Confirmation hearings for U.S. Supreme Court Justice Nominee Sandra Day O’Connor before Senate Judiciary Committee. U.S. Senator Orrin Hatch (R-UT) asks O’Connor’s opinion on the issue of allowing women to serve in combat in the military. O’Connor discusses her time on the Defense Advisory on Women in the Service, which considered a variety of statutes and regulations regarding women in the service. O’Connor says the Defense department established that women would be allowed various service rolls in the branches of the military. The Advisory then looked into the role of women in the military and then made appropriate recommendations. O’Connor offered suggestions that were adopted by the group and then Congress. O’Connor's suggestions asked if the statutory definitions of combat could be revisited. O’Connor wanted to provide a specific outline of what roles women could hold in the military.

Justice THURGOOD MARSHALL, seated in chambers in Supreme Court building, discussing objectives of civil rights lawyers.

MS Thurgood Marshall saying first successes were in courts, white judges grudgingly acknowledged the law.

Shot of unidentified white man saying that the life tenure of Justices is tolerable b/c the people's elected representatives have the power of confirmation. Panning shot of sidewalk and street adjacent to Supreme Court, pan to EST shot of building. Dolly in shot through parted red velvet curtains to Supreme Court chamber, judicial bench. MSs of WILLIAM REHNQUIST and ANTHONY KENNEDY walking out of Court building, past columns; MS of cameramen, reporters at base of steps. MSs of Justice KENNEDY and family gathering for photo, cameramen taking pictures.

Senate Judiciary Committee hearings on nomination of Sandra Day O'Connor for Supreme Court justice. MS Senator Strom Thurmond (R-SC), committee's Chairman, announcing, The Judiciary Committee will come to order. Questioning of Judge O'Connor by the members of the committee will continue. Judge O'Connor, I would remind you that you are still under oath. Judge O'CONNOR. Thank you, Mr. Chairman. The CHAIRMAN. We will now hear from Senator Laxalt of Nevada. (TOPIC: PRESIDENTIAL AUTHORITY OVER INDEPENDENT AGENCIES) Senator LAXALT (Paul Laxalt, R-NV). Judge O'Connor, in 1972 legislation which was sponsored by you was enacted by the Arizona Legislature giving the State attorney general power to approve all regulations proposed by State agencies. Here at the Federal level the experts have debated what inherent authority the President has over Federal agencies, including the so-called independent agencies, due to his constitutional role as Chief Executive. We are in the throes now of attempting to enact and implement administratively as well as up here legislatively substantial regulatory reform. The essence of that problem is jurisdictional in part. I would like to have your views as to what Executive authority over the so-called independent administrative agencies you believe a President of the United States has. Judge O'CONNOR. Mr. Chairman, Senator Laxalt, I think it may depend on the legislation in each instance as to what role has been envisioned for the Executive with respect to some particular agency. I recognize that Congress is dealing today in terms of legislative review of the relationship that would be appropriate in terms of agency regulation. In fact, I think some consideration is being given-if I am not mistaken-to even having the legislative body itself involved by some sort of legislative review. These proposals, of course, have not been tested yet; and I cannot speak to the constitutional validity of them, I think; but it involves essentially a question of the essential separation of powers concept and the extent to which, under the separation of powers at the Federal level, it is considered desirable to have some form of oversight of the administrative bodies, whether it be by the executive branch or the legislative branch. To the extent that these administrative agencies are executive agencies or agencies under the executive branch of Government and that the executive branch is given some role of oversight in connection with them, it does not appear to involve a question of separation of powers. To the extent that the concept or vehicle used is one of legislative review of the regulations or the actions, we have different questions at play. In Arizona, as you have indicated, the State adopted a practice in the year that you mentioned of having the attorney general part of the executive branch review the regulations of agencies of the executive branch for legality prior to their adoption by those agencies. That system seems to have served reasonably well. Senator LAXALT. If I understand you correctly, in the absence of some legislative prohibition there would be no constitutional bar on the grounds of separation of powers or otherwise, restraining a President from exercising direct authority and responsibility over the independent agencies if the legislation in question opened the door for him to do so? Judge O'CONNOR. Mr. Chairman, Senator Laxalt, it would appear to me-again without attempting to express any legal opinion on a given case-that within the executive branch, provided the legislation allowed for it, the executive branch could be assigned certain roles for review of those executive branch agencies. Senator LAXALT. AS you indicated, a combination of proper oversight here of those agencies plus general supervision on the part of the Executive theoretically at least should get the job done? Judge O'CONNOR. Senator Laxalt, we would hope so.

Senate Judiciary Committee hearings on nomination of Sandra Day O'Connor for Supreme Court justice. Senator Paul Laxalt (R-NV) continues questioning. (TOPIC: JUDICIAL NOTICE) Senator LAXALT. Let us talk about judicial notice for just a moment or so. Reviewing your own record, it has been very pleasant for this Senator as a former lawyer and one who has worked on this committee for quite a while to find that you have, in fact, as a judge, exercised considerable judicial restraint. You, in fact, in your position, have been a judge rather than a public official or a legislator; and you have operated within those constraints. One of the areas where license can be used, I would imagine, by any judge, is in looking beyond the record factually as a judge may or may not find that record and getting out into the labyrinth that we call judicial notice. This brings into play then, factually and otherwise, an independent situation which may or may not be proper. In this general area I would like to ask you this, Judge O'Connor: In the context of several of your own opinions you have been called upon to address the permissible scope of judicial notice. As a matter of policy rather than one of statutory construction, what do you, as a judge who has sat on the State level and who now aspires to sit on our highest court, view as the proper range of judicial notice? I suspect that in controversial cases that have been alluded to here previously Roe v. Wade and others-perhaps our Supreme Court in that situation did, I think, indulge in far too much latitude in this area. May I have your views? Judge O'CONNOR. Senator Laxalt, with respect to the application of those things of which a court can take judicial notice I can share with you my views as a State court judge when I have had to face the question, and that basically is that the court was allowed to take judicial notice only of matters which were, in effect, beyond dispute-for example, a date or the time within which the Sun rose or set on a given date, or the location of a particular community geographically, or something of that sort. These are the instances in which we would normally apply judicial notice at the State level-I would say very limited circumstances. Senator LAXALT. Do you see an application of the doctrine in respect to the functions of the Supreme Court? Judge O'CONNOR. Senator Laxalt, I have not had occasion to review all the instances in which the Supreme Court has been called upon to take judicial notice of something, so I would be perhaps not in a position to give you examples of where the Court may have adopted a broader view if it has. I can only speak from my experience as a State court judge in which the application of the doctrine would be very limited.

Senate Judiciary Committee hearings on nomination of Sandra Day O'Connor for Supreme Court justice. Senator Howard Metzenbaum (D-OH) continues questioning. (TOPIC: MORE LITIGATION IN STATE COURTS) Senator METZENBAUM. You mention the matter of the State courts. Actually you also suggest that more litigation ought to be in the State courts rather than just full access to the Federal courts. But actually State courts really have had more experience in the constitutional issues where criminal matters were involved, and much less experience with respect to civil constitutional claims, which are the subject of all section 1983 civil rights cases and other Federal question cases. You would agree with that, would you not? Judge O'CONNOR. Yes; I would agree generally that the expertise of the State courts in the constitutional area, while not exclusively confined to criminal cases, has been primarily in terms of numbers in that area. I think that the State courts have developed a pretty good capacity to deal with those questions, and I see no reason why that capacity could not be extended to other areas as well. Senator METZENBAUM. In view of your desire to shift Federal question and section 1983 cases to the State courts and to rely on the State legislatures as indicated by your response to the Judiciary Committee questionnaire, would you disagree with this statement by Justice Stewart speaking for a unanimous Court in Mitchum v. Foster in 1972 that, "the very purpose of section 1983 was to interpose the Federal courts between the States and the people as guardians of the people's Federal rights to protect the people from unconstitutional actions under color of State law whether that action be executive, legislative, or judicial"? Obviously, he is saying that we need to have that Federal right and the right to go into the Federal court because in many instances the denial of rights occurred not alone at the executive level, not alone at the legislative level, but also at the judicial level. If you force those cases back into the judicial level, then how does the litigant get a chance to protect his or her civil rights? Judge O'CONNOR. Senator Metzenbaum, I do not disagree at all with the statement that you read. The framework of review could of course encompass making an initial presentation of one's case at the State level in any given situation, and if it were believed that a Federal right had been violated and that it was not adequately vindicated at the State level then to pursue the remedy further through the Federal courts. That certainly is a possibility, it strikes me. Senator METZENBAUM. I am not sure I follow that. If you cannot get your rights litigated and the court has ruled against you in the State court, are you suggesting that you could relitigate the issue in the Federal courts? Judge O'CONNOR. I am suggesting, Senator Metzenbaum, that to the extent that one is in a Federal court and believes that the result on an issue of Federal law was erroneously received or determined one can raise that issue then in the Federal court. Senator METZENBAUM. Do you not think res judicata would prevail to cause the Federal court to dispose of that matter rather summarily on the basis that the case had been decided and the constitutional issue had been raised in State court? Judge O'CONNOR. Senator Metzenbaum, not if you are appealing from that very matter of course res judicata is not attached. If you are pursuing your remedy in Federal court, and you feel an error has been made, and you then go to the Federal court for review, no, you are not precluded from doing that. If on the other hand you had litigated your case, and dropped it, and had taken no appeal or petition for review in the Federal system, and then tried to pursue it again, yes, then you would have a res judicata problem. Senator METZENBAUM. If you had litigated the issue in the State court, and the State has ruled that you had no Federal right or constitutional right, and you do not appeal, and then you file suit anew in the Federal court, is it not entirely probable or logical that defense counsel would immediately file a motion to dismiss on the basis of res judicata? Judge O'CONNOR. Yes, Senator Metzenbaum, if you do not pursue your immediately available remedies within the Federal system and let it be terminated at the State level. Yes, of course, you are thereafter precluded.

Senate Judiciary Committee hearings on nomination of Sandra Day O'Connor for Supreme Court justice. Senator Howard Metzenbaum (D-OH) continues questioning. (CONTINUATION ON TOPIC: MORE LITIGATION IN STATE COURTS) Senator METZENBAUM. What would be the immediately available remedy in that instance? You have lost in the State court; now what is your immediately available Federal remedy? Judge O'CONNOR. You can file your petition for certiorari of course if it has been determined adversely on the Federal issue. If you have gone to the highest State court you can certainly do that. Senator METZENBAUM. Now you have to take your case all the way up through the appellate procedure and then file your petition for certiorari with the Supreme Court. That really is not really a very practical remedy for the average litigant because by that time he or she has pretty well run out of money, particularly if they are not well-heeled. That would mean you were in the fourth court: You had been in the lower court, the appellate court, and the supreme court of the State, and then you take the case on certiorari. Then you have to make out that Federal issue that is involved. I just wonder whether realistically speaking, by moving more of the civil cases through the State courts and forcing litigants there and also denying them their attorney's fees, a great injustice would not be done to hundreds of thousands and maybe millions of Americans who might otherwise want to litigate a Federal question. Judge O'CONNOR. Senator Metzenbaum, these are the precise things that I would assume this body would consider when it considers that issue. Of course you want to review all these matters very carefully. I am sure that the Senate in its wisdom will do precisely that. (TOPIC: JUDICIAL ACTIVISM) Senator METZENBAUM. All right. Let me change the subject. In your response to the committee's questionnaire and your other answers here you have made it very clear that you are opposed to "judicial activism." Exactly what is and is not judicial activism is not that easy to define. It is very easy to say that the Supreme Court or the court should not make laws. I would like to ask some questions about some of the major issues in some cases that have already been decided by the Supreme Court. Most of them are quite old and probably will never again come before the Supreme Court. The Baker v. Carr case-this 1962 decision allowing the Federal courts to require local legislative bodies to be fairly apportioned- probably did more to reshape our political system than almost any other decision of the Supreme Court. It largely ended the gross malapportionment that existed in many States. In your opinion was that decision an inappropriate exercise of judicial activism? Judge O'CONNOR. Senator Metzenbaum, you are correct in your characterization of the dramatic results of that decision and its progeny. I think what the Court really did in Baker v. Carr was to reexamine the question of what is a political question which the Supreme Court will or will not consider. I think before Baker v. Carr the Court had taken a more restrictive view, if you will, of what is of justiciability-of what is a political question-and in what case will the Court avoid deciding it at all because it is a political question. In Baker v. Carr it really drew more liberal lines, if you will, in determining what is a political question which the Court will consider. That now appears to be the leading case on the subject of what is or is not a political question. Senator METZENBAUM. And that is the case that established the one man, one vote rule. Judge O'CONNOR. That is correct. Senator METZENBAUM. Was that an inappropriate exercise of judicial activism? Judge O'CONNOR. Senator Metzenbaum, I may have been heard to comment at the time that it concerned me but-that perhaps it was. Certainly the time that has intervened in the meantime and the acceptance of that decision has put it pretty much in place in terms of its present effect and application.

Program host Gwen Ifill opens a special episode of "Washington Week" -- the Senate Judiciary Committee review of Supreme Court nominee John Roberts. Composite footage (unclean) with title: various clips of Senate Judiciary Committee members and John Roberts during opening statements.

President Ronald Reagan with his Pro-life Supreme Court Justice Nominee Sandra Day O'Connor

Hearing of the Senate Judiciary Committe on the Nomination of Clarence Thomas to the Supreme Court October 12, 1991 morning session. Clarence Thomas appears before Commitee after the have questioned Anita Hill about her charges of sexual harassment

Clarence Thomas enters

Hearing of the Senate Judiciary Committe on the Nomination of Clarence Thomas to the Supreme Court Friday October 11, 1991 evening session. Clarence Thomas appears before Commitee after the have questioned Anita Hill about her charges of sexual harassment.

Senator Orrin Hatch (R - Utah). Judge Thomas, today in a new statement in addition to what she had told the FBI, which I have to agree with you is quite a bit, she made a number of other allegations and what I would like to do is - some of them most specifically were for the first time today in addition to these, which I think almost anybody would say are terrible. And I would just like to give you an opportunity, because this is your chance to address her testimony. At any time did you say to Professor Hill that she could ruin your career if she talked about sexual comments you allegedly made to her? Judge Clarence Thomas. No. Senator Orrin Hatch (R - Utah). Did you say to her in words or substance that you could ruin her career? Judge Clarence Thomas. No. Senator Orrin Hatch (R - Utah). Should she ever have been afraid of you and any kind of vindictiveness to ruin her career? Judge Clarence Thomas. Senator, I have made it my business to help my Special Assistants. I recommended Ms. Hill for her position at Oral Roberts University. I have always spoken highly of her. I had no reason prior to the FBI visiting me a little more than two weeks ago to know that she harbored any ill feelings toward me or any discomfort with me. This is all new to me. Senator Orrin Hatch (R - Utah). It is new to me too, because I read the FBI report at least 10 or 15 times. I didn't see any of these allegations I am about to go into, including that one. But she seemed to sure have a recollection here today.

Senator Orrin Hatch (R - Utah). Now let me ask you something: I described all kinds of what I consider to be gross, awful sexually harassing things, which if you take them cumulatively have to gag anybody. Now you have seen a lot of these sexual harassment cases as you have served there at the EEOC. What is your opinion with regard to what should have been done with those charges, and whether or not you believe that, let's take Professor Hill in this case, should have done something, since she was a Yale Law graduate who taught civil rights law at one point, served in these various agencies, and had to understand that there is an issue of fairness here. Judge Clarence Thomas. Senator, if any of those activities occur, it would seem to me to clearly suggest or to clearly indicate sexual harassment, and anyone who felt that she was harassed could go to an EEO officer at any agency and have that dealt with confidentially. At the Department of Education, if she said it occurred there, or at EEOC, those are separate tracks. At EEOC, I do not get to review those, if they involve me, and at Department of Education there is a separate EEO officer for the whole department. It would have nothing to do with me. But if I were an individual advising a person who had been subjected to that treatment, I would advise her to immediately go to the EEO officer. Senator Orrin Hatch (R - Utah). An EEO office then would bring the parties together, or at least would confront the problem head-on, wouldn't it? Judge Clarence Thomas. The EEO officer would provide counseling - Senator Orrin Hatch (R - Utah). Within a short period of time? Judge Clarence Thomas. - within a short period of time, as well as, I think, if necessary, an actual charge would be - Senator Orrin Hatch (R - Utah). So the charge would be made, and the charge would then--the person against whom it was made would have a chance to answer it right then, right up front, in a way that could resolve it and stop this type of activity if it ever really occurred? Judge Clarence Thomas. That is right. Senator Orrin Hatch (R - Utah). And you have just said it never really occurred. Judge Clarence Thomas. It never occurred. That is why there was no charge.

Justice Thurgood Marshall in Court chambers, telling story about LBJ encouraging him to maintain his independence. He said, well I guess this is about to end isn t it? I said you mean you and I being friends? He said yep. I said well Mr. President, Tom Clark was Harry Truman s best friend and when the steel thing went through and that case came to the Court, Tom Clark wrote the opinion tearing Truman down. And if and when I need to do it, I will do the same thing to you. And he said, that s as I would have it. And so I said, thank you, sir. We re in business.

Justice Thurgood Marshall in hall of Supreme Court building on the first day of his tenure, an aide helping him into robe, his wife and children watching, wife fastening judge's robe.

Justice William Rehnquist donning Supreme Court robe. Justice Lewis Powell donning robe. Lewis and Mr. Rehnquist posing for photographers; great shot paparazzi.

Panning CU still of the Reagan-era Supreme Court Justices (Rehnquist, O'Connor, Scalia, White, Blackmun, etc).

ustice Thurgood Marshall reviewing briefs in chambers.

Paul Duke, When you re listening to arguments, how conscious are you of the precedents that that have been established by the Supreme Court over the years? Justice Byron White, If you didn t have some respect for precedent the law would be a shambles. No one would have any basis for reliance. I m on the downside of a lot of cases, I m in dissent. Everyone is in dissent some time, but hardly ever do you keep insisting on that position. You accept the decision even though you are in dissent and you are quiet. The next term you may have to write an opinion based on that precedent that you didn t agree with but now you accept. Justice Antonin Scalia, It s a little unrealistic to talk about the Court as though it s a continuing, unchanging institution rather than, to some extent necessarily, a reflection of the society in which it functions. Paul Duke, If societal attitude is indeed important, are you saying then that the Court follows election returns? Justice Antonin Scalia, No. Don t mistake me as having said that. I don t think societal attitude is important to my decision at all. And I doubt whether any of the other Justices would think that. Above all else, a judge is there to be a protection against, at least temporary societal attitudes. I don t consult the election returns or what the majority of the society or a minority of the society thinks about a particular issue. My only point is if the society changes, you are going to eventually be drawing judges from that same society. And however impartial they may try to be, they are going to bring with them those societal attitudes, in their heads, not because they re trying to reflect.

Justice Thurgood Marshall discussing the Constitution as a living documents that changes with time. I think those guys that wrote it knew exactly what they were doing. They were writing a living document. I don t want to be held to the same thing my father was held to. That would mean I d have to ride in the back of the trolley car. And I m not going to ride in back. In Baltimore I had a good fist fight about it. And I didn t ride. I think that s just a way of not recognizing progress as such.

Justice Antonin Scalia giving view of Constitution as a conservative document that must remain constant through social change. To regard the whole Constitution as simply an instrument into which the social consciousness of each generation can be poured, an empty bottle that can be given content by succeeding generations, I think destroys the whole purpose of the instrument. Its whole purpose is essentially a conservative one, to establish baselines of principle that the society cannot depart from without going through the enormous job of amending the Constitution. You destroy that function if you say it can evolve to reflect the current consciousness. You don t need to a Constitution to reflect the current consciousness.

A Supreme Court holiday party, large group in main hall of building singing Christmas carols. Justice Sandra Day O'Connor singing. Chief Justice William Rehnquist singing, holding songbook. African American boy sitting on shoulder of older brother, clapping loosely in rhythm of song. Justice Antonin Scalia singing.

Chief Justice William Rehnquist seated outdoors on a patio, saying that Justices supervise clerks in drafting opinions very closely. (People say the clerks do the first draft of opinions) it sounds like a very sweeping original type of assignment. It s not at all. It s an assignment to do something in accordance with conference deliberations and the instructions of a Justice who was there. It is not telling the clerk, just figure out how you d like to decide this case and write something about it. It s not that at all.

Justice Antonin Scalia discussing value of dissenting opinions. It also serves the function of pointing out the weaknesses of the decision so that the decision, even if it won t be reversed in later cases. And you rarely reverse decisions that involve statutory interpretation. If a statute s been interpreted the general rule is leave it alone. A Constitutional question is more likely to be reconsidered. But even in those cases where you re not likely to reverse it, in the future, you at least warn off future Courts in extending the logic of that opinion. You show that it has frailty and shouldn t be expanded.

MSs Supreme Court nominee John Roberts walking down hallway as cameras flash. MS female security guard escorting people wheeling several bank boxes filled with John Roberts documents on dollies through courthouse.

Interview with CLARENCE THOMAS head of the Equal Opportunity Employment Commission, who says the cut off of federal funding because of discrimination has almost never been used, footage of meetings of the League of Women Voters and the Leadership Conference on Civil Rights

21.58.18 Judge JOHN ROBERTS: My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting views of the people for whom I worked, and in some instances those are consistent with personal views and other instances they may not be, in most instances no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.

22.03.35 Senator DIANNE FEINSTEIN: Did you really think that way, and do you think that way today? JOHN ROBERTS: Senator, I have always supported, and support today equal rights for women, particularly in the workplace. I married a lawyer, I was raised with three sisters who work outside the home, I have a daughter from whom I will insist at every turn she has equal citizenship rights with her brother.

JOHN ROBERTS: I think judges do have to appreciate that they're dealing with real people with real cases. 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 effect real people with real lives and I appreciate that.

Senator CHARLES SCHUMER: What kind of Justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlin, Jackson, Frankfurter and Friendly. Will you be a very conservative judge who will impede congressional prerogatives, but does not use the bench to remake society like Justice Rehnquist. Or, will you use your enormous talents to use the court to turn back a near century of progress and create the majority that justices Scalia and Thomas could not achieve. That's the question that we on the Committee will have to grapple with this week. JOHN ROBERTS: I've tried to be as fully expansive as I can be and drawn the line where as a practical matter I think it's necessary and appropriate. The basic question Senator Feinstein, Senator Schumer what kind of a Justice would I be, that is the judgment you have to make. 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 fifty opinions, you can look at those. Senator Schumer, I don't think that you can read those opinions and say that these are the opinions of an idealog. You may think that 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 idealog and you and I agree that that's not the sort of person we want on the Supreme Court.

U.S. Senate Judiciary Committee hearing for Supreme Court Chief Justice nominee John Roberts. U.S. Senator Charles Schumer (D-NY): “Why this room should be some kind of 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 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.” U.S. Senator Joseph Biden (D-DE): “It is kind of interesting this kabuki dance we have in these hearings here, as if the public doesn't have the right to know what you think about fundamental issues facing them. The idea that the founders sat there and said, 'Look, here's what we're going to do, we're going to require the two elected branches to answer questions to the public with no presumption that they should have the job as Senator, President or Congressman. But guess what, we're going to have a third co-equal branch of government that gets to be there for life, never ever again to be able to be asked a question they don't want to answer. And you know what? He doesn't have to tell us anything.' It's ok, as long as he, as you are decent, bright, honorable man. That's all we need to know.” U.S. Supreme Court Chief Justice Nominee John Roberts: “I'm not standing for election, and it is contrary to the role of judges in our society to say that this judge should go on the bench because these are his or her positions and those are the positions their going to apply. Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed. That's inconsistent with the independence and integrity of the Supreme Court.” Senator Biden: “No one's asking for a promise.”

Senate Judiciary Committee hearings for U.S. Supreme Court Justice nominee John Roberts. U.S. Senator Dick Durbin (D-IL): “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 it's 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.” Judge John 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. I'm 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 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.” Sen. Durbin: “Just trying to get to the bottom line about your values.”

Show host Hodding Carter delivers opening monologue about U.S. Supreme Court Justice William Rehnquist’s confirmation hearings. U.S. Senator Howard Metzbaum (D-OH) states the committee's intent of investigating whether or not Justice Rehnquist lied in his 1971 Supreme Court confirmation hearings. U.S. Senator Ted Kennedy (D-MA) questions Justice Rehnquist about his past job as a poll watcher in Arizona. Senator Kennedy questions Rehnquist about a memo he wrote to former Supreme Court Justice Robert Jackson in 1952 supporting the old racial doctrine of "separate but equal." Justice Rehnquist responds he was writing about Jackson's opinion on the matter. U.S. Senator Patrick Leahy (D-VT) questions Justice Rehnquist about a clause in the deed for his home that the property should not be sold to any member of the "Hebrew race." Justice Rehnquist states he was not aware of that until recently.

U.S. Senator Herbert Kohl (D-WI) asks, “Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?” Judge John Roberts responds, “I agree with the Griswold courts conclusion that marital privacy extends to contraception and availability of that." Senator Kohl says, “Well, I'm delighted to hear you say that because as you know many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception that you've essentially accepted-- scholars have said this-- essentially accepted the basis for the courts reasoning and decision on Roe, that a woman has a Constitutional protected right to choose." Judge Roberts adds, “Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. The other area, that is an area, to quote Justice Ginsberg from her hearings ‘live with business.' There are cases that arise there and so that is an area that I do not feel appropriate for me to comment on."

U.S. Senator Dianne Feinstein (D-CA) asks, “You can't answer my question, yes or no?” Judge John Roberts responds, “Well, I don't know what you mean by absolute separation of Church and State. I don't know what that means when you say absolute separation. I do know this, that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have, I don't look to the bible or any other religious source."

U.S. Supreme Court Chief Justice nominee Judge John Roberts says, "My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires; umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure that everybody plays by the rules, but it is a limited role. Nobody ever went to the ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench. Mr. Chairman, when I worked in the Department of Justice, in the office of the Solicitor General, it was my job to argue cases for the United States before the Supreme Court. I always found it very moving to stand before the Justices and say I speak for my country. But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court in our Constitutional system. Here was the United States, the most powerful entity in the world aligned against my client, and yet all I had to do was convince the court that I was right on the law, and the government was wrong, and all that power and might would recede in deference to the rule of law. That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law any rights are meaningless. President Ronald Reagan used to speak of the Soviet Constitution, and he noted that it purported to grant wonderful rights of all sorts to people, but those rights were empty promises. Because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality..."

U.S. Supreme Court Chief Justice nominee Judge John Roberts continues speaking: "… Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record according to the rule of law without fear or favor to the best of my ability. And I will remember that it's my job to call balls and strikes, and not to pitch or bat. Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain from the days of our youth certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land. Growing up, I never imaged that I would be here in this historic room nominated to be the Chief Justice. But now that I am here I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment. If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law, and safeguards those liberties that make this land one of endless possibilities for all Americans."

U.S. Senator Orrin Hatch (R-UT) asks, “Am I correct in interpreting that you're probably eclectic, that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those positions and that none of them absolutely creates an absolute way of judging." U.S. Supreme Court Chief Justice nominee Judge John Roberts responds, “I've said I do not have an over-arching judicial philosophy that I bring to every case, and I think that's true. I tend to look at the cases from the bottom up, rather than the top down, and, like I think all good judges, focus a lot on the facts. We talk about the law and that's a great interest for all of us, but I think most cases turn on the facts, so you do have to know those, you have to know the record.”

U.S. Senator Lindsey Graham (R-SC) asks, “When the President introduced you to the United States, to the people of the United States, he said you are a strict constructionist. Do you know what he meant by that and why he chose to use those words?” U.S. Supreme Court Chief Justice nominee Judge John Roberts responds, “I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent to those that 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 prosperity. They were looking ahead and so they often used phrases that they intended to have effect...” Senator Graham interjects, “Does that term make you feel uncomfortable?” Judge Roberts responds, “No."

Senate Judiciary hearings for U.S. Supreme Court Chief Justice nominee John Roberts. Judge John Roberts: “Well, if I am confirmed, I think one of the things that a Chief Justice should have is 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 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 the responsibility of assigning opinions I think he has a 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 t,o 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 do feel strongly about a point 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 effect anyone’s commitment or 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.”

Senate Judiciary hearings for U.S. Supreme Court Chief Justice nominee John Roberts. Senate Judiciary Committee Chairman, Senator Arlen Specter (R-PA): “I take umbrage at what the Court has said and so do my colleagues. There is a method of reasoning which changes when you move across the grain from the Senate columns to the Supreme Court columns, and we do our homework, evidenced by what's going on in this hearing, and we don't like being treated like school children, requiring as Justice Scalia says 'a taskmaster.' Will you do better on this subject Judge Roberts?” John Roberts: “Well, I don't think the Court should be a taskmaster of Congress. I think the Constitution is the Court's taskmaster and it's Congress' taskmaster as well, and we each have responsibilities under the constitution and I appreciate very much the differences in institutional competence between the Judiciary and the Congress when it comes to the basic questions of fact finding, development of a record, and also the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record, it's a question of whose job it is to make a determination based on the record.”

Edwin Newman (VO) explains that impeachment is considered a process so difficult and politically distasteful that only one Supreme Court Justice has ever been impeached: Justice Samuel Chase in 1803, and he was not convicted. Illustrations of Supreme Court Justice Samuel Chase and his impeachment trial. Former Supreme Court Justice Abe Fortas discusses the arduous nature of Senate confirmation hearings; he didn't know if there was going to be a thoughtful objective conversation or if a few members of the Senate Judiciary Committee were going to run a "lynching party."

U.S. Supreme Court Justice nominee Sandra Day O’Connor continues discussing her 1970 vote in the Arizona State Senate, regarding abortion. O’Connor says she does not easily recall her vote. O’Connor says she had to review the circumstances regarding the Arizona Sate bill in question. O’Connor says the bill considered the repeal of Arizona State statutes that made abortion a felony, including for women seeking an abortion in cases of rape. O’Connor clarifies the legislative history of the bill in question and comments on the increasing public attention on abortion in the present, compared to the 1970s.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. Judiciary Committee Chairman, U.S. Senator Strom Thurmond (R-SC) asks O’Connor about her support for a 1973 Arizona State Senate Bill that would have provided family planning services to minors, without parental consent. O’Connor says she was a cosigner of the bill in question. O’Connor did not view the bill as dealing with abortion. O’Connor viewed the bill as a policy that would have provided people with information on contraception. O’Connor knew the bill was drafted loosely, but also knew it would be amended in the committee process. O’Connor says the bill did not provide for any surgical procedure, such as abortion. O’Connor clarifies that the bill provided for doctors to perform surgeries that could prevent contraception on adults, if requested in writing. O’Connor says she supported making information on contraception available, hoping it would prevent people from seeking abortions later.

U.S. Supreme Court Justice nominee Sandra Day O’Connor continues discussing the issue of amending the Constitution to prevent abortion. O’Connor understands that the U.S. Congress is wrestling with the issue of abortion. Judiciary Committee Chairman, U.S. Senator Strom Thurmond (R-SC) questions O’Connor’s stance against a 1974 Arizona State stadium construction bill, that also limited the availability of abortions. O’Connor says 1974 was an active year in the Arizona State Legislator, regarding abortion. O’Connor says the main purpose of the bill was to allow the University of Arizona to issue bonds to finance the expansion of its football stadium. O’Connor says the bill passed the state Senate and went to the Arizona State House of Representatives. O’Connor says the bill was amended in the House to add a rider, which would have prohibited abortions in any facility under the jurisdiction of the Arizona Board of Regions. O’Connor says as the Arizona State Senate Majority Leader, she was concerned with the issue of nongermane riders. O’Connor opposed the nongermane rider added in the State House when it came back to the State Senate, and believed the rider violated the Arizona State Constitution.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. U.S. Senator Howard Metzenbaum (D-OH) continues on the subject of denial of access to the courts, referring to an article written by O’Connor. Senator Metzenbaum believes denying the recovery of attorney fees could lead to the denial of a litigant to receive representation in court. O’Connor says her article in no way suggested that anyone should be deprived of a judicial forum for airing grievances. O’Connor says the point is that there are two parallel court systems; it is a question of choice as to whether the litigants can use the State Courts or have everything channeled through the Federal Court. Speaking as a state judge, it was O’Connor’s view that use of the State Courts could be encouraged. O’Connor does not find the choice between Federal and State Courts to be necessary in every instance. O’Connor says this is an issue for Congress to debate and she was only presenting her opinion. Metzenbaum says litigants would have no choice under O’Connor’s suggestions. O’Connor says litigants would still have remedies and a forum. Metzenbaum closes his line of questioning.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. Judiciary Committee Chairman, U.S. Senator Strom Thurmond (R-SC) recognizes U.S. Senator Bob Dole (R-KS). Senator Dole questions O’Connor’s recommendation on further restricting cases that can be heard in Federal Court. Dole asks what recommendation O’Connor would make for State Courts dealing with an increased case load. O’Connor says her suggestion regarding Federal Courts was not conclusive. O’Connor say the issue of restrictions for litigation in Federal Courts is something for Congress to consider. O’Connor says regardless of whether diversity jurisdiction is reduced or eliminated, it will have an impact on the State Courts. O’Connor says in some jurisdictions it takes less time to get to trial in the Federal Court than the State Court. O’Connor says these issues raise serious questions. O’Connor says Congress should be looking into the issues. Dole says State Courts may favor litigants from their state over out-of-state litigants if diversity jurisdiction is abolished. Dole asks O’Connor’s suggestion on dealing with this issue. O’Connor says she has no experience in other states, but in Arizona O’Connor says she has not experienced favoritism of in-state litigants. O’Connor believes jurisdictional favoritism is no longer an issue in the present time.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. U.S. Senator Bob Dole (R-KS) asks O’Connor’s opinion on whether the Exclusionary Rule should be applied to cases where an officer has committed a technical violation of law, but an individual’s Constitutional rights have been uneffected. O’Connor says a number of Federal Courts in the country are beginning to approach the exclusionary rule in a different way. O’Connor says Federal Courts are starting to remove technical violations from the Exclusionary Rule. O’Connor believes some of these issues will be addressed by the Supreme Court.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. U.S. Senator Bob Dole (R-KS) asks O’Connor for her definition on the term “strict constructionists.” To O’Connor, the term refers to someone who appreciates the difference between the policy making functions of the Legislative Branch and the Judicial role of interpreting and applying the law. O’Connor says there is a difference between making the law and interpreting the law.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. U.S. Senator Bob Dole (R-KS) asks O’Connor about the interpreters of law. O’Connor says she knows the difference between the role of the legislator and the judge. O’Connor understands the role of the judge is to interpret the law, not make the law. Senator Dole agrees with O’Connor’s statement. Dole discusses the concern that the court is making law, mentioning “judicial restraint” and “judicial activism.” Dole discusses the limitations the Legislative Branch places on judicial independence. Dole discusses the impact the Congress can have on court decisions. Dole asks O’Connor to what extent the Supreme Court should be aware of public and Congressional sentiment on issues before the Court. O’Connor says the Court would only have to consider the facts of the particular case and the law applicable to those facts. O’Connor says it would be a dangerous practice to go outside the record and outside the law in guidance for how a case should be addressed. O’Connor says these issues are why the Court strives for judicial independence. O’Connor says cases should not be based on current perceptions of outside activities, but rather on the matters that appropriately come to the attention of the Court.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. U.S. Senator Bob Dole (R-KS) discusses Congressional issues in the past that Congress wished the Supreme Court paid more attention to, mentioning the bussing issue. Dole says the Congress sometimes believes the Court is oblivious of the outside world. O’Connor is sure that through the arguments of counsel and the brief writing process, the Court is never totally oblivious to what is going on. O’Connor assumes the litigants themselves are making the realities of life known to the Court. O’Connor believes the Justices should not be going outside of the judicial process.

Confirmation hearings for U.S. Supreme Court Justice nominee Sandra Day O’Connor before the Senate Judiciary Committee. U.S. Senator Bob Dole (R-KS) asks for O’Connor’s stance on abortion, based on an Arizona State Senate bill she sponsored. Senator Dole believes the bill prevented benefits and payments for abortion, unless it was a medical emergency. O’Connor says she was not the drafter of the bill, it was a state Medicaid bill. O’Connor says Arizona assigned the issue of medical care for the poor to a citizen’s committee. O’Connor recalls that Dr. Merlin Duval headed the committee. O’Connor says Dr. Duval later became the Dean of the Arizona Medical School. O’Connor says the committee recommended that this particular bill be adopted. O’Connor says the bill included a provision concerning the use of public funds for abortion. O’Connor says she supported the bill and its provisions. Dole asks if the bill became law. O’Connor says the bill did become law, but says the bill was never funded for the Medicaid functions. Dole asks this bill reflects O’Connor’s views on abortion. O’Connor says yes, on the subject of Medicaid and abortion.