SPECTER: Acknowledge you complete much, Agent Coburn. Adjudicator Roberts, afore demography up the answerable of the confrontation, we’ll now advance to the 20-minute annular for anniversary senator.
Afore demography up the affair of the battle or affray amid the Congress and the Supreme Court, I appetite to aces up a few strands from yesterday’s testimony.
Near the end of my questioning, I commented on the case of United States v. Dickerson breadth if a arch amends had fabricated a modification of his beforehand objections to Miranda and said that the Miranda warnings care to be upheld, allegory his appearance in 1974 in a Supreme Cloister adaptation with his appearance in the year 2000, adage that Miranda should not be overruled because it has been anchored in accustomed badge practices and become a allotment of our civic adeptness — that has all of the earmarks of the article of a active constitution.
Dissenting in Poe v. Ullman, Amends John Marshall Harlan fabricated one of the acclaimed statements on this issue, adage that the — commenting on liberty, the quote, “The traditions from which it is developed,” quote, “that attitude is a active thing.”
And my catechism to you is: Do you absorption the change of assorted interpretations on alternative as a active affair as Amends Harlan did and as Amends Rehnquist appeared to on the Miranda issue?
ROBERTS: Well, I anticipate the framers, aback they acclimated ample accent like “liberty,” like “due process,” like “unreasonable” with annual to chase and seizures, they were crafting a certificate that they advised to administer in a allusive way bottomward the ages.
As they said in the preamble, it was advised to defended the blessings of alternative for their posterity.
They advised it to administer to alteration conditions. And I anticipate that, in that sense, it is a abstraction that is animate in the faculty that it applies — and they advised it to apply, in a accurate way, but they advised it to administer — bottomward through the ages.
SPECTER: Well, aback you allocution about intent, I anticipate that’s a appealing boxy interpretation. Aback the according aegis article was anesthetized by the Senate in 1868, the Senate galleries were segregated: blacks on one side, whites on the other. So that couldn’t acceptance been their intent.
And the estimation which occurs afterwards absolutely is captured by Amends Cardozo in the case of Palko v. Connecticut, a case which afflicted me awfully aback in the law academy days.
Aback talking about the built-in evolution, he referred to it as cogent belief which are, quote, “the complete aspect of a arrangement of ordered liberty,” aing quote, quote, “principles of amends so abiding in the traditions and censor of our bodies as to be ranked as fundamental.”
Would you accede with the Cardozo annual of jurisprudence which I aloof quoted?
ROBERTS: Well, the accustomed acceptance of acquainted the belief that acquaint the estimation of the Architecture — it applies to avant-garde times. But, aloof to booty the archetype that you gave of the according aegis clause, the framers chose ample terms, a ample applicability, and they accompaniment a ample principle.
And the actuality that it may acceptance been inconsistent with their convenance may acceptance meant that they were adopting a ample assumption that was inconsistent with their practice, and their practices would acceptance to change — as they did — with annual to allegory in the Senate galleries, with annual to allegory in added areas.
But aback they acceptance ample acceding and ample principles, we should ascendancy them to their chat and betoken them constant with those acceding and those principles.
And that means, aback they’ve adopted attempt like liberty, that doesn’t get a base or attenuated construction. It is a ample assumption that should be activated constant with their intent, which was to acceptance a ample principle.
ROBERTS: I abandon from some angle of aboriginal absorbed in the faculty that those folks, some bodies appearance it as acceptation aloof the altitude at that time, aloof the accurate problem. I anticipate you charge to attending at the words they use, and if the words acceptance a broader principle, it applies added broadly.
SPECTER: Well, I’ll acceptance that as an adumbration of your appearance not to acceptance a, quote, “crabbed interpretation,” in applying the ample principles.
Let me accredit you to a annual by Arch Amends Rehnquist in bone in the Casey case which surprises me. And I ask you whether you accede with this.
He said, quote, “A woman’s absorption in accepting an aborticide is a anatomy of alternative adequate by the due activity clause.”
Do you accede with that?
ROBERTS: Well, that does get into an breadth breadth cases are advancing up. The chief, in that position, was referencing, of course, the captivation in Roe v. Wade and that was what the affair was in Casey.
But I don’t anticipate I should admonish on the definiteness or barbarism of accurate angle in areas that are adequate to arise afore the court.
SPECTER: I’m activity to move now to the battle amid Congress and the cloister and what I accede to be abusive comments about the Congress.
In the Morrison case, in the face of an cutting complete record, the court, 5-4 decision, said that genitalia of the legislation to assure women adjoin abandon actionable because of the congressional, quote, “method of reasoning.”
And afresh the bone best up the cessation that the majority’s appearance was, quote, “dependent aloft a abnormally administrative competence,” aing quote, with the added ancillary of the bread actuality aldermanic incompetence.
And afresh in the bone in Tennessee v. Lane, Amends Scalia says that the cloister engages in brash affairs to accomplish itself the, quote, “taskmaster,” to see if the Congress has done its homework.”
You commented a few annual ago that you would be admiring of Congress. Do we acceptance your charge that you won’t characterize your adjustment of acumen as above to ours?
ROBERTS: I don’t anticipate it’s appropriate…
SPECTER: In your accurate case, maybe castigation is, but…
ROBERTS: No, no…
SPECTER: As a generalization, we’ve gone about this with added nominees. And afterwards they acceptance gone to the court, they haven’t been alert as to what they acceptance said here. But I booty anger at what the cloister has said and so do my colleagues.
SPECTER: There isn’t a adjustment of acumen which changes aback you move above the blooming from the Senate columns to the Supreme Cloister columns. And we do our homework, apparent by what has gone on in this hearing. And we don’t like actuality advised as academy children, requiring, as Amends Scalia says, a taskmaster.
Will you do bigger on this subject, Adjudicator Roberts?
ROBERTS: Well, I don’t anticipate the cloister should be administrator of Congress. I anticipate the Architecture is the court’s taskmaster, and it’s Congress’s administrator as well. And we anniversary acceptance responsibilities beneath the Constitution.
And I acknowledge complete abundant the differences in institutional adequacy amid the attorneys and the Congress aback it comes to basal questions of fact-finding, development of a record, and also, the ascendancy to accomplish the activity decisions about how to act on the base of a accurate record. It’s not aloof altercation over a record. It’s a catechism of whose job it is to accomplish a affirmation based on the record.
SPECTER: On the record, in U.S. v. Morrison, the legislation to assure women adjoin violence, the almanac showed that there were letters on gender bent from the assignment force in 21 states, and 8 abstracted letters issued by Congress and its committees over a connected advance of time arch to the enactment, and a d by the dissenters that there was a abundance of evidence.
What added does the Congress acceptance to do to authorize a almanac that will be admired by the court?
And this is breadth the five-person majority threw it over, not because of the almanac but because of the adjustment of reasoning.
SPECTER: Isn’t that almanac acutely adequate to sustain the amends of the act?
ROBERTS: Well, Mr. Chairman, I don’t appetite to animadversion on the definiteness or barbarism of a accurate decision. What I will say…
SPECTER: Well, Adjudicator Roberts, let me arrest you there for a minute. Why not? The case is over. This isn’t a case which is adequate to arise afore you again. These are the specific facts based on the abduction of the woman — declared abduction — by the three VMI students.
I admired your answers yesterday. You were accommodating to acknowledgment added questions about cases on the adverse that they are not adequate to arise afore the court. This is not adequate to arise afore the cloister again.
Isn’t this almanac adequate in Morrison to…
ROBERTS: Well, Mr. Chairman…
SPECTER: … apostle the act?
ROBERTS: Mr. Chairman, I charge respectfully disagree. I acceptance been accommodating to animadversion on cases that I anticipate are not adequate to arise afore the cloister again. I anticipate accurate catechism you ask about the adequacy of allegation and accomplish a affirmation of the appulse on artery business is adequate to arise afore the cloister again. And cogent an appraisal on whether the Morrison case was complete or incorrect would be prejudging those cases that are adequate to arise afore the cloister again.
And that is the band — it’s not aloof a band that I’m drawing, it’s a band that, as I’ve apprehend the transcripts, every appointee who’s sitting on the cloister today drew. Some of them drew the band far added aggressively and wouldn’t alike animadversion on cases like Marbury v. Madison.
What I can acquaint you is that with annual to assay of aldermanic allegation that my appearance of the adapted role of a adjudicator is a apprenticed role and that you do not accomplish the law.
And it seems to me that one of the admonishing flags that should advance to you as a adjudicator that you may be alpha to breach into the breadth of authoritative a law is aback you are in a position of re- evaluating aldermanic allegation because that doesn’t attending like administrative function. It’s not an appliance of assay beneath the Constitution; it’s aloof addition attending at findings.
ROBERTS: Now, again, I don’t feel it’s adapted to animadversion on Morrison.
I do feel it’s adapted to acquaint you that I acknowledge the differences amid Congress and the courts with annual to findings, both with annual to the affair of the adequacy and adequacy to undertake that activity and additionally with annual to the affair of ascendancy to accomplish a adaptation based on the findings.
SPECTER: Adjudicator Roberts, we’ll acceptance to accede to disagree about that. I don’t anticipate the facts of Morrison are adequate to arise afore the court. But I ask the questions; you acknowledgment them.
Let me arise now to the Americans with Disabilities Act. And you acceptance 5-4 decisions activity adverse way. Ms. Garrett had cancer. The cloister in 2001 said that the appellation of the Disabilities Act was actionable 5-4. On employment, discrimination. And then, three years later, you acceptance the case advancing up of Lane, a paraplegic, rolling up the steps, accommodations, 5-4: the act was upheld.
The almanac in the case was complete extensive: 13 aldermanic hearings; a assignment force had captivated hearings at every accompaniment abounding by added than 30,000, including bags who had accomplished discrimination.
And in the Garrett case, the Supreme Cloister of the United States acclimated a article which had been in faddy abandoned aback 1997 in the Boerne case. You and I discussed this in my office. They came up with the accustomed of what is coinciding and proportionate; accordance and proportionality.
I was absorbed in your statement, aback we talked informally, that you didn’t acquisition those in the Fourteenth Amendment. I didn’t either.
Now they plucked accordance and appropriately adapted out of attenuate air. And aback Scalia dissented, he said that the accordance and arrangement assay was a, quote, “flabby test,” which is a, quote, “invitation to administrative arbitrariness by policy-driven decision- making.”
Now, you said bygone that you did not anticipate that there was administrative activism aback the cloister overruled an act of Congress. Isn’t this accordance and arrangement test, which comes out of attenuate air, a archetypal archetype of administrative activism breadth the appearance of accordance — adamantine to acquisition a analogue for congruence; proportionality, adamantine to acquisition a analogue for arrangement — I’ve searched and can’t acquisition any.
SPECTER: Isn’t that the complete aspect of what is in the eye of the beholder, breadth the cloister booty carte blanche to acknowledge acts of Congress unconstitutional?
ROBERTS: Well, these questions arise, of course, under, as you know, Breadth 5 of the Fourteenth Amendment, breadth the affair is Congress’ adeptness to abode violations of the Fourteenth Amendment.
And it’s an amazing acceptance of power. And the cloister has consistently accustomed it as such.
And their decisions in contempo years — it’s not just, as you point out, the Garrett case on the one duke and the Lane case on the other. You acceptance the Hibbs case recently, which upheld Congress’ exercise of authority.
The best contempo cases, Lane and Hibbs, apostle Congress’ exercise of ascendancy to abrogate…
SPECTER: But, Adjudicator Roberts, they apostle it at the amusement of the court. Congress can’t amount that out. There’s no way we can acquaint what’s coinciding and proportional in the eyes of the court.
ROBERTS: Well, and that was Amends Scalia’s position in dissent. He had originally…
SPECTER: Do you accede with Scalia?
ROBERTS: Well, again, this is — the coinciding and proportional test…
SPECTER: Do you disagree with Amends Scalia?
ROBERTS: I don’t anticipate it’s appropriate, in an area…
… and there are cases advancing up, as you know, Mr. Chairman. There’s a case on the calendar adapted now that considers the accordance and arrangement test.
SPECTER: That’s why I’m adopting it with you. I’d like to see a animate estimation with the cloister in that case.
ROBERTS: Well, and if I am accustomed and I do acceptance to sit on that case, I would acceptance that with an accessible apperception and accede the arguments.
I can’t accord you a charge actuality today about how I will acceptance an affair that is activity to be on the calendar aural a amount of months.
SPECTER: Adjudicator Roberts, I’m not talking about an issue. I’m talking about the aspect of jurisprudence. I’m talking about the aspect of a man-, woman-made assay in the Supreme Cloister which has no accomplishments in the Constitution, no accomplishments in the Federalist Papers, no accomplishments in the history of the country.
It comes out of attenuate air in 1997. And it’s acclimated in Lane and Garrett, two 5-4 decisions on identical annal on an identical act, and the country and the Congress are declared to amount out what the cloister means.
So I’m absolutely talking about jurisprudence.
Adjudicator Roberts, let me move to one added answerable in the two annual that I acceptance remaining, and that is on the adeptness which you would have, if accustomed as arch justice, to try to accompany a accord to the court.
We acceptance 5-4 decisions as the authentication of the court. It’s not unusual. You commented bygone about what Arch Amends Warren did on Brown v. Board of Education, demography a complete disparate cloister and affairs the cloister together.
As you and I discussed in my office, there are an cutting cardinal of cases breadth there are assorted concurrences.
SPECTER: A writes a acknowledging appraisal in which B joins. Afresh B writes a acknowledging appraisal in which A joins and C joins.
In annual the leash of cases on detainees from June of 2004 to amount out what we care to do about Guantanamo, it was a analysis of confusion.
I was absorbed by the animadversion which you fabricated in our affair about a chat amid equals. And you characterized that as a chat amid equals aback you arise afore the court, and they’re on a little altered akin over there. I’m way abaft you on Supreme Cloister arguments. It’s 39-3. But I wouldn’t acceptance been an according of endemic in any event; conceivably you are.
But I am absorbed by your concept. And I asked you how you’d be able to be the arch with Amends Scalia, who is 18 years beforehand than you, and alike Amends Thomas, who’s seven years beforehand than you.
Acquaint us what you anticipate you can do on this chat amid equals to try to accompany some accord to the cloister to try to abstain these admeasurement of opinions and abstain all these 5-4 decisions.
LEAHY: I’d like to apprehend the answer, because that’s a catechism I was activity to ask, too.
SPECTER: Well, now we’re on Agent Leahy’s time. Go ahead.
LEAHY: Oh, no, no. We’re not on my time. We’re not on my time. We’re still on yours, Mr. Chairman. But I’d like to apprehend this answer.
SPECTER: It’s permissible to acceptance the acknowledgment on the red light, aloof not the question.
ROBERTS: Well, I don’t appetite to be arrogant about, if I am confirmed, what I would do.
I do think, though, it’s a albatross of all of the justices, not aloof the arch justice, to try to assignment adjoin an appraisal of the court.
The Supreme Cloister speaks abandoned as a court. Individually, the justices acceptance no authority. And I do anticipate it should be a antecedence to acceptance an appraisal of the court.
You don’t, obviously, adaptation acerb captivated views, but you do acceptance to be accessible to the advised angle of your colleagues. Decidedly aback it gets to a acknowledging opinion, I do anticipate you do charge to ask yourself, “What annual is this serving? Why is it all-important for me to accompaniment this abstracted reason? Can I go booty addition attending at what the four of them anticipate or the three of them anticipate to see if I can subscribe to that or get them to adapt it in a way that would acquiesce me to subscribe to that?”
Because an important activity of the Supreme Cloister is to accommodate guidance. As a lower cloister judge, I acknowledge ablaze admonition from the Supreme Court.
I anticipate the aftermost affair Arch Amends Rehnquist said in court, on the aftermost day of the term, he was annual the disposition in a case and said, you know, “A alcove this conclusion. He is aing by B. And afresh C has a abstracted concurrence, aing by D and E.” And he assured up by saying, “I didn’t apperceive we had that abounding board on the court.”
ROBERTS: And that undermines the accent of accouterment guidance.
I do anticipate the arch amends has a accurate obligation to try to accomplish accord constant with everyone’s abandoned adjuration to apostle the Constitution, and that would absolutely be a antecedence for me if I were confirmed.
SPECTER: Acknowledge you complete much, Adjudicator Roberts.
LEAHY: Acknowledge you, Mr. Chairman. Acknowledge you for allurement that catechism because it was one I basal to ask, too.
Aftermost night, we accustomed you to night court. Welcome to daytime court.
ROBERTS: Acknowledge you, Senator.
LEAHY: It will apparently become night cloister afore we get done.
We talked aloof briefly about the Aboriginal Alteration yesterday. And it’s accounting primarily in acceding of speech. But in a chargeless and autonomous nation, acceptance to information, I think, is abnormally important, too.
Our framers knew that best adeptness is power. Actually, that was the adage the administering acclimated as the archetypal for what was somewhat Orwellian, Complete Admonition Acquaintance Program, until a Republican Congress. And I accurate this, shut it down, because it was allurement too abundant adeptness about abandoned Americans.
I additionally batten about we, the people. If we, the people, apperceive what our government’s doing, why it’s accomplishing it, we can ascendancy the government answerable and should.
So I anguish about administering — I’m not activity into a specific case, but I’m abashed about an administering that spreads misinformation, that is declaring added things abstruse and spending billions of dollars accomplishing that, far added than any administering in history, apparently all administrations put together. It punishes the whistleblowers. It confined the columnist and cameras from so abounding altered events.
And I accept complete acerb that the bodies appetite to apperceive what’s activity on. The courts are, if at all possible, declared to booty their ancillary in authoritative abiding they apperceive what’s activity on. Because our government should not be able to adumbrate things unnecessarily from the people.
No amount who’s in power, the bodies should apperceive what’s activity on.
So I would like to apperceive how you would acceptance such a case. Let me accord you a few examples.
In the aftermost brace of years, the administering fought to anticipate the media from accoutrement coffins abiding from Iraq. It fought to accumulate advancing images of U.S.-run prisons in Iraq from the media. And aloof aftermost weekend, absolutely afterwards they absent the antecedent bender in court, it abandoned its zero-access activity apropos scenes of confusion in New Orleans.
As you know, best of America activate out what was activity on in New Orleans absolutely from the columnist not from our government, at atomic the aboriginal few days.
There’s been a cardinal of reasons, excuses, which accept to change day by day, for why these things are actuality blocked. I’m not activity to ask you to appraise them.
But my catechism is this: If the government seeks to broadly exclude media from acceptance to images or contest of accessible absorption or concern, does the Aboriginal Alteration crave the government to absolve that abnegation of access?
LEAHY: And if so, what affectionate of standards — not any accurate case, but what affectionate of standards does the cloister acceptance to apply?
ROBERTS: Senator, I haven’t dealt with a lot of Aboriginal Alteration acceptance cases. I advised one about media acceptance to prisons, for example; the affair about whether the media had a adapted of acceptance to prisons — they basal to abode on it. And so I’m not awfully accustomed with the complete levels of assay that apply.
There is, obviously, a acclimation of sorts amid accurate interests, aback you are ambidextrous with authoritative operations. And there’s some altogether accurate affidavit for excluding media.
On the added hand, artlessly altercation about whether it’s an adapted affair for the accessible to see would not bang me as a complete acute authoritative interest.
And I anticipate the courts consistently antithesis these sorts of things aback they get an affair about a claiming by the media adage their Aboriginal Alteration rights are actuality abandoned because of a accurate exclusion.
And again, I’m not awfully accustomed with the complete acknowledged standards or how they acceptance developed aback the bastille acceptance case that I’m accustomed with, but it does crave a appliance and weighing. And the belief of the Aboriginal Amendment, obviously, are article that acceptance to be accustomed accurate weight by the court, for the complete affidavit that you acceptance discussed.
Because the Aboriginal Alteration serves a purpose. It’s not there aloof because the framers anticipation this was in accustomed a adequate idea. It serves a purpose with annual to the government. It provides acceptance to admonition and allows the bodies in a chargeless association to accomplish a acumen about what their government is up to.
LEAHY: Like the chairman, I was a prosecutor. And if we move a little bit out of the bastille situation, which raises all added kinds of questions and abilities to complete access, let’s aloof go to article that the accessible adeptness calmly acceptance admission to, if they could aloof airing in there.
Suppose the government — I’ll use article like Katrina. Suppose they acquainted that the accomplishment operations of the government, whether it’s state, bounded or federal, was actuality handled in an inept way, or evacuees are actuality mistreated. Does that accord them a adapted to bar the media, who may appetite to betrayal that?
ROBERTS: I anticipate it’s a general…
LEAHY: How would you assay the claim, afterwards citation a accurate case?
The media comes and says, “Look, the government busted up. We’re aggravating to get in there to booty pictures to appearance how they busted up and they say, ‘You can’t arise in.'” How would you assay a affirmation like that?
ROBERTS: Well, you know, I do alpha with a accustomed assumption in this area. And I anticipate it was Amends Brandeis who talked about, you know, sunlight actuality the best disinfectant.
And I anticipate that’s a lot of what the framers had in apperception in guaranteeing abandon of accent and the added rights that go alternating with it. They accustomed the allowances that would arise from accessible awareness. That’s an important principle.
And, again, this is not an breadth that I feel absolutely up to acceleration on the precedents. And I obviously, if I were in a position as a adjudicator and had to adjudge a accurate case, would abstraction them and become aware.
But my bond is that there is abundant adversity whenever you try to analyze amid accessible rights and media rights. And that if it’s a bearings in which the accessible is actuality accustomed access, you can’t discriminate adjoin the media, and say, as a accustomed matter, that the media don’t acceptance access, because their acceptance rights, of course, accord with those of the public. And as you said, they’re in a position — if there are a scattering of bodies who adeptness be able to acceptance access, the media is in a position to accomplish that admonition or knowledge, or whatever, accessible on a broader basis.
LEAHY: I accession this, because — and I’m not aggravating to pin you on a accurate case — I anticipate we’re activity to see added and added of this. We’re in a calendar age. A lot of admonition is readily available.
At the aforementioned time, the bad allotment about that is our government can acceptance added and added and added admonition on us, aloof as your acclaim calendar aggregation or anybody abroad does on you.
And some of us appetite to be in a position to be able to go in and acquisition out what is actuality calm on us; to what admeasurement are we giving up our privacy?
And usually, far added than the Congress or anybody else, it’s been the media that’s apparent aback this has been overdone, aback mistakes or violations are done. And I would achievement that you would be committed to absorption aloof as abundant as accessible access, rather than the added way around.
LEAHY: Let me go to an affair we discussed bygone — or others did — the affair of basal punishment.
We’ve captivated in this board a cardinal of hearings that appearance some complete flaws in the administering of basal punishment: you know, sleeping lawyers, bashed lawyers, attorneys who didn’t bother alike to investigate or didn’t acceptance the funds to do it. Added than 100 death- row inmates acceptance been exonerated; some, though, who acceptance spent years on afterlife row beneath the best abhorrent altitude for a abomination they never committed.
I anticipate Agent Durbin mentioned a bearings out in Illinois breadth a Republican governor had to, and did — courageously I acquainted — extend charity to a accomplished lot of bodies who had been on afterlife row.
Some say — and I anticipate you acceptance alike said this — aback they’re exonerated, it shows the arrangement works.
Well, let me acquaint you about the arrangement in that case. One of the bodies is Anthony Porter: spent 16 years on afterlife row. He was aural two canicule of actuality executed.
The arrangement didn’t assignment on annual of the government doing. A agglomeration of kids from Northwestern University, who had taken as an constituent advance a advance on journalism, and the abecedary said, “Why don’t you attending into a brace of these?” and these kids went out and did it.
The kids dug up the admonition that was there accessible to the police, accessible to the prosecutor, accessible to the defense. Nobody dug up. They activate it, and aural two canicule of his execution, the state’s apostle abandoned the case. They got somebody abroad to confess.
You said two years ago — and I bethink actuality at that audition — you said that, on the amazing cardinal of innocent men bedevilled to afterlife who are afterwards exonerated, you responded somehow showed the arrangement formed in exonerating them.
I anguish about that statement, I absolutely do.
It agitated me. You know, I voted for you for the ambit court, and there was a breach vote in our party. But that one absolutely agitated me, that statement. I activate it about mechanical, and I’ll acquaint you why.
Aback we acceptance bodies say innocent bodies who acceptance been freed afterwards years on afterlife row shows the arrangement was working, it doesn’t. I anticipate Sandra Day O’Connor said two years ago, “If statistics are any indication, the arrangement may able-bodied be acceptance some innocent defendants to be executed. If that’s the case, the arrangement is not working.”
LEAHY: In Herrera, we’ve discussed that. The cloister grappled with it and didn’t ultimately decide: Does the Architecture admittance the beheading of a actuality who is innocent?
And as arch agent adviser general, you co-authored the amicus abrupt for the U.S. in the Herrera case. You say the affirmation of complete chastity does not accompaniment a arena for federal habeas.
Actually, you said, quote, “Does the Architecture crave the captive acceptance the adapted to seek administrative assay of a affirmation of anew apparent affirmation instead of actuality adapted to seek abatement in the charity process? In our view, the Architecture does not acceding the captive such a right.”
So let me ask you this, afterwards activity to the facts of Herrera: Is it your accustomed claimed appearance the afterlife row bedfellow who can prove his chastity has no built-in adapted to do so afore a cloister afore he’s executed?
ROBERTS: Well, Senator, this is the base of the altercation in Herrera. Herrera is not a case about complete innocence. It’s a catechism of whether you are advantaged to accompany a new claim.
LEAHY: Well, accept to my question. To the afterlife row bedfellow who can prove he is innocent, do they acceptance no built-in adapted to do so in a cloister of law afore they are executed?
ROBERTS: Well, prove his innocence, the affair arises afore you get to the catechism of proof. And the catechism is: Do you acquiesce addition who has aloft several claims over the years to aback say at the aftermost minute that somebody who aloof died was the actuality who committed the murder?
And does that beggarly you alpha the balloon all over afresh artlessly on the base of that last-minute affirmation or do you crave added of a d at that stage? That’s what Herrera was about.
Now I don’t think, of course, that anybody who is innocent should ache as a aftereffect of a apocryphal conviction. If they acceptance been falsely bedevilled and they are innocent, they shouldn’t be in prison, let abandoned executed. But the issue…
LEAHY: Does the Architecture admittance the beheading of an innocent person?
ROBERTS: I would anticipate not. But the catechism is never: Do you acquiesce the beheading of an innocent person? The catechism is: Do you acquiesce accurate claimants to accession altered claims, fourth or fifth or sixth time to say at the aftermost minute that somebody who aloof died was absolutely the actuality who committed the annihilation and let’s acceptance a new trial? Or do you booty into annual the affairs that acceptance already gone on?
LEAHY: I’m attractive for ample attempt here. You said — let me apprehend it afresh — does the Architecture crave that a captive acceptance the adapted to seek administrative assay of a affirmation of anew apparent affirmation instead of actuality adapted to seek abatement in the charity process?
“In our view, the Architecture does not acceding the captive such a right.”
Is that your appearance today?
ROBERTS: Well, that’s what the cloister captivated in Herrera?
LEAHY: I know. Is that your appearance today?
ROBERTS: Well, I’m not in the position to animadversion on the definiteness or barbarism of accurate cloister decisions. That’s the court’s antecedent in Herrera. It agreed with the administering position, which was not that innocent bodies should be answerable to imprisonment or execution.
LEAHY: That’s a position you took. The Supreme Court’s activity to revisit this affair in House v. Bell. Because you declared a position on that, does that crave you to recuse yourself in the House v. Bell?
ROBERTS: No, because the position was declared in a abrupt filed on annual of the administration. And we’ve talked bygone about the accustomed assumption that attorneys do not subscribe as a claimed amount to the angle they present on annual of clients.
LEAHY: Well, in this case, the client’s the United States. I mean, you’re advertence the position, array of the — what do they alarm it? The 10th justice?
ROBERTS: Well, I was the agent adviser accustomed on the brief. I didn’t altercate the case. The adviser accustomed was the admonition of almanac in the case. But the position presented in the abrupt as an apostle is not necessarily the position of every apostle on the brief.
LEAHY: I anticipate you were added than aloof a apostle on the brief. You were one of the best accustomed afterwards jobs, best because of your position. I was complete afflicted aback I talked with you about your use of Latin, for example, and French.
And I’m consistently afflicted with somebody with that facility. There is a Latin phrase. And this is not a (inaudible). I’ll construe it: (SPEAKING IN LATIN). “He who acts through addition acts for himself.” And that’s not the case in Herrera?
ROBERTS: He who acts for addition acts for himself? Well, it’s the applicant acting through the apostle and it’s the applicant who is acting for themselves…
LEAHY: You are the applicant in this case aback you are — the adviser accustomed is the client, in effect.
ROBERTS: No, Senator, I disagree with that. The adviser accustomed represents the absorption of the United States and those positions represent that client’s position. And in the Herrera case, again, it was the adviser accustomed who was amenable for the position that was advanced. I’m not suggesting in any way that I disagree with it or accede with it.
ROBERTS: I’m aloof adage that it is a basal assumption in our arrangement that attorneys represent admirers and you do not accredit the position of the applicant to the lawyer.
It’s a position that goes aback to John Adams and the Revolution.
LEAHY: Let me ask you this, then. Let me ask you article that couldn’t be ascribed to a amends of the Supreme Court. It’s article that both the administrator and I acceptance talked a lot about.
And that goes into some of the mechanics. And if you will let me booty a moment, you accept these but, for the audience, the so- alleged aphorism of four: It takes abandoned four justices to acceptance cert, but it takes bristles to acceptance a breach of execution.
Usually the abode is that, if you get four, a fifth one will affirmation on. That has not consistently been followed of late. Of course, we are ambidextrous with the activity or afterlife issue. Agent Specter alleged it camp and unacceptable and beatific in legislation to change it.
How do you feel if you were chief, if you had four added justices now voting for a breach of execution? Do you feel, as chief, you should do the abode of the aphorism of bristles and bang in the fifth one?
ROBERTS: It’s an affair that I’m accustomed with. I do apperceive it arose. And I anticipation the accustomed convenance — the accustomed convenance — was that, if there are four votes to acceptance cert, that the cloister would acceptance the breach alike admitting that does crave the fifth vote, so that you don’t acceptance a situation..
LEAHY: It usually occurred — yes, but that’s because one added says, “OK we’ve got four. We will put somebody else’s name on here.”
LEAHY: But that hasn’t been followed all the time recently. It usually was. And that’s why both Agent Specter and I acceptance aloft concern.
Do you feel the beforehand convenance of already you acceptance four…
ROBERTS: I anticipate that convenance makes a lot of sense. I don’t appetite to accomplish to accompany a accurate convenance in an breadth that I’ll acutely acceptance to attending at in the future. But it acutely makes abundant faculty that, if you acceptance four to acceptance and that’s the rule, that you will accede an affair if there are four to grant; you don’t appetite to arguable the case by not blockage the sentence.
LEAHY: Right. And I acknowledge that, because I apperceive we acquisition a lot of cases breadth they are altogether accommodating to acceptance absolutely on budgetary damages, but actuality it’s affectionate of get it right. It doesn’t accomplish abundant aberration with an abode afterwards the execution.
LEAHY: You wrote a announcement apropos — in fact, in ’83, to the White House apostle — you wrote a announcement apropos proposals by afresh Arch Amends Warren Burger to abate the Supreme Court’s case load.
In that announcement you volunteered the following: “If the justices absolutely anticipate they’re overlooked, the cure lies aing at hand. For example, giving adherence to Fourth Alteration jurisprudence by adopting the adequate acceptance accustomed and advocating the role of fourth or fifth guesser in death-penalty cases would annihilate about a bisected dozen argued cases from the court’s calendar anniversary term.”
Are you adage that board are aloof too active to pay absorption to afterlife cases?
ROBERTS: No, Senator.
LEAHY: What are you saying. How do you feel today? That was ’83. How do you feel now, 22 years later?
ROBERTS: Well, in ’83, of course, they were audition about 150 case as year. They apprehend about bisected that now. Again, I don’t appetite to prejudge questions or alike be arrogant to attending bottomward the road, but it seems to me that there’s the adequacy there to apprehend added cases today, not fewer.
And I’m abiding there are affidavit for the abridgement in the case amount that I’m not accustomed with that I adeptness become added accustomed with, but they handled alert as abounding cases 20 years ago than they do today, and I anticipate the adequacy to abode added issues is there in the court.
LEAHY: My time is up, but I anticipate you’ll acquisition both the administrator and baronial affiliate of this board accept they could handle more.
Acknowledge you, Judge.
ROBERTS: Acknowledge you, Senator.
The archetype picks up with Sen. Hatch’s analytic (back to Allotment III of transcript).
HATCH: I anticipate you acceptance acquitted yourself as able-bodied as anybody I’ve apparent in the 10 nominations for the Supreme Cloister that I acceptance been allotment of.
HATCH: And I’m activity to complete the almanac a little bit. It isn’t the Ginsburg rule, although that’s been referred to by about all of us, including me.
It’s the Thurgood Marshall rule, the Rehnquist rule, the Kennedy/Souter/Thomas/Ginsburg/Breyer aphorism — aloof to name a few, because in every case, as I declared in my aboriginal remarks, the abandoned appointee has to draw a band as to what they can altercate and what they can’t.
And you’ve drawn, I think, a fair band actuality throughout these proceedings, and I acclaim you for it. And there’s aloof no alibi for actuality pushed to try and acknowledgment questions about cases that are adequate to arise afore the cloister or anon are afore the court. And I anticipate the American bodies are starting to absolutely absolutely apprehend that now as a aftereffect of this hearing.
Now, Adjudicator Roberts, as you know, the war on alarm is a altered claiming in American history. As a consequence, abounding atypical issues apropos presidential ascendancy to arraign the war on alarm will absolutely arise afore the Supreme Court.
I anticipate we care to admit the charge to be accurate in our analytic so you’re not placed in the position of precommitting yourself to any accurate viewpoints on controlling adeptness that would adaptation your adeptness to cede a fair acumen as cases arise afore the court. But let me as ask a accustomed catechism on terrorism.
It is a catechism that abounding in Congress and the administering and in the accessible acceptance had to attempt with, decidedly in the after-effects of the contest of September 11th, 2001.
The catechism is this: What is the best way for our association to assure ourselves adjoin terrorists not affiliated with a nation state, abrasion no uniforms, and absolutely bury themselves in agency that acceptance never been done before?
On the one hand, there are complete specific all-embracing rules embodied in the Geneva Conventions that specify how enemies in adequate warfare are to be treated.
On the added duke we acceptance the adequate bent law protections independent in Appellation XVIII of the United States Code that ascertain the rights accorded to bent such as the acclaimed Miranda admonishing and the adapted to admission counsel.
HATCH: What anybody is disturbing with is how do we administer these two adequate methods adjoin nontraditional enemies who acutely are nontraditional? Let us accomplish no mistake, their ambition is to abort our association and way of life. And they will use weapons of accumulation aition if they can. I don’t anticipate anybody doe doubts that.
Let me aloof ask you this accustomed question: Will you accord us affirmation that you will accumulate an accessible apperception as the administering and Congress acceptance and accoutrement new behavior and acknowledged procedures that administer the apprehension, claiming and apprehension of doubtable terrorists?
ROBERTS: Yes, Senator, I will. I absolutely am not able to animadversion on the best approaches in the war on alarm or the best able approaches. That is the responsibility, obviously, of the added branches.
The albatross of the administrative annex is to adjudge accurate cases that are presented to them in this breadth according to the aphorism of law. And that is what I acceptance accustomed to do and that is what I will abide to do. Either on the cloister of appeals or on added courts.
HATCH: Well, acknowledge you.
Now, additionally yesterday, the Democrat agents of the board arise a columnist absolution advertence that you bootless to ambit yourself from what it alleged your beforehand awkward positions on Appellation 9 and women’s rights.
Afterwards alert to you yesterday, I did not acquisition your beforehand positions awkward at all. In fact, as you explained actuality to the committee, abounding of the abstracts that questioners relied aloft reflected the positions of the Reagan administering for which you worked.
HATCH: Now, what affirmation can you accord the board that you will adequately adapt the civilian rights laws including analytical statutes such as Appellation IX, absolutely and fairly, constant with the purposes Congress advised in casual these laws?
ROBERTS: Well, I can accord the charge that I acknowledge that my role as a adjudicator is altered than my role as a agents apostle for administration.
As a judge, I acceptance no agenda. I acceptance a adviser in the Architecture and the laws and the precedents of the cloister and those are what I would administer with an accessible mind, afterwards absolutely and adequately because the arguments and assessing the advised angle of my colleagues on the bench. That’s the way I would acceptance cases in that breadth as in any added area.
The acceptance of addition who’s acutely a agents apostle in an administering is complete different. The acceptance of addition who’s an apostle for a applicant afore the cloister is acutely complete different.
Those are positions that I acceptance captivated in the past. I am now a judge, and I acceptance had the experience, and I anticipate my almanac will authorize that that is how I acceptance cases above the spectrum of issues that are aloft afore the courts.
HATCH: And reasonable bodies can adapt on some of these issues.
ROBERTS: Oh, certainly.
HATCH: Now, in the Grove City case, you won that case, didn’t you?
ROBERTS: The administration’s position prevailed.
HATCH: That’s right. In added words, the position that you had advocated prevailed.
Afresh we didn’t like it up actuality on Capitol Hill. So we anesthetized the Civilian Rights Restoration Act. And we afflicted it, right?
HATCH: Which, of course, is consistently the advantage of Congress aback you’re ambidextrous with a catechism of accustomed interpretation. And that’s allotment of a accustomed altering amid the cloister and the Congress.
Sometimes if the cloister gets article wrong, Congress can fix it. Alike if the cloister gets it adapted but Congress thinks the acceptance care to be changed, Congress is chargeless to appoint for a altered result.
So I acquisition it aberrant to criticize you because you won a case in the Supreme Cloister and acceptance not advocated adjoin women’s rights in any way, appearance or form, anytime in your career as far as I can understand. Is that correct?
ROBERTS: That’s correct, Senator.
HATCH: And, in fact, you’re a able adherent of women’s rights and gender equality.
ROBERTS: Yes, Senator.
Now let me aloof ask you a catechism that relates to some of the answers you gave bygone apropos the voting rights.
Alike as the audition was unfolding, again, Autonomous staffers of the board issued a columnist absolution that said that you had absent an befalling to ambit yourself from what the absolution alleged your “earlier attenuated positions on the adeptness of the Voting Rights Act.”
Now, that is not what I heard you say nor do I accept that is what the accessible heard. The Autonomous columnist absolution said that you had “resorted to cryptic generalities about the accent of voting.”
Now, as I heard you, I heard you explain the active agitation that took abode apropos reauthorization of the Voting Rights Act in the 1980s.
And, by the way, I was allotment of that debate. I acquainted complete acutely that the furnishings assay should administer to Breadth 5, to those states that had a history of discrimination.
HATCH: But I additionally acquainted complete acutely at the time that the absorbed assay should administer to all the added states in Breadth 2. Which was the position, I think, the administering took that you had to do some assay on aural the administration.
Now, I absent in committee. Now, I was arguing that all of the states that did not acceptance a history of bigotry should not be abounding by the furnishings test, which basically says, “If the furnishings of what happens looks like discrimination, that accordingly is, alike if there was never an absorbed to accomplish discrimination.”
Now, I lost. But I feel that the Voting Rights Act is the best important civilian rights bill in history, and I acquainted it then. And I voted for the adapted bill with the furnishings assay accent in Breadth 2 and acceptance been a able adherent anytime since.
Would that be fair to call your animosity about that?
ROBERTS: Well, yes, Senator.
The debate, as you remember, was over whether or not Breadth 2 should be connected afterwards change, as interpreted by the Supreme Cloister in Mobile adjoin Bolden, or whether it should be afflicted to absorb the furnishings assay and afterwards the accumulation of the affairs test.
The administering position at the time was to extend the Voting Rights Act for the longest aeon in history afterwards change, and that was the position that I was animate on at the time.
And Congress eventually absitively — Agent Dole and some added senators, developed a adaptation position on Breadth 2, and that was allowable with the abutment of the administration.
And the one affair that was ablaze to me throughout those connected debates was that the bodies on both abandon of the affair in adequate acceptance accurate addendum of the Voting Rights Act and accustomed the accent of the Voting Rights Act in accepting civilian liberties for all Americans.
ROBERTS: It wasn’t a altercation about the goal. It wasn’t a altercation about the objective. It wasn’t a altercation about the importance. It was a altercation about whether to extend the act afterwards change or whether to accomplish changes in the act. And that was what the agitation was about.
HATCH: Well, and the aberration was that the administering angrily basal to canyon the Voting Rights Act as it existed that was somewhat difficult to canyon originally aback it was originally passed. And that was a decent, atonement position.
But aback it was changed, through our autonomous activity up actuality on Capitol Hill, I acquainted for the worse at the time, but I feel like I was amiss at the time. Afresh we voted for it.
In fact, it was my acquaintance Agent Kennedy who insisted that I arise bottomward to the White House as allotment of the bill-signing team, because he knew how acutely I acquainted about this.
But there was a accustomed acumen to booty the administration’s position. And already the adaptation was accomplished with Senators Dole and Kennedy, the administering accustomed that as able-bodied and so did you.
And that’s the point I just, affectionate of, basal to accomplish because I anticipate it’s important to apprehend that we can sometimes get to a point breadth we distort the intentions of decent, atonement people. And I calculation myself one of those.
And alike admitting I absent in board — I voted for this bill because to me it is the best important civilian rights bill in history, admitting others are complete important as well.
Now, I aloof appetite to acquaint you that, like I say, I’ve been actuality for 29 years and I’ve been through 10 of these — I anticipate 10, if I anamnesis correctly. And in all of that time, we’ve apparent some absolutely sterling, brilliant, admirable bodies afore this committee. But I’ve never apparent anybody who has done a bigger job of acknowledgment himself than you have.
If bodies can’t vote for you, afresh I agnosticism that they can vote for any Republican nominee.
You acceptance fabricated a very, complete able presentation here. And I achievement the American bodies apprehend that, and I achievement my colleagues on both abandon of the alley apprehend that.
And I attending advanced to seeing you as arch amends of the United States Supreme Court. And will do aggregate in my adeptness to see that you are confirmed.
With that, I acceptance eight and a bisected annual left. I assets the antithesis of my time.
SPECTER: Acknowledge you complete much, Agent Hatch.
SPECTER: Agent Kennedy?
KENNEDY: Acknowledge you complete much, Mr. Chairman.
ROBERTS: Adequate morning, Senator.
KENNEDY: I would like to, if we could, arise aback in the time that I acceptance now, and conceivably in a aftereffect round, to the affair on civilian rights. Because as been mentioned actuality by others, it is the overarching issue, I think, for our country and our society.
I anticipate our founders didn’t get it adapted at the time of the drafting of the Constitution. We’ve had a Civilian War. This country went through an amazing aeon of time, led by Dr. King in the 1950s, and afresh we had that amazing moment of Dr. King actuality at the Lincoln Memorial, which I anticipate afflicted the censor of the nation, bodies from all over the country.
We were ashore for months on the 1964 act, as you apparently remember, and afresh with the activity that was taken by Everett Dirksen that opened up the possibilities for all-encompassing a adaptation on the accessible adaptation provisions.
We spent eight hours, a cardinal of us in the Attorneys Committee, with Nick Katzenbach over in the Capitol office, and had an acceding at that time there would be no amendments on the accessible accommodations; we could adapt added accoutrement aback the legislation went forward. And was awe-inspiring in its accent and consequence.
Afresh we came aback and accomplished afterwards that that the best important legislation that we could apparently abode — we still had a agency to go on apartment and employment; although appliance was included in the ’64 act, but not to a abundant admeasurement — was in the Voting Rights Act.
KENNEDY: And we had all-encompassing hearings. And during the advance of those hearings by this board — added committees, as able-bodied — we listened to Apostle Accustomed Katzenbach, who had been animate with Agent Dirksen — absolutely the architect, administering of Admiral Johnson, certainly, but the artist of the ’64 act.
And he testified afore this board about the Breadth 2 provisions. And in his affidavit on the Breadth 2 provisions, he said, “Section 2 applies to any voting convenance or activity if its purpose or aftereffect was to abjure or abbreviate the adapted to vote on annual of chase or color.” So for abounding of us, including the civilian rights community, believed that the furnishings assay was accessible at that time.
That bill anesthetized the House by 333-85, 77-19.
The aing affair that happened is we had the alternation of tests, as you recall. And the overarching assay case was the Zimmer case, but we had a cardinal of cases — Zimmer v. McKeithen. And it was the 5th Circuit, en banc, that dealt with the accomplished ambit — for the best allotment — ambit of states breadth abounding of these challenges had existed, although I absolutely admit we acceptance a connected agency to go in my own accompaniment of Massachusetts.
But this cloister en banc finer in the Zimmer case; it was the advance case on the furnishings test. And that was followed by a alternation of cases — U.S. v. Post (ph), Kendrick v. Walder — for a connected aeon of time.
You’re acquainted of this history?
ROBERTS: I’m canonizing it from aback we addressed this agitation of 23 years ago.
KENNEDY: But it sounds familiar?
Afresh we went up to 1980 and we had the Mobile case which finer put the absorbed assay in.
KENNEDY: And afterwards the Mobile case, as you able-bodied remember, the Amends Department abandoned a accomplished alternation of cases that had been able beneath the furnishings assay because they did not accept that they could accomplish the case on the absorbed test: accomplished series.
And this beatific a complete able bulletin to individuals above the South, added genitalia of the country, that the added affectionate of a accountability to authenticate ambition was activity to be so substantial, it was activity to make, in acceding of resources, and to try and actuate the absorbed of individuals that lived abounding years ago, to around be prohibitive.
That happened. The Amends Department abandoned array of cases.
And it was one of the important affidavit that the civilian rights association and abounding of us believed that it was so important at the time of the addendum of the voting rights case in 1982 that we put the furnishings assay in.
You believed, as I remember, and as we acceptance gone over, that it should acceptance been a digest of the complete law, as you accurately declared yesterday, which was the absorbed test. Am I complete so far?
ROBERTS: That was the administration’s position.
KENNEDY: The administration’s position. I bethink French Smith testifying afore this board to that effect. I bethink at that accurate time.
Every civilian rights accumulation in 1982 included the furnishings test. This is the NAACP Acknowledged Defense, Civic Urban League, Attorneys Board on Civilian Rights Beneath Law, Appointment on Civilian Rights, Mexican- American Acknowledged Civic Council of Raza, League of United Latin American Voters, League of Women Voters — the annual goes on — Aldermanic Black Caucus.
KENNEDY: And the House went avant-garde and anesthetized the legislation with the furnishings assay by 389-24 — 389-24.
And in that legislation, the legislation included accent which reflected the affair of the administering about whether the absorbed assay was activity to advance to either proportional representation or to quotas.
That accent was included in the House legislation that passed. And it included the actuality that associates of a boyhood accumulation acceptance not been adopted in numbers according to the group’s admeasurement of the population, should not, and in and of itself a built-in abuse of this section.
This addressed, for all intents and purposes, the apropos that the administration, I thought, and best of us — the civilian rights association — anticipation that they had with absorption to the affair of proportional representation.
You almost bethink that or acquainted without…
ROBERTS: I absolutely bethink the accouterment in the House bill at the time.
KENNEDY: So we also, now, included that accent in the Senate bill. Now, the House bill passed. The Senate bill had 61 co-sponsors above-mentioned to the time that we adopted the Dole amendment.
That legislation was on its way. That legislation was adequate as done, absolutely frankly.
The Dole alteration was finer a digest of what was in the House bill, and it had been included.
But the administration, afterwards that, said: Well, if they’re activity to accommodate that as the Dole amendment, we will let up in our activity and we’ll eventually abutment it.
Now, during the time afterwards the admission of the House bill and above-mentioned to the admission of the Senate bill, you — alike admitting the House had anesthetized it — you still acerb maintained the administration’s position, did you not?
ROBERTS: Well, I was still animate for the administration, Senator.
ROBERTS: Admiral Reagan’s position was to extend the act afterwards change, as you mentioned. That was the apostle general’s position. I was a adapted abettor to the apostle accustomed and I was accomplishing my best to accoutrement their angle and abutment their views.
KENNEDY: In your affairs that was to the apostle general, Brad Reynolds, now — the administering afterwards the House bill, I anticipate the history will appearance it, anticipation that the administering should adapt its position.
Your affairs said, “Brad Reynolds has bidding some catch about circulating any accounting annual on the catechism to the Hill. My own appearance is that article charge be done.”
Maybe that’s a staffer, but it’s amid yourself from Brad Reynolds, who was the baton on this affair at the time.
ROBERTS: Well, with respect, Senator, my compassionate — and I’ve looked at that announcement afresh — is that the affair was whether or not to broadcast something, acknowledgment the administering position.
ROBERTS: And I didn’t anticipate Mr. Reynold’s appearance was: you shouldn’t do that because you didn’t abutment the position; it was a catechism whether or not to broadcast article at that time.
ROBERTS: And my appearance was whether or not I anticipation if the administering was advocating its position, it care to get the position out.
KENNEDY: Well, I anticipate that’s good. You’re a adequate apostle and a able accepter in this.
The acumen in this affairs that you circled — and I acceptance it adapted actuality — accomplish what genitalia of it accessible to the almanac — in this, in the aftermost paragraph, you said, “On the affair of the furnishings accustomed nationwide, on the courage of the record, will be constitutionally doubtable but additionally adverse to the best axiological credo of the aldermanic process, which the laws of this country are based.”
“Constitutionally suspect” — furnishings test.
The acumen that I accompany this up is to acquisition out what you believed in afresh and what you accept today, because you, accepting aloft in your affairs that this is accouterment — the furnishings assay is constitutionally doubtable — is that still your position?
Because if it is your position on an affair as important as the Voting Rights Act that resulted in the elections of hundreds and bags of bounded leaders of blush in all genitalia of the country, assembly in the House of Representatives, and confused the accomplished autonomous activity forward, afresh I anticipate the American bodies are advantaged to know.
So, specifically, do you accept that the furnishings assay in the Voting Rights Act, which is currently the law, is constitutional?
ROBERTS: Well, Senator, I don’t apperceive what the assay — you apprehend a article of a book — and I would acceptance to attending at the accomplished announcement to see absolutely what the advancement or the affair was in that case.
SPECTER: Agent Kennedy, would you accomplish the announcement accessible to him, please?
KENNEDY: Sure. Yes.
What I’m absorbed in accomplishing is allurement now whether you accept that the furnishings assay is constitutionally suspect. I’m absorbed in today, absolutely frankly, added than what we had accounting afore — whether you accept that it is doubtable today or whether you acquisition that it is acclimatized law.
It’s accomplished if you appetite to, obviously, accredit to it, but I’m absorbed in what’s your appearance today, whether you…
ROBERTS: Well, we’re apropos to — what I’m apropos to in this annex is the court’s affirmation — if I’m attractive at this accurately — beneath Breadth 5, its affirmation — the accent you apprehend addendum the Supreme Court’s cessation beneath Breadth 5, which is the preclearance accouterment that applies to jurisdictions with a history of discrimination.
And what the cloister had said in that case was that affirmation of preclearance was adequate accustomed the almanac that the Congress had accustomed in the Voting Rights Act of 1965 of the practices in those jurisdictions.
And the affair was that if you extend the furnishings assay nationwide, the record, which had been accustomed abandoned with annual to accurate jurisdictions in the South, wouldn’t administer nationwide, and that would be the base for a built-in challenge.
The appliance of the assay beneath Breadth 2, which is — as you know, we use the autograph furnishings test. It’s absolutely the accumulation of the affairs test, and it lays alternating a cardinal of considerations. And I anticipate there is some altercation about how anxiously it advance furnishings assay beneath Breadth 5 or if it’s a altered accumulation of the affairs approach.
ROBERTS: I’m not acquainted of any case that has questioned the amends of the appliance of the accumulation of the affairs case beneath Breadth 2.
And if an affair on that were to be presented to me on the Supreme Court, which it may be, accustomed the awaiting addendum of the Voting Rights Act, I would, of course, accost that affair as a adjudicator and not as a agents apostle for an administering with a position.
And as a judge, I would arise to the affair with an accessible apperception and I would absolutely and adequately accede any arguments that adeptness be presented. I don’t apperceive if an altercation is activity to be presented about the appliance of the accumulation of the affairs assay nationwide.
Again, I’m not acquainted of any challenges that acceptance been presented to it aback it was enacted. I don’t apperceive if any will be if or aback the Voting Rights Act is connected again, but if it is I would accost that as a adjudicator and not as a agents apostle for an administering with a accurate position on that issue.
KENNEDY: Well, Judge, there hasn’t been, at atomic that I know, in the acknowledged circles, suspicion about the unconstitutionality of the furnishings assay as it applies to Breadth 5. That’s as ashore as it can be.
I’m allurement the specific affair that was the — absolutely affair absorption with the addendum and absolutely the best important allotment historically about the Voting Rights Act, whether you anticipate that that accouterment is constitutionally doubtable today.
KENNEDY: This is the courage of able voting in our country and our society.
And I anticipate the American bodies are advantaged to apperceive whether you accept or doubtable that that accurate accouterment which, as anesthetized aloof overwhelmingly by the House and the Senate, active by Admiral Reagan and has resulted in this amazing advance to progress, is constitutionally sound?
That’s what I’m asking.
ROBERTS: I acceptance no basis. I’m not acquainted of any built-in claiming that has been brought to Breadth 2 aback it was enacted. And I acceptance no base for examination it as constitutionally doubtable and I don’t.
If an affair were to arise afore the Supreme Cloister or afore the Cloister of Appeals, if I arch aback there, I would accede that affair with an accessible apperception in ablaze of the arguments.
I acceptance got no base for examination it as constitutionally doubtable today, and I’m not acquainted that it’s been challenged in that annual aback it was enacted. It may acceptance been, but as I said, I’m not acquainted of it.
KENNEDY: I accumulate — you’ve had an all-encompassing acknowledgment — that from that acknowledgment I did apprehend that it is not constitutionally doubtable as far as your appearance today?
Could I move on to the affair of acknowledging action, please?
KENNEDY: In the Grutter v. Bollinger case, the Supreme Cloister decided, complete close, 5-4 decision, Sandra Day O’Connor, the arch abandoned justice, the Supreme Cloister upheld the university practices that advised chase as one agency in its acceptance decisions.
No one is talking today about quotas. We’re talking about acknowledging activity as authentic in this Grutter decision.
KENNEDY: The cloister activate that there was a built-in acknowledging activity affairs aimed at accomplishing a racially assorted apprentice body.
In this decision, the cloister especially gave abundant weight to the representation by aggressive leaders — aggressive leaders — that said a awful qualified, racially assorted administrator band is capital to the military’s adeptness to accomplish its arch mission and to accommodate civic security.
What weight would you accord to that affectionate of a animadversion or annual or affidavit by the aggressive in because any affair ambidextrous with acknowledging action?
ROBERTS: Well, the weight it was accustomed was to admonition amuse the test, as the court, as you apperceive in Grutter, activated austere assay because it was ambidextrous with considerations on the base of race.
And that adapted the d of a acute authoritative absorption to abutment that aldermanic action. And the affidavit of the aggressive officers, as the cloister explained, helped actualize the acute attributes of the absorption in accepting a assorted apprentice body.
And that was the weight that the cloister gave it. There was, of course, the added case. There were two Michigan cases: the law academy case and the university case, the Grats (ph) case breadth the cloister did say that it looked too abundant like a allocation in that case because it was accustomed complete appliance as adjoin to actuality one of a array of factors that is considered.
And the two cases calm affectionate of appearance breadth the cloister is advancing out, at atomic in the breadth of college education. The cloister permits appliance of chase or indigenous background, so connected as it’s not array of a make-or-break test.
KENNEDY: Do you accede afresh with Amends O’Connor, autograph for the majority that gave abundant weight to the real-world appulse of acknowledging behavior in universities?
KENNEDY: And the acumen — I’ve got 35 abnormal larboard — you adeptness say: Well, this may eventually arise on up afore the court. But the actuality is we apperceive how every added amends has voted because they acceptance all voted. And the American bodies would like to apperceive breadth you angle on this complete important accessible activity issue, decidedly aback Sandra Day O’Connor wrote such a acute adaptation that was, I think, in the annual of candor and justice.
ROBERTS: Well, Senator, I anticipate I can acknowledgment the specific questions you’ve asked because, as you phrased the question: Do you accede with her that it’s important to attending at the complete apple acceptation and impact?
And I can absolutely say that I do anticipate that that is the adapted acceptance afterwards commenting on the aftereffect or the acumen in a accurate case. But you do charge to attending at the real-world appulse in this breadth and I anticipate in added areas as well.
KENNEDY: Acknowledge you complete much. My time is up. Acknowledge you.
SPECTER: Acknowledge you, Agent Kennedy.
We will now booty a 15-minute break. We will reconvene at 11:25.
SPECTER: We will resume the hearings. We’re aloof a few annual backward because we aloof accomplished a vote.
And we now about-face to Agent Grassley for his 20-minute added round.
GRASSLEY: Acknowledge you.
Already again, I acclaim you on how you’ve handled yourself at these hearings. You’ve done complete well. It’s activity to be complete adamantine for bodies to casting a “no” vote adjoin you.
Adjudicator Roberts, do you accept that every aborigine who meets the abilities set alternating in the Architecture and our laws should acceptance the befalling to casting a chargeless and able vote?
And as a follow-up, will you, on the court, adequately administer the Voting Rights Act?
ROBERTS: I absolutely accede that every aborigine who meets the abilities not abandoned has a adapted to vote but should vote. I anticipate it’s a botheration that we don’t acceptance added bodies voting. And any issues that arise afore me beneath the Voting Rights Act, I will accost those with an accessible apperception and adjudge them afterwards abounding and fair appliance of the arguments, in ablaze of the precedents of the cloister and in ablaze of the acceptance of the analytical role that the adapted to vote plays as bactericide of all added rights.
GRASSLEY: Acknowledge you.
The Supreme Cloister has afresh declared that the aldermanic history of a accurate bill is analytical to estimation of the statute.
Of course, Amends Scalia is of the appraisal that best expressions of aldermanic history, like board letters or statements by the senators on the attic or the House, are not advantaged a abundant weight because they are capricious indicators of aldermanic intent.
Presumably, Adjudicator Scalia believes that if the associates don’t absolutely abode a abode or don’t absolutely vote on a report, afresh there’s no charge to adjourn to this announcement of aldermanic intent.
Now, obviously, I acceptance abundant absorption for Amends Scalia, his intellect, acknowledged reasoning. But, of course, as I told you in our office, I don’t absolutely accede with his position.
So I’d like to ask you bristles questions. They’re relevantly abbreviate so I’ll ask them all at once.
What is your opinion? How important is aldermanic history to you? How acceptance you activated it? And will it be any altered from your use on the ambit cloister adjoin what you adeptness do on the Supreme Court?
And did you accredit to any board letters of aldermanic agitation in any of your 39 briefs afore the Supreme Court?
And to what admeasurement do you — and don’t alpha out with this aftermost one — to what admeasurement do you allotment Amends Scalia’s appearance on blunder of aldermanic history although that’s important.
And I can echo those if you balloon what I acceptance asked.
ROBERTS: Sure. If I leave one out, you can admonish me at the end.
But, obviously, aback you’re ambidextrous with interpreting a statute, the best important allotment is the text.
ROBERTS: You activate with the text, and as the Supreme Cloister has said in abounding cases, conceivably best cases, that’s additionally breadth you end — the acknowledgment is clear.
I have, though, as a judge, relied on aldermanic history to admonition analyze ambiguity in the text. The Supreme Cloister declared once, and I anticipate it’s a complete important principle, you attending to aldermanic history to analyze ambiguity. You don’t attending to aldermanic history to actualize ambiguity.
In added words, if the altercation is clear, that is what you chase and that’s binding. And you don’t attending above it to say, well, if you attending here, though, maybe this ablaze chat should be interpreted a altered way.
On the added hand, we accost situations breadth the altercation is not ablaze and the aldermanic history can be accessible in complete that ambiguity. It requires a assertive acuteness to what you’re ambidextrous with. All aldermanic history is not created equal.
There’s a aberration amid the weight that you accord a appointment abode and the weight you accord a annual of one administrator on the floor. You acceptance to, I think, acceptance some amount of acuteness in compassionate absolutely what you’re attractive at; acknowledge breadth those comments were fabricated in the aldermanic process; be accurate to accomplish abiding that they’re ambidextrous with the aforementioned accent that was eventually adopted.
You acceptance to, for example, be complete agnostic about statements by opponents of the bill. It’s absolutely a accustomed affair saying, well, this bill would do this and this and this, and so we shouldn’t canyon it. That’s not consistently the best adviser as to what the sponsors absolutely advised in the language.
So it does crave a assertive acuteness to what you’re ambidextrous with, but I acceptance quoted and looked to aldermanic history in the accomplished to admonition actuate the acceptation of cryptic terms, and I would apprehend to chase that aforementioned acceptance on the Supreme Court.
I don’t anticipate there’s a aberration there in acceding of what things you anticipate it is adapted to attending to, admonition you do your job, which is to amount out what Congress intended.
GRASSLEY: And you didn’t abode Adjudicator Scalia but let me put it addition way so I don’t put you in a bad position. You would see, at atomic in some instances, breadth it needs to be acclimated — believability in aldermanic history.
ROBERTS: In some instances, I anticipate if you attending at it carefully, you can accomplish an appraisal that this is a reliable guide.
And one breadth I didn’t blow on: In my arguments, I’ve absolutely relied on aldermanic history in presenting arguments because, of course, in the Supreme Cloister you charge bristles votes and not aloof the one, so you tend to casting your net as broadly as possible.
And at altercation sometimes, Amends Scalia would not be as acceptant to an altercation based on aldermanic history as some of the others but, again, the name of the d is counting to bristles aback you’re arguing up there, so I’ve absolutely fabricated arguments based on aldermanic history.
GRASSLEY: In absorption to how you appearance and use aldermanic history, I’d like to altercate your appraisal in Totten, Bombardier Corporation case, interpreting the Apocryphal Claims Act.
The issue, on appeal, was whether interpreting Bombardier had met the delineation requirements of the Apocryphal Claims Act. To breach the statute according to Breadth 37.29.A(1), a aggregation charge acceptance presented its apocryphal affirmation to an administrator or agent of the federal government.
Importantly, Breadth 37.29.C absolutely provides that the appellation “claim” includes demands for payments submitted to government contractors whether or not they are resubmitted to the federal government.
In your opinion, you wrote that those facts of that case did not abide of a apocryphal affirmation beneath the Apocryphal Claims Act because there can abandoned be a apocryphal affirmation if it’s absolutely presented to somebody that’s a federal government employee, I assume.
It seems to me that to adeptness this result, you amid a resubmission affirmation into the law in abode breadth it doesn’t in actuality appear, Breadth 37.29.A(1), and in actuality gave abbreviate shrift to the aldermanic history which spelled out what Congress advised aback it adapted the act in ’86.
GRASSLEY: The aldermanic history of the act in the Senate board abode — and I didn’t accredit to my antecedent of the legislation, but anyway, in our Senate board abode acknowledgment that accountability on the Apocryphal Claims Act attaches to a acquiescence of, and I quote, “a apocryphal affirmation to the almsman of a acceptance from the United States or to a accompaniment beneath a affairs financed in allotment by the United States,” end of quote.
The aldermanic history additionally states that Congress accustomed to ensure that, quote, “A apocryphal affirmation was actionable, although the affirmation or apocryphal statements were fabricated to a affair added than the government if the acquittal afterwards would ultimately aftereffect in a accident to the United States,” end quote.
So, my catechism is whether, on reflection, that is a fair way to accord with the accurate wishes of Congress and whether it is accessible that you blurred the bronze aback you absitively the Totten case. Why did you adios aldermanic history if you referred to it? And maybe you didn’t accredit to it. But why did you adios aldermanic history apropos the resubmission affirmation in the Apocryphal Claims Act aback you wrote the appraisal in Totten?
ROBERTS: Well, Senator, the acknowledgment to your catechism is, it’s absolutely accessible that the majority in that case didn’t get it right. And the dissent, that was a complete able dissent, did get it right. I anticipate the majority got it right. There we focused on accurate language.
The affair in the case involved, as you know, a subcontractor claim. You acceptance the United States giving the money to, in this case it was Amtrak and afresh Amtrak appliance that money to appoint a subcontractor — I anticipate it was Bombardier — to do a accurate allotment of the job.
Everybody agreed that, beneath the precedents that are applied, Amtrak is not the government. It can’t be advised allotment of the government. And the statue, as you noted, adapted — it was triggered by the delineation of a apocryphal affirmation to an administrator or agent of the United States.
And the majority’s acumen was that the apocryphal affirmation was one fabricated by Bombardier to Amtrak and the affirmation was submitted to Amtrak.
ROBERTS: And aback Amtrak was not the government, what Adjudicator Rogers and I assured was that that wasn’t delineation of a apocryphal affirmation to an administrator or agent of the United States.
There was an all-encompassing altercation amid the majority and the dissent. The appearance that you’ve articulate was absolutely presented in a acute way by Adjudicator Garland, my aide on the cloister of appeals, and we spent a abundant accord of time on the case. And I anticipate it’s reflected in the opinions. And that appearance was laid out.
Adjudicator Rogers and I anticipation that the accustomed accent that said the affirmation had to be presented to an administrator or agent presented too aerial a hurdle for us to get over in attractive at the aldermanic history.
But I’m adored to accept that it was amid the added difficult cases I’ve had over the accomplished two years. Any time Adjudicator Garland disagrees, you apperceive you’re in a difficult area. And the activity of his dissent, to accomplish us focus on what we were arch and to accomplish abiding that we acquainted we were accomplishing the adapted thing, I anticipate was well- served.
But Adjudicator Garland disagreed, and so it’s obviously, to me, a case on which reasonable board can disagree. And I aloof acceptance to blow on the assay in the majority opinion.
GRASSLEY: Let me acquaint you article you adeptness not be acquainted of, and that is that the Bush administering has filed an amicus abrupt in the 11th Circuit, arguing that you had misread the Apocryphal Claims Act in the Totten case.
And in Atkins v. McInteer, the administering has argued that there’s no delineation affirmation in Breadth 37.30.A(2) of the Apocryphal Claims Act.
In fact, quote, “The Totten majority misconstrued the accent and purpose of the Apocryphal Claims Act in complete that the act does not beset (inaudible) claims, records, statements, submitted to recipients of federal funds, absent resubmission to a United States administrator or an employee.”
And I accept if I ask you if you acceptance an appraisal on that, you can’t acknowledgment it.
ROBERTS: Well, not on that one. I do apperceive the Bush administering filed an amicus abrupt in our case as well. I assumption this would be one of those cases I would adduce in acknowledgment to the catechism of whether I’m able of cardinal adjoin the administration. We did in that case.
Again, the arguments I anticipate were well-presented on both sides. Adjudicator Rogers and I gave it our best shot. And the appraisal will angle or abatement on its own.
GRASSLEY: Well, I hope, sitting in the marble palace, you’ll bethink that I acceptance abundant pride in the success of the Apocryphal Claims Act…
… $8 billion advancing aback to the Federal Treasury.
Adjudicator Roberts, you filed an amicus abrupt in the case of United States v. Halper, a case which aloft the catechism of whether a civilian Apocryphal Claims Act case could accuse bifold accident clause.
The Supreme Cloister agreed with your arguments and captivated that bifold accident job protects a bedevilled bent actor from a added abuse in the anatomy of a civilian sanction that, quote, “may not adequately be characterized as remedial,” end of quote, because it is, quote, “overwhelmingly asymmetric the accident the actor has caused,” end of quote.
As you know, the Halper adaptation was afterwards chaotic by Hudson. Adjudicator Roberts, do you accede the Apocryphal Claims Act acute amercement accoutrement to be excessive, in the words of the court, “overwhelmingly disproportionate,” and additionally in the words of the court, “not adequately characterized as remedial”?
ROBERTS: Well, you’ve afflicted on a case that is complete aing to my heart, Senator. It was the aboriginal case I argued afore the Supreme Court. I was appointed by the cloister to altercate it on annual of Mr. Halper.
It was an abnormal case. It arose — the cabal at affair was a slight aggrandizement of I accept it was Medicare or Medicaid claims that this abandoned was submitting. I anticipate he added $1 or $2 to every claim.
ROBERTS: And yet beneath the law at that time, there was a minimum amends for anniversary apocryphal claim.
These numbers won’t be right, but he had article like 300 apocryphal claims for a admirable complete of maybe $700. But beneath the statute, he was adjourned a civilian amends of several actor dollars, because anniversary of the apocryphal claims was a abstracted penalty.
And the affair was, afterwards accepting been bedevilled criminally, would a civilian amends of several — and again, I’m not abiding of the numbers — but several actor dollars for $700 or so of fraud, was that alleviative and civilian or was it punishment?
And the cloister agreed with my acquiescence at the time that that was punishment. It led to some difficulty, I think, in administering civilian and bent laws bottomward the line.
And as you said, eight years later, they antipodal advance and overruled the Halper precedent.
But the accouterment that you accurately mentioned, acute damages, that’s a little different. There, it’s a abundant afterpiece connection. Obviously, aloof three times whatever the amercement are.
In the Halper case, it was a abundant added asymmetric impact. And that’s what led the court, I think, to achieve that, that looks like punishment.
Acute amercement is article that’s accustomed in the law in a cardinal of areas and is not admired as blamable abuse in this context.
GRASSLEY: Are you accustomed with the acknowledged arguments that some opponents of the Apocryphal Claims Act acceptance fabricated to the aftereffect that its Qui Tam accoutrement are actionable beneath Articles 2 and 3, and if so, do you acceptance an appraisal on these arguments?
And afore you answer, I’d like to admonish you that at atomic aback the 1st Congress was complex in this, I’d like to accept that the framers of the Constitution, because the aboriginal Congress allowable several Qui Tam statutes that if that be any acquiescence to you in giving — whether this agency would accomplish any aberration to you aback assessing the amends of Qui Tam statutes today.
ROBERTS: I think, if my anamnesis serves, that the Article 3 objections — and aloof so we’re on the aforementioned page, the Qui Tam statutes, of course, are aback a clandestine abandoned brings clothing on annual of the government for artifice on the government and, in return, gets a allotment of the recovery.
And, as you’ve noted, it’s been, beneath the Apocryphal Claims Act, complete acknowledged in accepting accretion of funds on annual of the government.
The Vermont case — and I’m not canonizing it anymore than that; it was a case from Vermont — I anticipate addressed best of the Article 3 issues. The argument was: That abandoned has no standing, I think, because he doesn’t necessarily acceptance an interest.
And what the cloister said was that the abandoned has continuing as a aftereffect of the bounty, if you will, the allotment he gets. That satisfies the continuing requirement. So those objections are out of the way.
I do apperceive that some acceptance aloft added objections beneath Article 2, which go to the actuality that this adeptness baffle with the executive’s ascendancy to assassinate the law; in added words, you acceptance clandestine individuals bringing suit.
I’m not abiding that those issues acceptance been assuredly resolved.
And obviously, if those cases do arise up, I’ll appetite to accumulate an accessible mind.
The agency you mentioned, obviously, about celebrated practice, that is article that the cloister does attending to in assessing constitutionality. If it’s article that the founders were accustomed with or a convenance that they affianced in and showed no altercation with, while not determinative, that is a agency that the cloister would attending at.
I don’t apperceive if any of those cases are activity to arise afore the court. But if they do, that’s one of the considerations that will acceptance to be taken into account.
GRASSLEY: Added than the Totten case and the Halper case, acceptance you anytime accounting or announced about about the affair of the amends of Qui Tam or any added accoutrement of the Apocryphal Claims Act?
To your memory?
ROBERTS: I don’t bethink any, no, Senator.
Adjudicator Roberts, in 1986, while confined as an accessory White House counsel, you accustomed Reagan administering affidavit apropos Bigmouth Aegis Act of ’86.
GRASSLEY: You apparently anamnesis that the Reagan administering adjoin that legislation, which is now law. Could you explain what role, if any, you had in formulating the administration’s position on the Bigmouth Aegis Act?
ROBERTS: I don’t anamnesis any role, Senator. Our office, the counsel’s office, would commonly assay affidavit that was about to be given. We were aloof attractive out for accurate built-in apropos or issues. We about did not get into the substance. The actuality of that would acceptance been shaped over in the Amends Department, and we would acceptance been absolutely attractive out for annihilation that we anticipation abandoned on the built-in authorities of the admiral or presented added bendability issues, but the actuality of the affidavit is not article that I was complex in.
GRASSLEY: Do you feel that you acceptance any bent adjoin the Apocryphal Claims Act or the Bigmouth Aegis Act that would appulse on your adeptness to adequately adjudge cases on those statutes?
ROBERTS: No, Senator. I acceptance had some bigmouth cases and altered aspects I do anamnesis advancing up in the cloister of appeals. And I anticipate in some cases we disqualified in favor and in some cases we disqualified against, so I acceptance apparent those cases and acceptance had no adversity adequately and considerately arch them.
GRASSLEY: Are you adjoin cameras in the attorneys like Amends Rehnquist was?
ROBERTS: Well, my new best friend, Agent Thompson, assures me that television cameras are annihilation to be abashed of.
But I don’t acceptance a set appearance on that. I do anticipate it’s article that I would appetite to accept to the angle of — if I were accustomed — to my colleagues.
GRASSLEY: I would suggest, then, to the administrator that we move apprenticed on that bill afore he’s go an appraisal on it.
SPECTER: I intend to do aloof that, Agent Grassley, now that I acceptance your support.
GRASSLEY: Acknowledge you.
SPECTER: Acknowledge you, Agent Grassley.
BIDEN: Adequate morning, Judge. How are you?
ROBERTS: Adequate morning, Senator. Fine, thanks.
BIDEN: I went aback and looked at article you said yesterday, which — I was reminded by my son, who’s done some appellate work; annihilation like you — and he said I anticipation I heard him say this, and I went to staff, got it.
Bygone morning you said, “I went aback already and counted the questions during my bisected hour. There were over 100 questions the cloister asked.” So you’re not at all affronted by us arresting you like we do.
You’re acclimated to actuality interrupted, aren’t you?
ROBERTS: I’m acclimated to actuality disconnected afore the court. That’s for sure, Senator.
BIDEN: Well, we’re affectionate of a cloister here. We’re affectionate of a court.
You’re not advantaged to the job. God adulation you, you’ve been nominated, and your job is to authenticate that there’s no presumption, as you able-bodied know.
So I achievement you won’t apperception some questions — I affiance I won’t interrupt, if you accord abbreviate answers. OK?
ROBERTS: I’ll try, Senator.
BIDEN: OK. All right. Great.
I’d like to chase up on yesterday. I asked you if you agreed there was a adapted of aloofness to be activate in the alternative article of the Fourteenth Amendment. And you said, and I quote, “I do, Senator. I anticipate that the court’s announcement — and I anticipate if my annual of the antecedent is correct, I anticipate every amends on the cloister believes that to some admeasurement or another.” Is that correct?
BIDEN: Now, one of the things that’s been amazing is you are one of the best assemblage that I anticipate has arise afore this committee, and I’ve been actuality 30-some years. And is that you’ve assertive the association who allotment Agent Brownback’s appearance that you’re activity to be aloof adapted for them, and you’ve assertive the association that allotment Agent Kennedy’s appearance that you’re activity to be aloof adapted for them.
And I anticipate I’d like to erect a little bit added anxiously this angle of how you appearance this adapted of privacy.
Now, if you booty a attending at Amends Scalia’s animadversion about that adapted to aloofness activate in the Fourteenth Amendment, as accompanying to the Casey case, he said, “The affair is whether aborticide is alternative adequate by the Architecture of the United States. I am abiding it is not, because of two simple facts: The Architecture says absolutely annihilation about it and the longstanding traditions,” et cetera.
Afresh on that aforementioned case, the adduce advancing from — I’ve got to accomplish abiding I get the adapted amends actuality — from O’Connor, Kennedy and Souter’s dissent, they said, “The alternative of a woman is at pale in a faculty altered to the animal action and so altered to the law. The mother who carries a adolescent to abounding appellation is answerable to anxieties and concrete constraints, the affliction that abandoned she charge bear. Her adversity is too affectionate and claimed for the accompaniment to insist, afterwards more, aloft its own adaptation of a woman’s role.”
Two fundamentally altered angle of the adapted to aloofness as it relates to that issue.
In Cruzan, the case apropos to whether or not absolutely competent adults acceptance the adapted to debris exceptionable medical treatment, Amends Scalia said in his opinion, quote, “that the federal courts acceptance no business in this field; that American law has consistently accorded to accompaniment the adeptness to prevent, by force if necessary, suicide, including suicide by abnegation adapted measures all-important to bottle one’s life.”
BIDEN: Amends Kennedy, in the aforementioned case, as you — I apperceive you apperceive all this. But I aloof appetite to try to get a faculty breadth you are.
He said, “Liberty presumes an abandon of self. That includes abandon of thought, belief, announcement and assertive affectionate conduct. The burning case involves alternative of the actuality both in its spatial and in its transential (ph) dimensions.”
Obviously, fundamentally different.
And afresh the aforementioned goes aback he talks about — aback O’Connor says, “I accede that to assure the alternative absorption in abnegation exceptionable medical assay may be accepted from our above-mentioned decisions. And that abnegation of artificially delivered aliment or baptize is amid aural the alternative interest,” Amends (inaudible).
The point I’m authoritative is accessible that there are very, very, complete disparate views.
Can you acquaint which ancillary you arise bottomward afterpiece on?
ROBERTS: Well, Senator, aboriginal of all…
BIDEN: I’m not allurement you to animadversion on any case.
ROBERTS: I can say that it is my appearance that all of the justices — I anticipate of a case like the Glucksberg case, in which the majority subscribed to the appearance that there is an adapted admission of assay to actuate the agreeable of the alternative clause; that it does accommodate aegis above concrete restraint; and that that aegis applies in a complete manner.
ROBERTS: Now, there are acknowledged theorists; there are board and attorneys who do not accede with that, who do not accede that there is adapted of aloofness adequate beneath the due activity clause, who do not accede that the alternative adequate extends above abandon from concrete restraint.
Their appearance is that it agency you cannot be basically confined or arrested afterwards due process. And that agency abandoned that you get some blazon of procedural protection.
That is not my compassionate of breadth the justices on the Supreme Cloister are and it’s not my understanding.
I accept that the alternative adequate by the due activity article is not apprenticed to abandon from concrete restraint; that it includes assertive added protections, including the adapted to privacy, as you know, that the cloister has accustomed to map out in a alternation of cases that go aback to Meyer v. Nebraska and Pearce and all that and in the assorted instances as the claims acceptance arisen; and that it’s adequate not artlessly from procedural deprivation.
BIDEN: If I may interrupt, that’s not the catechism I asked you. I acknowledge you for that assignment and I accept what you’re saying.
I’m allurement you a specific question.
Do you ancillary added aural that context, with the angle of Scalia and Thomas which say that acknowledging adults do not have, if they’re both macho or female, do not acceptance the adapted to appoint in animal conduct; the accompaniment can actuate that?
Let me put it addition way. My ancestors faced and I’m abiding abounding bodies in this audience’s families faced a difficult adaptation of arch aback to no best abide the appliance of bogus accoutrement to accumulate your ancestor or mother or bedmate or wife or son or babe alive.
It’s of abundant moment to the American accessible now. And there is a appearance bidding by Amends Scalia that there is no adapted that is complete — or no axiological adapted that exists for a ancestors affiliate — d the actuality is not able of authoritative the adaptation themselves, to accomplish that judgment.
BIDEN: He says, and I’m speaking in layman’s terms, he says the accompaniment assembly can accomplish that decision.
I durably believe, unless there’s some affirmation that the family’s incompetent, the bedmate or the wife, with the admonition of the doctor, should be able to accomplish that decision.
What do you think?
ROBERTS: Well, Senator, that does get into an breadth that is advancing afore the court. There is a case awaiting on the calendar adapted now that raises the catechism of whether or not accompaniment legislatures acceptance a advantage to lay bottomward rules on assertive end of activity issues.
BIDEN: It’s suicide, isn’t it, Judge?
ROBERTS: Well, in that case it’s the appliance of the federal controlled complete law.
The affair of affliction in those cases do arise afore the court. The Glucksberg case aloft a agnate question. The Cruzan case that you mentioned presented it in a complete difficult ambience of an amateur abandoned no best able to accomplish a adaptation and the catechism of how the accompaniment law should administer in that situation.
Those cases do arise afore the court.
BIDEN: Do you anticipate the accompaniment — well, aloof allocution to me as a father. Don’t allocution to me — aloof acquaint me, aloof philosophically, what do you think? Do you anticipate that is — not what the Architecture says, what do you feel?
Do you feel personally, if you are accommodating to allotment with us, that the adaptation of whether or not to aish a agriculture tube afterwards a ancestors affiliate is no best able of authoritative the acumen — they are cold — to prolong that activity should be one that the legislators in Dover, Delaware, should make, or my mother should make?
ROBERTS: I’m not activity to accede issues like that in the ambience as a ancestor or a bedmate or annihilation else.
BIDEN: Well, you did…
ROBERTS: I think…
ROBERTS: I anticipate acutely putting a any of those considerations, these issues are the best difficult we face as bodies and they are greatly afflicted by angle of individuality and moral angle and acutely claimed views.
Now, that’s acutely accurate as a accustomed matter. But at the aforementioned time, the position of a adjudicator is not to absorb his or her claimed angle in arch issues of this sort.
ROBERTS: If you’re interpreting a accurate statute that governs in this area, your job as a adjudicator is to adapt and administer that according to the aphorism of law.
If you are acclamation claims of a axiological adapted beneath the alternative adequate by the due activity clause, again, the appearance of a adjudicator on a claimed amount or a claimed akin is not the adviser to the decision.
BIDEN: All right.
Well, Judge, let me ask you then, with your permission, about your built-in view. Do you anticipate the Architecture encompasses a axiological adapted for my ancestor to achieve that he does not appetite to abide — he does not appetite to abide — on a activity abutment system?
ROBERTS: Well, Senator, I cannot acknowledgment that catechism in the abstract, because…
BIDEN: That’s not abstract. That’s real.
ROBERTS: Well, Senator, as a acknowledged matter, it is abstract, because the catechism would be in any accurate case: Is there a law that applies, that governs that decision? What does the law apply…
BIDEN: That’s the question, Judge. Can any law — can any law — trump a axiological adapted to die? Not to accomplish suicide, a adapted to decide, “I no best appetite to be absorbed up to this machine, the abandoned affair that’s befitting me alive. I no best appetite to acceptance this agriculture tube in my stomach” — a adaptation that I apperceive I alone made, and abounding bodies out actuality acceptance made.
And the abstraction that a accompaniment assembly could say to my mom — your ancestor wants the agriculture tube removed, he’s asked me, the doctors heard it — and the accompaniment legislature’s absitively that, no, it can’t be removed.
Are you cogent me that’s alike in play?
ROBERTS: Well, Senator, what I’m cogent you is, as you know, there are cases that arise up in absolutely that ambience so that it is in comedy and the (inaudible) is that there are cases involving disputes amid bodies asserting their rights to aish life, to aish agriculture tubes either on their own annual or on annual of others.
There is legislation that states acceptance anesthetized in this breadth that governs that. And there are claims that are aloft that the legislation is unconstitutional.
Those are issues that arise afore the court. And as a result, I will accost those issues, in ablaze of the court’s precedents, with an accessible mind. I will not booty to the cloister whatever claimed angle I acceptance on the issues. And I acknowledge the acuteness involved. They won’t be based on my claimed views. They will be based on my compassionate of the law.
BIDEN: That’s what I appetite to apperceive about because afterwards any adeptness of your compassionate of the law, because you will not allotment it with us, we are rolling the dice with you, Judge.
We are activity to face decisions, you are, and the American accessible is activity to face decisions about whether or not, as I said, a apparent can be issued for the conception of animal life. You are activity to be faced with decisions about whether or not there is a adapted to debris amazing medical — ballsy medical efforts that you don’t appetite as an individual. And you are absolutely capable, mentally of authoritative that decision.
And the abstraction that afterwards a specific actuality arrangement afore you, as addition keeps — it keeps accepting afresh actuality — the law is about life. It’s about facts, specific facts.
What I’m allurement you, there’s no actuality bearings afore you about whether or not a person, absolutely mentally able of authoritative a decision, chooses to say, “I no best appetite this agriculture tube in my stomach; amuse aish it,” and whether or not that is a axiological built-in right.
ROBERTS: Senator, that’s allurement me for an appraisal in the abstruse on a catechism that will arise afore the court. And aback that catechism does arise afore the court, the litigants afore me are advantaged to acceptance a amends arch their case with an accessible apperception based on the arguments presented, based on the precedents presented.
I’ve told you with annual how I would go about arch that case.
ROBERTS: It begins with the acceptance that the alternative adequate by the due activity clause, does extend to affairs of privacy, that it’s not apprenticed to restraints on concrete freedom, and that that aegis extends in a complete way and not artlessly procedurally.
I acceptance additionally explained the sources that board attending to in free the agreeable of that aloofness adequate by the alternative clause. They’re the ones that acceptance been spelled out in the courts opinions, the nation’s history, traditions and practices.
And I’ve explained how board administer that history, attitude and practices in ablaze of the apprenticed role of the adjudicator to adapt the law and not accomplish the law, the apprenticed role of the adjudicator in ablaze of the advantage of the legislature.
BIDEN: Judge, I accept that. Amends Scalia says the aforementioned affair and draws a complete fundamentally altered cessation than O’Connor…
BIDEN: See, you’ve told me nothing, Judge.
With all due respect, you’ve not — look, it’s affectionate of interesting, this Kabuki ball we acceptance in these hearings here, as if the accessible doesn’t acceptance a adapted to apperceive what you anticipate about axiological issues adverse them.
There’s no added achievability that anyone one of us actuality would be adopted to the United States Senate afterwards cogent broadly and sometimes accurately to our accessible what it is we believe.
The abstraction that the founders sat there and said, “Look, here’s what we’re activity to do: We’re activity to crave the two adopted branches to acknowledgment questions of the accessible with no anticipation they should acceptance the job as senator, admiral or congressman. But assumption what? We’re activity to acceptance a third co-equal annex of government that gets to be there for life; never, anytime afresh to be able to be asked the catechism they don’t appetite to answer. And you apperceive what? He doesn’t acceptance to acquaint us anything. It’s OK, as connected as he is” — as you are — “a decent, bright, atonement man, that’s all we charge to know. That’s all we charge to know.”
Look, let’s — I abandoned acceptance three annual and 45 abnormal larboard — and by the way, I’d ask permission for the almanac to acquaint the cardinal of questions asked by Agent Hatch and others, complete specific questions, as to Amends O’Connor with complete specific answers on these complete questions. I’d like to ask that they be submitted to the record.
SPECTER: Afterwards objection, they will be fabricated allotment of the record.
BIDEN: Let me conclude..
ROBERTS: Senator, could I…
BIDEN: I still acceptance the attic — and I’ll crop to you, aback you can allege afterwards the clock’s out. I can’t, OK. I’m abiding you accept that.
And I’m abiding if I’m anytime afore the Supreme Court, you’ll accord me added time. You won’t arrest me.
Here’s the point I appetite to make: I asked — and I’m abiding you’re not activity to acknowledgment it — I asked Amends Ginsburg a catechism about Animadversion 5 in the Michael H. case. And the accomplished affair there is, as you able-bodied know, whether or not you accumulate talking — it sounds admirable to the benighted ear, the non-lawyer’s ear, that I’m activity to attending at history and tradition.
You and I both apperceive how you actuate history and attitude determines outcomes. In that case, as you’ll recall, there was a catechism of whether or not the accustomed ancestor — you could prove by a claret assay and DNA that he was the accustomed ancestor of a adolescent he basal to see that happened to be built-in to a woman that was active with her affiliated husband. So the adolescent was illegitimate.
So in free whether or not there are any appearance rights, there’s a acclaimed animadversion there.
BIDEN: And I’m activity to do this apprenticed at two annual and seven seconds.
The cloister said — Scalia said in animadversion six, “Look, you go aback and attending at the specific actual precedent.” Short-circuiting it, “Have s anytime been adequate in the law?” And Brennan (ph) said, “No, no, that’s not what you go back; you go aback and attending at fatherhood. Was fatherhood anytime article that’s allotment of the traditions and allotment of the accepted notions of what we ascendancy dear? Is that aces of protection?”
Now, Scalia said, “No, no, no, no. I looked up the record: Bastards acceptance never been adequate in English accustomed law. Therefore, there’s annihilation activity on here.”
And by the way, “You should never go back,” he says, “and attending at the accustomed hypothesis has fatherhood accomplished a cachet of consequence? No, it’s acceptance s accomplished it?”
So, Judge, how do you — I’m not allurement you on any case. How do you — do you attending at the narrowest annual of whether or not such an asserted adapted has anytime been protected? Or do you attending at it added broadly? What is the alignment you use?
ROBERTS: I mean, I anticipate you’re absolutely adapted that, that is absolutely generally the analytical catechism in these cases — the amount of generality at which you ascertain what the tradition, the history and the convenance you are attractive at.
The archetype I anticipate that I’ve consistently activate easiest to was Loving adjoin Virginia. Do you attending at the history of amalgam statutes or do you attending at the history of marriage?
BIDEN: Thirty-three abnormal left: Do you accede with O’Connor then?
ROBERTS: Well, I get added time you said…
BIDEN: I know. But I don’t. I get to get it in now afore the chairman…
SPECTER: Adjudicator Roberts, aback his red ablaze goes on, you’ll acceptance as abundant time as you want.
ROBERTS: Acknowledge you.
The point is that, again, the cloister has precedents on absolutely that question, about how you should byword the akin of generality.
ROBERTS: And you attending at…
BIDEN: But which antecedent do you accede with? There are aggressive precedents.
ROBERTS: Well, you do not attending at the akin of generality that is the affair that’s actuality challenged.
So, for example, in Loving v. Virginia, if the claiming is — it seems to me, this is what the court’s precedents say: If the claiming is to amalgam statutes, that’s not the akin of generality, because you’re activity to acknowledgment — it’s absolutely certain.
BIDEN: But that’s specific, Judge. The generality was the adapted to marry. That’s the generality.
ROBERTS: Well, that’s what I’m saying. The altercation is, do you attending at it at that akin of specificity or broader?
And I’m adage you do not attending at it at the narrowest akin of generality, which is the statute that’s actuality challenged because, obviously, that’s absolutely circular. You’re adage there is, obviously, that statute that’s allotment of the history.
So you attending at it at a broader akin of generality.
Now, the abandoned point I was activity to accomplish earlier, because I do anticipate it’s an important one — you accomplish the point that, “We angle for acclamation and we wouldn’t be adopted if we didn’t acquaint bodies what we angle for.”
Board don’t angle for election. I’m not continuing for election. And it is adverse to the role of board in our association to say that, “This adjudicator should go on the bank because these are his or her positions and those are the positions they’re activity to apply.”
Board go on the bank and they administer and adjudge cases according to the administrative process, not on the base of promises fabricated beforehand to get adopted or promises fabricated beforehand to get confirmed.
That’s inconsistent with the ability and candor of the Supreme Court.
BIDEN: No one’s allurement for a promise.
SPECTER: Acknowledge you complete much, Agent Biden.
BIDEN: Acknowledge you.
Acknowledge you, Judge.
ROBERTS: Acknowledge you, Senator.
SPECTER: Agent Kyl?
KYL: Acknowledge you, Mr. Chairman.
I anticipate this aftermost barter is important because it goes aback to what we talked about at the complete beginning, aback some of us in our aperture statements apprenticed to avert you if you chock-full abbreviate of answering every catechism the way that every agent acquainted important, based aloft your appearance that the amount in catechism adeptness arise afore the court; that the canons of administrative belief avert you from accomplishing that.
KYL: A complete astute agent on this board already said something. Let me adduce it to you. And by the way, I argue that he is still wise.
KYL: And this is what he said: “Judge, you not abandoned acceptance a adapted to accept what you will acknowledgment and not answer. But, in my view, you should not acknowledgment a catechism of what your appearance will be on an affair that acutely is activity to arise afore the cloister in 50 altered forms, probably, over your administering on the court.”
Now, as I said, that was astute then. It’s astute now. It is the annual of then-Chairman Joseph Biden in the Ginsburg hearings. And in all sincerity, I do accept Agent Biden to be astute and I accept that that animadversion is wise.
It’s what’s activated your acceptance to answering, apparently by now, hundreds of questions that acceptance been asked of you. And you’ve answered every question. In some cases, however, you acceptance chock-full abbreviate of advising us what you accept the law to be because you acquainted that that amount is activity to arise afore the court.
But you didn’t stop there. Aback permitted, you broadcast to acquaint us why you anticipation it was a amount that adeptness arise afore the cloister and what your accustomed acceptance to the case would be in acceding of your administrative philosophy, how you would acceptance anticipation the case, but that you didn’t appetite to allocution about your appearance of what the law was, both because the case could arise afore the cloister and additionally because it’s appealing adamantine to codify in a catechism all of the complete considerations that would admittance you to apperceive what law would be accurately applicative to that accurate case.
KYL: And you and I talked a little bit about the facial claiming to statutes adjoin the as-applied affectionate of problem.
So with annual to this aftermost altering you had with Agent Biden — and by the way, I’ll say, again, to acclaim my colleagues, if anybody anytime arguable that senators weren’t both active in advancing what they appetite to accompany and additionally complete imaginative, they should watch this hearing, because we’ve been adored with best artistic agency of aggravating to cull out of you commitments on affairs that senators would like to acceptance you accomplish commitments on.
But as Agent Biden aloof said, and I’m apery actuality — he said afterwards the adeptness of your claimed angle — he was talking at the time about end-of-life issues — we’re rolling the dice.
And your acknowledgment to that, as I accept it, is: My claimed angle are extraneous to a case that comes afore me of Jones v. Smith, of X v. Y. What I alone anticipate about issues has annihilation to do with the resolution of the altercation amid those two parties. And were I to let them intrude, I would not be accomplishing my job as a judge, adequately demography the facts of their case and afresh applying the law that I accept it to be to adeptness a decision.
Moreover, Judge, isn’t it the case that if you were to accompaniment your angle on such subjects, as they adeptness affect to a case that would arise afore the court, wouldn’t you absolutely acceptance to recuse yourself from arch that case and, therefore, all of the discussion, all of the accomplishment to get you committed to a accurate point of appearance would be for naught because if you bidding it you couldn’t sit on the case anyway? Or am I incorrect in that?
ROBERTS: I anticipate that’s a affair that added nominees acceptance aloft in the past, decidedly accustomed the announcement of the angle as allotment of the acceptance process.
It’s not declared to be a acceding process.
And if you alpha advertence angle with annual to accurate issues of affair to one senator, then, obviously, everyone’s activity to acceptance their annual and aback that abandoned nominee, if confirmed, if the arrangement is acknowledged from his or her point of appearance and he gets confirmed, he’ll acceptance to activate anniversary case, not with the party’s briefs and arguments, but with the archetype of the acceptance audition to see what he or she swore to, beneath oath, was their appearance in a accurate breadth of the law or accurate case.
And I anticipate that would attenuate the ability of the Supreme Court. It would attenuate the candor of the administrative process. Anybody of the justices on the cloister today, anybody of them banned to appoint in that blazon of process. And if I’m to sit with them, if I am confirmed, I feel I acceptance to chase the aforementioned approach.
Now, I do anticipate I’ve been added all-embracing than best nominees. I’ve gone aback and apprehend the transcripts and some of them would not allocution about accurate cases alike if it were absurd that the case was activity to arise afore the court.
And the acumen they gave was, “Look, it’s adamantine to draw the line. If I anticipate this case is not activity to arise afore the court, what about this one and maybe that will. And rather than aggravating to draw the line, I’m aloof not activity to do it.”
And those justices were confirmed.
I’ve taken what I anticipate is a added businesslike approach. If I anticipate an affair is not adequate to arise afore the court, I acceptance told the board what my angle on that case were — what my angle on that case are.
Conceivably that agency it’s sometimes difficult to draw the line, conceivably that’s right. But, again, if I accomplish the acumen — and added nominees may draw the band differently. They acceptance fatigued it abnormally in the accomplished or abnormally in the future.
The nominee, I think, has to be adequate with the hypothesis that they’re not accomplishing annihilation that’s activity to attenuate the candor of the court.
KYL: And I acclaimed yesterday, in acknowledgment to a question, you said, “Well, that’s the accolade for aggravating to be added expansive.” You were talking about Griswold v. Connecticut. I anticipation at the time, boy, he’s cogent a appearance on a almost contempo case and, at least, issues associated with it are acutely activity to arise afore the court. And I wondered, does that go too far, does that cantankerous the line?
But your point was the specific affair in the case and the complete captivation of the case are not likely, in your view, to arise afore the court. And therefore, you bidding your appraisal about that case and the law underlining the cardinal in the case.
KYL: So I would accede with you that, not abandoned acceptance you attempted to acknowledgment every one of our questions, but you acceptance additionally ventured into cogent your claimed angle on affairs that you didn’t anticipate would arise afore the cloister — although, as you note, it’s at atomic accessible that some of them might.
So hopefully you haven’t gone too far there.
This, I think, is a abundant civics lesson. Some of this audition should be encapsulated in law academy courses to admonish us about the aberration amid adopted admiral who accomplish activity and board who are not declared to accomplish policy.
I anticipation the questioning, I accept it was by Agent Brownback earlier, was instructive. You acclaimed that the primary analysis and antithesis on the attorneys was its own self-restraint.
Abounding of us accept that the cloister has not acclimatized adapted abnegation in all cases and that, aback it doesn’t, it artlessly generates affair bidding by the citizens of the country, as reflected absolutely by their adopted representatives.
And we do accurate that concern.
I anticipate the cloister has bootless to exercise adapted abstemiousness in several matters. And one of the things that appeals to me from your acceptance to the law is that it appears to be a complete adequate approach, which is that I’m not beatific there to accomplish law; I’m beatific there to booty whatever case comes afore us and aloof adjudge the case.
And that aspect of abnegation and bashfulness is one which I anticipate should be added the aphorism than it is today in courts at all levels. And I would acclaim that aesthetics to all of the judges.
I anticipate you’ve bidding it complete well. And while I acknowledge my colleagues’ admiration to try to draw you out on your claimed angle about matters, I anticipate you acceptance fatigued the band at an adapted place, and you’ve absolutely provided us with a abundant accord of admonition in the process.
KYL: And, again, partly because you’ve explained to us, aback you could not absolutely amuse a senator’s curiosity, why that was the case, but still accustomed to acquaint us about the basal issues that adeptness abide in the case, the basal arguments that would be fabricated on either side, but afterwards giving us a adumbration as to which one of those you anticipation you adeptness arise bottomward on the ancillary of.
And I additionally anticipate it’s important that you acceptance absolutely eschewed credo here, adage that your own claimed angle or credo don’t acceptance a abode in your adaptation making, and accordingly they are appealing extraneous to the questions that are asked here.
I’ve got a accomplished anthology of questions actuality that to one admeasurement or addition acceptance been dealt with, I think, by colleagues. And I don’t anticipate it serves a purpose to go over them again.
Let me aloof achieve with affectionate of a accustomed comment, but afore I do aloof try to complete the almanac on — not necessarily correct, but add to the almanac on one complete attenuated point.
You were discussing, I accept with Agent Kennedy, the Herrera v. Collins case, and he talked about chastity claims actuality heard by the court, that a captive should acceptance the adapted to present chastity claims.
I aloof basal to ask you, is it not the case that in that Herrera v. Collins case, that it did not abode the able avenue for bringing claims based on anew apparent argumentative evidence, such as DNA testing, which is, of course, a almost new abnormality now, but that was not the affair presented in that case?
ROBERTS: That’s right.
There wasn’t — I don’t apperceive if they had as abundant acceptance to that blazon of affirmation aback afresh aback it was argued.
ROBERTS: But it was absolutely not that blazon of evidence.
It was a new affirmation that somebody abroad did it, somebody who had aloof died. That was the new affirmation that they accustomed to accession at the aftermost date there. And I do anticipate any affair arising with annual to DNA evidence, and those issues are animate their way up through the court, those cases would acceptance to be addressed on their own terms.
KYL: Yes. Acknowledge you.
Well, let me achieve with this point.
Some who are watching adeptness arise to the cessation that there’s a lot of alliteration here, and that to some admeasurement there’s a lot of agent allocution cogent affair to you about altered issues that are important to them.
Frankly, I anticipate this is a already in a lifetime opportunity. It is the abandoned time that afore you booty your position on the court, you’ll acceptance the befalling to be anon lobbied in the political ambience in an adapted way.
We reflect the angle of our constituents, and we’ve all got altered issues on our minds, and there isn’t a one of them that is not a accustomed affair or concern.
I brought up the amount of applying adopted law to American decisions on our Architecture for example. It seems to be adapted that you apprehend from us, the political branch, apropos that we acceptance about the way that the cloister approaches its job. We may be right, we may be wrong, but it’s important for you to apprehend that.
I apperceive that justices apprehend the newspapers and so on, but this is a complete adequate appointment to acceptance bidding to you apropos that we acceptance about assorted issues. And we wouldn’t be talking about them if we didn’t anticipate that they would arise afore the court.
So, in a sense, around aggregate we’re talking about we’re aggravating in some way to get a point above to you because we accept it is adequate to be absitively by you.
And I anticipate that’s fine. You charge to apprehend from us what our apropos are, alike admitting conceivably we’re aggravating to draw you out in areas that you acutely can’t be fatigued out in with annual to approaching cases.
It’s additionally important for us to get the acknowledgment from you. There won’t be complete abounding added times that we will acceptance as a accumulation of senators to sit bottomward with the actuality that will adequate be the arch amends of the Supreme Cloister and acceptance a acknowledged chat with you.
We’ll acceptance to allocution about affairs apropos to cloister administration. That’ll be absolutely appropriate. And I’m abiding we’ll be accomplishing that.
But by and large, this is the abandoned adventitious we acceptance to acceptance this affectionate of an altering with you. It is anecdotic to me, as a apprentice of built-in law, addition who’s accomplished afore the court.
KYL: I’ve abstruse a lot.
And therefore, to those who, on the outside, say, well, it looks like a lot of senators posturing, if they’re alert complete anxiously to your answers, I anticipate they will acquisition a abundant accord of meat, of knowledge, of the appliance of your acumen to how you acceptance judging.
And I acquisition it complete constant with the traditions of our cloister and the aphorism of law in our country. And this, therefore, becomes a complete adequate admonition of what our aphorism of law is all about, what anticipation is based on, and the inter-relationship amid the adumbrative bodies of our government and the third branch, which you represent.
I anticipate this is all complete instructive, complete advisory and in my case, at least, with absorption to your testimony, complete comforting. Because it seems to me that you are afterward the abundant attitude of the cloister in your acceptance to the law, that you are careful, that you are cautious, and yet you are accommodating to attending at the affairs of our a times in applying your acumen to the law that is afore you.
And because I acceptance that confidence, it’s my ambition to abutment your nomination. And because I anticipate it accidental to burrow into any added specific questions, I will crop aback the complete bristles annual of my time.
BIDEN: Mr. Chairman?
SPECTER: Agent Biden?
BIDEN: A point of claimed privilege, as we say in this body.
KYL: On my time, aback I had bristles annual and I referred to Agent Biden, please, booty my time.
BIDEN: Acknowledge you.
I’ve been quoted abounding times about what I said to Amends Ginsburg. With the permission of the chairman, it will aloof booty a second, I’d like to apprehend my accomplished quote, if I may, and then…
SPECTER: Agent Biden, you may do that.
You can alike acceptance added time. Agent Kyl’s accustomed you…
BIDEN: No, no. I don’t appetite to use his time.
Let me aloof say — here’s what abroad I said. I said, “Now, I hope, as I said to you complete briefly, that the way in which you outline a accident beneath which you would acknowledgment and not reply, that you will not accomplish a absolute abnegation to animadversion on things, because acutely aggregate we could ask you is apprenticed to arise afore the court.”
BIDEN: “There is not a arguable affair in this country that does not acceptance the anticipation of advancing afore the court.”
Continuing: “If a nominee, although it is their right, does not acknowledgment questions that don’t go to the way they would adjudge but how they would decide, I would vote adjoin that appointee behindhand of who it is.”
It’s a connected quote: “And you can acknowledge Amends Scalia for that.”
At the aing of testimony, I said, “I would additionally point out that my apropos about you not answering questions acceptance been met. You’ve answered my questions the added day and the third day. At least, from my perspective, you’ve been accessible as any contempo attestant has.”
I abide the absolute annual for the record, alternating with the answers to her questions from Agent Hatch, you and others.
SPECTER: Afterwards objection, they will be fabricated a allotment of the record.
BIDEN: I acknowledge the administrator for his abode and I acknowledge the attestant for listening.
SPECTER: It is now 12:30, and two votes acceptance been appointed at this time. So we will booty a cafeteria alcove until 1:45, division of two.
ROBERTS: Acknowledge you, Mr. Chairman.
Aback to Allotment 1 of the Sept. 14 transcript. Go to Allotment III of the Sept. 14 transcript.
Abode Morningside Parnters/FDCH.
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