[Congressional Record Volume 151, Number 116 (Thursday, September 15, 2005)]
[Extensions of Remarks]
[Pages E1880-E1882]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 TESTIMONY OF RALPH NADER REGARDING THE CONFIRMATION OF SUPREME COURT 
                       NOMINEE JUDGE JOHN ROBERTS

                                 ______
                                 

                          HON. JOHN B. LARSON

                             of connecticut

                    in the house of representatives

                      Thursday, September 15, 2005

  Mr. LARSON of Connecticut. Mr. Speaker, I rise today on behalf of an 
honorable gentleman from my home state of Connecticut, Mr. Ralph Nader, 
to submit for the Record a copy of testimony that he earlier submitted 
to the Senate Judiciary Committee's hearing regarding the confirmation 
of Supreme Court Chief Justice Nominee Judge John Roberts.

       Mr. Chairman and members of the Senate Judiciary Committee, 
     thank you for the opportunity to submit testimony on the 
     nomination of Judge John G. Roberts Jr. for the position of 
     Chief Justice of the Supreme Court of the United States. I 
     ask that this statement be made part of the printed hearing 
     record.
       In 1994 I testified before the Senate Judiciary Committee 
     on the nomination of Stephen G. Breyer by President Clinton 
     to be an Associate Justice of the Supreme Court of the United 
     States. In that testimony I called attention to the 
     importance of balance in the way our laws handle the 
     challenges of corporate power in America.
       I said:
       ``For our political economy, no issue is more consequential 
     than the distribution and impact of corporate power. 
     Historically, our country periodically has tried to redress 
     the imbalance between organized economic power and people 
     rights and remedies. From the agrarian populist revolt by the 
     farmers in the late 19th and early 20th century, to the rise 
     of the federal and state regulatory agencies, to the surging 
     trade unionism, to the opening of the courts for broader non-
     property values to have their day, to the strengthening of 
     civil rights and civil liberties, consumer, women's and 
     environmental laws and institutions, corporate power was 
     partially disciplined by the rule of law.''
       Today it is more important than ever for all Supreme Court 
     Justices and, in particular, the Chief Justice of the Supreme 
     Court to have the inclination and wisdom to realize that our 
     democracy is being eroded by many kinds of widely reported 
     systemic corporate excesses. Giant multinational corporations 
     have no allegiance to any country or community, and the 
     devastation and other injustices they visit upon 
     communities throughout the United States and around the 
     globe have outpaced the countervailing restraints that 
     should be the hallmark of government by, for and of the 
     people. Unfortunately, the structure and scope of these 
     hearings are not likely to devote a sufficient priority to 
     the corporate issues of our times.
       In 1816 Thomas Jefferson wrote: ``I hope we shall . . . 
     crush in its birth the aristocracy of our moneyed 
     corporations, which dare already to challenge our government 
     to a trial of strength and bid defiance to the laws of our 
     country.'' Imagine his reaction to the corporate abuses of 
     Enron Corp, HealthSouth Corp., Tyco, WorldCom or Adelphia 
     Communications Corp to name only a few, along with the drug, 
     tobacco, banking, insurance, chemical and other toxic 
     industries. The corporate crime and greed of today tower over 
     the abuses of the ``moneyed corporations'' of Jefferson's 
     day. The economic power of giant corporations is augmented by 
     a flood of Political Action Committee (PAC) money and

[[Page E1881]]

     other donations that shape the quality and quantity of debate 
     in our country and consequently drive our society to 
     imperatives that are increasingly more corporate than civic.
       You will hear about Judge Roberts from several 
     perspectives, but it is safe to assume that questions and 
     testimony about Judge Roberts' views on corporate power and 
     the rule of law will be inadequate given the broad and 
     profound impact giant corporations have on our democracy. An 
     important procedural and substantive corollary is the 
     important role our civil justice system plays in expanding 
     the frontiers of justice and in giving individuals the 
     ability to hold ``wrongdoers'' accountable in a court of law. 
     ``If we are to keep our democracy, there must be one 
     commandment: Thou shalt not ration justice,'' said the famous 
     jurist, Learned Hand.
       Unfortunately, powerholders, corporations and other 
     institutions which are supposed to be held accountable by the 
     civil justice system, are striving to weaken, limit and 
     override the province of juries and judges. Some companies, 
     led by insurers, have used expensive and focused media to 
     promote the view that civil juries are too costly and too 
     unpredictable. This narrow and short-sighted perspective is 
     contrary to the long-standing tenets of our democracy and in 
     particular the Seventh Amendment to our Constitution.
       The civil jury system of the United States embraces a 
     fundamental precept of tested justice: ordinary citizens 
     applying their minds and values can and do reach decisions 
     on the facts in cases that often involve powerful 
     wrongdoers. This form of direct citizen participation in 
     the administration of justice was deemed indispensable by 
     this nation's founders and was considered non-negotiable 
     by the leaders of the American revolution against King 
     George III. But the civil jury is more than a process 
     toward bringing a grievance to resolution. The civil jury 
     is a pillar of our democracy necessary for the protection 
     of individuals against tyranny, repression and mayhem of 
     many kinds and for the deterrence of such injustices in 
     the future. Our civil jury institution is a voice for and 
     by the citizenry in setting standards for a just society. 
     Jury findings incorporated in appellate court decisions 
     contribute to one of the few authoritative reservoirs of 
     advancing standards of responsibility between the powerful 
     and the powerless--whether between companies and 
     consumers, workers, shareholders and community or between 
     officialdom and taxpayers or citizens in general. Knowing 
     the evolution of the common law and the civil jury 
     provides compelling and ennobling evidence of this 
     progression of justice. Chief Justice William Rehnquist 
     wrote, ``The founders of our Nation considered the right 
     of trial by jury in civil cases an important bulwark 
     against tyranny and corruption, a safeguard too precious 
     to be left to the whim of the sovereign, or, it might be 
     added, to that of the judiciary.''
       As the hearing unfolds, I suggest that the members of the 
     Judiciary Committee devote some time to areas beyond those 
     that are traditionally the focus of witnesses and questioning 
     by Committee members and ask fundamental questions about the 
     views of Judge Roberts, a former corporate lawyer at Hogan & 
     Hartson, regarding corporate power and the civil justice 
     system.
       In the spirit of expanding the criteria by which the 
     Committee and the public can measure Judge Robert's judicial 
     and civic philosophy, I offer the following questions for you 
     to pose to the nominee. Some of the questions are narrowly 
     focused and some are broad-gauged. But, in their totality 
     they constitute the broad kind of ``litmus test'' that should 
     be applied in selecting and confirming all judges. In short, 
     does the nominee, having met the threshold requirements of 
     competency, believe that the rule of law should be used to 
     broaden and deepen, procedurally and substantively, our 
     democracy--even if it means the rights of the giant 
     corporation or powerful interests must be circumscribed to 
     protect the rights of the individual citizen and of 
     our communities--rural or urban, large or small?
       In pursuing its own line of questions, the Committee should 
     not let its exploration of the nominee's views be 
     artificially restricted. Judicial nominees have given two 
     reasons for refusing to answer questions, but these reasons 
     are contradictory. First, they say, if they publicly express 
     their views, it will compromise them if the issue comes 
     before the Court. Second, they say, judges do not decide 
     legal issues in a vacuum: they only decide a concrete dispute 
     in a specific adversarial context. Accordingly, some nominees 
     claim it's silly or inappropriate, for example, to say 
     whether they believe the Constitution protects the right to 
     abortion, because Justices don't decide cases by asking such 
     abstract questions. They face a particular statute, 
     challenged by a particular party directly affected in a 
     particular way, and the resolution of that dispute will turn 
     on all those particulars.
       This second response has a degree of merit--and undercuts 
     the first reason for refusing to answer most questions. 
     Precisely because neither nominees nor the public can know in 
     what context issues will reach the Court (if at all), it is 
     not problematic for nominees to discuss their views. They 
     should not say how they would decide an actual pending case, 
     but, short of that, it is fine for them to discuss issues 
     because that in no way commits them to taking sides in any 
     actual dispute--such disputes are invariably context-
     specific. For example, a nominee may be asked about the 
     doctrine that treats a corporation as a ``person'' entitled 
     to various constitutional rights. His or her thoughts on this 
     issue will not tell us what he or she will do if such an 
     issue is raised in a case before the Court. The latter may 
     depend on the nature of the corporation (non-profit? media? 
     multi-national?), the nature of the claimed right, and much 
     more.
       Moreover, even if the nominee testifies that he or she 
     disapproves the doctrine, as a Justice the nominee may hold 
     that the question is settled law. Or if a nominee says that 
     he or she agrees with the doctrine, a new circumstance--or a 
     party making a new argument--may lead the nominee to hold 
     otherwise. Nothing a nominee says guarantees that he or she 
     will decide any case any particular way. Nothing that is said 
     has to be fixed in stone. Judges do give opinionated public 
     speeches, do they not?
       It may be wondered whether, in light of the above, any 
     purpose is served by asking the nominee his views. The answer 
     is yes. It's no secret that nothing a nominee says binds 
     the nominee once he or she receives an office with life 
     tenure. Nominees can't and shouldn't be bound. But 
     especially with a nominee who has a limited public record, 
     the hearings provide some basis for gauging the nature and 
     quality of his ideas, about his philosophy of due process 
     for example. At any rate they have that potential--if 
     Senators do their job and do not accept a nominee's self-
     serving refusal to answer questions.
       At the outset, it would behoove the Committee to establish 
     the parameters the nominee will use in fashioning responses 
     to your questions by asking:
       What criteria are you using to determine if you will 
     directly answer or not answer questions posed to you by 
     members of the Senate Judiciary Committee?
       If the Court has recently ruled on a matter, will you 
     provide the Committee with your views on the Court's ruling?
       If a matter is long settled, will you provide the Committee 
     with your views on the Court's ruling?
       Once this baseline has been established, the following 
     questions should shed light on nominee's approach to some 
     major issues of our day.
       1. Lloyd Cutler, speaking as a prominent corporate 
     attorney, once said: ``There is one point I want to make 
     clear: we believe in the arguments that we make.'' Do you 
     believe the arguments you have made on behalf of your 
     corporate clients?
       2. Do you believe limits on television station ownership 
     abridge the free speech rights of corporate broadcasters?
       3. What is your view of the First Amendment rights of the 
     listeners being paramount to those of the broadcasters as 
     articulated by the Court in Red Lion Broadcasting Co. v. FCC, 
     395 U. S. 367 (1969)?
       4. Do you see a problem when corporations are treated as 
     equal participants, with every right to use their First 
     Amendment rights to dominate public policy debates such as 
     those that occur in state and local referenda?
       5. Do you believe the Court should uphold state and 
     Congressional limits on corporate political expression in 
     order to equalize contributions to public debates?
       6. Do you believe that a strict reading of the Constitution 
     provides for the treatment of corporations as ``persons'' 
     under the law for purposes of equal protection, freedom of 
     speech or due process of law? And, if so, what in the 
     Constitution's text provides a basis for this belief?
       7. Many observers complain that law firms representing 
     large corporations routinely abuse the discovery process in 
     order to delay and harass their opponents. Have you observed 
     that phenomenon? If so, what should be done about it?
       8. In 1986, in Pacific Gas & Elec. Co. v. Public Util. 
     Comm'n of Cal., 475 U.S. 1 (1986) the Supreme Court (5 to 3) 
     struck down a state regulation as violating a utility 
     company's ``right of conscience'' under the First Amendment. 
     What makes the case particularly unsettling is its 
     disconnectedness to opinions past and future. As Justice 
     Rehnquist observed in his lengthy dissenting opinion in the 
     case, ``the two constitutional liberties most closely 
     analogous to the right to refrain from speaking--the Fifth 
     Amendment right to remain silent and the constitutional right 
     of privacy--have been denied to corporations based on their 
     corporate status.'' Do you think it makes sense to attribute 
     a right of conscience to a commercial corporation?
       9. Would any trade agreement, such as GATT, NAFTA, or CAFTA 
     ever require Senate ratification as a treaty?
       10. Does the President have complete discretion to 
     determine whether an international trade or other agreement 
     must be submitted to the Senate for two-thirds treaty 
     approval? If not, what are the criteria that determine when 
     an international agreement must be submitted to the Senate 
     for two-thirds treaty approval?
       11. Are there limits on Congress' power to strip federal 
     courts of jurisdiction over a particular issue? If so, what 
     are such limits?
       12. Do you believe victims of defective products that meet 
     federal standards should be limited from recovering damages 
     from the manufacturers of the defective products?
       13. Do you believe Congress should federalize and pre-empt 
     state products liability common law in any or all sectors?
       14. Plaintiffs' trial lawyers have been blamed by their 
     corporate critics for all sorts of problems with the economy 
     and

[[Page E1882]]

     legal profession. Do you believe that those representing 
     injured persons in product liability and medical malpractice 
     cases are harming America?
       15. So-called tort-reform is aimed at restricting the 
     amount of non-economic damages, such as pain and suffering, a 
     party can receive. Are you concerned that this interferes 
     with the traditional role of juries and judges to find facts 
     and mete out appropriate justice?
       16. Do you believe the use of the government contractor 
     defense should be limited in nonmilitary procurement? If so, 
     how?
       17. Some people say the Ninth Amendment can play no 
     substantive role in protecting rights, that it's merely a 
     statement of principle or reminder of limited government. 
     Do you agree?
       18. A number of legal scholars argue that the 11th 
     Amendment has been interpreted by the Court to shield states 
     from liability for wrongdoing in a way that blatantly 
     contravenes the original intention of the Amendment. Are you 
     familiar with that scholarship and do you find it persuasive?
       19. In what circumstances, if any, is it appropriate for a 
     contractual arbitration clause to contract away substantive 
     contract law, tort, or statutory rights? For instance, can an 
     arbitration clause require arbitration of a worker's Title 
     VII rights and at the same time limit the worker's 
     compensatory damages to $200,000? Can that same clause 
     require the loser to pay the winner's attorney's fees? Can 
     that clause require that the parties to arbitration bear 
     their own attorney's fees?
       20. Describe the presumption against preemption of state 
     law. Does it apply in some or all instances where federal law 
     is said to preempt state law?
       21. Is the presumption against preemption of state law (by 
     federal law) similar to the plain statement rule that demands 
     that Congress speak with unmistakable clarity if it wishes to 
     override the states' sovereign immunity? If the presumption 
     against preemption is not similar to the plain statement 
     rule, explain how it is different?
       22. How is the presumption against preemption applied in 
     cases where federal regulatory law (regulating, for instance, 
     drugs, boats, pesticides, motor vehicles, and the like) is 
     said to preempt state tort law that provides monetary 
     remedies to compensate for injuries caused by a product that 
     the federal government regulates?
       23. Do you believe Congress should pre-empt the state-law-
     based medical malpractice system?
       24. What are your views on the ``American rule'' as opposed 
     to the English rule under which the losing party in 
     litigation generally pays the winner's costs, including 
     attorney's fees?
       25. What has been your reaction or views on Congressional 
     funding levels for federally funded legal services programs 
     over the last two decades? Should government be responsible 
     for funding representation for poor people in civil 
     litigation where important property or liberty interests are 
     at stake? Or should that be mainly or entirely a private 
     function?
       26. Some scholars and judges believe that ``Originalism'' 
     is the only principled method of constitutional 
     interpretation. Do you agree?
       27. Do you believe that a declaration of war by Congress is 
     Constitutionally required for the United States to engage in 
     war?
       28. Does a Congressional delegation of the war-making 
     discretion to the President in the form of a war resolution 
     meet the test of Article One, Section Eight of the 
     Constitution?
       29. What level of equal protection scrutiny was applied in 
     Bush v. Gore, 531 U.S. 98 (2000)?
       30. What is the precedential effect of Bush v. Gore? In 
     other words, what kinds of equal protection claims does Bush 
     v. Gore control or apply to? After Bush v. Gore, may a 
     political entity (city, county, state) holding an election 
     use more than one type of voting methodology (paper ballots, 
     standard machines, punch cards, etc.) knowing that the error 
     rates (whether through undercounts or otherwise) are 
     different from one methodology to another?
       31. Is there a need to amend our open government laws to 
     make the President subject to them in whole or in part? Would 
     such amendments be constitutional?
       32. Do you believe arguments before the Supreme Court 
     should be televised in the way C-SP AN televises 
     Congressional deliberations?
       33. In your view, is the Freedom of Information Act 
     functioning properly at this time? If not, what are the major 
     problems facing the Act?
       34. In Buckhannon Board & Care Home, Inc. v. West Virginia 
     Dept. of Health and Human Resources, 532 U S. 598 (2001) 
     case, the Court rejected the argument that a party that has 
     failed to secure a judgment on the merits or a court-ordered 
     consent decree, but has nonetheless achieved the desired 
     result because the lawsuit brought about a voluntary change 
     (the catalyst theory) in the defendant's conduct is entitled 
     to attorney's fees. Does the rejection of the catalyst theory 
     of fee recovery in the Supreme Court's Buckhannon decision 
     apply across-the-board to federal fee-shifting statutes? If 
     not, to what kinds of fee-shifting statutes is it likely to 
     apply and to what kinds is its application more doubtful?
       35. Brian Wolfman, Director of the Public Citizen 
     Litigation Group notes, ``The Bush administration says that 
     Buckhannon applies to [Freedom of Information Act] FOIA 
     cases, even though Congress stated explicitly, when it 
     enacted FOIA, that fees should be available when FOIA cases 
     settle. The Bush Justice Department has consistently argued 
     to expand Buckhannon to every pro-consumer and civil rights 
     statute in every conceivable situation.'' What approach (or 
     approaches) to statutory construction of Congressional 
     enactment was evident in the Supreme Court's Buckhannon 
     decision? How would you describe the reliance on (or lack of 
     reliance on) legislative history in the majority's reasoning 
     in that case? Do you believe the Bush Justice Department is 
     applying the Buckhannon decision correctly?
       36. From both a legal (constitutional) and practical 
     perspective, what is your view of the trend in the federal 
     judiciary toward releasing more of its opinions in 
     ``unpublished'' form, i.e., where the relevant court accords 
     no precedential effect to the decision for other cases?
       37. Should federal judges attend seminars which are funded 
     by private corporations (or by foundations that are funded by 
     such corporations) that have matters of interest to the 
     corporations before the courts?
       38. Do you believe a government attorney, in a subordinate 
     position, should be forced (under penalty of discharge) to 
     work on a case or argue a position that he or she believes is 
     illegal, unconstitutional or unethical? Or should government 
     lawyers have a ``right of conscience'' like other 
     professionals?
       39. What kinds of participation in civic life may federal 
     judges continue to be involved in once they assume their 
     judicial positions?
       40. How many hours or what percent of their work time do 
     you think partners in major firms should devote to pro bono 
     work each year?
       41. How many hours on average did you bill per year as a 
     partner and at what rates?
       42. How many hours on average did you bill per year as an 
     associate?
       43. What was the nature of your pro bono work and 
     approximately how much time per year did you devote to pro 
     bono work?
       44. Corporate attorneys and legal scholars have written 
     books and articles decrying unethical or fraudulent billing 
     practices in large corporate law firms. An article in the 
     Summer 2001 Georgetown Journal of Legal Ethics titled 
     Gunderson Effect and Billable Mania: Trends in Overbilling 
     and the Effect of New Wages states that unethical billing 
     practices are ``a pervasive problem in law firms across the 
     country''--do you agree?
       45. Did you ever observe unethical billing practices when 
     you were in private practice?
       46. If so, what was the nature of and who were the 
     protagonists of such practices?
       I hope these questions, whether asked orally or submitted 
     to the nominee in writing for response, spark a robust, 
     constructive debate between the Committee members and the 
     nominee. Such exchanges should provide the Senate and the 
     larger public with insights into how Judge John G. Roberts 
     will, if confirmed as Chief Justice, perform his duties.

                          ____________________