Topic: Hamden Case
Senator: Cornyn
Date: SEPTEMBER 14, 2005
Contents
I know there were questions about -- I want to move quickly to your participation in a lawsuit. You say it was a Hamdi case? Hamdan case?
ROBERTS: Hamdan.
CORNYN: Hamdan?
ROBERTS: I'm sorry. Hamdi was the one in the Supreme Court.
CORNYN: Sometimes I confuse those.
ROBERTS: It's a common source of confusion.
CORNYN: And we've had a little back and forth. I think Senator Feingold asked about the ethics about your participation. Senator Graham, I thought, made a very good point in talking about, if a president wanted to disqualify a judge in a case, just call the judge up and tell him you're being considered for a federal appointment, which certainly can't be right.
CORNYN: But do you know for a fact that Justice Breyer, when he was being considered about a possible nomination to the Supreme Court, sat and decided seven cases while sitting on the D.C. Circuit Court of Appeals. Are you familiar with that statistic?
ROBERTS: No, I'm not, Senator.
CORNYN: OK. Well, our research reveals that that is, in fact, what happened. And so if Justice Breyer could participate fully in the court's decision-making process while being considered by President Clinton for nomination to the Supreme Court, it strikes me that we should not have a different standard -- and I'm not asking you to comment on that, because you said you're not familiar with Justice Breyer's record.
But if that's true, and I believe it is -- that he sat on seven different cases involving the United States government and the executive branch while he was being considered for the Supreme Court -- we shouldn't hold John Roberts to a different standard.
And that's my view.
We've got about five minutes. Let me just ask you, just as a practical matter: I worry when I see that the Supreme Court's opinions are so fractured and divided as you alluded to, I believe, on the question of the Ten Commandments.
The only one that agreed with both decisions, that the Ten Commandments could be displayed in Texas but not in Kentucky, was Justice Breyer.
And there were 10 opinions in those two cases, which led the former Chief Justice Rehnquist to quip: "Well, that's more opinions than we have justices" -- 10 opinions for nine justices in that case, which decided the constitutionality of the Ten Commandments.
Well, it strikes me that one of the goals of the court ought to be -- of any court ought to be -- to write decisions that can be read and understood by a person of reasonable intelligence and, frankly, Judge, I have to tell you that lawyers struggle -- no doubt circuit court judges, trial court judges, such as in the court you serve on now, struggle to try to figure out just what in the world the law actually is.
And it breeds additional litigation, a lot of money, a lot of time spend just litigating issues that the court could, if it had the will, clearly decide.
CORNYN: And in some ways I think it leads some observers to wonder whether the Supreme Court is firmly grounded in the reality of how their decisions will actually be read and understood and implemented, either by lower courts or by litigants who are trying to figure out what is the law, so how can I conform my behavior and how can I make plans in a way that I can rely upon is legal.
I'd be interested in your observations.
ROBERTS: Well, Senator, I hope we haven't gotten to the point where Supreme Court opinions are so abstruse that the educated lay person can't pick them up and read them and understand them.
You shouldn't have to be a lawyer to understand what the Supreme Court opinions mean.
One of the reasons I've given previously for admiring Justice Jackson is he was one of the best writers the court has ever had. And I think you didn't have to be a lawyer to pick up one of his opinions and understand exactly what his reasoning is and why he's saying that. And if he's citing and relying on precedents, he can cite them and explains them. They're not written in jargon or legalese.
But an educated person whose life, after all, is being affected by these decisions can pick them up and read them, and you don't have to hire a lawyer to tell you what it means.
I hope we haven't gotten to a point where that's an unattainable ideal.
Now I'm not suggesting that I've always lived up to that. And I'd hate to have somebody go back and look at my opinions and critique them under that exacting standard.
But I do think that's something that it's worth shooting for, at least in most cases, that opinions should be accessible to educated people without regard to whether they're lawyers or not.
CORNYN: I think your experience as both a lawyer practicing before the Supreme Court and advising clients as well as being a circuit court judge and trying to apply those as an intermediate appellate court will help you understand that and the importance of that.
In the last few seconds we have here, you know, I was reflecting on the Ten Commandments cases, and I was thinking that as crazy as it struck me that they would uphold it in Texas, but strike it down in Kentucky, you know, I wondered -- I'm glad they didn't take out their blue pencil and try to edit the Ten Commandments, because several of them, "Thou shalt not murder, thou shalt not steal, thou shalt not give false testimony against your neighbor," it's hard for me to see how those violate the establishment clause. But maybe that's another topic for another day.
CORNYN: Thank you very much, Judge.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Cornyn.
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