Thursday, September 15, 2005

Roberts spars with Schumer on Movies and what Justices Do

Senator Schumer [D-NY]: …This process is getting a little more absurd every time we move. You agree we should be finding out your philosophy and method of legal reasoning, modesty, stability. But, when we try to find out what modesty and stability mean, what your philosophy means—we don’t get any answers. It’s as if I asked you what kind of movies you like—Tell me two or three good movies. And, you say: “I like movies with good acting. I like movies with good directing. I like movies with good cinema photography.” And, I ask you--No, give me an example of a good movie. And, you don’t name one. I say give me an example of a bad movie—You won’t name one. Then I ask you if you like Casablanca and you respond by saying, “Lots of people like Casablanca.” You tell me that it is widely settled that Casablanca is one of the great movies.

Senator and Judiciary Committee Chairman Arlen Specter [R-PA]: Senator Schumer, now that your time is over, are you asking him a question?

Senator Schumer: Yes, I am saying sir, I am making a plea. I hope we are going to continue this for a while. That within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of Justice you will become.

Senator Specter: We will now take a fifteen minute break. Reconvene at 4:25 pm.

Judge Roberts: Ah—Mr. Chairman, could I address some of the—

Senator Specter: Oh absolutely. Absolutely. I didn’t hear any questions, Judge Roberts, but you can--

Judge Roberts: There were several along the way.

Senator Leahy [D-VT]: We didn’t want to break anyway, you go right ahead.

Judge Roberts: I’ll be very succinct.

Senator Specter: You are privileged to comment. This is coming out of his [Schumer’s] next round if there is one.

Judge Roberts: Oh, well, then--

Schumer: I guess, there’ll be.

Judge Roberts: First, Dr. Zhivago and North by Northwest. [Big laughter in the room].

Schumer: Now, how about on the more important subject of what cases—

Judge Roberts: On the more important subject--

Senator Specter: Let him finish his answer. You’re out of time.

Senator Schumer: Not out of movies.

Judge Roberts: The only point I would like to make because you raised the question how is this different than justices who dissent and criticize and how is this different than professors? And I think there are significant differences. The justice who files a dissent is issuing an opinion based upon his participation in the judicial process. He confronted the case with an open mind. He heard the arguments. He fully and fairly considered the briefs. He consulted with his colleagues. He went through the process of issuing an opinion. And, in my experience, every one of those stages can cause you to change your view. The view you ask then of me—“well, what do you think. Is it correct or not? Or, how would you come out?” That is not a result of that process. And, that’s why I shouldn’t respond to those types of questions. Now, the professor. How is that different.

Senator Schumer: Yup.

Judge Roberts: That professor is not sitting here as a nominee before the court. And, the great danger, of course, that I believe every one of the justices has been vigilant to safeguard against is that-- turning this into a bargaining process. It is not a process under which senators get to say, “I want you to rule this way, this way and this way, and if you tell me you’ll rule this way, this way and this way, I’ll vote for you.” That’s not a bargaining process. Judges are not politicians. They cannot promise to do certain things in exchange for votes. And, if you go back and look at the transcript, Senator, I would just respectfully disagree. I think I have been more forthcoming than any of the other nominees. Other nominees have not been willing to tell you whether they thought Marbury v. Madison was correctly decided. They took a very strict approach. I have taken what I think is a more pragmatic approach and said if I don’t think that’s likely to come before the Court, I will comment on it. And, you know, again, perhaps that is subject to criticism. Because it is difficult to draw the line sometimes. But, I wanted to be able to share as much as I can with the Committee in response to the concerns you and others have expressed. And, so I have adopted that approach.

Senator Specter: 4:25, we’re anxious to move ahead to try to conclude your testimony, Judge Roberts, as early as we can. I know you will agree with that.

Judge Roberts: Thank you, Mr. Chairman. Thank you for the accommodation.
Excerpted from the Hearings before the Senate Judiciary Committee on John Roberts nomination to be Chief Justice of the U. S. Supreme Court, September 14, 2005