September 14, 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: The politics of the law: Republicans close ranks, Democrats lash out, while John Roberts sticks to his guns. Eighteen senators will decide John Roberts' nomination fate. Today the battle lines hardened into stone. Republicans, confident.

Senator ORRIN HATCH (Republican, Utah): If people can't vote for you, then I doubt that they can vote for any Republican nominee.

Unidentified Senator: America has gotten to know John Roberts, the man, and I'm quite sure that the Senate is, in fact, going to confirm John Roberts, the man.

IFILL: Democrats, frustrated.

Senator CHARLES SCHUMER (Democrat, New York): I am making a plea here that within the confines of what you think is appropriate and proper, you try to be a little more forthcoming with us in terms of trying to figure out what kind of justice you will become.

Senator JOSEPH BIDEN (Democrat, Delaware): Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.

IFILL: What else happened today, and what happens next? We look into that tonight with Joan Biskupic, Supreme Court correspondent for USA Today, and Michael Duffy, Washington bureau chief for Time magazine.

Announcer: Here again is moderator Gwen Ifill.

IFILL: Good evening.

Analysis: Today's questioning in the confirmation hearings of chief justice nominee John Roberts

GWEN IFILL, host: In their second day of questioning today, senators quizzing John Roberts focused on the types of legal issues that affect the lives of many Americans: guns in schools, capital punishment, the right to die, terrorism, the Pledge of Allegiance. But there was not much new light thrown on these issues, and that was the source of a great deal of frustration from Democrats trying to pin the president's nominee down. Senator Charles--Senators Charles Schumer and Joe Biden led that charge.

Senator CHARLES SCHUMER (Democrat, New York): Why this room should be some kind of cone of silence is beyond me. The door outside this room doesn't say, `Check your views at the door.' So your failure to answer questions is confounding me. You've done it in instance after instance after instance after instance. What is the difference between giving your views here in this hearing room and what judges do every day, what professors do every day, what lawyers do every day? In each case, they have to state their opinion. They have to do it as part of their job, if you will: writing a brief, rendering an opinion, writing an article. In each case, they're stating their views, which might bias them. You've done it. Yet only here, you can't state your views.

Senator JOSEPH BIDEN (Democrat, Delaware): It's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them. The idea that the founders sat there and said, `Well, look, here's what we're going to do. We're going to require the two elective branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third coequal branch of government that gets to be there for life, never, ever, ever again to be able to be asked a question they don't want to answer.' And you know what? He doesn't have to tell us anything. It's OK, as long as he is, as you are, a decent, bright, honorable man. That's all we need to know.

Judge JOHN ROBERTS (Chief Justice Nominee): I'm not standing for election, and it is contrary to the role of judges in our society to say that this judge should go on the bench because these are his or her positions, and those are the positions they're going to apply. Judges go on the bench, and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed. That's inconsistent with the independence and integrity of the Supreme Court.

Sen. BIDEN: No one's asking for a promise.

IFILL: `No one's asking for a promise.' What were the Democrats asking for, then, Joan?

Ms. JOAN BISKUPIC (USA Today): They want more complete answers. They want to be able to say to themselves, say to their constituents and then say when they cast a vote, `We think he will vote this way on key issues.' And they don't want him to directly address, for example, whether he would reverse Roe vs. Wade, but they want a little bit more information from him. And what he's done--he's really made these hearings his, in a lot of ways, more than any nominee I can think of in recent history, where they're all sitting up, they have the weight of their office up on the dais there, and he's down there, able to control just how much he gives by the way he turns their questions. It's not like he's stonewalling in a way that's obvious, because he's giving answers. It's just that he's sort of giving factual responses that don't reveal himself.'

IFILL: And what he says, that he is just in keeping--he's read all of the previous hearing transcripts of all the sitting justices, and when he says he's just keeping with stare decisis, with precedent in former--previous hearings, is he right?

Mr. MICHAEL DUFFY (Time Magazine): Well, I think he went a little further than maybe I expected him to. Watching him today, I thought--I was struck by the fact that--you know, don't forget, he's been nominated not just as associate justice now but as chief justice, and his job as chief justice is to build coalitions and get--go from 5-to-4 decisions to, you know, maybe 7-to-2 or maybe even 8-to-1, maybe unanimous. And I'm watching him today as he gave a little on privacy and as he gave a little on voting rights. I thought, he's do--he's doing a job tryout here, in two ways. He's not just having these confirmation hearings, but he's trying to show, `I can build coalitions here. I might be able to pick off this senator. I might be able to give a little here and pick off that vote.'

You know, three or four weeks ago, at the beginning of August, Democrats were saying, `We're going to get maybe 34 votes against this guy.' Not now.

IFILL: Yeah.

Mr. DUFFY: They may--they'll be lucky to get 24 votes against him, I think. And so I just think he's beginning--I think we saw him show not only that he wasn't going to talk today, but that he's capable of building coalitions.

IFILL: You said he gave a little. How did he give a little?

Mr. DUFFY: Well, I--he--two things, I mean, that struck me. He said that the right to--he talked about, you know, the Griswold case and said, you know, the right to privacy--you know, `I'm not going to mess with that.' That's not saying, `I'm not going to overturn Roe v. Wade,' but it was a little further than I expected him to go. And he's--I think it was Senator Kennedy who'd asked for his opinion on voting rights and whether he thought that should be overturned or regulated; he said no. I thought he was very careful in saying, `I'm going to give you comments on cases that are decided, like Plessy vs. Ferguson or Marbury vs. Madison, but I'm not going to talk about anything that is--still may come before me.' He drew a clear line there.

Ms. BISKUPIC: I think he gave more today than he did yesterday, which I think is an interesting strategy. He was--he very much shut down a lot of lines of the questions yesterday. But if they were going to come back more frustrated today, he fed them little things. And the Q&A with Ted Kennedy, a Democrat from Massachusetts, I thought was interesting because he did allow a few things. He did say that--he distanced himself from some of the memos he wrote against the Voting Rights Act when he was with the Reagan White House, and allowed that he wouldn't take as restrictive a view today on the Voting Rights Act. He also said a couple things about affirmative action. He also said something interesting about discrimination against gay men and lesbians to Senator Feingold.

IFILL: Right.

Ms. BISKUPIC: He asked about--`What would you'--`Did you'--`Would you believe that Congress has the power to outlaw discrimination based on sexual orientation?' And John Roberts said, `Well, I can't say about that, specifically,' but then he did allow something. He said, `But I think, generally, that everyone is entitled to dignity and respect.' And, you know, to some of us that's a scrap, but that might be something that at least a Democrat can then say, `See? He answered.'

Mr. DUFFY: Right. Yeah.

IFILL: So is the frustration that he is giving just enough that they can't really get a purchase on their objections to him?

Mr. DUFFY: Right. I think...

Ms. BISKUPIC: They need ...(unintelligible) just like that. Yeah, I think it's--yeah, right, that he's not answering their questions, and then he's got great cover.

Mr. DUFFY: Right. Right. He's giving--and he's gi--it's almost like he's giving them a little bit of cover to say, `Well, maybe I will vote for this guy.' But don't forget, there's probably going to be--well, we know there's going to be another nomination coming here pretty quickly, and the Democrats have made a lot of calculations about when they say no.

IFILL: Well, there was another undercurrent that was going on in today's hearings. What does Roberts believe? Why does he believe it? It's all about values. And do his opinions go beyond legal definition? Republican Tom Coburn sought reassurance that Roberts is as conservative as he's made out to be.

Senator TOM COBURN (Republican, Oklahoma): (From hearing) We had today a judge in California say you can't use `under God' in the Pledge. The abortion issue, we've talked about. Homosexual marriage, we've talked about--the fact that the judges have said online pornography is fine, regardless of what the Congress has said; parents who know that their 12-year-old daughter can be given oral contraceptive without their permission, and IUD in many places without their permission, but they can't be given an aspirin. You know, these very crucial issues--not to say they're right or wrong, but how we got to the decision, is causing some Americans to lose confidence.

IFILL: But values are apparently in the eyes of the beholder. Democrat Dick Durbin pressed Roberts for his opinion on the plight of the uninsured.

Senator DICK DURBIN (Democrat, Illinois): Whether we're talking about millions of uninsured people or millions of Hispanic children, I would think that it would be a basic value. You'd say, `This is good for America for people to have insurance and bad for them to be denied. It is good for America to see children with education, rather than to see them in the streets, ignorant.

Judge ROBERTS: Senator, do you...

Sen. DURBIN: It seems so fundamental.

Judge ROBERTS: I don't think you want judges who will decide cases before them under the law on what they think is good--simply good policy for America. There are legal questions there. I'm sure I could go down my list of clients and find clients that you would say, `That's the right side. That's the cause of justice.' And there are others with whom you disagree. My point is simply this: that in representing clients, in serving as a lawyer, it's not my job to decide whether that's a good idea or a bad idea. The job of the lawyer is to articulate the legal arguments on behalf of the client.

Sen. DURBIN: I'm just trying to get to the bottom line about your values.

IFILL: That was a refrain we kept hearing from different Democrats and Republicans today about `Who are you really? Who are you as a man? How do you feel about things?' We heard that from Dianne Feinstein: `How do you feel?' What was that about? Was it really about cases that are likely to come before the court, or was it about something less specific?

Ms. BISKUPIC: Well, I think there were two things going on there. First of all, these are nine individuals, human beings, who decide the law of the land, and they bring to the Supreme Court lots of things. They bring their religious faith. They bring their upbringing. They bring where they're from. And those things can't help but inform how they interpret the law, even though, in a very black-and-white way, they are looking at the rule of law. And--but I think everybody does know that individuals bring their values, and justices have talked about that, how they're informed that way. So they want to get a handle on that.

The other thing is, there was a little bit of lobbying or pitching going on. Each of these senators who spoke that way wanted to sort of communicate some of their special causes. We saw that on things like the death penalty, also, with Senator Leahy talking about problems with innocents on death row. So I think there were a couple things: looking at what John Roberts is all about as a human being, but also trying to talk maybe beyond John Roberts to the cameras.

IFILL: A couple of times you heard senators saying, you know, `This is going to be our only chance to talk to you, so let me tell you what I think.'

Ms. BISKUPIC: Right.

Mr. DUFFY: Right. It devolved into speeches at times, partly because they totally struck out trying to ask legal questions, and so they said, `Well, OK, we can't talk to you as a lawyer; just as a man, talk to me.' Of course...

IFILL: And then they struck out on that as well.

Mr. DUFFY: ...I--they struck out on that. Right. I think this is another place where Roberts really prospered today, which is that between, you know, someone like Senator Brownback of Kansas asking him about the definition of marriage and when life begins and when life could end and whether--you know, feeding tubes and contraception on one hand, and, in fact, at one point saying, `Maybe the courts have way too much power and we need to restrict those. You're all too activist'--on one hand, and having on the other hand Senator Feinstein of California and Durbin of Illinois saying, `How will you connect with people in this country who are in pain?'

Roberts is in the middle, sort of saying, `Well, you know, we don't--most of that, we don't do, on both sides.' And so I just--again, as they become unable to sort of talk to him about the law, they--we saw the pre--our politics are shot through with values now and that came out today.

IFILL: Is it true, though, that--has any former nominee ever been held responsible for what they said during their confirmation hearings after they got on the court?

Ms. BISKUPIC: I mean, they can't be.

IFILL: And how would you hold them? How would you hold them?

Ms. BISKUPIC: No. Look, they're appointed for life.

IFILL: Right.

Ms. BISKUPIC: And only once, you know, has somebody been forced off and, you know, it was Abe Fortas and it was something--in this century or the last century, and it was something completely unrelated to the confirmation hearings. And, you know, it's come up through the years that some senator will say, `Gee, I'd like to have that vote back.' I mean, it's been said about Clarence Thomas. It's been said about even Antonin Scalia. But there's no way they can be held accountable for that, but I think that you have to go into it presuming that there will be a level of truthfulness, to some extent, you know. So they're trying to get him to be--you know, his back against the wall a little bit, but through these two days, we haven't seen his back against the wall; we've more seen the senators' backs against the wall.

IFILL: He even resisted the notion that he would plot himself on a scale from conservative to liberal, something William Rehnquist had done.

Mr. DUFFY: Right. Roberts had a great answer to your question about why, you know, no one's been held accountable for anything they said in the confirmation hearings. It's because the smart ones don't say anything in their confirmation hearings. I mean, that was--roughly translated, that's what he told them. Now at that point, the hearing became--`Well, OK'--you could just hear the air kind of go out of it at that point, so...

IFILL: But it seems also to me that Republicans, Tom Coburn and others, were warning him, as well. They were saying, `OK, you've been told--you've been sold to us as being one of us, but we're not completely certain, but this is where we stand.'

Mr. DUFFY: Right.

Ms. BISKUPIC: And he was actually very good on those questions, because he wasn't going to buy into it. The same way when Chuck Schumer was talking to him about Clarence Thomas, saying, `You're really not like Clarence Thomas on privacy, are you?'...

Mr. DUFFY: Yeah.

Ms. BISKUPIC: ...John Roberts wasn't taking the bait. He said, `I'm not going to be compared to anybody.' And I thought that that did show some integrity, not to want to bash anybody, and also, when they said, `Are you proud to have worked for Ronald Reagan, who we've just criticized up here?'--`I was very proud to have worked for Ronald Reagan.'

IFILL: What else was he going to say? But they had to ask the question to get it on the record.

Ms. BISKUPIC: But it was a very effective moment. Yes.

IFILL: Right. Exactly.

Well, it's important to keep in mind that Judge Roberts is not just up for any job on the court. He is being considered for chief justice. So his opinion on how the court should function counts. As such, his answer to Lindsey Graham's question today about what he would change on the court was revealing.

Judge ROBERTS: Well, if I am confirmed, I think one of the things that the chief justice should have as a top priority is to try to bring about a greater degree of coherence and consensus in the opinions of the court. I know that has been a--was a priority of the last chief justice. I actually believe that is something that should be a matter of concern for all of the justices. But as the chief, with the responsibility for assigning opinions, I think he has a greater scope for authority to exercise in that area, and perhaps, over time, can develop greater persuasive authority to make the point.

And, again, coming from the chief, it may be a point that other justices would received--be more receptive to than they might coming from one of their colleagues, that we're not benefited by having six different opinions in a case, that we do need to take a step and think whether or not we really do feel strongly about a point in which a justice is writing a separate concurrence which only he or she is joining, or whether the majority opinion could be revised in a way that wouldn't affect anyone's commitment or--to the judicial oath to decide the cases as they see fit, but would allow more justices to join the majority, so the court speaks as a court. That is something that the priority should be: to speak as a court.

IFILL: Which is an interesting point, except that he's talking about a court which has had how many 5-to-4 decisions in the last several--in the last couple of terms? It seems kind of a hard thing to do.

Ms. BISKUPIC: Oh, it is. In fact, he mentioned that Chief Justice Rehnquist had liked--had sought to bring consensus. Chief Justice Rehnquist said it was like hurting cats to try to get them to all agree.

IFILL: Yeah.

Ms. BISKUPIC: I mean, look at--these are nine individuals with strong feelings. They do understand the value of having an opinion that gets at least five votes, rather than just pluralities down the road. But what happens is, it's not just that an individual says, `Well, I'm just going to write separately and confuse everyone. A separate, concurring opinion can all--can actually control the law in some ways. That's a very powerful thing that never came up here, because I'm sure, you know, the senators don't think of this. But when you have a narrowly decided case and the swing-vote person--typically it was Sandra Day O'Connor--writes separately and sort of undermines that major--the opinion by the main author, that becomes more the law of the land. So it's a powerful position to be kind of a concurring justice with a fifth vote.

IFILL: A couple of different times during the course of these hearings, people have reminded Justice Rob--Judge Roberts--actually, Chuck Schumer did that today, called him Justice Roberts by accident. They called him--they mentioned his age, that he's 50 years old, that he could have 30 years on this court. I mean, Justice Stevens is 85 years old...

Ms. BISKUPIC: Yeah.

IFILL: ...who's the oldest member of the court. So the question became--see, when he talks about persuasive authority, I think the senators were asking, `How are you going to do that?'

Mr. DUFFY: Right, especially as some people reference the strong personalities that already sit on the court.

Ms. BISKUPIC: Exactly.

IFILL: Justice Scalia, particularly.

Mr. DUFFY: Justice Scalia--I think that name did come up, yeah.

IFILL: Yeah.

Mr. DUFFY: Then there was a lot of talk today, as Joan mentioned, about the--I think it was the Ten Commandments cases...

Ms. BISKUPIC: Right.

Mr. DUFFY: ...which had 10 separate opinions for, essentially, nine justices. So...

IFILL: He said one justice agreed on both cases.

Mr. DUFFY: On both cases, that's right. Again, this is where I think there was a kind of play within a play going on, where Roberts was almost auditioning for a separate role on how he handled the senators and how he gave--showed a little leg and how he was able to say, `Look'--he was saying without saying it, `What you're looking at here is someone who tries to build consensus, even in this complicated situation of the Senate Judiciary Committee.' And this wasn't something that was apparent with, you know, Bill Rehnquist when he had his confirmation hearings in '86, but...

IFILL: It doesn't have to be, maybe.

Mr. DUFFY: Right. Exactly. But this is really one of the charges, and really an important qualification for being chief justice, especially now.

IFILL: Well, what makes it--does it also make it more critical that he is now taking--being looked at for the chief justice job, and that swing vote, that O'Connor swing vote, is the one that's up next?

Ms. BISKUPIC: Right.

IFILL: And so, therefore, whatever signals he sends about consensus now will set the stage for this next round of hearings.

Ms. BISKUPIC: I think so. And I can bet that all of his colleagues, perhaps with the exception of David Souter, who famously doesn't like to watch TV, are probably watching these.

Mr. DUFFY: Right.

Ms. BISKUPIC: And they're probably seeing his performance and thinking, `Hmm, I should have said that.' Yeah, but, you know, they--he's...

IFILL: One senator said today, `You go and you tell your colleagues this.' And I thought, `They're watching. What are you talking about?'

Mr. DUFFY: Right.

Ms. BISKUPIC: That's right. That's right. And, first of all, they all know him well, because he's been before the court so many times--39 times. And I think he already will bring some respect in there. But this is a way to show, `Hey, I kind of mastered the Senate. When we sit in our private conference, I might be able to do the same there.'

Mr. DUFFY: I--go ahead.

IFILL: Go ahead.

Mr. DUFFY: Well, I was going to say I think another aspect of this that will have some echo after this week of hearings is done is that he's set a very high standard, also, for comity and reasonableness and just general appeal, and that will have an impact on how the White House decides who to bring--who to nominate next, because you can't bring someone who isn't at least three-quarters this good up...

IFILL: Yeah.

Mr. DUFFY: ...within a month of this performance, or they're going to look really...

IFILL: And it's going to affect how the Democrats strategize about what they do to the next one.

Mr. DUFFY: Exactly. I mean, not only is the court watching this, but you know the White House is watching it, and they're saying, `OK, the next guy we bring up, or woman, has to be nearly this good if they're not going to really get the third degree, because we know that everyone's going to be loaded for bear.'

IFILL: Well, finally tonight, Committee Chairman Arlen Specter used the power of his gavel today to press Roberts on the small matter of respect between Congress and the court.

Senator ARLEN SPECTER (Republican, Pennsylvania; Chairman, Judiciary Committee): I take umbrage at what the court has said, and so do my colleagues. There isn't a method of reasoning that changes when you move across the grain from the Senate columns to the Supreme Court columns. And we do our homework, evidenced by what has gone on in this hearing, and we don't like being treated as schoolchildren and requiring, as Justice Scalia says, a taskmaster. Will you do better on this subject, Judge Roberts?

Judge ROBERTS: Well, I don't think the court should be a taskmaster of Congress. I think the Constitution is the court's taskmaster, and it's Congress' taskmaster as well. And we each have responsibilities under the Constitution. And I appreciate very much the differences in institutional competence between the judiciary and the Congress when it comes to basic questions of fact-finding, development of a record, and also the authority to make the policy decisions about how to act on the basis of a particular record. It's not just disagreement over a record; it's a question of whose job it is to make a determination based on the record.

IFILL: Now I'm not certain that Senator Specter expected John Roberts to say, `Well, yes, I will be treating you like a schoolchild. I will be your taskmaster,' but it does make you wonder, where is this peeve arising from? Obviously, there's some evidence that the court has ignored the Congress before.

Ms. BISKUPIC: Well, it's rising from several rulings that we've had in the last decade in which the court has struck down acts of Congress and, at various points, complained about inadequacy of findings to support laws, bills that were passed, complained--especially Justice Scalia complains about legislative history, saying, `Oh, whatever they say on the floor really doesn't matter. Let's just look at how sloppily they wrote the darn bill and try to interpret that, rather than their comments on it.' So there's been this tug-of-war. It hasn't really been out in the mainstream that much, but here in Washington there's been a tug-of-war between the powers of Congress and how it enacts legislation, and how the court interprets it.

IFILL: Beyond lecturing nominees to the court, what can Congress do about it if the Supreme Court decides, `We've decided you've done this wrong'?

Mr. DUFFY: Well, I think the people who write laws in Congress do their best to try to make sure that the intent of the law is clear, not just in the bills but in the way they have debates on the floor, particularly in the Senate. To me, what was struck about, you know, taskmastering today was that, while there--all this other stuff is going on in the hearing, at any given moment a senator would start asking questions about what--as Joan--were his or her pet projects. And you could have, in the space of five minutes, Senator Brownback say that, you know, `There's too much free speech,' and Senator DeWine saying, `There's--it's being curtailed.' This is on the Republican side.

And so I can understand why they sometimes get confused about what Congress intends, when even within one party there's a debate about whether free speech is being horribly restricted in the last 10 years or horribly out of control.

IFILL: And what activism actually is, for instance.

Mr. DUFFY: Right. So intent's hard sometimes to divine, even when on the same subject.

IFILL: So tomorrow, we begin to hear from the activists on both sides. We hear a few more--I guess the Democrats negotiated a little extra time to come back with some more questions. But we'll begin to hear from basically the left and the right and six panels of people to come and testify about John Roberts' fitness to serve. What do we expect from that?

Ms. BISKUPIC: Well, you'll hear opposition from civil rights, women's rights groups...

IFILL: Usual suspects?

Ms. BISKUPIC: Yes. Yes. But I'm sure they will try to be regarded as not just the usual suspects and say something that sounds fresh because, you know, they've been publicly complaining about him for a while, and they'll want to try to get senators' attention. And by this point in any hearing, Gwen, as you know, there's hardly anyone left in the room. You...

IFILL: And what about--yeah.

Ms. BISKUPIC: You know?

IFILL: Mm-hmm. And what about the conservatives? What are they going to be up there lining up to say...

Mr. DUFFY: Well, the...

IFILL: ...`What a fine fellow'?

Mr. DUFFY: Yeah, the same kind of things--you know, `Can we really believe him on particularly these values issues like, you know, start of life, end of life, definition of marriage, homosexuality, abortion?' The real unseen players in these hearings, which are--and the whole run-up to these hearings--have been the groups on either side, on either flank, who are really banging hard on their members, particularly ones who are sympathetic to him, to ask these questions and push and hold out for or hold out against. It's a real drama that has been going on. A lot of it's about money, and they get their day in the sun, and that's tomorrow.

GWEN IFILL, host: Well, we will be watching the--all those opinions, the pros and the cons of all those outside witnesses. You can see all of it on PBS. We'll be having, as usual, gavel-to-gavel "NewsHour" coverage, and then join us here again around the table for another nightly wrap-up on WASHINGTON WEEK Special Edition. Check your local listings for the time. I'm Gwen Ifill. Good night.