Topic: Code of Judicial Conduct
Senator: Cornyn
Date: SEPTEMBER 14, 2005
Contents
SPECTER: The hearing will continue.
We found out as soon as we had completed the recess that a vote had been called, and the senators have been over voting, which accounts for the slight hiatus here. But we're now going to proceed. And it's the turn of Senator Cornyn for a 20-minute round.
LEAHY: And I'm sure, Mr. Chairman, the judge just missed us terribly, couldn't wait for us all to get back here.
ROBERTS: Glad we're back.
SPECTER: He may have missed us under the theory that the sooner we start, the sooner we end.
(LAUGHTER)
But that principle may not apply here. Stare decisis would suggest that it does not.
(LAUGHTER)
Senator Cornyn?
CORNYN: Thank you, Mr. Chairman.
Judge Roberts, my observation is that you have been completely bipartisan when it comes to refusing to answer questions, either from this side of the aisle or that side of the aisle, that you feel would compromise your independence as a judge or violate your code of conduct as a judge.
I have to tell you, though, that there are people who may be keeping score of how many questions you're answering propounded by this side and that side. And I guess one way to sort of run the score up would be to keep asking questions that you know you can't answer and thus to claim some grievance or advantage when it comes to making that comparison. But I hope we don't do that.
I want to talk to you a little bit -- well, first of all, before we go there, I know one of the questions involved the Code of Judicial Conduct and whether you were proscribed by that and the differences between what you have felt at liberty to testify to and Justice Ginsburg did.
CORNYN: But I noticed that in the commentary to Canon 5, the Model Code of Judicial Conduct, the last sentence says this section applies to any statement made in the process of securing judicial office, such as statements to commissions charged with judicial selection and tenure and legislative bodies confirming appointment.
Is that your recollection of the code's scope?
ROBERTS: Yes, Senator.
CORNYN: And I would ask unanimous consent that that be made a part of the record.
SPECTER: Without objection, it will be made a part of the record.
CORNYN: Thank you, Mr. Chairman.
And I won't dwell on this any more, about the numbers of questions asked, but I know we're now up to about 66 questions that you've responded to on the role of a judge and your judicial philosophy, 48 on civil rights and discrimination, 44 on abortion and privacy.
Let me ask you this: If we keep asking the same question over and over and over again, but try to approach it from a slightly different way, to get you to answer a question that you don't feel you can ethically answer, are you going to give us a different answer? Or are you going to give us the same answer?
ROBERTS: I hope my answer would be the same, Senator.
CORNYN: Well, I'm sure that's the case.
We talked about the Code of Judicial Conduct and your ethical obligation. We've talked about the practical aspects of being a judge and the importance. And I guess this is not just practical; it's really a constitutional duty that judges have to maintain judicial independence, even from the legislative branch by making commitments of performance in office as a condition to your confirmation.
But I want to also ask you what I would -- I guess for lack of a better phrase -- practical reasons why it's hard, if not impossible, even if a judge wanted to, to be able to accurately predict how you might decide a particular matter.
I was interested to hear Senator Biden earlier ask you about right-to-die issues. And you said, I can't answer the question in the abstract. And he said, that's not abstract; that's real.
And you said: Well, Senator, as a legal matter, it is abstract, because the question would be, in any particular case: Is there a law that applied that governs that decision?
CORNYN: And that prompted me to think of, in addition to, as I think Senator DeWine asked you about, the case or controversy limitation in Article 3 of the Constitution that limits the manner in which you might reach a particular issue. So it requires a case or controversy.
He talked about standing and the importance of litigants actually having a stake in the outcome so they're willing to fight hard in the adversarial process.
Could you explain, for example, why the adversarial process is so important, and it's important for judges to make sure that people have an actual stake in the outcome, rather than, let's say, doing -- well, I know Senator Brownback, Senator Coburn, all of us get letters from constituents that say, "What is your position on the Base Realignment and Closure Commission?"
And why we just can't write judges letters and ask what your opinion is just sort of for an advisory capacity...
ROBERTS: Well, that actually goes back very far in our history, as you know, to the early stages when John Jay, I believe, the first chief justice, was asked for his opinion on a matter. And he made the determination that it would be inappropriate to give that kind of advice.
It was really one of the leading historical episodes that contributed to implementing the separation of powers. I think he appreciated that, if he started just giving advice on legal questions that were of concern to the president, that he would be acting more like an attorney general, and it wouldn't be separated from the executive. And then he would be in a position of giving the president advice while at the same time ruling on the legality of his conduct.
And I think the reason John Jay decided that was not appropriate for these new judges, on the new Supreme Court, to give advisory opinions is because he appreciated that they were in the judicial department, as the Constitution put it, not in the executive department -- or if the request for advice had come from the legislature.
It's an important part of the separation of powers that our courts don't give advisory opinions.
ROBERTS: Some state courts do. They have a different system of separation of powers. And in some state courts, the supreme court will give an advisory opinion. But the federal rule has always been that you have to have a constitutional case or controversy.
CORNYN: And is that a constitutional limitation?
ROBERTS: It's in Article 3, yes.
CORNYN: I mean it's not something you can take or leave?
ROBERTS: No. The requirement of an actual case or controversy is derived from the Constitution. There are some aspects of standing doctrine that are, they say, prudential; in other words, that it's up to the court whether to apply them or not. But the core requirement that the litigants have a stake in the issue, a case or controversy, is a constitutional requirement.
CORNYN: Well, in getting back to Senator Biden's question about right to die and what you believe or what your position would be if that were to come before the court, it just occurred to me you'd have to determine whether there was, in fact, a case or controversy, whether there was actually a person that had standing; that is, with a concrete stake in the outcome that brought the lawsuit so as to preserve that adversarial process.
I imagine, if you're sitting as an appellate judge, either on the circuit court or Supreme Court, you'd want to look and see what the evidence is. And maybe, for example, whether it'd make any difference in a right to die case, whether someone had a living will or not, and what the evidence was in the court below before you could really sort of make a pronouncement from on high that, yes, right to die trumps everything.
ROBERTS: Well, it's hard to know whether it trumps something until you know what the other something is. And that includes what the legislation might be.
I've had many questions before this committee about the importance of deferring to the legislature in areas in which Congress is given authority under the Constitution.
Well, as a judge, before I'd propound the idea of a right that it doesn't matter what the issue is on the other side, I'd like to know if a legislature has addressed that issue.
Now, sometimes, as you know, legislatures can exceed their constitutional bounds, and there are rights under the Constitution that individuals have that trump efforts by the legislature to address those or infringe upon them. But you need to know what the issue is in terms of the conflict between an asserted right and an asserted power of the legislature.
I don't think members of a legislative body would accept the principle that you would decide a case like that without even knowing what the legislature had enacted or what the issue was or why they had decided that this was an appropriate area of legislature. That's not deciding the controversy, it's just saying we need to have the issue narrowed in a way that courts are familiar with addressing.
CORNYN: Well, of course, juries in many instances are the fact finder, and their determination is usually binding on not only the court below, but also appellate courts reviewing that.
CORNYN: And I guess citizens would feel that they were engaged in a futile exercise of serving on juries and listening to evidence and trying to decide disputed facts if the judge on appeal was just going to say, "Let's throw that out the window. We don't really care because this is the result we want to reach in a particular case."
ROBERTS: Well, judges, when they sit down to decide a case, when the case has come into the chambers, judges don't sit and decide, "What do I think about issues under the Fourth Amendment or the Fifth Amendment or the Seventh Amendment?"
They want to know what the case is about. And that begins with knowing what the factual dispute is about and what the record is.
Then they want to know what law applies in resolving that question. And they want to know what the arguments are. That's why we have briefs on one side and briefs on the other.
And I'm sure you've had the same experience that I've had which is that you'll find the opening brief can be very persuasive, then you move on to the second one and you see it in an entirely different light.
And maybe your view of the case will change again as you consult with your colleagues on the bench or as you hear the oral argument.
I know I spent a lot of time doing those briefs and arguments. And I certainly hope they had some impact on a case from time to time.
And then when you sit down with the judges, all of these things, your view of a case is going to change in some way at every stage. And to say that it's the same thing when you sit down and ask an abstract question as when you've been through the judicial process and reached a decision, including having to reduce it to writing -- the requirement that judges write opinions is an important discipline on the decision of process. And those opinions are going to be submitted to the public. And everyone's going to be able to see your reasoning.
And so it has to be coherent and reasonable and something that can stand the glare of publicity and the scrutiny of scholars and other judges.
That's a very important discipline. It means, it's quite a bit different than saying, "What do you think about this," whatever opinion you might give.
CORNYN: I'm also, of course, intrigued by how poorly senators, presidents, and others who try to predict how a life-tenured judge or justice on the Supreme Court is likely to look at issues next year, 10 years, 20 years down the road.
CORNYN: And it just occurs to me that there's a long list of examples where life tenure and the lack of electoral or political accountability has cause judges to change the way they perhaps have looked at things over time and, I guess, how badly presidents have guessed sometimes about how a judge will decide cases in the future.
And I think one of my favorites is Teddy Roosevelt and Oliver Wendell Holmes, when he said, "I could carve more backbone in a banana than demonstrated by this justice." He was pretty hot.
So in addition to the ethical, the constitutional, the practical limitations, it just seems to me that we're engaged in a little bit of a futility here because when you're confirmed, and I expect that you will be confirmed, the designers of our Constitution expected and created a system where you would be immunized, or at least insulated, I should say, from political or other pressures.
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