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U.S. Supreme Court

Thursday's testimony

Excerpts of John Roberts' testimony during his confirmation hearing Thursday:

AN EXCHANGE WITH SEN. TED KENNEDY, D-MASS: KENNEDY: " . . . Let me ask you a broader question: Do you think having a diverse society where everyone has an equal chance to participate is an American value and is fundamental to the strength of our society?"

ROBERTS: "I do. I agree with that statement, senator. Yes."

KENNEDY: "We are talking about affirmative action and you expressed strong reservations about affirmative action. In 1991 in the FCC case, you as the advocate for the U.S., the acting solicitor general, refused to take the position of the FCC, your own client. And the FCC filed briefs in favor of its own affirmative action program and your office opposed the FCC. . . . The Supreme Court came out in favor of the FCC. I know that the standard altered and changed subsequently on that case. And then in 2001, you took a private case to basically see that the Department of Transportation's affirmative action program, that applied, in this case, to the highways, which has been overwhelmingly supported by the Congress year in and year out, would be effectively undermined. The point I'm asking here is, given these series of actions over a period of time, what do you think in your record would give some sense of hope to women, to minorities, blacks and browns, to those that are disabled, that are not looking for a handout, but just looking for a chance in this diverse society to be able to have an equal opportunity?

ROBERTS: Well, senator, I think there's a great deal in my background that you could look to in that respect. For example, you could look to the cases in which I argued in favor of affirmative action. I've argued on both sides of that issue. In the Rice vs. Cayetano case, for example, before the Supreme Court, I argued in favor of affirmative action for native Hawaiians. I lost that case but I was arguing on the side of affirmative action. . . . With respect to the FCC case that you mentioned in the Metro Broadcasting case, I think a fuller understanding of the situation there is necessary. The United States had already taken a position before the FCC opposed to the FCC program. And that put the Solicitor General's Office in the position where they had the position of the United States, which was opposed to it, and the FCC position which had prevailed before the District of Columbia Court of Appeals. . . . They did decide it in favor of the FCC, 5-4. And as you noted in the other case that I participated in, later the Supreme Court overturned that decision. The long and short of it is as you look at my record on the question of affirmative action, yes, I was in an administration that was opposed to quotas. Opposition to quotas is not the same thing as opposition to affirmative action. That was something that President Reagan emphasized repeatedly. I argued against quotas in the FCC case. I argued in favor of affirmative action in the Hawaiian case. In terms of my own personal involvement, I've been active in programs that promote the interests of minorities and disadvantaged to participate fully in our society.

KENNEDY: In the remaining moment, recalling Justice (Earl) Warren, just thinking through what other nominees have said about the importance of a heart and a legal mind and you as a chief justice together, in telling the American people how you were inspired by Chief Justice Warren at a very important and critical time in our nation's history, what could you tell them now that could give them the assurance that you might be a similar kind of chief justice should you be approved by the Senate?

ROBERTS: Well, senator, my point with respect to Chief Justice Warren was that he appreciated the impact that the decision in Brown (vs. Board of Education) would have. And he appreciated that the impact would be far more beneficial and favorable and far more effectively implemented with the unanimous court, the court speaking with one voice, than a splintered court. . . . I recognize as a judge and I recognized as a lawyer that these cases have impact on real people and real lives. . . . We, obviously, deal with documents and texts, the Constitution, the statutes, the legislative history, and that's where the legal decisions are made. But judges never lose sight or should never lose sight of the fact that their decisions affect real people with real lives, and I appreciate that.

ANSWERING SENATORS' QUESTIONS ABOUT WHAT KIND OF JUSTICE HE WOULD BE: "I would begin, I think, if I were in your shoes, with what kind of a judge I've been. I appreciate that it's only been a little more than two years, but you do have 50 opinions. You can look at those. And, Sen. Schumer, I don't think you can read those opinions and say that these are the opinions of an ideologue. You may think they're not enough. You may think you need more of a sample. That's your judgment. But I think if you've looked at what I've done since I took the judicial oath, that should convince you that I'm not an ideologue. And you and I agree that that's not the sort of person we want on the Supreme Court."

ON HOW HE WOULD USE HIS POWER AS CHIEF JUSTICE: "I don't think using opinion-writing assignments as a way to try to promote a particular view or agenda is a good idea . . . trying to use that assignment power in a tactical way - it causes tension on the court and I think undermines the ability of the chief justice to the extent he has the ability, and it's obviously limited to act as a force to help bring about some cohesiveness and collegiality."

ON HIS OBLIGATION TO UPHOLD THE CONSTITUTION: "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."

[Last modified September 16, 2005, 01:43:02]