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CNN Live Event/Special

Roberts Hearings Continue

Aired September 14, 2005 - 11:57   ET

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

WOLF BLITZER, CNN ANCHOR: Senator Joe Biden, Democrat of Delaware, who wants to be president of the United States, is speaking right now at the confirmation hearings.
ROBERTS: ...it is my view that all of the justices -- I think of a case like the Glucksberg case, in which the majority subscribed to the view that there is an appropriate mode of analysis to determine the content of the liberty clause; that it does include protection beyond physical restraint; and that that protection applies in a substantive manner.

Now, there are legal theorists; there are judges and jurists who do not agree with that, who do not agree that there is right of privacy protected under the due process clause, who do not agree that the liberty protected extends beyond freedom from physical restraint.

Their view is that it means you cannot be basically imprisoned or arrested without due process. And that means only that you get some type of procedural protection.

That is not my understanding of where the justices on the Supreme Court are and it's not my understanding.

I believe that the liberty protected by the due process clause is not limited to freedom from physical restraint; that it includes certain other protections, including the right to privacy, as you know, that the court has tried to map out in a series of cases that go back to Meyer v. Nebraska and Pearce and all that and in the various instances as the claims have arisen; and that it's protected not simply from procedural deprivation.

That is...

BIDEN: If I may interrupt, that's not the question I asked you. I thank you for that lesson and I understand what you're saying.

I'm asking you a specific question.

Do you side more within that context, with the views of Scalia and Thomas which say that consenting adults do not have, if they're both male or female, do not have the right to engage in sexual conduct; the state can determine that?

Let me put it another way. My family faced and I'm sure many people in this audience's families faced a difficult decision of deciding when to no longer continue the application of artificial apparatus to keep your father or mother or husband or wife or son or daughter alive.

It's of great moment to the American public now. And there is a view expressed by Justice Scalia that there is no right that is absolute -- or no fundamental right that exists for a family member -- assuming the person is not capable of making the decision themselves, to make that judgment. He says, and I'm speaking in layman's terms, he says the state legislature can make that decision.

I firmly believe, unless there's some evidence that the family's incompetent, the husband or the wife, with the advice of the doctor, should be able to make that decision.

What do you think?

ROBERTS: Well, Senator, that does get into an area that is coming before the court. There is a case pending on the docket right now that raises the question of whether or not state legislatures have a prerogative to lay down rules on certain end of life issues.

BIDEN: It's suicide, isn't it, Judge?

ROBERTS: Well, in that case it's the application of the federal controlled substantive law.

The issue of illness in those cases do come before the court. The Glucksberg case raised a similar question. The Cruzan case that you mentioned presented it in a very difficult context of an incompetent individual no longer able to make a decision and the question of how the state law should apply in that situation.

Those cases do come before the court.

BIDEN: Do you think the state -- well, just talk to me as a father. Don't talk to me -- just tell me, just philosophically, what do you think? Do you think that is -- not what the Constitution says, what do you feel?

Do you feel personally, if you are willing to share with us, that the decision of whether or not to remove a feeding tube after a family member is no longer capable of making the judgment -- they are comatose -- to prolong that life should be one that the legislators in Dover, Delaware, should make, or my mother should make?

ROBERTS: I'm not going to consider issues like that in the context as a father or a husband or anything else.

BIDEN: Well, you did...

ROBERTS: I think...

BIDEN: Sorry.

ROBERTS: I think obviously putting aside any of those considerations, these issues are the most difficult we face as people and they are profoundly affected by views of individuality and moral views and deeply personal views. Now, that's obviously true as a general matter. But at the same time, the position of a judge is not to incorporate his or her personal views in deciding issues of this sort. If you're interpreting a particular statute that governs in this area, your job as a judge is to interpret and apply that according to the rule of law.

If you are addressing claims of a fundamental right under the liberty protected by the due process clause, again, the view of a judge on a personal matter or a personal level is not the guide to the decision.

BIDEN: All right.

Well, Judge, let me ask you then, with your permission, about your constitutional view. Do you think the Constitution encompasses a fundamental right for my father to conclude that he does not want to continue -- he does not want to continue -- on a life support system?

ROBERTS: Well, Senator, I cannot answer that question in the abstract, because...

BIDEN: That's not abstract. That's real.

ROBERTS: Well, Senator, as a legal matter, it is abstract, because the question would be in any particular case: Is there a law that applies, that governs that decision? What does the law apply...

BIDEN: That's the question, Judge. Can any law -- can any law -- trump a fundamental right to die? Not to commit suicide, a right to decide, "I no longer want to be hooked up to this machine, the only thing that's keeping me alive. I no longer want to have this feeding tube in my stomach" -- a decision that I know I personally made, and many people out here have made.

And the idea that a state legislature could say to my mom -- your father wants the feeding tube removed, he's asked me, the doctors heard it -- and the state legislature's decided that, no, it can't be removed.

Are you telling me that's even in play?

ROBERTS: Well, Senator, what I'm telling you is, as you know, there are cases that come up in exactly that context so that it is in play and the (inaudible) is that there are cases involving disputes between people asserting their rights to terminate life, to remove feeding tubes either on their own behalf or on behalf of others.

There is legislation that states have passed in this area that governs that. And there are claims that are raised that the legislation is unconstitutional.

Those are issues that come before the court. And as a result, I will confront those issues, in light of the court's precedents, with an open mind. I will not take to the court whatever personal views I have on the issues. And I appreciate the sensitivity involved. They won't be based on my personal views. They will be based on my understanding of the law.

BIDEN: That's what I want to know about because without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the dice with you, Judge.

We are going to face decisions, you are, and the American public is going to face decisions about whether or not, as I said, a patent can be issued for the creation of human life. You are going to be faced with decisions about whether or not there is a right to refuse extraordinary medical -- heroic medical efforts that you don't want as an individual. And you are fully capable, mentally of making that decision.

And the idea that without a specific fact pattern before you, as someone keeps -- it keeps getting repeated here -- the law is about life. It's about facts, specific facts.

What I'm asking you, there's no fact situation before you about whether or not a person, fully mentally capable of making a decision, chooses to say, "I no longer want this feeding tube in my stomach; please remove it," and whether or not that is a fundamental constitutional right.

ROBERTS: Senator, that's asking me for an opinion in the abstract on a question that will come before the court. And when that question does come before the court, the litigants before me are entitled to have a justice deciding their case with an open mind based on the arguments presented, based on the precedents presented.

I've told you with respect how I would go about deciding that case. It begins with the recognition that the liberty protected by the due process clause, does extend to matters of privacy, that it's not limited to restraints on physical freedom, and that that protection extends in a substantive way and not simply procedurally.

I have also explained the sources that judges look to in determining the content of that privacy protected by the liberty clause. They're the ones that have been spelled out in the courts opinions, the nation's history, traditions and practices.

And I've explained how judges apply that history, tradition and practices in light of the limited role of the judge to interpret the law and not make the law, the limited role of the judge in light of the prerogative of the legislature.

BIDEN: Judge, I understand that. Justice Scalia says the same thing and draws a very fundamentally different conclusion than O'Connor...

See, you've told me nothing, Judge.

With all due respect, you've not -- look, it's kind of interesting, this Kabuki dance we have in these hearings here, as if the public doesn't have a right to know what you think about fundamental issues facing them. There's no more possibility that anyone one of us here would be elected to the United States Senate without expressing broadly and sometimes specifically to our public what it is we believe.

The idea that the founders sat there and said, "Look, here's what we're going to do: We're going to require the two elected branches to answer questions of the public with no presumption they should have the job as senator, president or congressman. But guess what? We're going to have a third co-equal branch of government that gets to be there for life; never, ever again to be able to be asked the question they don't want to answer. And you know what? He doesn't have to tell us anything. It's OK, as long as he is" -- as you are -- "a decent, bright, honorable man, that's all we need to know. That's all we need to know."

Look, let's -- I only have three minutes and 45 seconds left -- and by the way, I'd ask permission for the record to introduce the number of questions asked by Senator Hatch and others, very specific questions, as to Justice O'Connor with very specific answers on these very questions. I'd like to ask that they be submitted to the record.

SPECTER: Without objection, they will be made part of the record.

BIDEN: Let me conclude..

ROBERTS: Senator, could I...

BIDEN: I still have the floor -- and I'll yield to you, since you can speak after the clock's out. I can't, OK. I'm sure you understand that.

And I'm sure if I'm ever before the Supreme Court, you'll give me more time. You won't interrupt me.

(LAUGHTER)

Here's the point I want to make: I asked -- and I'm sure you're not going to answer it -- I asked Justice Ginsburg a question about Footnote 5 in the Michael H. case. And the whole issue there is, as you well know, whether or not you keep talking -- it sounds wonderful to the uneducated ear, the non-lawyer's ear, that I'm going to look at history and tradition.

You and I both know how you determine history and tradition determines outcomes. In that case, as you'll recall, there was a question of whether or not the natural father -- you could prove by a blood test and DNA that he was the natural father of a child he wanted to see that happened to be born to a woman that was living with her married husband. So the child was illegitimate.

So in determining whether or not there are any visitation rights, there's a famous footnote there. And I'm going to do this quickly at two minutes and seven seconds.

The court said -- Scalia said in footnote six, "Look, you go back and look at the specific historical precedent." Short-circuiting it, "Have bastards ever been protected in the law?" And Brennan (ph) said, "No, no, that's not what you go back; you go back and look at fatherhood. Was fatherhood ever something that's part of the traditions and part of the embraced notions of what we hold dear? Is that worthy of protection?"

Now, Scalia said, "No, no, no, no. I looked up the record: Bastards have never been protected in English common law. Therefore, there's nothing going on here."

And by the way, "You should never go back," he says, "and look at the general proposition has fatherhood achieved a status of consequence? No, it's have bastards achieved it?"

So, Judge, how do you -- I'm not asking you on any case. How do you -- do you look at the narrowest reading of whether or not such an asserted right has ever been protected? Or do you look at it more broadly? What is the methodology you use?

ROBERTS: I mean, I think you're quite right that, that is quite often the critical question in these cases -- the degree of generality at which you define what the tradition, the history and the practice you are looking at.

The example I think that I've always found easiest to grasp was Loving against Virginia. Do you look at the history of miscegenation statutes or do you look at the history of marriage?

BIDEN: Thirty-three seconds left: Do you agree with O'Connor then?

ROBERTS: Well, I get extra time you said...

BIDEN: I know. But I don't. I get to get it in now before the chairman...

SPECTER: Judge Roberts, when his red light goes on, you'll have as much time as you want.

ROBERTS: Thank you.

The point is that, again, the court has precedents on precisely that question, about how you should phrase the level of generality.

ROBERTS: And you look at...

BIDEN: But which precedent do you agree with? There are competing precedents.

ROBERTS: Well, you do not look at the level of generality that is the issue that's being challenged.

So, for example, in Loving v. Virginia, if the challenge is -- it seems to me, this is what the court's precedents say: If the challenge is to miscegenation statutes, that's not the level of generality, because you're going to answer -- it's completely certain. BIDEN: But that's specific, Judge. The generality was the right to marry. That's the generality.

ROBERTS: Well, that's what I'm saying. The dispute is, do you look at it at that level of specificity or broader?

And I'm saying you do not look at it at the narrowest level of generality, which is the statute that's being challenged because, obviously, that's completely circular. You're saying there is, obviously, that statute that's part of the history.

So you look at it at a broader level of generality.

Now, the only point I was going to make earlier, because I do think it's an important one -- you make the point that, "We stand for election and we wouldn't be elected if we didn't tell people what we stand for."

Judges don't stand for election. I'm not standing for election. And it is contrary to the role of judges in our society to say that, "This judge should go on the bench because these are his or her positions and those are the positions they're going to apply."

Judges go on the bench and they apply and decide cases according to the judicial process, not on the basis of promises made earlier to get elected or promises made earlier to get confirmed.

That's inconsistent with the independence and integrity of the Supreme Court.

BIDEN: No one's asking for a promise.

SPECTER: Thank you very much, Senator Biden.

BIDEN: Thank you.

Thank you, Judge.

ROBERTS: Thank you, Senator.

SPECTER: Senator Kyl?

SEN. JON KYL, (R) ARIZONA: Thank you, Mr. Chairman.

I think this last exchange is important because...

BLITZER: All right, let's digest what we just heard. Another fiery exchange between Senator Joe Biden, Democrat of Delaware, and John Roberts, who wants to be the Supreme Court, the chief justice of the United States.

Jeff Greenfield, it's as billed: Joe Biden is always, if you will, going to get in the face of this nominee.

JEFF GREENFIELD, CNN POLITICAL SR. ANALYST: I -- I watched him for 30 years from the time he was elected to the Senate. And to me, there is -- I don't mean a good and bad Biden but an up and down Biden.

Some of the questions that he is posing about what a judge can and can't tell us are right on point. But instead of just saying, "OK, what about the end of life issues? Where does that power lie?" He feels -- I guess it's 30 years in the Senate. He feels compelled to ask the same question five different times and then complain he's run out of time.

But he is, I think, at the core of one of the major arguments we're going to be facing, particularly as the Baby Boomers age. Who has that power? Is there a general role for the Congress or for state legislatures to say, "I'm sorry. You can't end your life even if you want to"?

And it does seem to me that there's a way to get at that question without asking the judge how he would rule in a specific case.

BLITZER: Candy, let me bring you in for a moment to talk a little bit about the politics of this. Joe Biden himself has suggested that he's probably going to run for president the next time around. How does all of that play into this exchange with the Supreme Court nominee?

CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: It plays less than it would have, say, three weeks ago before Katrina. I think the shelf life of this hearing is probably pretty minimal, particularly since it seems that he's going to, if not, sail, at least pretty easily. The skids seem to be greased. He seemed to be headed toward confirmation with the full Senate, indeed from this committee.

Had there been a tussle, I can see how it might play at some level into '08. There doesn't seem to be a tussle. It seems to be, as Joe Biden said, a kabuki theater. And I just don't see it playing into '08 so far, what we've seen so far.

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Candy, do Democrats think it's better to confirm him 90-10 and say, "Look, we're very reasonable. We don't oppose everyone"? Or do they think it's better to have him confirmed 65-35 and say, "Look, this is as conservative as you can go, President Bush. We're not going to have anyone else this -- more -- this conservative"?

CROWLEY: I actually think it depends on the Senator. I know that sounds crazy. But there's certain Democrats whose constituency is hardcore left. And those constituents need to be satisfied with a no vote.

The bulk of the Democrats I think will look at this and say, "We've got another one coming. So, if we -- you know, if we all vote no on this, it's going to -- we're going to look like" -- what do the Republicans say about the Democrats? "They're against everything. They say no to everything no matter what I do, the White House, no matter what the Republicans do in the Senate, they say no."

So it's an opportunity for most of the moderate to, you know, slightly left Democrats to go, "Yes, OK." Because they can live to fight again another day. They've got another guy coming up, or gal.

TOOBIN: Or a gal. In fact.

CROWLEY: One can only hope.

TOOBIN: We're replacing a gal.

GREENFIELD: Comes from one of the bluest states in the United States. I mean, the Republic of Manhattan is not going to want to see a Democrat say, "Oh, well, he's probably in the Rehnquist role, but that's OK with us."

CROWLEY: Right. Exactly.

GREENFIELD: That's not where the ardent left is on this issue.

BLITZER: You heard Biden say, and he was, his voice was up there, he said to the judge, he said, "We're going to roll the dice with you, because you're not answering the questions that I am posing." You heard him say that, Jeff.

GREENFIELD: We all heard him say that. And you know, at one level, he's making a very valid point. These are lifetime appointments. The Supreme Court over the last, how you measure it, century, has gathered to itself enormous power. It can tell presidents, in effect, to resign. You know, it can change the way state legislatures are shaped by saying reapportionment or whether malapportionment is no good. And what are we entitled to know? But there has been, I think, a general development.

For most -- with Robert Bork, as perhaps the greatest exception, perspective justices just don't tell you much that you can take from.

TOOBIN: And look at the contrast. I mean, you've gone to every diner in New Hampshire with these people who want to be president. And they've got to answer every question under the sun. Are you pro- choice? Are you pro-life? And they get to be there four, eight years if they're lucky.

John Roberts is going to be there for 30 years. He has opinions about Roe v. Wade. We know that. But we don't know what they are and we're not allowed to ask.

CROWLEY: Can I ask -- I'm one of those uneducated ears, I believe that Senator Biden referred to us, because we are not lawyers, but it seems to me that in some respects what Judge Roberts is saying is not unlike how journalists are.

Do I have an opinion on abortion? I do. Do I have an opinion on, you know, same-sex marriage? I do. But in terms of how the public judges my work, it is not useful at all. And it seems to me that, you know, for me to say, "OK, I feel this way and this way," because then your work is judged through that prism. So isn't it the same thing?

GREENFIELD: Justice Stevens, in fact, spoke directly to your point in a really remarkable speech earlier this summer, where he -- in public speech. Where he said, "You know, there were two decisions this year that I really thought came out the wrong way. But I had to rule that way."

One was the eminent domain case you've heard about. He said, "I just don't think you should go about taking private property just for some vague development notion. But the Constitution gave the local authorities power."

And on what was it, medical marijuana. He said the people of California absolutely, in his view, made the right choice. But the Constitution said the federal government has power.

So it is true. The one difference is that you and I, none of us here will ever at some point be called upon to rule, whatever we think about abortion or taxation. Nobody's ever going to ask us. If the four of us were Supreme Court justice, we'd need one more to make it the law of the land. Fortunately, we don't have that power.

TOOBIN: That's what we call a far-fetched hypothetical, yes.

CROWLEY: But when somebody comes before the Supreme Court, if I go to the Supreme Court on an abortion case, and I know that I'm looking at someone who doesn't think that there's a constitutional right to abortion, aren't I going, "I don't know want this guy to judge me. Because I know exactly how he feels and he can't do it fairly"? Boom.

GREENFIELD: Jeffrey will tell you what advocates do in that case.

TOOBIN: What if -- but what if the president ran for president saying, "I'm going to put pro-life justices on the court."

And a lot of Americans said, "You know what, I want a president who will do that." That's -- that's part of the power of a president.

CROWLEY: Forget the politics of it. I just don't -- judicially, I'm just thinking if I go to a court, and I know a judge is biased one way or the other I don't want him judging my case.

TOOBIN: But is that biased?

BLITZER: Unless he sympathizes in your favor, Candy.

CROWLEY: Exactly. Then I'll want him.

TOOBIN: He's developed -- the power of these subjects (ph).

BLITZER: All right, guys. We've got to take a quick break. But we're going to continue our coverage, the John Roberts' confirmation hearings before the Senate Judiciary Committee. We're going to go back there. Much more ahead in THE SITUATION ROOM.

We're also tracking Hurricane Ophelia. Right now it's bearing down on the North Carolina coast. We'll have a live update on the forecast. What's going on right now?

We'll also go live to New Orleans for an up-to-the moment look at the clean-up effort after Hurricane Katrina. We're in THE SITUATION ROOM. We'll be right back.

(COMMERCIAL BREAK)

BLITZER: We'll get back to the John Roberts confirmation hearing shortly. But there's other important news happening in this country and around the world. Let's bring in CNN's Kyra Phillips at the CNN Center for that -- Kyra.

KYRA PHILLIPS, CNN ANCHOR: All right, Wolf. Thank you so much.

We want to update you now on Hurricane Katrina. Hurricane warnings have now been extended northward to the Virginia state line. Ophelia hasn't made landfall yet, but the Category 1 storm continues to lash the North Carolina coast.

You're looking at some pictures that we just got in from Atlantic Beach right now. A wind gust of 84 mile an hour was reported just a short time ago at Carolina Beach. And that's led to an order for emergency crews to get off the streets.

And further north, officials on the outer banks on the Hatteras Island have a dire warning. They say that Ophelia could bring 11 hours of hurricane force winds by the time it arrives tomorrow.

Let's go ahead and check in with Chad Myers. He's in the weather center right now. Chad, this is what you predicted.

CHAD MYERS, CNN METEOROLOGIST: It is part of the problem, is the slow movement of this thing, Kyra. It's moving at seven miles per hour. It has 250 miles before it clears land. You can do the division there. It doesn't take a brain surgeon to get that 20 or 25 hours before it moves away. And it's still moving closer.

Look at this thing, though. It did a loop here east of Florida. Here's Florida and Georgia, South Carolina. And we'll get you up a little closer. As it got up toward North Carolina, it did another complete loop, made a bend toward the shore and then turned to the right again.

Now, little river inlet all the way up to almost Virginia Beach. That's where the hurricane warning is right now. Because the storm is still forecast to track very slowly on up right over Morehead City, and in fact right over where Rob Marciano is. Category 1 hurricane, but it did increase in intensity. In the past hour, up to 85 miles per hour now.

And we expected that. We talked about this an hour ago. The eye's getting smaller. That's more momentum closer to the middle. And so therefore, your wind speeds go up, even though it is interacting with land.

The numbers you see here, those are rainfall totals. Long Beach, already eight inches of rain for you from this storm in the past 12 hours. Now we're getting a break for Rob kind of in between rain showers and thunderstorms here. But this storm is going to be a lashing storm for these Outer Banks, or the bow (ph) banks, if you will.

There's Atlantic Beach right there. That area going to see significant battering from the waves. Not only today, but for tonight. And it doesn't clear Nags Head, it doesn't clear Harker's Island or Cape Hatteras until probably 8 a.m. tomorrow morning.

So it's just that one round after another after another. Every time a storm comes by, the winds have been picking up. The winds right here as the storm gets closer to Morehead City, could be well in excess of 85 miles per hour. Already seeing gusts that high along the beach -- Kyra.

PHILLIPS: Well, Chad, Rob Marciano, who's right there in Atlantic Beach, North Carolina, he was saying that the sand dunes around him could offer a lot of protection. You think that's still the case?

MYERS: That is absolutely the case. They're not going to see that overwash of the sand dunes like they saw on the Gulf Coast. Many of the Gulf Coast islands and even the Florida Keys are five to six feet tall. That's it. Jury very flat areas all across the Gulf Coast.

But as you get up the Atlantic coast, those dunes are much steeper. And I've been to Atlantic Beach, because I went there for Alex last year. A lot of those homes are 15 feet off the water.

But now that also lifts you into the air. The higher you go, the higher your home is built, the faster the winds are going. So if it's not one thing, it's another.

PHILLIPS: All right, Chad Myers, thank you so much. We'll continue to check in with you. You can see actually the live pictures right below Chad there on the screen.

Now the latest from the aftermath of Katrina. Some good news to report from New Orleans. Three suburbs there have been reopened following the restoration of electricity, sewage, and water.

For more on these new developments, here's Sean Callebs joining us live. Tell us where you are, Sean, and what you know.

SEAN CALLEBS, CNN CORRESPONDENT: Well, we are in the Seventh Ward. This area is not going to be open for some time. But you're right. Three areas have been opened.

Also, the mayor yesterday has a very ambitious plan. He'd like to see four significant areas of New Orleans opened as early as Monday. And that could bring about 150,000 people into the city. He's waiting on information from the EPA. He says he's had discussions but needs written information. Let me show you what's down here. This is one of the many overpasses here. And the EPA is getting a lot of information from areas like this. We know that levels, elevated levels found in a coolant as well as gasoline, and other fuel oils. So it's going to cause irritation to eyes. That has been found. Also, E. Coli in much of this water.

They're waiting on information from PCBs, of course, from transformers. That's highly carcinogenic. And that could be extremely dangerous, so very important information.

This is just some of the widespread devastation.

The good news is, about a few days ago, New Orleans was about 80 percent under water. Now it is about 50 percent to 40 percent under water. That's because where we are, pumping station No. 3 in Ward Seven has come on line. Several have come on line in the last day or so.

This facility got completely swamped during the hurricane. The water level, you can see, the debris line was up to here. The power is in the basement of this building. So that was a huge problem.

This is the way it work, Kyra. They get the water from the city. It is actually sucked in and goes into this canal. Then it goes into this treatment facility. It usually does just drainage water. But, because there's so much sewage in the water -- you can smell it -- sewage is going directly into the canal behind us. Then right into the Mississippi.

So even though the mayor wants to open a significant portion of this city, just a fraction of the clean-up has been done. This is going to be a huge undertaking -- Kyra.

PHILLIPS: Well, Sean, you bring up a really good point about all that debris in the waterways. Actually coming up the next hour, we're going to talk to a Navy captain aboard one of those mine-sweeping ships that they're working out there with a number of ships, trying to clear the clogs in the waterways so things can get flowing and all that debris can get out of there.

Let me ask you another question, though, about the suburbs that are being opened up. When we talk about that, how active do you think these could become? That's another issue we are going to address next hour, and that's talking about restaurant business. And some restaurants hoping to open up this week. Do you know anymore details about these areas? Where exactly they are, and if indeed, you know, it's possible you could go into a bar or a restaurant next week?

CALLEBS: Well, it's possible. I mean, you can go into a bar now somewhere in the French Quarter, I can promise you that. Water service is being restored to some areas. But right now, they tell us it's just basically coming right in out of the Mississippi, so it's untreated. Some of these areas are getting power back on.

We saw Miles the last couple of mornings. And really it is a tale of two cities. The Quarter is above sea level, so that area really didn't receive flooding. It's the areas that got flooding with this sediment, this nasty pollution. Just a widespread devastation that is going to be a real mess.

Quickly, about the debris. If you look closely, you can see a tree that is caught down in this canal. That is a huge problem because, as they bring this water in, they got the water down from 80 percent to about 50 percent pretty quickly. But now there's so much debris left, it keeps gets sucked in. And it blocks these facilities. They have to manually pull that out. They pulled a sofa and a telephone pull out of some. So it is -- nothing goes easily at this point.

PHILLIPS: Yes, understandably. And then, of course, out in Mississippi, one of the captains in the U.S. Navy was telling me they're using sonar to try and track that debris, Sean, and clear it out of the waterways so they can, you know, basically get import/export going on in the city.

Sean, we're looking at new pictures, actually, just -- well, we're sort of in a four -- we have four cameras going right now. You, me, and then live pictures in New Orleans. We're seeing some action via boat. And also, just the searching that's going on. And also, a lot of the clean-up going on. Now, where you are, is that actually, I mean, are there people at work today behind you?

CALLEBS: Well, there are some people that are working. If you look here, so much work has to be done to this pumping station to get the other -- there are three pumps that are supposed to be working. Only one is up and functioning. So what they're trying to do is get all the flood water out of this facility, work on the transformers down in the basement, get the power fully up and running. So there are a lot of employees working here.

And interestingly enough, you'll see that gentlemen on the far left with the t-shirt on his head, he works for a private security company from Colorado. They've been brought in to offer protection for the people working inside there. Of course, that probably done at the height of all the chaos right after Katrina. The situation has really stabilized. We heard the mayor talk about that yesterday.

And I want to point out one other thing. If you look up in the second floor of that concrete building, you'll see some jeans hanging off the edge. The workers at pump station number three never left. They were here before Katrina, they rode out the storm, even though it was completely flooded. Stayed up there. They had the military bring them water and food for a couple of days. So these guys never left.

I mean, you can fault the pump system in New Orleans all you want, but not because of the hard work of the people who were trying to do everything they could to make sure that the flood water, didn't do, unfortunately, what it did do this region.

PHILLIPS: Well, that's interesting, you brought up security. We haven't talked about that in a while. I was talking to a member of the 82nd Airborne about two days ago, saying they've actually been going out with New Orleans police on SWAT roles. Have you had an issue with security? Do you have to have security guards with you, Sean?

CALLEBS: Well, we have security. But I haven't -- I mean, I've had nothing unpleasant at all, in terms of security in this area. What we're finding is a ghost town. If we can just shoot down this street, I mean, you get a pretty good microcosm of what this area is like. There's nobody out here. We see the occasional dog run up and down the street. I saw one guy on a bicycle come through.

Other than that, it's, you know, the military folks who are coming through. You talked about the 82nd. They came through probably about an hour and a half ago, and they were taking EPA samples of the water, the soil and the air. And they said they've been driving around doing that constantly. And so this is just one area that they stopped at. But really, we've had no security problems whatsoever.

PHILLIPS: All right, Sean Callebs, there in the Seventh Ward. Thank you so much, Sean. We'll continue to check in with you.

Now we'll take it back to Wolf Blitzer there in Washington, D.C. More on the confirmation hearings, and other news out of Washington -- Wolf.

BLITZER: Thanks very much, Kyra. We're going to get back to you shortly, as well.

We are following the John Roberts' confirmation hearings. We're going to go back there. Take a quick break. Much more coverage on that, and all the day's other news, right after this.

(COMMERCIAL BREAK)

BLITZER: Welcome back. We're here in THE SITUATION ROOM. The Senate Judiciary Committee has recessed for lunch right now. The members going out. John Roberts, the nominee, going out with his friends, his wife, his advisers who have been there. This is day two of the confirmation process, very much like day one, except more so.

Also less time, Jeff Greenfield, for the various senators to ask questions. Twenty minutes today each, as opposed to 30 minutes yesterday.

GREENFIELD: That's right. And I'm still -- I think I would part with my journalistic objectivity and shower praise on any one of the senators who said, you know what? I really think you've answered about everything I had, so I'm going to yield back the balance of my time.

TOOBIN: I'm feeling Candy's pain in having to listen to this as your job all the time, to go to these hearings and listen to these. I mean, why can't they talk like normal people?

CROWLEY: Well, I don't know. They get into -- they really do. I mean, you've seen this on the campaign trail all the time. I mean, what was Bob Dole's problem, what was John Kerry's problem? It was they couldn't get out of Senate speak.

BLITZER: Candy, listen to this for a second. They're outside the hearing room right now. Senator Kennedy is speaking before the microphones. Let's listen in.

(JOINED IN PROGRESS)

SEN. EDWARD KENNEDY (D), MASSACHUSETTS: ... this nation had to deal with. And I would certainly want to find out whether he, as the chief justice, is going to follow in the Warren tradition.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Listening to some of the critique of Judge Roberts, I think that he has answered more questions than most. He didn't answer some of my questions, and I understood why he didn't. And my preference would have been to have heard more, but that is a judgment he has to make.

As you've heard me say on quite a number of occasions, the nominees answer about as many questions as they think they have to to be confirmed. I think it may well be, and it's too soon to say with certainty, that Judge Roberts has gone beyond.

For example, he was very candid about finding a right of privacy in the Constitution, which goes a substantial distance on one of the very tender issues in this whole matter, and that is a woman's right to choose.

SPECTER: And when he answered Senator Kennedy this morning about not seeing any reason to say that the Voting Rights Act was constitutionally suspect, I was surprised he went that far, because that is a matter which may come before him.

When he talked about affirmative action, and saying that he agreed with Justice O'Connor about the diversity that the military found, I thought, there again, that it went a considerable distance.

When you take a look at the memoranda which he wrote many years ago, he has been questioned on them very, very closely, and I think appropriately closely. And I think he has made a good analogy with respect to Justice Jackson, who had one point of view when he was attorney general and another point of view when he got to the Supreme Court of the United States.

And I don't quote Phyllis Schlafly often, but I think she may have been on target when she said that his comments about women, homemakers and lawyers that he made when he was 25 were the musings -- she didn't use the word "musing" -- were wisecracks of a young bachelor who didn't have much world experience.

And I think Senator Kennedy is right: The issue is what Judge Roberts thinks today.

And he can't answer questions on how he's going to decide cases. There have been quite a few put to him.

SPECTER: I did not ask him how he was going to decide Roe v. Wade. And I tried to get some hint as to how he stood on stare decisis and the relative values.

Senator Biden was asking him questions on right to die. That's a question which is highly likely to come before the court.

QUESTION: But you didn't get him to go very far on the court's deference to Congress; not as far as you would have liked him to go, is that correct?

SPECTER: No, I thought he promised to be polite.

(LAUGHTER)

I think he was fine. Strom used to say that the more power a person has the more polite he should be when he's talking to nominees.

I think he's fine on that. I don't think he's going to question our method of reasoning and I don't think he's going to ask us to do our homework. I don't think he's going to be a taskmaster.

He wouldn't go quite as far as I liked on that doctrine of...

UNIDENTIFIED MALE: Congruence and proportionality.

SPECTER: ... congruence and proportionality. It's so repugnant, I have a hard time saying it.

But he's answering the questions. And he's going to have to apply that. So I respect his views on that.

BLITZER: All right, we're going to break away from this news conference. They're meeting outside the hearing room, the senators. That was the chairman, Arlen Specter, answering reporter's questions. They are on a lunch break right now.

The ranking Democrat is Patrick Leahy, Democrat of Vermont. He's joining us now live from the Senate Hart Office Building.

You've had your two opportunities, Senator Leahy, to ask questions -- 30 minutes yesterday, 20 minutes today. Have you made up your mind how you're going to vote?

SEN. PATRICK LEAHY (D), VERMONT: No, I actually have more questions to ask.

It's been a little difficult, Wolf, because -- you remember, you covered the opening day of this in the Old Caucus Room, where senator after senator -- not Senator Specter, but senator after senator on the Republican side basically urged him not to answer any questions.

Boy, he must have been listening because it's been very, very difficult to get answers to questions. And I think if he'd been as forthcoming as some, we'd probably be done by now.

Now, having said that, there are some areas where he's answered. I was pleased by his answer this morning on the rules to grant cert on death penalty cases. In fact, I found that unexpected. I am concerned -- and I may want to go again into the questions on under War Powers, as to whether a president can be above the law during a time of war. He got into that a little bit but did not get specific enough.

So a lot of us have areas of specificity that we'll go back on. And then we'll have to make up our mind.

And, ultimately, the nominee -- people either vote for him or against him based on what he says or doesn't say.

LEAHY: So ultimately he has to decide whether he has said what he needs to to be confirmed.

BLITZER: Senator, Jeff Toobin, our senior legal analyst, is here in "The Situation Room" with us. He has a question for you.

JEFF TOOBIN, CNN SENIOR LEGAL ANALYST: Senator, do you view the process of confirming the replacement for a conservative chief justice as a different exercise than the confirmation of a replacement of the moderate swing vote? Will you and your fellow senators apply, do you think, a different standard to the next appointment?

LEAHY: I think that's a very good question. And someone suggested that's what we should do.

I may be a lot different than some of my Democratic colleagues. I look at each justice as the justice, and I make up my mind based on that.

Now, with a number of senators, of course, he will have less of a hurdle replacing a very conservative chief justice, Chief Justice Rehnquist. And by the same token, if the president were to nominate somebody totally to the right of Sandra Day O'Connor -- who, let us recall, was and is a conservative Republican from Arizona -- then with many people that would be a greater fight.

But I look at each one as they come along. I have to make up my mind based on that.

JEFF GREENFIELD, CNN ANALYST: It's Jeff Greenfield, Senator.

Along that line, what about the argument that says this: President Bush campaigned specifically saying that the justices he most admired were Thomas and Scalia. He is now won a second term, this one unambiguously. Doesn't that at least presume that he's right to appoint a justice he wants, even if it's in the Scalia-Thomas mold, because he won the election?

LEAHY: Well, of course, have nominated either Scalia or Thomas for chief justice if he really felt that way.

He mentioned that to me one day. And I said, "Yes, and you also made another campaign promise, which I still look at. You said you wanted to be a uniter, not a divider. Certainly if you send up a Scalia or a Thomas clone for the next Supreme Court nomination, that would be a divider; that wouldn't be a uniter."

I urged him to go to his original campaign promise of being a uniter and not a divider. The time to do that may very, very well be with the Supreme Court.

BLITZER: Candy Crowley is here as well, Senator.

She's got a question for you.

CANDY CROWLEY, CNN CORRESPONDENT: Senator, you know, I have to talk politics here just for a second.

LEAHY: No, Candy, not you. I can't believe it.

CROWLEY: To what extent do you think this vote sends any signal about the next nomination that the president makes?

And by that, I mean, do you think, as we've been discussing here, that there will be any attempt by senators on the Democratic side to use their vote to say, "Don't get any more conservative than this?" or, "This has gone too far"?

LEAHY: Well, you know, I haven't polled the members of the committee because many of them, very honestly, have told me privately the same thing I've said publicly: They have not made up their mind.

I think that I will discuss over this weekend -- if we complete the hearings -- I will talk with each member of the committee on the Democratic side about how they feel.

I do know, however, that many people in the Senate and outside the Senate think that it would be an extremely divisive thing to send somebody who would be a very, very polarizing figure on the Supreme Court to fill the Sandra Day O'Connor seat.

Now, the president has not consulted with anybody in the Senate. He knows the Constitution requires advice and consent, not nominate and rubber stamp. And I would hope that he would do that.

I do know that the White House is being very careful not to float a name until this hearing is over.

BLITZER: Senator, thanks very much for joining us. We'll continue to watch these hearings. These are historic hearings.

LEAHY: Thank you for carrying them. I know a lot of people in Vermont have told me they've watched it on your network. And I appreciate you doing that.

BLITZER: Well, a lot of people are watching, not only in Vermont but across the country and around the world.

LEAHY: For your ratings, I hope so.

(LAUGHTER)

BLITZER: Yes, thanks very much, Senator Leahy for joining us.

He's going to get back into that session. We are going to get back to our coverage. We'll take a quick break first.

We're also watching, in addition to these hearings, Hurricane Ophelia now threatening North Carolina, perhaps some other states, as well as other stories including terrorism in Baghdad.

A dozen bombings go off today, a dozen. More than 150 people killed in Baghdad alone.

We'll be right back.

(COMMERCIAL BREAK)

BLITZER: Welcome back. We are here in THE SITUATION ROOM. We've been covering the John Roberts confirmation hearings. The Senate Judiciary Committee is now in recess for lunch. Just before they broke for lunch, Senator Joe Biden of Delaware made a statement at the very end. He received permission to do so even though he has 20 minutes was up from the chairman, Arlen Specter. Listen to this exchange.

(BEGIN VIDEOTAPE)

UNIDENTIFIED MALE: Point of personal privilege as we say in this body.

UNIDENTIFIED MALE: On my time, since I had five minutes. And I referred to Senator Biden, please. Take my time.

SENATOR JOSEPH BIDEN (D), DELAWARE: Thank you. I've been quoted many times about what I said to Justice Ginsburg. With the permission of the chairman -- it'll just take a second -- I'd like to read my whole quote, if I may and then supply it all for record.

UNIDENTIFIED MALE: Senator Biden, you may do that. You even have more time. Senator Kyl ...

BIDEN: No, I don't want to use that (ph) time. To me just say, here's what else I said. I said "now, I hope as I said to you very briefly, that the way in which you outlined the circumstances under which you would reply and not reply, that you will not make a blanket refusal to comment on things because obviously everything we could ask you is bound to come before the court.

"There is not a controversial issue in this country that does not have the prospect of coming before the court. If" -- continuing -- "if a nominee, although it is their right, does not answer questions that don't go to the way they would decide, but how they would decide, I will vote against that nominee regardless of who it is." This is continuing to quote. "And you can thank Justice Scalia for that."

At the close of the testimony, I said, "I would also point out that my concerns about you not answering questions have been met. You've answered my questions the second day and the third day. At least from my perspective, you've been forthcoming as any recent witness has. I submit the entire statement for the record along with the answers to her questions from Senator Hatch, you, and others."

UNIDENTIFIED MALE: Without objection, they will be made a part of the record.

BIDEN: I thank chairman for his courtesy and I think the witness for listening.

UNIDENTIFIED MALE: It is now 12:30 and the vote ...

(END VIDEOTAPE)

BLITZER: All right, that was the remark clarification from Senator Joe Biden referring to a statement he made way back, ten, 11 years or 12 years ago, I think, almost when Ruth Bader Ginsburg was confirmed, the nominee by then President Bill Clinton. Jeff Toobin, it's an important element what a nominee should say and shouldn't say and the advice that nominee gets from a senator.

TOOBIN: And I think Arlen Specter really has it right, that is really a political judgment much more than a legal judgment. These nominees answer as much as it takes to get confirmed. There is no absolute standard. There is no flat out rule.

Justice Scalia, when he was nominated in 1986, went to the absolute extreme and said he wouldn't even state his opinion on Marbury Vs. Madison from 1803, you know, one of the most famous and uncontroversial cases in Supreme Court history.

Robert Bork sort of paid the price in 1987 because he answered in considerable detail. John Roberts like most recent nominees is somewhere in the middle in terms of how forthcoming he's been. But, you know, he doesn't -- he's not giving the Democrats everything they want.

BLITZER: How's it playing so far, Candy, based on your instincts, and based on your reporting, what you've been hearing from people on the hill?

CROWLEY: Well, I mean, he is -- I mean, we've sat here and I think everybody who has, you know, tuned in -- they certainly don't watch it to the great lengths that we do -- has said this is a smart guy. This is -- he's done very well. He's handled himself well. He's been polite.

He's been -- there's nothing not to like about this guy. And I started to say earlier that this would have been at least a triple for George Bush had Katrina not come and wiped clean the political landscape for him. That's the arena he has to play in politically now. I think this becomes a blip.

BLITZER: And you know, Jeff Greenfield, many are already pointing out that this could simply be an appetizer, the main course coming, let's say in a month from now when the president goes forward and nominates someone to replace Sandra Day O'Connor. GREENFIELD: I think when the president took Roberts from the associate justice slot that Sandra Day O'Connor is vacating, and slotted him into the chief justice spot, that's exactly right. You can get more conservative than Justice Rehnquist was, in a constitutional way, but basically, he was down the line conservative.

And there is no change in the court balance that this portends. Depending on who the president puts up to replace Sandra Day O'Connor, it could portend a major shift in the whole balance of the court, and while Senator Leahy told us no, I judge every nominee on his own merits, if it's a committed conservative with a reputation and a paper trail, you are going to have a much more contentious hearing.

BLITZER: And if the president does nominate someone, let's say October 1st, it still take twos or three months for the committee to get ready for confirmation hearings.

TOOBIN: And the Supreme Court, it's worth remembering, often operates with eight people. It is not some sort of crisis for the Supreme Court. There are sometimes a justice is sick. They are recused. So there's no terrible urgency.

CROWLEY: But she's going to stay.

GREENFIELD: Sandra Day O'Connor has said she's going to stay.

TOOBIN: Well, it's not entirely clear. What it means to stay, is if you hear arguments, you are not allowed to vote unless you are there when the decision comes out. And it takes a couple of months.

BLITZER: It gets more complicated as everything involving lawyers and courts always does.

TOOBIN: And thank goodness for that.

BLITZER: All right, guys, stand by. We are going to have a lot more of our coverage. The Roberts hearings -- they are in a lunch break right now. We'll be back here in THE SITUATION ROOM. in two hours, 3:00 p.m. Eastern. Much more coverage though on all of the day's developments. "LIVE FROM" with Kyra Phillips picks up our coverage right after a quick break.

(COMMERCIAL BREAK)

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