Roberts Hearings: Day 2

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Click here to watch video of Senator Biden questioning Judge Roberts on Tuesday.

Below is summary of Senator Biden’s questioning of Judge Roberts from Day 2 of the confirmation hearings. You can view today’s proceedings online at or

On Tuesday, the Senate Judiciary Committee began questioning of Judge John Roberts, nominee to be Chief Justice of the United States. Senator Joe Biden picked up where he left off with his opening statement on Monday, noting that the confirmation hearings are the “democratic moment” in which Judge Roberts must tell the American people where he stands on the key constitutional issues: “I said [Tuesday] this shouldn’t be a game of Gotcha, you know. We shouldn’t be playing a game. The folks have a right to know what you think. You’re there for life. They don’t get to — this is the democratic moment. They don’t get a chance to say, You know, I wish I’d known that about that guy. I would have picked up the phone and called my senators and said, ‘Vote no,’ or, ‘vote yes.’ Whichever.”

Senator Biden also responded to Judge Roberts’s opening statement in which he compared himself to an baseball umpire, stating: “Judges are like umpires. Umpires don’t make the rules; they apply them. I will remember that it’s my job to call balls and strikes, and not to pitch or bat.” On Tuesday, Senator Biden noted a key flaw in Judge Roberts’s metaphor. While Major League Baseball has a well-defined strike zone rule, the Constitution does not define precisely the contours of the equal protection clause or the liberty clause. Rather, each Justice must define for themself what constitutes the “strike zone.” Thus, Senator Biden told Judge Roberts that “as much as I respect your metaphor, it’s not very apt, because you get to determine the strike zone. What’s an unreasonable [search under the Fourth Amendment]? Your strike zone on reasonable/unreasonable may be very different than another judge’s view of what is reasonable or unreasonable search and seizure.” Senator Biden told Judge Roberts that he needs to know what his “strike zone” is for key constitutional doctrines like the right to privacy.

Senator Biden also noted that while Judge Roberts has declined to answer certain questions before the Committee by appealing to the “Ginsburg rule” — that is, noting that Justice Ginsburg refused to answer certain questions during her 1993 confirmation hearings — Judge Roberts has actually refused to answer the same questions which Judge Ginsburg did during her hearings. For example, Judge Roberts refused to answer whether he agreed with a landmark 1977 decision by the Supreme Court which struck down a city ordinance which made it a crime for a grandmother to live with her biological grandchildren. Senator Biden noted that Judge Ginsburg had enthusiastically endorsed the decision in 1993, while Judge Roberts refused to tell the Committee whether he accepted the Court’s reasoning that the ordinance violated the Constitution’s liberty clause.

Finally, Senator Biden asked Judge Roberts a series of questions regarding his past writings which raise concerns about his commitment to equal protection for women. Senator Biden asked about a 1982 memo in which Judge Roberts argued strenuously against a proposal by the Reagan Justice Department to assist female prisoners in Kentucky who had brought suit claiming sex discrimination by the state prisons. Judge Roberts claimed that the memo was merely representing the views of his boss, the Attorney General. Senator Biden noted that the memo appeared to represent Roberts own views, which ran counter to those of Brad Smith, the strongly conservative Assistant Attorney General for Civil Rights who supported the female prisoners law suit.

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