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September 16, 2005



Welcome to THE JOURNAL EDITORIAL REPORT. For three days this week, Judge John Robert matched wits with members of the Senate Judiciary Committee considering his nomination as Chief Justice. There's a little question the judge was impressive, and no question he will be confirmed. But there is still this question from both liberals and conservatives: What do we know now about how Judge Roberts will rule on the issues coming to the Supreme Court?

With me to try to answer this question are Dan Henninger, columnist and deputy editor of THE WALL STREET JOURNAL editorial page, Melanie Kirkpatrick, associate editor of the editorial board, specializing in legal issues, and Leonard Leo who is on leave from his job as the executive vice-president of the Federalist Society, to help coordinate support for Judge Roberts.

There was, of course, a huge effort at this week's hearing to get the judge to state his views on abortion and Roe v. Wade.

SENATOR SPECTER (VO): Judge Roberts in your confirmation hearing for circuit court your testimony read to this effect ŚRoe is the settled law of the land' do you mean settled for you or settled beyond that?

JUDGE ROBERTS (VO): Well beyond that it's settled as a precedent of the court, entitled to respect under principles of stare decisis, and it is settled as a precedent of the court, yes.

F ANNOUNCER (VO): While he recognized Roe v. Wade as precedent, he did not rule out circumstances under which the decision could be challenged later.

JUDGE ROBERTS (VO): If you have a case in which there are three precedents that lead and support that result and in the intervening period two of them have been overruled, that may be a basis for reconsidering the prior precedent.

PAUL GIGOT: Melanie, after three days of hearings do we know with any greater certainty whether or not Judge Roberts would overturn or not overturn Roe v. Wade?

MELANIE KIRKPATRICK: We don't know, and of course he wouldn't say, but my view from listening to his comments is that probably not; he probably wouldn't vote to overturn Roe. As we heard, he spoke about Roe being a precedent deserving of respect and then he went on to say that in general it would be a jolt to the legal system if a precedent is overturned.

He also agreed that there is a right to privacy found in the Constitution and talked about that in some detail. So I kind of don't think he would vote to overturn Roe. However, I think he might vote to overturn Carhart, which is the case banning partial birth abortions.

PAUL GIGOT: The 2000 case which of course wouldn't confront right at the heart of it. It's more at the edges of what you can do to regulate kinds of abortion of late term abortion, that sort of thing.

Let's take up this issue of the privacy right, Leonard, because he did endorse, I think, Griswold or the principle in Griswold which is the famous case where Justice Douglas said there was a privacy from the penumbras and emanations in the Constitution wherever those are found. I haven't found them yet when I've been looking, but he did. So where does that leave us?

LEONARD LEO: First, I think that he left the door wide open to reviewing Roe and possibly even overturning it and he only agreed with the conclusion in Griswold. When he was pressed by Senator Cole to move past Griswold and adopt the formulation in Roe he refused to make that connection and he said that he only had no quarrel with the Court's follow on cases such as Eisenstadt v. Baird which has to do with the non-marital right to privacy.

And even in the area of stare decisis and precedent Judge Roberts made very clear that while you have to consider jolts in the legal system in deciding whether to overrule precedent, there are times when you accept the cost of jolt when it's important as in the case of Brown v. Board.

PAUL GIGOT: It didn't sound as if he agreed with Senator Specter's idea of the "super-duper precedent", as the senator put it, which is things that simply are so settled that they can't ever be overturned.

LEONARD LEO: Not only can they not be overturned, nothing emanating from them can be overturned. There is an abortion case that will probably come before the Court, in November I believe, called Ayotte. It comes out of New Hampshire. It involves parental notification 48 hours before an abortion. The issue is whether Roe's original precedence can be liberalized, that the hurdle can be lowered, or whether it is possible to push back and make them higher. I think the Democrat position is that you cannot oppose any liberalization to Roe.

PAUL GIGOT: But I would note that we have two people here who share a similar philosophy who disagree about whether or not Judge Roberts, where he would come down on Roe.

Okay, on to another subject. His views of civil rights and women's rights.

JUDGE ROBERTS (VO): Of course gender discrimination is a serious problem. It's a particular concern of mine and always has been. I grew up with three sisters, all of whom work outside the home. I married a lawyer who works outside the home. I have a young daughter who I hope will have all of the opportunities available to her without regard to any gender discrimination. There's no suggestion in anything that I've written of any resistance to the basic idea of full citizenship without regard to gender.

If you look at my record on the question of affirmative action, yes, I was in an administration that was opposed to quotas. Opposition to quotas is not the same thing as opposition to affirmative action. That was something that President Reagan emphasized repeatedly. I argued against quotas in the FCC case, I argued in favor of affirmative action in the Hawaiian case. In terms of my own personal involvement, I've been active in programs that promote the interests of minorities and disadvantaged to participate fully in our society.

PAUL GIGOT: Dan, is there any merit to this argument against Judge Roberts that he is somehow opposed to traditional civil rights understanding in the United States?

DAN HENNINGER: I think there's absolutely no merit whatsoever. I believe the attacks are in no way an intellectual argument, but it's wholly a political strategy on the part of the Democrats on the Committee. It has never been true that conservatives like Judge Roberts oppose fundamental civil rights for Americans. The question is whether those rights can be made so elastic that any claim that one makes underneath the banner of a right has to be approved and Judge Roberts is trying to draw some distinctions.

I think the Democrats on the Committee were actually speaking to the American people trying to ostracize conservatives from the idea of fundamental rights and simply leaving it at that -- as a political statement.

MELANIE KIRKPATRICK: This was essentially a tutorial on contrasting views of the Constitution with the Democrats saying that it's up to a judge. Judges can't impose their own social view on affirmative action, on civil rights separate from the view of legislatures and Roberts is saying in effect, I think his actual words were, judges are servants of the law -- not the other way around.

PAUL GIGOT: The Court, Leonard, has in recent years been arguing the civil rights issue and the question of racial preferences in a lot of different areas, whether it be quotas in education or jobs, that sort of thing. Do we get anymore insight from the judge on where he stands on those cases like the Michigan student law school case for example?

LEONARD LEO: We get relatively little insight except in a couple of instances where Judge Roberts made very clear that the role of a judge is not to fix injustices or to find them, that's the role of Congress. The role of the courts is simply to interpret and apply the law. The fact that he talked on occasion about judges not engaging in social policymaking I think is some cause for optimism.

But this whole line of questioning completely flopped for the Democrats. There was just no climax here. This was a bone to their extreme base and it just didn't work very well.

PAUL GIGOT: Okay. One of the strongest statements made by Judge Roberts this week was on the subject of whether the Supreme Court should use foreign law as precedence for its decisions.

JUDGE ROBERTS (VO): Relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges.

Foreign law you can find anything you want. If you don't find it in the decisions of France or Italy it's in the decisions of Somali or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends -- you can find them, they're there. That actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent, because they're finding precedent in foreign law, and use that to determine the meaning of the Constitution and I think that's a misuse of precedent.

PAUL GIGOT: Leonard, the Supreme Court has clearly been paying much more attention than in the past to foreign legal precedent, the Roper v. Simmons case on the juvenile death penalty for example, the Lawrence decision on gay rights. Doesn't sound like Judge Roberts is going to be part of that trend.

LEONARD LEO: Not really. He won't be there with Justice O'Connor and Justice Kennedy and Justice Breyer on this one. This was a home run for Judge Roberts. This is where he showed his judicial philosophy more than anywhere else. He made it very clear that these kinds of very loose tools of judicial construction are not appropriate and that he clearly believes the Constitution takes precedence over other forms of law that don't have the binding effect that some people think they do here in the United States.

PAUL GIGOT: If you were a judicial conservative, Dan, this is probably the statement that he made that you find most reassuring. I know that's been my experience in talking to people about the hearings this week.

DAN HENNINGER: I would say so. I mean the movement that we're talking about here, using foreign precedents, is really a movement on behalf philosopher kings and, as a matter of fact, it's controversial even in Europe. I mean the European Commission has been attempting recently to pull authority to make criminal laws into the European Commission inside Brussels. The British are opposed to this and some of the other nations of Europe are also opposed to vesting that sort of criminal law making in a central authority.

PAUL GIGOT: Sounds like Justice Scalia is going to have an ally in his debate on this question with Justices Breyer and Kennedy.

Okay, we can't end this discussion without talking about politics and about the frustration expressed by some Democrats on the committee about Judge Roberts' determination to side step many questions. Here's the flavor of that:

SENATOR SPECTER (VO): Start with the central issue Roe versus Wade.

JUDGE ROBERTS (VO): I feel the need to stay away from a discussion of particular cases.

SENATOR BROWNBACK (VO): Legal status of the unborn child.

JUDGE ROBERTS (VO): I don't think it would be appropriate for me to comment on that.

SENATOR BIDEN (VO): A right to refuse heroic medical efforts.

JUDGE ROBERTS (VO): That's asking me for opinion in the abstract.

SENATOR FEINSTEIN (VO): The separation of church and state.

JUDGE ROBERTS (VO): I don't want to answer a particular hypothetical.

SENATOR (VO): What question would you ask John Roberts?

JUDGE ROBERTS (VO): That's a good question.

SENATOR BIDEN (VO): It's kind of interesting, this kabuki dance we have.

JUDGE ROBERTS (VO): I think I have been more forthcoming than any of the other nominees.

SENATOR BIDEN (VO): We are rolling the dice with you judge.

SENATOR SPECTER (VO): Let him finish his answer Senator Biden.

SENATOR BIDEN (VO): His answers are misleading.

SENATOR SPECTER (VO): They may be misleading but they're his answers.

SENATOR BIDEN (VO): Okay fine.

PAUL GIGOT: Melanie, I should add that Judge Roberts piped in there and said I wasn't misleading in fact. The Democrats are in a dilemma here, aren't they? I mean they know they can't defeat him. On the other hand they know a lot of their support and interest groups are really dead set against Judge Roberts.

Are we going to see eight members of the Judiciary Committee, all the Democrats vote against the judge?

MELANIE KIRKPATRICK: I think there's a very good chance of that. That's what handicappers are saying. And if you look at those eight Democrats every one of them is from a state that went for John Kerry in 2004. So, they come from states that are heavily Democratic. But there's also something else going on here which is the next confirmation hearing and they're honing their skills I think at preparing for the next poor nominee who is up there in front of them. Second, they're trying to send a message to George Bush, hey, don't nominate another conservative.

PAUL GIGOT: Well, I think that they don't know how to send that message. On the one hand if you just barely let him get through and you vote against him maybe you're saying to the president look, don't send up somebody who's really conservative. On the other hand, if they vote for him they might be saying make it easier for them to oppose the next nominee because they're saying look, we voted for Judge Roberts, this other nominee is just over the top and we can't do it.

LEONARD LEO: They are totally confused about what to do. If they give him lots of votes they may gain credibility for the next fight, but they lose the support of their base which is already very angry. If they give him very few votes they rattle their sabers, maybe they scare the president but they look very extreme. It's a very tough position.

PAUL GIGOT: But Leonard, let's talk about the Republicans are going to support Judge Roberts, no question about it, but Charles Krauthammer, WASHINGTON POST columnist, wrote this week that now that Judge Roberts is going to replace Chief Justice Rehnquist, a noted conservative, instead of Justice O'Connor, he's actually going to move the Court to the left. How do you respond to that?

LEONARD LEO: I disagree Paul. I think that Judge Roberts demonstrated time and again during the confirmation hearings that he embraces the judicial philosophy of Justices Scalia and Thomas. He said on numerous occasions it's wrong for judges to engage in social policymaking. He left open the door for Roe. He had a very coy (?) view of the right to privacy, refused to call it a general right to privacy, espoused the virtues of federalism, endorsed the unitary executive. He did a lot of what conservatives really want out of a Court and I think we're going to be very pleased with him.

DAN HENNINGER: I think he's going to turn out to be the liberals' worst nightmare. What he said over and over again is that he will interpret the law as it exists and that I think is just contrary to their political philosophy.

PAUL GIGOT: Quickly around the table, how many votes do you think in the Senate, the full Senate, Judge Roberts will get to be confirmed?

MELANIE KIRKPATRICK: Well, a few weeks ago I think I said close to 80. Now I think it's going to be closer to 90.

PAUL GIGOT: Really? Dan?

DAN HENNINGER: I'd say about 70.


PAUL GIGOT: Ah, you think the Democrats are going to vote against him. I'm going come in between, I think it's 70 to 75. They're going to send a message but some of them, a lot of them want to vote for somebody. Alright, thanks.