Third Day of Hearings on the Nomination of Judge Roberts - Durbin's questions
DURBIN: Thank you very much, Mr. Chairman, and thank you for your fairness.Judge Roberts, good to see you again.
Mrs. Roberts, friends and family.
Yesterday and again today, you've continued to prove your legal talents. I remember law students with your talents when I was in law school. I had to get to know them in the first year, because they were then off to the law review and I was off to buy another Gilbert's outline. I didn't see them again.
But today, I've noticed the questions have changed some. The questions now are more -- they've gone beyond your resume and beyond your legal skills. And I think it relates to the fact that so frequently, when asked, you have said, appropriately, that you will be driven and inspired by the rule of law, which is an appropriate term, but a hard and cold term by itself.
We know you have the great legal mind and have proven it with the questions here. But the questions that have been asked more and more today really want to know what's in your heart. And I think those are appropriate. When you look down from the bench or read a trial transcript, do you just see plaintiffs and parties and precedents, or more?
Do you see the people behind the precedents? The families behind the footnotes? I think that's what many of us are driving at with these questions.
You've lived a comfortable life. Court cases often involve people who have not. Many times contests between the powerful and the powerless, as someone said in the opening statement, the powerless, just with the rule of law and the Constitution on their side, praying for relief, for their day in court.
Aside from a few pro bono cases, as important as they are -- and I salute you for being involved in them -- what would the powerless, the disenfranchised, minorities and others see in your life experience that would lead them to believe that they would have a fighting chance in your court?
ROBERTS: : Well, Senator, I think there are many things that people could look to.
ROBERTS: : You said I had a comfortable life. I think that's a fair characterization. I had a middle-class upbringing in Indiana. As part of that, I worked in the steel mills outside of Gary during the summers as soon as I was old enough to do that and throughout my life have been exposed to and mixed with at school, learned and played with people of a wide variety of backgrounds. Comfortable, yes. But isolated in no sense. I was, I would say, a typical middle class kid growing up in Indiana and had, I think, a great upbringing. I was privileged in the sense of having my parents and sisters contributing to my upbringing and education. And I think people looking at my life would see someone in that experience -- and, obviously, with limitations.
I wasn't raised in other places in the country and might have a different perspective if I were. I wasn't raised in different circumstances and would have different experiences if I were.
As you look at the Supreme Court, the people on there come from widely different backgrounds and experiences and I think that's a healthy thing. But as far as someone going into court, and looking too see why they would expect to get a fair hearing from me, I think -- and I could answer this with respect to the court I'm on now.
DURBIN: Yes, please.
ROBERTS: : It's hard for me to imagine what their case is about, that I haven't been on their side at some point in my career. If it's somebody who's representing welfare recipients who have had their benefits cut off, I've done that. If it's somebody who is representing a criminal defendant who's facing a long sentence in prison, I've done that. If it's a prosecutor who's doing his job to defend society's interest against criminals, I've been on the side of the prosecution. If it's somebody who's representing environmental interests, environmentalists in the Supreme Court, I've done that. If it's somebody who is representing the plaintiffs in an anti- trust case, I've been in that person's shoes.
ROBERTS: I've done that. If it's somebody representing a defendant in any trust case, I've done that as well. It's one of the, I think, great benefits of the opportunity I've had to practice law as I have is that it has not been a specialized practice. I've not just represented one side or the other. I've represented all of those interests. And I think those people will know that I have had their perspective. I've been on the other side of the podium with a case just like theirs. And that should, I hope -- and I hope it does now -- encourage them that I will be fair and that I will decide the case according to law but I will have seen it from their perspective.
DURBIN: So let me follow through on that because I think that's what people need to hear. But we need to apply it to your real-life and legal experiences. Let me talk to you about a case that you were a private attorney and involved in. Today, there are about 45 million uninsured people in America. Too often, Americans with insurance can't receive coverage for medically necessary procedures and have to fight the insurance companies. In my home state of Illinois we have a law called the Illinois Health Maintenance Organization Act. I think you're familiar with it. It provides that if a patient's primary care physicians deems a proposed procedure to be medically necessary but their HMO disagrees and denies coverage for the procedure, the patient may have the HMO's decision reviewed by an outside physician, the determination of that outside physician binding on the HMO. You challenged this law on behalf of an HMO that refused to pay $95,000 for the shoulder surgery of Debra Moran of my state of Illinois. Case went to the Supreme Court in 2002. You argued for Rush Prudential and you argued they weren't subject to the Illinois law and the governing HMOs because you said they weren't really an insurance company. You claimed that since the HMO was not providing health care, but merely a promise to pay for health care, it was exempt. Thankfully, from my point of view, you lost the case. If you had won it it would have put millions of American consumers and families at risk of losing coverage for necessary health care. Judge Roberts, did you have any reservations about taking this case?
ROBERTS: No, Senator, I did not. The result in the case, I did lose. I lost 5-4 if I'm remembering correctly. In other words, four of the justices on the Supreme Court thought the argument I was making on behalf of my client was correct. It has always been my position that I do not sit in judgment other than once I have satisfied myself that the legal arguments are reasonable ones, within the mainstream, if you will, that I don't decide whether that's the way I would rule as a judge or whether I would rule the other way. My practice has been to take the cases that come to me and if the other side in that case had come to me first I would have taken their side.
DURBIN: So you didn't step back at any point in your practice and say, No, I'm not going to do this; I can't be associated with a case or cause even though it may be legal and ethical that might cause so much harm to so many innocent people ?
ROBERTS: That's a judgment for the legal system to make, asserting legal rights. Lawyers aren't judges when they're representing clients. They don't sit there and say -- well, maybe some do, I don't. I think it's a basic fundamental principle of the legal system and the bar that you take clients who have reasonable arguments -- now, I'm not talking about frivolous arguments. I don't take cases in which those are raised. But the lawyers aren't the judges. The judges are. Now the case you mentioned, you've explained the arguments on one side, there were legal arguments on the other side. And four justices agreed with those. This isn't an extreme case when it's decided 5-4. And that's one of the very point I was making earlier; that I take cases on all sides of the issue.
ROBERTS: You can go through and find cases. For example, when I was asked to assist an inmate on Florida's death row, I didn't step back and say: Well, is this really a good thing for me to assist this individual guilty of -- convicted of particular murders? I took the case. IN the various pro bono activities in which my firm was involved, I didn't sit in judgment and say: Is that something I agree with? Is it not something I agree with? I was a lawyer involved in that area of the law and I felt it my obligation to take the cases that come in.
DURBIN: Many of the organizations that oppose your nomination represent minorities in America. You have the distinction of being opposed by LULAC. This, of course, is the first time this Hispanic organization has ever opposed a Supreme Court nominee. You're also opposed by MALDF. I personally think that their feelings go beyond the comment, illegal amigos, that you talked about yesterday. And I want to point you to one particular area that they find troubling when I speak to them and I find troubling, and it goes back to the case of Plyler v. Doe: 1982, Supreme Court case held it unconstitutional to deny elementary education to children on the basis of their immigration status. It was a Texas case. The court struck down the Texas law and allowed elementary schools 23 years ago to refuse entrance to undocumented children, struck down the law that allowed the schools to refuse entrance. On the day the case was decided -- and I think the timing is important here, because it appears to be kind of a gratuitous comment; it isn't as if you were asked for an opinion. On the day it was decided, you co-authored a memo that criticizes solicitor's general's office for failing to file a brief supporting the Texas law, which would have refused education to these children. Your memo disagreed with the administration's position on the case, so it isn't as if you were arguing the Reagan administration's position. They had taken a different position on the case. Can you describe your involvement in the case, and I guess more importantly, can you describe now how you feel about this today 23 years later -- I'll just finish and I'll leave you the time you need to answer -- when the largest, fastest growing segment of America's population is Hispanic; when the major Hispanic organizations feel that this showed real insensitivity to who they were and what their children needed? Can you explain that memo that really wasn't part of the Reagan agenda? Why did you say this?
ROBERTS: Well, I think, Senator, if I'm remembering the memo, and it was 23 years ago, and the case that was decided was, I believe, again, a divided decision by the Supreme Court, if I'm remembering the memo correctly, it was making the point that the position was inconsistent with the attorney general's litigation policy approach, if that's the right memorandum.
DURBIN: It is.
ROBERTS: Well, in that case, again, as a staff lawyer I thought it was my obligation to call to the attorney general's attention activities in the department that I thought were inconsistent with what he had articulated as his approach. And that's what I would have been doing in that case. And, again, it would have been apparently supporting the state of Texas in its legislative determination in that area.
DURBIN: Well, did you agree with the decision now -- or, pardon me, then? Or do you agree with it now?
ROBERTS: I haven't looked at the decision in Plyler v. Doe in 23 years, Senator. And there's nothing gratuitous about the memorandum. It obviously came out because the decision came out. That would have been why I was advising the attorney general with respect to it. Obviously, the importance of the availability of education for all is vital. That's a different question than the legal issues involved in whether a state law should be struck down...
DURBIN: So let me say this. Twenty-three years later, millions of children have benefited from this decision. They have been educated in America. Many have gone on to become citizens. Some are business people, some are professionals, some are serving in our military today because Plyler was decided in a way that you apparently disagreed with 23 years ago. So my question to you, for the Hispanic groups that oppose your candidacy at this point -- or your nomination, I should say -- what is your feeling? Is this settled law, as far as you are concerned, about our commitment in education...
ROBERTS: Senator, as I said, I have not looked at the decision in Plyler v. Doe in 23 years. It's not an area that I focused on. And the issue is not my policy view about what is a good idea for educational policy or national policy or whether what the Texas legislators determined was a good idea for Texas policy. The question was a particular legal issue. And, again, the Supreme Court was divided on that, so it's not as if we're talking about a position outside the mainstream. And what I was explaining, this was viewed, as the memo states, if it were looked at in full, it was something that I thought was inconsistent with what I understood the attorney general's approach to be, and it was my job to call that to his attention, which is what I did.
DURBIN: OK. I think you have accurately taken refuge in the fact that you were working for someone. The fact that this memo came out the day after the decision I think is an important circumstance. But let me go back to the beginning, the first question, the first day, with Senator Specter. Wouldn't it be a jolt to the system in America if we decided that we would no longer offer education to these children?
ROBERTS: Of course. Well, of course, Senator.
DURBIN: And so...
ROBERTS: And the decision in Plyler is a precedent of the court. I don't think -- I'm not aware that it's been called into question in the intervening 23 years that have passed since the time I wrote those two paragraphs in the memo. And that, as a precedent, is entitled to respect under principles of stare decisis. And it's something that is where I would begin if an issue arose in this area. I'm not aware that any is arising in this area, but if an issue were to arise, that's where I would begin...
DURBIN: I just think millions of Americans would like to have heard you say, I think it's a good idea. I'm glad we did it for America. But if you can't say it, you can't.
ROBERTS: Well, Senator, if I could just make the point that the issue is not whether or not I thought it was a good idea. That's not the job of a lawyer presenting legal advice and legal -- the legal implications of an issue to his boss, the attorney general.
ROBERTS: He wasn't interested in whether I thought it was a good idea or not. He was interested in the legal question of whether or not this was consistent with his policy and his approach. That's not taking refuge; that's explaining the circumstances of a memorandum. And it's not avoiding an expression about whether it's a good idea or not. It's explaining that what we're dealing with...
DURBIN: But you've been unequivocal in your statement supporting Brown v. Board of Education. No one has suggested, in any respectful way, that we should return to the bad old days of separate but equal. I mean, you've accepted that's part of America. And the point I'm trying to make to you is whether we're talking about millions of uninsured people or millions of Hispanic children, I would think that it would be a basic value, you'd say, this is good for America, for people to have insurance, and bad for them to be denied. It is good for America to see children with education, rather than to see them in the streets, ignorant. It seems so fundamental.
ROBERTS: Senator, I don't think you want judges who will decide cases before them under the law on what they think is good -- simply good policy for America. There are legal questions there. And I'm sure there are clients that I have represented in court that you would agree with; you would say, That's the right side of the cause to be on, whether it's the environmental interests I represented in the Tahoe case, whether it's the welfare recipients I represented pro bono in the Bivens case, whether it's the cause of the inmate on death row that I assisted in in Florida, whether it's the environmental interest in Glacier Bay that I represented or in the Grand Canyon on a pro bono basis. I am sure I could go down my list of clients and find clients that you would say, That's the right side. That's the cause of justice. And there are others with whom you'd disagree. My point is simply this, that in representing clients, in serving as a lawyer, it's not my job to decide whether that's a good idea or a bad idea. The job of the lawyer is to articulate the legal arguments on behalf of the client.
DURBIN: I'm just trying to get to the bottom line about your values. And if it is strictly a question about whether this is a legal and ethical legal question, or an ethical legal question, that can be contested, then there are many positions you can take in the law. Some I wouldn't be comfortable with. Some you may not be comfortable with.
DURBIN: Let me ask you one other question. Senators Coburn and Brownback have, I think, sincerely and accurately expressed their views on the issue of abortion. I think they have been very articulate in saying so. Many would argue that it's one of the most divisive legal and political issues we faced in our generation. I would like to ask you this question: Why do you think this issue is so important to so many women in America -- the whole question of Roe v. Wade, the question of reproductive freedom and the question of freedom of choice? Why do you think it's so important?
ROBERTS: Well, I think it's important -- and again, to women on both sides of the issue, and also, I think, to men as well, but obviously it's an issue that directly affects women. It's a fundamental question, as the court has addressed in Roe and in Casey, that obviously affects the lives, directly, of millions of Americans, and the availability of rights under that decision affects women. But I know there are people who have strongly held views on both sides of the issue. And I know that the responsibility of a judge confronting this issue is to decide the case according to the rule of law consistent with the precedents; not to take sides in a dispute as a matter of policy, but to decide it according to the law. And your questions earlier about, you know, causes we agree with, causes we don't agree with -- I do want to emphasize that there is a unifying theme in my approach, both as a lawyer and as a judge. And that is the cause that I believe in passionately, the one to which I have devoted my professional career, is the vindication of the rule of law. And I tried to explain in my opening statement on Monday why that's important: Because, without it, any other rights that you may agree with as a matter of policy are meaningless. You need to have courts that will enforce the rule of law if you're going to have rights that mean anything.
DURBIN: I'm running out of time, but I do want to give you an opportunity. Last night, I passed a memo along to you relative to the Bob Jones University case. I don't know if you've had a chance to look at it and can tell me whether that is your handwriting on that memo, whether you were, in fact, in a meeting involving the Bob Jones University decision with the Reagan administration.
DURBIN: Did you provide any input in the meeting or have any conversations with Justice Department personnel about the case?
ROBERTS: It is my handwriting. It's a list -- it's apparently a meeting to discuss a number of civil rights issues -- six of them, I see. I did not participate in any way in the Bob Jones case. That was apparently discussed, according to this memo, at the meeting. The recusal rule that was at issue says that I shouldn't participate by way of consultation or advice, and I did not.
DURBIN: Thank you for clarifying that. Thank you, Mr. Chairman.
posted by Red Chicago @ 7:03 AM
1 Comments:
After getting more than 10000 visitors/day to my website I thought your www.redchicago.blogspot.com website also need unstoppable flow of traffic...
Use this BRAND NEW software and get all the traffic for your website you will ever need ...
= = > > http://get-massive-autopilot-traffic.com
In testing phase it generated 867,981 visitors and $540,340.
Then another $86,299.13 in 90 days to be exact. That's $958.88 a
day!!
And all it took was 10 minutes to set up and run.
But how does it work??
You just configure the system, click the mouse button a few
times, activate the software, copy and paste a few links and
you're done!!
Click the link BELOW as you're about to witness a software that
could be a MAJOR turning point to your success.
= = > > http://get-massive-autopilot-traffic.com
Post a Comment
<< Home