Topic: Foreign Precedent
Senator: Coburn
Date: SEPTEMBER 14, 2005
Contents
SPECTER: Senator Leahy has a doctor's appointment this morning, but will be joining us shortly. We now turn to Senator Coburn for his 30 minutes.
COBURN: Thank you, Mr. Chairman.
And, again, welcome. Good morning.
ROBERTS: Good morning.
COBURN: There are so many legal terms yesterday bandied around that I was having trouble grabbing hold of, I thought I'd start out with medical terms this morning and see if you could keep up.
(LAUGHTER)
I also thought it was interesting, since you've been prophesied to have 35 years -- that's 12,675 days that the chairman prophesies that you'll be there -- that you've passed three of them. And congratulations on number three.
I want to go to something that Senator Kyl talked with you about. And I was very pleased with your answer. He asked you about referencing and using preference to select and pick precedents from foreign law yesterday. And I thought you gave a very reassuring answer to the American public.
You based your answer on two points.
One is that the democratic theory is that, in this country, with our law, the people are involved in that, both through the Senate, the House and the president who appoints you.
The other point you made is that relying on foreign precedent does not confine judges.
And I just want to kind of ask a couple of questions. Number one, the oath that you took for your appellate position and the oath that you will take states the following: that, "I, John Roberts, do solemnly swear that I will administer justice without respect of persons and do equal right to the poor and to the rich; and that I will faithfully and impartially discharge and perform all the duties incumbent upon me, John Roberts, under the Constitution and the laws of the United States, so help me God."
COBURN: My question relates to the Constitution and what is said in Article 3 that judges, both of the Supreme and inferior courts, shall hold their offices during good behavior.
My question to you: Is relying on foreign precedent and selecting and choosing a foreign precedent to create a bias outside of the laws of this country, is that good behavior?
ROBERTS: Well, for the reasons I stated yesterday, I don't think it's a good approach. I wouldn't accuse judges or justices who disagree with that, though, of violating their oath. I'd accuse them of getting it wrong on that point and I'd hope to sit down with them and debate it and reason about it.
But I think the justices who reach a contrary result on those questions are operating in good faith and trying, as I do on the court I am on now, to live up to that oath that you read.
I wouldn't want to suggest that they're not doing not doing that. Again, I would think they're not getting it right in that particular case and with that particular approach. I would hope to be able to sit down and argue with it as I suspect they would like to sit down and debate with me.
But I wouldn't suggest they're not operating in good faith to...
COBURN: Can the American people count on you to not use foreign precedents in your decision-making on the Supreme Court?
ROBERTS: You know, I will follow the Supreme Court's precedents consistent with the principles of stare decisis.
ROBERTS: And there are cases in this area, of course. That's why we're having the debate. The court has looked at those.
I think it's fair to say, in the prior opinions, those are not determinative in the sense that the precedent turned entirely on foreign law, so it's not a question of whether or not you'd be departing from these cases if you decided not to use foreign law.
And for the reasons I gave yesterday, I'm going to be looking...
COBURN: I understand that, and I respect that, and I know that you can't be in a position to make a judgment on that.
But again, for the record, I want to read what the Constitution says, that the judges, both of the Supreme and inferior court, shall hold their offices during good behavior, and that the oath that they take references only the Constitution and the laws of this country.
And, if anything, I would like to send a message that that's what their oath states. And this judicial restraint that you've spoken of, I believe, includes that oath and the definition that our founders believed when they said: Here's what you should base your decisions on; it's the Constitution of the United States and the laws.
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