Topic: Preferred Mode of Judicial Reasoning.
Senator: Cornyn
Date: SEPTEMBER 13, 2005
Contents
SPECTER: Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
Judge Roberts, I appreciate your stamina, hanging in there with us.
(LAUGHTER)
I particularly appreciate your responding to the call to public service. And I want to say that I would be remiss if we didn't express -- if I didn't express -- what I know all members of the committee and the Senate feel is the appreciation for your family...
SPECTER: Senator Cornyn, before you proceed, there's been a request for a short break. And so let's take one. Five minutes.
(RECESS)
SPECTER: And the clock has been reset at the full 30 minutes, Senator Cornyn.
CORNYN: Thank you, Mr. Chairman.
Judge Roberts, let me start on a couple of items that I think will be relatively noncontroversial.
Believe it or not, and maybe people watching this proceeding won't believe it, but members of this committee and members of the Senate actually do try to work together on a bipartisan basis to pass legislation that we believe is in the best interest of the people who sent us here and the American people.
One area of bipartisan agreement -- I just want to reiterate Senator Feingold's comments about cameras in the courtroom. I am a strong supporter of cameras in the courtroom as long as they're unobtrusive and they don't disturb the proceedings or prejudice the rights of the litigants.
But I do agree with him that it's important -- and Senator Grassley, I know, is a -- each Congress introduces legislation on this.
I do believe it's important to let the people of the United States know what happens in courtrooms. I think they could learn a lot about their government. I think it would make them more sensitive to the nature of the decisions that are made there, give them confidence that there are dedicated public servants who serve in the judiciary who are doing the job of a judge day-in and day-out in a dignified and distinguished and professional manner.
Along the lines of what Senator Kyl mentioned earlier, there's another area that I think is noncontroversial and bipartisan, but it's something, frankly, that we need your help with, if you're confirmed as chief justice. And that has to do with the bar to the courtroom presented by excessive costs and time, the delays, inherent in modern litigation.
These impediments to access to justice are just as effective as if you had an armed guard at the door of the courthouse or had somebody put a padlock on the front door, because frankly not many people can afford access to the courthouse, to justice, to jury trials, because the costs are just so prohibitive.
And I remember that Chief Justice Burger, when he was chief, took on the cause of alternative dispute resolution and this cause of excessive delay and cost as being an impediment to access to justice, with quite a bit of success.
CORNYN: But it's a cause that needs a lot of work. It needs the attention of the chief justice of the United States and the prestige that you would bring to that because, frankly, it worries me a great deal.
Just like it concerns me what we see with the length of time of modern jury trials -- of course, many people think about jury trials, they think about the O.J. Simpson trial where the jury was empaneled for months on end and wonder: How in the world can a jury still represent the conscience of the community and be a cross-section of the community when so many people are precluded from serving because of the economic or other hardship associated with that?
So these are hard issues that I hope you will take a look at and work with the Judiciary Committee and the Congress, where necessary, to try to address, because I think they would be a great service to the American people.
As a good lawyer, you know the danger of analogies, and yesterday we started talking about judges as umpires. And you were quite eloquent in saying that you wanted to be an umpire; you didn't want to bat or pitch.
And I think it was a very succinct and appropriate way to describe exactly the role that you thought judges ought to play, not as partisans, but as impartial and disinterested in the outcome, but nevertheless interested in providing access to justice.
Well, I happened to be looking at my computer last night, and one of the blogs, and it's always frightening to see -- to put your name in a search and look at the ways it's mentioned. I suggest you don't do that, if you haven't, until this hearing is over, because this hearing is a subject of a lot of activity and interest in the blogosphere.
CORNYN: One of these blogs said that your comparison of a judge to a baseball umpire reminded him of an old story about three different modes of judicial reasoning built on the same analogy.
First, was the umpire that says some are balls and some are strikes, and I call them the way they are.
The second umpire says some are balls and some are strikes, and I call them the way I see them.
The third said: Some are balls and some are strikes, but they ain't nothing till I call them.
Well, I don't know whether it's a fair question to ask you which of those three types of umpires represents your preferred mode of judicial reasoning.
But I wonder if you have any comment about that.
ROBERTS: Well, I think I agree with your point about the danger of analogies in some situations. It's not the last, because they are balls and strikes regardless, and if I call them one and they're the other, that doesn't change what they are, it just means that I got it wrong.
I guess I liked the one in the middle, because I do think there are right answers. I know that it's fashionable in some places to suggest that there are no right answers and that the judges are motivated by a constellation of different considerations and, because of that, it should affect how we approach certain other issues.
That's not the view of the law that I subscribe to. I think when you folks legislate, you do have something in mind in particular and you it into words and you expect judges not to put in their own preferences, not to substitute their judgment for you, but to implement your view of what you are accomplishing in that statute.
I think, when the framers framed the Constitution, it was the same thing. And the judges were not to put in their own personal views about what the Constitution should say, but they're just supposed to interpret it and apply the meaning that is in the Constitution. And I think there is meaning there and I think there is meaning in your legislation.
And the job of a good judge is to do as good a job as possible to get the right answer.
ROBERTS: Again, I know there are those theorists who think that's futile, or because it's hard in particular cases, we should just throw up our hands and not try.
In any case -- and I don't subscribe to that -- I believe that there are right answers and judges, if they work hard enough, are likely to come up with them.
CORNYN: Well, as a good lawyer, you also know the danger of an analogy is that people will take it and run away with it, perhaps use it against you.
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