Pending Judical Nominations

January 29, 2003 Wednesday

SECTION: CAPITOL HILL HEARING

LENGTH: 43526 words

HEADLINE: AFTERNOON SESSION OF PANEL ONE OF A HEARING OF THE SENATE JUDICIARY COMMITTEE
 
SUBJECT: PENDING JUDICIAL NOMINATIONS
 
CHAIRMAN: SENATOR ORRIN HATCH (R-UT)
 
LOCATION: DIRKSEN SENATE OFFICE BUILDING, WASHINGTON, D.C.

WITNESSES: DEBORAH COOK, TO BE JUDGE FOR SIXTH CIRCUIT, USCA; JEFFREY SUTTON, TO BE JUDGE FOR THE SIXTH CIRCUIT, USCA; AND JOHN ROBERTS, TO BE JUDGE FOR D.C. CIRCUIT, USCA.
 
BODY:

SEN. CORNYN: I'd be glad to—I'll be glad to turn it over to you in a minute, but if you'd let me—I've waited a long time to have my shot --

SEN. CORNYN: -- so if you'll give me a chance just to say a couple things, and then I'll be glad to turn it over.

I also come to this job representing the state of Texas in the United States Senate, with the background of having served in virtually all three branches of government—as a judge, member of the executive branch as attorney general, and now in the legislative branch, albeit it on the federal level. And of course I think a lot of the debate that we are hearing today has to do with what is the appropriate role of not only the legislative branch versus the judicial branch, but indeed what is the proper role of a lawyer in our adversary system, and whether the positions that a lawyer advocates on behalf of a client are somehow attributable to the personal beliefs and convictions of that lawyer when they argue a point of law, which they are obligated to do under the code of conduct, which they may or may not agree with, but which they are duty bound proposed to the court, and let the court make that decision. And so I think the debate we are having today in many ways is nothing new. It's a debate in the subject matter touched upon by the Founding Fathers, including of course Alexander Hamilton in Federalist Number 78, when he talked about the different roles of the branches of government.

And so what I would like to maybe ask—and I just have a very few questions for Justice Cook and Mr. Roberts and Mr. Sutton—is, first of all, Mr. Roberts, I wonder if you would please address the obligation of a lawyer, ethical obligation, to advance a legal argument on behalf of a client, even though a court may ultimately disagree with you or agree with you? What is a lawyer's obligation as you understand it under the code of legal responsibility?

SEN. CORNYN: And, Justice Cook, let me ask you: If you do have, as a judge—and of course your responsibilities are different under our adversary system from an advocate like Mr. Roberts or Mr. Sutton may be—what do you do as a judge when you may have personal feelings about an argument, but where the legislature has spoken or where there is precedent by a higher court on that very point? How do you address that as a judge?

SEN. CORNYN: Justice Cook, let me ask you have you ever made a legal decision in your capacity as a member of an appellate court or a member of the Ohio Supreme Court that you knew was going to be politically unpopular?

SEN. CORNYN: And how do you address that in terms of what you view to be your obligation as a judge?

SEN. CORNYN: Well, having been in a similar position to you when I served as a member of the Texas Supreme Court, do you hope that the people evaluating your performance, whether you're an elected judge or an appointed judge, will understand that your judgment as a member of a court is not an expression of political opinion?

SEN. CORNYN: And how do you feel about results-oriented decision-making by a judge?

SEN. CORNYN: Mr. Sutton, you during some of the questioning I think alluded to the notion that if a court made a decision on a statutory basis—perhaps finding—applying a statute in a particular way, or that the legislature disagreed with, that the legislature would have an opportunity to come back and correct that error. I've read scholars talk about that process between the legislature and the judicial branch as a conversation between branches of government on the—and I wonder if you would tell me your thoughts on that.

SEN. CORNYN: And I know during the course of this hearing and press accounts that I've read about the qualifications and credentials of each of the three of you that there has been a suggestion made that each of you have somehow participated in decision-making or advocacy as the case may be outside the judicial mainstream. But let me ask you this, Mr. Sutton: Have you ever argued a case that you've lost?

SEN. CORNYN: Have you won more than you've lost?

SEN. CORNYN: Well, on those occasions when you've made an argument to the United States Supreme Court and you lost, have you concluded that your argument was outside of the legal mainstream? Is that the necessary conclusion that you would draw?

SEN. CORNYN: Mr. Roberts, what—if you have made an argument that someone might characterize as outside the mainstream of the law, but the—let's say the United States Supreme Court happens to agree with you, and you win that case, would you consider those two—the argument that you were outside the mainstream in making the argument, but the fact that the Supreme Court agreed with you—what conclusion would you draw about whether that's outside the legal mainstream of American jurisprudence?

SEN. CORNYN: Let me ask Mr. Roberts—and I'll ask the same question to Mr. Sutton, because you are not judges?

SEN. CORNYN: You are not judges now but advocates under this adversary system we have been discussing. Are you willing to commit to assuming a new role and a different role, and that is as an impartial umpire of the law, legal arguments, and leave your role as an advocate behind, where you have represented one particular view or another, but now to take on that disinterested, impartial adjudicatory role?

SEN. CORNYN: Mr. Sutton?

SEN. CORNYN: Thank you, Mr. Chairman. Senator Leahy wants a point of personal privilege here.

SEN. CORNYN: Go right ahead --

SEN. CORNYN: Mr. Chairman, if I may—may I just briefly respond? I just want to make clear to Senator Leahy I meant certainly no disrespect or intent to --

SEN. CORNYN: -- to somehow mischaracterize the record. All I was saying is I hope that the committee would look forward rather than backward—because I don't view that as being conducive to doing the job that I feel like we are elected to do, and that is to move these nominees on a timely basis, in fairness to them and in fairness to the people we represent. And so I would hope that together, working across the aisle, we could perhaps come up with some kind of framework that would eliminate the need for the sort of finger-pointing and recriminations that I think are unfortunate, because I don't think anyone is without blame—is my only point. And I hope I've made it clearly.

SEN. CORNYN: Thank you.