know what you think, not what you think I want you to think, so I can make a fair judgment as to how to vote for you. And I think that is probably true of every single member here.

And, by the way, since you are before all of us, if you try to earn one person's vote, you might lose another person's vote. So you may as well just say what you think and not try to do any bartering. And I am sure that is how you think, too, but I don't think that is a fair argument in terms of why people won't answer questions about decided cases or about anything else. That would apply to every question you are asked that you might-we may as well not have hearings if the only reason was for you to try and twist yourself in a pretzel to please everybody here.

As I have said, I would like to vote for you. To me, as I said in my opening statement, the test is: Are you a mainstream person, conservative mainstream but mainstream, or an ideologue? Now, this is my view, and I am not going to ask you yours. I think there are a couple of ideologues, too, on the Court who want to use the law to change America dramatically in their vision. And so I am going to try a few other ways to try and figure out who you are so I feel comfortable with it.

Justice Rehnquist in his hearings to become Chief Justice 19 years ago was asked where he sat on the ideological spectrum of the Court. Justice Rehnquist replied, "On the conservative side. In fact, on the basis of the Court's opinions," he said, not their personal preferences he had been on the Court I guess, 16 years? You would know better than me. But a good number of years-13, I think.

Judge ROBERTS. Thirteen.

Senator SCHUMER. Yes. He said, "I think the Chief”—Warren Burger-"and I are probably the most conservative, and it may be that I am more so than he." That doesn't involve any previous case or bias. So let me ask you the parallel question about the D.C. Circuit upon which you sit now. Where, Judge, do you place yourself on the ideological spectrum of the D.C. Circuit?

Judge ROBERTS. Well, Senator, I think that's a very hard question to answer for a number of reasons. One, as you know, almost all of our opinions are unanimous. We don't parse ourselves out according to an ideological spectrum.

Senator SCHUMER. Most are technical-yes, many are tech or commercial, you know, governmental, technical. But on the tough ones they are not.

Judge ROBERTS. I don't know where I fall. I do know that I saw recently a study that was done that indicated I agree more with some judges appointed by Democratic Presidents than I do with judges appointed by other Republicans Presidents, and it's not simply lined up according to the President who appointed you. There are judges there that I've joined in opinions where I've found myself-where we have had dissents. There are some-I know one case we were talking about earlier, the Bombardier case, Judge Rogers and I were in one position, Judge Rogers appointed by President Clinton, and Judge Garland was in a different position. I know in another case that was decided that we have talked about, Barber, Judge Garland and I were on one side and Judge

So to the extent there have been divisions, I think you could go and see and they would be completely non

Senator SCHUMER. So you are saying you are somewhere in the middle

Judge ROBERTS.-political. I am saying that judges don't think of themselves along an ideological spectrum.

Senator SCHUMER. Justice Rehnquist did.

Judge ROBERTS. Well, I don't.

Senator SCHUMER. Okay.

Judge ROBERTS. And the judges, I think, on the D.C. Circuit generally don't either.

Senator SCHUMER. So I guess you wouldn't want to place yourself on the current Supreme Court either.

Judge ROBERTS. No, I think that would be

Senator SCHUMER. Okay. Let's try another route. I didn't think that one would get too far, although as I said, Justice Rehnquist did answer it. He is your mentor, and he answered it openly, fully. directly. He and Burger were the two most conservative, and he is more conservative than Burger.

How about modesty and stability? Let's try to talk about that. And when we met, I was very impressed with the concepts of modesty and stability. They suggest to me you respect precedent and well-settled law. You have said that yourself here, particularly in reference to Senator Specter's opening round of questions. And that is a good opportunity for common ground. I had a history professor, Franklin Ford. He had Ford's rule of history: "We are no smarter than our fathers." A pretty good rule. And that is sort of a modest concept in history, not in jurisprudence.

So I would like to find out a little bit more about modesty. So I would ask you-and these can be well settled, they could be 50 or 100 years ago, and please don't go on at length can you give me a few Supreme Court cases that are modest, or represent modesty, is a better way to put it, at least in your view, and a few Supreme Court cases that would represent immodesty?

Judge ROBERTS. Sure. I guess I would think the clearest juxtaposition would be the cases from the Lochner era. If you take Lochner on the one hand and, say, West Coast Hotel, which kind of overruled and buried the Lochner approach on the other, and the immodesty that I see in the Lochner opinion is in its re-weighing of the legislative determination. You read that opinion, it's about limits on how long bakers can work. And they're saying we don't think there's any problem with bakers working more than 13 hours.

Senator SCHUMER. Right.

Judge ROBERTS. Well, the legislature thought there was, and they passed a law about it, and the issue should not have been, Judges, do you think this was a good law or do you think bakers should work longer or not? It should be: Is there anything in the Constitution that prohibits the legislature from doing that? Senator SCHUMER. How about another one?

Judge ROBERTS. Well

Senator SCHUMER. Or modest ones. You know, it could be either

Judge ROBERTS. You know, people talk about Brown v. Board of Education, and let me explain why I think that is an example. It's obviously a dramatic departure in American history, and in many respects very bold. Yet I think it's more appropriately understood as a restrained decision compared to the decision that came before in Plessy v. Ferguson. And you can see this if you look at the arguments of the lawyers, because what John W. Davis was arguing on the side of the Board was to the Court, "You need to be worried about the social consequences of upsetting this decision. People have lived their lives this way. If you overturn this, it is going to be disruptive, the consequences are going to be bad."

Thurgood Marshall, on the other side, was making a legal argument addressed to the obligation of the Court to apply the rule of law, and he said, focused on the discrimination involved in the separation. He made an argument, and it was a very clever approach to the case because he based his decision on precedent as well, saying "You have had this recent case in Sweatt v. Painter. Don't talk to me about Plessy v. Ferguson. You are beginning the process of departing from that. Your recent decision here, if you are going to be consistent, you have to come out this way."

So again it seems odd I know to talk about things like modesty in such a bold decision, but it is in my view a more appropriate judicial restrained decision.

Senator SCHUMER. Let me ask you. This is a general question that I was going to ask you that leads to this. In other words, if a decision of the Court issued many years ago is immodest, in your view, modesty could compel overruling?

Judge ROBERTS. Well, I think if you take

Senator SCHUMER. That is what you argued just a minute ago with Brown I think.

Judge ROBERTS. Well, sometimes the appropriate restrained approach-now, with Brown my point was the notion of precedent was one that Thurgood Marshall appreciated in arguing to the Court that it shouldn't be simply a debate. He didn't want to debate it on John W. Davis's terms about Plessy, should it be overruled or not? He said, "Here's another precedent of the Court." So he was arguing from precedent as well.

Senator SCHUMER. Right. But when you have the conflict, a past error decision that was fundamentally immodest, let us say, and then years and years of it being on the books, stability argues keep it on the books, and even modesty, with its respect for precedent argues keep it on the books. How do you draw that? Can you just elaborate a little bit on how you weigh those two different concepts of "modesty?"

Judge ROBERTS. Well, I think a modest approach requires beginning with the body of precedent. That is what judges do, and that's a recognition just as Professor Ford said, that we're not necessarily, we're not smarter than our fathers who laid down this precedent. Senator SCHUMER. Professor Ford.

Judge ROBERTS. Professor Ford, yes. My point with respect to Brown was that Thurgood Marshall appreciated that and then he was making an argument from precedent, just as the way Davis

parting from Plessy, that they had already taken the initial step in Sweatt v. Painter.

Senator SCHUMER. Let me go to-I think Senator Durbin alluded to it, because this is one that was a little troubling and maybe you can talk about it. In the memo you wrote about Wallace v. Jaffre which had just been decided, involved church and state-I am not interested right now in the specific holding-you wrote, "Rehnquist tried to revolutionize Establishment Clause jurisprudence and ended up losing the majority, which is not to say the effort was misguided." Then you wrote, because you were speaking approvingly of Rehnquist's attempt to revolutionize a well-settled area of law. You also in the same memo criticize the opinion of Lewis Powell, same case, criticizing as, "a lame concurring opinion focusing on stare decisis."

To at least the reader of this it seems very immodest, praising the revolutionary decision and sort of criticizing, saying it was lame opinion for focusing on stare decisis.

I know you wrote this 20 years ago, and I know you wrote it for your boss, Ronald Reagan, who you admire-I admire him too but probably for different reasons-but those words, Ronald Reagan did not command you to say, "I approve of Rehnquist's view to revolutionize [Powell]." I know your establishment clause jurisprudence had to come out on that side. Just please explain to me, if you still stand by, not the holdings in the case, not whether Wallace v. Jaffre was correctly decided, but the language that you used, the thinking that you used, how does that square with modesty, or had you not developed the theory of modesty when you were there as a young clerk or a young member of the, I guess at that point, Solicitor General's Office.

Judge ROBERTS. No, no.

Senator SCHUMER. Wherever you were.

Judge ROBERTS. If it's 20 years ago it would have been

Senator SCHUMER. It is 1985, yes.

Judge ROBERTS. It would have been in the White House Counsel's Office.

Senator SCHUMER. White House Counsel's Office. Excuse me. Judge ROBERTS. And the memo that you are referring to is, obviously, it's speculation about what happened in the case.

Senator SCHUMER. I know. How does it square with modesty? Did modesty arise in your way of thinking after that?

Judge ROBERTS. It's not a question about me being a judge. It's a question about my describing what I was obviously speculating was going on in that particular case.

Senator SCHUMER. But you approved of it. You said the revolutionary aspects were not-"which is not to say the effort was misguided." And then you said "lame"-there is no real way to interpret that except pejoratively-"concurring opinion that focused on stare decisis."

Judge ROBERTS. Saying that the effort was not misguided referred to what I had been speculating was the Chief Justice's effort to reformulate the approach in that case, and it's the Lemon test, and we've talked about the Lemon test before, and the pluses and minuses. I've described it I think it was today, maybe yesterday.

that every-six of the Justices I think had taken the position critical of the Lemon test, six of the sitting Justices. They never took it at the same time. It is still the test that applies, and it would be, the precedent that I would begin with—

Senator SCHUMER. Just going to cut you off. I apologize, because I have 16 seconds, and the Chairman said I have to ask the questions before.

Just assure me and maybe some more of us, that modesty is not a concept that you use when you want to slow things down because the courts are moving too fast, but you do not use when you think things should be sped up, that it is a general approach that sort of says to judiciary, "Go slow in every aspect." Try to convince me of that if you can.

Judge ROBERTS. Well, I'll try, Senator. It is a neutral principle. Your suggestion that I apply it in cases where I want to but don'tis of course a grievous insult to any judge, the notion that they're result-oriented, that they would apply a particular approach one way in one sort of cases and a different way in another case. That's not how I approach judging and not how I would approach judging whether I'm back on the court of appeals or somewhere else.

It is a neutral principle. It reflects the—and it's obviously not an original concept with me.

Senator SCHUMER. No, it's not.

Judge ROBERTS. There are judges, you go back throughout our history, that have articulated and recognized the principle of judicial restraint, that there are limits on what the judge can do. And those judges have always explained that this applies whether or not I'm in favor of a particular result or not. It's a reflection of their institutional authority in their role, that their job is to interpret the law, not to make the law. And that applies without regard to what law you would like to have made or not.

Senator SCHUMER. Thank you.

Thank you, Mr. Chairman.

Chairman SPECTER. Thank you, Senator Schumer.
Thank you, Judge Roberts.

Thank you all.

Judge ROBERTS. Thank you, Mr. Chairman.

Chairman SPECTER. We will reconvene tomorrow morning at 9:00 a.m. That concludes our hearing.

[Whereupon, at 7:00 p.m., the hearing was recessed, to resume