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CNN Live Event/Special

Day Three of Questioning for Roberts; Draining the Water From New Orleans

Aired September 15, 2005 - 10:00   ET

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

WOLF BLITZER, CNN ANCHOR: Continuing this the third day of questioning for the Supreme Court chief justice nominee.
Let's bring in a Republican perspective since only Democratic members of the Judiciary Committee are asking questions on this during this third round. Senator John Cornyn, Republican of Texas, is joining us from the Senate Hart Office Building.

Senator, thanks very much.

Yesterday, Senator Schumer accused John Roberts of treating this hearing room, in his words, "as a cone of silence" for refusing to answer questions on specific cases that have already been resolved by the Supreme Court. What do you say about that?

SEN. JOHN CORNYN, (R) TEXAS: Well, I let others make their own judgment. But I from my for my part, I think the nominee has been exceeding forthcoming. Obviously, there's a line that he cannot cross when it comes to prejudging cases and issues that are likely to be coming back to the Supreme Court. And that's really a matter of the judicial ethics that apply to both the nominee and a perspective candidate for elevation to chief justice.

But, you know, the other part of that is that this nominee has talked about his approach to deciding cases. I think this is really, in many ways, been a wonderful, perhaps refresher course on the role of the judiciary and who makes choices in government. Is it the people? Is it local governments? State governments? Federal government? Is it the judiciary or elected representatives of the people? So I think it's been very helpful. Very illuminating.

BLITZER: Jeff Greenfield and Jeff Toobin are here with us.

Jeff Greenfield has a question for you.

JEFF GREENFIELD, CNN CORRESPONDENT: Senator, this whole issue of what you folks should and should be should not be asking, which I think sometimes depends on whether the nominee comes from one party or the another, the uniform seems to switch sides.

But back in 1959, a young lawyer named William Rehnquist, of whom I'm pretty sure you're familiar, said that because the court has gotten so powerful, perhaps wrongly so, that it was as important to know the policy views of perspective justices as it was to know their views of a prospective president or senator. On that standard, whether Ginsburg or Roberts, don't you folks deserve to know at least something more than they like precedent or that they think that being dead is not the same thing as being alive?

CORNYN: Well, Jeff, I think, clearly, as human beings, we all have our opinions and our preferences, policy preferences and otherwise. But I think what I respect about this nominee is that he says that those preferences won't dictate his decisions from the bench. He'll be guided by the law, by the arguments of the lawyers and the facts of the case and he really shouldn't prejudge issues.

I think if there's any consistent thread between what kinds of questions are answered and which ones are not answered, it is, how old is the decision and how likely is it or unlikely is it to come back before the court. Certainly I think you're going to see people much more willing to talk about Brown vs. Board of Education, which I would say is under zero risk of being overruled or coming back to the court. Whereas Roe vs. Wade is an issue that's pending on the court's docket right now.

BLITZER: Jeff Toobin has a follow-up. Go ahead, Jeff.

JEFFREY TOOBIN, CNN CORRESPONDENT: Senator, a lot of the questioning seems to be aimed at identifying whether Judge Roberts is a conservative in the mold of Clarence Thomas and Anthony Scalia, or more of a moderate conservative. What do you think?

CORNYN: Well, I like the fact he says that he's not cast in anyone's mold. He's his own man. And I actually believe that.

As I think, obviously, any you know, Jeff, as any lawyer can appreciate, this fellow is perhaps got the best resume and the best experience of any nominee to the supreme court. I like the fact that he's actually represented real, live human beings, so he knows how the court's decisions impact them and why it's important to have coherent decision which are understandable, unlike, for example, the 10 Commandments decision where there were 10 opinions for nine justices. And Chief Justice Rehnquist, as you know, quipped, well that's more opinions than we have justices.

GREENFIELD: Let me just follow up, if I may, Senator, on this question of what you can ask. Putting aside, obviously, how would rule in a future case. Wouldn't it be useful to ask Judge Roberts, can you give us an example of judicial activism since Lochner? Everybody says they're against it but what does it mean? Not, what you do about it, just give us an example. Or can the government prohibit conduct simply based on moral disapproval? It seems to me you'd learn something about this fellow without having him tell you how he'd rule in a case?

CORNYN: Well, I think he has talked about that. Maybe not as directly as your question suggests. For example, went he says that decisions, which are based on a constitutional provision, are ones that are only in the purview of the Supreme Court to decide ultimately. Whereas, if they knocked down a statute passed by Congress, obviously Congress can come back and reenact it and fix the mistake or the error that the court found. And I think, clearly, we recognize that there is a role for stare decisis or following precedent as we've heard ad nauseam here. But the fact is that, you know, we don't live under Plessy vs. Ferguson, the separate but equal doctrine, because the court could revisit that decision in Brown vs. Board of Education and fix that mistake.

BLITZER: John Cornyn speaks not only as a current U.S. senator, a Republican of Texas, but also as a former state a former judge on the state court in San Antonio and a former Texas attorney general.

Senator Cornyn, we'll let you get back into that hearing room. Appreciate you spending a few moments with us.

CORNYN: Thank you very much.

BLITZER: We're going to go back to the hearing room right now. Russ Feingold, Democrat of Wisconsin, asking questions of John Roberts.

JUDGE JOHN ROBERTS, CHIEF JUSTICE NOMINEE: Out around the country and particularly visit the law schools. That's probably not the same sort of thing you're talking about.

SEN. RUSS FEINGOLD, (D) WISCONSIN: Fair enough. And I think you would agree that there's nothing wrong with judges or senators golfing. That's not the question.

ROBERTS: May not be good for the game of golf but . . .

FEINGOLD: In 2000, Chief Justice Rehnquist wrote a letter supporting repeal of a provision of the Ethics Reform Act of 1989 that bans honoraria for judges. Do you believe that the law should be changed to permit judges to take honoraria for speeches or appearances?

ROBERTS: There again, Senator, that's not an issue I've looked at. I know the law prohibits that. I know that there was a case about that and the Supreme Court decided that the to some extent that prohibition was unconstitutional as applied to lower level officials but constitutional as applied to others. It's not a question that I've addressed.

FEINGOLD: Just to return for the record for a moment. The item that the judge referred to in terms of judicial conference policy is actually the policy that I was concerned about that I thought was a step backward and I just wanted that reflected in the record.

I'm also, Mr. Chairman, wanting to put a item in the record. I'm not going to ask more questions about Judge Roberts' memo recommending against the president stating that HIV could not be transmitted through casual contact. But I do want to make sure the record is complete. I'd like to submit for the record Judge Roberts' memo on that issue from September 1985, Centers for Disease Control documents from 1982 and 1985 and a number of news stories from August and September of 1985 reporting the CDC's conclusion that HIV could not be spread through casual contact. I would note that there are several articles in this collection from "The Washington Post" on September 4, 1985, the date of the article that Senator Coburn submitted yesterday that I think makes this clear as well.

Chairman, if those items could be entered into the record? Mr. Chairman.

SEN. ARLEN SPECTER (R), PENNSYLVANIA: Yes, without objection, so ordered.

FEINGOLD: Turn again to the death penalty. When you worked in the Reagan administration, you expressed strong opposition to federal courts reviewing criminal convictions and state courts via writs of habeas corpus. As you know, prisoner whose believe they were wrongly or unfairly convicted in state court can seek to have the federal courts hear their claims via writ of habeas corpus. Habeas corpus is a fundamental part of our legal system that is long protected individual freedom.

In a 1981 memo you argued the availability of federal habeas relief to state prisoners, "goes far to making a mockery of the entire criminal justice system." In the same memo you said, "the question would seem not to be not what tinkering is necessary in the system, by rather why have federal habeas corpus at all."

Then in 1983, as Senator Leahy brought up yesterday, you suggested that if the Supreme Court wanted to reduce its case load it should, "abdicate the role of fourth or fifth guesser in death penalty cases." Not of first amendment cases or anti-trust cases but death penalty cases.

I know that you've said that your memos in the Reagan administration reflect the views of the administration and not your own. But in this area at least, your memos clearly indicate, I think, that these were your views. With the 1981 memo, for example, there is a cover note in your handwriting directing that the memo be sent to John Rose (ph), an assistant attorney general at the time, with a cover note that reads "the attached memorandum contains some thoughts on habeas corpus reform for whatever you think they're worth. Judge Friendly and Justice Rehnquist would never have for given me if I remained mute."

Now that sounds a lot like a memo advocating your views, not those of the department. With regard to the memo from 1983 that I mentioned, you were analyzing the chief justice proposal to create another intermediate appellate court to take the pressure off the Supreme Court's docket and you said, and I quote, "my own view" "my own view is that it is a terrible idea." And you went on to say that the fault lies with the justices themselves who take too many cases, including death penalty cases.

And you sent a personal letter to Judge Friendly in 1981 that said, "this is an exciting time to be at the Justice Department when so much that has been taken for granted for so long is being seriously reconsidered. To cite just one example, serious thought is being given to reform of habeas corpus. I do not know what will eventuate," as you noted, "what has come to pass as great writ is regarded by many lawmakers with no idea of the problems as unalterable perfection."

Now that discussion in a personal letter sounds like your own opinion as well. A decade later when you were at the solicitor general's office during the first Bush administration you signed several briefs that sought to strictly limit federal habeas review.

In 1993, while in private practice, you testified before the House Republican Task Force on Crime in favor of further habeas restrictions. The comments in your memos from the 1980's, I'm sorry to say, don't even show the slightest concern about innocent lives possibly being lost if federal habeas were eliminated.

Does the possible hostility toward the habeas process that was expressed in those memos, particularly in death penalty cases, reflect your current view or federal habeas or have your views changed or evolved?

ROBERTS: Well, as you know, the law has changed and evolved dramatically since the early '80s. And at least with respect to my personal letter to Judge Friendly, I guess I thought it was a personal letter, but the situation has changed dramatically, as you know. What I was referring to in the early '80s was a situation where there were no limits on repetitive habeas corpus petitions. Four, five, six dozen of different petitions could be filed repetitively.

Congress saw that as a problem. Congress acted to address the very concerns that I was raising there and past legislation. The Supreme Court saw it as problem. The Supreme Court acted in a number of cases the Tieg (ph) Case and others in limiting the availability of successive and repetitive habeas petitions.

Actually, what happened is, the Supreme Court, I think, started down that path and Congress made the decision that this is something they should look at in a more comprehensive way. So Congress passed laws that restrict when people can file repetitive and successive petitions.

Those are the very concerns that I was talking about. They were concerns that had motivated the first person I worked for as a lawyer, Judge Henry Friendly, to write on the subject. He wrote a famous article on habeas reformed, entitled "Is Innocence Irrelevant," because he thought these successive petitions had made sort of a game out of the whole process in which the question of innocence was totally lost in these successive petitions.

And the references to the great writ, yes, of course, the writ of habeas corpus has an established heritage as a basis for complaining about illegal confinement. But all the stuff we're talking about there, the fourth and fifth successive petitions, raising new issues that should have been raised in the first petition. And, as you know, that's what Congress's legislation focused on.

FEINGOLD: But did you Judge, didn't you not at the time . . . BLITZER: Judge Roberts continuing to answer questions. Questions involving the law. They sound arcane but these are very important issues which we will assess with our analysts.

We're going to take a quick break.

We're also going to go to North Carolina. The latest on Hurricane Ophelia.

And yesterday, more than 150 people were killed in Iraq. Today, more than 30 people are dead. More terror attacks. The insurgency continuing there. We'll go live to Baghdad for the latest.

Much more from THE SITUATION ROOM right after this.

(COMMERCIAL BREAK)

BLITZER: We're going to go back to the John Roberts confirmation hearings.

But let's get a quick check of some other news this morning. CNN's Fredricka Whitfield standing by at the CNN Center for that.

Hi, Fredricka.

FREDRICKA WHITFIELD, CNN CORRESPONDENT: Good morning to you, Wolf.

Forecasters say the eye of Hurricane Ophelia may never make landfall in North Carolina, but the category one storm is still giving coastal communities quite a pounding. CNN Meteorologist Rob Marciano is at Atlantic Beach, North Carolina, with an update.

And it looks like the conditions are still pretty bad there, Rob.

ROB MARCIANO, CNN CORRESPONDENT: Well, it's still gusty, that's for sure, Fredricka. But the storm, as you mentioned, moved off towards the north and east and we're left with still a couple outer bands that are coming through from time to time.

Right now we're standing on the pier where we were last night. And yesterday afternoon the same pier that got ripped apart. Take a look down it this yellow police tape up because it's just not safe to be anywhere past that. A 20-yard section of it just ripped off and floated away into the Atlantic Ocean during high tide as 15 to 20-foot breakers were pounding the beach and obviously pounding this pier.

Speaking of the beach. Every five years they come in and they spend millions of dollars to dump sand on the beach. A bit of a restoration project of sorts. But, sure enough, every couple of years they get a hurricane rolling through and just look how the beaches is just stripped of the sand. I mean, almost down to the I guess the clay soil or the base there. Tremendous amount of beach erosion here. That's going to be an issue for sure.

Power how about it 240,000 people were without power but now it's only 80,000. So folk in North Carolina were prepared for this. Still gusting, you can see that. Forty-five shelters were set up and 2,000 evacuees went to the shelters. I know that doesn't sound like a lot. It's not like New Orleans. Most of the counties that had mandatory evacuations, pretty much beach communities. Not very populated. So it looks like a lot of folks got out of the way.

There was 12 at least 12 inches of rain in some spots. So we're calling around to find out some flooding. But first word is, especially in some of the rivers and bays that were flooded during Hurricane Isabel two years ago, is the flooding this go around not nearly as bad. So that's good news.

But as you mentioned, Fredricka, Hurricane Ophelia continues to ride up the coastline raking Cape Hatteras and maybe even Nags Head and Kill Devil Hills later on today. But right now we're starting to wind things down in Atlantic Beach. It was a rough day and a long night. This was a slow-moving storm. And even though it's a category one, tremendous amount of damage because of its slow movement.

Back to you.

WHITFIELD: Well, Rob, while it's good news that a lot of the people have evacuated, we are talking about erosion in an area that is subject to significant erosion every time a hurricane brushes by. How concerned are the officials there about so many of these properties, homes that are right on the beach and their vulnerabilities?

MARCIANO: Well, I've talked to people who live on the beach. They're assessed a certain amount of money every year for this beach restoration, you know, project. It kind of goes under the guides of protecting the sea turtles. But I've got a feeling it's for the folks who live on the beach, protecting their home. I mean, we say this every time a storm comes through, Fredricka, we have to stop building so close to the beach. The ocean just is too powerful. It just eats away at it. So until that lesson is learned, I suppose we're going to struggle with this.

WHITFIELD: All right, Rob Marciano, thanks so much, in Atlantic Beach, North Carolina.

Stay with us for updates on Ophelia. CNN is your hurricane headquarters.

On to Iraq now.

A series of explosions have added to yesterday's carnage that left at least 153 people dead. CNN's Jennifer Eccleston joins us live from Baghdad now with the latest.

Jennifer.

JENNIFER ECCLESTON, CNN CORRESPONDENT: That's right, Fredricka, insurgents violence keeps up pace. Around 30 deaths and 55 injuries this Thursday. And while yesterday the victims were mainly civilians, mainly members of Baghdad's Shiite community, today's focus, Iraq security forces. Three separate suicide car bomb attacks against elite police commandos. Two strikes within minutes of each other at 11:00 a.m. this morning in Dura and Southern Baghdad. Four police killed there. Dozens wounded. Three hours earlier, another suicide attack on commandos in that very same area. Sixteen police died, 21 wounded.

Now the insurgents also targeted government workers this day. And, once again, members of Iraq's Shiite community here in the capital but also in the northern city of Mosul. Also today we saw funerals for some of those victims of yesterday's multiple suicide attacks where over 150 people, mainly from the Shiite community, were killed.

Fredricka.

WHITFIELD: And, Jennifer, this is a high number in death toll in just a few days. Is there any real significance or that there are connections being made as to why the violence has stepped up so much recently?

ECCLESTON: Well, I think it's fair to say that these attacks demonstrate again just how easily the insurgents can stage coordinated attacks, deadly attacks, despite the on going military pressure from the Iraqi and U.S. forces. They can stage these high-profile attacks despite a series of high-profile military offenses like the one we saw in Tel Afar, an Iraqi-lead operation with American military support to root out the insurgents. That offensive and others where Iraqis were the lead force are designed to show that the Iraqi military and the police are now better able to secure at least pockets of this country.

But the insurgents' response to that is, look, they can strike at will, not only in remote areas but also here in the heart of the government. And that will terrorize the general public. It is doing so and it's fostering doubt with them that Iraq's military and police can actually keep them I safe.

Fredricka.

WHITFIELD: All right, Jennifer Eccleston, thank you so much, from Baghdad.

Now back to Wolf Blitzer in THE SITUATION ROOM.

Wolf.

BLITZER: Thanks very mech, Fred.

We're going to get back to the John Roberts' confirmation hearings. We see Senator Jeff Sessions, Republican of Alabama, there right now. We'll take a quick break. Much more of our coverage here in THE SITUATION ROOM right after this.

(COMMERCIAL BREAK)

BLITZER: Democratic Senator Charles Schumer of New York questioning John Roberts right now. They're talking about documents some documents not being released to the committee. Let's listen in.

SEN. CHARLES SCHUMER, (D) NEW YORK: Clear picture of the kind of chief justice you will be, not just rely on your assurances. So I want to try this another way because I really want to find out. You're one of the best litigators in America. You know how to convince people. That's what you've been paid to do for a long time. So let me ask you, if you were sitting here, what question would you ask John Roberts so that we could be so that you, or us, could be sure that we weren't nominating what I call an ideologue someone who you might define as somebody who wants to make law, not interpret law and then how would you answer the question you asked yourself?

ROBERTS: I begin by saying, well, that's a good question, Senator.

I think, with respect, I would ask a lot of the questions that have been asked. A lot of the questions that were asked in the questionnaire that I completed earlier. And it begins with the most important question, what is your view of the proper role of a judge in our system. And people have different answers to that question. I've given an answer to that question.

How do you approach particular cases in areas of particular interests. And I've been asked that question and I've given an answer. I've explained, for example, in the area of executive power as issues arise, what would the framework that I would use would be. And I've talked about the Youngstown opinion and Justice Jackson's framework there. I've talked about how I would approach cases involving the right to privacy under the Liberty Clause. I've talked about how I would approach cases involving government enforcement in the anti- trust laws.

SCHUMER: How about something that you haven't talked a question that hasn't been asked?

ROBERTS: Well . . .

SCHUMER: Since some of us are still unsure.

ROBERTS: But in other areas, people talk about and it's personal views on issues. And there again I think it's important. There may be some nominees whose want to share personal views on issues. My reaction has been to emphasize, and I think this tells you about what kind of a judge I hope I am on the court of appeals and what kind of a justice I would be if confirmed, and my reaction has been that I set those personal views aside and so don't consider them pertinent. Other nominees might take a different approach in response to those types of questions.

People have asked about particular decisions and I've talked about decision in which I've been involved. We've talked about, with Senator Grassley, about the cotton case in which I was involved. Others about the Barber case involving Congress's power under the Spending Clause.

People have asked very probing questions about my legal positions. What did you what was the position you were advocating in this case and why? I think it's fair to talk about the record.

SCHUMER: Any question that you would ask that's been left out?

ROBERTS: There have been a lot of questions asked and a lot answered. I can't think of any that, you know I expected people to ask me about this and it hasn't been asked. I think ...

SCHUMER: So I guess we did a better job than we think we did, right?

ROBERTS: I think the committee has been very effective over the last several days in learning a lot about me. I think in the process of meeting with the senators before, and I was quite serious when I said I appreciated how accommodating everyone had been in sitting down with me. I think people learned a lot about me. I think you learn a lot about me from looking at the 50 opinions I've written. You can learn about ...

SCHUMER: If I might. I want to go back to the Commerce Clause which bothers me, as you know. Again, apart from anybody's view, do you agree that the Congress has the power under the Commerce Clause to regulate activities that are purely local so long as Congress finds that the activities exert a substantial economic effect on interstate commerce?

ROBERTS: If the question -- and this is where the issue comes up -- is whether or not the court has addressed it, the activities are commercial. If the activities are commercial in nature, you get to aggregate them under Wickard against Filburn that we've talked about; you don't have to look at just that particular activity, you'd look at the activity in general.

Where the dispute and issue has come in is whether the activities are commercial. That's where the disagreement -- or the point I was trying to make in the infamous or famous toad case. If you should look at this as commercial activity, then you can...

SCHUMER: Do you believe Congress deserves a great deal-- this is in reference to some of the things Senator Specter talked about -- that Congress deserves a great deal of deference when it decides something is commercial and has finding to that effect?

ROBERTS: I do, Senator. And I think that is the basic theme that runs through the court's commerce clause jurisprudence.

There is, again, of course, the Lopez and Morrison decisions. But there's also the Raich decision. And again, I think it's very important -- and what the Raich decision said you've got to consider Lopez and Morrison in the context of this broad sweep, not just as sort of the only decisions.

SCHUMER: OK. Let me ask you, then, this hypothetical: And that is that it came to our attention, Congress', through a relatively and inexpensive, simple process, individuals were now able to clone certain species of animals, maybe an arroyo toad. Didn't pass over state lines; you could somehow do it without doing any of that. Under the commerce clause, can Congress pass a law banning even noncommercial cloning?

ROBERTS: I appreciate it's a hypothetical, and you will as well, so I don't mean to be giving bindings opinions.

But it would seem to me that Congress can make a determination that this is an activity, if allowed to be pursued, that is going to have effects on interstate commerce.

Obviously if you were successful in cloning an animal, that's not going to be simply a local phenomenon. That's going to be something people are going to...

SCHUMER: We can leave it at that. That's a good answer, as far as I am concerned.

OK. What I'd like to do is say a few concluding words here with a final request.

SCHUMER: First, I want to thank you for holding up so well during the three days of grueling questions. Many of us on this committee, probably every one of us, some more than others, has been wrestling with how to vote on your nomination since well before the hearings started. And, of course, now that process has accelerated.

I, for one, have waken up in the middle of the night thinking about it, being unsure how to vote.

Now, I think my colleague from Delaware was on to something when he called this a roll of the dice.

But this is a vote on the chief justice of the Supreme Court. You will in all likelihood affect everyone of our lives in many ways for a whole generation. So this isn't just rolling the dice, it's betting the whole house.

And I thought I'd share with you the thoughts of some of us with important questions. There are pros and cons.

On the pro side, first of all, is your brilliance. You have an amazing knowledge of the law. You spent three days here talking of so many aspects of it without any paper in front of you, without a single aide coming over and whispering in your ear or passing you a note.

Your knowledge of law and the way you present it is a tour de force. You may very well possess the most powerful intellect of any person to come before the Senate for this position.

Second on the pro side is that you seem to be a lawyer above all. You've devoted your entire life to the law and it's clear that you love it.

Most people in that position tend not to be ideologues. They'll follow the law wherever it takes them regardless of the consequences, and you have repeatedly professed that to be true for you. But given that you spent most of your legal life representing others and your limited tenure on the court of appeals didn't allow you to rule on very many non-technical cases, there's not a long enough track record to prove that point.

The third, and perhaps the most important, at least to me, is your judicial philosophy and modesty and stability. Such a theory respects precedent, the Congress and other judges' opinions. Modest jurists tend not to be ideologues. And many of us on this side of the aisle would like the court to maintain -- and in cases related to the commerce clause like Morrison increase -- its modesty.

But in complicated decisions like this one, there's always a counterpoint, even on the modesty question.

Yesterday, you said that the decision of Brown v. Board could be described as modest. Brown v. Board was breathtaking. It was wonderful. It reversed 80 years of accepted but bad law, yes. But modest?

So I ask myself, could overturning Wickard or Roe also be modest by your definition?

Nonetheless, I think the philosophy of modestly is an appealing, important and unifying philosophy to many of us.

Let me go to the con side here.

First, is the question of compassion and humanity. I said on the first days of these hearings it's important to determine not just the quality of your mind but the fullness of your heart, which to I think a good number of us at least on side of the aisle really mean the ability to truly empathize with those who are less fortunate and who often need the protections of the government and the assistance of the law to have any chance at all.

It didn't seem much, for instance, to concede that the wording "illegal amigos" was unfortunate, yet you refused to say so.

America has moved in the 21st century what Senator Kennedy called the cramped view of civil rights professed in the early Reagan administration. But you wouldn't admit now in 2005 that any of those views you argued for in the early '80s were misguided with the hindsight of history.

SCHUMER: That's troubling.

Second is the refusal of the administration to let us see any documents you wrote when you served as deputy solicitor general, when you were not simply following policy, which you've reminded us in your earlier days there and in the counsel's office, but making it.

This would have given us tremendous insight into who you are, into knowing who you are and what kind of justice you'd make.

But, for what seems to be self-serving reasons, they were refused.

Now this was not your decision. But you carry its burden and I think we all have to consider it when weighing how to vote.

Third, and most important, on the con side, is your refusal to answer so many of our questions.

I know you feel you were more forthcoming than most any other nominee to the high court. I must disagree. You certainly were more forthcoming than a few. Now, for instance, I don't know Justice Scalia's opinion on "Doctor Zhivago," but most answered more relevant questions than you did.

Your refusal to comment on any issue that you thought may come before the court -- we learned a lot about your views on older, completely discredited cases, like Lochner and Plessy and Korematsu. But they're not of much help to us.

What we need to know are the kinds of things that are coming before the court now. And it makes it hard to figure out what kind of justice you will be, particularly in light of the fact we have little else to go on.

You did speak at length on many issues and sounded like you were conveying your views to us but when one went back and read the transcript each evening, there was less than met the ear that afternoon.

Perhaps that's the job of a good litigator, but in too many instances it didn't serve the purpose of the hearing.

Having said that about documents and questions, obtaining documents and answering questions are a means to an end, not an end in itself. In some cases, like Miguel Estrada's nomination, we had no knowledge of his views so we couldn't vote. But here there's clearly some evidence.

So now we must take the evidence we have and try to answer the fundamental question: What kind of justice will John Roberts be?

Will you be a truly modest, temperate, careful judge in the tradition of Harlan, Jackson, Frankfurter and Friendly?

Will you be a very conservative judge who will impede congressional prerogatives but does not use the bench to remake society, like Justice Rehnquist?

SCHUMER: Or will you use your enormous talents to use the court to turn back a near-century of progress and create the majority that justices Scalia and Thomas could not achieve?

That's the question that we on the committee will have to grapple with this week. And over the next week, if you have any more information that could help us answer this question, I think every one of us would welcome it.

Thank you, Judge.

SEN. DIANE FEINSTEIN (D), CALIFORNIA: Mr. Chairman...

SPECTER: Thank you, Senator Schumer.

FEINSTEIN: Mr. Chairman...

SPECTER: Wait just a minute. I'll recognize you in a moment.

Judge Roberts, Senator Schumer has postulated quite a number of questions in his last soliloquy.

(LAUGHTER)

But they are summarized in what kind of a justice you'd be. And I think you're entitled to respond to that if you care to do so.

FEINSTEIN: That was my -- that was going to be my request. I think it's very important, getting the response.

SPECTER: Well, in that case, go ahead and make your request.

(LAUGHTER)

FEINSTEIN: Yes. I think...

SPECTER: Better the request comes from you than from me, Senator Feinstein.

(LAUGHTER)

FEINSTEIN: I think that Senator Schumer really summed up the dilemmas. And not only he has them on our side.

I would very much like if you would respond, particularly to the "con" side. The "pro" side speaks for itself.

And many of us are struggling with exactly that: What kind of a justice would you be, John Roberts?

SPECTER: No time limit, Judge.

ROBERTS: Well, I appreciate the comments very much, Senator Schumer. And I very much appreciate the "pro" side of the ledger.

ROBERTS: On the "con" side, the issue of documents, it's hard for me to comprehend that there could be more documents. The number has been ranging from 80,000 to 100,000. And there is a lot of paper out there.

I have tried to be as fully responsive as I thought consistent with my obligations as a sitting judge and a nominee.

And I appreciate that this is not a new issue. You've gone back and read the transcripts and, of course, participated. I've gone back and read the transcripts. It comes up at every nomination. In some instances members of the committee want more information that the nominee feels that he or she can give in good conscience. That's nothing new.

I've tried to be as fully expansive as I can be and drawn the line where as a practical matter I think it's necessary and appropriate.

The basic question, Senator Feinstein, Senator Schumer, what kind of a justice would I be? That is the judgment you have to make.

I would begin, I think, if I were in your shoes, with what kind of a judge I've been. I appreciate that it's only been a little more than two years, but you do have 50 opinions. You can look at those.

And, Senator Schumer, I don't think you can read those opinions and say that these are the opinions of an ideologue.

You may think they're not enough. You may think you need more of a sample. That's your judgment. But I think if you've looked at what I've done since I took the judicial oath, that should convince you that I'm not an ideologue.

And you and I agree that that's not the sort of person we want on the Supreme Court.

Beyond that, I have the few days that I've been here, all the documents, the questionnaire. You have not just my opinions, but my briefs. I think those also help show what kind of a judge I would be.

You, of course, appreciate that that's presenting a position and I'm just an advocate, but advocates deal with the law in different ways. You can look at other people's briefs, I think, and conclude that that person may not be a good judge because of the way they argue the law.

ROBERTS: I would hope you'd look at my briefs and my arguments before the Supreme Court and conclude that that's a person who respects the law, respects the court before whom he is arguing, and will approach the law in a similar way as a judge.

SPECTER: Thank you, Judge Roberts.

CORNYN: Mr. Chairman?

SPECTER: Senator Cornyn?

CORNYN: If I might have three minutes, I just want to ask the witness to explain the rationale, as he understands it, for the privilege...

SPECTER: Senator Cornyn, you're recognized for three minutes.

CORNYN: Thank you.

Mr. Chairman, it strikes me as odd, having been on the committee last year when we had an unfortunate theft of internal documents that were written by staffers of individual senators, which were then published to the outside world -- there was bipartisan outrage over that. And we, as I recall, referred that matter for investigation and possible prosecution.

But surely if the legislative branch is entitled to confidential communications between our lawyers and us so we can do our jobs and get candid advice, the executive or the president is entitled to the same sort of confidential and candid communications.

And, Judge, this is the question. I don't want anybody to be under the misapprehension that, number one, it's within your power to produce additional documents. It's hard to imagine there are, in addition to the 100,000 that have already been produced.

But I want to give you a chance to articulate the reasons why the law recognizes this importance of a confidential, candid communication between a client and the lawyer that cannot be readily overrun or trumped.

And would you give that a shot, please?

ROBERTS: Well, I mean, certainly the basic attorney-client privilege goes back centuries. And there have been eloquent expressions of its value in the Supreme Court; I think of the Upjohn opinion from 1982 in the Supreme Court and other classic expressions.

And the idea is if we want people to benefit from the advice that lawyers can give, we have to ensure that they feel perfectly free to communicate and exchange their views with their lawyer without fear that that would be reviewed and used to their prejudice.

Carried forward to the point that we're talking about now, you have to have a candid exchange among lawyers in presenting cases to the court in order to effectively represent your client, whether your client is the government of the United States or a private company.

ROBERTS: And that type of a debate, which often involves pointing out inconsistencies in the decision, even flaws in your own legal position. So this is the argument. But this part of the argument is really quite weak and we have to be worried about that.

Those sorts of things, you do need to thrash out and discuss and elaborate on. And yet, if that was then revealed to your adversary or to the court, it would obviously prejudice the presentation.

And if those things were going to be regularly revealed, people wouldn't make those types of analysis and judgments. They wouldn't say, "This is a weak argument. What are we going to do about that? Should we really make that argument?"

They would not commit those to writing and the adequacy of the legal counsel and advice would suffer. And the role of the advocate before the court in vindicating the rule of law on which the courts rely would also suffer. CORNYN: Mr. Chairman, it may already be part of the record but if it's not, I would ask unanimous consent at this point in the record that we would make the letter of former solicitor generals...

BLITZER: All right, John Roberts answering questions from Senator John Cornyn of Texas.

There was a remarkable moment there, I thought, Jeff Toobin and Jeff Greenfield, when John Roberts told Senator Schumer, I am not an ideologue, and we agree that ideologues should not be on the Supreme Court. Critics will say they there are some ideologue on the Supreme Court.

GREENFIELD: Are and always have been. That was probably one of the most intriguing exchanges, where Senator Schumer, after first praising John Roberts for a lot of reasons zeroed in on the question of answering questions. And said, you know, it sounds like you answer questions. When you go back and look at it, you really haven't told us much. And Roberts said, look, look at my briefs, look at my opinions and then say I am not.

Now I cannot imagine any prospective Supreme Court nominee coming before the committee and saying, by the way, I'm proud to be an ideologue. It's one of the those words like I'm a judicial activist. No one is going to say that, even if in fact they turn out to be. But that was a very, I thought, pretty high-level exchange between the two of them.

TOOBIN: And I thought it was a very real moment in a hearing that has had so much sort of prepared, canned talk. You know, here you have Senator Schumer, who is famous for having lots of outspoken opinions, sort of confessing, I don't know what to do here.

And I thought the coded conversation that went on here is, come on, are you Scalia and Thomas? And he was saying, no, I'm not.

Now, maybe that's true. Maybe it's not. But I thought that was what the exchange was meant. That's what it meant.

Now, whether it's true and whether Roberts will turn out to be Scalia or Thomas, in effect, I don't know. But that, I thought, was what Schumer was asking, and I thought the way Roberts volunteered, look at my opinions, look at how I write, I am not out there to change the world. I am a modest judge, in his favorite phrase, I thought he was saying I am not Scalia or Thomas. Whether it's true or not I don't know.

BLITZER: These 100 senators now will have one week to make up their minds, because the final floor vote scheduled for a week from today, next Thursday. So far Republicans are lining up and saying they're going to confirm, but we haven't gotten hard, hard answers from a lot of these Democrats.

GREENFIELD: That's why we may know more after this meeting this afternoon when the leadership of the Democrats meet with interest groups and tries to figure out how hard to push. I would -- I don't like to do predictions, as you know these last several years, but the one thing that would really amaze me is if they tried to amount a filibuster against him. I just can't imagine that, which basically means Roberts is going to get confirmed, and the only interesting bet is, are there going to be 10 votes against him, or 20 or 30?

BLITZER: Next Thursday, we'll see that floor vote here on CNN.

We're going to take a quick break. Continue our coverage of the John Roberts hearings.

Also, we'll update you on other news happening right now, the latest on Hurricane Ophelia, off the coast of North Carolina. What's happening in New Orleans, elsewhere and the Gulf Coast, another horrible day in Baghdad.

Much more of our coverage from THE SITUATION ROOM, right after this.

(COMMERCIAL BREAK)

BLITZER: We'll get back to the John Roberts' confirmation hearings in a moment. First, though, let's get a quick check of some other news this morning. Fredricka Whitfield, standing by at the CNN Center in Atlanta -- Fred.

WHITFIELD: Thanks again, Wolf.

Updating you with the latest on Hurricane Ophelia now. At this moment, the Category 1 storm is still pounding the Outer Banks of North Carolina. The storm's eyewall is hitting the area for a second day. High winds, heavy rain and dune-busting surf have been reported, but local officials say there are no signs of severe flooding.

More than 120,000 homes and businesses are without power. The slow-moving storm is expected to linger for hours over North Carolina's Outer Banks. Supplies have been pre-positioned for the storm after it passes, and medical and search and rescue teams are also ready to go into the area.

Now to "Mission Critical," a quick update on Hurricane Katrina's aftermath. As the flood waters recede in New Orleans, another scene of devastation immersion. Ruined houses, damaged cars and entire neighborhoods caked with muck and mud. The Army Corps of Engineers says the water is dropping more than a foot a day in New Orleans and surrounding parishes. Pumps are removing at nine billion gallons of water a day. Military aircraft have begun spraying for mosquitoes and other insects in Louisiana. Two specially-equipped C-130 planes from the Air Force reserve are being used in that effort.

New Orleans Mayor Ray Nagin today officially outlines his plan to repopulate the city. On CNN's "LARRY KING LIVE," Nagin said people will be allowed to return in a controlled manner so that resources are not overwhelmed.

(BEGIN VIDEO CLIP) MAYOR RAY NAGIN, NEW ORLEANS: I'm going to announce a phased repopulation plan that is going to deal with some of the areas that were least hit by the hurricane and had less water. And then within the next week or two, we should have about 180,000 people back in the city of New Orleans.

(END VIDEO CLIP)

WHITFIELD: And Nagin says some evacuees that he has spoken with are frustrated and they don't plan to return at all. But he says most residents want to come back to the city.

And this reminder. President Bush will address the nation tonight, from New Orleans. That speech is scheduled for 9:00 p.m. Eastern. CNN will be carrying that live. Now back to Wolf Blitzer in Washington, in "THE SITUATION ROOM" -- Wolf.

BLITZER: Thanks very much, Fred.

We want to go right back to the Senate Judiciary Committee. Senator Dick Durbin of Illinois is asking questions of John Roberts. He's the last of the Democrats who asked for this opportunity to question John Roberts in this third and final round. Very soon, John Roberts will be finished answering questions and then the Senate will have a week to consider.

Let's go back to the hearing room.

(JOINED IN PROGRESS)

ROBERTS: ... present and press those causes because they're causes in which they passionately believe.

I became a lawyer -- or at least developed as a lawyer -- because I believe in the rule of law.

The point I was trying to emphasize in my opening statement that all of these other areas -- you believe in civil rights, you believe in environmental protection -- whatever the area might be -- believe in rights for the disabled -- you're not going to be able or effectively to vindicate those rights if you don't have a place that you can go where you know you're going to get a decision based on the rule of law.

ROBERTS: It was the point I was making with respect to the Soviet constitution: filled with wonderful sounding rights; absolutely meaningless because people who suffered under that system had no place they could go in court and say, "My rights have been violated."

So that's why I became a lawyer, to promote and vindicate the rule of law.

Now, that means that that's at issue and play regardless of what the cause is. And that's why, as we were talking yesterday, you can go in my record and you will see, yes, I've advanced cases promoting the cause of the environment. As I was discussing earlier, I've been on both sides of this affirmative action issue. Take even technical areas like antitrust: I've defended corporations; I've sued corporations.

In each case I appreciated that what I was doing as a lawyer, particularly as a lawyer before the Supreme Court, was promoting the rule of law in our adversary system.

I viewed that as -- I appreciate that the some may say, "Well, that sounds like you're a hired gun," to be disparaging. "You're going to take the side of whomever comes in the door first."

I think that's a disparaging way to capture what is, in fact, an ennobling truth about the legal system: that lawyers serve the rule of law, above and beyond representing particular clients.

That's why when the chief justice welcomes new members to the Supreme Court bar, he welcome welcomes them as members of the bar and officers of the court, because that is the important role that they play.

That has significance for what types of arguments they can present and how they can present them.

SEN. RICHARD DURBIN (D), ILLINOIS: Well, if I might say, Judge, if you've made one point many times over during the course of the last three days, it's that as a judge you will be loyal and faithful to the process of law, to the rule of law.

I think that is without question from what you've said. I accept that on its face.

But the questions which we continue to ask you really try to go beyond that. Because I said at the outset that I thought one of the real measures as to whether or not you should be on the Supreme Court goes back to a point Senator Simon had made: Would you restrict freedom in America or would you expand it?

DURBIN: When you are defending gays and lesbians who are being restricted in their rights by the Colorado amendment, you are trying, from my point of view, to expand freedom in America. That, to me, is a positive thing. That's my personal philosophy and point of view.

But then when you say, "If the state would have walked in the door first to restrict freedoms, I would have taken them as a client too," I wonder, where are you?

Beyond loyalty to the process of law, how do you view this law when it comes to expanding our personal freedom? Is it important enough for you to say in some instances, "I will not use my skills as a lawyer because I don't believe that that is a cause that is consistent with my values and belief"?

That's what I've been asking.

ROBERTS: I had someone ask me in this process -- I don't remember who it was, but somebody asked me, you know, "Are you going to be on the side of the little guy?"

And you obviously want to give an immediate answer, but, as you reflect on it, if the Constitution says that the little guy should win, the little guy's going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy's going to win, because my obligation is to the Constitution. That's the oath.

The oath that a judge takes is not that, "I'll look out for particular interests, I'll be on the side of particular interests." The oath is to uphold the Constitution and laws of the United States. And that's what I would do.

DURBIN: Would you at least concede that you would take into consideration that in our system of justice the race goes to the swift, and the swift are those with the resources, the money, the lawyers, the power in the system? And that many times the powerless, the person who has struggled and clawed their way to your courtroom, went through a wall of adversity which the power never had to face? Is that part of your calculation?

ROBERTS: Absolutely. And it's, again, what's carved above the doors to the Supreme Court: "Equal justice under law." And the judicial oath talks about doing justice without regard to persons, to rich and to poor. And that, of course, is critically important. You do have to appreciate that there are going to be interests who, for one reason or another, don't have the same resources as people on the other side.

The idea is not to give the case to the side with the best resources, the side with the best lawyers, the side with the most opportunity to prepare it and present it. It is to decide the case according to the law and according to the Constitution.

And as case after case in the Supreme Court shows, that's often the prisoner who's sitting in his cell and writes his petition out longhand.

ROBERTS: Sometimes the Constitution is on that person's side and not on the side of the corporation with the fancy printed brief.

But the judge's obligation is to appreciate that the rule of law requires that both of those be treated equally under the law.

DURBIN: Judge Roberts, thank you very much.

Mr. Chairman, thank you.

ROBERTS: Thank you, Senator.

SPECTER: Thank you, Senator Durbin.

Judge Roberts, questions will be submitted to you within 24 hours. And you've already stated your commitment to answer the questions and you can't be totally open-ended because you don't know how many question there will be, but I have a strong inclination that however many questions there are you will be able to answer them in appropriate course.

We're now going to move into a closed session.

SEN. LINDSEY GRAHAM (R), SOUTH CAROLINA: (OFF-MIKE)

SPECTER: Senator Graham, you are recognized.

GRAHAM: Yes, Mr. Chairman, just for a couple of minutes.

I'm trying to compile questions from the past where the answers were very similar to the answers of Judge Roberts about, "I can't comment, I can't give you -- I can't answer your question because it may compromise my integrity to judge in the future." And I would ask permission of the committee to get a chance to organize this because there are so many volumes.

And what I would like to be able to demonstrate to the committee is that the pattern that he has displayed in terms of saying, "I can't give you an answer because it may disqualify me" is not unique to the Senate and very similar to past nominations. And we've got some examples of that.

But if I may, and I know we've been here and Lord knows this guy's been through the wringer, I just want to comment a little bit an unhealthy area I think we find ourselves in in the last hour.

Most of us are lawyers, and I would hate to be judged by the people I've represented in the past totally.

I've represented some people that are not very nice.

(LAUGHTER)

But I gave them my all.

I've represented people on Air Force bases that were so unpopular, Judge Roberts, that no one would eat with me, because it was my job as the area defense counsel to represent that person.

GRAHAM: Your heart -- nobody can question your intellect, because it would be a question of their intellect to question yours...

(LAUGHTER)

... so we're down to the heart. And is it all coming down to that?

Well, there are all kind of hearts. There are bleeding hearts and there are hard hearts. And if I wanted to judge Justice Ginsburg on her heart, I might take a hard-hearted view of her and say she's a bleeding heart. She represents the ACLU. She wants the age of consent to be 12. She believes there's a constitutional right to prostitution. What kind of heart is that?

Well, she has a different value system than I do. But that doesn't mean she doesn't have a good heart. And I want this committee to understand that if we go down this road of putting people's hearts in play, and the only way you can have a good heart is, "Adopt my value system," we're doing a great disservice to the judiciary.

Thank you.

SPECTER: Thank you very much, Senator Graham.

We're now going to go into executive session, under Senate Rule 26, to review the FBI report -- which is standard for all the judicial nominees: Supreme Court or Court of Appeals or district court -- and to consider any other investigative issue that members of the committee may have.

During Senator Biden's tenure as chairman, the practice was initiated of conducting routine closed sessions with each nominee for the Supreme Court, to ask the nominee on the record, under oath, about all investigative charges against the person, if there were any.

SPECTER: These hearings are routinely conducted for every Supreme Court nominee, even where there are no investigative issues to be resolved.

In so doing, those outside the committee cannot infer that the committee has received adverse, confidential information about a nominee.

The committee and Judge Roberts will now proceed to Dirksen 226, which is right down the hall.

Senator Leahy?

LEAHY: I understand that, also following our practice, the Republican counsel and the Democratic counsel, who normally work together on such issues, will brief the committee.

SPECTER: Senator Leahy, that is correct.

LEAHY: Thank you.

SPECTER: We expect to return to hear our first outside witness, the American Bar Association, just as soon as we conclude this. We want to move ahead as promptly as we can. So those witnesses should be available.

We will now adjourn to 226 in this building.

BLITZER: Executive session, another phrase meaning closed-door session, behind locked doors, no cameras will be inside during this procedural issue. They'll review any FBI investigations that may or may not have occurred and they'll get some additional questions answered from John Roberts.

This is really the last time we've seen him publicly answer questions. He's finished now. He'll be shaking hands. He'll be thanking these members as they go into another hearing room down the hall from the Senate Hart Office building, where they are right now. They will begin this behind the scenes, behind closed doors questioning of him.

I want to play, for our viewers, once again, one excerpt of what John Roberts told Senator Schumer only a few moments ago.

(BEGIN VIDEO CLIP)

JOHN ROBERTS, CHIEF JUSTICE NOMINEE: I would begin, I think, if I were in your shoes, with what kind of a judge I've been. I appreciate that it's only been a little more than two years, but you do have 50 opinions. You can look at those.

And Senator Schumer, I don't think can you read those opinions and say that these are the opinions of an ideologue. You may think they're not enough. You may think you need more of a sample. That's your judgment. But I think if you've looked at what I've done, since I took the judicial oath, that should convince you that I'm not an ideologue.

And you and I agree that that is not the sort of person we want on the Supreme Court.

(END VIDEO CLIP)

BLITZER: Jeff Toobin, our senior legal analyst, has actually gone through and read those opinions. I don't know if you've read all 50 of those opinions, but what's the bottom line? Is it or is he not an ideologue?

JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: He is certainly conservative. But he is well within the mainstream of conservative judges. There are different ways to write an opinion. You can sort of reach out for issues, you can declaim on issues that are not directly before you. You can try to change the law through what you write. Those are not those kind of opinions.

And also if you look at his background, he's not someone who gives a lot of speeches. He's not someone who writes law review articles. He's not at the forefront of the conservative moment in the way that Clarence Thomas was before he went on the bench or even Justice Scalia was, when he was a law professor.

He has a different background from the ideologues that the Democrats are so afraid of. He may yet share all their views, but his background and his judicial opinions don't suggest it.

BLITZER: Let's bring in Senator Tom Coburn, Republican of Oklahoma. He has to get back into that hearing room. I want to question him first.

Senator Coburn thanks very much for joining us.

SENATOR TOM COBURN (R), OKLAHOMA: Glad to be with you, Wolf.

BLITZER: I'm with Jeff Toobin and Jeff Greenfield, are here as well.

You got emotional during your first day. That was one of the more memorable moments of these three days of hearings. What happened? Why did you get so emotional?

COBURN: I think just because of the magnitude of the decisions that are before our country. I'm 57 years old. We've never had the greatest number of problems that we have today in my lifetime.

And if we don't address them properly and if we don't do that in a way that's based on leadership and principle rather than partisanship, first of all, we're putting ourselves at even greater risk. And number two, the Americans deserve better than that. And we're not seeing it. We're not seeing leadership. What we're seeing is politics. And the problems are just too great.

BLITZER: Jeff Greenfield is here, he has a question for you, Senator.

JEFF GREENFIELD, CNN SR. ANALYST: Speaking of crises, Senator, had you some pretty sharp things to say about the leader of your own party, I think. In terms of the response to Hurricane Katrina and the response of the Congress in not diverting an awful lot of money that's been an earmarked for various special projects. Back to Katrina, could you elaborate on just what got you as -- I think the right word is angry.

COBURN: I'm not sure the right word is angry. It's more disgust. The fact is, the numbers that are bandied around by administration officials and Republicans and Democrats alone, that we'll have a $300 billion deficit is just absolutely untrue. We passed an $82 billion supplemental that doesn't count against it. We stole $160 billion from Social Security. We've already passed another $62 billion.

The actual numbers that we're transferring to generations beyond us are enormous. They're going to grow in light of this most recent tragedy. To not have the leadership to say we're going to have to make some sacrifice. We're going to have to make sacrifice in terms of what we'd like to do politically, but also make sacrifice in terms of where we spend money today, already.

And to not do that, belies the whole fact of the character of this country of making sacrifice for the future. It is very easy to sit up here and spend the next two generations' money and us not have any responsibility for that. We're not going to be here when the cost of that come due in terms of the lower standard of living for every American.

GREENFIELD: So when how House Majority Leader Tom DeLay says there's no more fat in the federal budget, your response is?

COBURN: I don't think there's anybody in the United States who believes that besides Tom DeLay.

BLITZER: Jeff Toobin has a quick question, Senator. TOOBIN: You are at the forefront of the anti-abortion movement. You're opposed to Roe v. Wade. Do you think John Roberts will vote to overturn Roe v. Wade?

COBURN: I don't know what John Roberts is going to vote to turn -- you know, I believe America's heart has to change regardless of what the court's do. In terms of recognition that we can't continue to rationalize a moral mistake with another moral mistake.

And I wouldn't want to speculate on what he's doing. I had two private meetings. I never asked him about the issue, because I don't think that's the key defining issue in our country today. I think it's just as immoral to take the unborn life as it is to steal life from people who are born by spending their money today.

TOOBIN: So when John Roberts said he believes there is a right to privacy, as many conservatives, like Robert Bork, do not believe there is in the Constitution, what's your reaction? Are you worried about that?

COBURN: I believe John Roberts is going to try to decide law just exactly the way he said he would. And he's not going to decide it with a conservative bent or a liberal bent. He's going to decide it based on precedent, based on what the facts are, based on what the Constitution -- our Constitution and our laws are, not foreign, and what the litigants present before him in consultation with the other justices.

And I believe his integrity is true in that. I would hope that he would do that. My hope is, that they would see the light in terms of life and the definition of life and that would change. But I have no feeling one way or the other of whether he will do that or not.

BLITZER: Will you vote to confirm his nomination?

COBURN: I will vote to confirm. He's one of the brightest individuals I've ever met in my life.

BLITZER: Senator Coburn, thanks very much for spending a few moments with us before you can get back into that executive session.

COBURN: Thank you.

BLITZER: They're meeting behind closed doors with John Roberts right now. We're finished seeing John Roberts, at least publicly answer questions, three days of questions before the Senate Judiciary Committee.

The committee is scheduled now to vote next Thursday. The full Senate scheduled to vote the following week, the week of September 26th. We'll see how that comes down.

We're covering this story, we're covering lots of other stories. Hurricane Ophelia, off the coast of North Carolina. Also what's happening in the aftermath of Hurricane Katrina. We're getting ready for the president's address to the nation tonight, from New Orleans, 9:00 p.m. Eastern. We'll take a look ahead, see what the president might be saying. Much more coverage right after this.

(COMMERCIAL BREAK)

BLITZER: Welcome back. I'm Wolf Blitzer, we're in THE SITUATION ROOM. There's a break in the John Roberts confirmation hearings. Members are meeting behind closed doors with the Supreme Court chief justice nominee. We're going to continue to monitor that story.

We're also monitoring what's happening, Hurricane Ophelia, off the coast of North Carolina. We're also watching what's happening in the aftermath of Hurricane Katrina along the Gulf Coast.

Right now, over at the Pentagon, here in Washington, Lieutenant General Carl Strock of the Army Corps of Engineers is speaking about draining the water from New Orleans. Let's listen in.

(JOINED IN PROGRESS)

LT. GEN. CARL STROCK, CMDR., U.S. ARMY CORPS OF ENGINEERS: We are hand and glove with them, we are doing real-time monitoring of the quality of the water that is being discharged. We're doing that before it gets into the pumps as well as what comes out of the pumps. They are working very closely with us, so as we see a hazard, we can intervene and we can reduce pumping levels, or stop pumping, if it's felt like it's more important to keep those discharges from the waterway.

It's an hour-by-hour effort, very, very closely done with EPA. Also, really, it's the locals as well. The Louisiana Department of Environmental Quality is involved with that and the local parish officials are right there with us, trying to understand this.

There will be unavoidable ecological impacts from Katrina as a result of moving this water. We don't have those quantified yet but a big part of what we're doing is gathering data, so we can try to understand what we have done, and then how to mitigate it in the future. I think that's probably about it as far as the water quality is concerned.

I might add that so far, we do not see alarming rates of -- alarming water quality concerns here. We do have some elevated levels that we're concerned about. For example, dissolved oxygen levels, we are exceeding the minimums for those in some cases. But we're taking measures to correct that by installing aerators on pumps so that we can put more in as we discover that's an issue.

We're also floating booms, absorbent booms across the intakes to the pumps and across the discharges to the pumps to try to capture as much of the pollutants as we can, as the water is discharged.

So in summary, we have a pretty good plan here, I think. And every day it gets a little more focus in terms of our ability to predict how well we're doing and what the consequences will be in the long term. We are turning now, though, to reconstitution of our New Orleans District. And we're also reconstituting our entire response and recovery process for the next event. I can tell you that for Ophelia, we watched that closely. FEMA stood up, the command and control centers, we've pre-positioned ice, water and other commodities along I-95, ready to respond, if necessary.

Fortunately, the eye of the storm has not made landfall yet. We are prepared to respond to Ophelia should the storm develop in a more significant fashion.

With that, I will be happy to take any questions you have about anything I've covered or about anything in general that the Corps of Engineers is involved in.

You know, before I go there, let me again emphasize, while I am the U.S. Army Corps of Engineers, I'm a soldier, 34,000 people in the Corps of Engineers, most of them are civilians. We only have about 600 soldiers in the Corps, half of whom are in 249th Prime Power Battalion, which provides emergency power generation.

But when you talk about the Corps of Engineers, it's not soldiers out on the ground there. It's civilian, public servants that come from all over the country to respond in this way. And we do respond through FEMA. So, when we're talking about the un-watering plan of New Orleans, that is a FEMA operation, that is conducted by the Corps, in conjunction with the local parishes and with private industry to get that done.

I want to underscore that, that we are part of FEMA, in most of the work we're doing here.

Yes, sir.

QUESTION: General, a couple questions. One now and one for the future. Number one, you speak of other levee breaks. Have those been prepared?

STROCK: Sir, not all of them.

BLITZER: We're going to go from Pentagon to North Carolina. We're watching Hurricane Ophelia unfold. We have reporters on the scene. Susan Candiotti, Rob Marciano, also we're going to check in with Chad Myers at the CNN Weather Center. First let's go to Susan Candiotti.

Susan, where exactly are you and what's it like?

SUSAN CANDIOTTI, CNN CORRESPONDENT: We're in Nags Head, on the Outer Banks of North Carlona. And by far, Wolf, this is the strongest feeder band we've felt so far. Using this wind-meter, I calculated over 35 miles per hour at the strongest gusts that we have felt so far throughout the day. We expect them to get even stronger.

Just to give you a perspective, you see the pier, the waves crashing over my shoulder. But I'm going to show you the setup where we are. This is a two-story brick hotel that was built back in 1947. It's said to be the oldest hotel on the Outer Banks that was not destroyed and had to be rebuilt.

In any case, our satellite truck is on the other side of that. We feel we're in a good position here to keep our signal going just as long as we possibly can. There's no evacuation order where we are on this end of the Outer Banks. However, Hatteras Island that starts about 10 miles south of here, it goes down to Cape Hatteras and the like, there is a mandatory evacuation order there.

A good deal of the permanent residents, we were told, did get out. Tourists certainly did leave. However, they are not expecting, given this glassing blow if it stays offshore, that Ophelia will not do too much permanent damage there. They do expect flooding, definitely beach erosion everywhere, and certainly that is something they'll have to assess as the day, evening, and morning goes on. So far, we still have power. We're hanging in there for now -- Wolf.

BLITZER: All right. We'll wipe off that lens, make sure it stays dry. Susan we're going to get back to you, shortly. Rob Marciano is in Atlantic Beach, North Carolina. We'll get to him in a moment. Let's go to Chad Myers first in the CNN Weather Center.

Chad, what's the situation with this Hurricane Ophelia?

CHAD MYERS, CNN METEOROLOGIST: You know, I was just checking. I walked up screen to get the observation from Kill Devil Hills, which is just north of Nags Head, 41 miles per hour there. But many gusts higher than that, all the way from Cape Hatteras back to Cape Lookout here.

Here's the eye itself, kind of broken up. Not a complete circle anymore. The eastern side of the eye wall is the most dangerous. Now, the good news, there's no land there. The western side is what's actually touching Ocracoke Island and also the Cape Hatteras Island area. That's just about the weakest part of the storm that could actually hit land. So, there's something there.

The storm did make a right turn over the last couple of hours, after it made the left turn here across parts of Morehead City. You can see it now, south -- almost due south of Cape Hatteras.

Where do we go from here? It's 80 miles an hour, Category 1, eventually tonight, probably just each of Virginia Beach and for tomorrow, we get to the south of Long Island. The storm then is forecast to move to the east of Cape Cod. But if you notice, this cone that we always talk about, Cape Cod is in the cone. It's a potential for that to happen. We'll have to keep watching this area.

Here's Cape Hatteras, Hatteras Village, 95 miles an hour, Cape Lookout, 92, Bald Head Island, 84 miles an hour, and the Caper Hatteras Lighthouse, 83 -- Wolf?

BLITZER: Stand by, Chad. Rob Marciano, our other meteorologist, is in Atlantic Beach, North Carolina, where it seems a lot calmer right now than it did yesterday, late afternoon.

Rob, give our viewers a sense what's happening there. I know you have a question for Chad.

ROB MARCIANO, CNN METEOROLOGIST: First off, I'll ask Chad a couple things. Actually I won't be able to hear the answer. I'll move on. Thanks, Chad.

We're at Atlantic Beach, North Carolina. Just south of Morehead City where we rode out the storm yesterday afternoon. Last night, after we knocked off the air at midnight, it really started ripping through here with north winds, probably the strongest winds we saw all day long were ripping down this pier.

We have huge issues with beach erosion. What's different about this area as compared to the Gulf of Mexico, are the sand dunes that line many of the Outer Bank Islands. Take a look down here. They're pretty big and they protect much of the inland areas. You really need a storm surge, at least right here, 10, 12 feet or more. We didn't get that.

Look at all the sand that was ripped away by the ocean. They have a huge beach restoration program here. Every five years or so they come in and dump a bunch of sand. Every couple of years, a hurricane comes through and rips the sand back. We are at low tide. At one point yesterday afternoon, the waves were crashing right up to here.

So what would they do to a pier that? One of the many piers that line these shores of North Carolina. Well, you can look all the way down past the police yellow tape, which is there. Because at the end of the pier yesterday afternoon around high tide, part of the pier was ripped away by the ocean and floated into the sea. That was quite a sight to see.

One bit of good news, we're hearing from officials that those who feared the flooding they got from Hurricane Isabel two years ago, that's not what they're seeing right now. There was a storm surge within inland, sounds, bays and rivers, but the latest word right now, it's not as damaging as Hurricane Isabel. And that's good news. Wolf, back to you.

BLITZER: All right, thanks very much.

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