Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)

GRAHAM: Thank you, Mr. Chairman. Judge Roberts, your intellectually stamina impresses me because you can't see this on television. It must be 150 degrees in here. (LAUGHTER) And I just don't know how you're doing it. But I'm tremendously impressed. Mr. Chairman, I would like permission to introduce into the record some law professor's opinion that being interviewed for the Supreme Court vacancy, when Judge Roberts was interviewed, did not require him to recuse himself and I'll... SPECTER: Without objection, it will be made a part of the record. GRAHAM: Well, let's think about that in kind of political terms. And I know that's not really your job. If we took this to its logical conclusion, say I was president -- I don't think that's going to happen so you don't need to be overly worried about it but you could take someone to be chief justice from the people sitting on the court. Is that correct? ROBERTS: Yes. GRAHAM: So if you had a judge you didn't particularly like, the best thing you could do is go talk to him about the job and they couldn't decide anything. Would that be the logical conclusion of this? ROBERTS: I think that would be the logical conclusion... GRAHAM: Well, I'll remember that if I'm president. But on the record now, I don't think I have the right to do that. That's part of the process. Some big things here. Were you proud to work for Ronald Reagan? ROBERTS: Very much, Senator, yes. GRAHAM: During your time of working with Ronald Reagan, were you ever asked to take a legal position that you thought was unethical or not solid? ROBERTS: No, Senator, I was not. GRAHAM: We talked about the Voting Rights Acts. Proportionality test in the Reagan administration's view was changing the Voting Rights Act to create its own harm. Is that correct? ROBERTS: The concern that the attorney general had and the president was that changing Section 2 to the so-called effects test would cause courts to adopt a proportionality requirement, that if elected representatives were not elected in proportion to the racial composition in a particular jurisdiction, that there would be a violation shown that would have to be addressed. GRAHAM: Do you think it would be fair to try to suggest that because you supported that position but you're somehow racially insensitive? ROBERTS: No, Senator. And I would resist the suggestion that I'm racially insensitive. I know why the phrase, Equal Justice Under Law is carved in marble above the Supreme Court entrance. It is because of the fundamental commitment of the rule of law to ensure equal justice for all people without regard to their race or ethnic background or gender. The courts are a place where people need to be able to go to secure a determination of their rights under the law in a totally unbiased way. That's a commitment all judges make when they take a judicial oath. GRAHAM: Knowing this will not this line of inquiry but, at least, trying to put my stamp on what I think we've found from this long discussion, basically, the Supreme Court decided in Section 2 that the intent test was constitutionally sound. Is that correct? ROBERTS: That was its determination in Mobile against... GRAHAM: And Senator Kennedy disagreed because he wanted a different test. And I respect him. He is one of the great -- first, he's not part of the Reagan revolution. I think we all can agree with that. So I don't expect him to buy into it. But I respect him greatly for his passion about his causes. He took it upon himself to try to change a Supreme Court ruling, to go away from the intent test to the effects test, and he was able to reach a political compromise with the administration. And I just want that to be part of the record; that to say that Ronald Reagan or Judge Roberts, by embracing a concept approved by the court, equates to that administration or this person being incensed at people of color in this country I think is very unfair and off base. You said something yesterday that was very compelling to me. I asked you, could you express or articulate what you thought might be one of the big threats to the rule of law. And I believe you said, Judges overstepping their boundaries, getting into the land of making the law, putting their social stamp on a cause, rather than interpreting the law, because that could over time, in the eyes of the public, undermine the confidence in the court. Is that a correct summary? Yes, Senator. GRAHAM: Well, we have before us today, Judge Roberts, a legal opinion just issued, hot off the presses, that says the establishment clause of the Constitution apparently is violated if an American recites the Pledge of Allegiance. You will be on the court, I hope, and you will use your best judgment on how to reconcile the 9th Circuit opinion. And I'm not asking you to tell us how you might rule, I'm making a personal observation that this is an example, in my opinion, of where judges do not protect us from having the government impose religion upon us, but declare war on all things religious. And that is my personal view and opinion. That's why most Americans sometimes are dumbfounded about what's going on in the name of religion. No American wants the government to tell them how to worship, where to worship or if to worship. But when we exercise our right to worship, it bothers me greatly that judges, who are unelected, confused the concept between establishment and free exercise. And I will move on. I think it is one of the cases that is undermining the confidence in the judiciary. And I'm glad that you're sensitive to that. The war on terror. In my past legal life, I've spent most of my legal career associated with the military. And I'm proud to be a military lawyer. I'm the only Reservist in the Senate. I sit as an Air Force Court of Criminal Appeals judge. I handle the easy cases, because I don't have a whole lot of time and I help where I can. But I understand, I think, very well what it means to abide by the judicial canons of ethics -- not to tip your hand, not to compromise yourself to get promoted or to get put on the court; promoted in the military or to get put on the board; trying to please your boss, trying to please a senator. And my respect for you has gone up because you're unwilling to compromise your ethics. And I hope the Senate will understand that, in the past, other people were not required to do so. Are you familiar with the Geneva Convention? ROBERTS: Yes, Senator. GRAHAM: Do you believe that the Geneva Convention, as a body of law, that it has been good for America to be part of that convention? ROBERTS: I do, yes. GRAHAM: Why? ROBERTS: Well, my understanding in general is it's an effort to bring civilized standards to conduct of war -- a generally uncivilized enterprise throughout history; an effort to bring some protection and regularity to prisoners of war in particular. And I think that's a very important international effort. GRAHAM: As Senator Kyl said, this will be the only time we get to talk. And I don't want to compromise your role as a judge, but I do want you to help me express some concepts here that America needs to be more understanding of. And I want to work with my Democratic friends to see if we can find some way to deal with us. We're dealing with an enemy that is not covered by the Geneva Convention. Al Qaida, by their very structure and nature, are not signatories to the Geneva Convention and are not covered under its dictates. An enemy combatant: Are you familiar with that term in the law? ROBERTS: Yes, Senator, I am. GRAHAM: What would an enemy combatant be under American jurisprudence? Who would they be? ROBERTS: Well, I really have... GRAHAM: Fair enough. Fair enough. ROBERTS: Those cases are both pending. The ones that I've decided are pending before the Supreme Court and those issues are likely to come before... GRAHAM: Fair enough. The Geneva Convention doesn't cover Al Qaida, but or president has said that anyone in our charge, terrorist or not, will be treated humanely. I applaud the president, because, in fighting the war on terror, we need not become our enemy. Our strength as a nation is believing in the rule of law, even for the worst of those that we may encounter. I admire Mr. Adams for representing the Redcoats. I cannot imagine how tough that must have been. But his willingness to take on the unpopular cause in the name of the rule of law has made it stronger. When the president said that we will treat everyone humanely, even the worst of the worst, I think he's brought out the best in who we are. But we're in a war, Judge Roberts, where the Geneva Convention doesn't apply. And we have before the courts a line of cases dealing with the dilemma this country faces. When you capture an enemy combatant, non-citizen, foreign terrorist, there's three things I think we must do. We must aggressively interrogate them without changing who we are. We must have the ability to keep them off the battlefield for a long period of time to protect our nation. And we must have a system to hold them accountable for some of the most horrible crimes imaginable. Justice Jackson was of your favorite justices. Is that correct? ROBERTS: I think that's a fair description, yes. GRAHAM: He has indicated in the Youngstown case that the presidency of the executive branch is at its strongest when it has concurrence with the legislative branch. Is that a fair summary of what he said? ROBERTS: Yes. He divided up the area basically into three parts. Considering the executive's authority, he said when it has the support of Congress it's at its greatest, and, obviously, when it's in opposition to Congress it's at its lowest ebb, as he put it. And he described a middle area in which it was sometimes difficult to tell whether Congress was supporting the action or not. GRAHAM: This is me speaking, not you. Congress is AWOL, ladies and gentlemen, in the war on terror when it comes to detention, interrogation and prosecution of enemy noncitizen combatants. Justice Scalia has written eloquently that Congress has the power to get involved in these issues and Congress is silent. What is the case, is it the Rasul case, where the Supreme Court in a 5-4 decision has given habeas corpus rights to noncitizen foreign terrorists? ROBERTS: I think that's correct, Senator. GRAHAM: That is an amazing departure from what we've been as a nation for 200 years. I have been to Guantanamo Bay twice. The people running the prison tell me that 185 of detainees have lawyers in federal court. Justice Scalia says we've set up a situation where 94 different jurisdictions can hear habeas cases involving noncitizen foreign terrorists. The people running the jail say this process is undermining out ability to get good information. A habeas corpus petition, would it allow a defense attorney to call a military commander in to answer for how this person was captured? ROBERTS: I don't know, Senator, and I hesitate to opine on that without knowing. GRAHAM: Well, the truth is that we've set up a situation where our military leaders and our military commanders and soldiers in the field can be called from all over the world, all over the country, to answer for why such person is detained. We had a conversation in our office, my office. You said something to the effect, as Justice Scalia said in his dissenting opinion, that this would be an area where the courts would welcome some congressional involvement. And right now, we have the executive branch carrying the load totally by themselves. We've got several cases before the court dealing with detention policy, interrogation policy and prosecution policy. Do you believe that this is an area, if the Congress acted, as Justice Jackson said, that it would strengthen the hand of the executive in a legal situation? ROBERTS: My observation during our meeting, Senator, was not an expression of legal determination. And it doesn't necessarily mean a view that Congress' action or involvement would be determinative or would even be within the scope of legal authority, depending on what the issue and the arguments were. I do know that when you are in the middle area, where it's difficult to determine whether Congress is supporting the president's action or is opposed to the president's action, that the court often has to try to read the tea leaves of related legislation. If you look at the Dames and Moore decision coming out of the Iranian hostage crisis, what the court did in that case, applying the middle tier, was look at a vast array of legislation. And it was a very difficult enterprise to try to figure out what Congress' view was. My point was simply that if we'd know what Congress' view was, it might make it easier to apply it in a particular case, and you wouldn't have to go through that process of trying to determine what position Congress was in, if that turned out to be pertinent under the particular legal challenge. GRAHAM: Thank you. Justice Scalia said in a very direct way, The courts are ill- equipped to deal with these issues. In the Youngstown Steel case, Justice Jackson says, When the president acts pursuant to an express or implied authorization of Congress, his authority is at the maximum, for it includes all that he possesses in his own right, plus all that Congress can delegate. A seizure executed by the president pursuant to an act of Congress would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who may attack. Do you agree with that? ROBERTS: That was read from the Jackson -- I do. I agree with the basic proposition that the president's authority is at its greatest when he has the support of Congress. GRAHAM: To my colleagues, I think it is imperative for this body to get involved in the war on terror when it comes to detaining, interrogating and prosecuting enemy combatants who are not citizens. It is important that all three branches of government, in my opinion, feel comfortable with the policies of this nation, that we'll be stronger if the judicial branch, the legislative branch and the executive branch are working together to come up with policies that will allow for aggressive interrogation, appropriate detention and serious prosecution in a way that's within the values of our nation. So that is why I will be introducing legislation on all those topics. And I will not ask you any further what you may or may not do about the legislation if it ever gets to the floor of the Senate and passed. The Kelo case. Of all the things that have been decided, and I haven't been to my office since the recent case about the pledge -- though it may have trumped it -- I have gotten more phone calls about the Kelo case than anything the Supreme Court has done lately. And for those who may be tuning in, the Kelo case basically said that the government can take your property, give it to someone else, another private person because it could be used at a higher and best use and it may generate more taxes. I'm not going to ask you to tell me how you decide the Kelo case. But I just want you to know -- as Senator Kyl indicated, this is the only time you can hear from us -- that my phone is ringing off the hook and that every legislature that I know of is going into session as quickly as they can to correct that. So I want to leave with you -- and when you meet your new colleagues, please let them know that some of the things they do that we watch. And that the courts are able to do their job because the public defers to the court and respects the court, but there is a limit. The office of chief justice of the United States is different, as you're the first among equals. What do you believe as chief justice you can bring to the table that you could not as just a normal member of the court? ROBERTS: Well, if I am confirmed, I think one of the things that the chief justice should have as a top priority is to try to bring about a greater degree of coherence and consensus in the opinions of the court. I know that has been -- was a priority of the last chief justice. I actually believe that is something that should be a matter of concern for all of the justices, but as the chief, with responsibility for assigning opinions, I think he has greater scope for authority to exercise in that area and perhaps over time can develop greater persuasive authority to make the point. And again, coming from the chief it may be a point that other justices would receive -- be more receptive to than they might coming from one of their colleagues; that we're not benefited by having six different opinions in a case; that we do need to take a step and think whether or not we really do feel strongly about a point in which a justice is writing a separate concurrence which only he or she is joining, or whether the majority opinion could be revised in a way that wouldn't affect anyone's commitment to the judicial oath to decide the cases as they see fit, but would allow more justices to join the majority so the court speaks as a court. That is something that the priority should be, to speak as a court. GRAHAM: So your goal as chief justice is where you can, and as often as you can, define consensus and unite the court, is that true? ROBERTS: I think the court should be as united behind an opinion of the court as it possibly can. Now, obviously, in many cases it's not going to be possible. GRAHAM: I applaud you because we're a divided nation, and the more united we can become at any level of government, the stronger we'll be. So I applaud you for that attitude.

Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)

WASHINGTON- U.S. Senator Lindsey Graham (R-South Carolina) today announced Calhoun Falls will receive a $214,400 grant and $276,000 loan for improvements in the water and sewer department. The funds will be used to transform an existing building and convert it into a maintenance facility. Calhoun Falls was previously awarded a $373,100 grant and $211,000 loan for this project. The grant and loan were awarded by the U.S. Department of Agriculture. ####

Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)

SEN. ARLEN SPECTER: Thank you, Senator Feingold. Senator Graham? SEN. LINDSEY GRAHAM: Thank you, Mr. Chairman. I imagine the reason that you argued different positions is because people paid you. Is that correct? JUDGE JOHN ROBERTS: That's how I made my living, Senator. GRAHAM: OK. I can relate to that. I imagine it must be very hard to figure out what Congress intends. Do you agree with that? ROBERTS: Sometimes it's easier than others and sometimes it's hard to read the tea leaves. GRAHAM: I can relate to that also. I want to read an excerpt from the National Association of Women Lawyers and their evaluation of you -- 8/30/05 -- As a lawyer and judge, based on interviews the committee conducted, Judge Roberts has treated individual women lawyers fairly and with respect, has fostered careers of women lawyers, has been helpful in enabling women to address work/life balance issues while advancing professionally, and has been consistently described as respectful to female colleagues, female lawyers appearing before him and female employees. You've been asked about every case, I think, ever written by anyone. I would like to talk to you a little about life. The idea of judging you based on this section of the commerce clause and that section of the commerce clause is important, but I think most Americans want to know a little bit about you. And from what I can tell, the people who've worked with you and against you generally like you, and that you've been described as brilliant, one of the best legal minds of your time, well-qualified. The adjectives go on and on. And I want the record to reflect: That comes from people who know you the best. The best indication of a good lawyer is how people on the other side think of you. And we'll get some excerpts from the record to put that into the record. Apparently, from what I can tell, you've conducted your life in a noble, honorable manner; that you've been a good litigant; and that you have fought for your causes and you have done so to earn respect of those on both sides of the aisle. But there's a greater issue here about who you are. Justice Rehnquist was your mentor, is that correct? ROBERTS: He's certainly someone from whom I learned a great deal, yes. GRAHAM: OK. So if I was trying to figure out who John Roberts is and a little bit about him, I will ask this question: Write the legacy of Justice Rehnquist for a minute or two. What would you say if given that task? ROBERTS: Well, you know, I think if you were able to ask him, he would talk about being a grandfather, being a father... GRAHAM: I'm asking you. ROBERTS: ... being a husband. GRAHAM: I'm asking you. ROBERTS: But the important point is that those were important things in his life and he appreciated the need to recognize that those are the most important things. With respect to the law to which he devoted his professional life, I think a big part of the legacy that he leaves is a Supreme Court in which all of the members respected and admired him because of his fairness in administering the court and conducting the important responsibilities like managing the conference and assigning opinions. GRAHAM: You can go back in history and look at what other chief justices did. Some were -- in terms of that administrative responsibility -- some were disasters. You look at Harlan Stone, his idea of running the conference, he said what he thought, then the next senior justice said what he thought. Then Justice Stone critiqued that. Then the next justice, and then Justice Stone critiqued that. And the result was the conferences went on for days and everybody ended up hating each other. So he ran a good ship. I think we all agree with that. And his colleagues respected him whether they disagreed with him or not. But the basic question is, when you write about the legacy of a Supreme Court justice, you write more than about being a grandfather -- more about running a tight ship, especially chief justice: Would you agree with the idea that, from a conservative point of view, he was the gold standard? ROBERTS: I think he was a very effective advocate on the bench for a view of the Constitution that is one of limited and separated powers. GRAHAM: Do you share that view? ROBERTS: I do. I think that the -- now, I have to tell you that whether as a judge on the court of appeals or if I am confirmed on the Supreme Court, I will certainly be my own man and there are... GRAHAM: No one is doubting that. No one is doubting that you will not try to be fair. But the big thing, 30,000-foot view of you, is that when you look at Judge Roberts, you're looking at someone in the mold of a Rehnquist. Is that a fair assessment? ROBERTS: Well, you know, I admire the late chief justice very much. But I will have to insist that I will be my own man and I hesitate to be put in anybody's mold. And I would certainly approach the cases according to the judicial philosophy that I have developed over the years. In many respects, it's similar to his: in its recognition, I think, of the limited role that judges should have, an appropriate modesty and humility, a recognition that... GRAHAM: The idea of a dramatic departure under your watch from the Rehnquist era is probably not going to happen, is that true? ROBERTS: Given my view of the role of a judge which focuses on appropriate modesty and humility, the notion of dramatic departures is not one that I would hold out much hope for. GRAHAM: I know people don't like being labeled, Put me in that category. But I'm in a business where people label me all the time. But I ask for it, I run for office. But we do tend in our business of politics to try to label people, particularly when we're talking about judges. When the president introduced you to the United States, to the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words? ROBERTS: Well, I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their posterity. They were looking ahead. And so they often used phrases that they intended to have... (CROSSTALK) GRAHAM: Does that term make you feel uncomfortable? ROBERTS: No. GRAHAM: Now, from a 30,000-foot view of things, it seems to be that we're going to have a referendum on the Reagan era here, which I welcome. I sort of enjoyed it, he won 49 states. He did pretty good. You were part of the Reagan era as a young lawyer. When I use the word -- term -- Reagan revolution, what does it mean to you? ROBERTS: Well, it means to me generally a change in attitude. President Reagan always presented an optimistic view. He always told us that the best days of our country were ahead of us. And he reasserted basic fundamental truths in areas like foreign relations. We are going to stand up to the Soviet Union. We're proud of our system of government. That's the right approach, not the Soviet approach. And people who have come of age after the Berlin Wall has fallen sometimes don't understand what it meant at that time. GRAHAM: When it comes to the law, what does the term Reagan revolution mean to you? ROBERTS: I think it means a belief that we should interpret the Constitution according to its terms; that judges don't shape policy; that judges interpret the law and that legislators shape policy; that the executive branch executes the law. GRAHAM: Does it also mean that when you talk about affirmative action and you set up a quota system, that's not right? ROBERTS: President Reagan's policy was opposed to quotas, which were much more rigid at the time. People need to appreciate 24 years ago the idea of a quota was a rigid set-aside. We now have the recent Supreme Court decisions talking about consideration of particular factors as one factor in an affirmative action program. President Reagan was in favor of affirmative action and he was opposed to quotas. GRAHAM: When it comes to voting rights, as I understand -- and we talked a lot about it, and we probably know more than all of us ever dreamed we would know about the Voting Rights Act -- that you were implementing a policy of President Reagan that wanted to pass the Voting Rights Act in its form that you received it. Is that correct? ROBERTS: The proposal was to extend it for the longest period in history without change. GRAHAM: And we've been through a long discourse about the effect and intent test. I think you've explained yourself very well that the Supreme Court in the Mobile case said the intent test applies to Section 2. Is that right? ROBERTS: Section 2. GRAHAM: But politics took over after that, didn't it? Because the effect test no longer -- that's not the test. Isn't it some compromise between Senator Kennedy and Senator Dole? ROBERTS: There was a compromise in the test under Section 2, which is articulated in a paragraph describing what the criteria are, including a caution that this should not be read to promote proportional representation, which was some of the concern that the attorney general and President Reagan had. GRAHAM: So between Dole, Senator Kennedy and President Reagan, a new test was called the totality of the circumstances? ROBERTS: Yes. GRAHAM: Now, when you said that you -- Senator Kennedy said something I thought was very important: that courts should not stand in the way of elected officials who are trying to right wrongs. And the point I'm trying to make here is that you were picked by a conservative president because you have associated yourself with the conservative administrations in the past, advising conservative presidents about conservative policies. And there's another selection to be made, and you're going to get the same type person. And you can -- I'm not even talking to you now. (LAUGHTER) To expect anything else is just not fair. I don't expect -- I didn't expect -- President Clinton to pick you. It's not because you're not well-qualified, not because you're a good person; just a different political, legal philosophy. Now, that's what we're going to have to come to grips with here. Justice Scalia: Do you consider him conservative? ROBERTS: Yes. GRAHAM: Do you think you're more conservative than he is? ROBERTS: Oh, I don't know. I mean, I wouldn't... GRAHAM: Well, he got 98 votes. And I think you're a conservative, but I think you're one of the great minds of our generation, of our time. And I'm dying to find out if you get any votes on the other side. Time will tell. Let's talk about righting wrongs here. I think it stinks that somebody can burn the flag and that's called speech. What do you think about that? ROBERTS: Well... (LAUGHTER) We had the Flag Protection Act after the Supreme Court concluded that it was protected speech. GRAHAM: Show me where the term symbolic speech is in the Constitution. ROBERTS: Well, it's not. GRAHAM: It's not. They just made it up, didn't they? And I think it stinks that a kid that can't go to school and say a prayer if he wants to voluntarily. What do you think about that? ROBERTS: That's something that's probably inappropriate for me to comment on. GRAHAM: What do you think Ronald Reagan thought about that? ROBERTS: His view was that voluntary school prayer was appropriate. GRAHAM: I think it's not right for elected officials to be unable to talk about or protect the unborn. What do you think about that? ROBERTS: Well, again, Senator, these are issues that are likely to come before the court, and I can't comment on those particulars because... GRAHAM: Why are judges more capable of protecting or talking about the unborn than elected officials? ROBERTS: Well, again, those are issues that come before the court on a regular basis in particular cases. And on my current court or the future court, I need to be able to approach those cases with an open mind and not on the basis of statements I make during a confirmation hearing. GRAHAM: The point is that righting wrongs is a very subjective thing. And you will be asked to decide the fate of people with individual needs and individual desires, based on particular fact patterns and legal briefs. I'm confident you can do that and that you will do that. And I don't think you need to make a bargain with me to right all the wrongs that I see in life to sit on the Supreme Court. What's it like to go through the nominating process in 2005 from a personal point of view? I've been watching television, channel flipping, and I see some awful things said about you. Have you seen those things? ROBERTS: I've seen some things, yes. GRAHAM: How does that make you feel? ROBERTS: Well, some of the mischaracterizations, you know, you get annoyed at them. I don't like them. Some of the things you see you get pretty upset about. GRAHAM: How's it make your family feel? ROBERTS: I would say they get upset about some of the things, as well. GRAHAM: But, you know, it's a free country and that's just the way it is. Right? ROBERTS: It is, and it's an expression I've been using a lot lately. It is a free country, and it's a good thing that it is. GRAHAM: Let's not talk about you now, but I would like you to comment, give us some advice here. We're always trying to advise the president through you. What's the long-term effect on the quality of candidates that we'll be able to recruit for jobs like the Supreme Court if the current process continues and grows over time? ROBERTS: I think it is a very serious threat to the independence and integrity of the courts to politicize them. I think that is not a good development, to regard the courts as simply an extension of the political process. That's not what they are. I have been fortunate for the past two years to serve on a court in which all of the judges -- and they come, the D.C. Circuit, they come from very active careers in public life and sometimes very identified politically -- but it's a court where those judges put aside those ties and those views and become judges all focused on the same mission of vindicating the rule of law. And if you look at the decisions on the D.C. Circuit, you'll see that we are almost always unanimous, we almost always come out the same way. And to the extent there are disagreements, they don't shape up along political lines. That is an ideal. But the more and more that the process becomes politicized, the less likely that that's going to happen. GRAHAM: Another line of inquiry that's been disturbing to me is that we talk about the clients you represent, whether it be the Ronald Reagan administration or some private sector client, and we tend to hold that maybe unpopular position against the lawyer. There's more and more of that happening. We've had court of appeal nominees that were accused of being insensitive to the disabled population when they won their case 9-0 in the Supreme Court defending a university from the idea that they were not covered under the Americans with Disabilities Act. I really do worry that in the future that if we up here start holding who you represent against you, that young lawyers in the future will pass on the hard cases. What's your thoughts about that? ROBERTS: You know, it's a tradition of the American bar that goes back before the founding of the country that lawyers are not identified with the positions of their clients. The most famous example probably was John Adams, who represented the British soldiers charged in the Boston Massacre. And he did that for a reason, because he wanted to show that the revolution in which he was involved was not about overturning the rule of law, it was about vindicating the rule of law. Our founders thought that they were not being given their rights, under the British system, to which they were entitled. And, by representing the British soldiers, he helped show that what they were about was defending the rule of law, not undermining it. And that principle, that you don't identify the lawyer with the particular views of the client, or the views that the lawyer advances on behalf of a client, is critical to the fair administration of justice. GRAHAM: Do you believe it's being eroded? ROBERTS: I do think there is an unfortunate tendency to attack lawyers because of the positions they press on behalf of clients. And I think that's unfortunate. GRAHAM: I'm going to give you some examples of a sitting Supreme Court justice and her positions and basically take us back to the good old days where you could have what I think are extreme positions and still make it. Are you familiar with the ACLU? ROBERTS: Certainly. GRAHAM: In the conservative world, how does that rank on the food chain? ROBERTS: I don't know that I could comment on that, but they have a consistent position of promoting civil liberties and a particular view on that. GRAHAM: If you came to the Reagan administration and the top thing on their resume was the general counsel for the ACLU, do you think they would hire you? ROBERTS: Might make it a little harder. (LAUGHTER) GRAHAM: Yes. (LAUGHTER) I think that's a good observation. Well, we have, on the sitting Supreme Court now, the former general counsel for the American Civil Liberties Union, who is a very nice lady, extremely qualified -- I don't agree with her hardly at all -- but a great lawyer. She has written that the age of consent for women should be 12, that all prisons to have gender equality, men and women should be in the same prison because, when you separate them, women prisoners somehow are discriminated against. She wanted to do away or argued the idea that Mother's and Father's Day should be done away with because it stereotypes men and women -- that there's a constitutional right to prostitution. I can give you -- and I'll introduce into the record -- writings from her point of view that most conservatives would find totally unacceptable. But this person, this lady, the former ACLU executive counsel, is sitting on the Supreme Court, and she got 96 votes. She said that there should be federal funding for abortion. 90 percent of our caucus is pro-life -- is that about right? Pretty close? I could assure you that, if a Republican was going to make their vote based on abortion thinking, she would have gotten no votes. Most Americans don't want federal funding of abortion, even though they're divided on the issue of a woman's right to choose. GRAHAM: She has argued that the equal protection clause guarantees a right to abortion. Now, I completely differ with that, and I'm sure the conservatives in the Senate at the time of her confirmation completely differed with that: the idea the age of consent should be 12, that bigamy statutes are discriminatory to women. I can go on and on and on. And the point I'm trying to make is that all of that was put aside, who she represented and what she believed and the position she took, and somehow back then they're able to see in Justice Ginsburg a well-qualified, brilliant legal mind and they deferred to President Clinton because he won the election. Whether that happens to you, I don't know. But for the sake of the country and the rule of law, I hope you can be in the ballpark of where she wound up. Last two questions. In your opening statement, you articulated the rule of law in a way that I thought was just outstanding. It was emotional, it made sense, average people could understand it: that the courtroom is a quiet place, Judge Roberts, where you park your political ideology and you call the balls and you call the strikes, and you try to give every American a fair shake and you put politics in its perspective. What is your biggest concern, if any, about the rule of law as it exists in America? And what are the biggest threats to the rule of law as we know it today? ROBERTS: Well, you know, the rule of law is always vulnerable because the Supreme Court, as has been pointed out often in history, has only the persuasive power of its opinions to command respect. There have been famous episodes in the past, you know -- President Jackson, Chief Justice Marshall has given his opinion; let's see him enforce it -- other episodes of that sort. But over time, the legitimacy of the Supreme Court has been established and it's generally recognized across the political spectrum that it is the obligation of the court to say what the law is and that the other branches have the obligation to obey what the Supreme Court says the law is. The one threat I think to the rule of law is a tendency on behalf of some judges to take that legitimacy and that authority and extend it into areas where they're going beyond the interpretation of the Constitution, where they're making the law. And because it's the Supreme Court, people are going to follow it even though they're making the law. The judges have to recognize that their role is a limited one. That is the basis of their legitimacy. I've said it before, and I'll just repeat myself: The framers were not the sort of people, having fought a revolution to get the right of self-government, to sit down and say, Let's take all the difficult issues before us and let's have the judges decide them. That would have been the farthest thing from their mind. The judges had the obligation to decide cases and the authority to interpret the Constitution because they had to decide cases. And they were going to decide those cases according to the law, not according to their personal preferences. Judges have to have the courage to make the unpopular decisions when they have to. That sometimes involves striking down acts of Congress. That sometimes involves ruling that acts of that executive are unconstitutional. That is a requirement of the judicial oath. You have to have that courage, but you also have to have the self- restraint to recognize that your role is limited to interpreting the law and does not include making the law. GRAHAM: What would you like history to say about you when it's all said and done? ROBERTS: I'd like them to start by saying: He was confirmed. (LAUGHTER) Whether they say that or not, I would like -- the answer is the same, I would like them to say I was a good judge. GRAHAM: Thank you very much. I have no further questions.

Wes Hickman (202-224-5972) or Kevin Bishop (864-250-1417)

WASHINGTON – U.S. Senator Lindsey Graham (R-South Carolina) today made this statement on the nomination of John Roberts to the United States Supreme Court. Graham is a member of the Senate Judiciary Committee. He said: “Thank you, Mr. Chairman. Thanks for the seventh inning stretch, too. We all very much appreciate it. Judge Roberts, playing a little bit off of what my colleague Senator Feingold said, I don't think you expected it to be easy. Having to listen to 18 senators proves the fact that it's not going to be easy. But I hope we will live up to our end of the bargain to make it fair. Fair is something that comes around in September in South Carolina or it can be an idea. The idea of treating you fairly is very important to me because not only are you on display, but the Senate's on display. Senator Kennedy said something that I disagree with, but he's very passionate in his statement. He said the central issue is whether or not you will embrace policies, a certain set of policies, or whether or not you will roll back certain policy decisions. I respectfully disagree with Senator Kennedy. To me, the central issue before the Senate is whether or not the Senate will allow President Bush to fulfill his campaign promise to appoint a well- qualified, strict constructionist to the Supreme Court. And -- in this case -- appoint a Chief Justice to the Supreme Court in the mold of Justice Rehnquist. He's been elected president twice. He has not hidden from the public what his view of a Supreme Court justice should be and the philosophy they should embrace. In my opinion -- by picking you -- he has lived up to his end of the bargain with the American people by choosing a well-qualified, strict constructionist. You have been described as brilliant, talented and well- qualified, and that's by Democrats. The question is, is that enough in 2005 to get confirmed? Maybe not. Professor Michael Gerhardt wrote an article in 2000 called The Federal 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 has written, the Constitution establishes a presumption of confirmation that works to the advantage of the president and his nominee. I agree with that. Elections matter. We're not here to debate how to solve all the nation's problems. We're not here to talk about liberal philosophy versus conservative philosophy and what's best for the country. We're here to talk about you and whether or not you are qualified to sit on the Supreme Court, whether or not you have the intellect, the integrity and the character. It has been said in the past by members of this committee -- Senator Kennedy -- I believe -- it's recognized by most senators that we're not charged with a responsibility of approving justices if their views always coincide with our own. We're really interested in knowing whether a nominee has the background, experience, qualifications, temperament, integrity to handle the most sensitive, important and responsible job. And that's being on the Supreme Court. If you're looking for consistency, you've probably come to the wrong place, because the truth of the matter is that we're all involved in the electoral process ourselves and we have different agendas. Your memos are going to be talked about. The memos you wrote while you were working for President Reagan and Bush 1, in my opinion, reflect a conservative lawyer advising a conservative president about conservative policies. To some, those policies make no sense; those policies are out of the mainstream. But this hearing is about whether or not you're qualified. Not whether Reagan conservatism is in the mainstream. Does affirmative action require quotas? From a conservative point of view, no. From a conservative point of view, we don't want federal judges setting the value of someone's wages from the bench. You wrote about that. Now, some people want that, but conservatives don't. Environmental policies: We want a clean environment, but we don't want to ruin the economy in the process. We want to be able to build levees to protect cities. Conservatives have a different view of a lot of issues versus our friends on the other side. The election determines how that shakes out. We're here to determine whether or not you and all you've done in your life makes you a fitting candidate to be on the Supreme Court. Before we got here, the Senate was in disarray. May 23rd of this year, I engaged in a compromise agreement with seven Democrats and seven Republicans to keep the Senate from blowing itself up. You're the first nomination that we've dealt with in any significant manner after that agreement. There's plenty of blame to go around, Judge Roberts. On our watch, I'm sure we did things in committee that were very unfair to Democrat nominees, particularly by President Clinton. At the time of that agreement, there were 10 people being filibustered, for the first time in the history of the Senate, in a partisan manner, that were going to be on the court of appeals. We were in chaos. We were at each other's throats. Since May 23rd, we've done better. The Senate has gotten back to a more traditional role when it comes to judges. As Senator Specter described the committee, we've done some good things on this committee and in the Senate as a whole. I hope we will take the chance to start over because the public approval of the Senate now is in the 30s. That’s not your fault, Judge Roberts; it's our fault. We have an opportunity as senators to show we can disagree based on philosophy but give you a fair shake. The question is whether we'll 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 Supreme Court nominee? Whatever the senator wants it to be. And, really, that's the way it should be. But there should be some goals, in my opinion. The way we conduct ourselves, one of the goals we should have, is to make sure we don't run good people away from wanting to be a judge. I don't know what it's like to sit at home and turn on the television and watch a commercial about you in the presence of your wife and your kids that say some pretty unflattering things. That's just not a problem you've faced. I'm sure Democratic nominees have faced the same type problem. We shouldn't, in our standard, be trying to come up with a standard to invalidate elections. The president won. The president told us what he's going to do and he did it. He picked a strict constructionist to be on the Supreme Court. If anybody is surprised, they weren't listening to the last campaign. Roe v. Wade: It divides America. If you believe in polling, most Americans would like to see the decision stand even though we're divided 50-50 on the idea of abortion on demand. My good friend from California has expressed a view about Roe v. Wade which I completely understand and respect. I can just tell you, Judge Roberts, there are plenty of women in South Carolina who have an opposite view about abortion. If we were to make our votes, base our votes on that one principle, Justice Ginsburg would not be Justice Ginsburg. In her writing, she embraced the idea of federal funding for abortion. She indicated that an abortion right was based on the equal protection clause of the Constitution. I dare say 90 percent of the Republican Caucus is pro-life. I dare say 90 percent of the Democratic Caucus is pro-choice. Justice Ginsburg 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 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 conducted yourself, what kind of lawyer you were, what kind of man or woman you were, not whether you had an allegiance to a specific case or a particular cause. Let's get back to those days. Let's get back to the days where the Ginsburg’s and the Scalia’s can be pushed and pressed, but they can be honored for their commitment to the law and the way they live their life. Let's get back to the good old days where we understood that we were looking for well-qualified people to sit on the highest court of the land -- not political clones 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 rule of law and you don't have a democracy. The law, Judge Roberts, to me, represents a quiet place in American discourse. Politics is a 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. I know you will honor the rule of law in our country and that you will be a judge that we all can be proud of. God bless you and your family. ##### Note: Audio of Senator Graham's statement is available at the Senate Republican Conference radio page.