- The Washington Times - Wednesday, September 14, 2005

Excerpts from yesterday’s Senate Judiciary Committee hearing on the nomination of Judge John G. Roberts Jr. to be chief justice of the U.S. Supreme Court.

Sen. Sam Brownback, Kansas Republican: We thought that property rights, private property rights, were established and set. And now it appears as if it’s not, that the system is different. … Isn’t it now the case that it’s much easier for one man’s home to become another man’s castle?

Judge Roberts: Well, under the Kelo decision, which … was interpreting the public-use requirement in the Constitution, the majority … explained its reasoning by noting the difficulty in drawing the line. … And as you say, there has been a lot of reaction to it. I understand some states have even legislated restricting their power.

Mr. Brownback: And we are considering it here in the Congress.

Judge Roberts: And I think that’s a very appropriate approach to consider. In other words, the court was not saying you have to have this power, you have to exercise this power. What the court was saying is, there is this power, and then it’s up to the legislature to determine whether it wants that to be available … That leaves the ball in the court of the legislature. …

Mr. Brownback: I understand the authority we maintain. What I’m curious about is your view is, does that right exist? …

Judge Roberts: Well … the first year in law school we all read the [1798 Supreme Court] decision in Calder against Bull, which has the famous statement that the government may not take the property of A and give it to B, and that certainly was quoted … in Justice [Sandra Day] O’Connor’s dissent. The Kelo majority, though, said if a legislator wants to exercise that power, basically, that the court’s not going to second-guess the judgment that this is a public use, and I do think that imposes a heavy responsibility on the legislator to determine what they’re doing and whether it is a public use, or if it’s simply transferring from one private party to the next. …

Mr. Brownback: I take it you’re not going to respond whether or not that right exists under the Constitution.

Judge Roberts: Well, I — the Kelo decision obviously was just decided last year, and I don’t think I should comment whether it was correct or not. It stands as a precedent of the court. …

Sen. Joseph R. Biden Jr., Delaware Democrat: Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue … on a life-support system?

Judge Roberts: Well, senator, I can’t answer that question in the abstract because —

Mr. Biden: It’s not abstract. That’s real.

Judge Roberts: Well, senator, as a legal matter it is abstract, because the question would be, in any particular case, is there a law that applies that governs that decision? …

Mr. Biden: Can any law — can any law trump a fundamental right to die? Not to commit suicide; a right to decide I no longer want to be hooked up to this machine, the only thing that’s keeping me alive; I no longer want to have this feeding tube in my stomach — a decision that I know I’ve personally made and many people out here made. And the idea that a state legislature could say to my mom — your father wants the feeding tube removed, he’s asked me, a doctor’s heard it and the state legislature’s decided that no, it can’t be removed. Are you telling me that’s even in play?

Judge Roberts: Well, senator, what I’m telling you is, as you know, there are cases that come up in exactly that context, so that it is in play. And the sense is that … there are cases involving disputes between people asserting their rights to terminate life, to remove feeding tubes, either on their own behalf or on behalf of others. There is legislation that states have passed in this area that governs that, and there are claims that are raised that the legislation is unconstitutional. …

Sen. Dianne Feinstein, California Democrat: I was interested in a colloquy you had with Senator Biden on the end of life.… If you were in that situation with someone you deeply loved and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do? To me it’s that stark, because I’ve been through it.

Judge Roberts: Well, senator, in that situation, obviously you want to talk and take into account the views and the heartfelt concerns of the loved one that you’re trying to help in that situation, because you know how they’re viewing this. You know what they mean when they’re saying things like what their wishes are and their concerns are, and, of course, consulting with their physician.

But it seems to me that in that situation you do want to understand and make sure that you appreciate the views of the loved one. And only you can do it, because —

Mrs. Feinstein: That wasn’t my question.

Judge Roberts: I’m sorry.

Mrs. Feinstein: I’m trying to see your feelings as a man. I’m not asking you for a legal view.

Judge Roberts: I don’t — I wasn’t trying to give a legal view. My point was that obviously you look to the views of the person involved. And if it’s a loved one, you are the one who is in a position to make sure that you understand their views and can help them communicate those.

Mrs. Feinstein: How would you feel if you were in that position?

Judge Roberts: An end-of-life situation and suffering? You know, I do think it’s one of those things that it’s hard to conceptualize until you’re there. I really would be hesitant to say, “This is what I would definitely want done, or that’s what I would definitely want done.” …

Mrs. Feinstein: And every situation is different.

Judge Roberts: Yes. And it’s one of those things I think it’s difficult to put yourself in that position and saying, “Well, with any degree of confidence, if I were suffering and confronting the end of life, this is what I would want to do or that is what I would want to do.” …

Mrs. Feinstein: That’s right. All I’m saying is you wouldn’t want the government telling you what to do.

Judge Roberts: Well, I’m happy to say that as a general matter, because —

Mrs. Feinstein: That there should be a basic right of privacy.

Judge Roberts: Well, that’s getting into a legal question, and you don’t want —

Mrs. Feinstein: Okay, I won’t go there. I won’t go there. …

Sen. Charles E. Schumer, New York Democrat: Let me just say, sir, in all due respect … this process is getting a little more absurd every — the further we move. You agree we should be finding out your philosophy and method of legal reasoning … but when we try to find out … what your philosophy means, we don’t get any answers.

It’s as if I asked you what kind of movies you like, ‘Tell me two or three good movies,’ and you say, ‘I like movies with good acting, I like movies with good directing, I like movies with good cinematography.’ And I ask you, ‘No, give me an example of a good movie,’ you don’t name one. I say, ‘Give me an example of a bad movie.’ you won’t name one.

Then I ask you if you like ‘Casablanca,’ and you respond by saying, ‘Lots of people like ‘Casablanca.” You tell me it’s widely settled that ‘Casablanca’ is one of the great movies.

Sen. Arlen Specter, Pennsylvania Republican: Senator Schumer, now that your time is over, are you asking him a question?

Mr. Schumer: Yes. I am saying, sir, I am making a plea here. I hope — we’re going to continue this for a while — that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become. —

Judge Roberts: First, ‘Dr. Zhivago’ and ‘North by Northwest.’

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