from session number 14:
Senator Schumer Q's, regarding Mr Roberts seeming evasiveness when it comes to the topic of Supreme Court justice dissenting opinions:

quote:

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SCHUMER: And every justice on the Supreme Court has dissented in many cases; meaning they disagreed with the opinion of the court, right? And nothing is wrong with that? There is nothing improper, nothing unethical?

Let's go to commentators. Non-judges are free to criticize and disagree with Supreme Court cases. Correct?

ROBERTS: Yes.

SCHUMER: In speeches, law review articles, it's a healthy process, wouldn't you say?

ROBERTS: I agree with that. Yes.

SCHUMER: And you did this occasionally when you were in private practice?

ROBERTS: Yes.

SCHUMER: OK. Nothing unseemingly about that?

ROBERTS: No.

SCHUMER: OK. And how about lawyers representing clients? Lawyers representing clients criticize cases and legal briefs all the time. That's what they do for a living.

And that's part of being a good lawyer.

And you signed your name to briefs explicitly criticizing and disagreeing with Supreme Court decisions?

ROBERTS: On occasion, yes.

SCHUMER: In Rust v. Sullivan, for example, your brief said that, quote, Roe was wrongly decided and should be overturned, unquote. Right?

ROBERTS: Yes.

SCHUMER: OK. But in this hearing room, you don't want to criticize or disagree with any decided cases? That seems strange to me. It seems strange, I think, to the American people that you can't talk about decided cases -- past cases, not future cases -- when you've been nominated to the most important job in the federal judiciary.

You could do it when you worked in the White House, you could do it when you worked in the Justice Department, you could do it when you worked in private practice, you could do it when you gave speeches and lectures; as a sitting judge, you've done it until very recently. You could probably do it before you just walked into this hearing room.

And if you're confirmed, you may be doing it for 30 years on the Supreme Court. But the only place and time that you cannot criticize any cases of the Supreme Court is in this hearing room -- when it is more important than at any other time that the American people, and we the senators, understand your views.

Why this room should be some kind of a cone of silence is beyond me. The door outside this room doesn't say, check your views at the door.

So your failure to answer questions is confounding me. You've done it in instance after instance after instance after instance.

What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day?

In each case, they have to state their opinion. They have to do it as part of their job, if you will -- writing a brief, rendering an opinion, writing an article.

In each case, they're stating their views, which might bias them. You've done it.

Yet, only here you can't state your views. If the argument -- and, by the way, there's a very god countervailing reason that you should state your views, because, as the founding fathers so constructed, this is the one time you go before an elected body before a lifetime appointment.

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Roberts is a smart cookie, obviously has great command of the English language, and is heads above most on legalese (though you wouldn't know it in the hearings by all those simple YES/NO answers ). But it's beyond bothersome that he won't give straightforward answers. Somehow, I think he'll pass the litmus test, if only because he is such a 'fox' and therefore not easy to 'pen down' on any issues. LOL.

quote:

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CORNYN: But do you know for a fact that Justice Breyer, when he was being considered about a possible nomination to the Supreme Court, sat and decided seven cases while sitting on the D.C. Circuit Court of Appeals. Are you familiar with that statistic?

ROBERTS: No, I'm not, Senator.

CORNYN: OK. Well, our research reveals that that is, in fact, what happened. And so if Justice Breyer could participate fully in the court's decision-making process while being considered by President Clinton for nomination to the Supreme Court, it strikes me that we should not have a different standard -- and I'm not asking you to comment on that, because you said you're not familiar with Justice Breyer's record.

But if that's true, and I believe it is -- that he sat on seven different cases involving the United States government and the executive branch while he was being considered for the Supreme Court -- we shouldn't hold John Roberts to a different standard.

And that's my view.

We've got about five minutes. Let me just ask you, just as a practical matter: I worry when I see that the Supreme Court's opinions are so fractured and divided as you alluded to, I believe, on the question of the Ten Commandments.

The only one that agreed with both decisions, that the Ten Commandments could be displayed in Texas but not in Kentucky, was Justice Breyer.

And there were 10 opinions in those two cases, which led the former Chief Justice Rehnquist to quip: Well, that's more opinions than we have justices -- 10 opinions for nine justices in that case, which decided the constitutionality of the Ten Commandments.

Well, it strikes me that one of the goals of the court ought to be -- of any court ought to be -- to write decisions that can be read and understood by a person of reasonable intelligence and, frankly, Judge, I have to tell you that lawyers struggle -- no doubt circuit court judges, trial court judges, such as in the court you serve on now, struggle to try to figure out just what in the world the law actually is.

And it breeds additional litigation, a lot of money, a lot of time spend just litigating issues that the court could, if it had the will, clearly decide.CORNYN: And in some ways I think it leads some observers to wonder whether the Supreme Court is firmly grounded in the reality of how their decisions will actually be read and understood and implemented, either by lower courts or by litigants who are trying to figure out what is the law, so how can I conform my behavior and how can I make plans in a way that I can rely upon is legal.

I'd be interested in your observations.

ROBERTS: Well, Senator, I hope we haven't gotten to the point where Supreme Court opinions are so abstruse that the educated lay person can't pick them up and read them and understand them.

You shouldn't have to be a lawyer to understand what the Supreme Court opinions mean.

One of the reasons I've given previously for admiring Justice Jackson is he was one of the best writers the court has ever had. And I think you didn't have to be a lawyer to pick up one of his opinions and understand exactly what his reasoning is and why he's saying that. And if he's citing and relying on precedents, he can cite them and explains them. They're not written in jargon or legalese.

But an educated person whose life, after all, is being affected by these decisions can pick them up and read them, and you don't have to hire a lawyer to tell you what it means.

I hope we haven't gotten to a point where that's an unattainable ideal.

Now I'm not suggesting that I've always lived up to that. And I'd hate to have somebody go back and look at my opinions and critique them under that exacting standard.

But I do think that's something that it's worth shooting for, at least in most cases, that opinions should be accessible to educated people without regard to whether they're lawyers or not.

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[This message has been edited by Midnitesun (09-14-2005 08:01 PM).]

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"If we have no peace, it is because we have forgotten that we belong to each other"

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