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Tuesday, September 13, 2005

Breaking News: John Roberts on Civil Liberties in Wartime

John G. Roberts [pictured], testifying before the Senate Judiciary Committee during his confirmation hearing to become the Chief Justice of the United States, was asked by Senator Patrick Leahy (D-VT) about the state of civil liberties and individual rights during times of war. The exchange, as reported by the Washington Post, is as follows:

LEAHY: In his book, "All the Laws But One," Chief Justice Rehnquist, the late chief justice, concluded with this sentence, "The laws will not be silent in time of war but they'll speak with a somewhat different voice."

He offers a somewhat different voice, of course -- the Supreme Court decision, an infamous decision, a horrible decision in my estimation, Korematsu. As we know, in that case, the court upheld the internment of Japanese-Americans in detention camps, not because of anything they had done, not because of any evidence that they were at all disloyal to the United States, but solely based on their race, as sometimes this country has legislated very, very cruelly and very wrongly solely on the question of race.

Now, the Korematsu majority's failure to uphold the Bill of Rights I believe is one of the greatest failures in the court's history.

Now, we can't -- I don't believe -- have a Supreme Court that would continue the failings of Korematsu, especially when we're engaged on a war on terror that could last throughout our lifetime; probably will.

We'll always face -- we'll always -- this country, all the Western world, all democracies will face terrorist attacks, whether internal, as we had in Oklahoma City, or external at 9/11.

I just want to make sure you're not going to be a Korematsu justice....

ROBERTS: I read the chief's book that you quoted from. And for someone who sits on the court that I sit on now, we famously look back to one of the first cases decided in the D.C. Circuit. It was the Aaron Burr trial. And if anything's a model... it's, sort of, a motto of our court, an opinion that was written out of that, in which the judge explained that it was our obligation to calmly poise the scales of justice in dangerous times as well as calm times -- that's a paraphrase.

But the phrase, "calmly poise the scales of justice" is, if anything, the motto of the court on which I now sit.

And that would be the guiding principle for me, whether I'm back on that court or different one, because some factors may be different, the issues may be different, the demands may be different, but the Bill of Rights remains the same. And the obligation of the court to protect those basic liberties in times of peace and in times of war, in times of stress and in times of calm, that doesn't change.

The hearings may be viewed live at c-span.org, among other places.

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