Topic: Hamdan v. Rumsfeld
Senator: Feingold
Date: SEPTEMBER 14, 2005
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FEINGOLD: So let me ask you about something else, the Hamdan.
Yesterday, you refused to answer any questions regarding your conduct in the Hamdan v. Rumsfeld case.
FEINGOLD: But today you answered questions from Senator Coburn regarding this matter. So I want to follow up in order to make sure the record is complete.
You interviewed with the attorney general of the United States concerning a possible opening on the Supreme Court on April 1, 2005. Is that correct?
ROBERTS: Yes. The specifics of the details I discussed in the response to the committee's questionnaire.
FEINGOLD: And that was six days before the oral argument in the Hamdan case. Isn't that right?
ROBERTS: I don't remember the exact date of it. I know it was shortly before that, yes.
FEINGOLD: You had further interviews on May 3rd concerning a possible appointment to the court with numerous White House officials, including Karl Rove, the vice president and the White House counsel before the decision in the Hamdan case was released. Isn't that correct?
ROBERTS: The decision was June 15th...
FEINGOLD: The question here is just: Did you have further interviews on May 3rd concerning a possible appointment to the court?
ROBERTS: May 3rd, yes. Well, whatever it was, I don't remember the exact dates, but...
FEINGOLD: You've had interviews with those individuals...
ROBERTS: In the Senate...
FEINGOLD: The record seems to indicate it was on May 3rd. You met again with Ms. Miers, the White House counsel, on May 23rd. Isn't that right?
ROBERTS: I'm relying on the -- if that's what I said in the questionnaire, yes. I don't have an independent recollection...
FEINGOLD: You have no good reason to doubt that those facts are correct. You never informed the counsel, in this case, of these meetings. Did you?
ROBERTS: I did not, no.
FEINGOLD: Mr. Gonzales' advice to the president concerning the Geneva Conventions was an issue in the case. Isn't that right?
ROBERTS: I don't want to discuss anything about what's at issue in the case. The case is still pending and pending before the Supreme Court.
FEINGOLD: Well how about this one? President Bush was named a defendant in the case. Right?
ROBERTS: Yes, in his official capacity.
FEINGOLD: The Hamdan decision was released on July 15th. Is it your testimony that no work on that decision took place after July 1?
ROBERTS: No, I didn't -- that was not my testimony. The opinions in the D.C. Circuit...
FEINGOLD: Oh, you're saying in your testimony now that no work on that decision took place after July 1?
ROBERTS: Opinions in the D.C. Circuit are complete and circulated to the panel a week before they're released. That was my -- the conclusion of when work was complete. And again, I wasn't the author of the opinion. It would have been a week before it was released.
FEINGOLD: Did you read over the opinion of the concurrence after July 1? Was there any editing that took place after that date?
ROBERTS: I don't recall, Senator, and...
FEINGOLD: But when was the issue of whether you should recuse yourselves from this case -- when did that first come to your attention?
ROBERTS: I saw -- was made aware of an article. I think it was an article. I don't remember when that took place. Whenever the article was published. And then I understand the legal opinions on the other side were requested by, I believe, the chairman.
ROBERTS: And I know that those were...
FEINGOLD: You don't recall when this matter first came up? One would think it would be something you'd remember when somebody suggested you should have recused yourself.
ROBERTS: I don't remember the date of the...
FEINGOLD: How about the approximate time?
ROBERTS: I think it was some time in July.
FEINGOLD: Mr. Chairman, so the record will be complete, I'd like to submit the article from Slate magazine by Professors Gillers, Luban and Lubet and a letter sent to you responding to Professor Rotunda's criticisms of their position. And I also want to submit an article by these three law professors that was published in the Los Angeles Times on this topic. I don't want to take anymore time on this, but I think these professors...
SPECTER: Without objection, it will be made a part of the record.
FEINGOLD: Thank you, Mr. Chairman.
I think these professors very convincingly answer Professor Rotunda's views and point out that his analysis of the case law is not particularly persuasive. And I'd urge any of my colleagues who really want to understand the issue with Judge Roberts' participation in the case, rather than just dismissing it because it's inconvenient, that they take a look at it and actually see what the issues were here.
But I appreciate your answer to those questions.
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