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NOMINATION OF JOHN G. ROBERTS, JR., OF

MARYLAND, TO BE CHIEF JUSTICE OF THE UNITED STATES

THURSDAY, SEPTEMBER 15, 2005

UNITED STATES SENATE,
COMMITTEE ON THE JUDICIARY,

DC. The Committee met, pursuant to notice, at 9:01 a.m., in room SH-216, Hart 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 morning, ladies and gentlemen. Good morning, Judge Roberts.

Judge ROBERTS. Good morning, Mr. Chairman.

Chairman SPECTER. We will now proceed to the third round of questioning, which will be abbreviated. There are six Senators on the other side of the aisle who have requested additional time. There will not be a third round for any of the Senators on the other side of the aisle.

We will go into a closed session a little before 11:00, and we will turn to the outside witnesses hopefully at 11:30. And we project a conclusion late this afternoon, but that will depend upon the sequence of events.

I now yield to my distinguished colleague, Senator Leahy, for 20 minutes.

Senator LEAHY. Thank you, Mr. Chairman.

Judge, you are really going to miss us, aren't you? You are going to miss doing this every day. It is—you are not even going to answer that one, are you?

[Laughter.)

Judge ROBERTS. Well, it's a once-in-a-lifetime experience, Senator.

Senator LEAHY. When we left off the other day, you and I were discussing the Supreme Court's decision in the Christine Franklin Title IX case. This, for those who may have forgotten, is the case of very, very serious sexual abuse of a young girl by her teacher. It makes your skin crawl just to hear the facts of it.

Now, Justice White's opinion for the Supreme Court rejected your arguments, your technical legal arguments. You had argued she should not be allowed to sue for damages. He wrote, “From the earliest years of the Republic, the Court has recognized the power of the judiciary to award appropriate remedies to redress injuries actionable in Federal court.” He went on to note that, “To disallow a damages remedy in this case would be to abdicate our historic judicial authority to award appropriate relief in cases brought in our court system.”

And then, most tellingly, Justice White wrote that your argument that Christine Franklin's remedy should be limited to back pay and injunction, a position you had reiterated a couple days ago, he said that conflicts with sound logic. He went on to say it is clearly inadequate. And he wrote that back pay does nothing for her and that prospective relief accords her no remedies at all.

Now, the reason I raise this case is not that it is one of those rare ones where you were on the losing side, but I raise it because I felt it was a case about what our courts should do, including doing justice and remedying rights and protecting Americans.

So my question to you is this: Do you now recognize that the Supreme Court's view in the case as set forth in Justice White's opinion was the right one and the positions of the United States in your brief were the wrong ones?

Judge ROBERTS. Well, as a judge looking at it, obviously when you lose a case, as you point out, 9-0, it's a pretty clear signal that the legal position you were advocating was the wrong one. The position the administration took in that case was the same position that the court of appeals had taken. In other words, what the Supreme Court did was reverse the lower court, so—

Senator LEAHY. Well, I

Judge ROBERTS. I'm just explaining why the position we took prior to the decision may have looked different than it did after the decision.

Senator LEAHY. And I understand that. I thought I sort of laid that out earlier. But my question is: Do you now accept that Justice White's position was right and that the Government's position was wrong?

Judge ROBERTS. Well, I certainly accept the decision of the Court, the 9–0 decision, as you say, as a binding precedent of the Coun and, again, have no cause or agenda to revisit it or any quartei with it. The issue, of course, was the one of what remedies are available for an implied cause of action. The reason I think that the lower courts came out the other way and the Supreme Court came out one way is that you're dealing with an implied cause of action. In other words, it hasn't been spelled out and

Senator LEAHY. But I think the Supreme Court was looking and acting, as they felt, within the law for an area that would actually bring justice. That was basically my point. It may have been implied, but they looked within the case, they looked within the law, and they found an area to bring justice. And I realize hard cases sometimes make not the best law, but I think this case is a hard case but it made good law. Would you agree?

Judge ROBERTS. I have no quarrel with the Court's decision, Senator.

Senator LEAHY. You have been involved a great deal in the devel. opment of the Supreme Court authority limiting the ability of individual Americans to ensure they actually receive the rights and

In the Reagan administration, you advocated legislative responses to Maine v. Thiboutot. That is how the Supreme Court tells me it is pronounced. It is not how those of us who live with those of French-Canadian descent might say it. But you strongly criticizethat was a case that recognized broad access to courts to vindicate your rights under Federal law. You criticized the damage supposedly caused by that case in a 1982 memo. And then you wrote briefs and argued before the Supreme Court in the 1980's and the 1990's. We talked about some of these-South Dakota v. Dole, Wilder v. Virginia Hospital, Suter v. Artist M., Gonzaga University v. Doe. And you called for the narrowing of Congress's spending powers and limiting the right of individuals to sue to compel the protections Congress required under Federal law.

I worry about this if an individual loses their right to sue if the State or the administration, whoever the administration might be, doesn't protect their rights. For example, if the only remedy for a State's refusal to live up to its obligations under a spending power enactment, like Medicaid or another such program, is action by the Federal Government, and the Federal Government doesn't act, where does that leave the rule of law? Where does that leave America's sense of justice if an individual can't then step in and seek action?

Judge ROBERTS. Well, two points, Senator. The issue in the Spending Clause cases that you refer to-Wilder, the later one, the Suter case, and the Gonzaga case that I argued when I was in private practice the issue is one of congressional intent. The question is: Did Congress intend there to be a private right of action? That's what the courts are trying to figure out. And if Congress did intend there to be a private right of action, if Congress intended this to be actionable whether through 1983 or under-Section 1983 or under the law itself, then there would be a private right of action. In some cases, Congress doesn't intend that, and in those cases, there wouldn't be. I would say

Senator LEAHY. Butno, go ahead.

Judge ROBERTS. I was just going to make the point that in those cases, of course, I was advocating a position for a client. I did have occasion as a judge to address a Spending Clause case. It was a case called Barber v. Washington Metropolitan Area

Senator LEAHY. But that one, the statute was pretty darn clear, the Metro case.

Judge ROBERTS. Well, it was a 2-1 decision, divided decision on a court that doesn't often issue 2–1 decisions. There was a lengthy dissent saying that Congress did not have the authority to require the Metro

Senator LEAHY. Judge Sentelle dissented?
Judge ROBERTS. Judge Sentelle dissented.

Senator LEAHY. I read that. I don't want to go into that. He is not here before us. But what I worry about, though, is the trend of these to say that Congress intended these programs, more like Medicaid, commitments there to be kind of an exclusive bargain be

tween the Federal Government and the State government. And in that raises a question in my mind. Do the courts really think we ne have made empty promises? I thought of this the other night beSoviet Constitution. But wouldn't it be an indication we were making the same kind of empty promises if individuals can't sue if they are left as innocent bystanders who are harmed, but they have no remedy if the State is negligent in acting or if the Federal Government doesn't protect it? I mean, why shouldn't they be able to sue to get the promises that are made in these bills so that it is not like the Soviet constitution, great promises but empty?

Judge ROBERTS. Well, the issue is not whether they should be able to sue or not. The issue is whether Congress intended them to be able to sue or not. The issue doesn't even come up if Congress would simply spell out in the legislation we intended these individuals to have the right to sue in Federal court. That would prevent the issue from even coming up.

All of those cases we have been talking about arose because Congress did not address the question, and, therefore, the courts

Senator LEAHY. Yes, but Congress assumes the States and the Federal Government are going to do what the law spells out. We don't do it as an empty promise. We assume they are going to do it. When they don't do it, if you are developmentally disabled, Med. icaid kids, foster kids, rape victims and so on, shouldn't they be able to have a voice?

Judge ROBERTS. Well, if Congress wants them to sue, all Congress has to do is write one sentence saying, “Individuals harmed by a violation of this statute may bring a right of action in Federal court.” There are laws where Congress says that, and that question never comes up.

The issue in the various cases that we have been talking about, including in the Barber case, where I ruled that the individual did have the right to sue when I was judge, the issue is, What did Congress intend? And all too often that issue is not even addressed. I don't know whether it's because of inadvertence or it's because of an inability of Congress to agree, and they both sort of—both sides sort of say, well, let's let the courts figure it out.

Senator LEAHY. Well, maybe it is an assumption of those of us who take an oath of office here to uphold the laws that the State government, those officials who take similar oaths of office, or the administrators in the national government who take similar oaths of office are actually going to do what they have sworn to do.

Judge ROBERTS. Well

Senator LEAHY. Let me—can I move on? Because it also goes to and I understand your point on this, and we could probably debate this all morning long. But I hope you understand my concern, which is a concern of lot of American people in this area.

Let's go to another precedent that moved me a great deal, Gideon v. Wainwright. As a young law student, I had an opportunity—my wife and I had an opportunity to have lunch with Hugo Black shortly after that, one of the most memorable times I had. He was a former Senator. He recognized the Sixth Amendment's guarantee to counsel in a criminal case was a fundamental right to a fair trial. He called it an obvious truth that in an adversary system of criminal justice, any person hauled into court who was too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for him. There is a wonderful book, "Gideon's Trumpet,” that

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