Topic: Proposed Intervention (Canterino v. Wilson) - Advancing Freedom &
Knowledge through Decision Making ]
Senator: Kyl
Date: SEPTEMBER 13, 2005
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KYL: One of the -- the other item that I would like to insert in the record is a memorandum. This was discussed, I believe, in Senator Biden's questioning regarding a memorandum dated February 12th, 1982, regarding proposed intervention in Canterino v. Wilson.
And there were excerpts of that read to which you were asked to respond. I'd like to have the entire memorandum inserted in the record at this point so that people can judge for themselves.
SPECTER: Without objection, it will be made a part of the record.
KYL: Thank you very much, Mr. Chairman.
Now, Judge Roberts, one of the themes in the statements of my colleagues, particularly on the other side of the aisle here, yesterday was an expression of concern that you might, as a Supreme Court justice, undo what they describe as progress. This progress is represented for my colleagues by some of the court's decisions over recent decades and also by some legislation.
KYL: My colleagues expressed a heartfelt concern for preserving this progress. Another one of my Democratic colleagues endorsed a standard that a past member of this committee articulated for evaluating nominees.
He asked: Will the nominee expand or contract freedom? You recall that. Progress and freedom: I think any American would find it quite difficult to quibble with these two ideals. I do not think that you will find a member of the Senate who would not express support for both progress and freedom, and for many of the specific reforms that have been discussed.
But as I thought about those two words last night and about my colleagues' genuine concern for protecting what they understand as progress and freedom, I began to ask myself what those two words actually mean in the context of your nomination and the court's function more generally.
When can we say that a particular decision by the Supreme Court expands or contracts progress or freedom?
Actually, it's more complicated as you stop and think about it.
For example, earlier this year, the Supreme Court issued a decision that allows the government to take one private individual's property, to transfer that property to another private individual or entity.
The court's majority held that such an action is consistent with the Constitution's public use requirement for takings of property, so long as there is some indirect benefit to the government, so long as, for example, the government expects to receive more tax revenues from the second party's use of the property.
All of the most commonly described liberal members of the Supreme Court joined in the opinion. And I'm certain that the types of involuntary, government-engineered development projects that this decision allows will be viewed by many as progress.
I'm not so sure. Is it really progress for one more politically influential private party to be able to use the government's power of eminent domain to take another less politically connected individual's property?
KYL: And this is constitutional so long as the government anticipates increased tax revenues? I don't think this precedent represents an advance of either progress or freedom, in other words.
In 1975, the court issued an important decision giving public school students the right to hearing before they're suspended for disciplinary reasons. And the net effect of these decisions, as many school administrators and teachers have told me, has been to make school discipline much harder to implement and enforce.
The procedures, for example, for removing a disruptive student from the classroom have become sufficiently involved that in many cases the school simply doesn't do it. The student remains in class and the other students' learning suffers.
The writer, David Frum, has described this line of Supreme Court decisions as the bad king's Magna Carta.
Well, many older teachers, in particular, can describe the decline in school discipline and order that followed from these decisions.
And so I'm not sure that even though many would subscribe to the decision of the court, that it really represents an advance of freedom or progress, especially if most children are less free in their school environment.
In 2003, the Supreme Court issued a decision that effectively prevents the government from outlawing child pornography if that pornography is made with computer-generated images of children.
The effect of these decisions is that a whole class of child pornography effectively can't be prohibited. Many of those who work in the criminal justice system, particularly those familiar with sex offenders and their mindset, have expressed grave concern about the decision. They believe that the existence and availability of this kind of pornography can affect the behavior of certain sex offenders, that it sends a message that their impulses are not shameful but, rather, that they're shared by others and can be indulged.
Again, I have no doubt that some view this decision as an advance of freedom. And, again, I would disagree. A world where these types of crimes occur with frequency is a world where parents are constantly afraid for their children, afraid to let them play outside alone, to go outside of their sight, even afraid to let them go on the Internet.
KYL: And I don't see this as an advance of freedom.
The conclusion that I have -- and there are other decisions we could point to as well -- but what I have come to conclude is that it is not your function as a judge to decide how best to advance progress and freedom; that these are decisions that all Americans need to be involved in making -- sometimes through their elected representatives; that the formula for creating progress and freedom in society is not predetermined, but rather, both of these values require a balance of competing values.
Society needs order and stability on the one hand; individual autonomy on the other.
That there are few absolutes.
So really the question here is how you view your role as a judge, with respect to this concept of advancing freedom and progress, especially since you cannot, for the most part, choose what cases come before you to decide.
What is your take on your role, if you were to become the chief justice of the United States Supreme Court, in considering this notion of advancing freedom and progress through your decision-making?
ROBERTS: Well, Senator, judges and justices do have a side in these disputes. They need to be on the side of the Constitution. And, in most of the areas, what the Constitution provides is that these sorts of policy debates -- which approach is better suited to promote freedom or to promote progress -- are vested in the legislative branch.
There are areas where the Constitution sets aside certain areas, in the Bill of Rights and other protections of liberty, and says that these areas are beyond the reach of the policymaking branches.
ROBERTS: And judges and justices have the responsibility to enforce those provisions in the Constitution.
But outside of that, judges and justices should not take sides in these disputes.
I think people on both sides need to know that if they go to the Supreme Court, that they're going to be on a level playing field, that the judge is going to interpret the law, that the judge is going to apply the Constitution and not take sides in their dispute.
That's what this body is for in Congress and in the state legislatures, to resolve those types of policy disputes.
And so long as the resolution is consistent with the Constitution, that's what the judges are there to ensure. And so long as they ensure that, the framers' notion was that freedom and progress would be advanced by allowing those decisions to be made by the people's elected representatives.
KYL: I appreciate that.
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