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CNN LIVE EVENT/SPECIAL

President Bush Visits United Nations; Roberts Confirmation Hearings Continue

Aired September 13, 2005 - 15:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.


WOLF BLITZER, CNN ANCHOR: Just after 3:00 p.m. here on the East Coast, just after noon on the West Coast.
We're watching several important stories here in THE SITUATION ROOM. Among the stories we're watching, the president of the United States is now in New York, heading over to the United Nations. We will continue to monitor what he is doing.

The mayor of New Orleans, the mayor of New Orleans, Ray Nagin, is expected to have some remarks, answer some reporters' questions. We will monitor that as well.

CNN's Jack Cafferty, in the meantime, is watching the hearings of John Roberts, together with all of us. And Jack Cafferty is joining us live from New York right now -- Jack.

JACK CAFFERTY, CNN CORRESPONDENT: Do you know how long President Bush is supposed to be at the U.N., Wolf?

BLITZER: No.

CAFFERTY: Because I -- it just -- it screws up traffic in the city something fierce when he comes to town. And if he's here about another hour-and-a-half, it's going to get in the rush hour. And it's just -- it's aggravating enough trying to get out of this town when you get off work.

(CROSSTALK)

BLITZER: Jack, I hate to tell this to you, but, in the next week or so, there are probably going to be 100 world leaders coming to New York for the opening session of the United Nations General Assembly. And many of them are staying on for Bill Clinton's special summit meeting as well.

CAFFERTY: I'm very depressed. I may take next week off.

They should move the U.N. to Washington. And then you folks down there could deal with it. I mean, it's just awful when these people come to town. You can't get around the city as it is.

Anyway, back to the hearings about Judge Roberts. As you watch them, something to keep in mind is this. Unless the judge himself or someone else reveals some horrendous scandal in his past that nobody knows about, the chances that Judge Roberts will not be confirmed as the next chief justice of the United States are very slim and none. He's a shoo-in, in other words. Nevertheless, he's being asked a lot of tough questions, most of which he's managing not to answer. So, for the next hour or so, we invite you to put yourself on the Judiciary Committee. What question would you ask Judge Roberts? You can e-mail us at CaffertyFile -- one word -- @CNN.com.

And you know whose idea that question was, Wolf?

BLITZER: No. Whose?

CAFFERTY: The president of this network, Jon Klein, suggested that that would be a good question for our viewers to chew on for an hour or so. So, there's a reason these guys rise to these elevated heights in these broadcasting operations. I mean, it's that caliber of thinking that gets him to the top.

BLITZER: Well, that's a good question, a fair question.

CAFFERTY: It is a good question.

BLITZER: I'm sure our viewers have some serious thoughts on that.

Jeff Greenfield, by the way, wants to comment. He's a New York resident, Jack. Listen to what he says about the traffic problems in New York.

JEFF GREENFIELD, CNN SR. ANALYST: Jack, I hold in my hand here, as the late Senator McCarthy said, a metro card.

CAFFERTY: Right.

GREENFIELD: World leaders do not take the subway.

CAFFERTY: I understand.

GREENFIELD: I heartily recommend it for you in the coming days and weeks.

CAFFERTY: Have you tried to get to New Jersey on the metro card?

GREENFIELD: Listen, if you're one of those commuters that comes to our city and won't pay our taxes, to hell with you.

(LAUGHTER)

CAFFERTY: I thought -- I thought Mr. Greenfield was my friend and colleague. Well, I will be rethinking our relationship now.

GREENFIELD: All right.

CAFFERTY: Mr. Toobin, you and I will have lunch the next time you come to New York.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Exactly. Absolutely, although I, too, have a metro card as well, I'm afraid to say. CAFFERTY: All right. I will have lunch with someone else.

(LAUGHTER)

CAFFERTY: Would you like to have lunch with me?

(CROSSTALK)

(LAUGHTER)

BLITZER: All right, guys, stand by.

(CROSSTALK)

BLITZER: Let's get back to the John Roberts hearings. He's being asked some serious questions. It sort of reminds me a little bit -- both of you guys went to law school, so you understand this. You went to Yale.

Jeff Greenfield, you went to Harvard law school. So, you know a lot of about this.

It sort of sounds, when he answer these questions, he's being grilled by professors to a certain degree and he's got to come up and give a good answer.

GREENFIELD: There was a tradition in law school, which I think has faded, where it was basically a trial by ordeal. Anyone who saw the movie "The Paper Chase" knows what it's like.

They are like drill instructors in coats and ties. And their job, at least when I was there was -- Toobin is substantially younger -- was to basically -- to see if they could break your spirit. And if you were hardy enough to stand up to their relentless intellectual pushing, they figured you would be OK when you got into a courtroom.

TOOBIN: It was much more touchy-feely in my day.

But what -- what -- what this reminds me of, though, is a trial, where the Republicans are doing direct examination and they are trying to build up the witness, and the Democrats are doing cross- examination. They are trying to challenge the witness. So, that's why the Democrats' questioning is always a lot -- it tends to be a lot more dramatic, because it's much more confrontational.

And it was true in the reverse when Clinton had nominees to the Supreme Court.

BLITZER: When you said that Senator Grassley is known for his economy of words, his one-word answer to you, why these senators, if they have 30 minutes to ask questions, they spend 15 or 20 minutes hearing themselves talk and then say, what do you think? His one word answer was?

GREENFIELD: He said, television. The interesting thing about that is, from my perspective, you look a lot better if you actually engage these witnesses in questions, rather than bloviating for 20 minutes. If somebody wants to impress their constituency, it seems to me a heck of counterproductive way to do it. What you come out looking like is a loudmouth.

BLITZER: Because I could never understand that myself, although I have covered the Senate for, what, 30 years now. And if you have ever been to any hearing -- it doesn't make any difference if it is Agriculture or Foreign Relations or the Judiciary Committee or any committee. You will come to those hearings and, basically, you will hear a lot of senators talking.

TOOBIN: They go to talk, not to listen. And that is just a rule of Congress, the House and Senate. And I think it looks terrible on television. I don't get it.

BLITZER: But -- and then they complain that there is only a limited amount of time.

(CROSSTALK)

TOOBIN: Right. They always say that the time is running out.

(CROSSTALK)

BLITZER: Time is running out. Well, you have just spoken for 20 minutes.

(LAUGHTER)

GREENFIELD: Let me share with you a very impolite metaphor that one longtime Washington watcher invented. It goes like this. Forgive me.

A senator is to a microphone as a dog is to a fire hydrant. That is, they find them irresistible objects for one reason or another.

BLITZER: With that, let's listen to Senator Herb Kohl, Democrat of Wisconsin. He's asking Senator Roberts questions about term limits. And Judge Roberts is responding.

(JOINED IN PROGRESS)

JOHN G. ROBERTS, SUPREME COURT CHIEF JUSTICE NOMINEE: And they have to do with sort of a definite cutoff point. I'm not sure that's healthy for the institution of the judiciary, for people to know, for example, well, it's sort of like as you say, term limits; that if we wait another year, this judge will be gone or that justice will be gone.

I'm not sure today, from where I sit, that that is a good or healthy thing for the judiciary.

SEN. HERB KOHL (D), WISCONSIN: So you do not support term limits anymore? ROBERTS: I have to say I do not, because I do think that that restriction at the end, so litigants could look and shape their litigation in light of who they think the judges or justices might be, I think that's not a healthy development.

I would note that, if I'm remembering the memo correctly, I think it was a proposed constitutional amendment, which I'm not sure, but I think that obviously is a policy choice that the Constitution allows to be pursued through that process.

KOHL: All right.

Judge, as you know, confronted with a legal problem, most American families, unlike wealthy families and very large businesses, lack the resources to hire the largest and most preeminent law firms to do their bidding.

And do you agree that for our nation's working people securing civil justice is often rendered substantially much more difficult because it simply does cost too much?

Do you have suggestions for addressing this issue?

Do you worry that captivating national events, such as the O.J. Simpson and Michael Jackson trials, reinforce the view that in this country justice can be for sale and available to those who can afford it?

ROBERTS: You know, I do think that the availability of legal services is not as broad and widespread as it should be. There are so many things and areas where I think lawyers could make a valuable contribution, but it's too expensive.

There are a number of responses that I think the bar should be taking. Obviously, for those at the lowest end of the income scale, I think there's an obligation to provide pro bono legal services. I think the big firms, little firms, medium firms, everybody needs to get involved in that.

There's not enough appreciation about how you can do that. For example, everybody thinks in terms of bringing a big case, litigation.

You know, lawyers who do estate work can provide extremely valuable pro bono services. Lawyers who do tax work can provide extremely valuable pro bono services. The whole range of services -- corporate work. I know lawyers in my old firm would do a lot of pro bono services helping set up nonprofit organizations, ensuring that they're complying with the law.

People need to be a little more creative in the ways in which they can help. I regard that as an obligation of the bar.

And I do think that in fact in many cases the situation you get is the people at the lowest end have access to pro bono services. People at the highest end can pay. And it's the people in the middle who are left without legal services that could be extremely valuable. And I do think the bar needs to do more. I think firms need to do more. Individual lawyers need to do more.

KOHL: Judge Roberts, as you know, over the last two decades or so, there have been several bills introduced in Congress to strip the Supreme Court and all other federal courts of their jurisdiction over many issues. These bills are generally sponsored by people who are unhappy with various court decisions, including decisions on things like school prayer, remedies for school desegregation and even a woman's right to choose.

While you served in the Justice Department and in the White House Counsel's Office in the Reagan administration in the 1980s, you did state that you believed that bills stripping the court's jurisdiction were constitutionally permissible.

Do you still hold this view? Do you think it is the right way for us to go, to allow legislatures to strip your authority to review cases?

ROBERTS: I know the memos to which you are referring make the point -- answer to your second question -- I said that they were a bad idea. They were a bad policy. I had been asked earlier when I was -- back in 1981, I believe, when I was working in the attorney general's office, to present to him an affirmative case for the proposition that the proposals were constitutional.

He was getting an opinion that they were unconstitutional. He had to make that decision for the department's position. He wanted me to argue the other side. And I did. I prepared a memorandum presenting the best argument I could that these proposals were constitutional.

The two memos to which you refer in the White House, where I suggested I thought they were, suggest that my memo persuaded me, if nobody else. The attorney general adopted, instead, the contrary position. And I think my views may have had something to do with the proximity to my own advocacy at the time.

As I say, I did say they were a bad policy. The reason I thought they were a bad policy is because they lead to a situation where there's arguable inconsistency and disuniformity in federal law.

If you don't have the Supreme Court with jurisdiction to address that, then you get different decisions and that was a -- that's bad policy.

If I were to look at the question today, to be honest with you, I don't know where I would come out. I think one of the questions I would have is whether these concerns I had that I labeled as policy concerns might more appropriately be considered legal arguments; in other words, not a policy dispute, but a legal argument.

That's the way the opinion of the Office of Legal Counsel that the attorney general agreed with viewed it. They said these -- the fact of disuniformity and inconsistency is a legal argument against the constitutionality. It's not simply a bad policy decision.

And I'm not sure where I would regard that determination today.

KOHL: Really?

Are you saying that you're not sure where you would come out if you were faced with the decision to go along with or to fight legislative attempts to take away the court's authority?

ROBERTS: Well, I don't think -- on the question of legislative attempts, I think my view is the same now as it was 24 years ago, which is that these are -- it's a bad idea. It's bad policy.

I was talking about the other question about whether it's constitutional or not. And on that, of course, I don't think I should express a determinative view because, as you know, these proposals do come up and one may be enacted.

And if that is the case, then I'd have to address that question on the court. It could be on the court I'm on now or another court.

KOHL: So in that case -- or in this case -- your heart might tell you that it's a bad idea; your mind might tell you it's constitutional?

ROBERTS: Well, I don't know what my mind would tell me.

KOHL: I mean, theoretically...

ROBERTS: But I feel comfortable with the conclusion, as I was 24 years ago, that it's a bad idea.

KOHL: All right.

ROBERTS: They're bad policy.

KOHL: Judge, since your nomination, literally -- as you know -- tens of thousands of pages of your writings as a young White House aide have been released and looked at very carefully.

In some of these writings, you took very pointed positions, as we discussed -- some political, some constitutional and some that have raised eyebrows.

I also think about myself when I was in my 20s and then when I was at the age which you are now and who I have become today and how I have changed, matured, and hopefully grown as I have gotten older.

I'm sure when you've had a chance to review some of your old work as part of this process, that there are things that you wrote back then that make you cringe perhaps today.

Are there positions you took back then as a 20-something lawyer that you would not take today?

Can you give us a couple of examples of positions that you took then that, as you have grown and developed and as are now sitting before us to be the chief justice of the United States of America, that you are today not the person that you were back when you were at 20-something?

ROBERTS: Well, we've talked about the term limits for judges. More generally, as I look at all of these documents -- and the numbers, somebody said 80,000 pages; it's a little daunting -- I don't know that there are particular issues. I mean, you have to remember this is 23, 22, 24 years ago.

In many of these cases, not only have I changed, the law has changed dramatically in more than two decades. You know, I'm sure -- and again, of the many that have been released, I will say that it's really only a handful that have attracted attention for one reason or another.

And I do think if you look at the whole body of work that I would hope people would leave that with a favorable impression.

Certainly, there are many areas where it appears that I knew a lot more when I was 25 than I think I know now when I'm 50. I had a lot of different experiences in the intervening period that give you valuable perspective.

In that intervening period, for example, I left the government, went out in the private sector, litigated a lot of cases against the government.

You do get a different view of things when you're on the other side. I think that's extremely valuable.

I hope, as you suggest, I've grown as a person over that period as well. And that also gives you some perspective. And that type of a perspective might cause somebody to moderate their tone with respect to some issues, and in some areas, and I'm sure that's the case.

I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers.

KOHL: I thank you, Judge Roberts.

Thank you, Mr. Chairman.

ROBERTS: Thank you, Senator.

SEN. ARLEN SPECTER (R-PA), CHAIRMAN: Thank you, Senator Kohl.

Senator DeWine?

SEN. MIKE DEWINE (R), OHIO: Thank you, Mr. Chairman.

Judge, good afternoon.

ROBERTS: Good afternoon.

DEWINE: I guess the good news is that I represent halfway point.

SPECTER: On the first round. DEWINE: The bad news is, it's the first round.

(LAUGHTER)

Judge, I want to ask you about one of your more important, probably least understood -- not by you, but least understood by the public -- role, if you are confirmed as the chief justice. And that is your job to appoint the members of the FISA court.

Judge, as you know, in 1978, Congress passed the Foreign Intelligence Surveillance Act. This law, of course, set up the FISA court.

As you well know, this is the court that our intelligence agents go to when they want to obtain wiretaps or search warrants against terrorists and foreign spies -- a very important court, a court that meets in secret, a court that deals with the most important national security matters that we have, really, in our country, but also a court it deals with our precious civil liberties.

And, Judge, because it's a court that meets in secret, it doesn't gave the public scrutiny, it doesn't have the glare of publicity and, quite candidly, does not have much oversight.

So I would like to know, besides what's in the statute -- the statute sets out that it will be your job to select the 11 judges who sit on the FISA court, the three judges who sit on the FISA court of review. There's certain guidelines in the statute.

But besides that, I wonder if you could tell us what your criteria will be when you select these men, these women, who will serve on the court. And I wonder if you could give me your personal assurance that this will be something that will be very important to you, that you will take a hands-on approach and that you will be very personally involved in.

Because really it is a question of the utmost national security. These are people who are going to make sometimes life and death decisions for our country.

ROBERTS: I appreciate that, Senator. And if I am confirmed, that is something that I will address and take very seriously.

I think, as in many areas, my first priority is going to be to listen, to learn a little bit more about what's involved.

I'll be very candid. When I first learned about the FISA court, I was surprised. It's not what we usually think of when we think of a court. We think of a place where we can go, we can watch, the lawyers argue, and it's subject to the glare of publicity. And the judges explain their decision to the public and they can examine them. That's what we think of as a court.

This is a very different and unusual institution. That was my first reaction. I appreciate the reasons that it operates the way it does. But it does seem to me that the departures from the normal judicial model that are involved there put a premium on the individuals involved.

I think the people who are selected for that tribunal have to be above reproach. There can't be any question that these are among the best judges that our system has, the fairest judges, the ones who are most sensitive to the different issues involved, because they don't have the oversight of the public being able to see what's going on.

Again, to be perfectly honest, it is a very unusual situation, and I do think it places a great premium on making sure that the best qualified people for that position are selected.

DEWINE: I appreciate your personal attention to that. I know how important you know it is, Judge.

And I would just add one more comment, that that court, as all courts do, but even more so, not only makes decisions, not only decides whether to issue the warrant or not, but it's the feedback that the Justice Department gets and the law enforcement agencies get that tells them what they can do and can't do. And that feedback is unbelievably important and it affects the intelligence operations in this country and is just vitally, vitally important.

Let me move, if I could, to something that's very important to me and to all of us. And that is the First Amendment. Certainly, Judge, there's no right in our Constitution that is any more important than the freedom of speech.

In a sense, it's the foundation of our democracy. It is the right upon which other rights are built. It's the right that guards our liberty and preserves our freedom.

At the heart of the First Amendment is the idea that people have a right not only to speak their mind but also to be heard. I'd like to talk to you a little about that and ask you a question.

The case, I think, that most eloquently talks about the public square where we engage in speech is Hague v. CIO, a 1939 case which you are well familiar with.

I want to quote it very briefly: "Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembling, communicating thoughts between citizens and discussing public questions. Such use of the streets and public places has from ancient times been a part of the privileges, immunities, rights and liberties of citizens," end of quote.

Judge, I want to be honest with you and say that, as of late, I feel that we're seeing a disturbing trend when it comes to speech in the public arena. I want to give you some examples.

In a recent case, a Wisconsin woman was kicked off a city bus. And this is what she was kicked off a city bus for doing: She was trying to distribute a book containing Bible stories to individuals sitting next to her. Another case that's repeated time and time again across this country and has been for many years in towns and cities, villages across the country: Individuals are prohibited from placing political signs -- and it could be not just for candidates; it could be for school levy, against the school levy -- on their own property, on their own property, except during specified times and specified ways.

Government tells them, so many days before the election: You can't put that up there until so many days before the election -- not just for candidates but for bond issues, whatever the issue that they want to talk about through their own political speech, on their own property.

Another example: People who wish to exercise free speech in many public places -- these individuals are forced into so- called free speech zones, which many times are far away from the event that they wish to protest about; so far away that that they can't ever be seen or ever be heard -- out of sight.

Again we go back to the issue of you have to be heard.

In one recent case, the New York City Housing Authority refused to let a woman conduct Bible studies in a community center of a housing project, even though the community center was used for a host of activities, even weddings.

I must say, in that case, she actually won the case.

So I'm concerned when I see these restrictions. I think at the core of the First Amendment is the idea that individuals should be able to speak and be heard in public places.

Judge, I know you can't tell us how you'll decide any particular case; I'm not asking you to do that. But it is important to me that you talk to us a little bit about how you will evaluate these cases involving the right to speak in public places -- public places such as buses, metro stations, city sidewalks, public parks -- and tell us, if you could, Judge, what factors will you consider when deciding restrictions on speech in the public square as we traditionally know it.

What is proper under the First Amendment? And which ones are not? What tools will we use to decide that?

ROBERTS: Well again, of course, without commenting on any of the particular hypotheticals or actual cases.

DEWINE: I'm not asking you. And they're all real cases. But I want you to talk about that.

ROBERTS: I do think, though, first as a general matter and then to get into the law, that it is important that people keep a basic principle in mind when they're addressing these types of concerns.

And it's not a provision in the Constitution. It's not a provision in the law. But it's a basic American approach that I think is important, and that's captured in the expression, you know: It's a free country.

And when you're talking about what people can say, what signs they can put up, what they can do, I think people as a general matter need to appreciate that it's a free country and it's a wonderful thing that people can say things in the public that you may not agree with, because you, of course, have the same right.

Now, the particular mode of analysis that the Supreme Court uses in addressing these types of public speech issues is to some extent unsettled. Public forum doctrine, as it's called, for many years, you tried to characterize an issue: Is this a public forum, is it a quasi-public forum, is it a private forum?

And the definition sort of carried with it the conclusion about what could be allowed. And many of the justices thought that the reasoning was awfully circular.

I remember, years ago, I argued one of the cases in the Supreme Court about post office and what could be done in a post office area and whether the restriction of that area to postal business meant they could exclude people who wanted to engage in political speech. And I remember thinking at the time that the precedents were very unsettled.

And I'm not sure that the court has made much progress since then.

But you do try to focus a little bit on whether you are dealing with a public forum, one that has traditionally been open to expression, and if it has, then any restrictions on expression are going to be subject to a very exacting standard before they'll be upheld.

If it's a more limited public forum, it's only been open for certain types of speech, or the nature of the forum requires there to be a restriction -- that was the government's argument in the post office case I litigated -- then it's a less-demanding standard in those situations.

DEWINE: Let me just follow up that with...

BLITZER: All right, we're going to break away briefly from this hearing, John Roberts, the Supreme Court nominee, the chief justice nominee, answering questions from Senator Mike -- Mike DeWine, Republican of Ohio.

That, by the way, woman sitting directly behind John Roberts to his right behind her -- is his -- is his wife, who herself is a pretty prominent attorney here in Washington.

We're getting ready, Jeff Greenfield, for Senator Dianne Feinstein, who is going to be asking the next round of questions, the only woman on this 18-member Senate Judiciary Committee.

GREENFIELD: Dianne Feinstein was elected in 1992, the so-called year of the woman, one year after the extremely contentious hearings involving Justice Clarence Thomas. She indicated yesterday a particular interest in the right to privacy and the now constitutionalized right on abortion, had some extremely personal accounts of dealing with -- with women who had gotten pregnant in the age before abortion was legalized. I don't think it's any surprise that -- that we are all expecting her to focus very specifically on that issue. And that ought to be one of the more interesting questioning periods for this whole day.

BLITZER: We will see where she starts off having -- on the abortion rights issue. That was Arlen Specter, the chairman, the Republican chairman of this committee. He started off his first almost complete half-hour on that one subject.

TOOBIN: Absolutely.

And Herb Kohl of Wisconsin, who just finished, was asking about it in a way as well. And -- and there was a little bit of new ground broken there, where Judge Roberts said very explicitly that he supported the Griswold decision from 1965, which was the decision that said Connecticut could not ban contraceptives for married people, men or women. And that -- that was really the first big privacy case.

And that is now a fairly uncontroversial case. But there are some conservative who oppose it. And these are all hints, not guarantees, but hints, about how Judge Roberts would view the right to privacy and ultimately...

BLITZER: And that...

TOOBIN: ... the future of Roe v. Wade.

BLITZER: That Griswold case set the stage for Roe Vs. Wade.

TOOBIN: Eight years later, yes.

GREENFIELD: This was the -- this was the first time that the court said we can't -- yes, it isn't anywhere listed. Justice Douglas in a famous and very controversial opinion talked about that constitutional rights have penumbrance (ph) -- emanations arising penumbrance or penumbrance arising from emanations.

You pick out what the court meant in the fourth amendment about searches and seizures, or the Quartering Act that says you can't put troops in people's houses, and the famous or infamous ninth amendment that says just because there are a bunch of rights we mentioned doesn't mean there aren't others and put them together and said, yes, there's a right to privacy.

It is less controversial than it was but I think it is fair to say I'm not sure that a Justice Scalia or Thomas to this day would uphold -- would buy that reasoning.

TOOBIN: I think it's quite likely they wouldn't. And what is interesting about today is we learned that Judge Roberts would support the right to privacy at least in general. BLITZER:: Let's take a quick break. We're going to come back and resume our coverage. We're also monitoring developments involving the aftermath of Hurricane Katrina. Much more of our coverage here in THE SITUATION ROOM right after this.

(COMMERCIAL BREAK)

BLITZER: Free speech and pornography, that's the subject right now being discussed over at the Senate Judiciary Committee. Senator Mike DeWine of Ohio asking questions of Judge John Roberts, the Supreme Court chief justice nominee. Let's listen in.

DEWINE: Antecedent to the question of what the level of protection is, to determine whether it's entitled to First Amendment protection in the first place. And certain types of speech, like child pornography, the court has determined are not entitled to protection under the First Amendment.

There are different categories, and the court has struggled over the years in figuring out how to determine those categories and what belongs in what category. And beyond that, I don't think I can give a more precise answer.

Judge, let me turn to the area of congressional power. It's been talked about before here. I want to talk about it a little bit more. Really, this has to do with federalism cases.

As you know, the court has handed down a number of cases that have restricted the power of Congress to pass important legislation. The court has struck down portions of the Violence Against Women Act, the Americans with Disabilities Act, the Age Discrimination Employment Act and the Religious Freedom Restoration Act, just to name a few.

In some of these cases, the court restricted Congress's power under the commence clause. In some, it relied on the 11th Amendment. And in some it cited Section 5 of the 14th Amendment.

The particular provision is not that important for this discussion.

Let me be perfectly frank: I think there's some problems with these decisions. I think it is wrong for judges to take on the role of policy-makers.

I realize that, if a statute was blatantly unconstitutional, the judge has to do their duties. But I think -- for the reason I'm going to discuss in a minute -- that was not true in these cases. I want to cite one example -- just because of time I only can go through one -- and that is the Garrett case: 5-4 decision, Board of Trustees v. Garrett.

As you know, this case involved a woman who said that she had been discriminated against because she was disabled. She was employed by the state of Alabama. She sued the state under the Americans with Disabilities Act. The Supreme Court threw out the suit, holding that there was no evidence that the state discriminated against the disabled in employment decisions.

I think the problem with Garrett is that the court ignored findings by Congress. There were other cases that had been decided where we didn't have findings; you are familiar with those. I understand the court's decision. I might like them or not like them, but I understand them.

This case: We made findings. While we were considering the Americans with Disabilities Act, we held 13 hearings, and we set up a task force; a task force that held hearings in every state and was attended by more than 30,000 individuals.

Based on these hearings, we found 300 examples of disabled individuals being discriminated against in employment decisions. We found that two-thirds of all disabled Americans between the ages of 16 and 64 were not working at all, even though a large majority of them were capable of doing so.

And we found that this discrimination flowed from stereotypic assumptions about the disabled as well as, quote, "purposeful unequal treatment," end of quote.

All findings by this elected Congress of the United States.

Here, however, the court said this was not enough. It rejected our fact-finding, holding that we had not pointed to any evidence that the states discriminated in employment decisions against the disabled.

Judge, you have stressed repeatedly in your writings and your opinions -- and I have a great deal of respect for you and appreciate these writings and opinions -- but you stress the limited role that judges must play in our system of government.

I applaud you for that approach.

It's important for me to ensure that you still hold to this belief.

In your opinion, what role should a judge play when reviewing congressional fact-findings? In your view, how much deference do congressional fact-findings deserve?

I understand you're not going to talk about this case or any of the cases I just cited. I wanted to lay that kind of as a predicate. I wanted to tell you where I'm coming from.

But just talk in general about when you see fact-findings by Congress, when we have held hearings, when we have established the record, how do you approach it, what are the tools that you use, Judge, based on the precedents and based on what you think the role of the judge is?

ROBERTS: Well, again -- and of course, without getting into the particulars, the reason that congressional fact-finding and determination is important in these cases is because the courts recognize that they can't do that. Courts can't have, as you said -- whatever it was -- the 13 separate hearings before passing particular legislation.

Courts -- the Supreme Court can't sit and hear witness after witness after witness in a particular area and develop that kind of a record.

Courts can't make the policy judgments about what type of legislation is necessary in light of the findings that are made.

So the findings play an important role.

And I think it's correct to say under the law, in this area and others, they're neither necessary nor necessarily sufficient, but I know as a judge that they're extremely helpful when there are findings.

And judges know when they look at those that they're the result of an exhaustive process, of a sort that the court cannot duplicate.

We simply don't have the institutional expertise or the resources or the authority to engage in that type of a process. So that is sort of the basis for the deference to the fact-finding that is made. It's institutional competence. The courts don't have it, but Congress does. It's constitutional authority. It's not our job. It is your job.

So the deference to congressional finds in this area has a solid basis.

Now in the particular area you are talking about, under Section 5 of the Fourteenth Amendment, the Garrett case -- there are, of course, the more recent cases that you know of, the Tennessee against Lane and the Hibbs case, Nevada against Hibbs, where the court did defer to the fact-finding in those cases, and particularly in the Hibbs case focused on the legislative recognition based on its examination of the factual record developed at hearings about the statute that was at issue there and the particular approach that they were taking to remedy discrimination under the Fourteenth Amendment, which is the authority that Congress has.

Now the legal requirement that the court has articulated there came, of course, from the City of Boerne case -- the remedial approach has to be congruent and proportional.

Justice Scalia signed on to that approach in the City of Boerne case. In the Lane case, he said he'd changed his mind and he no longer agreed with that.

Any area of the law where Justice Scalia is changing his mind has got to be one that's particularly difficult, and one that I think is appropriately regarded as still evolving and emerging.

And so I don't know if the more recent cases in Lane and Hibbs represent a swinging of the pendulum away from cases like Garrett and Kimmel on the other side, or if it's simply part of the process of the court trying to come to rest with an approach in this area.

But it is an area that the court has found difficult. And just as a general matter, I think when you get to the point of reweighing congressional finding that starts to look more like a legislative function, and the courts need to be very careful as they get into that area to make sure that they're interpreting the law and not making it.

DEWINE: Well, Judge, I appreciate your answer. And I'm going to move on, but I would just say that, one of the more disturbing things to me about Garrett is that the dissent and majority opinion got into a dispute -- verbal dispute -- about what the facts were.

And, you know, their dispute about the facts, that seems to me that's not usually what the Supreme Court gets involved in. And it seems if there's a dispute in the facts, you would normally defer to the fact-finder, Congress.

Let me take off on Garrett and maybe talk about another way to get at this. Rather than focus on the problem caused by Garrett, maybe there's another way to solve some of the problems that would be raised by this. Congress still has the power to protect the disabled under the spending clause of the Constitution. We have the power of the purse.

In South Dakota v. Dole, we wanted to establish a national drinking age of 21. You're well aware of that. It was upheld by the court. We did it through the power of the purse in the Dole case. I just wonder if Congress might be able to use this approach to require the states to weigh their immunity from suit under statutes like the Americans with Disabilities Act.

It seems to me that under the spending clause, we have at our disposal the power to protect the disabled, to protect other groups and effectively overturn cases like Garrett and these other cases that limit legislative power. You seem to take that approach in a case entitled Barbour v. Washington Metropolitan Area Transit Authority.

That case concerned a disabled person who was suing a state entity under the Rehabilitation Act. In that case, you held that the suit could go forward even though the state entity was immune from suit under the Eleventh Amendment. In your view, the state entity had agreed to waive its immunity in exchange for receiving federal mass transit dollars.

I think this case is important. It's important to me, at least, Judge. It seems to show us what you think about Congress' power under the spending clause, and also it gives us a model, I think, for how we might be able to protect those who are discriminated against under the Americans with Disabilities Act.

So if you'll just take a moment -- I've got two minutes left. Will you take a moment and tell us about the issue in the Barbour case and what was your reasoning for permitting a disabled person to sue in federal court for discrimination in that case?

ROBERTS: Certainly. DEWINE: It's your case. You were involved in the case. You were in the majority opinion.

ROBERTS: Yes. It was a divided decision.

DEWINE: Right.

ROBERTS: The argument was whether Congress had the authority under the spending clause, as a condition of the receipt of federal funds, that WMATA, the Metro here in D.C., receives, that they waive their sovereign immunity to suit under the disability provisions.

And the argument was that Congress lacked that authority, that they could not impose a waiver of sovereign immunity as a condition for the receipt of federal funds to allow an individual alleging discrimination on the basis of disability to sue.

There was no issue about whether there was sovereign immunity in the absence of a waiver, and the WMATA governing body was opposing the suit on the ground that it had not waived immunity. And they were arguing that Congress lacked the authority to condition the receipt of funds on a waiver of the immunity.

It was a divided decision. Two to one vote. The dissenter argued that this was an inappropriate exercise of the spending clause power.

The majority concluded that, no, this was within Congress' authority. It could condition the receipt of federal funds on a waiver of sovereign immunity that allowed an individual alleging he was discriminated against in employment because of his disability to proceed with the suit. The arguments we rejected were arguments of germaneness. The idea was the funds were for transportation, not for employment. And so it wasn't a germane condition.

The majority rejected those arguments. The dissent would have ruled the other way.

DEWINE: Judge, thank you very much.

Thank you, Mr. Chairman.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator DeWine.

Senator Feinstein?

SEN. DIANNE FEINSTEIN (D), CALIFORNIA: Thank you very much.

SPECTER: We're going to take a 15-minute break when Senator Feinstein concludes her questioning, at about 4:15.

FEINSTEIN: Thanks very much, Mr. Chairman.

Good afternoon, Judge Roberts. I want to follow up on something that Senator Kohl said in his last question, which was sort of asking you to do a look-back into some of the things you've written and said. And you have written -- and this involves women -- either in margin notes or in comments or in memos -- and I'll list for you some of the comments and ask you what do you think of them today.

In a memorandum to Fred Fielding, White House counsel under President Reagan, about the nomination of a woman to be recognized for moving from homemaker to lawyer, and your response to nominating this woman for an award was this, quote: "Some might question whether encouraging homemakers to become lawyers contributes to the common good, but I suppose that's for the judges to decide."

In a memo responding to a letter from three Republican congresswomen that raised concerns about the pay gap that women experience, you said, and I quote, "Their slogan may as well be, 'From each according to his ability, to from each according to her gender.'"

You also wrote that the congresswomen's concerns quote, "ignore the factors that explain that apparent disparity, such as seniority, the fact that many women frequently leave the workforce for extended periods of time, et cetera."

In another memo, you implied that it's a canard that women are discriminated against because they received 59 cents at that time, to every $1 earned by men.

In a September 26th, 1983 memo to Fred Fielding, you rejected an alternative proposed constitutional amendment guaranteeing equal rights to women.

In 1982, you wrote a memo to then attorney general in which refer to the task force which was to conduct a government-wide review to determine those laws which discriminate on the basis of gender as the ladies' task force.

I mention these examples to highlight what appears to be either a very acerbic pen or else you really thought that way. Did you really think that way, and do you think that way today?

ROBERTS: Senator, I have always supported and support today equal rights for women, particularly in the workplace.

I was very pleased when I saw, for example, the report of the National Association of Women Lawyers, who went out and talked and interviewed with women lawyers who have worked with me, who have appeared before me.

And the conclusion was that I not only always treated women lawyers with respect and equal dignity, but that I had made special accommodations for life/work issues to ensure that women could continue to progress, for example, at my law firm, and had always treated women who appeared before me in a perfectly professional way.

FEINSTEIN: Then why say those things?

ROBERTS: Well, let's take the first one you mentioned. I'm -- it is to me, obvious, in the memo that I wrote to Fred Fielding that it was about whether or not it's good to have more lawyers. Whether they were from homemakers, from plumbers, from artists or truck drivers had nothing to do with it.

The point was, is it good to have more lawyers? That's the way I intended it, and I'm sure that's the way...

FEINSTEIN: And you don't think it was good to have more lawyers?

ROBERTS: I think there were probably -- the point that Mr. Fielding and I had commented on, on many occasions, was that in many areas there were too many lawyers.

And that's a common joke that goes back to Shakespeare. It has nothing to do with homemakers.

The notion that that was my view is totally inconsistent and rebutted by my life.

I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.

FEINSTEIN: I don't want to belabor it.

I'm just trying to understand how you think, because you appear -- you know, you speak about modesty and humility, and yet none of these comments are modest or humble.

ROBERTS: Well, those comments were in the nature of the tone that was encouraged in our office.

It was a small office. They expected return projects around very quickly. We were expected to be candid. And if making a joke about lawyers would make for a more enjoyable day on the part of the people in the office, that's what we did.

FEINSTEIN: So it's fair to say you don't think that way? Is that correct?

ROBERTS: Well, I don't think in any way that is based on anything other than full equal citizenship rights on the basis of gender.

I might tell a lawyer's joke that there are too many lawyers today, but that's all it was back then.

On the memo, you quoted with respect to the issue of comparable work.

The one thing the memorandum made clear is that the position of the administration was there must be equal pay for equal work. That wasn't the issue in that case. The issue there was whether there should be equal pay for different work and whether judges should determine what type of work was equal. FEINSTEIN: I'm not arguing that. I'm just arguing what you -- or bringing to your attention what you said then. But I don't want to belabor it. I think you have answered the question.

Now, let me ask you a question on Canerino v. Wilson. This is about the same time in 1982. And you pointed out in answers to prior questions whether -- that you were staff and you generally did what people asked you to do.

In this case, William Bradford Reynolds, the top attorney in the Civil Rights Division, indicated that there had been substantial, he thought, discrimination in prisons in Kentucky and that the Justice Department had done an investigation. And they found that male prisoners were given training for higher paid jobs, for greater variety of jobs and were given training for longer periods of time.

Your memo contradicted his recommendation to intervene. Why would that be if you just follow the policy of the office?

ROBERTS: My understanding there was that there was a question -- whether intervention in that case -- the case was being pursued by private litigants already. The question whether intervention by the federal government in that case was consistent with the attorney general's approach to institutional litigation.

That was an approach that he had laid out in several speeches, memoranda. And as a staff member it was my job to call to his attention areas where I thought there may be inconsistencies in areas where he wanted to set policy priorities.

FEINSTEIN: In response to the chairman's question this morning about the right to privacy, you answered that you believed that there is an implied right to privacy in the Constitution, that it's been there for some 80 years, and that a number of provisions in the Constitution support this right. And you enumerated them this morning.

Do you then believe that this implied right of privacy applies to the beginning of life and the end of life?

ROBERTS: Well, Senator, first of all, I don't necessarily regard it as an implied right. It is the part of the liberty that is protected under the due process clause. That liberty is enumerated...

FEINSTEIN: Part of liberty, then.

ROBERTS: Yes. And the exact scope of it, with respect to the beginning of life and the end of life, those are issues that are coming before the court in both respects, and I don't think that I should go further to elaborate upon whether or not it applies in those particular situations.

FEINSTEIN: All right.

ROBERTS: Obviously, it has been articulated by the court in both contexts, in the Cruzan case with respect to the end of life, the Glucksberg case following Cruzan.

But I don't think it's appropriate for me, given the fact that cases arise on both of those questions, to go further.

FEINSTEIN: All right. Let's move right along.

This morning, there was a discussion about stare decisis. You pointed out there were factors in a consideration of stare decisis. I think one of the things you said was workability of framework is one of the main principles you look for in stare decisis.

Well, in its decision in Casey, the court specifically affirmed the doctrine of stare decisis, as it applies to Roe. The court reviewed prudential and pragmatic considerations to gauge the respective costs of reaffirming and overruling a case, that case.

In doing so, the court unambiguously concluded that Roe has in no sense proven unworkable.

Do you agree with this conclusion?

ROBERTS: Well, that determination in Casey becomes one of the precedents of the court, entitled to respect like any other precedent of the court, under principles of stare decisis. I have tried to draw the line about not agreeing or disagreeing with particular rulings. But that is a precedent of the court. It is a precedent on precedent. In other words, it has examined Roe and...

FEINSTEIN: So you agree that the court said that, obviously.

ROBERTS: Well, it said that and that is a precedent entitled to respect under principles of stare decisis like any other precedent of the court.

But in terms of a separate determination on my part whether this decision is correct or that decision is correct, my review of what other nominees have done is that that's where they draw the line and that's where I've drawn the line.

FEINSTEIN: So workability is clearly one thing. Is another one reliance?

ROBERTS: Certainly -- or, as it's often expressed in the court's opinions, the settled expectations. People expect that the law is going to be what the court has told them the law is going to be. And that's an important consideration.

FEINSTEIN: And in Casey, again, the court stated, and I quote, "The ability of women to participate equally in the economic and social life of the nation has been facilitated by their ability to control their reproductive lives and that this ability to control their reproductive lives was enough of a reliance to sustain Roe."

Correct?

ROBERTS: That's what the court concluded -- I think you're reading from the plurality opinion -- the joint opinion in the case.

FEINSTEIN: That's correct. That's correct.

Now, unlike my experience, there are now entire generations of women who know a world only where their reproductive rights are protected. Do you agree with the court that this reliance is sufficient?

ROBERTS: Well, again, I think that's asking me whether I think the decision was correct or not on that point.

It certainly was the analysis that the joint opinion in the court entitled to respect it as precedent like any other decision of the court under principles of stare decisis.

And that would certainly be where I would begin. If any of these issues come before the court, if I were to be confirmed, I would begin with the precedent that the court has laid out in this area.

FEINSTEIN: One other question on Casey, and I'd like to quote from something that Justice Ginsburg said in the transcript in her confirmation hearing, in a discussion with then-Senator Brown.

"The Casey majority understood that marriage and family life is not always what we might wish them to be. There are women whose physical safety, even their lives, would be endangered if the law required them to notify their partner.

"And Casey, which, in other respects, has been greeted in some quarters with great distress, answered a significant question, one left open in Roe. Casey held a state could not require notification to the husband."

Do you agree?

ROBERTS: That is what Casey held, yes. And that's, as I said before, a precedent of the court, like any other precedent of the court, entitled to respect under principles of stare decisis.

FEINSTEIN: Thank you.

One other reading from Justice Ginsburg's testimony: "Abortion prohibition by the state, however, controls women and denies them full autonomy and full equality with men. That was the idea I tried to express in the lecture to which you referred; that two strands, equality and autonomy, both figure in the full portrayal."

Do you agree or disagree?

ROBERTS: Well, I think then Justice -- then-Judge -- Ginsburg felt at greater liberty to discuss that precisely for the reason that you noted, that she had given a lecture on the subject.

Those are issues that come up again and again before the court. And, consistent with what I understand the approach to have been of other nominees, I don't think I should express a view on that. FEINSTEIN: I'd like to move on.

In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender.

Specifically, your brief stated, quote, "Unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender," end quote.

In your oral argument you went on to make this point by comparing Operation Rescue's attempts to prevent a woman from exercising her privacy right to make decisions about her pregnancy to an ecologist's efforts to block an Indian tribe from using their exclusive fishing rights.

Do you think that's an appropriate analogy?

ROBERTS: Well, Senator, it was a position and an argument that the administration made that was accepted by the Supreme Court by a vote of 6-3.

The underlying point was that under the statute at issue in Bray, the Ku Klux Klan Act, required under the Supreme Court's precedent that people engaged in the challenged activity must be motivated by a discriminatory animus.

Obviously, under the Ku Klux Klan Act, the classic case, racial hostility.

And the issue was: Are people opposed -- in the Bray case -- opposed to abortion opposed to women?

And the determination of the court was that, no, that there are people who are opposed to abortion and that does not constitute opposition or discriminatory animus against women and, therefore, that the Ku Klux Klan Act didn't apply.

Many other provisions obviously apply in a case of abortion protester violence, including state law and other provisions of federal law, but the Supreme Court concluded 6-3 that there is no discriminatory animus based on opposition to abortion.

FEINSTEIN: Thank you. I would like to move to another subject because my time is moving on. And that's what's been happening in the court in the last 10 years.

As I mentioned, for 60 years, the court didn't strike down a single federal law for exceeding congressional power under the commerce clause.

Yet, in the last decade, the court's reinterpretation of the commerce clause has been used to strike down more than three dozen cases.

The court's future decisions will determine whether the Congress will be able to take necessary action to stop child pornography, combat violent crime, ensure child support payments, prevent discrimination, improve our schools and protect our environment.

My question is, do you agree with the direction in which the Supreme Court has moved in more narrowly interpreting congressional authority to enact laws under the commerce clause?

ROBERTS: Well, of course, I've tried to avoid saying whether I agree or disagree with particular cases, but I would point out in this area in particular, I think it's very important to look at the most recent case, which is the Raich case, the medical marijuana case, because the argument was that these two decisions that you are talking about, that were the first in the 60 years, Lopez and Morrison, the argument there was based on Lopez and Morrison -- Congress lacks the power in this area.

And what the Supreme Court said in the Raich case, which I think is very important, it said there are a lot more precedents on the commerce clause besides Lopez and Morrison.

And the appropriate way to regard those is two decisions in more than 200-year sweep of decisions in which the Supreme Court has given extremely broad -- has recognized extremely broad authority on Congress's part, going all the way back to Gibbons v. Ogden and Chief Justice John Marshall when those commerce clause decisions were important in binding the nation together as a single commercial unit.

So, again, without commenting on whether particular decisions are correct or not, I do think it's important to recognize that the court itself in its most recent decision has said, you need to focus on the broad sweep and not just on those two decisions.

FEINSTEIN: Let me move to the case of the hapless toad, known more commonly as Rancho Viejo v. Norton. Do you believe there's a basis for sustaining the Endangered Species Act other than the commerce clause?

ROBERTS: Well, the opinion I wrote there noted that the panel decision that I thought should be reheard en banc looked at one ground under the commerce clause, and the concluding paragraph in my opinion said that we ought to rehear the case to look at other grounds that were also under the commerce clause, but they were not the particular prong of the commerce clause analysis that the panel opinion had relied on.

And the reason was that, as I explained in the opinion, another circuit court had suggested pointedly that the approach in the panel opinion was inconsistent with the Supreme Court.

And I thought, if there was another basis for sustaining the Endangered Species Act that was not inconsistent in the view of another circuit court, that we ought to look at that and try to do it.

It really reflects a restrained and minimalist approach. If there's a ground that doesn't cause another circuit court to say, you're violating the Supreme Court precedent, we ought to look at that and see if we can...

FEINSTEIN: But the point I'm trying to get at is you're saying that the fact that the toad was almost only found in California means that it was an impermissible use of the Endangered Species Act.

Well, then that raises the question, what if the toad strays across the border, or what if the toad is the last remaining toad?

ROBERTS: Right.

But the one point I would emphasize is my opinion did not conclude that there was no authority under the commerce clause in just that situation.

There was another dissenting opinion that was filed by another judge who said, this violates the commerce clause. I did not join that opinion.

I wrote separately to say that we should hear this en banc with all of the judges, because there are other ways of sustaining this act that don't implicate the concern that has caused the other circuit to question our approach, that had caused the dissenting judge to conclude there was no authority.

And I thought we ought to look at those other grounds, because if we could sustain it without implicating that objection, that would be better all around.

I did not take the position that it was outside the scope of the commerce clause. It was a question of which ground under the commerce clause we ought to look at.

FEINSTEIN: There's a great deal of concern as to what this then means for the implication for all environmental law, the Clean Water Act, the Clean Air Act.

But if I understand you correctly, what you are saying is that you do not believe that the commerce clause should prohibit legislation in this area, is that correct?

ROBERTS: I have not had occasion to decide that.

I did not decide it in the Rancho Viejo case.

One of the other judges did, and I did not join that opinion. What I said is: We should consider these other grounds.

Now, I didn't have the opportunity, because it was a dissent, from rehearing to consider those other grounds. Those other grounds were what other courts, the 5th Circuit in the GDF case, had used to sustain application of the Endangered Species Act in the cases that came before them.

They didn't get into the question of whether you look at the regulated activity, the building or the actually what was prohibited, the taking of the toad; they analyzed the protection of the endangered species as implicating a commercial activity.

And that allowed them to sustain the act without regard to whether it had an interstate effect itself.

FEINSTEIN: Thank you very much.

I would like to ask a question or two on church and state. I mentioned in my opening statement that, for centuries, people have been persecuted for their religious beliefs. And our country grows more diverse every day, and tensions among different beliefs have grown.

I really believe that there is a brilliance in what the founding fathers did in drafting the First Amendment and how it protected an individual's right to practice their belief, whatever it may be, but also protect against using religion against individuals by prohibiting the government from becoming and/or imposing religion.

In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion.

And he even said, "I believe in an America where the separation of church and state is absolute."

My question is: Do you?

ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers' experience.

Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers' experience.

FEINSTEIN: You can't answer my question yes or no?

ROBERTS: Well, I don't know what you mean by absolute separation of church and state.

For example, recently in the Ten Commandments case, the court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it. They struck down the posting of the Ten Commandments in a Kentucky courthouse.

Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?

So I don't know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.

FEINSTEIN: It has been reported that during your meeting with Senator Wyden, while discussing end-of-life issues, you cited the dissent of Justice Brandeis in Olmstead.

I would like to quote from it: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.

"They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred as against the government the right to be left alone, the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."

Do you agree with Justice Brandeis?

ROBERTS: I agree with his expression that it's a basic right to be left alone, and I think that animating principle is a very important one.

With regard to particular restrictions he was talking about, wiretapping or -- I forget the interception actually at issue there -- you know, I don't think it's appropriate to comment on.

But as a general statement of the principle -- and again, it reflects just the basic understanding that it's a free country and the right to be left alone is one of our basic rights. I do agree with that.

FEINSTEIN: I do think the implication of what you said to Senator Wyden -- and I have discussed this with him -- was that one has the right to make their end-of-life decision.

ROBERTS: Well, that's an issue that is before the court in particular cases, and I can't comment on a case that's coming before the court.

If I am confirmed, I would have to confront that case with an open mind in light of the arguments presented, in light of the precedents of the court.

And the litigants in those cases are entitled to have judges that haven't expressed views on that particular case.

FEINSTEIN: Well, let me ask you this question, then: In an interview on PBS after the court ruled in Washington v. Glucksberg, a case involving a state statute that banned assisted suicide, you said, "I think it's important not to have too narrow a view of protecting personal rights" --what did you mean by that?

ROBERTS: Well, I went on to explain that any time there's an assertion of a right, there's quite often an assertion of a contrary right.

I think it was similar to the point Senator Kyl was making earlier, that for example, if you are asserting a right against government regulation, then the right of the people to regulate through their elected representatives that's being struck down, that right is being restricted.

So it's usually not -- it's often not we can view that there's a right on one side and there's nothing on the other side. There's often an assertion of a right on the other side.

And what the courts have to do is make sure they provide a level playing field in which people disputing the impact of the Constitution on whose right prevails have judges who will decide that case according to the rule of law and not according to whether they think one right should prevail or another.

FEINSTEIN: But do you believe, then, that the federal courts should become involved in end-of-life decisions?

ROBERTS: Well, Senator, that is exactly one of the questions that is before the court. And I cannot answer that in the abstract. I have to answer that on the basis of the parties' arguments, on the basis of the record in the case, on the basis of the precedents. An abstract opinion that would prejudge that case would be inappropriate for a nominee to express.

FEINSTEIN: Let me ask it another way. Do you believe that the courts should have a limited role in that situation?

ROBERTS: I think courts have a limited role in general, and that is that they only interpret the law. They don't make the law. They don't shape the policy.

Now the application of that basic principle, which is very important to me, in a particular case, is obviously something that has to wait for the litigation of that case, the arguments in that case, the arguments of the lawyers about whether it's consistent with the precedents or inconsistent with the precedents. But the basic principle that courts should not be shaping public policy, that's for the legislators, is a fundamental principle with which I agree.

FEINSTEIN: Thank you, Mr. Chairman.

Thank you.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Feinstein.

Since I announced the break at 4:15, I have been advised that there's a vote at 4:30. So Senator Sessions has graciously agreed to split his 30-minute round -- 15 minutes -- and then we'll go vote.

So we'll now turn to Senator Sessions for 15 minutes, and we'll break at that time and take a 15-minute break to go vote.

SEN. JEFF SESSIONS (R), ALABAMA: Thank you very much, Mr. Chairman.

Judge Roberts, I want to congratulate you on your excellent testimony. You have validated the president's confidence in you. Many people said President Bush obviously looked around and looked around and finally decided to choose the best. And I think that you have proven that correctly.

The ABA has rated you unanimously, American Bar Association, in their formal rating process, unanimously rated you well-qualified, the highest possible rating that they give. And they have quite a number of lawyers that vote on that, so to get a unanimous vote is not that frequent. And for a higher office, they have a higher standard. And I think that particularly is worthwhile that you received that recognition.

I note that some of our legal professional journals have given you remarkable accolades. The American Lawyer in 2004 wrote that you were, quote, "one of the Supreme Court's finest practitioners."

And the Legal Times, said, quote, "you are one of the top appellate lawyers of your generation." The Legal Times also said that you are, quote, "viewed by many as the best Supreme Court advocate in private law firm practice."

Those are high praises, and I think today we have seen why people would think that of you.

I also would offer for the record, Mr. Chairman, a letter from former Democratic attorney general Bill Blatchley from Alabama. He prosecuted the first prosecution of the church bombing cases in Birmingham successfully. He is a lifelong Democrat as he notes, and an elected member of the state Democratic executive committee.

SPECTER: Without objection, it will be made a part of the record.

SESSIONS: He said this: "Senator, I know Judge Roberts well. I have entrusted three important appellate matters to him. In each instance, I met with him and engaged him in extensive conversation upon a wide range of topics. Because he is a man of such remarkable intellectual brilliance, I sought him out upon private as well as professional topics, enjoyed more than one meal with him and was, each time, overwhelmed, not only by his intelligence but also his innate sense of fairness, by his sensitivity to every aspect and angle of consideration of every issue addressed by him and by his somber sense of decency and justice."

"A somber sense of decency and justice" -- pretty good phrase.

"My love of my country surpasses politics," Mr. Batchly (ph) says. "It compels me to support Judge Roberts in every possible way in order that justice might most effectively prevail in the United States Supreme Court. I am confident in the ability of Judge Roberts to fairly, and without any agenda of any kind, address each legal issue which comes before him. I'm equally confident of his ability to lead the Supreme Court in an administrative capacity. I have no doubt that the diverse opinions of each associate justice sitting on the United States Supreme Court will receive greater deference and consideration under his leadership than under any other chief justice with whom they have ever served. This wise and circumspect man deserves this office."

So I think we have seen a great bipartisan recognition of your capabilities and the respect that you have reaches broadly.

I also would recall, Judge Roberts, that in my opening statement I suggested that the pattern around here is to take out old statements and memorandum and bring them up.

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