- The Washington Times - Thursday, September 15, 2005

Excerpts from yesterday’s Senate Judiciary Committee hearing on the nomination of Judge John G. Roberts Jr. to be chief justice of the United States:

Sen. Edward M. Kennedy, Massachusetts Democrat: In 2001, you took a private case to basically see that the Department of Transportation’s affirmative action program … would be effectively undermined. …

What do you think in your record would give some sense of hope to women, to minorities — blacks and browns — to those that are disabled, that are not looking for a handout but just looking for a chance in this diverse society to be able to have an equal opportunity?

Judge Roberts: Well, Senator, I think there’s a great deal in my background that you could look to in that respect. For example, you could look to the cases in which I argued in favor of affirmative action. I’ve argued on both sides of that issue. In the Rice versus Cayetano case, for example, before the Supreme Court, I argued in favor of affirmative action for native Hawaiians. I lost that case, but I was arguing on the side of affirmative action.

There are other episodes in my background that people could look to. For example, I regularly participate in — when I was at my law firm — a program sponsored by the firm, a legal reasoning program for minority and disadvantaged students going on to law school, to help them prepare for the rigors of law school, so not simply that they would be chosen and selected and admitted into law school, but be in a better position to be able to succeed once they got there. …

In terms of my own personal involvement, I’ve been active in programs that promote the interests of minorities and disadvantaged to participate fully in our society. …

Sen. Dianne Feinstein, California Democrat: Duke Law School professor Catherine Fisk examined nine cases heard by you while you were on the Court of Appeals. Her review concluded that you ruled in favor of a corporation each time. Consequently, she made this prediction, quote, “You’re going to be a fairly reliable vote against workers’ rights across the board,” end quote. Would you respond to that, please?

Judge Roberts: I think the conclusion is wrong. … I’ve ruled against corporations on a regular basis on the D.C. Circuit. … But it’s quite often the case, for example, part of a lot of the business in the D.C. Circuit involves regulatory issues, agencies regulating corporations. Are you ruling in favor of the corporation or the agency? And I know I regularly rule in the favor of the agencies. Sometimes I rule against the agency. I like to think it depends on the particular law and the particular facts. …

Sen. Russell D. Feingold, Wisconsin Democrat: I’d like to know, Judge Roberts, if confirmed, whether you will use your power as chief justice to set a high ethical tone for the federal judiciary by putting in place new codes of conduct that would prohibit judges from participating in privately funded, quote, “judicial education,” unquote, that let special interests, essentially, lobby federal judges?

Judge Roberts: Well, I don’t think special interests should be allowed to lobby federal judges. … But I do think it’s important for judges and justices to get out, particularly to get out of Washington a little bit. I’ve always enjoyed going to the law schools, participating in the moot courts or, you know, functions where you get to visit with the law students. … I wouldn’t call that by any stretch of the imagination a “junket.” But I do think it’s important for the justices to get out around the country and particularly visit the law schools. That’s probably not the same sort of thing you’re talking about.

Mr. Feingold: Fair enough, and I think you would agree that there’s nothing wrong with judges or senators golfing. That’s not the question.

Judge Roberts: It may not be good for the game of golf. …

Sen. Richard J. Durbin, Illinois Democrat: All of us are trying to get down to, what are your core values? Where would you draw a line saying I do have principles and values; there are certain things I would not use my legal skills to do because they conflict with those values? … As a lawyer, do you have standards and values as to the causes and beliefs that are so important to you where you would draw a line? …

Judge Roberts: I became a lawyer [to] promote and vindicate the rule of law. Now that means that’s an issue in play regardless of what the cause is. And that’s why … I’ve advanced cases promoting the cause of the environment. As I was discussing earlier, I’ve been on both sides of the affirmative action issue. Take even technical areas like antitrust. I’ve defended corporations; I’ve sued corporations. … [Some] may say, well, that sounds like you’re a hired gun, to be disparaging. You’re going to … take the side of whoever comes in the door first. I think that’s a disparaging way to capture what is, and in fact, an ennobling truth about our legal system that lawyers serve the rule of law above and beyond representing particular clients. …

Mr. Durbin: Well, if I might say, Judge, if you’ve made one point many times over during the course of the last three days, it is that as a judge you will be loyal and faithful to the process of law, to the rule of law. I think that is without question from what you said. I accept that on its face.

But the questions which we continue to ask. … Would you restrict freedom in America, or would you expand it? … Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? Is it important enough for you to say, in some instances, “I will not use my skills as a lawyer because I don’t believe that that is a cause that is consistent with my values and beliefs”? That’s what I’ve been asking. …

Judge Roberts: Somebody asked me, you know, are you going to be on the side of the little guy? And you obviously want to give an immediate answer, but as you reflect on it, if the Constitution says that the little guy should win, the little guy is going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy is going to win because my obligation is to the Constitution. That’s the oath. The oath that a judge takes is not that I’ll look out for particular interests, I’ll be on the side of particular interests. The oath is uphold the Constitution and laws of the United States, and that’s what I would do. …

Sen. Charles E. Schumer, New York Democrat: You’re one of the best litigators in America. You know how to convince people. That’s what you’ve been paid to do for a long time. So let me ask you, if you were sitting here, what question would you ask John Roberts so that we could be — so that you or us could be sure that we weren’t nominating what I call an ideologue, someone who you might define as somebody who wants to make law, not interpret law? And then how would you answer the question you asked yourself?

Judge Roberts: I’d begin by saying, well, that’s a good question, Senator.

I think with respect — I would ask a lot of the questions that have been asked, a lot of the questions that were asked in the questionnaire that I completed earlier, and it begins with the most important question, “What is your view of the proper role of a judge in our system?” And people have different answers to that question. I’ve given an answer to that question. …

Mr. Schumer: How about … a question that hasn’t been asked? Since some of us are still unsure. …

Judge Roberts: There may be some nominees who want to share personal views on issues; my reaction has been to emphasize — and I think this tells you about what kind of a judge I hope I am on the Court of Appeals and what kind of a justice I would be if confirmed — and my reaction has been that I set those personal views aside, and so don’t consider them pertinent. Other nominees might take a different approach in response to those types of questions. …

Mr. Schumer: Any question that you would ask that’s been left out?

Judge Roberts: There have been a lot of questions asked and a lot answered. I can’t think of any that, you know, I expected people to ask me about this and it hasn’t been asked. I think —

Mr. Schumer: So I guess we did a better job than we think we did, right?

Judge Roberts: I think the committee has been very effective over the last several days in learning a lot about me. I think in the process of meeting with the senators before — and I was quite serious when I said I appreciated how accommodating everyone had been in sitting down with me — I think people learned a lot about me.

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