Statement of Ralph Nader, on
the nomination of John G. Roberts Jr. by President George W. Bush to be
Chief Justice of the Supreme Court of the United States submitted to the
Senate Judiciary Committee, U.S. Senate, Washington, D.C., September 12,
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
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
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
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
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 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
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
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 pursing 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
5. Do you believe the Court should uphold state and Congressional limits
on corporate political expression in order to equalize contributions to
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
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 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
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
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
32. Do you believe arguments before the Supreme Court should be televised
in the way C-SPAN 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
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
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
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
46. If so, what was the nature of and who were the protagonists of such
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.
is the nation's leading consumer advocate, and former presidential
candidate. You can comment on this column by visiting the Nader blog at
 The Chief Justice
decides who will write the Court opinion (when he is in the majority), assigns
Associate Justices to the federal Circuits, oversees the Administrative Office
of the U. S. Courts, presides over presidential impeachments and submits to
Congress an annual report of the proceedings of the Judicial Conference and its
recommendations for legislation.
 Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979).
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