Reel

Program host Gwen Ifill with guests Linda Greenhouse of the New York Times and Jeanne Cummings of the Wall Street Journal. Composite footage (unclean) with title card: Senate Judiciary Committee members Edward Kennedy (D-MA) and Lindsey Graham (R-SC) asking questions, Judge John Roberts providing answers.

Show host Gwen Ifill talks about the subjects Judge John Roberts was questioned about and the manner in which he answered, or deftly avoided answering. Judiciary Committee Chairman U.S. Senator Arlen Specter (R-PA) holding up large board representing the Supreme Court decisions upholding Roe v. Wade. Ifill notes Judge Roberts answers boiled-down questions re: Roe v. Wade, determining present litigation according to precedent. John Roberts states, “I do think that it is a jolt to the legal system when you overrule a precedent. A precedent plays an important role in promoting stability and even-handedness. It is not enough, and the court has emphasized this on several occasions, it is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question, it just poses the question." Senator Specter responds, “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.' Do you mean settled for you, settled only for your capacity only as a circuit judge, or settled beyond that?” Judge Roberts responds, “Well, beyond that it's settled as a precedent of the court entitled to respect under principals of stare decisis and those principals 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."

U.S. Senator Herbert Kohl (D-WI) asks, “Do you agree with that decision and that there is a fundamental right to privacy as it relates to contraception? In your opinion, is that settled law?” Judge John Roberts responds, “I agree with the Griswold courts conclusion that marital privacy extends to contraception and availability of that." Senator Kohl says, “Well, I'm delighted to hear you say that because as you know 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 courts reasoning and decision on Roe, that a woman has a Constitutional protected right to choose." Judge Roberts adds, “Well, I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again. The other area, that is an area, to quote Justice Ginsberg from her hearings ‘live with business.' There are cases that arise there and so that is an area that I do not feel appropriate for me to comment on."

Show host Gwen Ifill asks Linda Greenhouse of the New York Times whether she thinks Judge John Roberts explicitly said he would not over turn Roe v. Wade. Greenhouse does not think he made that kind of statement, believes he followed the same ploy Justice David Souter used-- stare decisis, or the allowing precedent to dictate current legal thinking. Jeanne Cummings of the Wall Street Journal notes this makes conservatives feel uneasy, especially since the question came from Senator Specter and not a Democrat on the Judiciary Committee. This is not the way conservatives wanted to kick off the hearings. Republicans tried to do damage control as the hearing went out by stating, and Judge Roberts confirming, that legal precedents can and have been overturned. However, that may be too little, too late.

Show host Gwen Ifill asks Linda Greenhouse of the New York Times to give viewers a primer on what the Griswold case, the first in which an unenumerated right was applied to sex, which struck down a Connecticut law preventing married couples from using contraceptives. The Griswold case was the first foundational opinion in a series of cases leading to Roe v. Wade. Fast forward to Casey v. Planned Parenthood where Republicans believed a friendly court and previous favorable decision would lead to Roe being overturned, but were disappointed when the conservative justices sided with their liberal colleagues and ruled in manner reaffirming Roe v. Wade. Jeanne Cummings of the Wall Street Journal notes that conservative Republicans were not all-in with the Judge John Roberts nomination precisely because they did not know where he stood on abortion and it was only after aggressive lobbying by the White House that they accepted the nomination, and now they are nervous again after today’s hearing. Ifill turns back to the other highlights of the hearing where Justice Roberts short-circuited questioning by agreeing with the premise.

U.S. Senator Edward Kennedy (D-MA) says, “I'm deeply troubled by a narrow and cramped and perhaps even a mean-spirited view of the law that appears in some of your writings. 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 is fundamental constitutional right?" Judge John Roberts answers, “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 so I think it's one of, as you've said, the most precious rights we have as Americans.”

Show host Gwen Ifill asks Jeanne Cummings of the Wall Street Journal if Judge John Robert's answer to voting rights signals the end of that discussion. Cummings says no, it is only the beginning. Cummings reminds Ifill and viewers that these are rehashed arguments that began in the 1980s when Judge Roberts was part of the Reagan administration, writing memos on legal issues while Senator Edward Kennedy (D-MA) was writing laws countering the contents of those memos, particularly with voting rights. Ifill asks Linda Greenhouse of the New York Times about the details behind the “mean-spirited” view of the Voting Rights Act of 1965 written in memos by Judge Roberts back in the 1980s. Greenhouse explains that at the time, certain parts of the Voting Rights Act were expiring and the administration had to take a position. The administration chose to stick with the law as it stood. However, one particular part of the law had been modified: plaintiffs now had to show intent, not just the effect, of a law impinging on an individual's or group's right to vote. Senator Kennedy aimed to pass a bill that would lower the bar of proof needed, making a law illegal if the “effect” of it impinged on the right to vote. Cummings notes that Judge Roberts' current defense of that position is that he wrote these views down as a lawyer for the Reagan Administration, not as a personally-held stance. Ifill segues from this conversation to another highlight of the hearings when Judge Roberts' religion came into play and whether he believed in the absolute separation of church and state.

U.S. Senator Dianne Feinstein (D-CA) asks, “You can't answer my question, yes or no?” Judge John Roberts responds, “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."

Show host Gwen Ifill asks Linda Greenhouse of the New York Times why a nominee is questioned about their religious beliefs and what does it have to do with what actually comes before the court? Greenhouse thinks the question was very poorly framed and notes that the Court rarely deals with or endorses “absolutes. Jeanne Cummings of the Wall Street Journal says that Senator Diane Feinstein was quoting from a previous ruling, and Judge Roberts' explanation in his answers also mirrored the ruling given in the 10 Commandments case brought before the Supreme Court. As to his religious beliefs, Cummings says that has been an issue around his nomination for sometime and bringing it up was something to just get out of the way. Judge Roberts also showed he was very prepared for that line of questioning.

Show host Gwen Ifill turns the focus to Senator Dianne Feinstein, the only woman on the Judiciary Committee, which she is using to her advantage. Ifill asks what her goal was in the day's hearings. Linda Greenhouse of the New York Times found a disconnect between her opening statement and her turn at questioning Judge John Roberts. During her opening statement, she came off as tough and determined, but when her turn came to questioning she seemed hesitant and softer. Jeanne Cummings of the Wall Street Journal agrees, notes that Senator Feinstein is not a lawyer which may have led to some uncertainty. Ifill mentions she has had two months to prepare. Cummings agrees, states that her opening statement was strong and her questions were not bad, but she lacked good follow-up questions particularly when it came to jokes Judge John Roberts made that came off as sexist and offensive to women.

U.S. Senator Orrin Hatch (R-UT) asks, “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 positions and that none of them absolutely creates an absolute way of judging." U.S. Supreme Court Chief Justice nominee Judge John Roberts responds, “I've said I do not have an over-arching 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.”

U.S. Senator Lindsey Graham (R-SC) asks, “When the President introduced you to the United States, to the people of the United States, he said you are a strict constructionist. Do you know what he meant by that and why he chose to use those words?” U.S. Supreme Court Chief Justice nominee Judge John Roberts responds, “I hope what he meant by that is somebody who is going to be faithful to the text of the Constitution, to the intent to those that 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...” Senator Graham interjects, “Does that term make you feel uncomfortable?” Judge Roberts responds, “No."

Show host Gwen Ifill asks Linda Greenhouse of the New York Times what the meaning of the exchange between U.S. Senator Lindsey Graham and Judge John Roberts was about. Greenhouse believes it boils down to Judge Roberts declaring he is not Justice Scalia or Robert Bork, although his history suggests that he does have tendencies toward being a Constitutional originalist. Judge Roberts wants to be clear he takes it one case at a time. Ifill asks Jeanne Cummings of the Wall Street Journal who Roberts is speaking to when he makes that kind of statement. Cummings says Roberts is likely speaking to scholars and activists, but overall is trying to establish that he is his own man, not cloaked in the robes of past Justices. Ifill wonders if it is because labels are not in vogue or if Roberts just does not think labels benefit him at this point in his career. Cummings believes that Roberts simply does not like them and does not wish any to be attached to him. He views his path and views as a compilation of experiences and events. Greenhouse adds that Roberts has been a judge for only two years and his first impressions of being a judge, as he wrote in speech, were changed during his time on the bench. Therefore, another reason to resist labels is the knowledge that his views changed when he went from being a lawyer to judge, so it may happen again.

Show host Gwen Ifill asks Linda Greenhouse of the New York Times, knowing the other eight members of the bench, how Judge John Roberts fits into that dynamic. Greenhouse thinks the Supreme Court has been quite happy with and relieved by his nomination. They will welcome Judge Roberts warmly.

Show host Gwen Ifill introduces one more clip from the day's hearings in which the use of sports analogies were used when discussing judicial practices. U.S. Senator Joe Biden (D-DE), speaking to Judge John Roberts, says, “As you know in Major League Baseball, 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 eye sight 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 whether reasonable or unreasonable may be very different than another judges view of what is reasonable or unreasonable search and seizure.”

Show host Gwen Ifill, relieved that baseball season is soon over, asks if the umpiring analogy does not work. Linda Greenhouse of the New York Times agrees that it doesn't, that the Justices do a whole lot more than just call “balls and strikes." Jeanne Cummings of the Wall Street Journal agrees the analogy doesn't work, except for one point: No one goes to a game to watch the umpires. She agrees with Judge John Roberts' assessment that the Court has gotten too far out in the spotlight and it should aim for a lower profile. Ifill asks what are the biggest unanswered questions at the halfway point in the hearings. Greenhouse believes that enough is known about Judge Robert’s past, but more needs to be known about what he thinks and believes now, and what kind of Justice he would be 25 years in the future. Cummings wants to hear more about the legal questions surrounding the wars in Iraq and Afghanistan, along with the environment. Ifill thanks her guests, mentions continuing coverage of the hearings, signs off.

End Credits