Topic: Unwillingness to Disagree with other Judges
Senator: Schumer
Date: SEPTEMBER 14, 2005
Contents
SCHUMER: But let me ask you a few other questions here because I think you're cutting back a little on what you said yesterday, at least, if you look at the whole picture here and your unwillingness to disagree with Justice Thomas.
But let me ask you this about judges in general. You sit on a court, correct?
ROBERTS: Yes.
SCHUMER: OK. And sometimes you dissent. And that's routine, not just for you but for every judge.
ROBERTS: It's rare on our court, I'm happy to say.
SCHUMER: Yes, it is. It is. That is true. I've noticed that. But it happens in courts all the time.
OK. And in doing so, the dissenting judge is criticizing the majority opinion, right? Disagreeing with it? And I take it this happens on the Supreme Court quite often? And, in fact, there aren't that many unanimous Supreme Court cases on major cases these days.
ROBERTS: Actually, one point that statistics always show that more cases were unanimous than anything else.
SCHUMER: But there are a lot of dissenting...
ROBERTS: There are a lot.
SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?
Let's go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?
ROBERTS: Yes.
SCHUMER: In speeches, law review articles, it's a healthy process, wouldn't you say?
ROBERTS: I agree with that. Yes.
SCHUMER: And you did this occasionally when you were in private practice?
ROBERTS: Yes.
SCHUMER: OK. Nothing unseemingly about that?
ROBERTS: No.
SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That's what they do for a living.
And that's part of being a good lawyer.
And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?
ROBERTS: On occasion, yes.
SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, "Roe was wrongly decided and should be overturned," unquote. Right?
ROBERTS: Yes.
SCHUMER: OK. But in this hearing room, you don't want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary.
You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you've done it until very recently. You could probably do it before you just walked into this hearing room.
And if you're confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room -- when it is more important than at any other time that the American people, and we the senators, understand your views.
Why this room should be some kind of a cone of silence is beyond me. The door outside this room doesn't say, "check your views at the door."
So your failure to answer questions is confounding me. You've done it in instance after instance after instance after instance.
What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day?
In each case, they have to state their opinion. They have to do it as part of their job, if you will -- writing a brief, rendering an opinion, writing an article.
In each case, they're stating their views, which might bias them. You've done it.
Yet, only here you can't state your views. If the argument -- and, by the way, there's a very god countervailing reason that you should state your views, because, as the founding fathers so constructed, this is the one time you go before an elected body before a lifetime appointment.
SCHUMER: And it seems to me this is something of an argument of convenience. Senator Specter said it well. He said you'll answer as many questions as you have to to get confirmed. That may be the actual fact, but it's not the right thing to do, in my judgment.
And so, please tell us why is the bias, why is the fact that you have already stated an opinion, any different when you sit in this room in terms of jeopardizing your future as a judge than it is when you're doing all these other things that you've done?
And let me just remind you -- going to give you a chance the answer this -- but I think it's bothering a lot of people, in this room and out of this room.
Justice Ginsburg, people who have sat in your very chair, just about every single justice, with one or two exceptions, has given their opinions of existing cases. Justice Ginsburg said on Roe v. Wade, "My view is that if Roe had been less sweeping people would have accepted it more readily." Do you think she was unable to keep an open mind in cases implicating Roe? Do you? Do you think she was unable to keep an open mind? Just answer me about her, not about what...
ROBERTS: Senator, I'll explain why she expressed her views on that particular issue. It was an explanation that she gave at the time, that she had written extensively on that subject, and she thought that her writings were fair game for discussion. She took a different view...
SCHUMER: But she -- excuse me, because I want to -- she would be expressing an opinion, which might yield bias, whether she wrote before or not. She did it over and over again. She praised Learned Hand's First Amendment decision in :Masses" publication. I don't think she was biased to keep her mind open on courts in that line. As Joe Biden said, in Moore v. City of Cleveland, she candidly -- and I don't think she had writings on that one -- she expressed the opinion has difficulties.
And other justices have done it: Justice Breyer talked about U.S. v. Booker; Justice Powell about Miranda; Justice Souter about Miranda. Didn't bias him in the Dickerson case. Not all have these people had previously written.
You can make a distinction to every single example I give. You can say, well, she wrote on that one.
SCHUMER: But when you add it all up, you are being less forthcoming. I know you're doing what you feel is right. But you're being less forthcoming with this committee than just about any other person who has come before us. You are so bright and you know so much, but there's another aspect to this, which is letting us know what you think.
And you've set up your own little construct. It's not really the Ginsburg precedent, or it isn't Canon 5, which you cited repeatedly at your Court of Appeals hearing.
And so let me ask you this one question and then you can answer it in general: Has there been any judge that you're aware of who has had to recuse himself or herself because of what they said at a confirmation hearing?
Can you name for me a judge who you think was biased or not able to render justice because they gave their opinion at a confirmation hearing, sitting at this table as you do?
ROBERTS: I think because the justices have followed the approach that I am following -- and as I said, I've gone back and read every one of the transcripts for the justices -- they have avoided commenting on whether they think decisions were correctly decided or not.
If you look at what Justice Ginsburg said when she was asked whether she thought the Maher and Harris cases were correctly decided, you will see she said, "I'm not going to comment on that." She said, "I know what the precedents are, I have no agenda to overrule them, and that's all I'm going to say."
SCHUMER: She commented on many other cases, as you went through with Senator Biden yesterday, and as we've gone through a little bit here. She commented on many different cases, didn't she?
ROBERTS: My understanding...
SCHUMER: There were reasons, but she did comment on other cases, didn't she?
ROBERTS: My understanding of the cases she felt appropriate to comment on, as I said, were the ones where she had already written on it. And she said, "I think my writings are appropriate."
SCHUMER: There are no cases she commented on where she hadn't written?
ROBERTS: I thought she adhered to her view.
Her view was "no hints, no forecasts, no previews." That's exactly what she said. That's an exact quote from her hearing transcript.
SCHUMER: I have to say, sir, I disagree with you.
I've looked at her testimony. She didn't comment on some cases and commented on others.
SCHUMER: If you look at how many she commented on and how many she didn't, it's a far different balance than you, who have commented on Marbury, Brown, Griswold and not much else.
And each time, even when we talked yesterday about Wickard v. Filburn -- and it's a 1942 case, it's at the root of a large -- it's a trunk of a large tree of constitutional law, you were unwilling to comment.
And of course you say it might come before the court, but that's a prediction. Some may, some may not. Maybe a Brown case would come before the court. Maybe a Griswold case would come before the court.
And if you had wanted to, you could have easily said those may come before the court and not answer those. It's sort of your own little way of doing it.
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