Topic: Response to Matters the Might Come Before the Court
Senator: Kyl
Date: SEPTEMBER 14, 2005
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SPECTER: Senator Kyl?
KYL: Thank you, Mr. Chairman.
I think this last exchange is important because it goes back to what we talked about at the very beginning, when some of us in our opening statements pledged to defend you if you stopped short of answering every question the way that every senator felt important, based upon your view that the matter in question might come before the court; that the canons of judicial ethics preclude you from doing that.
KYL: A very wise senator on this committee once said something. Let me quote it to you. And by the way, I contend that he is still wise.
(CROSSTALK)
KYL: And this is what he said: "Judge, you not only have a right to choose what you will answer and not answer. But, in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the court in 50 different forms, probably, over your tenure on the court."
Now, as I said, that was wise then. It's wise now. It is the statement of then-Chairman Joseph Biden in the Ginsburg hearings. And in all sincerity, I do believe Senator Biden to be wise and I believe that that comment is wise.
It's what's animated your approach to answering, probably by now, hundreds of questions that have been asked of you. And you've answered every question. In some cases, however, you have stopped short of advising us what you believe the law to be because you felt that that matter is going to come before the court.
But you didn't stop there. When permitted, you expanded to tell us why you thought it was a matter that might come before the court and what your general approach to the case would be in terms of your judicial philosophy, how you would approach judging the case, but that you didn't want to talk about your view of what the law was, both because the case could come before the court and also because it's pretty hard to formulate in a question all of the factual considerations that would permit you to know what law would be specifically applicable to that particular case.
KYL: And you and I talked a little bit about the facial challenge to statutes versus the as-applied kind of problem.
So with respect to this last interchange you had with Senator Biden -- and by the way, I'll say, again, to compliment my colleagues, if anybody ever contended that senators weren't both diligent in pursuing what they want to pursue and also very imaginative, they should watch this hearing, because we've been blessed with most creative ways of trying to pull out of you commitments on matters that senators would like to have you make commitments on.
But as Senator Biden just said, and I'm paraphrasing here -- he said without the knowledge of your personal views -- he was talking at the time about end-of-life issues -- we're rolling the dice.
And your response to that, as I understand it, is: My personal views are irrelevant to a case that comes before me of Jones v. Smith, of X v. Y. What I personally think about issues has nothing to do with the resolution of the dispute between those two parties. And were I to let them intrude, I would not be doing my job as a judge, fairly taking the facts of their case and then applying the law that I understand it to be to reach a decision.
Moreover, Judge, isn't it the case that if you were to state your views on such subjects, as they might pertain to a case that would come before the court, wouldn't you actually have to recuse yourself from deciding that case and, therefore, all of the discussion, all of the effort to get you committed to a particular point of view would be for naught because if you expressed it you couldn't sit on the case anyway? Or am I incorrect in that?
ROBERTS: I think that's a concern that other nominees have raised in the past, particularly given the expression of the views as part of the confirmation process.
It's not supposed to be a bargaining process.
And if you start stating views with respect to particular issues of concern to one senator, then, obviously, everyone's going to have their list and when that individual nominee, if confirmed, if the bargain is successful from his or her point of view and he gets confirmed, he'll have to begin each case, not with the party's briefs and arguments, but with the transcript of the confirmation hearing to see what he or she swore to, under oath, was their view in a particular area of the law or particular case.
And I think that would undermine the independence of the Supreme Court. It would undermine the integrity of the judicial process. Everyone of the justices on the court today, everyone of them refused to engage in that type of process. And if I'm to sit with them, if I am confirmed, I feel I have to follow the same approach.
Now, I do think I've been more expansive than most nominees. I've gone back and read the transcripts and some of them would not talk about particular cases even if it were unlikely that the case was going to come before the court.
And the reason they gave was, "Look, it's hard to draw the line. If I think this case is not going to come before the court, what about this one and maybe that will. And rather than trying to draw the line, I'm just not going to do it."
And those justices were confirmed.
I've taken what I think is a more pragmatic approach. If I think an issue is not likely to come before the court, I have told the committee what my views on that case were -- what my views on that case are.
Perhaps that means it's sometimes difficult to draw the line, perhaps that's right. But, again, if I make the judgment -- and other nominees may draw the line differently. They have drawn it differently in the past or differently in the future.
The nominee, I think, has to be comfortable with the proposition that they're not doing anything that's going to undermine the integrity of the court.
KYL: And I noted yesterday, in response to a question, you said, "Well, that's the reward for trying to be more expansive." You were talking about Griswold v. Connecticut. I thought at the time, boy, he's expressing a view on a relatively recent case and, at least, issues associated with it are clearly going to come before the court. And I wondered, does that go too far, does that cross the line?
But your point was the specific issue in the case and the precise holding of the case are not likely, in your view, to come before the court. And therefore, you expressed your opinion about that case and the law underlining the ruling in the case.
KYL: So I would agree with you that, not only have you attempted to answer every one of our questions, but you have also ventured into expressing your personal views on matters that you didn't think would come before the court -- although, as you note, it's at least possible that some of them might.
So hopefully you haven't gone too far there.
This, I think, is a great civics lesson. Some of this hearing should be encapsulated in law school courses to remind us about the difference between elected officials who make policy and judges who are not supposed to make policy.
I thought the questioning, I believe it was by Senator Brownback earlier, was instructive. You noted that the primary check and balance on the judiciary was its own self-restraint.
Many of us believe that the court has not exercised appropriate self-restraint in all cases and that, when it doesn't, it naturally generates concern expressed by the citizens of the country, as reflected certainly by their elected representatives.
And we do express that concern.
I think the court has failed to exercise appropriate restraint in several matters. And one of the things that appeals to me from your approach to the law is that it appears to be a very traditional approach, which is that I'm not sent there to make law; I'm sent there to take whatever case comes before us and just decide the case.
And that element of self-restraint and modesty is one which I think should be more the rule than it is today in courts at all levels. And I would commend that philosophy to all of the judges.
I think you've expressed it very well. And while I appreciate my colleagues' desire to try to draw you out on your personal views about matters, I think you have drawn the line at an appropriate place, and you've certainly provided us with a great deal of information in the process.
KYL: And, again, partly because you've explained to us, when you could not completely satisfy a senator's curiosity, why that was the case, but still tried to inform us about the basic issues that might exist in the case, the basic arguments that would be made on either side, but without giving us a hint as to which one of those you thought you might come down on the side of.
And I also think it's important that you have totally eschewed ideology here, saying that your own personal views or ideology don't have a place in your decision making, and therefore they are pretty irrelevant to the questions that are asked here.
I've got a whole notebook of questions here that to one extent or another have been dealt with, I think, by colleagues. And I don't think it serves a purpose to go over them again.
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