Topic: Do You Fit The Mold of Thomas and Scalia?
Senator: Schumer
Date: SEPTEMBER 14, 2005
Contents
SCHUMER: I just have one more question here.
The president, as I said -- and this motivates some of us -- he said he wants to nominate judges in the mold of Thomas and Scalia.
I want to ask you: Are you in the mold of Thomas and Scalia? The president said he wanted to nominate people that way.
ROBERTS: Well, Senator, I'll give the same answer I gave yesterday to Senator Graham when he asked if I would be in the mold of the chief justice.
SCHUMER: OK.
ROBERTS: And the answer is: I will be my own man on the Supreme Court, period.
SCHUMER: I appreciate that.
Do you think they are activist judges?
ROBERTS: I'm not going to criticize them with respect to any general description of that sort.
I'm sure there are cases where I would agree with them and there are cases where I would disagree with them, as with all of the justices.
SCHUMER: OK.
Now -- by the way, I'll note, I don't think I have time here, but you did criticize in a memo back when you were working in Attorney General Fred Fielding's office, Brennan and Marshall as activist judges.
Now, I don't think that was the official position of the Reagan administration, so it seemed to be your opinion.
Can you tell me in 30 seconds, so I can just ask one more question: How is it different not to want to characterize Justices Thomas and Scalia, but it was OK to characterize Justices Marshall and Brennan?
Is that...
ROBERTS: Well, that was -- it was a reflection of the views of the attorney general at the time. And that was part of the...
(CROSSTALK)
SCHUMER: But it wasn't official Reagan policy?
ROBERTS: I don't think it was official policy. It was an expression that the attorney general had made on various occasions.
SCHUMER: Let me just say, sir, in all due respect -- and I respect your intelligence and your career and your family -- this process is getting a little more absurd the further we move.
You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability, but when we try to find out what modesty and stability mean, what your philosophy means, we don't get any answers.
It's as if I asked you: What kind of movies do you like? Tell me two or three good movies. And you say, "I like movies with good acting. I like movies with good directing. I like movies with good cinematography."
And I ask you, "No, give me an example of a good movie." You don't name one. I say, "Give me an example of a bad movie."
SCHUMER: You won't name one. Then I ask you if you like "Casablanca," and you respond by saying, "Lots of people like 'Casablanca.'"
(LAUGHTER)
You tell me it's widely settled that "Casablanca" is one of the great movies.
SPECTER: Senator Schumer, now that your time is over, are you asking him a question?
SCHUMER: Yes.
(LAUGHTER)
I am saying, sir -- I am making a plea here. I hope we're going to continue this for a while, that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.
SPECTER: We will now take a 15-minute break, reconvene at 4:25.
ROBERTS: Mr. Chairman, could I address some of the...
SPECTER: Oh, absolutely. Absolutely.
I didn't hear any question, Judge Roberts...
ROBERTS: Well, there were several along the way.
(CROSSTALK)
LEAHY: ... want to break anyway. You go right ahead.
ROBERTS: I'll be very succinct.
SPECTER: You are privileged to comment.
This is coming out of his next round, if there is one.
(LAUGHTER)
SCHUMER: I guess there'll be.
ROBERTS: First, "Dr. Zhivago" and "North by Northwest."
(LAUGHTER)
SCHUMER: Now, how about on the more important subject of what...
(CROSSTALK)
SPECTER: Let him finish his answer. You're out of time.
(LAUGHTER)
SCHUMER: Not out of movies.
ROBERTS: The only point I would like to make, because you raised the question how is this different than justices who dissent and criticize, and how is this different than professors -- and I think there are significant differences.
The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues, went through the process of issuing an opinion.
And in my experience, every one of those stages can cause you to change your view.
The view you ask then of me, "Well, what do you think, is it correct or not?" or "How would you come out?" That's not a result of that process. And that's why I shouldn't respond to those types of questions.
Now, the professor, how is that different? That professor is not sitting here as a nominee before the court. And the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is turning this into a bargaining process.
It is not a process under which senators get to say, "I want you to rule this way, this way and this way. And if you tell me you'll rule this way, this way and this way, I'll vote for you."
That's not a bargaining process.
Judges are not politicians. They cannot promise to do certain things in exchange for votes.
And if you go back and look at the transcripts, Senator, I would just respectfully disagree. I think I have been more forthcoming than any of the other nominees. Other nominees have not been willing to tell you whether they thought Marbury v. Madison was correctly decided. They took a very strict approach.
I have taken what I think is a more pragmatic approach and said, if I don't think that's likely to come before the court, I will comment on it.
ROBERTS: And, again, perhaps that's subject to criticism, because it is difficult to draw the line sometimes. But I wanted to be able to share as much as I can with the committee in response to the concerns you and others have expressed, and so I have adopted that approach.
SPECTER: 4:25 -- we're anxious to move ahead to try to conclude your testimony, Judge Roberts, as early as we can. I know you'll agree with that.
ROBERTS: Thank you, Mr. Chairman.
Thank you for the accommodation.
(RECESS)
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