Topic: End of Life Issues
Senator: Feinstein
Date: SEPTEMBER 14, 2005
Contents
SPECTER: Senator Feinstein?
FEINSTEIN: Thank you very much, Mr. Chairman. Judge, I subscribe to much of what Senator DeWine said. I want to tell you what I think, perhaps a little differently and personally. Senator Graham, last night, pointed out that Justice Scalia was confirmed by 98 votes of this body. And I thought, then, and I think now how different the days were in 1986. There's so much water under the damn since then. The nation is divided. It has polarized. It is about 50-50. We are at war. Executive authority is very much on people's minds. The law as it relates to war, the Geneva Conventions, the conventions against torture, all of these things, very much on everyone's minds. We have seen, in the last 10 years, 193 5-4 decisions of the court, which suggests that, on major questions, the court is also very divided. And so in comes this young justice. I was one on our side that voted for you for the D.C. Court. I did so because there were so many testimonials about what a fine lawyer you are, what a fine human being you are. And I voted for you. But there's more in this vote. Senator DeWine just spoke about the man as opposed to the legal automaton.
Yesterday morning, you spoke, I thought eloquently. In answering Senator Specter's questions on Roe, you discussed stare decisis as fully as I have ever heard it discussed. I am not a lawyer. I learned a lot from listening to you. You discussed the right to privacy. You were very full and forward speaking. And then after lunch, it was as if you shut down and became very cautious. So my first question: Did anybody caution you between the morning and the afternoon sessions?
ROBERTS: No, Senator. No.
FEINSTEIN: Has anyone, when you were being interviewed for this position, ever asked your opinion on Roe?
ROBERTS: No.
FEINSTEIN: OK. That's good to know. 1973, 2005 -- 32 years -- over three generations of women have come, really, to feel that finally they have some autonomy over their body. And women are all different. Many of them are very pro-life. Many are pro-choice. People have different religious views, moral views. So it's this big diverse cosmopolitan of women. But the growth has been enormous. And the ability of women to succeed -- I mean, I went into the workforce at the same time Sandra Day O'Connor did, with a year's graduate work. The door was closed. It's now open. And women are so lucky.
And it seems to me that the living Constitution is that each person in this great country, man or woman, rich or poor, white or black, whatever it might be, can really reach their full potential. And I guess what has begun to concern me a little bit is Judge Roberts, the legal automaton, as opposed to Judge Roberts, the man, because I've heard so many times, "I can't really say because it may come before me." And yet, I don't expect you to say what you would do with Roe one way or another. But I do expect to know a little bit more about how you feel and how you think as a man, because you're a very young man to be chief justice. You could be chief justice for 40 years. That's a very long time. And because of the division -- and there's also a lot of fear out there -- where this new court, now with potentially two new justices, is going to go, whether you've got the ability to bring that court together, to end the 5-4 decisions, to see that big decisions are made so that they represent a much greater consensus.
And I'm trying to find out and see are those qualities really there. I was interested in a colloquy you had with Senator Biden on the end of life. And he used the word -- he asked a number of legal questions. And then he says, OK, just talk to me as a father and tell me. Now, I have been through two end of life situations, one with my husband and one with my father, both suffering terrible cancers, a lot of pain, enormous debilitation.
Let me ask you this question this way: If you were in that situation with someone you deeply love and you saw the suffering, who would you want to listen to, your doctor or the government telling you what to do? To me, it's that stark because I've been through it.
ROBERTS: Well, Senator, in that situation, obviously, you want to talk and take into account the views and heartfelt concerns of the loved one that you're trying to help in that situation, because you know how they are viewing this. You know what they mean when they're saying things like what their wishes are and their concerns are and, of course, consulting with their physician. But it seems to me that in that situation, you do want to understand and make sure that you appreciate the views of the loved one. And only you can do it because...
FEINSTEIN: That wasn't my question.
ROBERTS: I'm sorry.
FEINSTEIN: I'm trying to see your feelings as a man. I'm not asking you for a legal view.
ROBERTS: I wasn't trying to give a legal view. My point was that, obviously, you look to the views of the person involved. And if it's a loved one, you are the one who is in a position to make sure that you understand their views and can help them communicate those.
FEINSTEIN: How would you feel if you were in that position?
ROBERTS: An end of life situation? You know, I do think it's one of those things that it's hard to conceptualize until you're there. I really would be hesitant to say this is what I would definitely want done or that's what I would definitely want done. You do need to confront that and appreciate all of the different concerns and impulses and considerations.
FEINSTEIN: And every situation is different.
ROBERTS: Yes. And it's one of those things I think is difficult to put yourself in that position and say, "Well, with any degree of confidence, if I were suffering and confronting the end of life, this is what I would want to do or that is what I would want to do."
You can theorize it and try to come up with your views or how you would confront...
FEINSTEIN: That's right. All I'm saying is you wouldn't want the government telling you what to do.
ROBERTS: Well, I'm happy to say that as a general matter.
FEINSTEIN: That there should be a basic right of privacy.
ROBERTS: Well, that's getting into a legal question.
FEINSTEIN: OK, I won't go there.
ROBERTS: And you don't want...
FEINSTEIN: I won't go there. Let me go somewhere else.
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