Topic: Church and State
Senator: Feinstein
Date: SEPTEMBER 13, 2005
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FEINSTEIN: I would like to ask a question or two on church and state. I mentioned in my opening statement that, for centuries, people have been persecuted for their religious beliefs. And our country grows more diverse every day, and tensions among different beliefs have grown.
I really believe that there is a brilliance in what the founding fathers did in drafting the First Amendment and how it protected an individual's right to practice their belief, whatever it may be, but also protect against using religion against individuals by prohibiting the government from becoming and/or imposing religion.
In 1960, there was much debate about President John F. Kennedy's faith and what role Catholicism would play in his administration. At that time, he pledged to address the issues of conscience out of a focus on the national interests, not out of adherence to the dictates of one's religion.
And he even said, "I believe in an America where the separation of church and state is absolute."
My question is: Do you?
ROBERTS: Senator, I think the reason we have the two clauses in the Constitution in the First Amendment reflects the framers' experience.
Many of them or their immediate ancestors were fleeing religious persecution. They were fleeing established churches. And it makes perfect sense to put those two provisions together: no establishment of religion and guaranteeing free exercise. That reflected the framers' experience.
FEINSTEIN: You can't answer my question yes or no?
ROBERTS: Well, I don't know what you mean by absolute separation of church and state.
For example, recently in the Ten Commandments case, the court upheld a monument on the Texas Capitol grounds that had the Ten Commandments in it. They struck down the posting of the Ten Commandments in a Kentucky courthouse.
Is it correct to call the monument on the Texas Capitol grounds with the Ten Commandments, is that an absolute separation or is that an accommodation of a particular monument along with others that five of the justices found was consistent with the First Amendment?
So I don't know what that means when you say absolute separation. I do know this: that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.
FEINSTEIN: It has been reported that during your meeting with Senator Wyden, while discussing end-of-life issues, you cited the dissent of Justice Brandeis in Olmstead.
I would like to quote from it: "The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things.
"They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred as against the government the right to be left alone, the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment."
Do you agree with Justice Brandeis?
ROBERTS: I agree with his expression that it's a basic right to be left alone, and I think that animating principle is a very important one.
With regard to particular restrictions he was talking about, wiretapping or -- I forget the interception actually at issue there -- you know, I don't think it's appropriate to comment on.
But as a general statement of the principle -- and again, it reflects just the basic understanding that it's a free country and the right to be left alone is one of our basic rights. I do agree with that.
FEINSTEIN: I do think the implication of what you said to Senator Wyden -- and I have discussed this with him -- was that one has the right to make their end-of-life decision.
ROBERTS: Well, that's an issue that is before the court in particular cases, and I can't comment on a case that's coming before the court.
If I am confirmed, I would have to confront that case with an open mind in light of the arguments presented, in light of the precedents of the court.
And the litigants in those cases are entitled to have judges that haven't expressed views on that particular case.
FEINSTEIN: Well, let me ask you this question, then: In an interview on PBS after the court ruled in Washington v. Glucksberg, a case involving a state statute that banned assisted suicide, you said, "I think it's important not to have too narrow a view of protecting personal rights" --what did you mean by that?
ROBERTS: Well, I went on to explain that any time there's an assertion of a right, there's quite often an assertion of a contrary right.
I think it was similar to the point Senator Kyl was making earlier, that for example, if you are asserting a right against government regulation, then the right of the people to regulate through their elected representatives that's being struck down, that right is being restricted.
So it's usually not -- it's often not we can view that there's a right on one side and there's nothing on the other side. There's often an assertion of a right on the other side.
And what the courts have to do is make sure they provide a level playing field in which people disputing the impact of the Constitution on whose right prevails have judges who will decide that case according to the rule of law and not according to whether they think one right should prevail or another.
FEINSTEIN: But do you believe, then, that the federal courts should become involved in end-of-life decisions?
ROBERTS: Well, Senator, that is exactly one of the questions that is before the court. And I cannot answer that in the abstract. I have to answer that on the basis of the parties' arguments, on the basis of the record in the case, on the basis of the precedents. An abstract opinion that would prejudge that case would be inappropriate for a nominee to express.
FEINSTEIN: Let me ask it another way. Do you believe that the courts should have a limited role in that situation?
ROBERTS: I think courts have a limited role in general, and that is that they only interpret the law. They don't make the law. They don't shape the policy.
Now the application of that basic principle, which is very important to me, in a particular case, is obviously something that has to wait for the litigation of that case, the arguments in that case, the arguments of the lawyers about whether it's consistent with the precedents or inconsistent with the precedents. But the basic principle that courts should not be shaping public policy, that's for the legislators, is a fundamental principle with which I agree.
FEINSTEIN: Thank you, Mr. Chairman.
SPECTER: Thank you, Senator Feinstein.
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