Return to Transcripts main page

INSIGHT

Nomination of John Roberts

Aired July 20, 2005 - 23:00:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)
JONATHAN MANN, CNN ANCHOR (voice-over): A very judicious choice. U.S. President Bush chooses on uncontroversial conservative for the Supreme Court.

GEORGE BUSH, U.S. PRESIDENT: I have found such a person in Judge John Roberts.

MANN: Easing the prospects for confirmation.

The nominee is brilliant. The president is looking smart.

(END VIDEO CLIP)

Hello and welcome.

John Roberts is a rare figure in American public life. He is both exceptional and unremarkable at the same time. Roberts breezed through Harvard a full year faster than his classmates, he excelled as a lawyer and he impressed the Washington elite with both his performance and his likable personality. But he's only been an appeals court judge for a short time and has a relatively thin record for his opponents to try to attack.

Even the Senate democratic leader, Harry Reid, praises Roberts's qualifications. Partisans of the U.S. left and right have been spoiling for a fight long before they knew who the nominee would be, but with a daunting situation in Iraq and a troubled domestic agenda, President Bush chose the path of least resistance.

On our program today, a disarming decision for the U.S. Supreme Court.

We begin with CNN White House correspondent Dana Bash.

(BEGIN VIDEOTAPE)

DANA BASH, CNN WHITE HOUSE CORRESPONDENT (voice-over): He drove himself, looking like your average commuter, never mind there is nothing average about having coffee with the president when he's just picked you for the Supreme Court.

All these images, the Rose Garden to the Capitol, part of a long- planned, meticulously choreographed rollout for any nominee. But why did the president choose him?

First, to conservatives, he's a known quantity. Worked for the Reagan legal team, argued cases for the first Bush White House under Ken Starr and, unlike David Souter, an unknown from New Hampshire whom conservatives call his father's mistake, John Roberts is Washington establishment.

But like Souter, his paper trail of writings and rulings is thin, harder for Democrats to use against him. Another reason tapping Roberts disarms Democrats preparing so long for battle: many know him and respect him.

Jack Keeney worked with Roberts his entire 13 years at Hogan and Hartson Law Firm, always asked Roberts for help on appeals cases, many on civil rights.

JACK KEENEY, ATTORNEY: He's a conservative politically, but he is an incredible legal intellect.

BASH: This is the president and this is a candidate Keeney supported.

KEENEY: I'm telling my friends in the Democratic Party and my friends in the interest groups who are opposing him that they have created a caricature and they're opposing a caricature rather than an actual person, when the actual person could be a very good justice.

BASH: But does Roberts meet the president's own standards? A strict constructionist, someone like Justices Clarence Thomas and Antonin Scalia?

BUSH: He will strictly apply the Constitution and laws. He will not legislate from the bench.

BASH: The president hopes so, but the limited number of rulings and writings leave that question murky. What aides say Mr. Bush is sure of, he picked someone he's personally comfortable with, something his father's friends encouraged.

(on camera): There is some irony in someone who tries to call himself an outsider turn into a consummate Washington insider, but Bush aides say personal comfort was key here, and in many ways Roberts is like the president, a conservative, affable Ivy Leaguer with a down-home affect.

Dana Bash, CNN, the White House.

(END VIDEOTAPE)

MANN: From the White House early in the day Roberts traveled to Congress where he received a warm reception from Republican senators and from some Democrats as well. Lately the president's judicial nominees have setoff fierce political battles on Capitol Hill. The acrimony was so bad that 14 senators got together in May is something that was quickly dubbed the Gang of 14. Seven Democrats and seven Republicans agreeing not to block judicial nominations unless there were extraordinary circumstances.

Roberts, by contrast, it seems is quite ordinary.

Here's CNN's Congressional correspondent Ed Henry.

(BEGIN VIDEOTAPE)

ED HENRY, CNN CONGRESSIONAL CORRESPONDENT (voice-over): Mr. Roberts came to Capitol Hill and was welcomed with open arms by beaming Republican leaders.

SEN. BILL FRIST (R-TN): He is the best of the best legal minds in America.

HENRY: More importantly, two key swing senators who helped divert a nuclear showdown over lower court judges flatly declared Roberts should not be filibustered.

SEN. JOHN MCCAIN (R-AR): I am a card-carrying member of the Gang of 14, and one of the criteria of the Gang of 14 is that we would not filibuster a nominee to a court or the Supreme Court unless it was, quote, "extraordinary circumstances." I think that Judge Roberts deserves an up or down vote and I hope that the other members of that group would also agree with me.

So I think this is a good day for America.

SEN. JOHN WARNER (R-VA): But in the end, I repeat, I do not think there will be any body of fact that will give rise to invoking the extraordinary circumstances clause. This man has the right stuff and will do the right thing for America.

HENRY: More good news for Roberts from the Democratic leader of the Gang, Ben Nelson, who doesn't see a filibuster coming either.

SEN. BEN NELSON (D-NE): Well, I'm certainly not thinking about it right now and I'm not hearing anybody. Sometimes there is a hallway whisper. None of that to date -- it's still new -- but I'm not hearing it.

HENRY: Democratic leaders vow they won't be a rubberstamp.

SEN. PATRICK LEAHY (D-VT): Presidents come and go, senators come and go. Supreme Court justices tend to be there a lot longer than all of us. I want to make sure we do our job the right way.

HENRY: But far from demonizing Roberts, top Democrats are heaping praise on him.

UNIDENTIFIED MALE: There is no question about this man's legal skill. None at all. Nor has there been a serious question of any kind raised about his integrity, his honesty.

HENRY (on camera): Top Democrats admit privately that barring some sort of political cataclysm, John Roberts will be confirmed easily.

Ed Henry, CNN, Capitol Hill.

(END VIDEOTAPE)

MANN: Roberts has been a federal appeals court judge for just two years, so he's not written many opinions. That's where the confirmation hearings come in. U.S. senators will get to question the nominee about his interpretation of the Constitution and his views on sensitive issues, such as abortion.

CNN's Bruce Morton reports on what we do know about Roberts's legal record.

(BEGIN VIDEOTAPE)

BRUCE MORTON, CNN CORRESPONDENT (voice-over): Where does he stand on the issues? Let's start with abortion.

As deputy solicitor general, he coauthored a brief which said, quote, "We continue to believe that Roe," the decision legalizing abortion, "was wrongly decided and should be overruled. The Court's conclusion that there is a fundamental right to an abortion finds no support in the text, structure or history of the Constitution," unquote.

But at his confirmation hearing at the court of appeals in 2003 he said he'd been arguing the government's point of view, adding, quote, "Roe v. Wade is the settled law of the land. There is nothing in my personal views that would prevent me from fully and faithfully applying that precedent," unquote.

(on camera): In a case involving the Arroyo toad, he wrote that the, quote, "hapless toad, for reasons of his own, lives its entire life in California," unquote, and therefore could not be protected by the interstate commerce clause of the Constitution.

(voice-over): Then there was the 12-year-old girl arrested, searched and handcuffed by police in the Washington, D.C. subway system for eating one french fry. Quote, "The district court described the policies that led to her arrest as foolish," unquote, he wrote, "and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question, however, is not whether these policies were a bad idea but whether they violated the Fourth and Fifth Amendments to the Constitution. We conclude that they did not," unquote.

He was part of the three-judge panel that ruled unanimously that military tribunals set up to try terrorism suspects were legal and that the Geneva Convention did not apply to people the government labels enemy combatants.

His philosophy? He said this during his confirmation hearing for the court of appeals.

JOHN ROBERTS, SUPREME COURT NOMINEE: There is no role for advocacy with respect to personal beliefs or views on the part of a judge. The judge is bound to follow the Supreme Court precedent whether he agrees with it or disagrees with it and bound to apply the rule of law in cases where there's applicable Supreme Court precedent or not. Personal views, personal ideology, those have no role to play whatever.

MORTON: Gay rights? No paper trail that we know of. But this is just the start. There will be many questions.

Bruce Morton, CNN, Washington.

(END VIDEOTAPE)

MANN: We take a break now. When we come back, the politics of the process. A civil war or something less?

Stay with us.

(BEGIN VIDEO CLIP)

SENATOR EDWARD KENNEDY (D-CT): I commend the president for making the nomination. Now this process is going to move ahead in the Judiciary Committee. In a few weeks we'll have the opportunity to question. Those are the -- it's really a blank slate there. He's a person of distinguished achievement and accomplishment and academic achievement, but his slate is pretty blank on this and the American people want to know whether they are going to have someone that is going to protect their rights and liberties.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

(BEGIN VIDEO CLIP)

MANN (voice-over): Dueling demonstrations have already taken to the streets of Washington, though they looked a little tepid. TV ads are slated to start running in the hours to come. But is the United States really headed toward a big fight over John Roberts?

(END VIDEO CLIP)

Welcome back.

Before any name was announced, some Washington insiders predicted that the battle over the president's court nominee would be like an ugly national election, with lobbying campaigns, advertising and mass mailings running into $50 million, maybe even $100 million. But then the nominee turned out to be someone that a lot of Washington insiders seem to like.

Joining us now to talk about that is one of our own favorite Washington insiders, Amy Walter, political analyst with the "Cook Report."

Good to see you again.

What do you think this is going to be like? People were saying this was going to be a massive battle. Is anyone really going to spend $50 million fighting over this guy?

AMY WALTER, "COOK REPORT": Well, you're right. It wasn't going to be a battle. It was going to be an all-out war. And you did have groups that were formed and battle lines drawn and you had groups putting together budgets for ad campaigns.

But the bottom line still is for many activist groups, this is their bread and butter. This is how they keep their members motivated. This is how they raise money. So to a certain extent, the activists are still going to be involved.

The question is, as your report outlined, there is not that much for them to hang their hats on. Conservatives have already seen the most social conservative leaders in America coming out and saying we think this is a good pick. So clearly that side isn't interested in fighting the battle.

Even on the liberal side, there is some disappointment by the word that many of them have chosen, but it's not as if they're going out and saying this is somebody we are apoplectic about. And so keeping that enthusiasm level among their members as well as for members of Congress is going to be quite a challenge.

MANN: I'm hearing some static and if everyone else is hearing it too don't adjust your sets. I think that's our fault. We'll try to work on it.

So, to your mind is this just a good day for the Bush White House, some smart politics at work?

WALTER: Well, you know, every politician is always looking for that perfect sweet spot, you know, that place where you can find the perfect balance. And for Bush, I think he found a really good sweet spot in this pick.

Conservatives, many had worried about were not going to be happy with some of the people that were mentioned early on. Quite happy with this. Liberals again, not showing tremendous amount of anger. And, more importantly, the moderates, as we saw in your report earlier on, have not shown any inclination for breaking this Gang of 14 pact. I don't think that there will be a filibuster.

More importantly for the president, what we're seeing is here is a president who is looking at some of his lowest approval ratings of his presidency, who has been struggling both domestically and internationally, now may have something to bring him back up. He looks very presidential, he looks very dignified. This is certainly something that he needed and in the weeks ahead we'll see where it goes, but it certainly is going to help him in the short term.

MANN: That's an intriguing idea. So in addition to being smart politics, maybe an indication of weakness.

WALTER: That may be an indication of weakness, did you say?

MANN: Yes. That he couldn't afford a fight.

WALTER: Well, that's an interesting point. You know, the question is, is it worth the battle, and who would have taken the bigger blows.

Now, on the one hand, the president did not want to have to anger his conservative base. Remember, these are people who threatened out loud to say if you pick the wrong person, we're going to sit on our hands in the next election. We're the people that helped bring this president and this Republican Congress in and we can sit on our hands in the next election and make you pay a price.

At the same time, this is also a Congress that is very worried going into 2006. Obviously, the president doesn't have to worry about being reelected, but his party does. So if they came across looking too conservative, the nominee came across looking too conservative, there was a fear that you would get moderates turning out in the 2006 election and oust those candidates.

So he did have a very difficult little place to try to find and I think he got it in this case.

MANN: What I don't understand is why everyone says he's such a mainstream figure, and yet the conservatives say he's one of them. What about his resume suggests that he is endeared himself to the conservatives?

WALTER: Well, I think part of it is that he is a good friend of Republican Washington. Obviously, he's worked in the Reagan administration. He has defended the Reagan administration. This is also someone who during the 2000 presidential campaign was involved in the Florida recount issue. So there are a lot of folks close to the president who were involved in that 2000 campaign who do feel a real affinity toward him.

MANN: Let me jump in and just ask you one last quick question. He is a Catholic. His wife, according to the "Boston Globe," is involved with a group called Feminists For Life, it's an anti-abortion group. Fair to assume that he is against the law as it now stands in the United States as it now stands when it comes to access to abortion?

WALTER: I don't think we're ever going to know that. And I think that nominees now to the court have a very good script in front of them that they do not deter from. I don't think you're going to hear the answer to that or any of these other social questions during these hearings.

MANN: Amy Walter of the "Cook Report," thanks so much.

WALTER: Thanks, Jonathan.

MANN: We have to take another break. When we come back, how John Roberts interprets the Constitution. It is a mystery for many in the Senate.

Stay with us.

(BEGIN VIDEO CLIP)

SEN. SAM BROWNBACK (R-KA): I wish we had somebody in that setting, in that sense, that we knew more about their view of the Constitution and its meaning and the court's role in society. We don't have that.

We clearly have a brilliant jurist. This gentleman is brilliant. He's a great lawyer. He's argued a number of cases in front of the Supreme Court; Harvard Law School, Harvard undergraduate. A brilliant gentleman.

But what I hope we can find out during the hearing process is his view of the Constitution. Is it a living document that changes or is it a set document by its text.

(END VIDEO CLIP)

(COMMERCIAL BREAK)

MANN: The U.S. Constitution is on display at the National Archives in Washington, D.C. Thousands of visitors glance at its aging parchment every year. But there is a school of thought in the United States that believes that in legal terms the Constitution has been lost, or to use one writer's favorite phrase, exiled.

It says the Supreme Court is to blame.

Welcome back.

Roe v. Wade, the ruling that established the legal right to an abortion in the United States, is a case in point. It is based on a right to personal privacy that no visitor will ever see in the U.S. Constitution or the Bill of Rights. That right emerged from the court's ruling in Roe alone.

Liberals insist it is implicit in the Constitution. Conservatives insist the Constitution was hijacked by the court which rules for entirely its own reasons.

Joining us now to talk about how Americans read their Constitution is David Oblon, a legal commentator, practicing attorney and, we should mention, an active member of the Republican Party.

Thanks so much for being with us.

DAVID OBLON, CONSTITUTIONAL LAW ATTORNEY: Sure, glad to be here -- Jonathan.

MANN: In the course of this program we heard some people throw around some terms very quickly. They're familiar with this argument and the distinctions. We're not. Strict constructionist verses living constitution theorist. What essentially is the debate about how to read a text that's written in plain English?

OBLON: Well, these are the two competing judicial philosophies.

The strict constructionists believe that you should interpret the Constitution with the meaning that was prescribed to the words at the time that it was written. The other side believes that the Constitution is more of a dynamic document that needs to be reinterpreted as our human experience evolves and our opinions change.

Democrats tend generally to prescribe to the dynamic interpretation. Conservatives and Republicans tend to prescribe to strict construction.

MANN: In practical terms, how does that actually affect the lives people lead and the decisions that courts and the government make?

OBLON: Oh, it's a dramatic difference. When you are looking at a dynamic document, it allows the legislature to make changes on the fly. They can interpret a case based on new information and new experiences without the need to go through the political process and amend the Constitution.

Let me give you an example. In the personal property aspect, there was a recent court opinion that said that the government could by eminent domain take property from citizens for public use. Well, public use is an undefined term in the Constitution. Many people believe that the original intent of public use meant for something like a highway, a road or a railroad.

But in the Supreme Court's recent decision, they determined that public use could also be taking property from one person and giving it to another for the purposes of increasing the tax base or creating new jobs. And that is a certainly dynamic interpretation. It's not one that necessarily would be shared by many conservatives.

MANN: So many of the court's major rulings have been handed down five to four, basically an even split. Is the split that you're describing the split that's mirrored in those kinds of numbers?

OBLON: Well, the split that I'm describing actually was a five-four decision, but Justice O'Connor was with the minority and so when you're talking about replacing her with the new appointee, you wind up with no change for that familiar ruling.

But for something else like, let's say, Roe v. Wade, you made have a difference, because as you correctly pointed out, there is nothing in it Constitution that inherently says that there is a right to privacy. That is a judge-made rule that interprets the language of the Constitution on a dynamic basis. And what concerns many people is that whether you agree with Roe v. Wade or you disagree with Roe v. Wade, you don't want a group of unelected people that are appointed for life to make these dynamic changes, because if you like the ruling, that's fine, but if you don't like the ruling, what do you do about it? And there will come a time when the Supreme Court will make a ruling that you don't like. And that's what you have to be concerned about.

MANN: Let's take it to the nominee. Judge -- perhaps soon Justice -- John Roberts. Is he with those who interpret the Constitution relatively liberally or those who want to read it and limit what they read to what is written in black and white?

OBLON: Well, all indications show that he is a strict constructionist. That is the type of person that the president wanted to appoint. He's had private discussions with this man. And while this judge does not have a good track record of written opinions or speeches or other writings that we can look at, we can judge what type of person he is by the company he keeps.

This is a man who cut his teeth working for Justice Rehnquist. He's a man that then moved on to work for President Reagan as his lawyer. And then he worked for Ken Starr as the deputy solicitor general. These are all conservative people. He's a member of the Federalist Society. The Federalist Society is the competition for the American Bar Association, the conservative organization.

MANN: What are the chances he's going to surprise people, he's going to get on the bench and do things that no one expects?

OBLON: You know, Jonathan, that's an interesting point. He's a 50- year-old man and he's going to be on the bench for 35 years if confirmed. Think in your own experience how your own opinions have changed in the past 20 years or so on many important issues. Well, that's what could happen here. And this does happen.

Justice Souter is a case on point. He was appointed and everyone thought at that point that he was likely to be a conservative. Instantly he joined the liberal block. Justice Blackman is another example. He was appointed by Nixon and over time he's become a fixture of the liberal block, even so much as saying just recently that on death penalty cases he is always going to rule against the death penalty, and that was an evolved opinion that happens over people's lives.

MANN: Intriguing. The Supreme Court, still some surprises ahead.

David Oblon, thanks so much for this.

OBLON: You bet. Thank you, Jonathan.

MANN: That's INSIGHT for today. I'm Jonathan Mann. The news continues.

END

TO ORDER VIDEOTAPES AND TRANSCRIPTS OF CNN INTERNATIONAL PROGRAMMING, PLEASE CALL 800-CNN-NEWS OR USE THE SECURE ONLINE ORDER FROM LOCATED AT www.fdch.com