Topic: Core Values
Senator: Durbin
Date: SEPTEMBER 15, 2005
Contents
DURBIN: I have a long series of hypotheticals I won't get into, such as, all right: Would you have represented the D.C. government against the welfare families? You took pride -- you spoke to me of your pride in representing the poor people in the District of Columbia on their welfare rights.
I could ask you whether you would have taken the side of the board of education in the Brown case. Would you have taken the side of the state of Virginia in Loving? I could have gone through all those hypotheticals.
And the purpose of my original question was this: All of us are trying to get down to, what are your core values. Where would you draw a line, saying, "I do have principles and values. There are certain things I would not use my legal skills to do because they conflict with those values"?
If this is just a process, a legal contest and you'll play for any team that asks you to play, it raises a question about where would you draw the line, if you would ever draw the line.
And I think that is why I've asked this question and I want to give you an opportunity now to tell us.
Senator Feinstein asked a little earlier today about the Plyler case. You came a little bit further than you did last night in saying -- and I think is a very safe assertion -- children deserve an education. That is not exactly -- that isn't a headline.
But I think that what I'd like to get to is the original question here. As a lawyer, do you have standards and values as to the causes and beliefs that are so important to you where you would draw a line?
ROBERTS: Well, let me try to answer it this way, Senator.
People become lawyers for different reasons, all perfectly good and noble and legitimate.
People who are interested, for example, in protecting the environment often will go into the law and practice environmental law because they think that's an effective way to advance a cause in which they passionately believe.
People who are committed to the cause of civil rights may become lawyers and become civil rights lawyers and present and press those causes because they're causes in which they passionately believe.
I became a lawyer -- or at least developed as a lawyer -- because I believe in the rule of law.
The point I was trying to emphasize in my opening statement that all of these other areas -- you believe in civil rights, you believe in environmental protection -- whatever the area might be -- believe in rights for the disabled -- you're not going to be able or effectively to vindicate those rights if you don't have a place that you can go where you know you're going to get a decision based on the rule of law.
ROBERTS: It was the point I was making with respect to the Soviet constitution: filled with wonderful sounding rights; absolutely meaningless because people who suffered under that system had no place they could go in court and say, "My rights have been violated."
So that's why I became a lawyer, to promote and vindicate the rule of law.
Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust: I've defended corporations; I've sued corporations.
In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system.
I viewed that as -- I appreciate that the some may say, "Well, that sounds like you're a hired gun," to be disparaging. "You're going to take the side of whomever comes in the door first."
I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.
That's why when the chief justice welcomes new members to the Supreme Court bar, he welcome welcomes them as members of the bar and officers of the court, because that is the important role that they play.
That has significance for what types of arguments they can present and how they can present them.
DURBIN: Well, if I might say, Judge, if you've made one point many times over during the course of the last three days, it's that as a judge you will be loyal and faithful to the process of law, to the rule of law.
I think that is without question from what you've said. I accept that on its face.
But the questions which we continue to ask you really try to go beyond that. Because I said at the outset that I thought one of the real measures as to whether or not you should be on the Supreme Court goes back to a point Senator Simon had made: Would you restrict freedom in America or would you expand it?
DURBIN: When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you are trying, from my point of view, to expand freedom in America. That, to me, is a positive thing. That's my personal philosophy and point of view.
But then when you say, "If the state would have walked in the door first to restrict freedoms, I would have taken them as a client too," I wonder, where are you?
Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? Is it important enough for you to say in some instances, "I will not use my skills as a lawyer because I don't believe that that is a cause that is consistent with my values and belief"?
That's what I've been asking.
ROBERTS: I had someone ask me in this process -- I don't remember who it was, but somebody asked me, you know, "Are you going to be on the side of the little guy?"
And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath.
The oath that a judge takes is not that, "I'll look out for particular interests, I'll be on the side of particular interests." The oath is to uphold the Constitution and laws of the United States. And that's what I would do.
DURBIN: Would you at least concede that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system? And that many times the powerless, the person who has struggled and clawed their way to your courtroom, went through a wall of adversity which the power never had to face? Is that part of your calculation?
ROBERTS: Absolutely. And it's, again, what's carved above the doors to the Supreme Court: "Equal justice under law." And the judicial oath talks about doing justice without regard to persons, to rich and to poor. And that, of course, is critically important.
You do have to appreciate that there are going to be interests who, for one reason or another, don't have the same resources as people on the other side.
The idea is not to give the case to the side with the best resources, the side with the best lawyers, the side with the most opportunity to prepare it and present it. It is to decide the case according to the law and according to the Constitution.
And as case after case in the Supreme Court shows, that's often the prisoner who's sitting in his cell and writes his petition out longhand.
ROBERTS: Sometimes the Constitution is on that person's side and not on the side of the corporation with the fancy printed brief.
But the judge's obligation is to appreciate that the rule of law requires that both of those be treated equally under the law.
DURBIN: Judge Roberts, thank you very much.
Mr. Chairman, thank you.
ROBERTS: Thank you, Senator.
SPECTER: Thank you, Senator Durbin.
Judge Roberts, questions will be submitted to you within 24 hours. And you've already stated your commitment to answer the questions and you can't be totally open-ended because you don't know how many question there will be, but I have a strong inclination that however many questions there are you will be able to answer them in appropriate course.
We're now going to move into a closed session.
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