Chairman SPECTER. Thank you, Senator Feinstein. Senator FEINGOLD. Thank you again, Mr. Chairman, for your willingness to allow us this additional round, and thank you, Judge Roberts, for all your patience throughout this whole process. Judge ROBERTS. Thank you, Senator. Senator FEINGOLD. A topic we touched on in our meeting in my office in July was the issue of judges going to judicial education conferences at sometimes fancy resorts, which are put on by ideologically oriented groups and paid for by private corporations that sometimes even have cases pending before the judges in attendance. And when we spoke, of course, you had been nominated for the Associate Justice position, and our conversation concerned your personal interest in attending such events. As I remember, your answer was that you said you would rather spend your free time with your family, which I thought was a pretty good answer. But now you have been nominated for Chief Justice, and one of your duties is to head the Judicial Conference, which among other things, sets the ethics policies for the Federal judiciary. And this is one area where I think Chief Justice Rehnquist might have taken a different course. He took a number of steps to essentially leave this ethical question up to the personal decision of individual judges and appointed a judge to head the Committee on Codes of Conduct who had been prominently featured in a "20/20" expose of these junkets. Not surprisingly, the Committee weakened the judicial ethics rules on this question of privately financed trips. Chief Justice Rehnquist strongly opposed congressional efforts to put a halt to these judicial junkets that I believe sometimes reflect poorly on the independence and impartiality of the judiciary. So I would like to know, Judge Roberts, if confirmed, whether you will use your power as Chief Justice to set a high ethical tone for the Federal judiciary by putting in place new codes of conduct that would prohibit judges from participating in privately funded "judicial education" that lets special interests essentially lobby Federal judges? Judge ROBERTS. Well, I don't think special interests should be allowed to lobby Federal judges. Stated that way, I think the answer is clear. I don't know enough about how these things operate. As I said, I have not been on one of them. I don't know how the funding is set up. I don't know what the situation is. If confirmed, I'm certainly happy to examine it. I know that there is a conflict of interest or ethical standard review group, I think, within the Judicial Conference. I believe they addressed that question and issued an opinion on it recently. But, again, I am just sort of recollecting something I read. I would say more generally, though-and maybe it is off topic, in which case feel free to cut me off. But I do think it is important for judges and Justices to get out, particularly get out of Washington a little bit. I've always enjoyed going to the law schools, participating in the moot courts or, you know, functions where you get to visit with the law students. I've done that a few times—not a lot, a few times. I wouldn't call that by any stretch of the imagina out around the country and particularly visit the law schools. That is probably not the same sort of thing you are talking about. Senator FEINGOLD. Fair enough, and I think you would agree that there is nothing wrong with judges or Senators golfing. That is not the question. Judge ROBERTS. It may not be good for the game of golf, but... [Laughter.] Senator FEINGOLD. In 2000, Chief Justice Rehnquist wrote a letter supporting repeal of a provision of the Ethics Reform Act of 1989 that bans honoraria for judges. Do you believe that the law should be changed to permit judges to take honoraria for speeches or appearances? Judge ROBERTS. There again, Senator, that's not an issue I've looked at. I know the law prohibits that. I know that there was a case about that, and the Supreme Court decided that, to some extent, that prohibition was unconstitutional as applied to lower-level officials but constitutional as applied to others. It's not a question that I've addressed. Senator FEINGOLD. Just to return for the record for a moment, the item that the judge referred to in terms of a Judicial Conference opinion is actually the policy that I was concerned about that I thought was a step backward, and I just wanted that reflected in the record. I also, Mr. Chairman, want to put an item in the record. I am not going to ask more questions about Judge Roberts's memo recommending against the President stating that HIV could not be transmitted through casual contact. But I do want to make sure the record is complete. I would like to submit for the record Judge Roberts's memo on that issue from September 1985, Centers for Disease Control documents from 1982 and 1985, and a number of news stories from August and September 1985, reporting the CDC's conclusion that HIV could not be spread through casual contact. I would note that there are several articles in this collection from the Washington Post on September 4, 1985, the date of the article that Senator Coburn submitted yesterday, that I think makes this clear as well. Mr. Chairman, if those items could be entered in the record? Mr. Chairman? Chairman SPECTER. Without objection, so ordered. Senator FEINGOLD. Turning again to the death penalty, when you worked in the Reagan administration, you expressed strong opposition to Federal courts reviewing criminal convictions and State courts reviewing writs of habeas corpus. As you know, prisoners who believe they were wrongly or unfairly convicted in State court can seek to have the Federal courts hear their claims via a writ of habeas corpus. Habeas corpus is a fundamental part of our legal system that has long protected individual freedom. In a 1981 memo, you argued that the availability of Federal habeas relief to State prisoners "goes far to making a mockery of the entire criminal justice system." In that same memo, you said, "The question would seem to be not what tinkering is necessary in the system but, rather, why Then in 1983, as Senator Leahy brought up yesterday, you suggested that if the Supreme Court wanted to reduce its caseload, it should "abdicat[e], the role of fourth or fifth guesser in death penalty cases." Not in First Amendment cases or antitrust cases, but death penalty cases. I know that you've said that your memos in the Reagan administration reflected the views of the administration and not your own. But in this area, at least, your memos clearly indicate, I think, that these were your views. With the 1981 memo, for example, there is a cover note in your handwriting directing that the memo be sent to Jon Rose, an Assistant Attorney General at the time, with a cover note that reads, "The attached memorandum contains some thoughts on habeas corpus reform, for whatever you think they're worth. Judge Friendly and Justice Rehnquist would never have forgiven me if I remained mute." That sounds a lot like a memo advocating your views, not those of the Department. With regard to the memo from 1983 that I mentioned, you were analyzing the Chief Justice's proposal to create another intermediate appellate court to take the pressure off the Supreme Court's docket, and you said, and I quote, "My own view"-"My own view is that it is a terrible idea." And you went on to say that the fault lies with the Justices themselves who take too many cases, including death penalty cases. And you sent a personal letter to Judge Friendly in 1981 that said, "This is an exciting time to be at the Justice Department when so much that has been taken for granted for so long is being seriously reconsidered. To cite just one example, serious thought is being given to reform of habeas corpus.. . . I do not know what will eventuate as you noted, what has come to pass as the Great Writ is regarded by many lawmakers with no idea of the problems as unalterable perfection." Now, that discussion in a personal letter sounds like your own opinion as well. A decade later, when you were at the Solicitor General's office during the first Bush administration, you signed several briefs that sought to strictly limit Federal habeas review. And in 1993, while in private practice, you testified before the House Republican Task Force on Crime in favor of further habeas restrictions. The comments in your memos from the 1980's, I am sorry to say, don't even show the slightest concern about innocent lives possibly being lost if Federal habeas were eliminated. Does the possible hostility toward the habeas process that was expressed in those memos, particularly in death penalty cases, reflect your current view on Federal habeas? Or have your views changed or evolved? Judge ROBERTS. Well, as you know, the law has changed and evolved dramatically since the early 1980's, and at least with respect to my personal letter to Judge Friendly-I guess I thought it was a personal letter— [Laughter.] Judge ROBERTS. But the situation has changed dramatically, as you know. What I was referring to in the early 1980's was a situation where there were no limits on repetitive habeas corpus petitions, four, five, six, dozens of different petitions could be filed re dress the very concerns that I was raising there in past legislation. The Supreme Court saw it as a problem. The Supreme Court acted in a number of cases, the Teague case and others, in limiting the availability of successive and repetitive habeas petitions. Actually, what happened is the Supreme Court, I think, started down that path, and Congress made the decision that this is something they should look at in a more comprehensive way. So Congress passed laws that restrict when people can file repetitive and successive petitions. Those are the very concerns that I was talking about. They were concerns that had motivated the first person I worked for as a lawyer, Judge Henry Friendly, to write on the subject. He wrote a famous article on habeas reform entitled "Is Innocence Irrelevant?" because he thought these successive petitions had made sort of a game out of the whole process in which the question of innocence was totally lost in these successive petitions. And the references to the Great Writ, yes, of course, the writ of habeas corpus has an established heritage as a basis for complaining about illegal confinement. But all the stuff we are talking about there the fourth and fifth successive petitions, raising new issues that should have been raised in the first petition-and as you know, that's what Congress' legislation focused on. Senator FEINGOLD. But, Judge, did you not at the time, as I read in your statement, advocate the abolition of Federal habeas review? Judge ROBERTS. No. The purpose of what I was saying was to certainly reform and abolish the system as it existed then, where people could file repetitive and successive petitions, and I'll tell you why. The main problem-and I think it's a particular concern in death cases-is that nobody along the way feels that they're mak ing the responsible decision. If people get in a situation where they know, okay, if you're on a jury and you sentence someone to death, if you think, well, he's going to file habeas petitions in State court, and they're going to look at it then, after that-and the person who considers the State habeas petition says, "I know there are going to be successive Federal habeas petitions, they'll look at the issue then," everybody is pointing fingers in opposite directions. When Congress reformed this system, I think it helped to make clear that the decisions that are going to be made on the first habeas petition are going to be critical, and so hopefully it's looked at a lot more carefully than in the prior system when you knew, well, that wasn't the end of the process, it wasn't even the beginning of the end; the conviction was just the end of the beginning. Senator FEINGOLD. Well, would you agree that had the view that you advocated in your memos prevailed in the early 1980's-the abolition of the writ and the entire removal of Federal habeas review of State court convictions had that happened, innocent people would have been executed and serious constitutional errors would have gone unaddressed? Judge ROBERTS. Well, that wasn't my position. Senator FEINGOLD. No, but I am asking Judge ROBERTS. No, my Senator FEINGOLD. Had that view prevailed, not necessarily your personal view, but the abolition of the writ, isn't it the case that Judge ROBERTS. Oh, I'm not in favor now and was not in favor then of not allowing any Federal habeas review. Senator FEINGOLD. I am asking you whether you wouldn't agree that as a matter of fact— Judge ROBERTS. Yes. Senator FEINGOLD.-had the writ been eliminated, that some innocent people would have been executed? Judge ROBERTS. Well, they certainly wouldn't have been able to assert their claim of innocence in Federal habeas— Senator FEINGOLD. Would not have Judge ROBERTS.—and people do succeed at that stage. I certainly think it serves a valuable purpose. But that, again, was not-you know, the situation with respect to habeas 23 years ago was quite different than it is today, and the reason it's changed, I think, is because Congress responded to those sorts of concerns. Senator FEINGOLD. I take those comments as very important, and I know you can't comment on this, but there are further efforts now to further limit this right that could come before you. And I know you can't comment on it, but I think it is of great significance that you have acknowledged that some of those changes that were made in the 1990's have significantly affected your view about the propriety of the habeas process. On a different subject, after the passing of Chief Justice Rehnquist, a number of news articles discussed his legacy and noted that early in his tenure as Justice, he had been a dissenting voice, but the Court seemed to shift in his direction over time. Recently, Professor Cass Sunstein recalled that over lunch with a group of Supreme Court clerks when he was an Associate Justice, Chief Justice Rehnquist described his own role on the Court. He said the Court was like a boat that had tilted way over to one side, and his task was to put it upright again. Do you believe that the Chief Justice has the duty to influence the overall philosophical direction of the Court through his perIsonal leadership or through opinion-writing assignments or any other means? And do you think that it is appropriate for the Chief to do that? Judge ROBERTS. I don't think using opinion-writing assignments as a way to try to promote a particular view or agenda is a good idea. And I don't think Chief Justice Rehnquist did that. I do think if you go back and look at every year that he was the Chief Justice and just pick out what you think are the 10 or 12 biggest cases of that year, I think you will find that those cases are distributed very evenly among the nine Justices. And one reason I think relations among the Justices were so collegial under Chief Justice Rehnquist's leadership-at a time when, of course, the Court had very marked philosophical differences and sharp dissents in some areas, but everybody got along well-is because the Chief made a priority of being fair in his opinion assignments. I think that is the more important priority. Senator FEINGOLD. Can you imagine ever changing your vote in order to be able to assign the majority opinion to yourself or to another Justice? And do you think that such a practice is appro: priate? |