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CNN Newsnight Aaron Brown
President Bush Selects John Roberts for Supreme Court
Aired July 19, 2005 - 22:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
AARON BROWN, HOST: Good evening again, everyone.
How nice it must be tonight to be Judge Edith Clement right about now, to have spent the entire day or so in the limelight, to have been considered, with none of the fuss that comes with actually being nominated for the U.S. Supreme Court. No vetting, no attack ads, no Borking, as they say.
After a day of buzz that the president would nominate Judge Clement to replace Sandra Day O'Connor, the president did otherwise. And all else follows from that choice.
John Roberts, a firm conservative with a fairly short paper trail. So who is this man, Judge John Roberts? Where does he stand on the issues central to the country and to the court? Will he be confirmed with ease or with angst or on at all? The last, though, seeming unlikely tonight.
We begin with the "who," as we should, and CNN's John King.
(BEGIN VIDEOTAPE)
JOHN KING, CNN CORRESPONDENT (voice-over): He is both young and conservative, just the man for a president looking to nudge the Supreme Court a bit to the right and to make his mark on the federal judiciary for years to come.
The pick of John G. Roberts was being cheered by conservative groups even before the official White House introduction. And their support will be critical in the tough confirmation battle just ahead.
The president's pick is just 50 years old, a native of Buffalo, New York, a Roman Catholic and for the past two years, a federal appeals judge on the prestigious D.C. Circuit.
Back in 1979, he was managing editor of the "Harvard Law Review" and graduated magna cum laude.
His more recent resume is what makes conservatives happy. A clerk to then associate and now Chief Justice William Rehnquist. A post in the Reagan White House counsel's office. And deputy solicitor general in the first Bush administration.
JOHN ROBERTS, U.S. SUPREME COURT NOMINEE: I always got a lump in my throat when I walked up those marble steps to argue a case before the court. And I don't think it was just from the nerves. KING: His role, arguing abortion cases in that job, is already being cited by abortion rights groups vowing to oppose the Roberts nomination. In one, Roberts argued to the Supreme Court that Roe was wrongly decided and should be overruled.
In his 2000 Senate confirmation hearings for his current job, Judge Roberts gave no indication of his personal opinion on abortion.
ROBERTS: There's no role for advocacy with respect to person beliefs or views on the part of a judge. A judge is bound to follow Supreme Court precedent, whether he agrees with it or disagrees with it.
KING: Also certain to be an issue is his work while in private practice, helping the Bush campaign make its case during the Florida recount battle.
(END VIDEOTAPE)
KING: And Aaron, they like his resume, of course. They like his personal story dating back to his childhood in Buffalo, New York. Most of all, they like the man now.
They know this will be a tough and contentious battle. They believe Judge Roberts has proven in his past confirmation battle and in all his work here in Washington that he can keep his cool in the give and take that is likely to come in those questions over abortion, those questions over gay rights, the questions over all those hot button issues that will face him.
They believe he has the poise and the character, the political standing, if you will, to stand up quite well, to make a good impression, not only on the Senate but on the American people. They think they've got the right man here.
BROWN: I'm sure they do.
I've been struck tonight, just since the announcement or really in the hour before the official announcement, at how it seemed to me the interest groups that have access to our e-mail address, which is all of them, have been sort of going through the motions. I mean, saying everything you expect them to say. And I'm not sure with a whole lot of heart.
KING: That's an excellent point in the sense that many of the liberal groups thought it could be worse, if you will. They're not going to concede that point. Because some of them, we already know the abortion rights groups especially, are going to oppose this nomination. Some of those groups are on record, saying they will urge the Democrats to mount a filibuster. It will be very interesting to see if the Democrats will heed that advice.
The group the White House cares most about is that so-called gang of 14, especially the moderate Democrats among those senators. So far tonight, none are rushing out to say they're going to vote for this guy, but none are rushing out to say they will oppose him either. The White House believes, based on the initial reaction, they think they got off on the right foot tonight.
BROWN: Quickly, what was the vote when he was confirmed for the appeals court?
KING: Well, it was unanimous consent. You bring it before the Senate. There were Democrats who opposed him, but there's not a vote on the record in terms of you can't get a 98-2, or a 51-49. That record doesn't exist. It was brought before the Senate. The committee, there was a vote in the committee that was contentious and divided. But when it got to the floor, it was one of those yeas and nays and it goes through, it's not on the record.
BROWN: I hate that. Thank you, John. John King with us tonight.
We'll revisit the "who" as we go along tonight. A bit now on what's at stake. The notion that both sides on a lot of issues, some kind of tipping point for the court. Whether it is or not may depend, in the long run, on what kind of justice Judge Roberts becomes, if and when he's confirmed. In the short run, it may have as much to do with scheduling: what's on the court's docket in the year ahead.
With that, here's CNN's Candy Crowley.
(BEGIN VIDEOTAPE)
CANDY CROWLEY, CNN CORRESPONDENT (voice-over): Despite the pre- nomination hype and hoopla and no matter what you heard, Roe v. Wade is not on the Supreme Court docket this fall. Ayotte v. Planned Parenthood is, a New Hampshire case dealing with parental notification when a minor plans an abortion.
The right to die is not on the Supreme Court docket this fall. But Gonzales v. Oregon is, a case involving Oregon doctors assisting suicides with federally controlled drugs.
Both cases move around the edges of the most heated issues of our time, life and death. The right to an abortion. The right to die.
Should John Roberts be confirmed, both cases will be watched for what they signal about him and what they bode for the country.
Certainly, Roberts is not what liberals had hoped for. They set Sandra Day O'Connor as the bar, a moderate whose vote was pivotal in an otherwise evenly divided court.
Friends indicate Roberts is a conservative. His contributions indicate he's Republican, but there is little in his two years on the D.C. Court of Appeals that hints at how he would vote on either the Oregon or New Hampshire case.
The paper trail is bits of confetti. A brief Roberts co-authored while serving as deputy solicitor general. "We continue to believe," it reads, "that Roe was wrongly decided and should be overruled." During his confirmation for the D.C. Court of Appeals, Roberts explained those words were that of a lawyer advocating for his client. As for his own position, Roberts said, "Roe v. Wade is the settled law of the land. There's nothing in my personal views that would prevent me from fully and faithfully applying that precedent."
Interesting but not definitive. As an appellate court judge, Roberts' job is to uphold law. The Supreme Court can reconsider law.
(END VIDEOTAPE)
CROWLEY: Tonight, Aaron, even happy conservatives do admit that a conservative judge does not vote the same as a conservative politician. They also note that, at 50 years old, we are looking at a man who could serve 30 years or more on a Supreme Court that could deal with issues that change as rapidly, sometimes, as the state of law does inside the Senate but not on the Supreme Court -- Aaron.
BROWN: Sometimes we talk about conservatives as if it's a monolithic group. There are social conservatives. There are sort of the traditional Republican business conservatives, if you will. Is one side happier than the other? Or are they both pretty happy tonight?
CROWLEY: They're both pretty happy tonight. This is a man that, at least if you -- the problem is, of course, that a lot of what they go on is his record as a lawyer, where he says, "I was advocating for a client." So where does John Roberts start and the client end?
But right now, tonight, both sides seem thrilled, the business conservatives, as well as the social conservatives in the Republican Party.
BROWN: Candy, thank you very much.
Judge Roberts, after a pretty heady day, has headed home, back to his home in Chevy Chase in the Washington area. He arrived there with his wife, and you saw his two young, quite young children. When I saw that picture -- I want to ask Jeff Toobin this -- I wondered if they bought that little suit for the little boy with the occasion, with the shorts and the jacket.
Anyway, they arrived home, the two young kids and wife, 50-year- old Judge Roberts now headed for Senate confirmation hearings. And whatever that entails these days.
Jeff Toobin, our legal analyst, is with us.
Look, there's a number of things. Actually, I think this is a kind of narrow program tonight in some respects, because there's a narrow paper trail, No. 1. But there are some sort of fundamental questions.
And one of them is, the Republicans won the election. This is a consequence of winning an election. This is the guy you pick. I mean, on paper, he's almost exactly what you'd expect, isn't he? JEFF TOOBIN, CNN LEGAL ANALYST: Well, in some respects, he's better than what you'd expect. You know, there's sort of a Mafia of high-powered Supreme Court lawyers in Washington. And John Roberts for the past 10, 15 years has been known as just about the best lawyer in Washington. And that's saying a lot.
It is -- you know, you have to give the president credit for naming someone who has intellectual fire power and smarts and competence that is absolutely beyond question. And you know, that's not nothing.
BROWN: It's interesting to me that there were pressures on the president, I think, to replace Sandra Day O'Connor with a woman. There was, I assume, some pressure, though I'm not sure pressure is the right word, to put a Hispanic for the first time and make some history, putting a Hispanic on the bench.
And instead, he turned to a white male, very solid Republican partisan, first in his class lawyer.
TOOBIN: And you know, that says something about how he believes -- just if he becomes Justice Roberts will rule. He thinks that his rulings will be his legacy, not his person. There's nothing distinguished or unusual about the kind of person that John Roberts is, as Supreme Court justices go. But this is apparently an attempt by the president to say, "I want a legal legacy on this court. And John Roberts is the person who's going to give it to me."
BROWN: Everybody's going to talk about Roe v. Wade and the brief he wrote on Roe v. Wade. It's coming up. It struck me that there are actually three positions for a judge on Roe v. Wade, if you want.
There is, "I support it." I thought it was wrongly decided. And then there is another position which is, "Hey, it is settled law. It is precedent. I have respect for precedent," which is what I heard him say.
TOOBIN: Well, I'm not sure. That's what he said, because "I'm an appeals court judge, where I am bound to follow it." It's very different when you're on the Supreme Court.
He's going to have to, you know, tailor that answer to his new assignment. You know, Justice Kennedy, Justice Souter and Justice O'Connor wrote a famous opinion together in the Casey case in 1992 that said, "We believe the precedent of Roe should be honored."
The real question is, where does John Roberts stand on that? And that, I don't think we have a clue about now.
BROWN: I'll bring Cliff Sloan into this. Mr. Sloan was a clerk for Justice John Paul Stevens, a classmate of Jeffrey Toobin's. One of those is really important. A White House counsel in the Clinton administration. Helped manage the confirmation of Justice Stephen Breyer. And he's currently general counsel for the WashingtonPost.com.
And after that introduction, we're probably out of time.
Cliff, good to see you. Have they vetted him to the point where they know there's no Ginsburg problem?
CLIFF SLOAN, GENERAL COUNSEL, WASHINGTONPOST.COM: Well, they have vetted him as extensively as they possibly can. They have turned over every rock.
But you know, I have to tell you, every Supreme Court nomination, even ones that seem very uncontroversial, are about as intense as you can possibly imagine and surprises sometimes happen.
As you mention, I headed Justice Breyer's confirmation team, the last Supreme Court nomination process that we had. Everybody points to that now as a very smooth process, and it did go smoothly. And he was overwhelmingly approved.
But I have to tell you for the 45 days or so between the time of the nomination, like tonight, and the time that he was confirmed by the Senate, it was incredibly intense. You have somebody's announced. It's the culmination of their legal career, and all of a sudden they have a huge bull's-eye on them. And every day, there are charges, there are potential stories, and there's an onslaught.
And the White House knows that, and the vetting, it does the best it can. But we are -- even with the non-controversial nomination, if that's what this turns out to be, we are in for quite a ride with the confirmation process.
BROWN: Just in that, just continue on in that nor a second. I assume the people around the justice are all pretty crazy in moments like this, as minions tend to be. Was Justice Breyer crazy in all of this, or was he pretty settled?
SLOAN: Well, he was -- you know, I think he was fairly settled. He understood the process. Remember, he had worked for the Senate Judiciary Committee, so he was very familiar with the Senate as an institution.
But I have to tell you, you know, he had been a judge on the First Circuit for a much longer time than John Roberts was a judge on the D.C. Circuit. And it is -- there is no process like it. So as settled as you are, as calm as you are, for the individual in the eye of the storm, it is quite a storm.
BROWN: Just as quickly as you can, have you heard anything that says to you, barring the big surprise -- we don't know what that might be, that's why we call it a surprise -- this will not eventually clear the Senate?
SLOAN: I think President Bush has succeeded in threading the needle, unless there's something new that comes out. Because John Roberts has three things that are going to be tremendous protection and tremendous shields for him.
He's got outstanding legal credentials. He's got a very short paper trail. And this is very important: he's a very affable guy. He has a very winning personality. I think he's going to go over very well in the hearings.
BROWN: All right, Cliff, good to see you. Jeff, thank you.
TOOBIN: Plus, cute kids.
BROWN: Yes, I was going to say, kids can't get cuter than that. That's hard to beat. Can't be too tough on him.
Thank you both. It's good to see you both.
In a moment, battle or not to come, getting Judge Roberts through the Senate, political considerations along the way, it is a political process.
First, though, at about a quarter past the hour, actually, a little early tonight.
ERICA HILL, HEADLINE NEWS: Early tonight.
BROWN: But we have much to do. Erica Hill joins us with the other news of the day.
HILL: We'll take you early so you can get back to Supreme Court stuff.
BROWN: Thank you.
HILL: We'll start up now with Hurricane Emily gathering strength again, headed toward northern Mexico and southern Texas. Emily's already packing winds of 125 miles an hour and may actually be a Category 4 hurricane with winds above 130 miles an hour before it makes landfall early Wednesday. Hurricane warnings already stretch from La Cruz, Mexico, up to Port Mansfield, Texas.
In London, police sending dogs into the Underground now to suck -- sniff, rather, the subways for possible bombs. One of the bombed subway cars is actually coming up out of the tunnel for further investigation. Seven of the 56 people killed died in the explosion near the Edgware Road Station.
Meantime, British Prime Minister Tony Blair met with two dozen Muslim leaders today, appealing for help in combating what he called the twisted logic of terrorism.
Put up or shut up. That's what Jose Padilla's lawyer says the government ought to do. He appeared before a federal appeals court today, asking if the government either charge his client, the alleged al Qaeda dirty bomb plotter, or set him free. Padilla's been held without charges since 2002 as a so-called enemy combatant.
And here's a little payback for you. Remember that foul-up that left millions of credit card accounts vulnerable to hackers? Well, today, we learned Visa and American Express have decided to end their ties with Card Systems Solutions, the company responsible. And Aaron, that's the latest right now. We'll hand it back over to you.
BROWN: My goodness, Erica, consequences to messing up.
HILL: Imagine that.
BROWN: I'll keep that in mind.
Thank you, Ms. Hill. See you in a half an hour.
More ahead on the president's Supreme Court nomination, starting with this.
(BEGIN VIDEOTAPE)
UNIDENTIFIED MALE: The people have lined up on both sides and about to do war with one another. That's why we need to find some sort of a peace agreement here.
BROWN (voice-over): And so two months ago, the senators did.
SEN. BILL FRIST (R-TN), MAJORITY LEADER: With this agreement, all options remain on the table, including the constitutional option.
BROWN: But will the deal on judicial nominees hold? Could a filibuster still happen?
SEN. ARLEN SPECTER (R-PA), CHAIRMAN, JUDICIARY COMMITTEE: Americans are concerned about having somebody who's too far one side or too far to the other side. And the balance is critical.
BROWN: So where does Judge Roberts fit in? How would he shift the balance in the U.S. Supreme Court?
SEN. EDWARD KENNEDY (D), MASSACHUSETTS: In Robert Bork's America, there is no room at the inn for blacks and no place in the Constitution for women. And in our America, there should be no seat on the Supreme Court for Robert Bork.
BROWN: That speech helped derail a Supreme Court nomination 18 years ago.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: I have found such a person in Judge John Roberts. And tonight I'm honored to announce that I am nominating him to serve as associate justice of the Supreme Court.
BROWN: This time around, what attacks if any, await the new nominee?
BUSH: Congratulations.
From New York, far from the spin cycle and the attacks, this is NEWSNIGHT.
(END VIDEOTAPE)
(COMMERCIAL BREAK)
(BEGIN VIDEO CLIP)
ROBERTS: Before I became a judge, my law practice consisted largely of arguing cases before the court. That experience left me with a profound appreciation for the role of the court in our constitutional democracy and a deep regard for the court as an institution.
(END VIDEO CLIP)
BROWN: Along with his solid Republican credentials and his solid legal credentials, Judge Roberts has solid -- solid credentials as a lightning rod for controversy and not an easy nomination.
Senate Democrats delayed his confirmation at the Washington circuit court of appeals for two years, from 2001 to '03, partly because Judge Roberts argued against Roe v. Wade in a legal brief. He never even got to vote -- got a vote when the first President Bush nominated him to the same circuit court seat in '92.
Jeff Greenfield with us tonight to take a look at the strategy of the selection.
Good evening.
JEFF GREENFIELD, CNN POLITICAL ANALYST: Good evening.
The president had a number of choices. He could have gone for a legacy naming the first Hispanic. He could have done what his wife apparently wanted him to do and made sure it was another woman.
Or he could have done what he's done ever since he became the Republican nominee and basically said, as doctors say, the Hippocratic Oath, first do no harm to your conservative base.
This was a -- this was a pick which told conservatives, "I remember what my father did with Souter. We vetted this guy. He's a solid conservative."
But he's not the kind of polarizing red flag kind of nominee that a Judge Bork was, that, say, a Priscilla Owen would have been. There are a couple of others you can imagine. Janice Rogers Brown. He doesn't have that kind of trail where people say, "My God, this fellow is a radical conservative."
BROWN: Do we know, even within -- we were talking with Candy about this -- even within conservatives, do we know what kind of conservative he is? Is he -- do we know if there's a term, a political legal term of art, Constitution in exile conservative, they're really conservative activists: a Thomas, a Scalia conservative?
GREENFIELD: There is no paper trail. There are no speeches that we know about, or articles where he has written the way Janice Rogers Brown, the new court of appeals judge, that the New Deal when the court validated the New Deal, it was the triumph of the socialist revolution. Nothing like that.
Nothing -- nothing where he says it is up to judges to actively rise up and knock down all these federal laws that exceed what the government should do. Nothing like that. No.
BROWN: Is this a nomination that the Republicans can argue and the president can argue, this is exactly what people voted for in November? We won the election, and this is exactly the sort of guy we promised?
GREENFIELD: Yes. And that's the policy. Back after the 2000 election, a well-known liberal academic, Bruce Ackerman, at Yale argued that the Senate should confirm no Supreme Court judges because Bush really wasn't elected president, in effect. Let's wait until 2004 to see what the country really wants.
Well, they re-elected Bush. And this time there was no debate. So you've got 55 Republicans in the Senate. You've got a president who is this time elected. It's very hard, it seems to me, to say you should filibuster a nominee, absent something we don't yet know.
BROWN: And just because you have to ask everyone tonight a Roe v. Wade question...
GREENFIELD: Yes.
BROWN: ... what's your take on it? He writes this brief on Roe v. Wade. Obviously, Roe v. Wade is the huge battleground issue.
GREENFIELD: Yes, it is.
BROWN: Where are we going?
GREENFIELD: First of all, at some point we will remind ourselves the Supreme Court is not the abortion court.
BROWN: Yes.
GREENFIELD: There are really significant things about federal/state power that are at stake.
However, neither the brief he wrote for the first Bush administration, nor his statement that you saw a few moments ago that Roe is settled law, tell you anything.
Because he wrote the brief as a deputy solicitor general for a client, namely the president. But as Jeffrey Toobin told you, when you go before the Senate as a lower court judge, you darn well better say that what the Supreme Court has said is settled law. That's a really radical thing, if you come in and say, "Well, I know what the Supreme Court said, and I'm going on the court of appeals, and I don't agree." No. But when you become a Supreme Court justice, you get to say, in effect, what the Constitution is. Now, I mean, that's a flip way of putting it, but you get four other people who agree with you on that court, and that's what the law is.
We do not know what John Roberts thinks one way or the other. You can't tell from the brief, and you can't tell from what he said in the Senate.
BROWN: Because I'm asking everyone, does he get confirmed?
GREENFIELD: If you can tell...
BROWN: Barring the big surprise?
GREENFIELD: Barring the big surprise, yes.
BROWN: Thank you. Jeff Greenfield tonight.
Neither Barbara Comstock nor Ralph Neas are shy about what they believe in, and they do have the paper trail to show it. Ms. Comstock is a strategic adviser to Progress for America. Mr. Neas is president of People for the American Way. We're glad to see them both.
RALPH NEAS, PRESIDENT, PEOPLE FOR THE AMERICAN WAY: Thank you.
BROWN: Ralph, in some ways is Judge Roberts your worst nightmare? Not a lot of paper trail, quite an affable fellow, certainly has the legal credentials, tough to attack?
NEAS: Aaron, we were hoping that the president was going to nominate someone in the mold of Sandra Day O'Connor, a mainstream conservative. I was hoping and praying that the Democratic leader and the Republican leader were going to be up there with the president and with the nominee. That did not happen.
There are lots of questions about John Roberts. Why does the radical right consider him to be one of their favorites, along with Antonin Scalia, Robert Bork, and Clarence Thomas? We've got to figure out the answers to the questions with respect to a range of issues.
Is he more in the mold of O'Connor? Is he more in the mold of Scalia and Thomas? If he's in the mold of Scalia and Thomas, their judicial philosophy would overturn more than 100 Supreme Court precedents going back to the mid-1930s.
BROWN: Ralph, let me interrupt you. Barbara's sitting over there shaking her head and smiling like, what are you talking about?
BARBARA COMSTOCK, STRATEGIC ADVISER, PROGRESS FOR AMERICA: There they go again.
BROWN: There they go again. What's the problem you've got?
NEAS: With the truth.
BROWN: Barbara, what's the problem you've got here?
COMSTOCK: The president made an excellent choice this evening. And he consulted with 70 senators.
You've already had senators like Joseph Lieberman last week who said Judge Roberts would be the type of candidate who could be a consensus candidate, who's in the mainstream, and he clearly is.
This is somebody with superb credentials. He has argued 39 Supreme Court cases. He was praised when he was nominated to the circuit court. A hundred and fifty legal scholars and lawyers around the country, including Bill Clinton's counsel Lloyd Cutler, Bill Clinton's solicitor general, Walter Dellinger and Seth Waxman. These are leading Democratic lawyers who praised John Roberts as one of the legal leading scholars.
And that is why I believe you've already seen, really, an outpouring of consensus, support for him. Because he is a good consensus mainstream candidate who will look to the law, to you know, interpret the law, not to make it up from the bench, as the president said.
BROWN: Ralph, I said earlier tonight that in looking through the e-mails that had come in from the interest groups, I had a feeling that everybody was going through the motions. Everybody was saying what the script requires them to say. But no one had a lot of heart in it. That there will be a fight, but it's really not going to be a fight to the death. That this isn't that sort of nomination.
NEAS: Aaron, we certainly -- I shared our concerns. And all the questions that have been raised by his record at the Department of Justice and as a circuit court judge.
But I think it's really important to note here, with all due respect to advocacy organizations, every judicial nomination, executive branch nomination, is decided by a set of hearings. In this particular case, the hearings will be more important than ever.
And will John Roberts be willing to share his judicial philosophy, answer specific questions regarding his judicial philosophy, share his public record, but also perhaps what he wrote when he was at the Department of Justice, as other nominees for the Supreme Court and high office have done in the past?
The hearings will be absolutely key. And the American people and the Senate, all of us deserve answers to those questions before there's a confirmation vote.
COMSTOCK: And I should remind...
BROWN: Twenty seconds here, OK?
COMSTOCK: I should remind your audience that in previous hearings, like for example David Souter, who's one of the most liberal members of the Supreme Court, Ralph Neas and a lot of his friends went up there. They had reams and reams of paper attacking and, you know, the sky is falling, making many of the same type of claims you made here.
The hearings will be important. And I think you'll see the same kind of justice. That he was unanimously supported when he was voted as a circuit court judge. It was a voice vote; nobody opposed him. In the committee hearing, it was 16-3.
So this is the kind of consensus, mainstream candidate that the Democrats, all these 70 senators that were consulted, they asked for this and they got an excellent candidate that I think they will be very proud of.
And I would like to congratulate Judge Roberts and the charming, darling children who were so well behaved late in the evening and looked so darling, and his family was just wonderful. And I really think the president has just hit a great home run here tonight.
BROWN: Barbara, I'm shocked to hear you say that, I really am. Thank you.
Ralph, thank you very much for joining us.
NEAS: You're very welcome.
BROWN: Good to have you both with us tonight.
Coming up on the program, the nominee and the reaction so far on the Hill tonight, whether it will stand between him and a seat on the bench. How people are framing the arguments.
Take a break first. From New York and around the world, this is NEWSNIGHT.
(COMMERCIAL BREAK)
BROWN: It's the U.S. Supreme Court building in Washington tonight. I expect a hot and steamy night, and I suspect there'll be some hot and, well I don't know steamy, but hot hearings to come over Judge Roberts nomination. It's been a fascinating day in Washington. Lots of rumors, lots of buzz about who would get the nomination and how it would play out. Suzanne Malveaux has covered the White House and covered the story for us all day long.
(BEGIN VIDEOTAPE)
SUZANNE MALVEAUX, CNN WHITE HOUSE CORRESPONDENT (voice over): It's a choice that will affect the laws of the nation for years to come. And a critical one for the president's legacy.
GORGE W. BUSH, PRESIDENT OF THE UNITED STATES OF AMERICA: I look forward to the Senate voting to confirm Judge John Roberts as the 109th Justice of the Supreme Court of the United States.
MALVEAUX: Judge John Roberts from the U.S. Court of Appeals for the D.C. Circuit is President Bush's first choice to sit on the high court. And the first nominee in 11 years. He is considered a solid conservative and if confirmed will replace the court's moderate swing vote, retiring Justice Sandra Day O'Connor.
JUDGE JOHN ROBERTS, SUPREME COURT NOMINEE: My law practice consisted largely of arguing cases before the court. That experience left me with a profound appreciation for the role of the court in our constitutional democracy and a deep regard for the court as an institution.
MALVEAUX: Throughout the process, Mr. Bush stated that a qualified candidate would share his beliefs, would not legislate from the bench, and would have conservative credentials.
BUSH: He has a good heart. He has the qualities Americans expect in a judge. Experience, wisdom, fairness, and civility. He will strictly apply the Constitution and laws, not legislate from the bench.
MALVEAUX: According to White House officials, Mr. Bush began the process with a list of 11 candidates and interviewed five in person, in addition to those he already knew. The meeting with Roberts occurred in the White House residence on Friday after his trip to North Carolina. Sources describe the hour or so of interaction between the judge and the president as casual. By Monday night, the president had essentially made the decision, but nothing was finalized until Tuesday morning.
It was during lunch with the Australian prime minister when the president stepped away to call Judge Roberts and offer him the nomination.
(END VIDEOTAPE)
MALVEAUX: The president and the first lady also, of course, shared dinner with Judge Roberts and his wife at the White House. Then the president followed up by alerting the Senate leadership about his choice, urging them for a dignified confirmation process. We'll all wait and see how that goes, huh, Aaron?
BROWN: Well I hope it's dignified, we could use a little dignity in the country these days. Thank you, Suzanne, it's been a long day for you.
It's impossible to know big a fight if any the new nominee will face in the Senate. But if early reaction is an indicator, it is unlikely there will be any Borking in the weeks ahead. From the hill tonight, CNN's Ed Henry.
(BEGIN VIDEOTAPE)
ED HENRY, CNN CORRESPONDENT (voice over): The one cautious praise from the Senate Judiciary Chairman, who's considered more moderate than the nominee.
SEN. ARLEN SPECTER (R-PA), JUDICIARY CHAIRMAN: It would be hard to find someone with better credentials than Judge Roberts. When you ask a question about whether it's a safe nomination, I don't know that anything in Washington, D.C. is safe. If it's a nomination. But we will listen to him in great detail, but when you review his resume, not many around. I don't know that there's one in the Senate that can match it.
HENRY: Top Democrats who voted against Roberts for a lower court nomination seem to be keeping their powder dry.
SEN. CHARLES SCHUMER (D), NEW YORK: But with some nominees you might have said, well, there's a darn good shot that's going to be a consensus nominee. With others you'd say, there's a darn good shot it's not going to be a consensus nominee. He's in the middle.
HENRY: Still, Democrats said they want Roberts, who could be a pivotal vote on key social issues, to answer tough questions about his views.
SEN. PATRICK LEAHY (D), VERMONT: No one is entitled to a free pass to a lifetime appointment to the Supreme Court. Someone confirmed today can be expected to serve on the court until the year 2030, or later.
HENRY: But leading conservatives believe Roberts will win easy confirmation.
SEN. JEFF SESSIONS (D), ALABAMA: He was one of the most fabulous witnesses we've ever seen before the judiciary committee. He's argued 39 cases before the U.S. Supreme Court. Virtually no lawyer in America, only a handful or whatever, have argued that many.
(END VIDEOTAPE)
HENRY: But Senator Specter, who's been involved in nine Supreme Court nomination battles says most of them were dominated by surprises. He calls them rock 'em, sock 'em affairs. He expects this one to be no different -- Aaron.
BROWN: When does it start?
HENRY: Well the bottom line is, this now gives the Senate Judiciary Committee and the FBI the entire month of August to do a background search. We expect the actual hearings to start right after Labor Day, first week of September, a Senate floor debate in mid to late September. And they hope to get him confirmed by the first Monday in October.
BROWN: Ed, thank you very much. Ed Henry on the Hill, tonight. Still to come on the program Judge Roberts and the question of public opinion. What do people want from the court. We'll take a break first. This is NEWSNIGHT on CNN.
(COMMERCIAL BREAK)
BROWN: If confirmed, John Roberts may well be a critical vote -- well, he's certainly be a critical vote on a number of issues facing the court. We're joined tonight by Andrew Breitbart, a longtime "Drudge Report" contributor. He also helped launch huffingtonpost.com and will soon be launching his own Web site and blog, as will everyone else in the country.
Kevin Russell is a partner at Goldstein and Howell, a law firm that specializes in Supreme Court litigation and a contributor to scotusblog.com.
Amy Goodman, host, executive producer of "Democracy Now," a daily public radio and TV news hour on Pacifica Radio and PBS. We're glad to see all of you.
If you could know, Ms. Goodman, one thing about this nominee, one thing, what would it be?
AMY GOODMAN, PACIFICA RADIO: Well, I do know two things. One is he ruled for the military tribunals, a big victory for the Bush administration last Friday. And the other is co-writing the brief under Kenneth Starr, the solicitor general.
BROWN: But what does that really tell you, though? He had a client. He made an argument for his client.
GOODMAN: Well, made a very strong argument. Not only...
BROWN: That's his job as a lawyer.
GOODMAN: ... saying that doctors can't advise patients that they can have abortions, but also that there is not a constitutional right to abortion. That's very serious. And when he was asked about it, because Kenneth Starr was out, John Roberts, I'm reading the quote, said "we'll let the brief speak for itself. We'll let the court reach its own conclusions," that is to overturn Roe v. Wade.
BROWN: Right. But just to be clear, that was not a decision he made from the bench; it was a brief he wrote in support of a position his client, the president of the United States at the time, took.
Andrew, if you could know one thing right now, what would it be?
ANDREW BREITBART, FORMER DRUDGEREPORT.COM CONTRIBUTOR: I would like to know if DailyKos and the HuffingtonPost and other progressive Web sites, which are waging battle against Karl Rove, can handle two domestic battles at the same time.
BROWN: Really? That's -- because you're that confident that this guy, that you know everything you need to know about this guy, that you don't need to know any more about him?
BREITBART: Well, I had Googled...
BROWN: Let me push you differently, then. Would you have been more comfortable with a Janice Rogers?
BREITBART: Oh, absolutely, because I would have liked to have watched liberal Democrats take on another black conservative again the second time in a row, and to show that a lot of the assumptions about race in America are not right.
BROWN: That's interesting, because that has in a sense almost nothing to do with ideology and a lot to do with politics.
Kevin, what do you want to know about Judge Roberts?
KEVIN RUSSELL, CONTRIBUTOR, SCOTUSBLOG.COM: I think I'd be most interested in knowing kind of how strongly he views the court's obligation to continue to apply its prior precedents. He's going to have the opportunity in a number of cases coming up very early to join people on the court who have expressed quite a bit of dissatisfaction with many of the court's prior very important precedents.
BROWN: What are those cases?
RUSSELL: Well, one very early coming up will be the parental notification statute that's challenged as not having an exception.
BROWN: New Hampshire?
RUSSELL: Exactly. And the question will be in that case, will he continue to follow the very recent decision, Stenberg, where the Supreme Court held that a similar law was unconstitutional because it didn't have an exception for the health of the mother?
BROWN: All right, Amy, we tend to look at abortion as Roe v. Wade and nothing else, but in fact, there are -- there is nuance to all of this. And the health/life exception, whether you're talking about the battle over late-term abortion or what opponents call partial birth abortion, or parental notification and so on, is abortion the -- in all its forms, the linchpin for the left here?
GOODMAN: Oh, I think there are a number of issues. But you do make a critical point. They don't have to overturn Roe v. Wade to make it very difficult for women to get abortion on all these other issues, like the Planned Parenthood case that will be heard in New Hampshire around parental notification.
But military tribunals, this is a very key issue. The whole way that the Bush administration is holding prisoners and the idea that the Geneva Conventions don't apply. This is also a very critical issue. And John Roberts actually has taken a position on it.
BROWN: Seriously, you think out in Nebraska tonight, mainstream America, is all that concerned about the enemy combatants rulings?
GOODMAN: I think what matters is the decisions of the Supreme Court. And it's very difficult for people to make decisions in this country when the media doesn't cover them extensively, really show us what is going on. And I think what's most dangerous about those kind of cases, the military tribunals, is one that many people in this country identify with: What will happen to U.S. soldiers who are caught in other places in the world? That's the precedent that is being set at Guantanamo.
BROWN: No, very possibly, and it's a fair point. We don't talk about that enough, that that's the reason that argument is important beyond the pure morals of it. Andrew, let me give you the last word. Did the president of the United States please his base tonight in a way that you expected? And that after all, you guys won the election, is this the reward?
BREITBART: Well, I think that conservatives would have been happier with Brown or Luttig, but I think that this is -- this is -- reminds me of what David Brooks talked about in a column in "The New York Times," in which he wanted Bush to pick somebody who's smart, somebody who's a great legal scholar. And I think that people are happy with that decision.
BROWN: And it will be interesting to see how it plays out. It's always good to see all of you. Thanks for joining us tonight.
In a moment, Bill Schneider, the court, and the polling numbers. Because you've got to do that too. We take a break first. This is NEWSNIGHT on CNN.
(COMMERCIAL BREAK)
BROWN: Supreme Court justices get to serve for life. But just like prime-time television programs, first impressions count, and the opening minutes of the campaign can be critical for the nominee, for who support the nomination, and of course for those on oppose it. CNN's political analyst Bill Schneider joins us now with a look at what Americans want from a justice on the court.
BILL SCHNEIDER, CNN SR. POLITICAL ANALYST: Well, Aaron, we don't have any polling, because people don't know a thing about Judge Roberts yet.
But something else is going on. Remember, 30 minutes after President Ronald Reagan nominated Robert Bork to the Supreme Court in 1987, Senator Edward Kennedy went on the Senate floor to deliver a devastating depiction of Robert Bork's America. He called it "a land in which women would be forced to back-alley abortions and blacks would sit at segregated lunch counters." Very few Americans then knew anything about Bork. So Kennedy defined him, and it worked. Bork's nomination was defeated.
Very few Americans know anything about John Roberts, President Bush's nominee. But both sides learned something from the Bush experience. You have to define the nominee within hours. First impressions matter.
So both liberals and conservatives are right now rallying their forces with e-mails and TV ads and telephone banks and war rooms, all aimed at defining Roberts on their terms.
You know, the messages started coming out before the president even went on TV to introduce Roberts tonight, as soon as his name got out. The liberal People for the American Way issued a statement that said quote, "The president did not choose a consensus nominee in the mold of Sandra Day O'Connor. John Roberts' record raises serious concerns as well as questions about where he stands on crucial legal and constitutional issues." The conservative Committee for Justice quotes a nonpartisan magazine, "National Journal," which said, "John Roberts seems a good bet to be the kind of judge we should all want to have -- all of us, that is, who are looking less for congenial ideologues than for professionals committed to the impartial application of the law."
All those and dozens more cursing through the Internet and the air waves and the cell phones and the telephones right now. Because like your mother told you, Aaron, you never get a second chance to make a first impression.
BROWN: She still tells me that. Let me just throw one kind of perhaps odd thing into the mix. And that is, and I have no quarrel with the notion that first impression matters a lot here in what's going on matters a lot, but Judge Bork, in a sense, was like sent by central casting to play the role of the stern character. He fit perfectly in some respects with the way they were trying -- the left was trying to cast him. Here you have a guy who comes across as kind of casual and affable and smart and not particularly haughty, and that's going to serve him well, I would think.
SCHNEIDER: Well I would think so too, but of course he hasn't really come across yet. And Bork hadn't really made an impression when Kennedy went out and defined him. It turned out that he filled the role Kennedy described because Robert Bork was kind of scary.
Now, as you say, this guy, John Roberts, doesn't look very scary, he doesn't seem terribly doctrinaire, it was a very shrewd choice on President Bush's part, because he doesn't have a long paper trail.
BROWN: Bill, thank you very much. Bill Schneider in Washington, tonight. Top of the hour, special edition of "ANDERSON COOPER 360." Special, in part, because Anderson isn't here today. Heidi Collins is, and she joins us with a look at what's coming up.
HEIDI COLLINS, CNN HOST: Thanks, Aaron, thanks so much. We're going to be on in about ten minutes or so. Let the questions begin, right? In fact, now that President Bush has named his Supreme Court nominee, Judge John Roberts' record, his politics, his life will all be under very close scrutiny. So we're going to try to answer three questions. Who is he? What's his stance on abortion? And can he be confirmed? -- Aaron.
BROWN: That'll take you an hour, I would think, to get through all those questions, which is a good thing.
COLLINS: Yes. We're going to talk fast.
BROWN: You can imagine the lead in most papers, we'll fill in the blanks for you. Morning papers after the break.
(COMMERCIAL BREAK)
BROWN: Quick check of morning papers. Less than a minute, OK? Count this in your head. Where else would you count it? The "International Herald Tribune," Draft Iraqi Charter Backs Islamic Law, Setback for Women's Rights Feared. They've got a lot of work to do over there, my friends.
"The Cincinnati Enquirer," "Bush Nominates a D.C. Insider." Wait I need to cover that picture over there. "Bush Nominates D.C. Insider, Roberts Familiar with High Court" is the headline.
"The Oregonian" leads with Supreme Court, of course you would too, Bush Picks Bench Newcomer to Fill Supreme Court Seat.
And one more, "The Dallas Morning News," "Appeals Court Judge Gets Bush Nomination." The weather in Chicago tomorrow is a bruiser.
(COMMERCIAL BREAK)
BROWN: A lot of blanks going to get filled in on Judge Roberts over the next 24 hours or so. We'll have that for you tomorrow. Up next, a special edition of "ANDERSON COOPER 360," Heidi Collins is place and ready to go -- Ms. Collins.
COLLINS: Thank you, Mr. Aaron, appreciate that.
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