Senator FEINGOLD. So you would not do that. Judge ROBERTS. I wouldn't do that. I think that, again, sort of trying to use that assignment power in a tactical way, it causes tension on the Court and I think undermines the ability of the Chief Justice, to the extent he has that ability—and it's obviously limited to act as a force to help bring about some cohesiveness and collegiality. Senator FEINGOLD. Thank you. Thank you for that answer. On a different subject, some people blame plaintiffs' lawyers for various problems with the economy and the legal profession. Do you believe that lawyers who represent indigent persons in product liability and medical malpractice cases are harming America? Judge ROBERTS. No. Senator FEINGOLD. Having worked on the defense side for most of your non-Government career, can you be fair in your rulings to plaintiffs seeking redress for injury? Judge ROBERTS. I'm going to disagree with your premise. I've represented plaintiffs' interests. I think if you look, for example, at the antitrust cases I've argued, more of them have been on the plaintiff side than on the defendant side. One of my co-clerks, when I clerked for Justice Rehnquist, is a very prominent personal injury lawyer, and I think he does a wonderful job. I know there are abuses in this area. There are abuses in the area of defense representation as well. I certainly don't have any biases one way or the other. Senator FEINGOLD. Thank you, Judge. Judge, you argued an important case before the Supreme Court concerning who is protected under the Americans with Disabilities Act. It was called Toyota v. Williams. Ms. Williams suffered from hand, wrist, and arm pain while working in an engine assembly line. She was diagnosed with carpal tunnel syndrome, and her physician placed her on permanent work restrictions. Her pain continued and she did not think that her employer was addressing her physician-ordered work restrictions appropriately, so she sued under the ADA. You represented Toyota in the case before the Supreme Court, and this was a case of statutory interpretation, so I assume you are quite familiar with the legislative history of that Act. Do you agree with the statement of one of the Justices during oral argument that the Act was primarily intended to protect people who are "wheelchair-bound"? Judge ROBERTS. The Act contains a definition of disability, and that's what the issue was about, and that definition does not contain that type of restriction. So, you know, I don't want to comment on issues that might come before me, but the case was about the definition. The definition was not restricted in that way. The only point I would make-and I'm sure you appreciate thisis that a lot of times the statements during oral argument are certainly not expressions of either the Justices' view-they're often playing a devil's advocate, and I don't even remember that question. I don't know if it was directed at me or the other counsel, but it may well have been intended to elicit a response to flesh out Senator FEINGOLD. More generally, do you believe that the ADA or any other civil rights statute should be interpreted narrowly or broadly when it comes to the issue of who it protects? Judge ROBERTS. Well, I have to say I think it should be interpreted consistent with Congress's intent, and you look at a lot of different factors in trying to flesh that out. If you folks here in Congress had a particular-in any statute, a narrow focus, then to give that focus a broader impact I think would be wrong. If you had a broad focus, as, of course, you often do when you're dealing with statutes designed to address discrimination, giving that interpretation a narrow focus would be wrong. The effort in every case is to try to give it the right focus, and that's the focus that you intended when you passed the law. Senator FEINGOLD. Thank you, Judge, and I appreciate all your answers. Mr. Chairman, I yield back the remainder of my time. Chairman SPECTER. Thank you very much, Senator Feingold. Senator Sessions has asked for recognition briefly to clarify one point which he thinks requires that clarification. Senator SESSIONS. Thank you. Judge Roberts, I commend you on your good humor, and even when they read a memo to suggest you said that the EEOC was un-American, when actually all you were doing was quoting a complaint, and that you defended the EEOC and its rights and independence aggressively in that memo. But I wanted to ask you about this Texas case. As I understand it, Texas decided that they would not fund education for illegal aliens that are here in the country. And that was challenged as being unconstitutional and went to the Supreme Court. I know you have said that you as a parent and as a person who believes in education, you absolutely believe in education for all children in some way, form, or fashion. But you don't mean to suggest or prejudge, do you, the constitutionality of the right of the State of Texas to make that decision? That would be a matter of, I think, some importance, and perhaps again in the years to come. Judge ROBERTS. Well, no, Senator, and I did try to be very careful in separating the personal views with respect to the importance of education from the legal question there. And the legal question, of course, was a close one. It divided the Court 5-4, and as I noted, among the dissenters were Justices White and O'Connor. And Í don't think their legal position reflected any less than wholehearted view concerning the importance of education. Senator SESSIONS. Thank you, Mr. Chairman. First, just a little housekeeping. I think tomorrow is the day that it is due for us to submit written questions, and you will have no problem getting those back to us before we have to vote, which I think by the agreement of the Chairman and the Ranking Member will be next Thursday, will you? Judge ROBERTS. Well, it depends how many there are. Judge ROBERTS. My answers will be fuller the fewer questions there are, but I will certainly [Laughter.] Judge ROBERTS. I will certainly obviously make every effort to get them in as soon as possible. Senator SCHUMER. Thank you. Next question: We have had a great debate here in the Senate and with the administration about the documents-there were 16 cases, I think, led by Senator Leahy, that the eight of us requested when you were Principal Deputy Solicitor General. Now, we know the administration has said they will not relinquish those documents. I just wanted to know-and I am not asking your view on the law. Do you have a personal objection if they were to give us those documents? Because you wrote them. Judge ROBERTS. Senator, I don't think it's appropriate for me to take a position. If the client is asserting a privilege, I don't think the attorney should be stating a position on it, because in these situations the privilege is that of the client. And for the attorney to take a position would, could, might put pressure on the client and Senator SCHUMER. I may not get Judge ROBERTS.-I think that's inappropriate. Senator SCHUMER. I may not get this. Aren't they the attorney and you the client this time? Judge ROBERTS. Well, when the memos were prepared, I was the attorney. So. Senator SCHUMER. I see. Judge ROBERTS. And they were the client. Senator SCHUMER. So you won't take a position on that. Judge ROBERTS. I don't think it's appropriate for a lawyer to do Senator SCHUMER. Yesterday, as I told you, I was sort of confounded by the refusal to answer certain questions. I do not think any of us expected you to answer every question or answer the give us the answer the way we want it. But we did hope that you would answer enough questions with enough specificity so that we and the American people would get a clear picture of the kind of Chief Justice you will be, not just rely on your assurances. So I want to try this another way because I really want to find out. You are one of the best litigators in America. You know how to convince people. That is what you have been paid to do for a long time. So let me ask you, if you were sitting here, what question would you ask John Roberts so that you or us could be sure that we were not nominating what I call an ideologue, someone who you might define as somebody who wants to make law, not interpret law? And then how would you answer the question you asked yourself? [Laughter.] Judge ROBERTS. I'd begin by saying, "Well, that's a good question, Senator." [Laughter.] Judge ROBERTS. I think, with respect, I would ask a lot of the questions that have been asked, a lot of the questions that were with the most important question, What is your view of the proper role of a judge in our system? And people have different answers to that question. I've given an answer to that question. How do you approach particular cases in areas of particular interest? And I've been asked that question and I've given an answer. I've explained, for example, in the area of Executive power, as issues arise what the framework that I would use would be, and I've talked about the Youngstown opinion and Justice Jackson's framework there. I've talked about how I would approach cases involving the right to privacy under the Liberty Clause. I've talked about how I would approach cases involving Government enforcement in the anti trust Senator SCHUMER. How about something that you have not-a question that has not been asked since some of us are still unsure? Judge ROBERTS. But in other areas people talk about-and it is personal views on issues, and there again, I think it is important. There may be some nominees who want to share personal views on issues. My reaction has been to emphasize-and I think this tells you about what kind of a judge I hope I am on the Court of Appeals and what kind of a Justice I would be if confirmed, and my reaction has been that I set those personal views aside, and so don't consider them pertinent. Other nominees might take a different approach in response to those types of questions. People have asked about particular decisions, and I've talked about decisions in which I've been involved. We've talked aboutwith Senator Grassley about the Totten case in which I was involved, others about the Barber case involving Congress's power under the Spending Clause. People have asked very probing questions about my legal positions. What did you-what was the position you were advocating in this case and why? I think it's fair to talk about the record. Senator SCHUMER. Any question that you would ask that has been left out? Judge ROBERTS. There have been a lot of questions asked and a lot answered. I can't think of any that-you know, I expected people to ask me about this and it hasn't been asked. Senator SCHUMER. So I guess we did a better job than we think. we did, right? Judge ROBERTS. I think the Committee has been very effective over the last several days in learning a lot about me. I think in the process of meeting with the Senators before-and I was quite serious when I said I appreciated how accommodating everyone had been in sitting down with me. I think people learned a lot about me. I think you can learn a lot about me from looking at the 50 opinions I've written. You can learn about Senator SCHUMER. Let me, if I might. I want to go back to the Commerce Clause, which bothers me, as you know. Again, apart from anybody's view, do you agree that the Congress has the power under the Commerce Clause to regulate activities that are purely local, so long as Congress finds that the activities exert a substantial economic effect on interstate commerce? Judge ROBERTS. If the question-and this is where the issue tivities are commercial. If the activities are commercial in nature, you get to aggregate them under Wickard v. Filburn that we have talked about. You do not have to look at just that particular activity. You look at the activity in general. Where the dispute and issues come in is whether the activities are commercial. That is where the disagreement-the point I was trying to make in the infamous or famous toad case. If you should look at this as commercial activity, then you can Senator SCHUMER. Do you believe Congress deserves a great— this is in reference to some of the things Senator Specter talked about-that Congress deserves a great deal of deference when it decides something is commercial and has findings to that effect? Judge ROBERTS. I do, Senator, and I think that is the basic theme that runs through the Court's Commerce Clause jurisprudence. There is again of course the Lopez and Morrison decisions, but there is also the Raiche decision, and again I think it is very important to and what the Raiche decision said is you've got to consider Lopez and Morrison in the context of this broad sweep, not just as sort of the only decisions. Senator SCHUMER. Okay. Let me ask you then this hypothetical, and that is: that it came to our attention, Congress's, through a relatively and inexpensive simple process individuals were now able to clone certain species of animals, maybe an arroyo toad; did not pass over State lines, you could somehow do it without doing any of that. Under the Commerce Clause can Congress pass a law banning even non-commercial cloning? Judge ROBERTS. I appreciate it's a hypothetical and you will as well, so I don't mean to be giving binding opinions. But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce. Obviously, if you were successful in cloning an animal, that's not going to be simply a local phenomenon, that's going to be something people are going to Senator SCHUMER. You can leave it at that. That is a good answer as far as I am concerned. What I would like to do is say a few concluding words here with a final request. First I want to thank you for holding up so well during the 3 days of grueling questions. Many of us on this Committee, probably every one of us, some more than others, have been wrestling with how to vote on your nomination since well before the hearing started, and of course now that process is accelerated. I, for one, have woken up in the middle of the night thinking about it, being unsure how to vote. I think my colleague from Delaware was on to something when he called this a roll of the dice. But this is a vote on the Chief Justice of the Supreme Court. You will in all likelihood affect every one of our lives in many ways for a whole generation, so this is not just rolling the dice. It is betting the whole house. I thought I would share with you some of the thoughts of some of us with important questions; there are pros and cons. On the pro side first of all is your brilliance. You have an amazing knowledge of the law. You spent 3 days here talking on so many aspects of it without any paper in front of you, without a single aide coming |