Topic: Wartime Decisions: Korematsu v. the United States
Senator: Feingold
Date: SEPTEMBER 13, 2005
Contents
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.
ROBERTS: And certainly I understand people having strong views on that particular question. But whether the decision on the merits was correctly resolved or not, or anything about it, I'm just absolutely prohibited from talking about it by those judicial canons.
There's even an advisory opinion that explains that that canon applies to a Senate confirmation hearing. So my ethical obligation not to comment publicly on a case that's still pending prevents me from saying anything more.
FEINGOLD: Of course I respect your judgment on these matters, but I believe that it's important that a nominee indicate a sense of why people in this country might have some anxiety at this point.
ROBERTS: Well, it's difficult...
FEINGOLD: Events that have occurred since September 11th, and how it creates a climate of fear and particularly fear of government power, that I think it's important not only for members of Congress, but even members of the Supreme Court help minimize. And I'm just trying to get a sense if you feel that concern in the nation.
ROBERTS: I certainly don't minimize the significance of a decision by a court of appeals or by the Supreme Court about the scope of executive authority in this area, about its impact on individual liberties, about the issues of separation of powers and whether the relation between the Congress and the executive, whether the executive is acting with congressional endorsement and support, or in the face of congressional opposition.
Those of course are very sensitive issues and always have been throughout our history. I certainly appreciate that. Those are significant matters. It's just that I'm prohibited from talking about the substance of the case.
FEINGOLD: Let me talk to an aspect of the case that I think you can speak to. Many people were surprised to learn in your questionnaire submitted to the committee that you were interviewed by the attorney general in connection with a possible vacancy on the Supreme Court on April 1st of this year.
Just six years before, you sat in the panel that heard oral arguments in the Hamdan case. While the case was still pending, before a decision was issued, you had additional interviews in May with the vice president, the White House counsel, Mr. Karl Rove and other top officials.
FEINGOLD: I'm going to give you an opportunity to explain why you think it was not necessary for you to recuse yourself from this case, but first I'd like to know: Did the possibility of recusal, because you were under serious consideration for Supreme Court, occur to you or was it raised with you at any point prior to the oral argument in the case?
ROBERTS: Senator, that again is a question I can't answer for you. I can't address that.
There's a motion pending in the court seeking to file a petition to recuse and that motion is pending. It's a mater I can't talk about outside of the judicial process.
In addition, because the Hamdan case itself is still pending, I don't think it's appropriate for me to address that.
FEINGOLD: Judge, I'm a little disappointed with that answer. As you know, Senator Schumer and I sent you a letter asking questions about this issue, and then we received a letter on September 1 from the assistant attorney general for legislative affairs at the Department of Justice on your behalf.
It says, quote, "Your August 24th letter requested Judge Roberts answer certain questions regarding the D.C. Circuit's recent decision, Hamdan v. Rusmfeld. As you know, Chairman Specter has scheduled hearings on Judge Roberts' nomination to begin immediately after Labor Day. At that time, Judge Roberts will be available to respond to questions from all senators on the committee," unquote.
Now, I took that to mean a little more than telling me you couldn't talk about it. Are you now refusing to answer a question even about when this issue came to your attention?
ROBERTS: Senator, we're talking about the canons of judicial ethics. They are quite clear on the subject. They say I may not talk about a matter that's pending before a court.
FEINGOLD: Even when it first came to your attention?
ROBERTS: That matter is still -- it's pending before the court. My hands are tied. It's not something I can discuss under the canons of ethics.
FEINGOLD: Guess I'll have to move on.
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