one can now doubt that we still have miles to go. I believe that the American people still want and expect and demand a Government that will help ensure justice and equal opportunity for all, and especially for those who, through no fault of their own, were born into poverty. The American people deserve a Government as good as they are with a heart as big as theirs are. We are all Americans, and all Americans should have an opportunity to earn a fair share of the bounty and blessings that America has to offer. And, Judge, we have been given a great Constitution. As you know as well as anybody here, it begins, "We the People of the United States, in Order to form a more perfect Union, establish Justice, ensure domestic Tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." It is a framework for our Government, the foundation of our rights and liberties. In fact, Vermont joined the union the same year the Bill of Rights was ratified. Those of us from the Green Mountain State, the Nation's 14th State, have historically been very protective of our fundamental rights and liberties. Many feel that we did not join the union until we were sure the Bill of Rights was going to go through. We understand the importance of the Constitution and the Bill of Rights. In these hearings we are going to be discussing constitutional issues that may seem legalistic, but they are vital issues. They affect every one of us every day. When we discuss the Constitution's Commerce Clause or Spending Power, for example, we are asking about Congressional authority to pass laws to ensure clean air and water and children's and seniors' health, safe food and drugs, safe work places, even wetland protection and levees that should protect our communities from natural disasters. Our constitutional values remain constant. We want to realize the American promise of fairness and equality and justice. The Constitution says "We the People." When the Constitution was written, though, "We the People" did not include Native Americans, or African-American slaves, but only free people. It took more than four score years and a civil war before the Constitution was amended to include all citizens, all persons born and naturalized in the United States. Even then half of the people did not have one of de |