RobertsHearingsExcerpts.txt

Day 2, 13 Sep 2005:


LEAHY: Thank you, Mr. Chairman.

Good morning, Judge.

ROBERTS: Good morning.

LEAHY: You look like you survived well yesterday.

No one doubts you've had a very impressive legal career thus far. And now you've been nominated to be chief justice of the United States.

LEAHY: But I have concerns, as I go back over your career -- and we've had some discussions of this already -- about some of the themes in your career, some of the goals you sought to achieve using what is formidable skill. My first area of concern involves a fundamental question of constitutional philosophy: the separation of powers. The last thing our founding fathers wanted was to be ruled by king with absolute power, and the next to the last thing they wanted was to be ruled by a temporary king with absolute powers for four years. So we've got the political system we've talked about a great deal yesterday of checks and balances. Each of the three branches of government constrains the other when they overreach. Americans have relied on this for our fundamental guarantees of freedom and democracy and open government. And all of us who serve, whether in the executive branch, the judiciary, as you do, the legislative, as we do, have taken a very solemn oath to uphold the Constitution. But there have been times throughout our history when the separation of powers has been strained to its limits by presidents claiming power way beyond -- actually, almost imperial powers. So let's this focus this down a little bit more on presidential power. Let's go to the president's power as commander in chief of the armed forces. He certainly has that power under the Constitution. I look back to the time when you were a lawyer in the Reagan White House. You objected to a bill that would give certain preferences to veterans who had served in Lebanon between August 20, 1982, and, quote, the date the operation ends, close quote. And the day would be, as you just said, by presidential proclamation or a concurrent resolution of Congress. And you wrote that the difficulty with such a bill is that it recognizes a role for Congress in determining the Lebanon operation. And you wrote further, quote I do not think we would want to concede any definite role for Congress in termination the Lebanon operation, even by joint resolution presented to the president.

LEAHY: And then you explained even parenthetically that even if the president vetoed such a joint resolution, of course, Congress could override it by two-thirds majority. I find that troubling; I'll tell you why. Before I read your memo, I thought everybody agreed there would be only one answer to the question of whether Congress could stop a war. Your memo suggests that Congress is powerless to stop a president who is going to conduct an unauthorized war. I really find that extremely hard to follow. And I imagine most Americans would. I'll give you a hypothetical. Congress passes a law for all U.S. forces to be withdrawn from the territory of a foreign nation by a set date. The president vetoes the law. The Congress overrides that, sets into law, You must withdraw by a certain date. Now, is there any question in your mind that the president would be bound to faithfully execute that law?

ROBERTS: Well, Senator, I don't want to answer a particular hypothetical that could come before the court, but I'm happy to comment on the memorandum that you're discussing.

LEAHY: No, wait a minute. I mean, isn't this kind of hornbook law? I don't know of any cases coming before the court; I mean, this is kind of hornbook. The Congress says to the president, You got to get out, and pass a law which is either signed into law by the president or you override a presidential veto. Why wouldn't the president have to -- charged as he is under the Constitution to faithfully execute the law, why wouldn't he have to follow that law?

ROBERTS: Well, Senator, that issue of -- and similar issues have, in fact, come up. There were, for example, lawsuits concerning the legality of the war in Vietnam; various efforts. And certainly the arguments would be made on the other side about the president's authority. And that may well come before the court.

LEAHY: Judge, with all due respect, the cases in Vietnam were not based on a specific law passed by Congress to get out. I mean, Congress did cut off the funding...

ROBERTS: Right.

LEAHY: ... in April, 1975, by a one-vote margin in the Armed Services Committee. I know because I was the newest member of the committee at that time -- voted to not authorize the war any longer. But are you saying that Congress could not pass a law that we must withdraw forces?

ROBERTS: No, Senator, I'm not. What I'm saying is that that issue or issues related to that could well come before the court, and that's why I have to resist answering a particular hypothetical question. The memo you refer to -- I was working in the White House Counsel's Office then. The White House Counsel's Office is charged to be vigilant to protect the executive's authority, just as you have lawyers here in the Senate and the House has lawyers who are experts and charged with being vigilant to protect the prerogatives of the legislative branch. I believe very strongly in the separation of powers. It was a very important principle that the framers set forth that is very protective of our individual liberty and make sure the legislative branch legislates, the executive executes, the judicial branch decides the law.

ROBERTS: And it was part of the framers' vision that each of the branches would be, to a certain extent, jealous of what they regarded as their prerogatives. And to extent there is a dispute between the legislative branch and the executive branch, it's the job, of course, of the judicial branch to resolve that dispute.

LEAHY: But your position in this memo in President Reagan's office seemed to indicate that Congress does not have the ability to end hostilities.

ROBERTS: With respect, Senator, you're vastly over-reading the memorandum.

LEAHY: Tell me why.

ROBERTS: Well, because it had nothing to do with terminating hostilities. It had to do with the eligibility for certain pension benefits.

And the question then was whether or not -- who should be determining when the hostilities ceased or should cease. And there again, a lawyer for the executive branch -- not a judge who would be considering the issue in an entirely different light, but a lawyer for the executive branch -- a careful lawyer would say: There may be a problem there. Are we conceding anything by saying the legislature gets to determine when the hostilities end? 

LEAHY: Right. I don't think it's overreading it at all, as you suggest, to say -- when you write, I do not think we would want to concede any definitive role for Congress in terminating the Lebanon operation even by joint resolution presented to the president.

ROBERTS: Well, with respect, Senator...

LEAHY: You're saying you don't want to concede any ability to the Congress to stop a war.

ROBERTS: With respect, Senator, the memorandum is about legislation for -- if I'm remembering it correctly; it was 20 some years ago -- pension benefits or certain additional pay benefits. That's what it was about. And I suspect, if you asked any lawyer for any president of any administration whether they wanted to concede that general principle or if, as careful lawyers, they would prefer that that provision were rewritten or not in there, I am fairly confident, regardless of the administration, that a lawyer for the executive would take the same position. Now, I am also fairly confident that one of your lawyers here in the Senate would take the opposite position. 

LEAHY: Let me ask you this question: Does Congress have the power to declare war?

ROBERTS: Of course. The Constitution specifically gives that power to Congress.

LEAHY: Does Congress, then, have the power to stop a war?

ROBERTS: Congress certainly has the power of the purse. And that's the way, as you noted earlier, that Congress has typically exercised...

LEAHY: Yes, but we know, we did that in the Boland amendment. And the Reagan administration, as we found out in the sorry chapter of Iran-Contra, went around that, violated the law, worked with Iran, sold arms illegally to Iran -- I think that's one of the axis of evil today -- to continue the Contra war in Central America.

LEAHY: So the power of the purse -- we've cut off money, but the wars sometimes keep going. Do we have the power to terminate a war? We have the power to declare war. Do we have the power to terminate war?

ROBERTS: Senator, that's a question that I don't think can be answered in the abstract. You need to know the particular circumstances and exactly what the facts are and what the legislation would be like, because the argument on the other side -- and as a judge, I would obviously be in a position of considering both arguments, the argument for the legislature and the argument for the executive. The argument on the executive side will rely on authority as commander in chief and whatever authorities derive from that. So it's not something that can be answered in the abstract.

LEAHY: You said -- your answer is that you were just talking about the question of veterans' benefits and all that after this. I would note that the memo you wrote wasn't entitled Veterans' Benefits. It was entitled War Powers Problem. I don't think I overstate it. Now let me as you another question. We spoke about this again this morning, and I had told you when we met -- in fact, I gave you a copy of the Bybee memo so that this would not be a surprise to you. The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002 which argued the president enjoys, quote, complete authority over the conduct of war, close quote. And, quote, The Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during war, close quote. And then it took the argument to the extreme when it concluded the president, when acting as commander in chief was not bound -- was not bound -- by the federal law banning the use of torture.

LEAHY: In other words, the president would be above the law in that regard. You did not write that memo -- I hasten to add -- but you've seen it. And I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of executive power, which puts the president above the law. He never gave an answer on that and that's one of the reasons why many had voted against his confirmation. So, now let me ask you this: Do you believe that the president has a commander-in-chief override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?

ROBERTS: Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the constitution and statutes. Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority. The framework for analyzing that is in the Youngstown Sheet and Tube case, the famous case coming out of President Truman's seizure of the steel mills.

LEAHY: The Supreme Court held that unconstitutional.

ROBERTS: Exactly. And the framework set forth in Justice Jackson's concurring opinion, which is the opinion that has sort of set the stage for subsequent cases, analyzes the issue in terms of one of three categories. If the president is acting in an area where Congress is supportive -- expressly supportive of his action -- the president's power is at its maximum. If the president is acting in an area such as you postulate under the Bybee memo, where the president is acting contrary to congressional authority, what justice Jackson said is, the president's authority is at its lowest ebb. It consists solely of his authority under the constitution, less whatever authority Congress has.

ROBERTS: And then, of course, there's the vast little area where courts often have to struggle because they can't determine whether Congress has supported a particular exercise or not. The Dames Moore case, for example, is a good example of that.

SPECTER: Would you consider -- go ahead.

ROBERTS: I just going to say the first issue for a court confronting the question you posed would be whether Congress specifically intended to address the question of the president's exercise of authority or not.

LEAHY: Well, yes, I would think that if you pass a law saying nobody in our government shall torture, I think that's pretty specific. But let me ask you this: Is Youngstown settled law? Would you consider Youngstown settled law?

ROBERTS: I think the approach in the case is one that has guided the court in this area since 1954, '52, whatever it was.

LEAHY: The reason I ask that, when Mr. Bybee wrote this memo, he never cited Youngstown. I think it was Harold Koh, the dean at the Yale Law School who said this was a stunning omission. I don't agree with that. The president, instead, went ahead and appointed -- or nominated Mr. Bybee to a federal judgeship.

ROBERTS: Youngstown's a very important case in a number of respects; not least the fact that the opinion that everyone looks to, the Jackson opinion, was by Justice Jackson who was, of course, FDR's attorney general and certainly a proponent of expansive executive powers...

LEAHY: You've also said he was one of the justices you admire the most.

ROBERTS: He is, for a number of reasons. And what's significant about that aspect of his career is here's someone whose job it was to promote and defend an expansive view of executive powers as attorney general, which he did very effectively. And then as he went on the court, as you can tell from his decision in Youngstown, he took an entirely different view of a lot of issues; in one famous case even disagreeing with one of his own prior opinions. He wrote a long opinion about how he can't believe he once held those views. ROBERTS: I think it's very important...

LEAHY: Are you sending us a message?

ROBERTS: Well, I'm just saying... (LAUGHTER)

One reason people admire Justice Jackson so much is that, although he had strong views as attorney general, he recognized, when he became a member of the Supreme Court, that his job had changed and he was not the president's lawyer, he was not the chief lawyer in the executive branch. He was a justice sitting in review of some of the decisions of the executive. And he took a different perspective. And that's, again, one reason many admire him, including myself.

LEAHY: The reason I ask -- I mean, I thought the memo was outrageous, and once it became public -- not until it became public, but after it became public, the president disavowed it and said he is opposed to torture, and I commend him for that. Many wish the administration had taken that position prior to the press finding out about it. But in the Jackson opinion -- and I just pulled it out here -- he says, The president has no monopoly of war powers, whatever they are. Congress cannot deprive the president of the command of the Army and Navy. Only Congress can provide him with an Army and Navy to command. Congress is also empowered to make rules for the government and regulation of land enabled forces. By which it may, to some unknown extent, impinge upon even command functions. Do you agree that Congress can make rules that may impinge upon the president's command functions?

ROBERTS: Certainly, Senator. And the point that Justice Jackson is making there is that the Constitution vests pertinent authority in these areas in both branches. The president is the commander in chief, and that meant something to the founders. ROBERTS: On the other hand, as you just quoted, Congress has the authority to issue regulations governing the armed forces: another express provision in the Constitution. Those two can conflict if by making regulations for the armed forces Congress does something that interferes with, in the president's view, his command authority. And in some cases those disputes will be resolved in court, as they were in the Youngstown case.

LEAHY: In his book, All the Laws But One, Chief Justice Rehnquist, the late chief justice, concluded with this sentence, The laws will not be silent in time of war but they'll speak with a somewhat different voice. He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race. Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history. Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will.

LEAHY: We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11. I just want to make sure you're not going to be a Korematsu justice, so I have a couple of questions. Can I assume that you will hold the internment of all residents of this country who are interned just because they have a particular nationality or ethnic or religious group -- you would hold that to be unconstitutional?

ROBERTS: The internment of a group solely on the basis of their...

LEAHY: Nationality or ethnic or religious group?

ROBERTS: I suppose a case like that could come before the court. I would be surprised to see it. And I would be surprised if there were any arguments that could support it.

LEAHY: Let me ask you this: Do you feel that you would be able to interpret the Bill of Rights the same whether we're at wartime or not?

ROBERTS: I do, Senator. I read the chief's book that you quoted from. And for someone who sits on the court that I sit on now, we famously look back to one of the first cases decided in the D.C. Circuit. It was the Aaron Burr trial. And if anything's a model...

LEAHY: I thought you might mention that.

ROBERTS: Well, it's, sort of, a motto of our court, an opinion that was written out of that, in which the judge explained that it was our obligation to calmly poise the scales of justice in dangerous times as well as calm times -- that's a paraphrase. But the phrase, calmly poise the scales of justice is, if anything, the motto of the court on which I now sit. And that would be the guiding principle for me, whether I'm back on that court or different one, because some factors may be different, the issues may be different, the demands may be different, but the Bill of Rights remains the same. And the obligation of the court to protect those basic liberties in times of peace and in times of war, in times of stress and in times of calm, that doesn't change.

LEAHY: I hope you feel that way. I know people have spoken of the First Amendment as not there to protect popular speech; that's easy. It's unpopular speech. And as I mentioned yesterday, our state really wanted to make sure the Bill of Rights was going to be there before we joined the union. 








FEINGOLD: It's a change from our good conversation we had about this before. Now you will be the principle decision-maker on this as the chief justice. And I hope you'll give it serious consideration.

Judge Roberts, on September 11, 2001, obviously an event occurred that had a profound effect on all of us in this country. We all have our own memories of that day.

During those first few hours after the attacks, I kept remembering a sentence from a case we both have probably studied in law school. These words were: While the Constitution protects against invasions of individual rights, it is not a suicide pact.

I took these words as a challenge to my concerns about civil liberties at that horrible time in our history. We have to be careful not to take civil liberties so literally that we allow ourselves to be destroyed.

But then, when I actually tracked down the case itself, not remembering what case it was from, it was Kennedy v. Mendoza-Martinez, and I found that Justice Arthur Goldberg made this statement but then went on to rule in favor of the civil liberties position in this case.

He actually affirmed the importance of civil liberties in wartime.

So I would like to start this part of my questions by asking you what kind of impact that day had on you and your belief system, and whether it changed your view of the importance of individual rights and civil liberties and how they can be protected.

ROBERTS: Well, I remember the day vividly, Senator. I think I was one of the last people in the country to find out about it. I had gone into a hearing. It was actually in an original action in the Supreme Court. The special master was at G.W. Law School. And we had a hearing -- I think it was starting a little before 9:00 that day.

We went in there. I remember, just as I was leaving, getting a report that a plane had struck the World Trade Center. But it was -- at the time, I thought it was like one of those tour planes. I had no idea what they were reporting.

I went into the proceeding and we conducted the hearing. It lasted several hours. Nobody notified us and we didn't know about it.

And I remember leaving and trying to walk back to my office -- I was at the law firm then -- and the street was blocked off. And I figured: Well, there's something going on at the White House.

I remember walking down further, and it was still blocked off and still blocked off. I finally went up to one of these Guards and I said, well you know, What's going on?

And he looked at me like, Where have you been?

And only then did I begin to appreciate it. I went back to my office because there was no way to get out of town by then...

FEINGOLD: But at what point did you start thinking about the implications of this, in terms of civil liberties and the challenges this...

ROBERTS: Well, it was when I went back to the office and saw the smoke rising from the Pentagon. And, as you can imagine, that was a chilling sight. And the basic issue of how you address the question of civil liberties in wartime and times of crisis is a critically important one.

ROBERTS: The Bill of Rights doesn't change during times of war. The Bill of Rights doesn't change in times of crisis. There may be situations where the demands are different and they have to be analyzed appropriately so that things that might have been acceptable in times of war are not acceptable in times of peace.

I think everyone appreciates that. But the Bill of Rights is not suspended and the obligation of the courts to uphold the rule of law is not suspended.

FEINGOLD: Did you recognize at that moment that this might become a time when it would be harder to protect civil liberties?

ROBERTS: I think -- I don't recall recognizing that in particular, but that is, of course, always the challenge in times of war and in times of stress. Whatever the cause, I think it is the obligation of the courts to remember, just as within the model of the D.C. Circuit from our earliest case of the treason trial of Aaron Burr, to calmly poise the scales of justice.

And the emphasis is on calmly. It requires a certain dispassion, a certain separation from the passions of the moment.

FEINGOLD: That's absolutely right. And that's why I want to follow on what Senator Leahy asked about earlier, a different time, a different challenge.

As a nation, we can now look back at wartime Supreme Court decisions like Korematsu v. the United States with something like bewilderment. We talked about it earlier. To me, it seems inconceivable that the United States government would have decided to put huge numbers of citizens in detention centers based on their race and that the Supreme Court would have deferred to the president's decision to do so.

Do you believe that Korematsu was wrongly decided?

ROBERTS: It's one of those cases that I don't think it's technically been overruled yet. But I think it's widely recognized as not having precedential value. I do think the result in that case -- Korematsu was actually considered the exclusion, not the actual detention, but the exclusion of individuals based on their ethnic and racial background from vast areas.

And it's hard for me to comprehend the argument that that would be acceptable these days.

FEINGOLD: It's often included, if you list decisions that are sort of considered some of the worst decisions in the history of the Supreme Court with Plessy v. Ferguson and Dred Scott and others. Is that a fair characterization of your view of Korematsu?

ROBERTS: Yes.

FEINGOLD: Are there any elements of the government's response to September 11th that you think, 50 or 60 years from now, we as a nation will look back on with regret?

ROBERTS: I'm sure there are some, Senator. And when you have the benefit of 50 or 60 years to look back as opposed to the particular demands of the moment and the perceived demands, I'm sure it's a different perspective.

I hesitate to mention any in particular because so many of these issues are coming before not only the Supreme Court but the court on which I now sit. And I will have to confront those cases, I think, regardless of what happens here.

So I would hesitate to identify particular areas of concern.

FEINGOLD: I understand your caution. I don't think we need to wait 50 or 60 years for some. For example, do you have any concerns about the practice of extraordinary rendition, of our government secretly sending people to countries that we know use torture?

ROBERTS: Well, again, Senator, that is something that could come before the court in one form or another. And I think I have to refrain from commenting on it.

FEINGOLD: How about the federal government using immigration laws to round up and detain people for months often without regard for whether they had any connection to the September 11th investigation, which actually in this case the Justice Department inspector general later heavily criticized? Does that trouble you?

ROBERTS: Well, yes, certainly, at a basic level of appreciating that this is a reaction in a particular way that raises serious questions. I'm very hesitant, though, again to express a view on legality because those issues could come before the court. They are coming before the court and they're coming not only for the Supreme Court but the court on which I now sit.

FEINGOLD: Let's go to one that's already come before the court. The Hamdi case is one of the most significant recent decisions restraining executive branch power.

In that case, eight members of the court found that the government had gone too far in claiming the right to detain and hold a U.S. citizen incommunicado within the United States without access to a lawyer and without charging him with a crime.

FEINGOLD: The case actually resulted in four different opinions with four different views on the president's power to detain a U.S. citizen indefinitely and without trial, ranging from Justices Souter and Ginsburg, who found that the president does not have any authority to detain citizens as enemy combatants because such detentions had not been congressionally authorized, to Justice Thomas, who would defer entirely to the executive branch.

Which of the four opinions in a case that's already been decided in Hamdi would you say best approximates your views on the executive powers to designate enemy combatants, the plurality opinion, the Souter/Ginsburg opinion, the Scalia/Stevens dissent, or the Thomas dissent?

ROBERTS: Well, Senator, that does get into the area asking me to comment on which opinions I think are correct that I don't feel it's appropriate for me to go.

I do know that the approach in this area is the approach set forth by Justice Jackson in his concurring opinion in the Youngstown case. That has set the framework for consideration of questions of executive power in times of war and with respect to foreign affairs since it was decided.

And as you know, the issue in those cases and in many of the cases in the Supreme Court is whether Congress has endorsed the executive action, in which case the president has his powers and the powers of Congress; whether Congress has prohibited the executive action, in which case all he has is whatever residual authority he has less the power of Congress; or what often happens, that vast middle area where it's impossible to tell or there's argument about whether Congress has approved the action or not.

The Dames Moore case that was decided in 1981 is an example of that when to resolve the Iranian hostage crisis, the president abrogated claims and relegated those with claims to the Iranian claims tribunal. The issue there, the court looked back at a variety of congressional enactments going way back to the Civil War to try to determine if this type of exercise of authority is something Congress endorsed or opposed.

FEINGOLD: But with regard to these opinions, and I understand your hesitance to comment on a particular opinion or the nature of the reasoning, but which of the approaches in terms of the actual finding of the opinion do you find closest to your view?

ROBERTS: Well, again, I don't remember which of those opinions follows the Youngstown analysis the most closely. My understanding of the appropriate approach in this area is that it is the Youngstown analysis, the one sent forth in Justice Jackson's concurring opinion. And I think that is the most appropriate way to flesh out the issues.

You do need to understand, because this is an area in which judges need to understand, there is often conflict between the branches. And you do need to at least set the table correctly to understand, is the president acting with congressional support, against it, or do we have to try to determine which of those areas it is. And I think you do need to lay that analysis out before deciding the case.

FEINGOLD: Last month, when I was home in Wisconsin, a constituent came up and said to me that he believed the D.C. Circuit decision in the Hamdan case, a different case, which you joined in, to uphold the government's ability to try a Guantanamo Bay detainee by military commission, should disqualify you from being on the Supreme Court.

This is apart from the issue that Senator Schumer and I wrote you about, which I'll turn to later. I want to know with regard to the substance of the decision, why do you think someone would think that your decision in that case -- why would somebody come up to me and say that your decision in that case should disqualify you from consideration as a Supreme Court justice?

ROBERTS: Well, Senator, you've touched upon an area in which I cannot comment. That case is still pending. It's pending before the Supreme Court. Under the Judicial Canons of Ethics, Canon 3A(6), I'm not supposed to comment publicly in any way about a case that's still pending.

FEINGOLD: Not asking you to comment on the case. I'm asking you why you think somebody who I represent would care enough about this issue that they would say this should be a disqualify. In other words, characterize what is the issue in the case that would make somebody that concerned that he would make such a statement.

ROBERTS: Well, the issue involves the same sort of issues that you began the discussion with, the question of civil liberties in wartime.










Day 3, Wednesday, September 14, 2005


COBURN: I want to cover one area that was discussed yesterday where the implication was made that you might have ruled on a case violating the judicial ethic, and that was the Hamdan v. Rumsfeld case. Senator Feingold asked you questions about the case. You invoked the canon code of conduct of U.S. judges that prohibits you from talking about a pending case.

I would like, Mr. Chairman, a copy of that canon to be placed in the record.

SPECTER: Without objection, so ordered.

COBURN: And canon three provides that, A judge should perform the duties of the office impartially and diligently. The judicial duties of a judge take precedence over all other activities. In performing the duties prescribed by law, the judge should adhere to the following standards and adjudicative responsibilities.

There's another one of those legal words I'm having trouble getting my hands around.

A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel, subject to the judge's direction and control.

The official commentary to canon 3A(6) provides the admonition against public comment about the merits of a pending or impending action until completion of the appellate process.

I would also note that any criticism of your participation in this case is unwarranted. Numerous law professors who specialize in legal ethics have stated that you in no way have violated any ethics rules simply because you were considered for another judgeship. The opinion was finalized well before you met with the president -- I believe that's correct -- or was offered this nomination.

Is that correct?

ROBERTS: Yes.

COBURN: The argument, the initial vote, and the drafting of the opinion all took place before there was a Supreme Court vacancy at all. Is that correct?

ROBERTS: Yes.

COBURN: You did not write an opinion on that case. Is that correct?

ROBERTS: I joined Judge Randolph's opinion.

COBURN: Right. But you did not write a separate opinion.

ROBERTS: No.

COBURN: That's right.

I would also like to enter into the record the nonpartisan ethicists who agree that Judge Roberts did not violate any ethics rules.

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






FEINSTEIN: That's very helpful. You might get it back again someday, with that fix.

Let me turn to something else that Senator Leahy asked a number of questions on, and that's the Constitution and executive power.

I'm looking for the section, but the Constitution very clearly says that any treaty is treated as the supreme law of the land, right, and that no state or official can abrogate it?

ROBERTS: : Right.

FEINSTEIN: Which gives it the total weight of law.

Can a president, then, decide not to follow a treaty?

ROBERTS: : As a general matter, the answer is no.

The treaty power, as long as it's ratified according to the requirements in the Constitution, by two-thirds of the Senate, you're perfectly correct, it is under the supremacy clause the supreme law of the land.

Now, I don't know if there are particular arguments about executive authority in that area with which I'm not familiar, and I don't mean to state categorically, but my general understanding is that treaties that are ratified -- and of course we have treaties that aren't ratified and executive agreements that aren't submitted for ratification and so on -- but the treaty that's ratified by the Senate under the supremacy clause is part of the supreme law of the land.

FEINSTEIN: So the conventions against torture and the Geneva Conventions would apply?

ROBERTS: : Yes.

Now, there are questions, of course, that arise under those -- and have arisen under those -- about interpreting the conventions and how they apply in particular cases to nonparties to the convention and so on. And as you know, those cases have been coming up and are being litigated.

But that's an issue of what the convention means in a particular case, not whether, as a general matter, a treaty is binding.







FEINGOLD: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court. But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions. So your answer that you would apply that principle doesn't help me very much in understanding your view of this. We know where all eight other members of the court stand on these opinions -- in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court. Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech. But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision. So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: : Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.

ROBERTS: : They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process. You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views. The process of the opinion-writing -- you can't -- the opinion turns out it (inaudible) you have to change the result. The discipline of writing helps lead you to the right result. You're asking me for my views, you know, right here without going through any of that process.

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: : Well, the harm would be affecting the appearance of impartiality in the administration of justice. People who would be arguing in that future case should not look at me and say, Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to. They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing. I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices -- every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.

FEINGOLD: I understand your view. I think it's narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn't have, as we say in Wisconsin, a snowball's chance with a couple of the justices because of what they had ruled previously. But I didn't think that made the process in any way tainted. I knew that they simply weren't going to agree with this statute. I recognize your limitations. So let me ask you about something else, the Hamdan. Yesterday, you refused to answer any questions regarding your conduct in the Hamdan v. Rumsfeld case.

FEINGOLD: But today you answered questions from Senator Coburn regarding this matter. So I want to follow up in order to make sure the record is complete. You interviewed with the attorney general of the United States concerning a possible opening on the Supreme Court on April 1, 2005. Is that correct?

ROBERTS: : Yes. The specifics of the details I discussed in the response to the committee's questionnaire.

FEINGOLD: And that was six days before the oral argument in the Hamdan case. Isn't that right?

ROBERTS: : I don't remember the exact date of it. I know it was shortly before that, yes.

FEINGOLD: You had further interviews on May 3rd concerning a possible appointment to the court with numerous White House officials, including Karl Rove, the vice president and the White House counsel before the decision in the Hamdan case was released. Isn't that correct?

ROBERTS: : The decision was June 15th...

FEINGOLD: The question here is just: Did you have further interviews on May 3rd concerning a possible appointment to the court?

ROBERTS: : May 3rd, yes. Well, whatever it was, I don't remember the exact dates, but...

FEINGOLD: You've had interviews with those individuals...

ROBERTS: : In the Senate...

FEINGOLD: The record seems to indicate it was on May 3rd. You met again with Ms. Miers, the White House counsel, on May 23rd. Isn't that right?

ROBERTS: : I'm relying on the -- if that's what I said in the questionnaire, yes. I don't have an independent recollection...

FEINGOLD: You have no good reason to doubt that those facts are correct. You never informed the counsel, in this case, of these meetings. Did you?

ROBERTS: : I did not, no.

FEINGOLD: Mr. Gonzales' advice to the president concerning the Geneva Conventions was an issue in the case. Isn't that right?

ROBERTS: : I don't want to discuss anything about what's at issue in the case. The case is still pending and pending before the Supreme Court.

FEINGOLD: Well how about this one? President Bush was named a defendant in the case. Right?

ROBERTS: : Yes, in his official capacity.

FEINGOLD: The Hamdan decision was released on July 15th. Is it your testimony that no work on that decision took place after July 1?

ROBERTS: : No, I didn't -- that was not my testimony. The opinions in the D.C. Circuit...

FEINGOLD: Oh, you're saying in your testimony now that no work on that decision took place after July 1?

ROBERTS: : Opinions in the D.C. Circuit are complete and circulated to the panel a week before they're released. That was my -- the conclusion of when work was complete. And again, I wasn't the author of the opinion. It would have been a week before it was released.

FEINGOLD: Did you read over the opinion of the concurrence after July 1? Was there any editing that took place after that date?

ROBERTS: : I don't recall, Senator, and...

FEINGOLD: But when was the issue of whether you should recuse yourselves from this case -- when did that first come to your attention?

ROBERTS: : I saw -- was made aware of an article. I think it was an article. I don't remember when that took place. Whenever the article was published. And then I understand the legal opinions on the other side were requested by, I believe, the chairman.

ROBERTS: : And I know that those were...

FEINGOLD: You don't recall when this matter first came up? One would think it would be something you'd remember when somebody suggested you should have recused yourself.

ROBERTS: : I don't remember the date of the...

FEINGOLD: How about the approximate time?

ROBERTS: : I think it was some time in July.

FEINGOLD: Mr. Chairman, so the record will be complete, I'd like to submit the article from Slate magazine by Professors Gillers, Luban and Lubet and a letter sent to you responding to Professor Rotunda's criticisms of their position. And I also want to submit an article by these three law professors that was published in the Los Angeles Times on this topic. I don't want to take anymore time on this, but I think these professors...

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

FEINGOLD: Thank you, Mr. Chairman. I think these professors very convincingly answer Professor Rotunda's views and point out that his analysis of the case law is not particularly persuasive. And I'd urge any of my colleagues who really want to understand the issue with Judge Roberts' participation in the case, rather than just dismissing it because it's inconvenient, that they take a look at it and actually see what the issues were here. But I appreciate your answer to those questions. I will only be answer to get to some of my questions on the next subject, and hopefully in the next round can continue.









GRAHAM: And I will move on. I think it is one of the cases that is undermining the confidence in the judiciary. And I'm glad that you're sensitive to that. The war on terror. In my past legal life, I've spent most of my legal career associated with the military. And I'm proud to be a military lawyer. I'm the only Reservist in the Senate. I sit as an Air Force Court of Criminal Appeals judge. I handle the easy cases, because I don't have a whole lot of time and I help where I can. But I understand, I think, very well what it means to abide by the judicial canons of ethics -- not to tip your hand, not to compromise yourself to get promoted or to get put on the court; promoted in the military or to get put on the board; trying to please your boss, trying to please a senator. And my respect for you has gone up because you're unwilling to compromise your ethics. And I hope the Senate will understand that, in the past, other people were not required to do so. Are you familiar with the Geneva Convention?

ROBERTS: : Yes, Senator.

GRAHAM: Do you believe that the Geneva Convention, as a body of law, that it has been good for America to be part of that convention?

ROBERTS: : I do, yes.

GRAHAM: Why?

ROBERTS: : Well, my understanding in general is it's an effort to bring civilized standards to conduct of war -- a generally uncivilized enterprise throughout history; an effort to bring some protection and regularity to prisoners of war in particular. And I think that's a very important international effort.

GRAHAM: As Senator Kyl said, this will be the only time we get to talk. And I don't want to compromise your role as a judge, but I do want you to help me express some concepts here that America needs to be more understanding of. And I want to work with my Democratic friends to see if we can find some way to deal with us. We're dealing with an enemy that is not covered by the Geneva Convention. Al Qaida, by their very structure and nature, are not signatories to the Geneva Convention and are not covered under its dictates. An enemy combatant: Are you familiar with that term in the law?

ROBERTS: : Yes, Senator, I am.

GRAHAM: What would an enemy combatant be under American jurisprudence? Who would they be?

ROBERTS: : Well, I really have...

GRAHAM: Fair enough. Fair enough.

ROBERTS: : Those cases are both pending. The ones that I've decided are pending before the Supreme Court and those issues are likely to come before...

GRAHAM: Fair enough. The Geneva Convention doesn't cover Al Qaida, but or president has said that anyone in our charge, terrorist or not, will be treated humanely. I applaud the president, because, in fighting the war on terror, we need not become our enemy. Our strength as a nation is believing in the rule of law, even for the worst of those that we may encounter. I admire Mr. Adams for representing the Redcoats. I cannot imagine how tough that must have been. But his willingness to take on the unpopular cause in the name of the rule of law has made it stronger. When the president said that we will treat everyone humanely, even the worst of the worst, I think he's brought out the best in who we are. But we're in a war, Judge Roberts, where the Geneva Convention doesn't apply. And we have before the courts a line of cases dealing with the dilemma this country faces. When you capture an enemy combatant, non-citizen, foreign terrorist, there's three things I think we must do. We must aggressively interrogate them without changing who we are. We must have the ability to keep them off the battlefield for a long period of time to protect our nation.

GRAHAM: And we must have a system to hold them accountable for some of the most horrible crimes imaginable. Justice Jackson was of your favorite justices. Is that correct?

ROBERTS: : I think that's a fair description, yes.

GRAHAM: He has indicated in the Youngstown case that the presidency of the executive branch is at its strongest when it has concurrence with the legislative branch. Is that a fair summary of what he said?

ROBERTS: : Yes. He divided up the area basically into three parts. Considering the executive's authority, he said when it has the support of Congress it's at its greatest, and, obviously, when it's in opposition to Congress it's at its lowest ebb, as he put it. And he described a middle area in which it was sometimes difficult to tell whether Congress was supporting the action or not.

GRAHAM: This is me speaking, not you. Congress is AWOL, ladies and gentlemen, in the war on terror when it comes to detention, interrogation and prosecution of enemy noncitizen combatants. Justice Scalia has written eloquently that Congress has the power to get involved in these issues and Congress is silent. What is the case, is it the Rasul case, where the Supreme Court in a 5-4 decision has given habeas corpus rights to noncitizen foreign terrorists?

ROBERTS: : I think that's correct, Senator.

GRAHAM: That is an amazing departure from what we've been as a nation for 200 years. I have been to Guantanamo Bay twice. The people running the prison tell me that 185 of detainees have lawyers in federal court. Justice Scalia says we've set up a situation where 94 different jurisdictions can hear habeas cases involving noncitizen foreign terrorists. The people running the jail say this process is undermining out ability to get good information. A habeas corpus petition, would it allow a defense attorney to call a military commander in to answer for how this person was captured?

ROBERTS: : I don't know, Senator, and I hesitate to opine on that without knowing.

GRAHAM: Well, the truth is that we've set up a situation where our military leaders and our military commanders and soldiers in the field can be called from all over the world, all over the country, to answer for why such person is detained. We had a conversation in our office, my office. You said something to the effect, as Justice Scalia said in his dissenting opinion, that this would be an area where the courts would welcome some congressional involvement. And right now, we have the executive branch carrying the load totally by themselves. We've got several cases before the court dealing with detention policy, interrogation policy and prosecution policy. Do you believe that this is an area, if the Congress acted, as Justice Jackson said, that it would strengthen the hand of the executive in a legal situation?

ROBERTS: : My observation during our meeting, Senator, was not an expression of legal determination. And it doesn't necessarily mean a view that Congress' action or involvement would be determinative or would even be within the scope of legal authority, depending on what the issue and the arguments were. I do know that when you are in the middle area, where it's difficult to determine whether Congress is supporting the president's action or is opposed to the president's action, that the court often has to try to read the tea leaves of related legislation. If you look at the Dames and Moore decision coming out of the Iranian hostage crisis, what the court did in that case, applying the middle tier, was look at a vast array of legislation. And it was a very difficult enterprise to try to figure out what Congress' view was. My point was simply that if we'd know what Congress' view was, it might make it easier to apply it in a particular case, and you wouldn't have to go through that process of trying to determine what position Congress was in, if that turned out to be pertinent under the particular legal challenge.

GRAHAM: Thank you. Justice Scalia said in a very direct way, The courts are ill- equipped to deal with these issues. In the Youngstown Steel case, Justice Jackson says, When the president acts pursuant to an express or implied authorization of Congress, his authority is at the maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate. A seizure executed by the president pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who may attack.

GRAHAM: Do you agree with that?

ROBERTS: : That was read from the Jackson -- I do. I agree with the basic proposition that the president's authority is at its greatest when he has the support of Congress.

GRAHAM: To my colleagues, I think it is imperative for this body to get involved in the war on terror when it comes to detaining, interrogating and prosecuting enemy combatants who are not citizens. It is important that all three branches of government, in my opinion, feel comfortable with the policies of this nation, that we'll be stronger if the judicial branch, the legislative branch and the executive branch are working together to come up with policies that will allow for aggressive interrogation, appropriate detention and serious prosecution in a way that's within the values of our nation. So that is why I will be introducing legislation on all those topics. And I will not ask you any further what you may or may not do about the legislation if it ever gets to the floor of the Senate and passed. 




CORNYN:
I know there were questions about -- I want to move quickly to your participation in a lawsuit. You say it was a Hamdi case? Hamdan case?

ROBERTS: : Hamdan.

CORNYN: Hamdan?

ROBERTS: : I'm sorry. Hamdi was the one in the Supreme Court.

CORNYN: Sometimes I confuse those.

ROBERTS: : It's a common source of confusion.

CORNYN: And we've had a little back and forth. I think Senator Feingold asked about the ethics about your participation. Senator Graham, I thought, made a very good point in talking about, if a president wanted to disqualify a judge in a case, just call the judge up and tell him you're being considered for a federal appointment, which certainly can't be right.

CORNYN: But do you know for a fact that Justice Breyer, when he was being considered about a possible nomination to the Supreme Court, sat and decided seven cases while sitting on the D.C. Circuit Court of Appeals. Are you familiar with that statistic?

ROBERTS: : No, I'm not, Senator.

CORNYN: OK. Well, our research reveals that that is, in fact, what happened. And so if Justice Breyer could participate fully in the court's decision-making process while being considered by President Clinton for nomination to the Supreme Court, it strikes me that we should not have a different standard -- and I'm not asking you to comment on that, because you said you're not familiar with Justice Breyer's record. But if that's true, and I believe it is -- that he sat on seven different cases involving the United States government and the executive branch while he was being considered for the Supreme Court -- we shouldn't hold John Roberts to a different standard. And that's my view. 



COBURN:
The other thing is, I want to enter into the record both the chronology of cases that Justice Breyer and Justice Ginsburg decided after they met with the White House -- the Clinton White House -- before they were nominated. There was a total of -- on Justice Breyer, one, two, three -- seven cases; on Justice Ginsberg, five cases.

The implication that you're not ethical is the other subtle implication that comes across there. And I find it tremendously uncomfortable that that is the trend where this is going.





Day 4, Thursday, September 15, 2005
 

LEAHY: Can I move on? Because it also goes to -- and I understand your point on this. And we can probably debate this all morning long. But I hope you understand my concern, which is a concern of a lot of the American people in this area. Let's go to another precedent that I know moved me a great deal, Gideon v. Wainwright.
.

LEAHY: As a young law student, my wife and I had an opportunity to have lunch with Hugo Black shortly after that. One of the most memorable times I had. He's a former senator. He recognized the Sixth Amendment's guarantee to counsel in a criminal, with a fundamental right to a fair trial. He called it an obvious truth. In an adversary system of criminal justice, any person held in a court who's too poor to hire a lawyer cannot be assured a fair trial unless counsel is provided for them. A wonderful book, Gideon's Trumpet, that Anthony Lewis wrote.

ROBERTS: Sure.

LEAHY: Doesn't Gideon stand for the principle that it would be meaningful -- such a fundamental right as the right to counsel -- it requires assurances that it can be exercised?

ROBERTS: Yes, I think so. I've often said that a lot of these difficulties, particularly in the areas of the legal errors being raised and collateral review -- a lot of those difficult questions could be avoided if people had competent counsel from the very beginning.

LEAHY: Well, doesn't the same principle embodied in Gideon, that the Constitution guarantees a person's ability to exercise fundamental constitutional rights -- doesn't that apply to other constitutional rights? I mean, to be meaningful, we have these rights; they've also got to be real in people's lives.

ROBERTS: Well, I think the basic instinct and genius behind the Gideon decision was without counsel to protect people's rights, they were going to forfeit them, they were going to waive them, due to ignorance or inability to appreciate the proceedings. That's why you need counsel at that stage. It's not because you have a right to counsel in the abstract. It was the recognition that having counsel is a way to ensure the protection of your other rights that you may not even be aware of.

LEAHY: That could be with a lot of our rights. They've got to be meaningful. You can't just say, You have them. And I'm really struck by your discussion of the Soviet constitution. I totally agree with you on that, but we have 280 million Americans of all different economic and educational backgrounds and everything else. We have wonderful rights. Our Bill of Rights is, I think, one of the most amazing things ever written by democratic people. But the rights are only there if they're meaningful in people's lives; that they can be enforced. And ultimately, that may come right down to the courts. I mean, Hugo Black's opinion is a pretty strong opinion.

LEAHY: You suggest I may have over-read your memo on Grenada. You said it really talked about veterans' rights but, actually, your memo -- what struck me, it doesn't say veterans' rights, it says war powers on it. The Constitution invests the power of declaring war in Congress not the president. I still have a hard time squaring that with your inherent authority arguments you advance in that Grenada memo. Maybe I could ask it this way: Do you continue to believe that the president has inherent authority to invade a sovereign nation, absent attack by a foreign power?

ROBERTS: Senator, that is a very abstract hypothetical. There are situations that arise when an executive may determine that that type of action is necessary. That may be challenged. I don't think abstract questions like that should be answered. There have been situations in our past where that authority has been claimed both abstractly and concretely. Certainly Congress has the power to declare war but, as you know, of course, there have been several incidents in our history -- the Korean War, the Vietnam War, others -- where there has been authorization for the use of force, not a declaration of war. You know the history when Madison's original proposal gave Congress the authority to make war and he thought that should be changed so that the executive would have the authority to respond to an invasion and I appreciate that part of your question.

LEAHY: But you also have George Washington -- if you're going to quote people back to that time -- George Washington spoke of no offensive expedition of importance can be undertaken until after Congress shall deliberate (inaudible) and authorize such a mission. So I'll go to the flip side: Can Congress stop a war?

ROBERTS: Well, that's, of course, a difficult question. Now Congress has always exercised the power of the purse with respect to activities of that sort and regulated the funding for that type of activity. And that's, of course, always been the core of Congress' authority. But the question to actually terminate hostilities that the executive has determined to initiate either with the authorization of Congress or a situation of congressional silence or acquiescence, to go back to the Youngstown decision, the issue of what Congress' authorities are to terminate, short of exercising its power with respect to the purse, those are unsettled, and I think have to be addressed in the context of a particular case. And the memo to which you refer, again, I was a lawyer for the executive and any cautious lawyer for the executive, without regard to the administration, would be on the alert for any type of suggestion that there are limits on that power.

LEAHY: To show you how cautious you were, you wrote, There's no clear line separating what the president may do on his own and that requires a formal declaration of war. But you conclude the exercise of presidential power in connection with the Grenada incident fell comfortably on the legitimate side of the line.

LEAHY: You suggest I may have over-read your memo on Grenada. You said it really talked about veterans' rights but, actually, your memo -- what struck me, it doesn't say veterans' rights, it says war powers on it. The Constitution invests the power of declaring war in Congress not the president. I still have a hard time squaring that with your inherent authority arguments you advance in that Grenada memo. Maybe I could ask it this way: Do you continue to believe that the president has inherent authority to invade a sovereign nation, absent attack by a foreign power?

ROBERTS: Senator, that is a very abstract hypothetical. There are situations that arise when an executive may determine that that type of action is necessary. That may be challenged. I don't think abstract questions like that should be answered. There have been situations in our past where that authority has been claimed both abstractly and concretely. Certainly Congress has the power to declare war but, as you know, of course, there have been several incidents in our history -- the Korean War, the Vietnam War, others -- where there has been authorization for the use of force, not a declaration of war. You know the history when Madison's original proposal gave Congress the authority to make war and he thought that should be changed so that the executive would have the authority to respond to an invasion and I appreciate that part of your question.

LEAHY: But you also have George Washington -- if you're going to quote people back to that time -- George Washington spoke of no offensive expedition of importance can be undertaken until after Congress shall deliberate (inaudible) and authorize such a mission. So I'll go to the flip side: Can Congress stop a war?

ROBERTS: Well, that's, of course, a difficult question. Now Congress has always exercised the power of the purse with respect to activities of that sort and regulated the funding for that type of activity. And that's, of course, always been the core of Congress' authority. But the question to actually terminate hostilities that the executive has determined to initiate either with the authorization of Congress or a situation of congressional silence or acquiescence, to go back to the Youngstown decision, the issue of what Congress' authorities are to terminate, short of exercising its power with respect to the purse, those are unsettled, and I think have to be addressed in the context of a particular case. And the memo to which you refer, again, I was a lawyer for the executive and any cautious lawyer for the executive, without regard to the administration, would be on the alert for any type of suggestion that there are limits on that power.

LEAHY: To show you how cautious you were, you wrote, There's no clear line separating what the president may do on his own and that requires a formal declaration of war. But you conclude the exercise of presidential power in connection with the Grenada incident fell comfortably on the legitimate side of the line.

LEAHY: Certainly different than what we think in our system of...

ROBERTS: That was exactly my reaction. On the other hand, Congress, in setting up the court, obviously concluded there were reasons to do it that way. I was asked a question about appointing the judges to it and my response was that, given the unusual nature of it -- very unusual nature, given the usual traditions of judicial processes -- that the people appointed to it have to be of the highest quality, undoubted commitment to all the basic principles, both of the need for the court and the need to protect civil liberties. That I think is very important. Beyond that, I would just tell you I don't know enough about the operations of the court at this point and how it functions to be able to make any representations about what I would do, other than that I certainly appreciate that it's an unusual establishment and in many respects doesn't have the sorts of protections that the normal judicial process has, and that I would be sensitive to those concerns.

LEAHY: And I'd hope -- my time is up. I apologize. But I'd hope that, if you are confirmed, that you might be willing -- and I think Senators Grassley, Specter, and myself could put together some suggestions -- at least keep an open mind on it.

ROBERTS: Certainly, Senator.

LEAHY: Because in an electronic age, in a digital age when more and more information is being pulled in on Americans that we sometimes don't even know about, it is frightening. We want security, but we want to be like -- as Benjamin Franklin said, a people who'd give up their liberties for security deserve neither. Thank you. Thank you, Mr. Chairman. 






FEINSTEIN: Let me ask you a general question, then. If an executive exercises power in direct violation of an act of Congress, is such an act unconstitutional?

ROBERTS: Well, the answer depends, Senator. And this is where you get back to the Youngstown analysis, where Justice Jackson said there are three categories: You can act with Congress' support, be unclear what Congress' position is, and he recognized a third category where an executive may act in the face of a congressional prohibition. And there are certain areas where the executive does have authority to the exclusion of Congress. Without stating a legal view, for example, one that law professors regularly talk about is the pardon power. In other words, that's given expressly to the president under the Constitution. And if Congress were to pass a restriction on the pardon power, does the president nonetheless have the authority to act under the Constitution? That's a difficult question, but it may be that the president's authority would trump Congress' authority. So I can't answer a question in the abstract without knowing exactly what the record is and what the situation is. What Justice Jackson said in Youngstown, though, is obviously true, that if the president is acting in the face of congressional opposition, his power is at its lowest ebb.

ROBERTS: As Jackson put it, It includes his powers, less whatever powers Congress has. So if it's in an area in which Congress has legitimate authority to act, that would restrict the executive's authority. 







SPECTER: Senator Graham, you are recognized.

GRAHAM: Yes, Mr. Chairman, just for a couple of minutes.

I'm trying to compile questions from the past where the answers were very similar to the answers of Judge Roberts about, I can't comment, I can't give you -- I can't answer your question because it may compromise my integrity to judge in the future. And I would ask permission of the committee to get a chance to organize this because there are so many volumes.

And what I would like to be able to demonstrate to the committee is that the pattern that he has displayed in terms of saying, I can't give you an answer because it may disqualify me is not unique to the Senate and very similar to past nominations. And we've got some examples of that.

But if I may, and I know we've been here and Lord knows this guy's been through the wringer, I just want to comment a little bit an unhealthy area I think we find ourselves in in the last hour.

Most of us are lawyers, and I would hate to be judged by the people I've represented in the past totally.

I've represented some people that are not very nice.

(LAUGHTER)

But I gave them my all.

I've represented people on Air Force bases that were so unpopular, Judge Roberts, that no one would eat with me, because it was my job as the area defense counsel to represent that person. GRAHAM: Your heart -- nobody can question your intellect, because it would be a question of their intellect to question yours...

(LAUGHTER)

... so we're down to the heart. And is it all coming down to that?

Well, there are all kind of hearts. There are bleeding hearts and there are hard hearts. And if I wanted to judge Justice Ginsburg on her heart, I might take a hard-hearted view of her and say she's a bleeding heart. She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?

Well, she has a different value system than I do. But that doesn't mean she doesn't have a good heart. And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is, Adopt my value system, we're doing a great disservice to the judiciary.

Thank you.