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Day Three of Roberts Hearings

September 14, 2005 at 12:00 AM EDT

MARGARET WARNER: Joining us to sort through this second day of senatorial grilling of Judge Roberts are two constitutional law scholars and professors: Akhil Amar of Yale Law School, and Lillian BeVier of the University of Virginia Law School. Welcome to you both.

Well, I know you both could hear and you’ve been watching all day the frustration of many of the Democrats about what they considered a very opaque performance on the part of Judge Roberts.

MARGARET WARNER: Akhil Amar, do you think today give us new insight into him and to how he would approach cases?

AKHIL AMAR: I think it did — not so much on individual cases but on one basic distinction, a general approach, philosophy. There are two kinds of conservatives. Call them the gradualists and the fundamentalists — and I think Judge Roberts really allied himself with the gradualists, talking about the importance of precedent, as opposed to the fundamentalists who point often more to the Constitution itself and its text and its original intent: Where does it say that?

Fundamentalists are like justices like Justice Scalia, Justice Thomas. Justice Rehnquist when he was an associate justice was more of a fundamentalist. On the other hand, Justice O’Connor, Justice Kennedy and Chief Justice Rehnquist have been more in the gradualist mode, focusing more on the importance of precedent than just the original intent and the history and the text of the Constitution.

MARGARET WARNER: Professor BeVier, do you think that’s a fair reading?

LILLIAN BeVIER: It’s a fair reading but I think more importantly in terms of what has come today that is new is that Justice Roberts — pardon me — Judge Roberts has elaborated on the reasons why it is important for him not to answer the questions — some of the questions that are being posed there.

I think, remember the first day he started out with the umpire analogy, and I think today what he has basically made as clear as possible is that you don’t want to have an umpire that has decided — that has made the calls before the game has started.

What you want is an umpire who applies the rules during the game, who doesn’t make them up as the game is progressing. You don’t want an umpire who’s going to call Roger Clemens’ pitches to the Yankee batter whose name I forget now, before they’re pitched. You don’t want him to call the ball before it’s even pitched —


LILLIAN BeVIER: — what you want to do is have him think it through. Moreover, he’s told us that he doesn’t know because he needs to be persuaded and learn from the arguments and briefs and the discussion with his colleagues.

MARGARET WARNER: And just briefly, though, do you see in him, if we’re thinking about what kind of conservative he is, do you accept that there’s a difference between a gradualist and a fundamentalist — to use Professor Amar’s view — or if so, where do you think he falls?

LILLIAN BeVIER: Well, I suppose one would say, given what he has essentially described himself as having overall, he does not claim to have an overarching philosophy, except a philosophy of pursuing the rule of law and staying within the confines of the judicial role.

He is a gradualist perhaps in the sense that he would only very reluctantly expand that judicial role but in terms of — and so he has a great deal of respect for precedent and clearly intends to be guided by that. But he doesn’t claim to have a fundamental philosophy. So in that sense, I suppose, at least you could say he’s not a fundamentalist. You might — I’m not sure you can say he’s a gradualist at this point.

MARGARET WARNER: Professor Amar, first forgive me for mispronouncing your name in my question to Professor BeVier — take the exchange that he had actually with several senators over end-of-life issues and whether it’s the right to privacy that should govern that or whether it’s a question of the state having an interest in preserving life.

What — could any member of this committee or any legal scholar, much less a member of the public, take anything away from all of that about how he might approach this issue?

AKHIL AMAR: Some of what was going on there was less about Roberts and more the senators getting a chance to maybe talk to their constituents about how they feel about things and maybe jawboning the nominee to some degree just so he hears from them the views about the Kilo case or privacy or other things.

One did hear on the larger issue of liberty and privacy, Judge Roberts did tell us that he believed in Griswold — it’s a very settled precedent, he thinks — so it’s not in play, to use his phraseology. But —

MARGARET WARNER: It’s a contraceptive case from Connecticut.

AKHIL AMAR: About married persons having a right to contraception and maybe that’s not in play in that none of the justices really are challenging that today, but he also seemed to suggest that he believed in the Eisenstadt case; that was a case about contraception involving unmarried people.

And that might be in play if you actually ask Justice Thomas or Justice Scalia – they might have said, well, where does the text say that — where does our tradition say that? Now, the precedent says that; it’s an established precedent, but a fundamentalist like Justice Thomas or Justice Scalia might say that’s going a little bit beyond the text or beyond arguably original intent and beyond arguably tradition.

MARGARET WARNER: And Professor BeVier, what did you take from the discussion — the several discussions he had about end-of-life issues?

There is this Oregon, for instance, assisted-suicide case coming to the court this very term.

LILLIAN BeVIER: Right. Once again, I think what he tried to do was to be responsive to the efforts on the part of a couple of senators to evoke from him a personal view about how those issues should be resolved.

What he was trying describe to them, I think and convey to them was that as a person, as a human being he had a greet deal of sympathy for people in those situations but that as a justice of the Supreme Court, he was going to have to come at them as a legal matter from a different perspective.

I would also agree very strongly with Akhil with respect to what the senators are up to now — the notion that they are trying to actually get him to commit himself on these issues.

Certainly at this point in the hearing is a little bit hard to credit — I think they are speaking to their constituents and may in fact as well be speaking to him a future justice — indicating something about where they’d hope he’d go.

MARGARET WARNER: And finally, fairly briefly, and Professor Amar, I’ll start with you, one area where they were clearly speaking to him had to do with what they see is the propensity of the Rehnquist court to not only overturn new laws that they have passed but to use language that seemed to them insulting or condescending.

How did you read Judge Roberts on that question — on how — what standard he might apply — would he maybe be more cautious then Justice Rehnquist about overturning congressional laws?

AKHIL AMAR: Well, I don’t think he tipped his hand on that issue at all. He did embody an extraordinary deference to Congress just in his style of presentation.

He’s down there — they’re up on the bench and he’s very used to as a very skilled oral advocate dealing with people who are in a position of power over him when he’s arguing before the court trying to get them to rule his way when he was in appellate advocate for many years before he became a judge on the D.C. Circuit.

And so here he doesn’t want to offend the members of Congress; he’s trying to basically persuade them in a way to do what he wants, but I don’t think he tipped his hand in an extremely strong way.

He said a lot of things about judicial humility but then, of course, after confirmation we’ll see.

MARGARET WARNER: And Professor, BeVier, very briefly, he also said he’d make it a priority to try to get consensus on this court, which has had so many splintered and split decisions.

How important is that legally and what do you think after observing him his prospects are?

LILLIAN BeVIER: Well, he’s very — it seems to me he would be a very excellent leader in terms of all the values that the court ought to embody — judicial temperament, a brilliance, an ability to understand the issues.

Consensus would be wonderful on the court — at least to the extent of permitting the court to have maybe just two opinions — rather then seven or six, which is what their gotten in the habit of doing — so that the lawyers, the litigants can know, in fact, what the law is. That’s very important if you’re going to have the court embody rule of law values, which is very much on his agenda.

MARGARET WARNER: Professors Lillian BeVier and Akhil Amar, thank you both.

LILLIAN BeVIER: Thank you.

AKHIL AMAR: Thank you.