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The Roberts Hearings Begin

September 12, 2005 at 12:00 AM EDT
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MARGARET WARNER: So what do today’s opening statements from Judge Roberts and members of the Judiciary Committee tell us about him and what we may expect as the hearings unfold?

For that we’re joined by two constitutional law scholars, who follow the Court closely: Kathleen Sullivan, law professor and former dean of the Stanford Law School; and Douglas Kmiec, a professor at Pepperdine Law School and former dean of Catholic University Law School. Welcome to you both.

MARGARET WARNER: Kathleen Sullivan, I’ll begin with you. A six and a half minute opening statement — if you were looking at that, parsing it to try to understand Judge Roberts’ judicial philosophy, what would you see?

KATHLEEN SULLIVAN: Well, Margaret, it was a picture perfect opening to say that he would be open-minded. But the real test will come when the questions begin tomorrow, and we see what he says in answer to substantive questions about privacy, about Congressional power to regulate the environment and protect civil rights and about limits on executive discretion. And so while it was a beautiful opening statement, we won’t know what it really means until he answers the questions starting tomorrow.

MARGARET WARNER: Doug Kmiec, the opening statement — did the umpire analogy work for you?

DOUGLAS KMIEC: I thought it worked brilliantly. The proposition that the umpire does not create the rules, the proposition that no one goes to the game to see the umpire is a reminder that it’s Congress and the president that are formulating these policies, and that — that really was the theme of at least the Republican side of the Senate committee today, and that is this is an inquiry that is to respect the separation of powers and the limited role, albeit important role, of the Judiciary to interpret the Constitution and the statutes, as passed by the Congress but not to expect the nominee to run on a political platform or to be expressing his personal views about disputed political issues or about past cases. What they are going to inquire into appropriately is his general understanding of the law.

MARGARET WARNER: And, Kathleen Sullivan, how about the umpire analogy, did that work for you? Do you think that stands up when you think of what a Supreme Court Justice does?

KATHLEEN SULLIVAN: Well, it portrays a fairness, a judiciousness, and open mindedness that’s appropriate for the judicial role. But let’s face it, Margaret, with all of the talk today from the Republican side about how judges should respect the political branches and they should not legislate from the bench, let’s face it, over the period of the Rehnquist court, and we mourn the great Chief Justice William Rehnquist, but the hallmark of his Court with Republicans dominating it was to strike down congressional statute after congressional statute.

So if you want to go to the umpire metaphor, they called a lot of outs and a lot of strikes on the act of Congress — in one six-year period, the Rehnquist court struck down 30 federal laws, more than any time since the New Deal. So respect for the political branches suggests more respect for Congress when it legislates to protect commerce or civil rights.

MARGARET WARNER: Professor Kmiec, were you surprised that that was one issue that seemed to unite both Democrats and Republicans? Quite a few of the senators talked about the propensity of the Rehnquist Court to strike down what they had done.

DOUGLAS KMIEC: Well, it’s obvious that this is part of the dynamic between the Congress and the Court. This is part of the separation of powers and checks and balances, and yes, I do think there will be specific questions about his understanding of the commerce power, about the respect of authority of the federal and state government.

Again, he has to be very careful, as Justice Ginsburg pointed out in her own confirmation hearings and as she pointed out eloquently on the Supreme Court in a case a few years back, not to step over the line, make pledges or promises or predictions, but I do think Congress is going to want to know, does this judge have an appropriate deference for Congress when they are within the scope of their authority? But of course we also want to know that when Congress oversteps that authority that this judge has the capacity to interpret the limitations on power to protect or as he put it safeguard individual rights.

MARGARET WARNER: I’m going to stay with you Professor Kmiec, because we’re having a little trouble with the audio at Stanford. Talk to us about the common theme of the Democrats and what they’ll really be looking for. In other words, if Judge Roberts is to be confirmed by let’s say a big bipartisan vote, as many justices have been, what did you hear today that told you what the Democrats are looking for?

DOUGLAS KMIEC: Well, I think the real problem on the Democratic side is that they’ve got a nominee here who is of such superb quality and articulateness that their primary interests seem to be in terms of their statements in policies, that they are going to ask about affirmative action, they’re going to ask about gay rights. They’re going to ask about the right of privacy.

They’re going to go down the laundry list of difficult issues that we expect the legislature in the executive to deal with. And quite frankly, I think they will be somewhat frustrated that John Roberts will decline to substitute himself to, as he said, make the umpire into the batter or the pitcher or the catcher.

You know Senator Schumer, Margaret, said the key for him was entirely ideology, but compare that statement to Senator Graham’s statement, Sen. Graham of course being one of the pivotal figures who carved out the compromise that ended the judicial filibuster, Senator Graham said, look, we understand that John Roberts is of a conservative mind. There’s nothing wrong in that. President Bush is of a conservative mind and he won the election. And the ideological question is determined every four years when presidents are elected; they’re not determined when we’re determining the merits and fitness of judicial candidates.

MARGARET WARNER: Professor Sullivan, we heard Senator Kennedy, several other senators talk about the court as an institution that has continually expanded the rights and liberties of individual Americans in different areas, whether it’s civil rights, women’s rights, so forth, and that they saw the court’s role and they wanted to make sure that Judge Roberts was ready to did this, to continue — not only restrict those rights, but continually expand them. Do you see that as a theme that unites everything the Democrats said?

KATHLEEN SULLIVAN: Well, both Senator Leahy in his opening statement and Senator Kennedy and the other senators on the Democratic side were very eloquent on that theme. Senator Leahy began with the preamble to the Constitution, “We the people,” and talked about how the concept of the people had expanded to include African-Americans, women and other minorities in the right to vote as well as all the other rights.

So it was very much a theme of the Constitution that’s not frozen in time as of 1789, but a Constitution that through the interpretation of the court and the amendments by the people has embraced new rights, but has committed to its original purpose of protecting minorities against oppression. Let’s remember, we live not just in a democracy, where the majority can always trample on minority rights, but in a constitutional democracy with a Bill of Rights that protects minorities against majority oppression.

MARGARET WARNER: Did you – let me just interrupt you there. Did you hear from the Republicans a common opposition to that idea?

KATHLEEN SULLIVAN: Well, when the Republicans say don’t legislate from the bench, they mean, don’t strike down abortion restrictions; don’t strike down anti-gay legislation, but they seem fine with striking down all kinds of laws that are designed to control gun use or protect women against violence, or to restore religious liberty. So they’re selective in when they think you should strike things down.

But what I heard on the Democratic side, Margaret, was an attempt that really goes beyond this hearing. The Democrats are trying to lay out an affirmative vision of the Constitution that speaks not just to this nominee or these hearings but to the role of this party in shaping the court and I think trying to socialize Justice Roberts when he becomes Chief Justice Roberts to take account of those principles and purposes when he’s on the bench.

And they said it as part of this process, Margaret; it is a process that was submitted by the farmers not just to the president but to the president with the advice and consent of the Senate, and they’re trying to put a marker down that says the Constitution embraces lots more people besides those who win political victories in legislatures.

MARGARET WARNER: And Doug Kmiec, so if you take what Kathleen Sullivan just said – and you’ve referred to similar – that similar tension – it’s really going to – we’re really going to see tomorrow what kinds of questions Judge Roberts is prepared to answer that do offer hints, at least, about his philosophy.

I mean, there are different categories, right, his own writings, how he feels about past Supreme Court decisions, or more broadly, issues?

DOUGLAS KMIEC: Well, I think it’s entirely appropriate for John Roberts to answer questions of methodology, how do you come to interpret the Constitution, what sources do you consult, what honor do you give to past decisions, how do you give respect under the doctrine of stare decisis –

MARGARET WARNER: Precedent.

DOUGLAS KMIEC: — when is a case suitable for overruling and when is it not – exactly.

He has to be careful, as Justice Ginsburg was careful in declining to answer over 55 times in her hearings to not step over the line where he is saying, my personal view of the death penalty is thus and such, or my personal view of this past decision is for it or against it.

Justice Ginsburg did her best to never do that and to stick as close as she could to giving an explanation of what the Constitution, as originally ratified, or as construed, has been found to mean, demonstrating her competence, demonstrating her open-mindedness, and as Senator Graham pointed out, many of her past writings, like John Roberts’, had a strong ideological bent to them, but they didn’t disqualify her from service by virtue of the fact that she was able to demonstrate her commitment to law.

MARGARET WARNER: All right. Professor Douglas Kmiec and Kathleen Sullivan, thank you both.