Topic: Executive Power
Senator: Durbin
Date: SEPTEMBER 13, 2005
Contents
DURBIN: The next topic I would like to talk about for a moment is executive power, which has been addressed earlier. It has not been a major focus in previous hearings, but obviously is now that we are at war.
You have been asked a lot of questions about it, because I think there's so much at stake. We will probably be involved in this war effort, as Senator Leahy said early this morning, for some time.
Throughout American histories, even some of our greatest presidents, including one from Illinois named Lincoln, tried to restrict liberty in an effort to provide more safety and security in our nation. This administration is no exception.
It claimed the right to seize an American citizen in the United States and hold him indefinitely without charging him with a crime. They have claimed that the courts have no right to intervene.
I think that threatens all of our freedoms.
Just last week, Judge Luttig authored an opinion upholding the administration's position. And if you are confirmed, you may have the final word on this question.
You and others have compared the role of a judge to an umpire, and I promised I wouldn't get into the baseball analogies. That's one thing I will spare you from.
But let me ask you this: When it comes to this use of executive power, you referred time and again to Justice Jackson in the Youngstown case. Here's what he said: "A judge, like an executive adviser, may be surprised at the poverty of really useful and unambiguous authority applicable to concrete problems of executive powers as they actually present themselves."
So if you're confirmed, you'll play a significant role in determining what limits, if any, the Constitution places on a president during times of war. That's why the American people have the right to know what you think about executive power.
There was an exchange earlier today between you and Senator Kyl about a statement I made yesterday, about whether, as a justice, you will expand freedom in America. And Justice Kyl -- Senator Kyl -- I don't know something secret about that.
But Senator Kyl seemed to suggest it was a zero-sum approach, that you couldn't enlarge the freedom of one person or group in America without taking away the freedom of another group.
It's a curious point of view. It's the same point of view that Robert Bork had that he tried to defend unsuccessfully before this committee many years ago.
But my point to you is this: I'd like to ask you a question. What is it in your background or experience that can convince the members of this committee and the American people following this that you are willing to stand up to this president, if he oversteps his authority in this time of war, even if it's an unpopular thing to do?
ROBERTS: Well, Senator, I would just say that my demonstrated commitment to the rule of law. You can see that, I think, in my opinions over the past two years. You can see it in how I approach my job as a lawyer, arguing, and what types of arguments I make and how I make those arguments and how faithful they are to the precedents. And you can see it in my history of public service.
The idea that the rule of law -- that's the only client I have as a judge. The Constitution is the only interest I have as a judge. The notion that I would compromise my commitment to that principle that has been the lode star of my professional life since I became a lawyer, because of views toward a particular administration is one that I reject entirely. That would be inconsistent with the judicial oath.
And Justice Jackson is a perfect example of that. He is someone who was a strong advocate for executive power when he was FDR's attorney general, one of the strongest.
And yet he could issue a decision like the Youngstown decision, not only concluding that President Truman lacked the authority, even in times of war, to seize the steel mills but also setting forth the framework, with the language of the sort that you just quoted, setting forth the framework about how to analyze these decisions in a way that is particularly sensitive to the role of Congress as well.
That's the key feature of his framework -- the examination of where Congress is on the spectrum in determining whether the executive has that authority.
DURBIN: I hate to keep referring back to these ancient memos, but it's said that if a hammer's the only tool you have, every problem looks like a nail. And in this case, this is the only tool we have to try to find out what's going on in your mind and in your heart.
And so, in a memo of 1983, to White House counsel Fred Fielding, you wrote: "The independent prerogative of the chief executive to determine that a given law is unconstitutional" -- you talked about the power of the executive to determine that a law is unconstitutional.
We are going through this debate that Senator Leahy alluded to earlier, relative to this torture memo and the idea that the administration would walk away from commitments that have been made under the Geneva Conventions and under the convention on torture and would, instead, establish a new standard.
So my question to you is this: Would the anti-torture statute be unconstitutional simply because it conflicts with an order issued by the president as commander in chief?
ROBERTS: No, Senator. Not simply because of the conflict.
And have I to say I don't know -- that's one of the 80,000 memos I don't know about. So I would have to understand what the point was, what the issue was, and the language you read in context before I could respond to that.
But, no, the president has an obligation. He takes an oath, as we all do, to uphold the Constitution and to make a determination. And his determination that certain things are either constitutional or unconstitutional can, of course, in an appropriate case, be tested in court. And the ultimate arbiter of that under our system is the federal judiciary.
DURBIN: Justice Jackson thought the bottom line on executive power was clear. In Youngstown he said, "No penance would ever expiate the sin against free government of holding that a president can escape control of executive powers by law through assuming his military role." I assume you agree with that statement by Justice Jackson.
ROBERTS: Yes, I do. It simply reflects the basic principle that no man is above the law, not the president and not the Congress. And that's why the courts have the obligation, and have had since Marbury v. Madison, to say what the law is.
And if that means that Congress has acted unconstitutionally, they strike down the law. And if it means that the executive has acted unconstitutionally, they have the obligation to block the executive action.
DURBIN: We can imagine a hypothetical statute that would clearly intrude on a president's power as commander in chief, ordering the movement of troops and that sort of thing. On the other hand, the anti-torture statute is clearly within the area, I believe, where Congress can legislate.
As you noted this morning, Article I, Section 8 of the Constitution enumerates Congress's powers. Speaking clearly to this, it says: "The Congress shall have the power to make rules for the government in regulation of the land and naval sources."
So I hope -- I think we've exhausted this topic, and I think we're in common feeling and agreement about it. I hope we are -- at least close.
Let me ask you one last question in the few minutes remaining here. I've listened to some of the questions asked about gender and sex discrimination. They've come up repeatedly during the course of this.
And as you look at the standards that are applied to the equal protection, for a variety of different circumstances there are different standards. I think you started to explain them at one point today. Maybe you got through the explanation. I'm not sure.
But under strict scrutiny, the suspect classifications include race and national origin, religion, alienage and the like.
Then there is, of course, the other standard, of what is characterized as middle-tier scrutiny, which includes quasi-suspect classifications of gender and illegitimacy.
As you look back at the sweep of history that created these different standards, can you rationalize the difference between discrimination based on race and based on gender?
ROBERTS: Well, I can tell you what the court has done.
There are justices who aren't comfortable with the different tiers. They say there's one equal protection clause and -- but the different tiers are fairly well-established as an approach to the different areas in discrimination. And the rationale for it is that there are areas in which you think it is almost never the case that distinctions that are drawn can be legitimate, distinctions based on race or ethnicity. And so they are subject to the most heightened scrutiny.
The rational relation test, which applies across the board to any type of law, I think there it's quite often the case that distinctions drawn on whatever basis Congress wants are likely to reflect the different sorts of policy judgments.
Gender issues are in the middle tier, because the court thinks that there are situations where distinctions can be justified and there are other situations, but it's more than just the rational relation, but not as suspect as the most heightened level because there may be other justifications.
Cases throughout the court's history where they have upheld distinctions under that analysis -- like the all-male draft, for example. That was upheld.
Now, if you had applied strict scrutiny to that type of classification, perhaps the result would have been different, and the all-male draft would have been struck down.
It reflects the court's determination that these are not sort of almost always inherently irrational and discrimination rather than legitimate governmental distinctions, but that it's entitled to a heightened degree of scrutiny beyond the rational relation test.
Justice Ginsburg I think in her opinion in the VMI case said that the intermediate scrutiny had to be applied with -- I forget the exact phrase -- exacting rigor, or something along those lines, to indicate that it is well beyond the rational relation test, but it's not as inherently suspect as racial classifications.
DURBIN: Judge Roberts, thank you today for your patience with the committee...
ROBERTS: Thank you, Senator.
DURBIN: ... and your responses to my questions. I think we all understand the gravity of this hearing, as you do, and we thank you very much for bringing your family and friends to be with you.
Thank you.
ROBERTS: Thank you.
SPECTER: Thank you, Senator Durbin.
And thank you all for sitting through a very long proceeding today. We're in our 11th hour.
Thank you, Judge Roberts.
Thank you, Senator Leahy.
LEAHY: Thank you.
SPECTER: Here all day. And thank all my colleagues, most of whom have been here practically all day. Senators have other responsibilities. And when we set the time and stick to it, they know when to come in to find the time.
There's been, I think, a spirit of good will generally, dignified generally, contentious at times, but, I think, productive.
We will begin tomorrow morning at 9:00 o'clock, 9:00 a.m., instead of 9:30 -- begin at 9:00 a.m. and we will start with the questioning, 30 minutes to Senator Brownback.
That concludes our day's session.
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