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Questioning Judge Roberts

September 13, 2005 at 12:00 AM EDT
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MARGARET WARNER: So what did we learn about Judge Roberts’ views from today’s first round of questioning? To sort through that, we turn to two legal scholars who’ve frequently argued cases before the Supreme Court. Ted Olson was solicitor general of the United States from mid-2001 to mid-2004. He’s now an attorney with Gibson, Dunn and Crutcher in Washington. And Pam Karlan is professor of public interest law at Stanford Law School. She clerked for Supreme Court Justice Harry Blackmun in the mid-80s. Welcome to you both.

Let me start with you, Ted Olson. I know you participated in one of the practice sessions with Judge Roberts. Just in terms of style, demeanor, how well do you think he handled today, his first round of questioning?

TED OLSON: Well, I’m biased. John has been a friend of mine for a long time. And I support his… I thought his nomination was a very, very good choice. But notwithstanding that, I thought he was brilliant. The demeanor that he projected to the senators and to the American people was someone who was thoughtful, careful, measured, open minded, fair, judicious. That is John Roberts, but that’s also the feeling that he projected to the American people.

MARGARET WARNER: And is that politically important?

TED OLSON: It’s very politically important because to the extent that senators are on the fence, they’re more inclined to vote against him if they don’t think the American people like him. Judge Bork, who was a friend of mine and someone I respect a great deal, did not come across favorably to the American people. And that was a part of the problem in his confirmation proceedings.

I think what you saw today and the American people saw today is someone that they would feel comfortable with wearing the robes of the chief justice of the United States.

MARGARET WARNER: Professor Karlan, how do you think he did on that kind of a scale?

PAM KARLAN: Well, if the question is, is he a likable person, is he articulate, is he measured, he came across quite well. I don’t think anybody doubted that he was any of those things. I think what people were most concerned about in a sense is what his views are on how the Constitution should be interpreted, on what the role of a court is relative to the role of the president, the states, Congress and individuals.

And I think what you saw is a man who is an extraordinary advocate, advocating for himself in a forum in which he can’t be forced really to answer questions.

MARGARET WARNER: So let’s jump right into some of these issues – and there were so many today — but Professor Karlan, abortion. That’s where Arlen Specter went right away. If you were interested, a really interested party and advocate on that issue, what would you take away from that big discussion they had about precedent, about Roe, about the Casey decision? What could you take away from that in terms of Judge Roberts and the framework he had used to approach an abortion case?

PAM KARLAN: Well, I think he would start with the Casey opinion. And the important thing to understand about Casey is that it has a very open texture because what the Supreme Court recognized there is that on the one hand women have a liberty interest under the 14th Amendment in deciding whether or not to carry a pregnancy to term but that states also have an interest and that the state can regulate abortion as long as the regulation doesn’t impose what the Supreme Court called an undue burden.

Here’s what the problem is: no one knows precisely which burdens are undue burdens and which ones are appropriate. And so within the structure of stare decisis, this court could well approve a lot of restrictions on abortion that the Burger court wouldn’t have approved, that the justices who were serving at the time of Casey wouldn’t have approved.

So to say that you’ll abide by Casey isn’t a very concrete example of how important do you think a woman’s right to choose really is.

MARGARET WARNER: What’s your view of that, Mr. Olson — what someone would take away from his approach to abortion?

TED OLSON: He was very careful to say, I cannot tell you how I would decide that case or any other case. And it wouldn’t be appropriate for me to comment on that. He was very careful. He said that over and over again.

I think what he projected is he would be open minded. He would look at the briefs, listen to the arguments, listen to his colleagues, look at the facts, consider the Roe case and the Casey case as decisions of the United States Supreme Court that are entitled to great respect and precedential value for all the reasons he identified but that he would look at it with an open mind and he did not say how he would come out in a particular case. And I don’t think he could because he’s never been a justice on the Supreme Court.

MARGARET WARNER: But in his discussion of precedent, wouldn’t you say he was very careful to say, well yes, it’s the settled law of the land but only as much as any other precedent is? And he did outline that there are circumstances under which precedent is reversed.

TED OLSON: Yes. And it’s clear from what he said, he acknowledges the fact that the Supreme Court sometimes changes its mind. It did in Brown Vs. Board of Education. He mentioned that. He regards those decisions as precedents of the Supreme Court but they’re not inviolate.

MARGARET WARNER: Pam Karlan, what about the right to privacy which was part of this discussion but also has broader application? He did say it was no longer his view when he said as a young lawyer in the Reagan White House there was a so- called right to privacy or he referred to the amorphous right. And it was in the Constitution. Where does that take you?

PAM KARLAN: Well again it doesn’t take you very far because I think everyone understands two things: The first is that there are various rights to privacy in the Constitution, and the second is that oftentimes what the court is called upon is to balance the individual’s right to privacy against a claim by the government that it can intrude on that privacy.

And so that’s the first thing — that everybody understands that it’s a balancing. And the question is where an individual justice would want to strike the balance.

The second thing I think everybody understands– and this goes back to a point that Ted Olson was making ago moment ago– is to say you don’t believe in any right to privacy is to touch a third rail as a nominee. And so in saying that he believes in a right to privacy he hasn’t again told you very much about whether he would strike the balance where someone who is a robust defender of privacy would do or whether he would have a very cramped view of which kinds of privacy individuals can maintain if the government wants to take it away.

MARGARET WARNER: Do you agree with that, that someone very concerned about civil liberties couldn’t take this right to privacy statement as great comfort?

TED OLSON: I agree with that. He was very careful to say — and he’s being pushed here because people want to know how he would rule in certain cases — he’s not going to do it. He made it clear today over and over again in very measured tones — and I think the real — one of the reasons why he said that, not just because it isn’t appropriate for someone to promise to do something — he honestly believes that he can’t tell you how he would decide something until it came before him as a justice. That’s what he promises you as a prospective justice. He won’t decide until the case is there.

MARGARET WARNER: All right. That’s a given. But let me switch to another topic. Given that he’s not going to tell you how he’s going to decide — we’ll grant that. We’ll stipulate that — there have been a lot of questions about his views about racial civil rights and gender discrimination — that whole area.

And Sen. Kennedy and Sen. Biden really tried to work him over on that. How did that come out — again, just if you were a layman looking at that?

TED OLSON: Oh, I thought John Roberts demonstrated a great deal of sensitivity to the rights of women and to the rights of minorities, to the protections under the equal protection clause and despite some rather contentious questioning by Sen. Biden and Sen. Kennedy and others with respect to those subjects –

MARGARET WARNER: The Voting Rights Act.

TED OLSON: The Voting Rights Act. John was very — Judge Roberts, excuse me, was very careful to point out what was going in those various different memoranda. The questions took quotations out of context. John was very good or Judge Roberts was very good to point out to justice — to Sen. Kennedy, for example, you’ve misstated what I represented in those memoranda. He came right at him.

MARGARET WARNER: Professor Karlan, you have the last word on this, on the whole racial and gender discrimination area — what you thought came through.

PAM KARLAN: Well, what came through is that he wasn’t willing to stand by what the Reagan administration’s position had been, for example, on the Voting Rights Act. And he said, well, you have to understand I wrote that 23 years ago — I think because the Supreme Court that decided the Voting Rights Act cases after Congress enacted the statute Sen. Kennedy was asking about repudiated the view that he would have pushed.

So if I could just use one example here: Although Judge Roberts doesn’t want to say how he would rule on cases in the future and doesn’t even want to say much about cases in the past lest it give some indication of where he might go in the future he several times today said that he believed Brown against Board of Education was correctly decided and indeed he thought the case for it was stronger than ever.

And so one of the things to ask is in 1953 if Justice Roberts-to-be had thought about Brown, which side would he have been on then because in 1982 when it came to the renewal and the extension and the strengthening of the Voting Rights Act, he was as a junior lawyer on the wrong side, on the wrong side legally and on the wrong side of history.

And so the question isn’t will he apply the law that other people have come up with; it’s how will he think about the undecided issues when he has the power to decide those issues rather than simply to apply decisions that have already been decided in the past.

MARGARET WARNER: Professor Karlan, Theodore Olson, we have to leave it there. Thank you both.

TED OLSON: Thank you.

PAM KARLAN: Thank you.