edge of law and your way of presenting it is a tour de force. You may very well possess the most powerful intellect of any person to come before the Senate for this position. Second on the pro side is that you seem to be a lawyer above all. You have devoted your entire life to the law, and it is clear that you love it. Most people in that position tend not to be ideologues. They will follow the law wherever it takes them, regardless of the consequences, and you have repeatedly professed that to be true for you. But given that you have spent most of your legal life representing others, and that your limited tenure on the Court of Appeals did not allow you to rule on very many non-technical cases, there is not a long enough track record to prove that point. The third and perhaps the most important, at least to me, is your judicial philosophy of modesty and stability. Such a theory respects precedent, the Congress and other judges' opinions. Modest jurists tend not to be ideologues, and many of us on this side of the aisle would like the Court to maintain, and in cases related to the Commerce Clause like Morrison, increase its modesty. But in complicated decisions like this one, there is always a counterpoint even on the modesty question. Yesterday you said that the decision of Brown v. Board could be described as modest. Brown v. Board was breathtaking. It was wonderful. It reversed 80 years of accepted but bad law, yes, but modest? So I ask myself could overturning Wickard or Roe also be modest by your definition? Nonetheless, I think the philosophy of modesty is an appealing, important, and unifying philosophy to many of us. Let me go to the con side here. First is the question of compassion and humanity. I said on the first days of these hearings it is important to determine not just the quality of your mind, but the fullness of your heart, by which I think a good number of us, at least, on both sides of the aisle really, mean the ability to truly empathize with those who are less fortunate and who often need the protections of the Government and the assistance of the law to have any chance at all. It did not seem much, for instance, to concede that the wording "illegal amigos" was unfortunate, yet you refused to say so. America has moved in the 21st century beyond what Senator Kennedy called "the cramped view of civil rights professed in the early Reagan administration." But you would not admit now in 2005 that any of those views you argued for in the early '80's were misguided, with the hindsight of history. That is troubling. Second is the refusal of the administration to let us see any documents you wrote when you served as Deputy Solicitor General, when you were not simply following policy, which you have reminded us in your earlier days there and in the Counsel's office, but making it. This would have given us tremendous insight into who you are, into actually knowing who you are and what kind of justice you would make. But for what seemed to be self-serving reasons they were refused. Now this was not your decision, but you carry its burden, and I think we all have to consider it when weighing how to vote. Third, and most important on the con side, is your refusal to answer so many of our questions. I know you feel you were more forthcoming than most any other nominee to the High Court. I must disagree. You certainly were more forthcoming than a few. Now, for instance, I do not know Justice Scalia's opinion on "Dr. Zhivago," but most answered more relevant questions than you did. Your refused to comment on any issue that you thought may come before the Court. We learned a lot about your views on older, completely discredited cases like Lochner and Plessy and Korematsu, but they are not of much help to us. What we need to know are the kinds of things that are coming before the Court now, and not knowing makes it hard to figure out what kind of Justice you will be, particularly in light of the fact we have little else to go on. You did speak at length on many issues and sounded like you were conveying your views to us, but when one went back and read the transcript each evening, there was less than met the ear that afternoon. Perhaps that is the job of a good litigator, but in too many instances it did not serve the purpose of the hearing. Having said that about documents and questions, obtaining documents and answering questions are a means to an end, not an end in itself. In some cases like Miguel Estrada's nomination, we had no knowledge of his views so we could not vote. But here there is clearly some evidence. So now we must take the evidence we have and try to answer the fundamental question: what kind of Justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly? Will you be a very conservative judge who will impede congressional prerogatives but who does not use the bench to remake society like Justice Rehnquist? Or will you use your enormous talents to use the Court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve? That is the question that we on the Committee will have to grapple with this week. And over the next week, if you have any more information that could help us answer this question, I think every one of us would welcome it. Thank you, Judge. Senator FEINSTEIN. Mr. Chairman? Chairman SPECTER. Thank you, Senator Schumer. Senator FEINSTEIN. Mr. Chairman? Chairman SPECTER. Wait just a minute. I will recognize you in a moment. Judge Roberts, Senator Schumer has postulated quite a number of questions in his last soliloquy, but [Laughter.] Chairman SPECTER.-they are summarized in what kind of a Justice you would be, and I think you are entitled to respond to that if you care to do so. Senator FEINSTEIN. That was going to be my request. I think it would be very important. Chairman SPECTER. In that case, go ahead and make your request. [Laughter.] Senator FEINSTEIN. Yes. I think— Chairman SPECTER. Better the request comes from you than Senator FEINSTEIN. I think that Senator Schumer really summed up the dilemmas, and not only for himself but for our side. I would very much like you to respond, particularly to the con side. The pro side speaks for itself. Many of us are struggling with exactly that, what kind of a Justice would you be, Judge Roberts? Chairman SPECTER. No time limit, Judge. Judge ROBERTS. Well, I appreciate the comments very much, Senator Schumer, and I very much appreciate the pro side of the ledger. On the con side, the issue of documents, it is hard for me to comprehend that there could be more documents. The numbers been ranging from 80,000 to 100,000, and there is a lot of paper out there. I have tried to be as fully responsive as I thought consistent with my obligations as a sitting judge and a nominee. And I appreciate that this is not a new issue. You have gone back and read the transcripts and of course participated. I have gone back and read the transcripts. It comes up at every nomination. In some instances Members of the Committee want more information than the nominee feels that he or she can give in good conscience. That is nothing new. I have tried to be as fully expansive as I can be, and drawn the line where as a practical matter I think it is necessary and appropriate. The basic question, Senator Feinstein and Senator Schumer, what kind of a Justice would I be? That is the judgment you have to make. I would begin, I think, if I were in your shoes, with what kind of a judge I have been. I appreciate that it has only been a little more than 2 years, but you do have 50 opinions. You can look at those. And, Senator Schumer, I don't think you can read those opinions and say that these are the opinions of an ideologue. You may think they're not enough. You may think you need more of a sample. That is your judgment. But I think if you've looked at what I've done since I took the judicial oath, that should convince you that I'm not an ideologue, and you and I agree that that's not the sort of person we want on the Supreme Court. Beyond that I have the few days that I've been here, all the documents, the questionnaire. You have not just my opinions but my briefs. I think those also help show what kind of a judge I would be. You of course appreciate that that's presenting a position and I'm just an advocate, but advocates deal with the law in different ways. You can look at other people's briefs, I think, and conclude that that person may not be a good judge because of the way they argue the law. I would hope you would look at my briefs and my arguments before the Supreme Court and conclude that that's a person who respects the law, respects the Court before whom he is arguing, and will approach the law in a similar way as a judge. Chairman SPECTER. Thank you, Judge Roberts. Senator CORNYN. Mr. Chairman? Chairman SPECTER. Senator Cornyn. Senator CORNYN. If I might have three minutes. I would just want to ask the witness to explain the rationale as he understands Chairman SPECTER. Senator Cornyn, you are recognized for three minutes. Senator CORNYN. Thank you. Mr. Chairman, it strikes me as odd, having been on the Committee last year when we had an alleged theft of internal documents that were written by staffers of individual Senators, and which were then published to the outside world, and there was bipartisan outrage over that. And we, as I recall, referred that matter for investigation and possible prosecution. But surely if the legislative branch is entitled to confidential communications between our lawyers and us so we can do our jobs and get candid advice, the Executive or the President is entitled to the same sort of confidential and candid communications. And, Judge, this is the question. I do not want anybody to be under the misapprehension that, number one, it is within your power to produce additional documents. It is hard to imagine there are in addition to the 100,000 that have already been produced. But I want to give you a chance to articulate the reasons why the law recognizes this importance of a confidential, candid communication between a client and the lawyer that cannot be readily overrun or trumped. Would you give that a shot, please? Judge ROBERTS. Well, I mean certainly the basic attorney/client privilege goes back centuries, and there have been eloquent expressions of its value in the Supreme Court. I think of the Upjohn opinion from 1981 in the Supreme Court and other classic expressions. And the idea is that if we want people to benefit from the advice that lawyers can give, we have to ensure that they feel perfectly free to communicate and exchange their views with their lawyer without fear that that would be reviewed and used to their prejudice. Carried forward to the point that we are talking about now, you have to have a candid exchange among lawyers in presenting cases to the Court in order to effectively represent your client whether your client is the Government of the United States or a private company. And that type of debate, which often involves pointing out inconsistencies in the decision, even flaws in your own legal position, say, "This is the argument, but this part of the argument is really quite weak and we have to be worried about that." Those sorts of things you do need to thrash out and discuss and elaborate on. And yet if that was then revealed to your adversary or to the Court, it would obviously prejudice the presentation. And if those things were going to be regularly revealed, people wouldn't make those types of analyses and judgments. They wouldn't say, "This is a weak argument. What are we going to do about that? Should we really make that argument?" They would not commit those to writing and the adequacy of the legal counsel and advice would suffer, and the role of the advocate before the court in vindicating the rule of law on which the courts rely, would also suffer. Senator CORNYN. Mr. Chairman, it may already be part of the record, but if it is not, I would ask unanimous consent at this point in the record that we would make the letter of former Solicitor Generals, appointed both by Democrat Presidents and Republican Presidents who agree that these Solicitor General memos should Chairman SPECTER. Without objection, so ordered. Judge Roberts, again, thank you, and you may be nearing the end of the process, which I am sure is a great relief to you and your wife and friends. Let me first address Senator Cornyn's point. The memos that were stolen from offices of the Senators on this Committee, stolen by a Republican staffer who was discharged, that case was turned over to the Justice Department. I sent a letter to the Attorney General yesterday applauding the fact that the Justice Department had in fact successfully prosecuted in Massachusetts a person who had hacked in and stolen the telephone records of Paris Hilton. And I asked the Attorney General to please ask our Special Counsel in this case to take a look at the precedent of the Paris Hilton case and see if he can perhaps protect our records as much as he wants to protect that poor young lady's telephone records. [Laughter.] Senator DURBIN. The second aspect I would like to raise is this. Many of these documents we are talking about have been given before. Justice Rehnquist offered similar documents to the Committee for consideration, so it is not unprecedented for us to ask, nor for the Government to produce them on a voluntary basis, no theft involved. If I could clear up a couple other things that have been raised, I read and reread the sentence which you and Senator Kennedy debated about the EEOC, and I want to read it again, conceding the fact that the word "un-American" is in quotes and clearly refers to something else. But the sentence in your memo reads in its entirety as follows: "We should ignore that assertion in any event, as well as the assertion that the EEOC is 'un-American', the truth of the matter notwithstanding." Now, those are your words but for the quotes "un-American." What did you mean when you say "the truth of the matter notwithstanding?" It suggests that you agree with that conclusion. Judge ROBERTS. The first part of the sentence refers to that assertion, and that assertion was the assertion that President Reagan had promised to abolish the EEOC. That as the issue that I said in the memorandum I had been unable to determine whether that was accurate or not. It was the truth of that matter, of that assertion that I couldn't verify. The reference to “un-American" was not my language. It was the language of the person who complained and said, “You need to do something about the EEOC," and our response was what we're going to do is make sure that the EEOC is not interfered with because of your complaints. Now, he may have felt that he was being treated in an “unAmerican" way and wanted something done about it. But it was not my view, and again, the language was in quotes to make clear that it wasn't my view. Senator DURBIN. I do not question the fact the language was in quotes, but I think there is at least some ambiguity in what was said. It might have been said more precisely if the conclusion that |