Topic: The Role of a Judge in a Democratic Society
Senator: Grassley
Date: SEPTEMBER 13, 2005
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SPECTER: We will reconvene our hearing. We will take three more rounds of
questions so that we will go until approximately -- there will be two more rounds of questions to 12:45, and we will then break for lunch.
Both Republicans and Democrats have their policy luncheons and so we will then reconvene after lunch until 2:15. And I have been asked how late we're going to go. Let's see how it feels. We want to move ahead with the hearings, but we don't want to wear everybody out.
Senator Grassley?
GRASSLEY: Judge Roberts, for a second time, I would congratulate you and your family on your nomination. I would also, for a second time, thank you for the time you spent in my office for me to talk privately with you several weeks ago.
I'm impressed by your record, your public service. Obviously, you demonstrate your intellect very well. And we ought to be satisfied with that.
Let me remind everybody that Judge Roberts was confirmed unanimously to the D.C. Circuit Court just two years ago by the Senate and that the ABA, the American Bar Association, has recommended him to be, in their words, "unanimously well-qualified for this position on the Supreme Court."
So I believe, with everything we have seen demonstrated, you're obviously as qualified a nominee as I have seen in the 24 years that I have been on this committee.
In addition, I want to thank you for a great deal of candor you have in answering questions and giving information. The Judiciary Committee has received from you or from government agencies that you have been affiliated with, thousands of documents on your record -- thousands of documents.
And we all have combed through the documents, the briefs and opinions that you have offered to assess your qualifications to the Supreme Court.
I think that we've been provided with a vast amount of information, more than, I think, any other candidate to the Supreme Court.
This confirmation process is very important, however, not so that we can seek to obtain your commitments on specific cases but, rather, to more fully understand your approach to deciding cases.
In addition, you have been nominated to be chief justice so I'm going to be interested in some of my questioning today or tomorrow about your priorities for the federal judiciary and what you think about the administration of justice and some of those questions you might anticipate don't involve cases coming before the Supreme Court.
GRASSLEY: And maybe on administering that branch of government, you could be a little more concrete on what you support and don't support.
And, of course, lastly, I appreciate your candor and thoughtfulness. Our conversation now will not only tell us more about your judicial methods but will also, I hope, educate the public on the proper role of a judge in our democratic society.
Most people who will be following these hearings will be, like me, a non-lawyer. And I think it's important that the bulk of our society, particularly those who aren't in the law, understand limits on judicial power in our system of checks and balances of government.
Judge Roberts, I believe that we should be filling the federal branch with individuals who will be fair, who will be unbiased, will be devoted to addressing facts and the law before them without imposing their own values and political beliefs fain reaching a decision.
You made clear that you agree with that. I'm not asking you, but I think you made clear that you agree with that with your umpire analogy that you used yesterday.
Our founding fathers clearly intended the judiciary to be the least dangerous branch of government.
Alexander Hamilton, in fact, in Federalist Paper No. 78 cautioned against judges substituting their own belief for constitutional intent when he wrote these words: "The courts must declare the sense of the law and if they should be disposed exercise will, instead of judgment, the consequences would be the substitution of their pleasure for that of the legislative body."
I think this standard is important for all judges, even more so with Supreme Court justices. And I hope at the end of our hearings that we feel, as I'm beginning to feel now, that you share that.
So, Judge Roberts, beyond your umpire analogy, what do you understand to be the role of a judge in a Democratic society?
And I would like your reaction of a quote from Justice Cardozo on the nature of the judicial process.
And he said this, not paraphrasing but direct quote: "The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not knight errant, roaming at will in pursuit of his own ideal of beauty or goodness. He is not to yield to spasmodic sentiment, to vague or unrated benevolence. He is to exercise discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to the primordial necessity of order in social life -- wide enough in all conscience is the field of discretion that remains."
GRASSLEY: What do you think Justice Cardozo meant by that passage? And do you agree with it?
ROBERTS: I know I agree with it. Now let me figure out what he meant by it.
(LAUGHTER)
I think what he meant was that judges operate as judges when they are confined by the law. When I became a lawyer, the proclamation they read for the graduates were -- they referred to the law as the wise restraints that make men free.
And judges are the same way. We don't turn a matter over to a judge because we want his view about what the best idea is, what the best solution is. It is because we want him or her to apply the law.
They are constrained when they do that. They are constrained by the words that you choose to enact into a law -- in interpreting the law. They were constrained by the words of the Constitution. They are constrained by the precedents of other judges that become part of the rule of law that they must apply.
And that cabining of their discretion -- that's what Hamilton referred to in Federalist 78. He said judges should not have an absolute discretion. They need to be bound down by rules and precedents: the rules, the laws that you pass, the precedents that judges before them have shaped.
And then their job is interpreting the law. It is not making the law.
And so long as they are being confined by the laws, by the Constitution, by the precedents, then you're more comfortable that you're exercising the judicial function.
It's when you're at sea and you don't have anything to look to that you need to begin to worry that this isn't what judges are supposed to do.
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