September 15, 2005

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

GWEN IFILL, host: John Roberts in his final day on Capitol Hill: Is he a done deal? By the end of four days of testimony even the most skeptical senators were talking about when, not if, John Roberts becomes chief justice.

Unidentified Female Senator: I'm convinced you will be there, God willing, for 40 years, and that even concerns me more because it means that my vote means more.

IFILL: But questions still remain as representatives of women's groups, legal associations, civil rights organizations and Roberts' former colleagues laid out their own opinions on the nominee...

Unidentified Man: He is, in my view, and exemplar of what we should seek in our next chief justice.

Unidentified Woman: He brings to this appointment a keen intellect; sound judgment; honesty, fairness and decency; an exceptional knowledge of and respect for the law, the courts and our constitutional system.

IFILL: And their objections.

Representative JOHN LEWIS (Democrat, Georgia): I feel that if Judge Roberts is confirmed to be the chief justice of the United States, the Supreme Court will no longer hear the peoples' cries for justice.

Unidentified Woman #2: Judge Roberts displayed a pattern of insensitivity and dismissive comments that show a lack of respect for Latino immigrants, members of Congress who supported equal pay for women, and the history of the Kickapoo Indian tribe.

IFILL: But the nominee is headed to a vote, and almost no one thinks John Roberts will not be the next chief justice of the United States. We look at why tonight with two political correspondents: Jeanne Cummings of The Wall Street Journal and Gloria Borger of CBS News.

Announcer: Here again is Gwen Ifill.

IFILL: Good evening.

Interview: Gloria Borger of CBS News and Jeanne Cummings of The Wall Street Journal discuss issues raised at the confirmation hearings for Judge John Roberts

GWEN IFILL, host: After four days in the witness chair, John Roberts went home tonight to await his fate at the hands of the Senate Judiciary Committee. The week's hearings have presented a conservative, well-spoken, politically attractive nominee, a judge with impeccable credentials and powerful supporters. But he still left some Democrats on the committee uncertain about his views on critical issues, mostly because he refused to comment on issues he said might come before the Supreme Court. Tonight we look at the week's testimony through the lens of three of those issues: the first, civil rights.

As an attorney in the Reagan administration, Roberts once argued against an amendment in the Voting Rights Act that would say `effect' rather than `intent' as the standard by which to judge discrimination. Roberts, pressed on this and other of his early writings throughout the week, said this.

Judge JOHN ROBERTS (Chief Justice Nominee): (From Tuesday's hearing) My view in preparing all the memoranda that people have been talking about was as a staff lawyer. I was promoting the views of the people for whom I worked and, in some instances, those are consistent with personal views. In other instances, they may not be. In most instances no one cared terribly much what my personal views were. They were to advance the views of the administration for which I worked.

IFILL: Congressman John Lewis, speaking for the civil rights community today, rejected this.

Representative JOHN LEWIS (Democrat, Georgia): (From today's hearing) I don't buy this argument that he was just doing his job, he was just following the rule. By this time you had the '64 Civil Rights Act, the '65 Voting Rights Act, the Fair Housing Act of 1968. By this time is there--someone in the administration, they should have a mind-set. I think this says something about Judge Roberts' mind-set. He didn't stand up and argue against this attitude. He didn't speak out. He didn't send a memo saying something different.

IFILL: So was this issue settled today, the civil rights issue?

Ms. GLORIA BORGER (CBS National Political Correspondent): I don't think the issue was settled today. I think Judge Roberts over and over again kept saying he was just working for this administration. They were his bosses. It was his job to argue their point of view. And you just heard what Congressman Lewis said. He said that's not enough, because if he didn't agree with them, it was his obligation to tell them that he didn't agree with them. And so we have to assume that, in fact, these points of view were, in fact, his own.

IFILL: Now we know that Congressman Lewis is not a member of the committee; obviously, he's a member of the House. But it was interesting to me that many of the people, the advocates and activists who testified today, were much more direct in their criticism of the nominee than most of the senators on the committee.

Ms. JEANNE CUMMINGS (The Wall Street Journal): Well, it's definitely true. The activists today came in and they look at his words and they don't--they're taking them literally and they're not buying his explanations. I think the Senate is more open to listen to what his arguments might be. I think that the civil rights issue is probably the one soft spot--or one of a few, only a few, soft spots he's got going into the floor and the final vote in the Senate committee next week. He didn't explain away those memos. He hid behind the fact he was a staff attorney. He was invited over and over again to distance himself; did not do it.

And so the civil rights community takes two stands. First of all, you can only assume he meant it if he won't distance himself from it. And secondly, what they point out is that Kennedy had a really hard time pressing them on these issues, and what Kennedy finally got him to admit was that he thought that one--that the section of the Voting Rights Act that they strengthened, at one point 23 years ago he said it was constitutionally suspect. He admitted that now he has no basis for thinking that it's constitutionally suspect, which the...

IFILL: And the assumption is that he would then not challenge the existing law should the opportunity present itself.

Ms. BORGER: Right.

Ms. CUMMINGS: No, what they think is that this is just an excuse, that he hasn't heard the best argument for overturning it.

Ms. BORGER: You know, I think this also very much plays into the arguments that went on about congressional authority vs. the court's authority because what he was saying in talking about civil rights and everything else is, `I believe that Congress has the power to legislate, to write these laws,' etc., etc., `and as a judge--not as a member of the Reagan administration, but as a judge--I would have to respect what you did in Congress so long as it is clear.' Because--and so that kind of played into it, too. He said, you know, `I'm not a politician here. When I worked in the Reagan administration I was--it was a political job,' although he didn't say it, you know.

Ms. CUMMINGS: Yeah.

IFILL: Well, he also kind of seemed to anticipate, today more than in past days, that people were trying to cast aspersions on his character. He was the one who said, `You may be suggesting that I'm some sort of hired gun.' And then he went on to say, `I think that's a disparaging way to capture what is and in fact--what is and--in fact an ennobling truth about our legal system that lawyers serve the rule of law above and beyond representing particular clients,' which, of course, was just the problem that Senator Durbin and others had, which is that they wanted him to say that `There are some clients I would not represent.'

Ms. CUMMINGS: Well, the conservatives, at times, wished he'd passed up on a few clients as well, most particularly the Colorado gay rights group.

IFILL: That's true.

Ms. CUMMINGS: And, you know, I do think that the picture, the image that we have of Judge Roberts that comes out of this is that he is a darn good lawyer. He loves the law. He's fascinated by it and he can argue up one side of a case and right down the other side. And he thinks that's what a good lawyer can do. I don't know that he necessarily shed a great deal of light on what kind of mind-set he'd bring as a judge except he'd be open-minded and abide by the law.

GWEN IFILL, host:

Well, there was another issue. It was another debate that arose over Judge Roberts' record on women's rights. Once again it centered on memos Roberts wrote during the Reagan administration, including one where he referred to a government commission on gender discrimination as the, quote, "ladies task force"--kinda like us here tonight.

Ms. GLORIA BORGER (CBS National Political Correspondent): Yeah.

Senator DIANNE FEINSTEIN (Democrat, California): Did you really think that way and do you think that way today?

Judge JOHN ROBERTS (Chief Justice Nominee): Senator, I have always supported and support today equal rights for women, particularly in the workplace. I married a lawyer. I was raised with three sisters who work outside the home. I have a daughter for whom I will insist at every turn that she has equal citizenship rights with her brother.

IFILL: Today Roberts' supporters sparred with his critics on the matter.

Ms. HENRIETTA WRIGHT (Roberts Family Friend): One of the things I've liked most about John is that he's always been supportive of women and aware of the many difficult choices that some of us have faced. As his wife, Jane, and I made the long march to law firm partnership and motherhood, he was unstinting in his encouragement.

Ms. MARCIA GREENBERGER (National Women's Law Center): He said many times he believes in judicial restraint, but unfortunately, what we see from the record and from his testimony is that he's been restrained in protecting individual rights and freedoms but unrestrained in--when he has been seeking to narrow them. And that is what led the National Women's Law Center to oppose his confirmation because we so fear turning back the clock for all Americans, and most especially women, and the risks are simply too high.

IFILL: What are the individual rights and freedoms that Marcia Greenberger is referring to in this case?

Ms. JEANNE CUMMINGS (The Wall Street Journal): Well, primarily what she's talking about is the right to an abortion and the right to privacy, and what--the big concern for Marcia Greenberger, that she got in later in a detailed exchange with Senator Feinstein, is that--if you go back and you look at Clarence Thomas' hearing, he said many of the things--the same things that Judge Roberts did. But once he got on the court it became apparent that how he would apply his thinking was quite different than what people thought. For instance, he recognized--said there is a constitutional right to privacy in the Constitution. But once he got on the court he took an extraordinarily narrow view of what that extends to.

IFILL: She also pointed out that he used a phrase which John Roberts also used about...

Ms. BORGER: Yeah. `I have no quarrel with that,' which was the phrase Clarence Thomas used over and over again.

IFILL: ...which then, once he got on the actual court, the opposite turned out to be true.

Ms. CUMMINGS: And there are--there's one--a few important distinctions, though, to Judge Roberts--to explain his position a little better. He and Thomas said the same thing about Griswold vs. Connecticut--almost the same thing--and that is the case that extended privacy rights to use of contraception by marital couples and led to the Roe decision. And Clarence Thomas said that the Supreme Court did find the right of privacy in Griswold.

IFILL: Right.

Ms. CUMMINGS: Judge Roberts said that they found it in Griswold applying to marital couples--same thing that Thomas said--but he said, `And I think that was the appropriate approach.' That's a big difference between the two.

Ms. BORGER: That's big.

IFILL: I found it interesting, though, that in his defense almost uniformly the women who testified on the women's issue today were saying, `He's a good guy. I was--I came back from maternity leave. He was good to me. He's good to his wife. He's not sexist,' which--I'm not sure if that's the question that had been raised.

Ms. BORGER: Yeah, well, I think more and more as you got into these hearings--and Dianne Feinstein kind of tried to ask the question: We want to know more about who you are as a person, because you have said to us that you believe that "real life" needs to affect the way a judge thinks and what a judge does. And so a lot of people testifying today, as well as some of the senators, were trying to get a sense of him beyond what Feinstein called the automaton that she thought he was. It's very difficult, though, to really get a sense of who John Roberts is beyond being a brilliant legal scholar who believes in adhering to precedent, and that gave a lot of people some comfort who support Roe.

Ms. CUMMINGS: The other...

IFILL: One of the names we didn't hear a lot but which comes up all the time at Supreme Court hearings is Judge Robert Bork, that he has become a verb. To be borked is to have your nomination torpedoed. Peter Edelman, one of the law professors, anti-Roberts, testifying today, said, `Judge Roberts is what I call borked by accretion, bit by bit, memo by memo, speech by speech and now opinion by opinion, and I think what it adds up to is a far more radically conservative judge than Bork,' which is quite remarkable and it's a distance none of the senators went.

Ms. CUMMINGS: Well, it is a concern, though, that Schumer raised that he would use his considerable talents--which is obvious--to create a new majority on the Supreme Court that would roll back the clock on what the Democrats view as the progress and--that has been achieved in the last 20 years. And that is one of the fears that Senator Biden has when he says, `We're rolling the dice on you,' because they don't know what his intent might be, but they know he's enormously skilled and will probably achieve a great number of his own objectives once he gets to the court. And just to roll back, just for a moment, on the testimonials, personal testimonials...

IFILL: Right.

Ms. CUMMINGS: ...the one thing that I found kind of odd about that--I think, first of all, they were trying to demonstrate that he has had not just a charmed life, that he knows a lot of different people and has exposure to many different types of people, but he testified that his personal views aren't relevant. And so all of these testimonials he said himself should not be considered because none of that's going to matter when he sits down to judge a case.

IFILL: That is what he said yesterday.

Ms. BORGER: I think the notion, though, that John Roberts is to the right of Judge Bork is a notion Bork would even deny. I mean, I've spoken with Bork about this and he considers Roberts--and he said this on the record--to be sort of bland and Bork was not.

IFILL: Well, they cert--if they don't want an activist judge that's--maybe that's what they want is bland.

GWEN IFILL, host: But perhaps it's because that Roberts seemed so easy-going and unflappable that senators and activists alike seemed quite interested in getting to, as we've been discussing, quote, unquote, the real man. So we heard about his children, the movies he liked and even the interest he took in the lives of Alaskan fisherman, which--not enough time to explain.

Judge JOHN ROBERTS (Chief Justice Nominee): (From today's hearing) I think judges do have to appreciate that they're dealing with real people, with real cases. We obviously deal with documents and texts, the Constitution, the statutes, the legislative history, and that's where the legal decisions are made. But judges never lose sight--or should never lose sight of the fact that their decisions affect real people with real lives and I appreciate that.

IFILL: Perhaps most real, however, today was Roderick Jackson, who won a Supreme Court fight against an employer who retaliated against him. He traveled from Alabama to Washington to describe why Supreme Court actions affect peoples' lives.

Mr. RODERICK JACKSON (Ensley High School Coach): I came to Washington for the argument. It was truly a thrill. I felt like Justice O'Connor was looking straight at me right in the courtroom. In her opinion she said that prohibiting retaliation against those who protest discrimination is essential to realizing the goals of the law. This decision and my involvement in this case had a significant impact on me and I hope on others as well. The court's decision sends a message that teachers and others like me can stand up for what is right when we recognize discrimination and bring it forward without being penalized as a result.

Like Judge Roberts, I have a son and a daughter and I will insist at every turn that my daughter have equal citizenship rights with her brother. But as I have learned the hard way, sometimes you need help from the Supreme Court to make sure you can do that.

IFILL: I have to say Roderick Jackson didn't say vote for or against John Roberts but it was kind of a refreshing voice today not--just to hear from someone whose life was actually affected. It seems that one of those interesting things about the Supreme Court are the cases that stick in our minds are the ones where peoples' lives are affected: the marijuana--medical marijuana case, the disabilities case where the woman had to climb up the stairs on her hands and knees of the court in order to be heard, eminent domain where they said that we can take peoples' private property in order to turn it for an economic use. It seems that those are the cases that really cut through and that people remember when they think about the Supreme Court.

Ms. GLORIA BORGER (CBS National Political Correspondent): Or affirmative action, which, of course, was another Sandra Day O'Connor moment. And Judge Roberts, in his testimony, spoke about these real-world cases and Sandra Day O'Connor and affirmative action and hinted to us--or actually said to us that he agreed with her position in that case which...

IFILL: There should be a real-world test.

Ms. BORGER: ...that there should be a real-world test, which surprised a lot of Democrats that I spoke with.

Ms. JEANNE CUMMINGS (The Wall Street Journal): Well, he didn't say he agreed with her position. He agreed with her approach. Who knows what he thought of her position? I think that Coach Jackson's role here also he underscored--that was a 5-4 ruling--and in this case a Rehnquist and Roberts may not make a difference but the point being this was a very close case. And it also highlighted the fact that when Judge Roberts was in the White House he wrote several memos trying to narrow the reach of Title IX, the very law under which judge--Coach Jackson brought his lawsuit. Now Judge Roberts says he was simply describing the position of what the constitutional standing of the law was--and the Supreme Court ultimately took the same position as Judge Roberts--but the activists were trying to point out the stakes as the Senate and the committee begin to deliberate this.

IFILL: So are they conscious in these kinds of hearings of the fact that people are listening more closely to people like Roderick Jackson than they are to the law professors from the University of Chicago?

Ms. BORGER: Yeah, I definitely think so and I think you saw that in the questioning from senators, particularly somebody like Senator Kennedy who actually had lived through the civil rights movement and gave a history of it as he spoke with Judge Roberts and I thought was very effective in saying, `Here's what we did. Here's what--where we were and here's what you were writing at this time...'

IFILL: And here is what the stakes are.

Ms. BORGER: `...and here's what the stakes were for millions of Americans.'

IFILL: Well, perhaps the month's investigation, the 80,000 documents, the hours of testimony and the weeks of political angst over the Roberts' nomination all boil down to this final exchange today between the judge and his chief antagonist on the committee in many ways, Democrat Charles Schumer.

Senator CHARLES SCHUMER (Democrat, New York): What kind justice will John Roberts be? Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly? Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society like Justice Rehnquist. Or will you use your enormous talents to use the court to turn back a near century of progress and create the majority that Justices Scalia and Thomas could not achieve? That's the question that we on the committee will have to grapple with this week.

Judge ROBERTS: I've tried to be as fully expansive as I can be in drawing the line whereas a practical matter I think it's necessary and appropriate. The basic question Senator Feinstein, Senator Schumer: What kind of a justice would I be? That is the judgment you have to make. I would begin I think if I were in your shoes with what kind of a judge I've been. I appreciate that it's only been a little more than two years but you do have 50 opinions. You can look at those, and, Senator Schumer, I don't think you can read those opinions and say that these are the opinions of an ideologue. You may think they're not enough. You may think you need more of a sample. That's your judgment. But I think if you'd looked at what I've done since I took the judicial oath, that should convince you that I'm not an ideologue and you and I agree that that's not the sort of person we want on the Supreme Court.

IFILL: How interesting that the nominee on his final day should be forced to say, `I am not an ideologue'? Was he suggesting in any way that Justices Scalia and Thomas are?

Ms. CUMMINGS: I thought it was interesting that the first day, `I have no agenda and I have not platform,' and the last day, he says, `I am not an ideologue.' And throughout, he shook off every label they tried to put on him. I think he's really trying to carve out, `I'm my own guy. Measure me by this and don't assume anything about who nominated me and where I might go and who I might be friends with on the court.'

IFILL: He wouldn't even say yesterday that he fashioned himself after Justice Rehnquist...

Ms. CUMMINGS: Yeah. Yeah.

IFILL: ...who's known to be his mentor.

Ms. CUMMINGS: Shook that right off.

Ms. BORGER: I thought that was really surprising because I can't now remember who was actually questioning him, but he said to him, `You know, your mentor, Justice Rehnquist,' and he said, `Well, he was one of many'...

IFILL: Yeah.

Ms. BORGER: ...and refused to be pigeonholed as a Rehnquist conservative, and by the way, that's why the Democrats are saying, `We're rolling the dice here with you because we just don't know who you are and what you're going to turn into.' But by the way, they didn't know what Justice Souter was going to turn into, what Justice Kennedy was going to turn into, what Justice O'Connor was going to turn into either.

IFILL: Well--and let me throw something else in there because the rolling of the dice is also happening with some Republicans on the Hill. Let's--take a look back at something that Senator Brownback had to say yesterday.

Senator SAM BROWNBACK (Republican, Arkansas): (From Wednesday) Judge Roberts, this will be my last chance to interact with you at this way. I do commend you, and I also just note, too, that a lot of hopes and prayers are riding on you from a lot of people across this country and around the world. That's--it's just such an incredible, important time with so many big issues that I think I can speak for millions of people in saying that. So godspeed to you and your family.

IFILL: So you--in maintaining the mystery, Judge Roberts managed to maintain the mystery for the Democrats and the Republicans. Senator Brownback sounded a little nervous.

Ms. CUMMINGS: They are a little nervous. They know the die is cast. They can't do anything about it, but they are nervous. And what may or may not prove true, I thought there was an interesting point, the first day of testimony I believe, Judge Thomas talked about Judge Friendly, the first judge he spoke with. He has great admiration for Judge Friendly on the 2nd Circuit Court and what he liked about him and what he said Judge Friendly loved about himself was that both liberal editorial pages and conservative editorial pages would harangue him for one opinion or another and nobody ever really knew where he stood.

Ms. BORGER: Well, Joe Biden even said that. He said, `You made Brownback happy on one side. You've made Democrats happy on the other side on Roe because people aren't quite sure of where you are. So you've done the impossible, right?'

IFILL: So assuming that there is a vote and that he gets out of committee, he gets out of the Senate, he becomes confirmed as the next chief justice, already it felt today like everyone was turning their eyes to the next big challenge. Does that mean that the people who kind of threw up their hands in despair, `You can't take this guy out,' are now aiming already on the next?

Ms. BORGER: I think there is an assumption. It may be right, it may be wrong, talking to conservatives who were helping the White House get this nomination through that they want somebody to the right of this guy next time.

IFILL: Oh, they've said it, explicitly.

Ms. BORGER: And I spoke with one who said, `If we don't get that, this president has a lot of political problems particularly after Hurricane Katrina, he's going to be out there alone and he needs his base.' Now this is what they're demanding. Whether it's what the White House is going to give them...

IFILL: Isn't that just what the Democrats want, though?

Ms. BORGER: It is.

Ms. CUMMINGS: It is what they want...

Ms. BORGER: Absolutely.

Ms. CUMMINGS: ...because for the Democrats the calculation is, `All right. We can't stop this guy. He's not said anything that's a bombshell. So why not cast a vote and then say, "See, we'll vote for a conservative Bush nominee,"' and then serve up the next one. Then they can fire away.

IFILL: Well...

Ms. BORGER: So it's very interesting because the Democrats have to decide do they just vote on party lines in committee, how many Democrats vote for him, you know?

IFILL: It's going to be interesting to watch unless something shows up in all of the papers that he's supposed to present to the committee in the next week or so before the committee votes, it sounds like, as I said at the top, maybe a done deal.

Thank you, Gloria. Thank you, Jeanne. Thank you all for watching.

GWEN IFILL, host: With that, we end our nightly coverage of the John Roberts confirmation hearings. The committee's expected to vote next week, the full Senate, the week after that. Join us tomorrow night for our regular Friday roundtable where we'll talk a little bit more about all this but also about the president's speech to the nation earlier tonight, the continuing fallout from Katrina and the war in Iraq. That's tomorrow night on WASHINGTON WEEK. See you then.

I'm Gwen Ifill. Good night.