'I Believe That No One Is Above the Law Under Our System' (2005)
www.nytimes.com

... Following are excerpts from the Senate Judiciary Committee's confirmation hearing yesterday for Judge John G. Roberts Jr., President Bush's nominee to be the chief justice of the United States. He was questioned by, among others, Senators Arlen Specter, Republican of Pennsylvania; Patrick J. Leahy, Democrat of Vermont; Edward M. Kennedy, Democrat of Massachusetts; Russell D. Feingold, Democrat of Wisconsin; Orrin G. Hatch, Republican of Utah; Dianne Feinstein, Democrat of California; and Jon Kyl, Republican of Arizona. The statements were recorded by CQ Transcriptions. A full transcript is online at nytimes.com/supremecourt.

Roe v. Wade

Senator Specter -- When you and I talked informally, I asked you if you had any thought as to how many opportunities there were in the intervening 32 years for Roe to be overruled, and you said you didn't really know. And you cited a number. I said, "Would it surprise you to know that there have been 38 occasions where Roe has been taken up, not with a specific issue raised, but all with an opportunity for Roe to be overruled?" ...

The Justice Department's Office of Legal Counsel issued a secret opinion in August 2002 which argued the president enjoys, quote, "complete authority over the conduct of war," close quote. And, quote, "The Congress lacks authority to set the terms and conditions under which the president may exercise his authority as commander in chief to control the conduct of operations during war," close quote. And then it took the argument to the extreme when it concluded the president, when acting as commander in chief was not bound -- was not bound -- by the federal law banning the use of torture.

In other words, the president would be above the law in that regard. You did not write that memo -- I hasten to add -- but you've seen it.

And I asked Attorney General Gonzales for his view of this memo, in particular this sweeping assertion of executive power, which puts the president above the law. He never gave an answer on that and that's one of the reasons why many had voted against his confirmation.

So, now let me ask you this: Do you believe that the president has a commander-in-chief override to authorize or excuse the use of torture in interrogation of enemy prisoners even though there may be domestic and international laws prohibiting the specific practice?

Judge Roberts -- Senator, I believe that no one is above the law under our system, and that includes the president. The president is fully bound by the law, the Constitution and statutes. Now, there often arise issues where there's a conflict between the legislature and the executive over an exercise of executive authority -- asserted executive authority. ...