September 13, 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: John Roberts goes toe to toe with the members of the United States Senate. There were the questions John Roberts would answer.

Judge JOHN ROBERTS (Chief Justice Nominee): I tend to look at the cases from the bottom up rather than the top down.

No judge gets up every morning with a clean slate and says, `Well, what should the Constitution look like today.'

Senator EDWARD KENNEDY (Democrat, Massachusetts): You do agree, don't you, Judge Roberts, that the right to vote is a fundamental constitutional right?

Judge ROBERTS: It is preservative, I think, of all the other rights.

IFILL: And there were the questions Judge Roberts would not answer.

Judge ROBERTS: And that is something that could come to court in one form or another and I think I have to refrain from commenting on it. Unidentified Man: What would you like history to say about you when it's all said and done?

Judge ROBERTS: I'd like them to start by saying he was confirmed.

IFILL: A long day for the Supreme Court nominee, but is he closer to or farther away from confirmation? We'll talk about today's developments with Linda Greenhouse, Supreme Court correspondent for The New York Times, and Jeanne Cummings, political correspondent for The Wall Street Journal.

Analysis: Jeanne Cummings, The Wall Street Journal, and Linda Greenhouse, The New York Times, discuss today's confirmation hearing

Announcer: Here again is moderator Gwen Ifill.

GWEN IFILL, host: Good evening.

The senators touched on all manner of subjects today: voting rights, women's rights, church and state, privacy, separation of powers and, of course, Roe v. Wade. Judge Roberts almost always resisted efforts to get him to say how he would vote and he almost always said he no longer believes some of the more inflammatory things he wrote during the Reagan era.

The main questioning about abortion came from the panel's chairman, Republican Arlen Specter, who produced this chart to show the court has turned aside 38 previous opportunities to revisit Roe v. Wade. Roberts' answers to these questions boiled down to a legal concept known as stare decisis, a doctrine that basically says precedents set by previous court decisions rule the day.

Judge JOHN ROBERTS (Chief Justice Nominee): I do think that it is a jolt to the legal system when you overrule a precedent. Precedent plays an important role in promoting stability and evenhandedness. It is not enough--and the court has emphasized this on several occasions, it is not enough that you may think the prior decision is wrongly decided. That really doesn't answer the question. It just poses the question.

Senator ARLEN SPECTER (Republican, Pennsylvania; Chair, Judiciary Committee): Judge Roberts, in your confirmation hearing for circuit court, your testimony read to this effect, and it's been widely quoted. `Roe is the settled law of the land.' Did you mean settled for you, settled only for your capacity as a circuit judge or settled beyond that?

Judge ROBERTS: Well, beyond that it's settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes.

Senator HERBERT KOHL (Democrat, Wisconsin): Do you agree with that decision in that there is a fundamental right to privacy as it relates to contraception, in your opinion? Is that settled law?

Judge ROBERTS: I agree with the Griswold court's conclusion that marital privacy extends to contraception and availability of that.

Sen. KOHL: Well, I'm delighted to hear you say that because, as you know, many, many constitutional scholars believe that once you accept the reasoning of Griswold and find that the Constitution does contain a right to privacy and a right to contraception that you've essentially accepted--scholars have said this--essentially accepted the basis for the court's reasoning and decision on Roe, that a woman has a constitutionally protected right to choose.

Judge ROBERTS: Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that's going to come before the court again. The other area is an area that is, to quote Justice Ginsberg from her hearings, "Live with business." There are cases that arise there and so that's an area that I do not feel appropriate for me to comment on.

IFILL: So, Linda, after listening to all that today, is--did Judge Roberts finally say that he is not going to overturn Roe v. Wade?

Ms. LINDA GREENHOUSE (The New York Times): No.

IFILL: Is that what that meant?

Ms. GREENHOUSE: He didn't say that. We, of course, don't know if that's what he meant but I have to say, as I listened to him, the voice I heard was the voice of the second to last, second to most recent Republican Supreme Court nominee David Souter, who in his confirmation hearing, his views on abortion were completely unknown and he refused to say what he thought about Roe against Wade and refused to make any kind of commitment, but he did, as Judge Roberts did here, talk a great deal about stare decisis, about the role of adhering to precedent within the legal system. And, of course, within two years of his confirmation, he gave one of the five votes in the 5:4 decision that Judge Roberts alluded to there, Planned Parenthood against Casey, which reaffirmed--in 1992, reaffirmed Roe against Wade.

IFILL: Well, you know, there are actually a lot of conservatives who are not happy with David Souter because of that.

Ms. GREENHOUSE: Yes.

IFILL: Does that mean that they're hearing the same echoes in their ear today from what the...

Ms. JEANNE CUMMINGS (The Wall Street Journal): Well, they were there. There's a lot of unease in the conservative community. This wasn't how they thought the hearings were going to start. It wasn't supposed to be Specter asking these questions. It was supposed to be Feinstein or Biden. And, you know...

IFILL: ...(Unintelligible).

Ms. CUMMINGS: Well, anybody, but as soon as that gavel was struck, there was Specter, you know, boring in on the most potent issue of the hearings and getting real answers. Other nominees have not been willing to talk even about Griswold, and Roberts said himself, `I'm willing to go further because I think that Griswold is settled law,' which a lot of conservatives don't think the Griswold case is settled law, much less Roe v. Wade. So they're--this is not consistent with some of the positions that they've taken. Now as a consequence, a couple of Republican senators later tried to come in and, you know, do some repair and find out, well, just because there's a precedent doesn't mean you can't overturn some, you know, previous opinion and Roberts did, of course, say that's true. But...

IFILL: But it was a little late in the game after that--after all that.

Ms. CUMMINGS: The nerves were rattled already.

IFILL: Now we know--most people know what Roe v. Wade is, but Griswold, Casey, that all gets mixed up in people's minds. Can you give us a little thumbnail primer to what it was he said in relation to these previous cases that was significant, Linda?

Ms. GREENHOUSE: OK. Griswold in 1965, I think it was, was the first case to take an unenumerated right--that is to say, something that's not in the text of the Constitution--and apply it to sex, basically; to the right of married couples to use birth control. Struck down a Connecticut law that made it a crime to use birth control in the middle of the 20th century. And that was the kind of foundation opinion that led, in a series of steps, to Roe against Wade, which you know what that was. Then in the first Bush administration, there were a series of cases propelled through the court by the Bush administration, in which John Roberts was working, to bring Roe against Wade back up to what they thought would be a friendly court for overturning it. But surprisingly, in Planned Parenthood against Casey, three rather recently appointed Republican justices--Justice O'Connor, Justice Kennedy and Justice Souter--voted along with Justice Stevens and Justice Blackmun to reaffirm Roe against Wade and that's the state of the law today.

IFILL: And that's the future they see for themselves if Justice Roberts--Judge Roberts is confirmed?

Ms. CUMMINGS: The conservatives were initially not happy with Judge Roberts for this very reason. They don't know where he stands on abortion. They were brought on board by a full-court press by the White House, who assured them the president would make the pick right. And now, you know, it's a leap of faith for them and this really jarred it today.

IFILL: Well, there was more. There's a lot going on today. On more than one occasion, for instance, Judge Roberts appeared to short-circuit a line of questioning by simply agreeing with the premise, as he did in this exchange on voting rights with Senator Edward Kennedy.

Senator EDWARD KENNEDY (Democrat, Massachusetts): I'm deeply troubled by that narrow and cramped and perhaps even mean-spirited view of the law that appears in some of your writing. In the only documents that have been made available to us, it appears that you did not fully appreciate the problem of discrimination in our society. You do agree, don't you, Judge Roberts, that the right to vote a fundamental constitutional right?

Judge ROBERTS: It is preservative, I think, of all the other rights. Without access to the ballot box, people are not in a position to protect any other rights that are important to them. And I think it's one of, as you said, the most precious rights we have as Americans.

IFILL: "One of the most precious rights we have as Americans." Is that the end of that discussion, Jeanne?

Ms. CUMMINGS: No, that is the beginning of that discussion. Kennedy took his half-hour today to set up for what I assume tomorrow will be a more lengthy conversation. It's interesting to see these exchanges because the memos that Roberts was drafting in the 1980s regarding the Voting Rights Act extension and other--fair housing--other discrimination laws, Kennedy was in the Senate writing them, sponsoring them, promoting them.

IFILL: The bills, not the memos.

Ms. CUMMINGS: These bills, right. And so when the Senate Democrats clashed with the Reagan White House, it was John Roberts in the Reagan White House, so we're reliving some of the very arguments that these two men had 20 years ago.

IFILL: Remind people what the--in Kennedy's opinion, these `cramped, mean-spirited' writings were all about. What was he saying back in the day?

Ms. GREENHOUSE: Well, there was a problem with the Voting Rights Act of 1965. There were two issues. One was part of it was expiring, so it was coming back before Congress and the administration had to take some kind of position. But the more particular problem was that there had been a Supreme Court decision very recently before this voting rights issue emerged that said that to make out a violation of the most important central position of the Voting Rights Act, it wasn't good enough to show that a particular practice had the effect of impinging on the right to vote. You had to show that that was the intent. And that raised a very high bar and Senator Kennedy and the civil rights community, many other people--this was a matter of statute--they were going to--`Well, we'll rewrite it. We're going to amend it and make it clear that we mean'--and as long as it has the discriminatory results, that's good enough to say--to make that a violation.

IFILL: And, you know, I didn't hear an answer to that. That was a point that Senator Kennedy and others pressed greatly to try to make that distinction about what he felt about the intent vs. effect.

Ms. GREENHOUSE: Yeah. They didn't bring it out sharply. I mean, it was--because Roberts had a mantra and his mantra was, `We wanted--we, the Reagan administration wanted--our goal was to extend the Voting Rights Act, as it was.'

IFILL: Right.

Ms. GREENHOUSE: To keep it as it was and extend it. Now the problem, they didn't quite hone in on this the way one might have expected. The problem was the Supreme Court had kind of changed the meaning of it, so it--to say what it was wasn't to say was in 1965.

Ms. CUMMINGS: And I think he knocked them off their game because this is one of the ones where he said, `This isn't my policy. I was a lawyer. I was working for them. They didn't care what I thought.'

IFILL: And so the Democrats came prepared to challenge him on what he believes and he says, `These are not necessarily my beliefs'

Ms. CUMMINGS: Yeah.

IFILL: Fascinating. Well, there was another piece of this, because religion is always a piece of every Supreme Court argument. So like John F. Kennedy in 1950, Roberts, who is a practicing Catholic, was asked today about whether his religion will affect his ability to do his job. He hesitated a bit when Senator Dianne Feinstein asked if he believed in the absolute separation of church and state.

Senator DIANNE FEINSTEIN (Democrat, California): You can't answer my question yes or no?

Judge ROBERTS: Well, I don't know what you mean by absolute separation of church and state. I don't know what that means when you say absolute separation. I do know this, that my faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source.

IFILL: So what does it mean? Why, first of all, does one question a nominee on their personal religious beliefs and what does it have to do with what actually comes before the court, Linda?

Ms. GREENHOUSE: Yeah. I think that was not the best phrased question. I mean, absolute separation, no. I mean, I think Judge Roberts is quite right. That's the not the way these issues are framed.

IFILL: And, in fact, there were two Ten Commandment cases this year which were decided opposite because it's not that clear.

Ms. GREENHOUSE: Yeah. It's very fuzzy and the court has not done much to clarify it, but the one thing the court doesn't seem to believe in in this area is absolutes. And so I think the question needed editing.

Ms. CUMMINGS: Well, actually, Senator Feinstein was reading a quote from someone else, from a previous ruling asking if he agreed with it and it was in the context of that quote that the word `absolute' came up. And he went on to explain that his hesitation and his questions about what does absolute mean was in part caused by the kind of rulings you just mentioned, as in the Ten Commandments cases. And so he tried to explain that. I think that issue about his religion, though, has been bubbling around his nominee from the outset, so I think in a way, it was just as well for both sides to get it on the table and get it over with and I think Roberts was so prepared for it and so quick to respond.

IFILL: He did it yesterday as well.

Ms. CUMMINGS: He did it yesterday. He did it three times today. And in this case, Feinstein wasn't even looking to elicit that particular response. The earlier precedents were dead on.

IFILL: Let's talk about Senator Feinstein for a moment, the only woman on the committee. She has actually been the one to say, `I am the only woman on the committee, so I have a role here,' and she asked him about some of the things he's written in the past; his--what he says was a lawyer joke about whether there should be more women lawyers and other things which he has said, in these--once again, these 80,000 pages of memos. What was her goal today and did she even come close to getting at it?

Ms. GREENHOUSE: I found there was a bit of a disconnect between her opening statement yesterday, where she came on really pretty tough and promising to ask him a lot of tough questions about some of the memos that reflected debates about sex discrimination policy back in the Reagan years, and today she seemed more kind of hesitant and softer and didn't quite press him or follow up on some of these things, so...

IFILL: You were in the room. You've been in the hearing the last couple days. Did it seem that way in the hearing room as well?

Ms. CUMMINGS: It did. I think it's useful to keep in mind she's not a lawyer and is surrounded by them. And maybe that lends them uncertainty as--in these--you know, in a hearing like this, the law is everything.

IFILL: Except that haven't they been preparing for this for three months?

Ms. CUMMINGS: Well, and she did read her--you know, she read her questions and the questions were fine. She didn't follow up on them aggressively. For instance, in her opening statement--her opening question, she rattled off at least four or five quotes from his memos that women's groups have found particularly offensive and one of them is this joke about whether it would really be good for more housewives to become lawyers.

IFILL: Right.

Ms. CUMMINGS: And some viewed that as him saying housewives shouldn't be lawyers. Well, he said the joke was on the lawyers, that there shouldn't be more lawyers. They went on for like two minutes about whether this was a joke or not and never got to the other four that actually were a little more offensive I think.

IFILL: ...(Unintelligible).

Ms. CUMMINGS: Well, I will not be able to quote it correctly. However, he was at one point talking about equal pay and at one point talked about, you know, distribution of money and comparable worth. I'm not going to get the quote right, but at any rate, he made fun. He seemed to make fun of the idea of equal pay for equal work, which he says he did not, but...

IFILL: And perceived gender discrimination and other comments he's made like that. He didn't really ever get back to any of that. Interesting.

Well, maybe part of the problem is everybody was trying to figure who John Roberts is. So who is John Roberts? Is he a conservative? Is he a moderate, an originalist, a strict constructionist? Inquiring minds and Senators Hatch and Graham wanted to know.

Senator ORRIN HATCH (Republican, Utah): Am I correct in interpreting that you're probably eclectic, that you would take whatever is the correct way of judging out of each one of those provisions? There may be truths in each one of those provisions that none of them absolutely creates an absolute way of judging?

Judge ROBERTS: Well, I have said I do not have an overarching judicial philosophy that I bring to every case, and I think that's true. I tend to look at the cases from the bottom up rather than the top down. And like--I think all good judges focus a lot on the facts. We talk about the law and that's a great interest for all of us, but I think most cases turn on the facts, so you do have to know those. You have to know the record.

Senator LINDSEY GRAHAM (Republican, South Carolina): When the president introduced you to the United States, the people of the United States, he said you were a strict constructionist. Do you know what he meant by that and why he chose to use those words?

Judge ROBERTS: Well, I hope what he meant by that is somebody who's going to be faithful to the text of the Constitution, to the intent of those who drafted it, while appreciating that sometimes the phrases they used, they were drafting a Constitution for the ages, to secure the blessings of liberty for their prosperity. They were looking ahead. And so they often used phrases that they intended to have effect in the future.

Sen. GRAHAM: Does that term make you feel uncomfortable?

Judge ROBERTS: No.

IFILL: The term doesn't make him uncomfortable because there have been so many terms. I guess the reason why they come up, though--Linda, you've covered these hearings before--it's because they're all fraught with meaning and history. They've been applied to previous less successful, more successful nominees. In this case what's it really about?

Ms. GREENHOUSE: Well, I think this exchange--I think his answers to these questions is a way of saying, `I'm not Justice Scalia.' I mean, let's assume I'm not Robert Bork. That's clear. `I'm not Justice Scalia.'

IFILL: Which means that he's not a...

Ms. GREENHOUSE: Which means he does have one stance toward constitutional interpretation, the originalist position, that he's written a book about, he's given dozens of speeches about. He does look at every constitutional case through the same lens, so it's a little interesting that John Roberts went out of his way to say, `That's not me. I take them one case at a time.'

IFILL: And who's he speaking to when he does that?

Ms. CUMMINGS: He's talking, I think, to scholars and activists. This is an important point for the Republican base, so their senators keep pushing it, but I don't think Roberts wants to be pinned down. Later in his testimony, in that questioning from Senator Graham, he tried then to say, `Well, you're a follower of Rehnquist,' and, you know, tried to sort of cloak him in the mantle of Rehnquist.

IFILL: That happened a couple of times.

Ms. CUMMINGS: And Judge Roberts really shook it off and said, `You know, I really want to be counted as my own man.' Now he did then go on to say t hat he felt that those who think he'll be more of a Rehnquist than some other of these other judges, presumably Scalia and Thomas--those who think he'll be more along the lines of Rehnquist will probably not be disappointed. So he associated himself with Justice Rehnquist by the time those exchanges were over.

IFILL: Is it just that labels are out of vogue or that is not in his interest to allow any label to stick at this stage in his career?

Ms. CUMMINGS: I don't think he likes labels. I think he...

IFILL: Most Americans don't like labels.

Ms. CUMMINGS: Well, that's true. And I think, you know, the guy has worked hard. You know, he's smart, he's confident and I think he does have a sense that, you know--he's very--he learned much from Justice Rehnquist but he also learned a great deal from Judge Friendly, who he also was an aide clerk for, and I have great affection for him as well. And I--you know, I think he views himself as a composite of all of his life experiences and doesn't want somebody to stamp him in the corner and say, `Well, that's who he is.'

Ms. GREENHOUSE: Well, and also, you know, he's been a judge for only two years. He's a judge on the Court of Appeals two years. And he gave a speech a few months ago, it preceded his nomination, and I didn't--I don't think he really thought it was a public speech that would get out beyond the forum he was speaking. And he said he's been surprised by what it is to be a judge. Now he thought the easy thing would be to make a decision and the challenge would be to write a good opinion. And what he found instead was it's really hard to decide the cases. And, you know, he's--it's a very interesting speech he gave at Wake Forest University. So that I think when he reflects here in resisting labels, he may still be in the process of figuring out himself. You know, he's such an expert advocate before the Supreme Court, 39 arguments, but it's still different to get on the other side of the bench.

IFILL: You know these other eight members of the court. How--from what we know, from what we can see of this guy, how does he fit into that crew, assuming he is confirmed?

Ms. GREENHOUSE: Well, I know from personal observation that the court, by and large--I haven't spoken to every justice--is quite happy and I can say relieved by his nomination. You know, they knew they were facing an era of change. They know him. He's a known quantity. They'll welcome him very warmly.

IFILL: OK. Well, and finally, one more little thing tonight. Last night we talked a little about sports analogies, in particular Judge Roberts' statement that he plans to be an umpire, not a player on the bench, which was taken to mean he will interpret the law, not make it. By the way, player on the bench not on the--never mind. Well, the Senate could not leave it there. Senator Joe Biden had more to add on that point today.

Senator JOSEPH BIDEN (Democrat, Delaware): As you know in major-league bseball, they have a rule. Rule two defines the strike zone. It basically says from the shoulders to the knees. And the only question about judges is do they have good eyesight or not. They don't get to change the strike zone. As much as I respect your metaphor, it's not very apt because you get to determine the strike zone. What's unreasonable? Your strike zone on reasonable and unreasonable may be very different than another judge's view of what is reasonable and unreasonable search and seizure.

IFILL: Thank goodness baseball season is almost over. I don't think this umpire analogy can continue but there's a logic point that Senator Biden is trying to make. Is he right that the umpire analogy doesn't quite work for the Supreme Court?

Ms. GREENHOUSE: I think he's right. Yeah. I mean, the Supreme Court is a whole entity and court justices do an awful lot more than call the balls and strikes. They really set the framework and I think that...

IFILL: They make the precedent, not just follow it.

Ms. GREENHOUSE: Yeah. I think the analogy was, you know, a little bit pat, actually.

IFILL: What do you think?

Ms. CUMMINGS: Well, I don't want to hear any more about this analogy. Yes, I did sit in there for nine hours today and I've had it with the whole baseball thing, not that I have a problem with real baseball.

IFILL: I understand.

Ms. CUMMINGS: When Judge Roberts first brought this up yesterday, I think the other point he was trying to make is that nobody should go to a game to watch the umpire and if that--I think that was what he was trying to say, was too much attention. The court somehow has gotten too far off and he feels the court should have a lower profile and the action should take place elsewhere.

IFILL: So what are the biggest unanswered questions so far? We're halfway through, roughly, through these hearings. Is there something that's waiting out there to be addressed that hasn't been? We've talked about abortion. We've talked about voting rights. We've talked about all these big issues of the day: religion, church vs. state. What's still hanging?

Ms. GREENHOUSE: Well, I would say, you know, we come to these hearings after eight weeks of very intensive scrutiny, of tens of thousands of pages of his memos and so on that he wrote 25 years ago and so the real question he is, I think, endeavoring to answer is, OK, we know who you were 25 years ago. We want to know who you are today and what you're likely to be tomorrow and 25 years from now. And, you know, they're not getting specific answers but I think, as we've been discussing, they're getting a certain kind of, you know, music about it.

Ms. CUMMINGS: I think there's a lot more to come. There'll be some civil rights, and that's the thing that they covered today but they didn't get very far into the war and the questions--all the legal questions that have been raised by that--torture, prisoners--no environmental--a little bit of environmental...

IFILL: A little bit.

Ms. CUMMINGS: ...but we've more to go on that too.

IFILL: We'll be talking all about it again. Thanks, Linda. Thanks, Jeanne.

GWEN IFILL, host: Two days down, two more to go at PBS. We will be with you every step of the way with gavel-to-gavel newshour coverage of the hearings every day and our nightly wrap-up around the table on WASHINGTON WEEK Special Edition. Check your local listing for the time.

I'm Gwen Ifill. Good night.