Topic: Moore v. Cleveland - Additional Information
Senator: Kyl
Date: SEPTEMBER 13, 2005
Contents
SPECTER: We will resume the confirmation hearing.
I'd been asked to delay by two minutes the starting time so that the electronic media could make appropriate introductions, and then I've also been told that my watch is a minute fast, so we're going to correct all those miscues.
For 30 minutes, Senator Kyl?
KYL: Thank you, Mr. Chairman.
There are several preliminary things I'd like to do and then get into a couple of questions that I wanted to ask you, Judge.
First, to my colleagues, with reference to some questions that attacked policy positions of the Reagan administration when you were working there as a lawyer, Judge Roberts, I tend to agree with you that it wouldn't be appropriate in your role as a current judge, not to mention your service on the Supreme Court, to be put in the position of defending policy positions of a previous administration.
But to the extent my colleagues would like to engage in that debate, probably not in this forum, I'd be happy to accommodate them in that matter.
Judge, as to your role, I appreciate, frankly, your candor and the clarity of what you have said. And you've said a great deal here. Obviously, you've drawn the line at issues that may come before the court.
But I think you have already added to what we already knew about your approach to judging. That's the key question here, and I appreciate what you have added to that. And I'll get into a little bit more of that in a moment.
There are a couple of other items, though, that I would like to clarify. Our colleague, Senator Biden, had engaged you in a colloquy regarding some testimony given by Justice Ginsburg. And he suggested that Justice Ginsburg was asked about a specific case called Moore v. City of Cleveland and that even though she had written about that case, she volunteered to speak about it.
Now, I think, appropriately, you're not going to be a judge or umpire in this case as to whether she did or did not exceed the rule that she set down. That would be highly inappropriate. But I'd like to correct the record because that isn't what transpired.
I won't read the entire transcript here but would ask that the relevant portions be inserted in the record at the conclusion of my remarks.
But just to set the background of it, she is testifying here in response to questions by Senator Hatch.
KYL: And she said, "I have said to this committee that the finest expression of that idea of individual autonomy and personhood and of the obligation of the state to leave people alone and to make basic decisions about their personal life, Justice Harlan's dissenting opinion on Poe v. Ullman."
Senator Hatch said, "Right."
And then then-Judge Ginsburg said, "After Poe v. Ullman, I think the most eloquent statement of it, recognizing that it has difficulties -- and it certainly does, is by Justice Powell in Moore v. City of East Cleveland, the case concerning the grandmother who wanted to live with her grandson.
"Those two cases more than any others, Poe v. Ullman, which was the forerunner of Griswald case, and Moore v. City of East Cleveland , explain the concept far better than I can."
And then there are other things that occur in the transcript.
My point here is to note that she was not asked a specific question about this case. She volunteered it as one of two cases that had interesting language that expressed what she wanted to express with regard to the principle of individual autonomy and personhood.
And then further down in the transcript, she said, "Senator Hatch, I agree with the Moore v. City of East Cleveland statement of Justice Powell." She goes on to describe how he reached it.
And later Senator Hatch said, "You mean with the position of Justice Powell?"
And Judge Ginsburg said, "The position I have stated here -- you asked me how I justify saying that Roe has two underpinnings, the equal dignity of the woman idea and the personhood idea of individual autonomy and decision-making. I point to those two decision opinions as supplying the essential underpinning."
And then she said, "In taking the position I have in all of my writings on this subject, I must associate myself with Justice Powell's statements. Otherwise, I could not have written what I did."
KYL: The point is that this is a matter on which she had written extensively. And therefore it is not the case, A, that she was asked about the case and was responding, but rather she brought the decision up; and, B, she used it to illustrate what she had already written about extensively.
So I think that will help to clarify the record. We'll put those portions of the transcript in the record and people can judge for themselves whether she violated the rule which she has laid down, a rule which you subscribe to with respect to giving hints or ideas about how you might rule in future cases.
If you'd like to comment on any of that, you certainly may do so. But I doubt that you would want to do so.
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