John Roberts Confirmation Hearing / Senate Judiciary Committee / Witness Headon / 1400 - 1500
ROBERTS CONFIRMATION HEARING:
Senate Judiciary Committee Hearing on the nomination of Judge John G. Roberts, Jr. to be Chief Justice of the United States Supreme Court. Following opening statements by Chairman Specter and Ranking Member Leahy each Senator will give 10-minute opening statements. The following presenters will introduce Judge Roberts: Senator Richard Lugar, Senator Evan Bayh and Senator John Warner. Judge Roberts will then be sworn in and will provide the Committee with a 15-minute opening statement. At the conclusion of Judge Roberts's statement the Committee will adjourn for the day.
HEADON / STIX JUDGE JOHN ROBERTS CONFIRMATION HEARING STAKEOUT
RS 25/ X79/ Slugged: 1330 ROBERTS SO X79 & 1430 ROBERTS SO X79
1400-1500
14:00:28 Roberts walks by
14:00:38 Thompson walks by
14:14:21 back shot Roberts back into hearing room.
14:13:25.5 [ the committee is on a recess ]
14:14:09.4 speck senator graham, you're
14:14:10.3 recognized for your o statement. >> thank you, mr. chairman. thanks for the 7th inning s we all very much appreciate it. judge roberts, playing a little bit off of what my colleague senator
14:14:25.5 i don't think you expect i to be easy and having to listen to 18 senators proves the fact that it easy. but i hope that we will live up to our end of the bargain to make it fair. and fair is something that comes around in september in
14:14:41.4 south carolina or it can be an idea the idea of treating you fairly is something very important to me, because not only are you on display, but the senate is on display. and senator kennedy s something that i disagree
14:14:57.0 with, but he's very passionate in he said the centra whether or not you will embrace policies, a certain set of policies of whether or not you will roll back certain policy decisions. i respectfully disagree with se
14:15:12.3 to me, the central issue befor the senate is whether or not the senate will allow president bush to fulfill his campaign promise to appoint a well-qualifi constructi court. and in this case, to appoint a chief justice to the supreme
14:15:31.3 court in the mold of just rehnquist. he's been elected president twice, he has not hidden from the public with his view of a supreme court justice sho
14:15:44.0 and the philosophy tha they should embrace. and my opinion, by picking you, he has lived up to his end of the bargain with the american people, by choosing a well-qualified constructionist. you have been described
14:16:00.6 as brilliant, talented and well-qualified and that's by democrats. the question is: is that enough in 2005 get conf maybe not. professor michael garehart has
14:16:19.7 written an article in 2000 called "the fe appointments process" and i think he has given some advice to our democratic friends in the past and maybe recently about the confirmation process that we're engaged in today. he's written the constitution establishes a presumption of
14:16:36.4 confirmation that works to the advantage of the president and his no i agree with that. elec we're not here to debate how to solve all the natio
14:16:51.7 we're not here to talk about liberal philosophy vers philosophy and what's best for we're here to talk about you. and whether or not you are qualified to sit on the supr court, whether or not you have the intellect, the integrity
14:17:08.9 and the character and it has been said in the past, by members of this committee, senator kennedy i believe, is recognized by most senators that we'r charged with the responsibility of approving justices, if their views always coincide
14:17:25.4 with y we're really interested in knewing whether the nominee has the background, exper qualifications integrity to handle the most sensitive, important and responsible being on the supreme court. if you're looking for consistency, you have prob
14:17:40.9 come to the wrong place. because the truth of the matter is that we're all involved in the electoral process and we have different agendas. your memos are going to be talked about. the memos you wrote while you
14:17:57.8 were working for president reagan and bush i, in my opinion, reflect a conservative lawyer advising a conservative pr policies. and to some, those poli no sense.
14:18:13.4 those policies are out of the mainstream but thi is about whether or not qualified. and whether or not reagan conservativism is in the mainstream.
14:18:29.7 affirmative quotas? from a conservative of view, no.
14:18:33.4 from a conservative point of view, we don't want federal judges setting the value of someone's wag benc and you wrote about that. now, some people want that. but conservatives don't. environmental policies, we want a clean environment, we don't want to ruin the economy
14:18:48.4 in t we want to be able to build levees to protect cities. conservative view of a lot of issues versus our friends on the o side. the election d that shakes out. we're here to determine whether or not you and all
14:19:05.7 you've done in your life makes you a fitting candidate to b on the supreme court. before we got here, the senate was may 23rd of this year i engaged in a compromised agreement with seven democrats and seven republicans to
14:19:21.5 keep the senate from blowing itself up. you're the first nom that we've dealt with in any significant manner after that agreement. there's plenty of blame to go around, judge robert our wish, i'm sure we did things in committee that
14:19:36.7 were very unfair to democratic part and at the time of that agreement, there were 10 people being fil the first time in the history of the senate in a partisan manner that were going t on the court of appeals. we were in chaos, we were
14:19:53.9 at each other's throats and since may 23rd, we've done better. the senate has gotten back to a more traditional role when it comes to judges and as senator specter described in the committee, we've done good things on this committee and the senate as a whole.
14:20:09.1 i hope we will take the chance to start over because the public appro senate now is in the 30s. and that's not your fault, judge roberts, it' we have an opportunity as senators to show that we can disagree based u
14:20:23.5 philosophy but give you a fair shake. the question is whether we will rise to the occasion. i'm hopeful we will, based on the statements being made. what is the standard for a senator to confirm a suprem whatever the sen be. and really that's the wa
14:20:41.2 should be. but there should be some goals, in my opinion. the way we condu ourselves, one of the goals we should have is to make sure we don't run good people away. from wanting to be i don't know what it's like to sit at home and turn on the television and watch a
14:20:58.6 commercial about you, in the presence of your wife and your kids that say some pretty unfl that's not just a problem you faced, i'm sure democratic nominees have faced the same type problem. we shouldn't in our
14:21:15.0 standard, trying to come up with a standard, invalid election. the president won. the president told us what he's going to do and he did it. he picked a strict constructionis the supreme court. if anybody's surprised, they weren't listening to the la
14:21:33.3 roe v. wade: it divides america. most people would like to see the decision stand, eve though we're decided 5 of the idea of abortion on
14:21:44.2 my good friend, from california, has expressed a view about roe v. wade, which i completely understand and re i can just tell you, judge roberts, there of women in south carolina who have an opposite vi abortion.
14:22:02.5 if we were to make our votes, base our votes on that one principle, just ginsberg would not be justice ginsberg. in her writing, she embraced the idea of federal f
14:22:15.0 abortion. she indicated that an abortion right was based on the equal protection constitution. i dare say that 90% of the repu pro-life. i dare say that 90% of the democratic
14:22:31.4 pro-choice. justice ginsberg got 96 votes. even though she expressed a view of the federal government's role in abortion that i completely disagree with and i think most
14:22:47.4 conservatives disagree with. there was a time not too long ago, judge roberts, where it was about the way you lived your life, how you cond what kind of lawyer you were. what kind of man or woman you were.
14:23:03.1 not whether you had an allegiance to a specific case or a particular cau let's get back to those days. let's get back to the days where the gins the scalias can be pushed and pressed but they can be honored for their commitment to the law
14:23:19.2 and the way they lived life. let's get back to the good old days where w understood that what we were looking for was well-qualified people to sit on the highest court of the land, not political clones
14:23:33.8 of our own philosophy. the reason i signed the agreement more than anything else was that i love the law. the role of the law in our society is so important. you take out the role of law and you don't have a democracy. the law, judge roberts, to me
14:23:52.2 represents a quiet place in american discourse. politics is a lousy, loud, noisy and destructive place. but the courtroom is a quiet place where the weak can challenge the strong and the unpopular can be heard.
14:24:07.2 i know you will honor the role of law in our country. and that you will be a judge that we all can be pro of. god bless you and your family. >> mr. specter: thank you very
14:24:22.4 much, senator graha senator sc >> mr. schumer: thank y chairman. and judge roberts, welcome to you and mrs. roberts, your parents, your family, your two beautiful children. i join my colleagues in congratulating you on your nomination to the
14:24:36.7 position of chie united states. now, this is indisputably the rarest opportunity in american government, in the entire history of th republic we have had but chief justices. but the responsibility is
14:24:53.6 as great as the opportu rare. the decisions of the supreme court have a fundamental impact on people's lives and the influence of a chief justice far outlasts that of a president. as the youngest nominee to the
14:25:08.5 high court's top seat in 204 years, you have the potential to wield more influence over the lives of the citizens of this country than any jurist in i cannot think of a more awes resp
14:25:24.6 awesome not in the way my teenage daughter wou the word, but in the biblical sense of the angels trembling in the presence of god. but before you can assume that responsibility, we senators, on behalf of the people, have to exercise our own responsibility.
14:25:43.0 fundamental to that responsibility is our obligation to ascertain your legal philosophy and judicial ideology. to me, the pivotal question, which will determine my vote, is this: are you within the mainstream, albeit
14:26:01.3 the conservative mainstream? or are you an idelog, who will seek to use the court to impose your views upon us as certain judges, and present, on the left and on the right, have attemp do.
14:26:17.1 the american people ne to learn a lot more about you before they and we can answer that question. you are without question an impressive, accomp brilliant lawyer. you're a decent and h man.
14:26:31.9 you have a remarkable resume. there are those who say your outsta accomplished resume should be enough. that you should simply promise to be fair and that we should confirm. i dis
14:26:46.9 to me, the most important function of these hearings, because it's the most important qualification f a nominee to the supreme court, is to understand your legal philosophy and judicial ideology.
14:27:02.5 this is especially true now that judges are largely nominated through an idealogical prism by a president who has admitted he wants to appoint justices in the mold of scalia and thomas. to those who say
14:27:20.3 ideology doesn't matter, they should take their quarrel to president bush. i began to argue that a nominee's judicial i crucial four years ago. then i was almost alone. today, there is a growing a
14:27:37.0 gathering consensus on the left and on the right that these questions are legitimate, important and awful crucial. therefore, i, and othe on both sides of the aisle, will ask you about your views.
14:27:52.0 here's what the american people need to know beyond your they need to know who you are. and how you think. they need to assess not only the sharpness of your mind, but the fullness of your heart. they need to believe that an
14:28:08.4 overachiever can identify with an underdog who has nothing but the constitution on his side. they need to understand that your first class education and your advantaged life will not blind you to the plight of those who need help and who rely on the
14:28:25.6 protections of the constitution, which is every one of us at one point or another. they need to be confident that
14:28:33.1 your claim of judicial modesty is more than rhetoric. that your praise of legal stability is more than l service. they need to know, above all, that if you take the stewardship of the high court, you will
14:28:47.7 not steer it so far out of the mainstream that it flounders in the shallow waters of extremists' ideology. as far as your own views go, however, we only have scratched the surface.
14:29:03.8 in a sense, we have seen maybe 10% of you. just the visible tip of the not the 90% that is submerged. and we all know that it is the ice beneath the surface that can
14:29:20.7 sink the for this reason, it is our obligation to ask and your obligation to answer questions about your judicial philosophy and l if you can't answer these questions, how are we to determine whether you're in the
14:29:36.6 mainstream? a simple resume, no matter how distinguished, c answer that question. so, for me, the first criteriaon upon which i'll base my vote is whether you will answer questions fully
14:29:51.2 fo we don't want to trick you, badger you or play a game of gotcha. that's why i met with you privately three times and that's why i gave you a list of questions in advance of the hearin it's not enough to say you will be fair. if that were enough, we'd have
14:30:07.2 no need for a hearing. i have no doubt you believe you will be a fair judge. i have no doubt that justice scalia thinks he is a fair judge and that justice ginsberg thinks she is a fair judge, but in gace after case, they rule differently.
14:30:22.7 they approach the constitution differently and they affect the lives of 280 million americans differently. that is so, even though both scalia and gin that they are fair. you should be prepared to explain your views of the efficient amendment and civil
14:30:41.3 rights and environmental rights, religious liberty, pr rights, women's ri a host of other issues relevant to the most powerful lifetime post in the nation. now, having established that ideology and judicial philosophy
14:30:54.9 are important, what's the best way to go about questioning on these subjects? the best way, i believe, is through understanding your views about particular past ca not future cases that haven't been decided, but
14:31:11.5 past, already-decided cases. it's not the only way but it's the best and most straight-forward way. some have argued that questioning a nominee about his or her personal views of the constitution or about deci
14:31:26.9 interi about a future case. it does nothing of the sort. most nominees who have come before us, including justice ginsburg, whose precedents you often cite, have answe when she was a nominee, justice ginsburg gave lengthy answer
14:31:46.0 to scores of questions about constitutional law and decided case including individual autonomy, the first amendment, criminal law, choice, discrimination and gender equality. although there were places she sea said she did not want to answer, she spoke ab
14:32:01.4 dozens of supreme court cases and often gave her unvarnished impressions, suggesting that that some were problematic in their reasoni and others were important in their constitutional principles. and nominee after nominee prosecute powell to thomas
14:32:17.9 to briar answered numerous questions about decided cases and no one ever questioned their fitness to hear cases on issues raised hear so, i hope you will decide to answer questions about decided cases, which so many other nominees have done.
14:32:33.4 if you refuse to talk about already-de the burden, sir, is on you. one of the most preeminent litigators in ame to figure out a way plain engl
14:32:49.1 us determine whether you will be a conservative but mainstream conservative chief justice or an id let me be clear, i know you're a conservati i don't expect your views to mirror mine. after all, president bush won the election. and everyone understands that
14:33:07.0 he will nominate c to the court. but while we certainly do not expect the court to move to the left under the president, it should not m right. you told me when we met that you are not an idealog and you share my aversion to idealogs.
14:33:24.2 yet, you've been embraced by some of the most extreme idealogs in america, like the leader of operation rescue.
14:33:31.1 that gives rise to a question many are asking. what did they know that we judge roberts, if you want my vote, you need to meet criteria. first, you need to
14:33:46.2 answer questions fully so we can ascertain your judic phil and second, once we have a your p be clear that it is in the broad mainst judge roberts, if you answer i
14:34:02.1 qu and convince me you're a jurist in the broad mainstream, be able to vote for you and i would like to be able to vote for you. but if you do not, i will not be able to vote for you. mr. chairman, i have high hopes for these hear i want the american -- i
14:34:18.3 want and the american people want a dignified respectful hearing process: open, fair, thorough, above board. one that not only brings dignity, but even more imp information about judge roberts'
14:34:34.2 views and ideology to the american people. i, along with all of america, look forward to hear testimony. >> mr. specter: thank you senator schumer, sen cornyn? >> thank you, mr. chairman.
14:34:49.3 let me extend a warm welcome to your and your family for the he as the 15th speaker in the order of seniority here, i recall the adage i learned when i first came to washington that everything's been said, but not everyone has said it yet and perhaps by the time
14:35:05.6 this hearing is over, this week, you will have fuller appreciation than you do now for that. but, of course, you are a known quantity, so to speak, to this community and to this senate, having been confirmed by unanimous consent
14:35:20.6 just two short years ago. and i want to extend the compliment to you on your judicial service. you have served with distinction in your curren capacity. while the importance of your nominat justice of the united states cannot be overstated,
14:35:37.1 it seems as though each new nomination to the court brings an element of drama, somewhat akin to a election. indeed, we've seen special interest groups raising money, runnin
14:35:51.8 advertisements and even trying to coerce you into stating your opinion on hot-button issues that are likely to come before you as a judge, as if it this were an election. but, of course, this is not an election. and no reasonable person expects you to make promises to politicians about how yo
14:36:11.1 likely to rule on the issu when they come to court. as a condition of confirmation. still, some in our country h lost sight of the proper role of an unelected judge, where the people are sovereign and where the government enjoys no legitimacy except by
14:36:28.5 consent of the governed. they see unelected judges primarily as policymakers a arbiters of every issue that might arise. with the authority to dict the people what they think is good f
14:36:43.8 well, this ideal of the supreme court is a super legislature to which we might turn to give us everything that is good and stop everything that is bad, is not a view that i share. nor, for that matter, did those who wrote and ratifie
14:36:59.7 constitution. the constitution does not guarantee everything that is good and prohibit everything that is bad or it could have been written in two sentences. rather, it guarantees some specific things, it prohibits some specific things and leaves the rest to be sorted
14:37:16.0 out through the democratic alexander hamilt know, wrote in the federalist papers, which a for ratification of the constitution, that the judicial branch, he pre
14:37:29.6 be known as the least dangero branch. he believed that there is no liberty, if the power of judging is not separated from the legislative and executive its sole purpose was to interpret and apply the laws
14:37:45.7 of the its role would be limited. regrettably, justices have not always been faithful to this constitutional design. all we need to do is to look at the supreme court's track record to see why abdicating our right
14:38:04.6 of self-government, denying judges, isolated behind a monumental mashal ed office, far removed from the life experiences of the average american, is a bad idea. for example, the const stays in part that the federal government shall not prohibit
14:38:19.3 the free exercise of religion or bridge freedom of speech. many ameri are concerned that the
14:38:30.2 supreme court, by erecting extra constitutional and cont judge-made standards in this area of the law, has effectively bann
14:38:40.8 relation expression for much of our public life, turning what should be official neutrality into h to be sure that the court should be zealous protecting the rights of those who express themselve or promote their products using violence or sex,
14:38:58.1 but voluntary expre one's faith: never. likewise, many americans, including me, are baffled that the supreme court recently saw fit to strike down the display of the ten commandments in kentucky, but uphold the constitutionality of
14:39:13.2 a display in texas. even while the ten commandments itsel is prominently displayed in the chambers of the united states supreme court, on its ceiling. many americans, including m wondered what to read into the court's recent dismissal of
14:39:30.1 a suit seeking to divide schoolchildren -- deny schoolchildren the ri recite the pledge of allegiance because it contains the words "one nation under god." a majority of the court refused to agree that the pledge was constitutio
14:39:45.7 us time-honored tradition of schoolchildren across our nation in legal limbo. and recently, the court expanded the awesome po of government to condemn private property beyond all previous bounds by reading the public use limitation
14:40:02.3 on eminent domain, right out o the constitution. justice o'connor warned the inspector of condemnation now hangs over all property. nothing is to prevent the state from replacing any motel 6 with a ritz-carlton, any hope with a
14:40:19.6 shopping mall. or any farm with a factory. on what legitimate basis can the supreme court uphold st laws on the death penalty, in 1989, then strike them down 2005?
14:40:34.5 relying not on the written constitution, which, of course, had not changed, but on foreign laws that no american has voted on, consented to or may even be aw
14:40:50.1 when it 2003, the court decided lawrence v. texas. the court overruled the 1986 decision on the constitutionality of state laws based on the collective moral judgment of those states about permissible sex activity. what changed in that inte
14:41:06.9 time? did the constituti well, no. did the justices change? yes. but should that determine a different mea constitution? are some judges merely imposing
14:41:22.5 personal preferences under the guise of constitut interpre indeed, this is the same case, as you know, judge roberts, that served as the cornerstone of the massachuset court's decision, holding that state law is marriage to a man and a woman, amounted
14:41:39.8 discrimination. let me close on an issue that several senators have already mentioned today and that is your obligation to answer our questions. of course, i share with all of my colleagues a desire to -- and a curiousty, really, to know what you think about all sorts of issues.
14:41:57.8 all of us are curious. but just because we're curious doesn't mean that our curiousty shoul satisfied. you have no obligation to tell us how you will rule on any issue that might come before you if you're confirme supreme court.
14:42:14.6 it boils down to a question of impartiality and fairness. one characteristic of a good judge is that they keep an open mind until they hear the facts and hear the lawyers argue the case before them. if you pledge today to rule
14:42:28.5 a certain way on an issue, how can parties to future cases possibly feel that they would ever have a fair day in court? justice ginsburg, as we've heard already, the of the last supreme court justices confirmed by
14:42:43.7 the senate, noted not too long ago, in accord with long-standing of the current supreme court declined to furnish such information. the line each justice drew in response to
14:42:58.5 precon is crucial to the health of the federal judiciary. and this is -- has come to be known as the ginsburg standard, although it has been the norm for all nominees who come before th committee and before the senate for con
14:43:13.4 i know some members of the committee will ask you questions that you can't answer. they will try to entice you to abandon the rules of ethics and the long tradition described by justice g but that should not concern you,
14:43:27.1 judge roberts. don't take the bait. do not -- do not head down that road but do exactly what every nominee of every republican president and every president has done. decline to answer any
14:43:42.6 question that you feel would comp to do your job. the vast majority of the senate, i am convinced, will not punish you for doing so. rather, i'm convinced tha the vast majority of the senate will respect you for this decision because it
14:43:58.1 will show you are a person of deep integrity and independence, unwilling to tra your ethics for a confirma vote. again, let me say welcome to you, aga
14:44:12.6 and thank you for your continued willingness to serve this >> mr. specter: thank you senator cornyn. se >> mr. durbin: thank you, mr. judge roberts, welcome to you, your family. congratulation no
14:44:28.1 the commit with the chairman telling us that you had shared the rise dom of 47 individual senators their office some of them on several different occasions an many people believe that that fact alone should earn you
14:44:45.0 confirmation before the uni states senate. is it years ago at the nomination hearing of justice ginsburg, my friend, illinois senator paul simon said something wo he said to the nominee, "you face a much harderer judge than
14:45:01.7 this committee. that's the judgment of history. and that judgment is likely to revolve around one question: did you restrict freedom or did you expand it?" i think senator simon put h finger on how the united stat senate should evaluate a
14:45:16.4 nominee for a lifetime appointment to the federal bench. judge ro confirmed to be th first supreme court justice in the 20th century, the basic question is this: will you restrict the personal freedoms we enjoy as americans or will you expand them? when we met in my office
14:45:31.7 many weeks ago i gave you a biography of a judge i a greatly. his name was frank johnson, a federal district judge from alabama and a lifel republican. 50 years ago, following the arrest of rosa parks, judge johnson ruled
14:45:47.4 that african of montgomery, alabama, were acri their constitutional rights when they organized a boy coft boycott of the buses and martin luthe and others could march from selma as a result of those decisions, the ku klux klan branded johnson
14:46:04.1 the most hated man in america. wooden crosses were burned on his lawn. he received so many death threats that his family was under constant federal protection 1975. judge frank johnson was denounced as a judi
14:46:18.8 activist. and threatened with impeachment. he had the courage to expand freedom in america. judge roberts, i hope that you agree, america must never return to those days of discri and limitations on our freedom. now, some of the memos you
14:46:34.9 wrote that i talked to you about in my office, many, many years ago, in the reagan administrat have raised some serious concerns about where you stand on civil rights and women's rights concerns that have led some of the most respected civil rights groups in america
14:46:50.0 to openly oppose nomination. so, it's important for you, at this hearing, to answer the questions and to tell us your views on civil rights and equality and the role of courts in protecting thes freedoms. this hearing is your
14:47:05.6 opportunity to clarify the record to explain your views. we can't assume that time or maturity has changed your thinking from those reagan-era the refusal of the who is to disclose documents on 16 specific cases you wrote as deputy solicitor general, denied
14:47:23.2 this committee more contemporary expressions of your values. only your testimony before this committee can convince us that john roberts of 2005 will be a truly impartial and open-minded chief justice. concerns h raised about some of the things you wrote, relative to the right
14:47:40.4 of pri we've gone through griswold, we know what that supreme court decision meant in 1965, 40 year ago, when the court struck down the connecticut made it a crime for married couples to buy and use b control. they said there was
14:47:55.9 a fundamental right of privacy in that constitution, though you can search every word of it and not find the word privacy, but it's far from settled laws in the minds of ma 40 years later, there have been new efforts to restrict the right of privacy attempts to impose gag rules on doctors when
14:48:11.9 they speak to their patients about famil you saw it in the sad debate over the tragedy of terry schi a debate that led some members of congress to threaten judges who disagree with their point of view abo
14:48:25.9 im you can find it in the eagerness by the gover looking at our financial records, medicalrecords and library records. whether the court continues to recognize and pro america's right privacy will have a profound impact on every american from birth to death. in your early writings, that we
14:48:42.9 have to rely on here, you referred to of privacy as an abstraction. we need to know if that's what you believe. we also need to hear your views on another basic issue and that is the view on executive power. they don't teach this
14:48:58.7 subject much in law school. it's not tested on any bar exam. but it's been a major -- it's not been a major in many supreme court hearings, yet, it's important today. some aspects of your record -- your early record, when you were an attorney for a
14:49:14.0 president, suggest you might be overly differ the executive we need to know where you stand. throughout history, during times of war, presidents have tried to restrict liberty in the nam security. the supreme court has always been the guardian of constitution. it's usually been up to the
14:49:30.9 task, but sometimes it's failed. such as in the notorious corama we're being tested again. where we stand b our constitution in this age of terrorism, tha especially on our supreme court and on you, judge roberts,
14:49:48.2 if you're confirmed. we need to know what you think of religio of the over the past few decades, the supreme court has maintained a delicate, yet, what i believe, proper balance between church and state. justice sandra day o said it so well in the
14:50:03.2 rece commandments decision, and a quote, "at a time when we see around the world the violent consequences of the assumption of religious authority by government, americans may count themselves fortunate. our regard for constitutio boundaries has protectth us
14:50:18.5 from similar cases while allowing private religious exercise to flourish. those who would renegotiate the boundaries between church and state must answer a difficult questi why would we trade a system that's served us so well for one that has served others so
14:50:34.6 i asked you a question when you came by to see me, which i'm not sure either one of us could answer at that moment. i asked you who has the burden of proof at this hearing? do you have the burden to prove that you are a person worthy of a lifetime appointment before the supreme court?
14:50:50.5 or do we have the burde to prove that president bush was wrong in selecting you? your position as supreme court justice, chief justice, gives you extraordinary power, to appoint 11 judges on the fisa court, whi the authority to issue warrants for search and wiretaps of american citizens,
14:51:07.2 all the way to the establishment of rules of criminal and c pr no one has the right to sit on th no one has the right to be ch justice. but, they can earn it through a hearing such as the which we have today. i'd like to say that i spoke earlier about the
14:51:23.8 courage of frank johnson. a few months ago, another judge of rare courage testified before this committee. her name is joan lefkow. she's a federal judge in chicago and i was honored to nominate he last february, and mother were murdered in her
14:51:40.2 home by a deranged man who was angry that she had dismissed his laws in a remorse to the commit the judge said that the murders of her family members were "a direct result of a decision made in the course of fulfilling our duty to do justice without fear or f
14:51:55.7 in my view, that is the only proper test for a supre court justice. will he do justice without fear or favor? will he expand freedom for all americans as judge frank johnson, the condemned judicial activist, once did?
14:52:11.6 i congratulate you, judge roberts, on your nomi your accomplished career and i look forward to these hearings to give you your chance, in the next several days, not to rely on 20-year-old memos or inuendos and statements by those who are not part of the hearing, but in your own words,
14:52:28.0 a chance to tell us and to tell the american people what you truly believe. if you believe that you have the burden, at this hearing, to establish why you are worthy of this -- the highest ranking position of a judge in america -- i hope that you will be forthcoming.
14:52:44.2 if you do not answer the questions, if you hold back, if you believe as some on the other si that you have no responsibility to answer these questions, i'm afraid that the results will not be as pos i certainly hope that they will be positi
14:52:59.2 than >> mr. specter: tha you, senator durbin. recognize now senator brownback and also recognize today is his bi >> mr. brownback: thank you very and this is certainly a long way to spend it. it's seeming like a long birt thank you. judge roberts, as my
14:53:18.5 colleagues said, i hope we're done before my birthday i welcome you to the court, delighted to have you hear, you
14:53:25.6 and your family. want to congratulate you on your lifetime of service thus far and looking forwar service you will have for this great land. i recalled a meeting that you and i had in my office as many of the members here have, as well, and enjoyed the mute, said
14:53:40.4 two things in there that i particularly took away and hung on as an indicator of yourself and how you would look at the courts and also what america needed from our courts. one of the statements was that we need a more modest court. and i looked at that and
14:53:56.3 i thought about it and i though think, the way american people would look at the situation today. we need a more modest court. a court that's a court, but not a super legislature, as you've heard others refer to, or is in a different r but is a court. and that's what it needs to be.
14:54:13.1 and that's what we need to have. one that looks the constitution as it is. not as we wish it might be. but as it is. so that we can be a nation that's a rule of law nati you had a second point that was very apt, i thought, when you talked about the courts in
14:54:30.2 baseball. you drew the analogy of those two together, which was apt, i thought, and you said it's a bad thing when the umpire is the most-watched person on field. and -- and i guess that appealed to me, as well, from the standpoint that where we are
14:54:47.4 in today's american governance, where the legislature can pass the bill, the executive can sign it, but everybody waits around holds t breath until how the court is going to look at this and how it's going to interpret it because it seems as though the court is the real mover of what the actual law is.
14:55:03.6 and that's a bad thing. the umpire should call the ball fair or foul. it's in or it's out. but not get actively involved as a player on the field. and, unfortunately to a point today where, in many respects, the judiciary
14:55:20.6 is the most active policy player on the field. i was struck by your nomination and when you said when you were nominated that you "had a profound appreciat role of the court in our constituti
14:55:34.0 that's something i think we all respect and we look for in what we need to do. democracy, i believe, loses its luster when justices on the high court, who are unelected, and not directly accou constitutional rights and alter
14:55:50.5 the balance of governmental powers in ways that find no support in the text, the structure or the history of the constituti unfortunately, the court in recent years, i believe, has gone into that terrain. and our system of governme
14:56:06.2 constitution that federal courts will exercise limited jurisdiction. they should neither write nor execute the laws, but simply say what the law is, in quoting marbury v. madison. the narrow scope of judicial power was the reason that people accepted
14:56:23.1 the idea that the federal co could have the power of judi re that is the ability to decide whether a challenged law comports with the that people believe that the courts would maintain their independence and a the same time would recognize their role by deferring to the political
14:56:41.7 branches on policy choic legitimacy based on judicial restraint was a concept perhaps best expressed by justice felix frankfurter and president roosev he said this, courts are not repres
14:56:55.7 they're not designed to be a good reflex of a democratic society. their judgment is best inform ad and therefore, most dependable within marrow limits. the essential quality is independen
14:57:11.1 the independence of the judiciary is jeopardize what he did courts become embroiled in the passions of the day and assume primary responsibility in choosing between competi economic and social pressures. primary re for adjusting the interest,
14:57:28.7 which compete, of necess belongs to the congress. courts today have strayed far beyond the limited role. constitutionalists from hamilton to frankfurter, shirl shocked at the broad sweep of judicial activ
14:57:43.6 just listen to some of them. federal courts are redefining the meaning of marriage, deciding when a human life is worthy of protection. running prisons and schools by removing expressions of faith in the public square. permitting the government, under the taking
14:57:59.6 confiscate pro person and give it to another in the name of private economic development then interpreting our american constitution on the basis of foreign and internatio law. perhaps the court's most notorious exercise of raw
14:58:16.8 political power came in roe v.
14:58:23.9 wade and dolb v. bolden. based on false statements that invented a right to abor the issue had beencf1 o th
14:58:33.9 since that time, n 40 million children have been aborted in america. 40million lives that could be amongst us but are not. beautiful innocent faces that could bless our existence and our families and our nation, creating and expanding the
14:58:53.5 culture of life. if you are confirmed you will decide if there is a constitutional right to partially deliver a late-term child and then destr partial birth abortion is making its way to the supreme court.
14:59:08.2 the federal courts have thus far found laws limiting partial birth ab it should be noted again that if roe is overturned it does not ban abortion in america. it merely returns the issue to the state, so states like kansas or california can set
14:59:26.3 the standards they see right and the principles will be involved. the supreme court frequently has overruled prior precedence, i would note. a case founded in any state, brown vs. the board
14:59:44.2 of education, which ruled plessey v. ferguson. it revises previous decisions. i would note for you that by some measure the supreme court has overruled itself in 174 cases. with a substantial majority