Topic: Criticism of Federal Judiciary
Senator: Schumer
Date: SEPTEMBER 13, 2005
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SPECTER: Senator Schumer?
SCHUMER: Thank you, Mr. Chairman.
And thank you, Judge.
SCHUMER: It's been a long day, and I guess we have a little bit longer to go.
But you've been talking something about baseball. We've been talking about it this morning.
I'll start out by pitching you something of a softball, an issue I think on which reasonable Americans can agree, and those are the recent and abhorrent attacks on the federal judiciary.
Many Americans have become concerned that the judiciary have come under escalating and, many would say, inappropriate and unjustified criticism from certain quarters -- not just criticism of the legal reasoning, but it goes way beyond that. The rhetoric gets pretty hot.
And, as you know, one of your mentors and our late Chief Justice Rehnquist was a passionate defender of the independence of the judiciary. I didn't agree on with him on a whole lot of things, but I sure respected that. And he did a good job both with our committee and everywhere else, making sure that happened.
So you will be chief justice. We haven't talked about your role much here much as chief justice -- the chief, the leader of the courts, the head of the judiciary. And I think one of your important roles is to defend the independence of the judiciary.
So I'm going to read you a few statements that were made about federal judges in recent months. Televangelist Pat Robertson claims that, quote, "An out-of-control judiciary is the single greatest threat to democracy," unquote; that judges are creating a, quote, "tyranny of oligarchy," unquote; and that the threat posed by the federal judiciary is, quote, "probably more serious than a few bearded terrorists who fly into buildings."
Do you find that -- do you disagree with that statement?
ROBERTS: I do disagree with that conclusion, Senator. I think it's perfectly appropriate for people to criticize decisions of judges. That comes with the territory. It's a healthy thing. That type of criticism and analysis, saying the judge got it wrong, the court got it wrong, is healthy and good.
ROBERTS: And the only thing I would say is I'm not sure whether that criticism is along that lines.
But personal attacks on judges for doing their best to live up to the judicial oath, that is something that I don't think is appropriate.
SCHUMER: Isn't this language -- I'm asking about this language. This doesn't seem to be a legal didaction about a court case. When somebody says...
ROBERTS: No, it's not an analysis.
SCHUMER: ... judges are probably more serious -- the threat posed by federal judges is, quote, "probably more serious than a few bearded terrorists who fly into buildings," isn't that kind of quote abhorrent and inimical to our system?
ROBERTS: I don't agree with that. And all I'm saying is that I think people have a right to be critical of judges, but attacks on judicial independence are not appropriate because judges -- and certainly even judges with whom I disagree on the results or particular merits -- they should not be attacked for their decisions. The decisions can be criticized, but attacking the judges, I think, is not appropriate.
SCHUMER: Would you be a little stronger than that in terms of language like this? I mean, "not appropriate," is kind of mild in these kinds of sort of inflammatory-type statements about the judiciary that you may soon be entrusted with protecting.
ROBERTS: Senator, I said yesterday that if confirmed I would be vigilant to protect the independence and integrity of the Supreme Court and the judicial branch, and that is true. An independent judiciary is one of the keys to safeguarding the rule of law. Again, I said that yesterday and I believe that. And to the extent the judiciary is attacked, I will be vigilant to respond and defend it.
SCHUMER: Let me read you two more and just tell me how you'd characterize them.
Conservative lawyer and author Edwin V. Aris (ph) suggested that Justice Kennedy, an appointee of Ronald Reagan, ought to be impeached for his decisions, and quoted Stalin's infamous problem-solving solution of, quote, "no man, no problem."
And Tony Perkins of the Family Research Council said, quote, "The court has become increasingly hostile to Christianity and it poses a greater threat to representative government more than anything, more than budget deficits, more than terrorist groups."
Do you strongly disagree?
Don't those statements turn your insides a little bit?
ROBERTS: You know, again, I don't agree with them.
But it's a free country. They're free to say what they wish.
But the issue of impeachment was resolved in the Salmon Chase hearing. The basic principle was established: You don't impeach judges if you disagree with their decisions.
That's not what the impeachment provision is for.
SCHUMER: Take it and just answer.
If you became chief justice, you would do whatever you could to dispel these kinds of notions and oppose people who said things like this when they say these things?
ROBERTS: Well, I would do what I can, Senator, to make clear to people -- and I do think it's an important educating function -- that what judges do promotes the rule of law, and that the rule of law preserves liberties for all Americans.
I'm obviously not going to infringe anybody's First Amendment rights. People are free to say what they are.
SCHUMER: I'm not asking that.
I'm asking just your First Amendment opinion of these kinds of things, and the most I guess you said is you disagree.
ROBERTS: Senator, people from all across the political spectrum have attacked judges. They do it now. I've seen some very virulent attacks from all over the political spectrum and certainly throughout history.
Again, judges can stand the criticism of their opinions, but personal attacks I think are beyond the pale.
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