Reel

Program host Gwen Ifill, with guests Joan Biskupic of USA Today and John Harwood of the Wall Street Journal. Composite footage (unclean) with title card. Senate Judiciary Committee members Lindsay Graham (R-SC), Mike DeWine (R-OH), Chuck Schumer (D-NY), and Diane Feinstein (D-CA), with Supreme Court Chief Justice nominee John Roberts in the Russell Caucus Room, giving statements.

Program host Gwen Ifill states that John Roberts would be the youngest Chief Justice of the U.S. Supreme Court in two centuries. Russell Caucus Room occupied by Senators on the Judiciary Committee, their staff, media, Judge John Roberts, and spectators.

Judiciary Committee Chairman U.S. Senator Arlen Specter (R-PA) says, "Your prospective stewardship of the court which could last until the year 2040 or longer would present a very unique opportunity for a new Chief Justice to rebuild the image of the court away from what many believe that has become as a super legislature and to bring consensus to the court. Now your vote would be critical on many, many key issues such as congressional power, Presidential authority, civil rights, including voting rights and affirmative action, defendants rights, prayer, many decisions for the future, and perhaps institutional changes in the court, looking for the day when the court may be televised. This hearing comes at a time of turbulent partisanship in the United States Senate, turbulent partisanship. We all have a responsibility to ask probing questions to determine qualification beyond academic and professional standing. Senators have the right to ask whatever question they choose and you Judge Roberts have the prerogative to answer the questions as you see fit or not to answer them as you see fit. It's a subtle minuet and it will be always a matter of great interest as to how we proceed. I do not intend to ask you whether you will overrule Roe v. Wade. I will ask you whether you think the Constitution has a right of privacy and I will ask questions about precedents as they bear on Roe v. Wade. I'm very much concerned about what I conceive to be an imbalance in the separation of powers between the Congress and the Court. I'm concerned about what I bluntly say is the denigration by the court of Congressional authority. And then the issue of States rights, the Supreme Court of the United States has elevated states rights, but in a context that it's impossible to figure out what the law is. You have a very extensive paper trail, and there will obviously will be questions on that subject and we'll be concerned about what your views are today contrasted with what your views may have been in the future." Cutaways of Chief Justice nominee to the U.S. Supreme Court John Roberts.

U.S. Senator Patrick Leahy (D-VT) says, "I believe that the American people still want and expect and demand a government to help insure justice and equal opportunity for all, and especially for those who through no fault of their own were born into poverty. The American people deserve a government as good as they are with a heart as big as theirs. In these hearings, we're going to be discussing constitutional issues that may seem legalistic, but they're vital issues. They effect every one of us, every day. When we discuss the Constitution's commerce clause, the spending power for example, we're asking about Congressional authority to pass laws to ensure clean air and water and children’s and seniors' health, and safe food, drugs, safe work places, even wetland protection, levees that should protect our communities from natural disasters. Our Constitutional values remain constant; we want to realize the American promise of fairness and equality and justice. Judiciary is the most isolated branch of our government, from public accountability, so this is the only opportunity to examine what kind of justice John Roberts will dispense at promoted to the Supreme Court, the direction he'd lead the Federal Judiciary. This hearing is the only chance that 'We The People,' we the people have to hear from and reflect on the suitability of the nominee to be a final arbiter, the meaning of the Constitution. An open and honest public conversation with the nominee in these hearing rooms is an important part of this process. This hearing is about the fundamental rights of all Americans and you're the first nominee of the 21st century. If you're confirmed, you serve not just for the remaining three years for the Bush administration, but you could serve through the administrations of the next seven or eight presidents. Judge Roberts would be deciding matters that affect not only all Americans today, but also our children and our grandchildren. Chief among emerging concerns of whether the Supreme Court will continue its recent efforts restrict the authority of Congress to pass legislation to protect the people's interest in the environment, in safety, in civil rights, and whether the Supreme Court will effectively check the greatly enhanced Presidential power that has been amassed in the last few years. In other words, Judge, will you be the protector of the rights of all Americans, not just Republicans, not just Democrats, not just Independents, but all Americans. Whether you can serve as the check and balance that all Americans expect."

Show host Gwen Ifill in television studio with Joan Biskupic of USA Today and John Harwood of the Wall Street Journal. Ifill asks Biskupic if the opening statements from Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) were filled with subtext in laying out what their expectations are. Biskupic agrees the statements lay out a message for each party’s expectations of the new Supreme Court Chief Justice. This is the Senate’s one chance to put Judge Roberts on display for the whole nation to see and ask him whatever questions they wish. Biskupic notes that once confirmed, Roberts is likely to disappear from the public spotlight. Secondly, this is an opportunity for Senators to ask questions, broad in scope and “nitty gritty” in detail, that will emerge down the line. Ifill asks Harwood about Congressional power and whether the Court should be imposing its will on Congress. Harwood explains how Democrats will bore in on that topic through research going back to the 1990s showing how often the Court has stepped in and overruled Congressional authority. The argument centers around the Commerce Clause in the Constitution. Harwood believes Sen. Specter gave the most political opening statement by alluding to the lack of rules governing questions that can and cannot be asked and the answers that do or do not have to be answered. Ifill takes that idea of what questions and answers may or may not be given by seguing to the argument being held in the Senate chambers regarding who gets to ask what questions and whether or not those questions have to be answered.

U.S. Senator Orrin Hatch (R-UT) says, "I'll be the first to admit that Senators want answers to a great many questions, but I also have to admit that a Senator's desire to know something is not the only consideration on the table. Some have said that nominees who do not spill their guts about whatever a Senator wants to know are hiding something from the American people. Some compare a nominee's refusal to violate his judicial oath, or abandon judicial ethics, to taking the Fifth Amendment. These might be catchy sound bites, but they are patently false. Nominees may not be able to answer questions that seek hints, forecasts or previews about how they would rule on particular issues. Some Senators consult with law professors to ask these questions a dozen different ways, but we all know that is what they seek."

U.S. Senator Charles Schumer (D-NY) says, "I hope you'll decide to answer questions about decided cases, which so many other nominees have done. If you refuse to talk about already decided cases, the burden, sir, is on you, one of the most preeminent litigators in America, to figure out a way in plain English to help us determine whether you'll be a conservative, but mainstream conservative Chief Justice, or an ideologue."

U.S. Senator Jon Kyl (R-AZ) says, "If a nominee is asked to commit himself to a particular stance on an issue that is likely to come before him as a judge, that nominee is obligated to decline to answer the question. Any other approach would violate the code of judicial conduct and Judge Roberts I expect you to adhere to the code of judicial ethics and I want you to know that I will defend your refusal to answer any question that you believe is improper under those circumstances."

U.S. Senator Russell Feingold (D-WI) says, "Judge Roberts, I also want to thank you in advance for the long hours you will put in with us this week. I wish you well, and I truly do admire your record and your impressive career. This is a confirmation proceeding, however, not a coronation. It is the Senate Judiciary Committee's job to ask tough questions. We are tasked in the Senate with getting a complete picture of your qualifications, your temperament, and how you will carry out your duties. Obviously, nominees to the Supreme Court must be subject to the highest level of scrutiny, and so as the nominee to be the Chief Justice of the United States you will be subject to the ultimate level of scrutiny."

Show host Gwen Ifill mentions that the Democrats and Republican Arlen Specter (R-PA) will ask tough questions. Joan Biskupic of USA Today says Judge John Roberts does not have to answer anything, but it would be wise to provide satisfactory answers. Most of the questions will come from previous cases and similar cases that may come up again and while he does not have to directly answer questions about how he would rule on a case, he should give the committee an idea as to “where he’s coming from” on an issue such as privacy. Ifill asks John Harwood of the Wall Street Journal if there is a fight between groups on what questions can and cannot be asked and subsequently answered or not. Harwood says that is one of the fights but there others as well, such as the documents the administration has not turned over. Harwood argues that despite the Democrats’ argument that the burden is on Judge Roberts to prove himself worthy of the nomination, the test lies within the Democrats to ask the right questions and present their arguments to the American people. As it stands, Judge Roberts holds the benefit of the doubt.

Show host Gwen Ifill segues into the the direction Democrats want to take in questioning Judge John Roberts: privacy, civil rights, congressional power, and abortion. U.S. Senator Dianne Feinstein (D-CA) says, "It would be very difficult, and I said this to you privately and I said it publicly, for me to vote to confirm someone whom I knew would overturn Roe v. Wade. Because I remember, and many of the young women here don't, what it was like when abortion was illegal in America. How the court decides future cases could determine whether both the beginning of life and the end of life decisions remain private or whether individuals could be subject to government intrusion or perhaps the risk of prison."

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

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

U.S. Senator Jeff Sessions (R-AL) says, "Activist rulings strike at the heart of democracy. Five members of the Court may effectively become a continuing constitutional convention on important questions such as taking of private property, the definition of marriage, the pledge of allegiance, or a moment of silence before a school day. Our nation cries out for judges who love the law and who work everyday to uphold it's moral authority. The people rightly demand judges who follow, not make law."

Show host Gwen Ifill remarks upon U.S. Senator Diane Feinstein’s point that she could not vote for someone she knew would reverse Roe v. Wade. John Harwood of the Wall Street Journal sees a way Judge John Robert can avoid directly answering that question, but believes he will avoid questions on the topic coming from Republicans who hold the opposite viewpoint that Senator Feinstein holds. Ifill asks Joan Biskupic of USA Today about judicial activism that U.S. Senator Jeff Sessions talked about in his statement. Biskupic says that statement still alludes to Roe v Wade and what Republicans believe to be a false right made up in the original ruling. Whatever questions the Republicans ask and pry on the matter of abortion, the real fight for Judge Roberts will come from the left. Biskupic sees that Judge Roberts may have found a way to appease the left by claiming to have an open mind and being unable to make judgments, especially on abortion, until he sees and studies court briefs.

U.S. Supreme Court Chief Justice nominee Judge John Roberts says, "My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role. Judges and justices are servants of the law, not the other way around. Judges are like umpires; umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure that everybody plays by the rules, but it is a limited role. Nobody ever went to the ball game to see the umpire. Judges have to have the humility to recognize that they operate within a system of precedent shaped by other judges equally striving to live up to the judicial oath. And judges have to have the modesty to be open in the decisional process to the considered views of their colleagues on the bench. Mr. Chairman, when I worked in the Department of Justice, in the office of the Solicitor General, it was my job to argue cases for the United States before the Supreme Court. I always found it very moving to stand before the Justices and say I speak for my country. But it was after I left the department and began arguing cases against the United States that I fully appreciated the importance of the Supreme Court in our Constitutional system. Here was the United States, the most powerful entity in the world aligned against my client, and yet all I had to do was convince the court that I was right on the law, and the government was wrong, and all that power and might would recede in deference to the rule of law. That is a remarkable thing. It is what we mean when we say that we are a government of laws and not of men. It is that rule of law that protects the rights and liberties of all Americans. It is the envy of the world, because without the rule of law any rights are meaningless. President Ronald Reagan used to speak of the Soviet Constitution, and he noted that it purported to grant wonderful rights of all sorts to people, but those rights were empty promises. Because that system did not have an independent judiciary to uphold the rule of law and enforce those rights. We do, because of the wisdom of our founders and the sacrifices of our heroes over the generations to make their vision a reality..."

U.S. Supreme Court Chief Justice nominee Judge John Roberts continues speaking: "… Mr. Chairman, I come before the committee with no agenda. I have no platform. Judges are not politicians who can promise to do certain things in exchange for votes. I have no agenda, but I do have a commitment. If I am confirmed, I will confront every case with an open mind. I will fully and fairly analyze the legal arguments that are presented. I will be open to the considered views of my colleagues on the bench, and I will decide every case based on the record according to the rule of law without fear or favor to the best of my ability. And I will remember that it's my job to call balls and strikes, and not to pitch or bat. Senators Lugar and Bayh talked of my boyhood back home in Indiana. I think all of us retain from the days of our youth certain enduring images. For me those images are of the endless fields of Indiana, stretching to the horizon, punctuated only by an isolated silo or a barn. And as I grew older, those endless fields came to represent for me the limitless possibilities of our great land. Growing up, I never imaged that I would be here in this historic room nominated to be the Chief Justice. But now that I am here I recall those endless fields with their promise of infinite possibilities, and that memory inspires in me a very profound commitment. If I am confirmed, I will be vigilant to protect the independence and integrity of the Supreme Court, and I will work to ensure that it upholds the rule of law, and safeguards those liberties that make this land one of endless possibilities for all Americans."

Show host Gwen Ifill asks John Harwood of the Wall Street Journal what the most important thing Judge John Roberts accomplished in the statement he gave. Harwood believes it was important that the statement was very accessible to the American people by keeping it simple, with little ego, and great appreciation for the position he has as a nominee. Both Harwood and Joan Biskupic of USA Today agree the ball and strikes/umpiring metaphor was somewhat misleading given that judges are asked to interpret unclear laws and a Constitution that is not clear-cut. Ifill thanks her guests and discusses tomorrow’s continuing coverage of the Roberts Hearings before signing off.

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