September 12, 2005

Announcer: From our nation's capital, this is a Special Edition of WASHINGTON WEEK: The Roberts Hearings. And now here's moderator Gwen Ifill.

GWEN IFILL, host: It has been 11 years since the last Supreme Court confirmation hearings, and this week, it's John Roberts' turn.

In the Senate's historic Russell Caucus Room today, John Roberts stepped into the white-hot spotlight.

Senator LINDSEY GRAHAM (Republican, South Carolina): You have been described as brilliant, talented and well-qualified, and that's by Democrats. The question is: Is that enough in 2005 to get confirmed?

Senator DIANNE FEINSTEIN (Democrat, California): It would be very difficult for me to vote to confirm someone whom I knew would overturn Roe v. Wade.

Unidentified Senator: You, sir, have the talent, experience and humility to be an outstanding member of the United States Supreme Court.

Senator CHARLES SCHUMER (Democrat, New York): We have seen maybe 10 percent of you, just the visible tip of the iceberg, not the 90 percent that still still submerged. And we all know that it is the ice beneath the surface that can sink the ship.

IFILL: Today, the table was set as America prepares to hear from the man who could become the 17th chief justice of the United States.

Judge JOHN ROBERTS (Chief Justice Nominee): I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind.

IFILL: Joining me tonight to analyze today's testimony Joan Biskupic, Supreme Court reporter for USA Today, and John Harwood, the political editor of The Wall Street Journal.

Analysis: First day of the confirmation hearings for John Roberts

Announcer: Here again is moderator Gwen Ifill.

GWEN IFILL, host: Good evening.

John Roberts would be the youngest chief justice in two centuries, and he represents President Bush's first chance to put his mark on the highest court in the land. So any way you cut it, this week's nomination hearings set the stage for an historic turning of the page, and the senators who will spend the rest of the week sifting through his record and his fitness for office know it. Today's hearing was reserved for opening statements from the 18 senators on the Judiciary Committee. Republican committee Chairman Arlen Specter and ranking Democrat Patrick Leahy set the stage.

Senator ARLEN SPECTER (Republican, Pennsylvania; Chairman, Judiciary Committee): Your prospective stewardship of the court, which could last until the year 2040 or longer, would present a very unique opportunity for a new chief justice to rebuild the image of the court away from what many believe it has become as a superlegislature and to bring consensus to the court. Your vote will be critical on many, many key issues, such as congressional power, presidential authority, civil rights, including voting rights and affirmative action, defendants' rights, prayer, many decisions for the future and perhaps institutional changes of the court, looking for the day when the court may be televised.

This hearing comes at a time of turbulent partisanship in the United States Senate, turbulent partisanship. We all have a responsibility to ask probing questions to determine qualification beyond academic and professional standing. Senators have the right to ask whatever questions they choose, and you, Judge Roberts, have the prerogative to answer the questions as you see fit, or not to answer them as you see fit. It's a subtle minuet, and it will be always a matter of great interest as to how we proceed.

I do not intend to ask you whether you will overrule Roe vs. Wade. I will as you whether you think the Constitution has a right of privacy and I will ask questions about precedents as they bear on Roe vs. Wade. I'm very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the court. I am concerned about what I bluntly say is the denigration by the court of congressional authority. And in the issue of states' rights, the Supreme Court of the United States has elevated states' rights but in a context that it's impossible to figure out what the law is. You have a very extensive paper trail, and there will obviously be questions on that subject, and we'll be concerned about what your views are today contrasted with what your views may have been in the future.

Senator PATRICK LEAHY (Democrat, Vermont; Ranking Member, Judiciary Committee): I believe that the American people still want and demand a government to help ensure justice and equal opportunity for all, and especially for those who, through no fault of their own, were born into poverty. The American people deserve a government as good as they are, with a heart as big as theirs.

In these hearings, we're going to be discussing constitutional issues that may seem legalistic, but they're vital issues; they affect every one of us every day. When we discuss the Constitution's commerce clause or spending power, for example, we're asking about congressional authority to pass laws to ensure clean air and water and children's and seniors' health and safe food, drugs, safe workplaces, even wetland protection levees that should protect our communities from natural disasters. Our constitutional values remain constant; we want to realize the American promise of fairness and equality and justice.

Judiciary is the most isolated branch of our government from public accountability, so this is the only opportunity to examine what kind of justice John Roberts will dispense if promoted to the Supreme Court, the direction he'd lead the federal judiciary. This here is the only chance that we, the people--we, the people--have to hear from and reflect on the suitability of the nominee to be a final arbiter on the meaning of the Constitution. An open and honest public conversation with the nominee in these hearing rooms is an important part of this process.

This hearing is about the fundamental rights of all Americans, and you're the first nominee of the 21st century. If you are confirmed, you serve not just for the remaining three years of the Bush administration, but you could serve through the administrations of the next seven or eight presidents. Judge Roberts would be deciding matters that affect not only all Americans today, but also our children and our grandchildren.

Chief among emerging concerns are whether the Supreme Court will continue its recent efforts to restrict the authority of Congress to pass legislation to protect the people's interest in the environment, in safety, in civil rights, and whether the Supreme Court will effectively check the greatly enhanced presidential power that's been amassed in the last few years. In other words, Judge, will you be the protector of the rights of all Americans, not just Republicans, not just Democrats, not just Independents, but all Americans? Will you conserve as a check and balance that all Americans expect?

IFILL: Joan, you cover these legalisms and you know the code. Obviously, Arlen Specter was laying out the parameters here, and in his way, so was Patrick Leahy.

Ms. JOAN BISKUPIC (USA Today): Right. They both had messages to their fellow senators, to John Roberts and the American people. And one overriding message was that over the next couple of days, you will see more of John Roberts than you probably will over the next couple of decades. This is the one opportunity to ask him questions about what he'll do, because soon he'll probably disappear into some cloister. So that's the one thing they wanted to put on the table.

The second thing is the kinds of issues that will emerge, and they both lay down broad outlines and also a little bit of nitty-gritty about what they wanted to talk about.

IFILL: John, one of the pieces of nitty-gritty that they both seem to agree about is this issue of congressional power and whether the Supreme Court should be imposing its will on Congress.

Mr. JOHN HARWOOD (The Wall Street Journal): Well, this is one of the things that Democrats are going to bore in on. The Democratic staff has produced a bunch of research showing how many times since the mid-1990s that the Supreme Court has stepped in and overruled congressional authority. It turns on the interpretation of the commerce clause largely in the Constitution, which gives Congress the authority to regulate interstate commerce.

I thought one other thing about the road map that was interesting, Arlen Specter gave perhaps the most--among the Republican senators, the most political statement, because he really defined the--talking about the subtle minuet, about how there aren't any fixed rules for what somebody can and cannot ask, or can and cannot answer. And it's really a bottom-line practical political test. What do you need to do to get by?

IFILL: Well, let's talk a little more about that subtle minuet, because if any gauntlet was thrown down at today's hearing, it was over who gets to ask what questions and whether the nominee has to answer them. Arlen Specter was the one who talked about subtle minuets.

Senator ORRIN HATCH (Republican, Utah): I'll be the first to admit that senators want answers to a great many questions, but I also have to admit that a senator's desire to know something is not the only consideration on the table. Some have said that nominees who do not spill their guts about whatever a senator wants to know are hiding something from the American people. Some compare a nominee's refusal to violate his judicial oath or abandon judicial ethics to taking the Fifth Amendment. These might be catchy soundbites, but they are patently false.

Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues. Some senators consult with law professors to ask these questions a dozen different ways, but we all know that is what they seek.

Senator CHARLES SCHUMER (Democrat, New York): I hope you'll decide to answer questions about decided cases, which so many other nominees have done. If you refuse to talk about already-decided cases, the burden, sir, is on you, one of the most pre-eminent litigators in America, to figure out a way, in plain English, to help us determine whether you'll be a conservative but mainstream conservative chief justice or an ideologue.

Senator JON KYL (Republican, Arizona): If a nominee is asked to commit himself to a particular stance on an issue that is likely to come before him as a judge, that nominee is obligated to decline to answer the question. Any other approach would violate the Code of Judicial Conduct. And, Judge Roberts, I expect you to adhere to the Code of Judicial Ethics, and I want you to know that I will defend your refusal to answer any question that you believe is improper under those circumstances.

Senator RUSSELL FEINGOLD (Democrat, Wisconsin): Judge Roberts, I also want to thank you in advance for all the long hours you will put in with us this week. I wish you well, and I truly do admire your record and your impressive career.

This is a confirmation proceeding, however, not a coronation. It is the Senate Judiciary Committee's job to ask tough questions. We are tasked by the Senate with getting a complete picture of your qualifications, your temperament and how you will carry out your duties. Obviously, nominees to the Supreme Court must be subject to the highest level of scrutiny, and so as the nominee to be the chief justice of the United States, you will be subject to the ultimate level of scrutiny.

IFILL: Now obviously, the Democrats are making clear they're going to ask the questions. Even Arlen Specter actually has said he's going to ask the questions. Does John Roberts have to answer them?

Ms. BISKUPIC: He doesn't have to do anything. He would be wise to give them answers that would be satisfactory in some ways, and they probably will be to a majority. It's that--it's the key Democrats and key Republicans who might want him to be a little bit more forthcoming. Just about everything they're going to ask about will involve cases that have already been up there and might come up again, and he doesn't need to answer directly how he might rule, but he should give them a clue as to where he'd be coming from, a little bit of his--Arlen Specter made a good point about asking about privacy. He's not going to ask about whether he'd overrule Roe vs. Wade, but about privacy, and John Roberts really should have some answer on where he would fall on privacy. And frankly, since the Supreme Court has said the privacy right is in the Constitution, it might be not a very hard question for him to answer.

IFILL: Has this question, John, about who gets to ask and who gets to answer questions, has that become the big fight that the Democrats, or the loyal opposition, are having to this nomination? Is that what it's all boiling down to?

Mr. HARWOOD: Well, it's one of the fights. But we also have the fight that's looming over what sort of documents the administration hasn't yet turned over. They've turned over an awful lot so far.

IFILL: Thousands and thousands of documents.

Mr. HARWOOD: Seventy-five...

IFILL: Joan's read them all.

Mr. HARWOOD: Seventy-five thousand. I'm sure Joan's eyes have glazed over many times.

Look, I thought what was striking about those statements were it's football season, Gwen and Joan, and the Democrats made clear, `We are rushing the passer,' and the Republicans said, `We're going to block for you.' Kyl even said, you know, `I expect you to adhere to judicial ethics by not answering these questions.'

The one thing where I think Democrats were on a little bit weak ground is when Chuck Schumer said, `The burden is on you to satisfy the concerns I have.' That may be his burden in getting Chuck Schumer's vote, but it may not be his burden in clearing the US Senate. I think the burden is on Democrats to use these hearings to try to get enough of those answers that they're seeking to present information to the American people that might turn the political tide against Roberts, because it's been flowing in his direction.

IFILL: And it's conceivable he's not counting on Chuck Schumer's vote, but that's another discussion for another day.

Listening to the senators today, it was not difficult to determine where many of them want to take these hearings. Get ready for questions, but not necessarily answers, on privacy, civil rights, congressional power and, of course, abortion.

Senator DIANNE FEINSTEIN (Democrat, California): It would be very difficult--and I said this to you privately and I said it publicly--for me to vote to confirm someone whom I knew would overturn Roe v. Wade, because I remember, and many of the young women here don't, what it was like when abortion was illegal in America. How the court decides future cases could determine whether both the beginning of life and the end of life decisions remain private, or whether individuals could be subject to government intrusion or perhaps the risk of prison.

Senator SAM BROWNBACK (Republican, Kansas): Perhaps the Supreme Court's most notorious exercise of raw political power came in Roe vs. Wade and Doe v. Bolton, two 1973 cases based on false statements which invented a constitutional right to abortion. Since that time, nearly 40 million children have been aborted in America, 40 million lives that could be amongst us but are not, beautiful, innocent faces that could bless our existence and our families and our nation, creating and expanding a culture of life. If you're confirmed, your court will decide if there is a constitutional right to partially deliver a late-term child and then destroy it. Partial-birth abortion is making its way to the Supreme Court.

Senator DICK DURBIN (Democrat, Illinois): Concerns have also been raised about some of the things you wrote relative to the right of privacy. It's far from settled law in the minds of many. Forty years later, there have been new efforts to restrict the right of privacy, attempts to impose gag rules on doctors when they speak to their patients about family planning. You saw it in the sad debate over the tragedy of Terri Schiavo, a debate that led some members of Congress to threaten judges who disagreed with their point of view with impeachment. And you can find it in the eagerness to authorize the government to pry into our financial records, medical records and library records. Whether the court continues to recognizes and protect Americans' right to privacy will have a profound impact on every American from birth to death. In your early writings that we have to rely on here, you referred to this right of privacy as an abstraction. We need to know if that's what you believe.

Senator JEFF SESSIONS (Republican, Alabama): Activist rulings strike at the heart of democracy. Five members of the court may effectively become a continuing constitutional convention on important questions such as taking of private property, the definition of marriage, the Pledge of Allegiance or a moment of silence before a school day. Our nation cries out for judges who love the law and work every day to uphold its moral authority. The people rightly demand judges who follow, not make law.

IFILL: You know, there are a lot of interesting points made along the way there, but I want to start with Dianne Feinstein, John, because I was interested that she said she would have a difficult time voting for someone--to confirm someone who she knew would vote against Roe v. Wade. What if she doesn't know?

Mr. HARWOOD: Well...

IFILL: What if the question never gets answered?

Mr. HARWOOD: Well, I think that's one of the incentives that John Roberts has not to give too definitive an answer there. But it's a difficult balance on both sides. You know, Joan mentioned that the Supreme Court's found a right of privacy in the Constitution, so it might not be such a difficult answer for him to give. But listen to what Sam Brownback said in that clip that we just played. He talked about `an invented right' in that Roe v. Wade decision and started talking about all the innocent lives that were cost by that. There are a lot of people on the right who are going to also want him to articulate precisely the opposite way that Dianne Feinstein does his view on that, and that's not going to be an easy one to handle.

IFILL: And when Senator Sessions talks about activist courts, it seems to depend on which side of the activism bar you're on. What does he mean?

Ms. BISKUPIC: Well, what he would mean is something like Roe v. Wade, which did make abortion legal nationwide. I think that even though you had Senators Brownback and Kyl and Sessions saying different things that would sort of put an imperative on John Roberts to speak to the right wing of the party, the real fight is with the left here. And I think that he can't talk about poor little babies who die in partial-birth abortions. I mean, he probably can't use that kind of language, frankly, even if he might personally...

IFILL: They can, so he doesn't have to.

Ms. BISKUPIC: Right. And that would sort of almost remove him from what he's already sort of presented himself as, a dispassionate, neutral, open-minded--remember as much as Dianne Feinstein hit the word, `Somebody who I know would vote against Roe v. Wade,' he stressed, `I will have an open mind.' And I think that that might be some way that he can get out of some questions, saying, `Look, I need to see all the briefs. I need to see what both sides are saying. I can't prejudge any kind of question like this.'

IFILL: Well, let's listen to what John Roberts had to say, because by the end of the day, we finally got to hear from him. He spoke for less than seven minutes, all told, and without notes.

Judge JOHN ROBERTS (Chief Justice Nominee): My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath, and judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench.

Mr. Chairman, when I worked in the Department of Justice in the office of the solicitor general, it was my job to argue case for the United States before the Supreme Court. I always found it very moving to stand before the justices and say, `I speak for my country.' But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court in our constitutional system. Here was the United States, the most powerful entity in the world, aligned against my client, and yet all I had to do was convince the court that I was right on the law and the government was wrong and all that power and might would recede in deference to the rule of law.

That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world because without the rule of law, any rights are meaningless. President Ronald Reagan used to speak of the Soviet Constitution, and he noted that it purported to grant wonderful rights of all sorts to people, but those rights were empty promises because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality.

Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open might. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record according to the rule of law without fear or favor to the best of my ability. And I will remember that it's my job to call balls and strikes and not to pitch or bat.

Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain from the days of our youth certain enduring images. For me, those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent, for me, the limitless possibilities of our great land. Growing up, I never imagined that I would be here in this historic room, nominated to be the chief justice. But now that I am here, I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment.

If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law and safeguards those liberties that makes this land one of endless possibilities for all Americans.

IFILL: John Harwood, other than the fact that you used a football metaphor and he used a baseball metaphor, what was the most important thing that he accomplished in that closing statement today?

Mr. HARWOOD: I think the most important thing he did was try to give a statement that was very accessible to the American people. He went up there without a printed statement, no steroids. He talked about how, `It's just me.' He wasn't full of himself. He talked about the majesty of the court. He put a little distance between the John Roberts of today and the John Roberts from his earlier service in the government by saying, `It wasn't until I represented the court--or went before the court as a private lawyer that I fully appreciated the majesty of the court.' And he really gave people the maximum appeal. `I'm just calling balls and strikes.' A little misleading because judges have attitudes.

IFILL: Does that work?

Ms. BISKUPIC: Well, the umpire metaphor doesn't quite work in reality because, face it, laws aren't clear cut and the Constitution's not clear-cut, and it's judges who decide what they actually say. So it's a much broader role than just saying, `Oh, we'll just interpret somebody else's law.'

Mr. HARWOOD: Which is why it matters who wins the election.

Ms. BISKUPIC: Right. Absolutely right.

IFILL: Well, that's what Lindsey Graham said, and we're all going to talk about this all week 'cause this is just the beginning. Thank you, Joan. Thank you, John.

Ms. BISKUPIC: Thank you.

GWEN IFILL, host: Tomorrow on Capitol Hill, questions for and answers from John Roberts. It's expected to be a late night. PBS will carry gavel-to-gavel "NewsHour" coverage every day this week. And every night, we'll join you around the table for more reporting and analysis on WASHINGTON WEEK Special Edition. I'm Gwen Ifill. Good night.