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CNN Larry King Live
President Bush Nominates Judge John G. Roberts to Supreme Court
Aired July 19, 2005 - 21:00 ET
THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
LARRY KING, HOST: Good evening. In just a few moments, President Bush will officially name Federal Appeals Court judge John Roberts as his pick to succeed Sandra Day O'Connor on the Supreme Court. The question now, how will this confirmation process go. The president's nomination, his first to the court, is a big deal. It's likely to have a major impact on important facets of American life for decades to come. We'll have a major panel discussion following the speech. They'll also be comments by Senator Pat Leahy from Vermont following the speech as well. We want to get a quick comment from Jeffrey Toobin. Are you surprised at John Roberts?
JEFFREY TOOBIN, CNN SR. LEGAL ANALYST: Not really. He's been on all the lists, he hasn't been at the top of all the lists. But he's certainly been a candidate that's been under consideration. And he's a very strong candidate.
KING: Would you bet that he'll be confirmed?
TOOBIN: I certainly would.
KING: What would be the main argument against?
TOOBIN: That he signed a brief where he urged Roe v Wade to be overturned when he worked in the Solicitor General's office. That's going to be the biggest argument against him. It's going to be tough to make that stick because he was representing a client who wanted Roe V Wade overturned, not advocating that himself.
KING: Can you be publicly opposed to Roe Wade and be confirmed?
TOOBIN: In the old days when the Democrats had the Senate, it certainly was the case, it seemed no, you couldn't be confirmed. Now with 55 Republicans in the Senate, you probably could be confirmed if you were on the record, opposing Roe, but he probably won't take that chance. And he'll not answer the question.
KING: The president and the attorney general nominee or, rather, the Supreme Court nominee, approach the podium. That is John Roberts on the left the president of the United States on the right. The president will speak and so will Judge Roberts. Here is the president.
GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: Good evening.
One of the most consequential decisions a president makes is his appointment of a justice to the Supreme Court.
When a president chooses a justice, he's placing in human hands the authority and majesty of the law.
The decisions of the Supreme Court affect the life of every American.
And so a nominee to that court must be a person of superb credentials and the highest integrity, a person who will faithfully apply the Constitution and keep our founding promise of equal justice under law.
I have found such a person in Judge John Roberts.
And tonight I am honored to announce that I am nominating him to serve as associate justice of the Supreme Court.
John Roberts currently serves on one of the most influential courts in the nation, the United States Court of Appeals for the District of Columbia Circuit.
Before he was a respected judge, he was known as one of the most distinguished and talented attorneys in America.
John Roberts has devoted his entire professional life to the cause of justice and is widely admired for his intellect, his sound judgment and personal decency.
Judge Roberts was born in Buffalo and grew up in Indiana.
In high school, he captained his football team, and he worked summers in a steel mill to help pay his way through college.
He's an honors graduate of both Harvard College and Harvard Law School.
In his career he has served as a law clerk to Justice William Rehnquist, as an associate counsel to President Ronald Reagan and as the principal deputy solicitor general in the Department of Justice.
In public service and in private practice, he has argued 39 cases before the Supreme Court and earned a reputation as one of the best legal minds of his generation.
Judge Roberts has earned the respect of people from both political parties.
After he was nominated for the Court of Appeals in 2001, a bipartisan group of more than 150 lawyers sent a letter to the Senate Judiciary Committee.
They wrote, "Although as individuals we reflect a wide spectrum of political party affiliation and ideology, we are united in our belief that John Roberts will be an outstanding Federal Court of Appeals judge and should be confirmed by the United States Senate." The signers of this letter included a former counsel to a Republican president, a former counsel to two Democratic presidents and former high-ranking Justice Department officials of both parties.
My decision to nominate Judge Roberts to the Supreme Court came after a thorough and deliberative process.
My staff and I consulted with more than 70 members of the United States Senate. I received good advice from both Republicans and Democrats. I appreciate the care they took. I'm grateful for their advice.
I reviewed the credentials of many well-qualified men and women. I met personally with a number of potential nominees.
In my meetings with Judge Roberts, I have been deeply impressed.
He's a man of extraordinary accomplishment and ability. He has a good heart. He has the qualities Americans expect in a judge: experience, wisdom, fairness and civility.
He has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution in laws, not legislate from the bench.
He is also a man of character who loves his country and his family. I'm pleased that his wife, Jane, and his two beautiful children, Jack and Josie, could be with us tonight.
Judge Roberts has served his fellow citizens well. And he is prepared for even greater service.
Under the Constitution, Judge Roberts now goes before the United States Senate for confirmation.
I've recently spoken with leaders, Senator Frist and Senator Reid, and with senior members of the Judiciary Committee, Chairman Specter and Senator Leahy.
These senators share my goal of a dignified confirmation process that is conducted with fairness and civility.
The appointments of the two most recent justices to the Supreme Court prove that this confirmation can be done in a timely manner.
So I have full confidence that the Senate will rise to the occasion and act promptly on this nomination.
It is important that the newest justice be on the bench when the Supreme Court reconvenes in October.
I believe that Democrats and Republicans alike will see the strong qualifications of this fine judge, as they did when they confirmed him by unanimous consent to the judicial seat he now holds.
I look forward to the Senate voting to confirm Judge John Roberts as the 109th justice of the Supreme Court of the United States.
Judge Roberts, thank you for agreeing to serve, and congratulations.
JOHN G. ROBERTS, SUPREME COURT NOMINEE: Thank you, Mr. President. Thank you.
Thank you very much. It is both an honor and very humbling to be nominated to serve on the Supreme Court. 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.
I always got a lump in my throat whenever I walked up those marble steps to argue a case before the court, and I don't think it was just from the nerves.
I am very grateful for the confidence the president has shown in nominating me, and I look forward to the next step in the process before the United States Senate.
It's also appropriate for me to acknowledge that I would not be standing here today if it were not for the sacrifice and help of my parents, Jack and Rosemary Roberts; my three sisters, Cathy, Peggy and Barbara; and of course my wife, Jane.
And I also want to acknowledge my children, my daughter Josie, my son Jack, who remind me every day why it's so important for us to work to preserve the institutions of our democracy.
Thank you again very much.
BUSH: Thank you, Judge.
ROBERTS: Thank you.
KING: So there you have it, the official announcement from the president, the statement of acceptance and the humble statement of the Judge John Roberts. We expect Senator Patrick Leahy to have a few words to say to the nation, the senator who, the president says, he met with before this announcement. Let's go to Wolf Blitzer in Los Angeles. Wolf, your reaction?
WOLF BLITZER, CNN ANCHOR: I think that, Larry, as someone who grew up in Buffalo, New York, I can of course appreciate the fact the president went to my old hometown to get someone. But my suspicion is that he, barring something we don't know or some gaff he makes during the confirmation process, the hearings before the Senate Judiciary Committee, he's probably going to get confirmed, because he's pretty well known in the legal establishment in Washington. He has got plenty of friends here, and even though he does have those rock solid conservative credentials, Larry, he's pretty highly respected by a lot of Democrats. So, I think the president made a politically savvy move. KING: Candy Crowley is probably the best of the correspondents to cover the Hill. What's going to be the reaction there in the Senate, Candy?
CANDY CROWLEY, CNN SR. POLITICAL CORRESPONDENT: I think you'll see cautious reaction to begin with. I mean the next phase here is that he will go up to Capitol Hill. He will meet in the offices of the important senators and even some of the not-so-important senators.
I thought, Larry, looking at this tonight, that they planned this very well. Prime-time -- there is no one out here whose voice speaks any louder at this point than Judge Roberts and the president. They are getting a clear shot at this.
Here is this guy that, you know, looks like Dudley Do-Right. He's there with his wife and his family. I think they packaged this very well. I agree with Wolf. You know, we've got to wait until the hearings. People are going to go through his record and bring up a lot of things...
KING: All right, Candy...
CROWLEY: ... But remember, he has also just been confirmed two or three years ago.
KING: Let's go to Senator Patrick Leahy of Vermont.
SEN. PATRICK LEAHY (D), VERMONT: ...has to rise to the challenge and do its work.
To fulfill our constitutional duties, we need to consider this nomination as thoroughly and carefully as the American people deserve.
It's going to take time and the cooperation of the nominee and the administration. After all, a member of the Supreme Court is there for all people in this country, no matter what their party.
And that means that Republicans as well as Democrats have to take seriously our constitutional obligations on behalf of all Americans. We have to ensure the Supreme Court remains a protector of all Americans' rights and liberties from government intrusion and that the Supreme Court understands the role of Congress in passing legislation to protect ordinary Americans from special interests abuses.
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.
How the nominee views precedent, what he regards as settled law, how he will exercise the incredible power of a Supreme Court justice to be the final arbiter of our rights and the meaning of the Constitution, all of these raise very different considerations than in the lower court.
Justice Sandra Day O'Connor, whom I voted for for the Supreme Court, is a model justice. She brought a fair and open mind to the bench; she decided cases without a political agenda; she's widely respected as a jurist of common sense and practical values. She didn't prejudge cases.
And I regret that the extreme right has been so critical of her and was so adamantly opposed to her successor sharing her judicial philosophy.
The Constitution calls on us in the Senate to examine nominations to the court, not to rubberstamp them. I look forward to hearings that are going to inform the Senate and all Americans. I'll work with Chairman Specter to have a fair hearing. It's going to take a fair amount of time to do that. But we will do it.
There will be thorough hearings. And I really do not expect any issues that go to the qualifications, the honesty, the integrity and the fairness -- the fairness -- of a Supreme Court justice to be off limits.
All those questions can be asked.
Chuck Schumer is the Democrat who represents us on the subcommittee who handles nominations. I'd like to turn it over to Senator Schumer.
SEN. CHARLES SCHUMER (D), NEW YORK: Thank you, Senator Leahy. And thank you for your leadership.
There's no question that Judge Roberts has outstanding legal credentials and an appropriate legal temperament and demeanor. But his actual judicial record is limited to only two years on the D.C. Circuit Court.
For the rest of his career, he has been arguing cases an as able lawyer for others, leaving many of his personal views unknown.
For these reasons, it is vital that Judge Roberts answer a wide range of questions openly, honestly and fully in the coming months.
His views will affect a generation of Americans, and it his obligation during the nomination process to let the American people know those views.
The burden is on a nominee to the Supreme Court to prove that he is worthy, not on the Senate to prove that he is unworthy.
I voted against Judge Roberts for the D.C. Court of Appeals because he didn't answer questions fully and openly when he appeared before the committee.
For instance, when I asked him a question that others have answered, to identify three Supreme Court cases of which he was critical, he refused.
But now it's a whole new ball game for those of us who voted against him, for those of us who voted for him and for Judge Roberts. I hope Judge Roberts, understanding how important this nomination is -- particularly when replacing a swing vote on the court -- will decide to answer questions about his views.
Now that he is nominated for a position where he can overturn precedent and make law, it is even more important that he fully answers a broad range of questions.
I hope, for the sake of the country, that Judge Roberts understands this and opens questions -- sorry, and answers questions -- openly, honestly and thoroughly.
And there's one thing that I want to say that is unequivocally great about Judge Roberts. He's a Bills fan.
LEAHY: I'll leave that last line alone.
KING: That was Senator Patrick Leahy, followed by Senator Chuck Schumer. Schumer had voted against the first time around. We'll take a break in a couple of moments. Then at the bottom of the hour, two distinguished members of the Judiciary Committee who will either send it for confirmation or not send it for confirmation.
Jeffrey Toobin, what do you make of those three questions that Schumer asked him that he wouldn't answer? Name three cases?
TOOBIN: It's a good question and it'll be -- certainly be asked again, but look at the contrast between the reaction to John Roberts and Ted Kennedy's reaction to Robert Bork in 1987. You know, they -- he came out firing and Robert Bork's America, back-alley abortions, segregated lunch counters. Here, you have a very cautious, very deferential response. I think that bodes very well for the nomination.
KING: Is that because, Wolf Blitzer, there is only a two-year record?
BLITZER: It's, in part, because he's pretty well known in Washington in legal circles, but he may have only been on the judicial bench -- federal judicial bench for the past two years, but he's pretty widely known among those and I suspect -- I suspect that, yes, the liberal branch -- the liberal wing of the Democratic party will be very aggressive, very tough and asking the kinds of questions they want answers to.
I also suspect that he won't necessarily give direct answers to a lot of those questions, but the moderates among the Democrats will hold the sway, certainly, in breaking any filibuster, if that should go forward. And I doubt there would be a filibuster, based on what we know right now. It looks like this, as we said, Larry, is a pretty smart political move on the part of the president to get a justice confirmed.
KING: Candy, will anyone on the other side in the Senate, do you think, lead the fight against?
CROWLEY: I'm sorry, Larry, what was the last part of the question?
KING: Who in the Senate might lead the fight against this nomination?
CROWLEY: Well, you have to look first to the Senate Judiciary Committee, because that's, in fact, where it first goes. So, that's where the real battle will be. That's where the questions are asked. To tell you the truth, in a large part, this fight against Judge Roberts will be led by a lot of the interest groups. We've already seen them come out, even before there was any kind of announcement.
So, the first lead is going to be off the commercials and the leafletting and e-mail that come from the various interest groups. I suspect that most people who are opposed to him will at least hold their fire, as you saw Senator Schumer do, at this point.
I think he's a pretty good indication that he may lead the fight, should he so choose. But right now, they're being fairly cautious saying: Well, we're going to listen to this and we hope he answers questions. The fight will be led from the outside in, not from the inside out.
KING: Thank you, Candy Crowley, Jeffrey Toobin, Wolf Blitzer. We'll be calling on you again. We'll be doing another major show on this tomorrow night. Thanks, Jeff. Thanks, Wolf, in Los Angeles and thanks to Candy Crowley on Capitol hill.
You're watching a special edition of LARRY KING LIVE. When we come back, two distinguished members of the Judiciary Committee and when that committee convenes, you're going to be seeing a lot of Senators John Kyl and Richard Durbin.
Don't go away.
(COMMERCIAL BREAK)
KING: Welcome back to this special edition of LARRY KING LIVE on a historic night. Joining us in Washington, Senators Jon Kyl, member of the Judiciary Committee, long-time friend of Justice Sandra Day O'Connor, by the way, has argued before the Supreme Court himself, a Republican of Arizona. And in the Russell Rotunda on Capitol Hill is Senator Richard Durbin. Dick is Senate majority whip -- minority whip, rather, and a member of the Judiciary Committee and a Democrat of Illinois.
Senator Kyl, what do you think of the nomination and how will it do in committee?
SEN. JON KYL (R), ARIZONA: I think that Wolf Blitzer actually hit it right on the head. It's a pretty wise choice. A person of great qualifications and stature and experience, who was recently confirmed unanimously by the Senate. I think Senator Schumer voted against him in the committee, but he was confirmed unanimously by the full Senate to serve on the highest of the district courts of the land. And someone who is going to be very difficult to oppose, I think, because of his widespread support in Washington, D.C., by both Democrats and Republican lawyers and judges who know him well.
So I think that Wolf is right. It's a wise choice. Obviously, we have our work to do. We'll ask the questions. At the end of the day, I suspect he'll be confirmed.
KING: Senator Durbin, do you expect him to answer any tough questions, like Schumer's what three decisions did you disagree with, and will that affect your decision?
SEN. RICHARD DURBIN (D-IL), MINORITY WHIP: Well, of course it will. I think the American people are entitled to answers. It isn't just a question as to whether the nominee is honest, legally skilled and has a good temperament. The American people want to know if the values of the nominee are in the mainstream of America.
As a Supreme Court justice likely to serve for 20 years or more, will this nominee protect the rights of the minorities, in terms of women and workers, human rights, civil rights, protect the environment? Very fundamental questions of values.
KING: Senator Kyl, would you want to know his opinion of Roe versus Wade, an opinion already rendered by the Supreme Court, so it wouldn't be hypothetical?
KYL: I think it depends on how you ask the question. If you ask him about that decision, he's going to say it's the precedent of the court. If you ask him a hypothetical question about how he might rule in a future case, I think he's correct to say until I know all the facts of that case, it's very difficult for me to decide.
KING: But will he have to answer his opinion of Roe versus Wade, not a hypothetical case?
KYL: He will be entitled to explain his views, his judicial philosophy in the context of specific cases, like Roe versus Wade, and I suspect that people who are very skeptical about his views will bore in, in every way possible, to get any kind of a hint from him that they can about how he might rule in a future case. Expressing his view about a case, fine. Expressing how he might rule in the future, without knowing the facts of a case, a much different question.
KING: Senator Durbin, do you have a right to know his opinion of prior decisions?
DURBIN: Absolutely. And I asked him, when he came before our committee, he, in a briefing, said he wanted to overturn Roe versus Wade. And I said, "is that your position?" "No, no, no," he said, "I was just an attorney for a client that took that position, in this case the government." So I said, "what is your position on Roe versus Wade?" He said, "it's settled law; Roe versus Wade is settled." And on the Casey decision, another Supreme Court decision, he said "it's more than settled." But, of course, he was deferring to the Supreme Court. Now he wants to serve on the court. And I think we have a right -- let me go further, an obligation -- to determine what his position is when it comes to the privacy of families and individuals in America. That's the underlying principle in Roe versus Wade. KING: Shouldn't the answer on Roe versus Wade that he gave you suffice?
DURBIN: No, because we have to know, when it gets to the heart of the issue, the real core constitutional values, where does he stand? And I think that's a legitimate question. It isn't enough that he's legally skilled. People want to know whether he is in the mainstream of values of America.
KING: Senator Kyl, how tough is this going to get?
KYL: Well, I hope that it is conducted in a very fair and dignified manner, as the president said. There will be outside or special interests, as Candy Crowley said, that will try to drive the debate, opponents of the president, who will probably object to this nominee. But I would hope that the senators themselves, appreciating the need for a fair and dignified proceeding, will not be unduly swayed by that kind of approach, and will certainly ask tough questions, but do so in an appropriate manner. Even when we disagree, we can surely do it agreeably.
KING: Do you agree with that, Senator Durbin?
DURBIN: Absolutely. And I can guarantee you, the Democrats, whether they're for or against John Roberts, Judge Roberts, are going to do their best to make certain that we have the kind of deliberation, the kind of questioning that really gets to the heart of the matter. The American people get this chance very seldom in their lifetime, to hear what a Supreme Court nominee really believes. And as has been said by others, this nominee is likely to serve for decades. I think we have an obligation to ask those questions, and we should have the time to ask them in a deliberate fashion, not to rush to judgment, but to make certain that our judgment is based on a true picture of Judge Roberts' opinion of the bench and his position on it.
KING: We'll hold Senators Kyl and Durbin with us for another segment. We'll be joined by Jay Carney of "Time" magazine and David Gergen, a former White House adviser to many presidents. And later, Dick Thornburgh will join us, former attorney general. Laurence Tribe, the famed scholar from Harvard Law School. We'll also hear from Jeff Greenfield and Bill Schneider. All ahead on LARRY KING LIVE. Don't go away.
(COMMERCIAL BREAK)
KING: Joining us now in addition to Senators Kyl and Durbin, in Washington is Jay Carney, the deputy Washington bureau chief of "Time" magazine. And in Boston, a very familiar face in these surroundings, David Gergen, White House to many presidents, professor at Harvard's JFK School of Government and director of its Center for Public Leadership, and editor at large "US News and World Report." Jay, your reaction?
JAY CARNEY, TIME MAGAZINE WASHINGTON DEPUTY BUREAU CHIEF: Well it's clearly a smart political choice, as people have said. And I think it's smart, because John Roberts appears to be, and in many ways is, a mainstream establishment conservative. But what we do know of his views would make him a reliable conservative, not a risky conservative, like a David Suitor or an Alberto Gonzales or even a Justice Sandra Day O'Connor.
So I think that he will satisfy mainstream conservatives, but not alienate Christian or religious conservatives who want somebody who is not going to disappoint them in the way that Justice Kennedy has, Justice Souter has, and in some ways Justice O'Connor did. One thing that I also think is interesting here is that because he will not be a swing vote, I don't expect, in the way that some of those other justices were, we're really down to -- people talked about how the past 10 years have been the O'Kennedy court, O'Connor and Kennedy justices deciding so many of these decisions. Well if now soon to be Justice Roberts becomes a reliable conservative vote, it's really Justice Kennedy who becomes the deciding vote on every one of these issues. And how he plays that role and rises to that challenge could decide a host of cases that in the past have been decided 6-3 and 5-4.
KING: David, there were so many other justices historically, have changed as time goes on. We can see it recently in Judge Souter, as an example. Why does that happen?
DAVID GERGEN, FMR. ADVISER TO PRESIDENTS NIXON, FORD, REAGAN, CLINTON: It's interesting. They become more independent minded, I think. They're persuaded -- living in those chambers is pretty isolating in those chambers, they actually don't talk to each other as much as you might think they would. And I think that the arguments that the logic of the arguments that are presented to them, some gradually bring them over one way or the other.
But I have a slightly different view than Jay, Larry. And that is, this is a very important nomination, because he is -- the president is now replacing Justice O'Connor, who has been a swing vote on many abortion cases. He is replacing a moderate conservative with a strong conservative. Sandra Day O'Connor has been the fifth justice in many 5-4 decisions that have pushed back the effort to restrict the rights to abortion. If, I think as conservatives expect now, Justice Roberts were to go the other way, that means that many of the decision that went 5-4 to preserve abortion in an expanded way, will start going against abortion so that you begin to restrict the rights. Partial birth abortion is coming up before the court, parental notification.
The conservatives understand that it's going to be very hard in the near term to overturn Roe V Wade. Their strategy is to try to limit Roe V Wade so much that you eviscerate the rights to abortion. And in this case, with Justice Roberts, if there is a Justice Roberts, I think almost everyone on this program believes there will be, it could easily go 5-4 the other way and there'll be a lot of restrictions.
KING: Senator Kyl, do you support Roe-Wade?
KYL: Yes, Larry, as a precedent of the court, I would have to, as a judge, but I disagreed with the decision when it was rendered and I still do. KING: So if it was overturned, you would not be unhappy?
KYL: No, I wouldn't. But I would suggest that what's going to happen if John Roberts would rule as it's predicted, hear that he would rule, is that you will see Roe versus Wade nibbled away at at the edges, but not overruled as a core decision. Parental notification and partial birth abortion are certainly marginal issues with respect to abortion. And it wouldn't surprise me a bit to see congressional acts outlawing those practices declared constitutional by a court in the future. But that doesn't necessarily eliminate the rationale of Roe versus Wade.
KING: Senator Durbin, do you see a frittering away of Roe-Wade?
DURBIN: Yes I think I would with Judge Roberts in that position. Sandra Day O'Connor who came as a mainstream conservative, near the end of her term on the court became one of the most important votes when it came to preserving a woman's right to choose. And if she is being replace with Judge Roberts, it is likely she is being replaced with someone who will vote the other way. I can't say for certain, because as I mentioned earlier Judge Roberts really avoided that question when he went through this hearing before. But if that is the case, I guess one of the best spins is we'll just nibble away at the edges. But you cannot dismiss the possibility that Roe versus Wade could be in peril if Judge Roberts makes it to the Supreme Court.
KING: Jay Carney, do you expect civil proceedings?
CARNEY: Well I do because he's a civil nominee and a civil candidate and not someone who outrages the special interest groups. I just want to point out, I actually agree with what David Gergen and others have said. And that's what I meant, that Roberts is now replacing O'Connor, and that seat no longer becomes a swing seat. And to the extents that Justice Kennedy was a swing voter on occasion in the way that Justice O'Connor was, he now fills that role. And if he doesn't rise to the 5-4 vote in favor of maintaining abortion rights on some of these cases, then I think what we're talking about will happen, the slow erosion of Roe V Wade.
And what we'll see is that the signal of Justice Roberts ascending to the Supreme Court -- Judge Roberts ascending to the Supreme Court, will then have the anti-abortion groups out in the state legislatures, testing their luck, basically, trying to get legislatures to pass laws that can then be brought before the court to see how much more erosion of Roe V Wade they can accomplish.
KING: David Gergen, do you expect him to swing through easily?
GERGEN: I do, Larry. I think that not only is he a conservative, but he's not seen as an ideologue by many in the practice of law. He was at Hogan & Hartson, a gold-plated firm in Washington. And very importantly, Larry, you remember when Judge Bork went through, it was partially what he had said and written before, but it was also partially his manner. And it alienated many senators. They thought he was sour. Judge Roberts, by comparison, when he was at Hogan & Hartson, was regarded as one of the best oral advocates before the Supreme Court of the 1990s. He's affable, he argues well and I would imagine, Larry, he'll make a very good witness for himself.
KING: Thank you all very much. When we come back, two distinguished Americans as part of our jurisprudence system. Dick Thornburgh, a former attorney general, a former governor of Pennsylvania, and Laurence Tribe, the constitutional scholar from Harvard Law School. Dick Thornburgh, Laurence Tribe, next. Don't go away.
(COMMERCIAL BREAK)
KING: Having a little technical difficulty reaching Laurence Tribe at Harvard Law School. As soon as we make that connection, we will go to it.
Let's go to Washington. Dick Thornburgh, who was the United States attorney general under Ronald Reagan and George H.W. Bush and a former Republican governor of Pennsylvania, and formerly a very frequent guest on this program. What's your reaction to the Roberts selection?
RICHARD THORNBURGH, FORMER U.S. ATTORNEY GENERAL: I think it's a superb choice, Larry. John Roberts is not only a fine human being, he's a lawyer's lawyer and a judge's judge. And I think there's going to be a lot of support on the Democratic side for this candidate.
When it comes to issues, it's going to be contentious. He will and should be subject to very careful scrutiny, but I hope his Democratic colleagues follow the advice of Senator Joseph Biden, who made it quite clear that candidates for the Supreme Court should not be questioned on issues that are likely to come before the court. I think they have every right to take the temper of a judicial nominee in terms of his temperament and his attitude toward the court and the responsibilities he will assume, but stay away from those specific cases. That's not the way that our system operates.
KING: How about questions about prior decisions of the court? Prior decisions?
THORNBURGH: Well, I suspect that, as somebody observed earlier this evening, the answer you're going to get from any candidate is "that's the law of the land, and I'm not going to take issue with it." And you can't tell what nuances are going to be present in cases that come up later.
KING: I see.
Laurence Tribe now joins us, Harvard Law School, professor of constitutional law, has argued before the U.S. Supreme Court dozens of time. He made the case for Al Gore, by the way, in the contested 2000 presidential election.
What's your thoughts, Professor Tribe, on this selection?
LAURENCE TRIBE, HARVARD LAW SCHOOL: Well, I know John Roberts. I think he's brilliant. I think he's a decent fellow. I do disagree slightly with my friend, Dick Thornburgh. I think that there is a big difference between asking someone like Roberts about issues that might come before the court and asking him about how he would rule in specific cases.
No less than authority than Justice Scalia said in 2002 that it's a big myth that judges don't have preconceptions about the big issues that will come before them. He said, there's nothing wrong with judges having those preconceptions, and that people might have a right to know about them. That is why back in 2002, the court said that under the First Amendment, you cannot prevent inquiry into a judge's views or a judge from expressing those views.
It seems to me that that's where this nomination really is going to be decided. That is, some of the earlier guests talked about nibbling away Roe v Wade and other decisions at the edges, that that was only marginal. But for people who are nibbled, for those whose rights are at stake, it doesn't feel marginal. That's why I think it is only right, despite his brilliance and despite his affability and despite his obvious qualifications, that those who are entrusted with making sure that people on the court protect the rights of all Americans press hard in the questions and answers on just how he thinks the right to reproductive freedom ought to be protected in this country, and how other rights should be protected.
KING: Dick Thornburgh, how would you respond?
THORNBURGH: I think when we talk about nibbling away, we have to recognize that the Supreme Court is a court of nuance and of shading. Oftentimes, the decisions turn on 5-4 votes one way or another, and those nuances are terribly important, and they develop during the hearing of a case and the case proceeding through the lower courts before it reaches the Supreme Court.
To try to pin down a nominee for the court on a specific holding that he or she might make when some hypothetical case might reach the court sometime in the future seems to me to go a little bit far.
I agree with Professor Tribe, that it's terribly important to examine all aspects of the judicial attitude, the attitude toward stari decisis, the attitude towards what kind of motions are taking place in our society when you talk to a nominee. But to ask them about how they would decide a particular case at some particular time in the future, I agree with Senator Biden, that goes beyond the pale.
KING: Professor Tribe, do you like Judge Roberts?
TRIBE: Oh, I like him a lot. I even liked him when he defeated me in the abortion funding gag order case, 5-4. He's fun to work with. He's fun to work against. If I were on the court, I'd love to have him as a colleague.
But what's at stake for millions of Americans isn't how much fun it is to deal with him, how brilliant he is, but just how will he approach their rights? And I think, though it's a nuanced question, it's the vital question. KING: We will ask Professor Tribe and Dick Thornburgh to remain with us, and we will be joined by Jeff Greenfield and Bill Schneider right after this. Don't go away.
(COMMERCIAL BREAK)
KING: Dick Thornburgh is with us in Washington. Laurence Tribe is with us in Watertown, Massachusetts.
In Washington, D.C. is Bill Schneider, CNN senior political analyst. And joining us in New York is Jeff Greenfield, another CNN senior analyst.
Jeff, your read on all of this?
JEFF GREENFIELD, CNN SR. ANALYST: First, it seems to me that it's very consistent with what President Bush has done from the time he ran for president, which is essentially he will do nothing to really alienate a conservative base. From picking Dick Cheney to doing an aggressive domestic agenda in his first term, even though the circumstances of his election were unique, and most people thought he would go to the middle.
So I think that was the first -- it's like the Hippocratic oath with doctors: First, do no harm.
In terms of a political pick, what this nominee is not is the kind of red flag that Judge Bork was to liberals, that Priscilla Owen would have been, that maybe even a couple of the other judges, like Michael Luttig would have been.
He's only been on the court for two years, and so -- so it doesn't have the incendiary quality that some other nominees would, and yet it's a clear indication that he means to move the court in a more conservative direction.
He's a 50-year-old man. Barring bad fate, if he gets on the court, he will be there for a quarter of a century, and replacing a swing voter clearly moves the court in a conservative direction.
KING: Sometimes they change.
GREENFIELD: That's the great unknown. One thing we should say, it's an important point, he has only been on the court for two years. You really can't judge John Roberts' philosophy based on the arguments he made when he was a lawyer for hire, because lawyers often argue cases because they're their clients. So there is this uncertainty. It's one of the things that makes this process so fascinating. It's just that the best bet they're making is based on his background, he's more conservative than O'Connor was.
KING: Bill Schneider, any read on him yet?
BILL SCHNEIDER, CNN SR. POLITICAL ANALYST: Well, think this: He was a law clerk for Justice Rehnquist, and our Supreme Court producer, Bill Mears, has actually found out that Rehnquist had quietly been rooting for John Roberts, his former clerk, and who is still his good friend. Mears tells us that one reason Rehnquist may have decided to stay on the bench, among many other reasons, was that he had very high expectations that the president would choose his friend and his esteemed former clerk, Roberts. So, my point is, if you're looking at Roberts and saying what kind of justice do you expect him to be, he might be pretty much like Rehnquist.
KING: Dick Thornburgh, what do you make of that?
THORNBURGH: Well, let me just say two things, Larry. One in response to Jeff's observation. We seem to have gotten into a rut. The last seven Supreme Court justices have come from the circuit courts. You wonder whether plain practicing lawyers are now off limits to practice on the court.
The other thing is that one -- this nomination, I think, assures that there will be no filibuster; that the president will get an up- or-down vote on John Roberts; that the extraordinary circumstances that were part of the compromise simply are not present here.
You have to wait for the hearings, of course, but we'll see. And I have no doubt that what Chief Justice Rehnquist is delighted to have his former clerk and protege nominated for the court.
KING: Lawrence Tribe, would you say at this juncture, it sure looks like, barring the unexpected, he's going to be confirmed?
TRIBE: Well, I would say it looks like that, but prediction, rather than judgment, really isn't the point now for the country. The country, obviously, has to know as much as possible about this nominee. If he serves on the court -- one thing I tried to look up today -- wasn't all that much time, because I was faked out along with others. I thought it was going to be somebody else. But if he is confirmed, there are something like 15 only -- 15 justices who began as young, out of 108. Not many and he would be, in all likelihood, on the court for 30, 35 years.
It is clear, number one, that he is more conservative than O'Connor. It is clear, number two, that he's not red meat. That is, he is not the kind of person who, in some flaming way, enrages liberals or moderates. It is clear, number three, that even in the two years he has been on the court, as recently as this Monday, he has rendered decisions that people are going to worry and wonder about when he decided that whenever the president designates someone as an enemy combatant that person could be subjected to military trial.
And it is clear, number four, that in the absence of some serious objection that now is not yet visible -- and one objection might be that the nominee doesn't tell enough about his views, that he is very likely to be confirmed.
I hope the country won't waste lots of blood, but on the other hand, I hope this will be a seminar, an education for the country on important Constitutional issues. And to that, I think we should all look forward.
KING: More in a minute with our panel. Don't go away.
(BEGIN VIDEO CLIP)
BUSH: I have full confidence that the Senate will rise to the occasion and act promptly on this nomination. It is important that the newest justice be on the bench when the Supreme Court reconvenes in October. I believe Democrats and Republicans alike will see the strong qualifications of this fine judge.
(END VIDEO CLIP)
(COMMERCIAL BREAK)
KING: Jeff Greenfield, should the nominee be asked to or placed in a position to -- having to tell us what he though of a prior decision?
GREENFIELD: It seems to me it's perfectly fair to say to a nominee: Give us a sense of your overall judicial philosophy. So for instance, with out saying: How would you rule if Roe v. Wade came before you? You just say: All right Judge Roberts, does the Constitution contain a right of privacy? That's what doomed Robert Bork.
KING: He said no?
GREENFIELD: And I said -- well, he -- and he has a philosophical view that if it's not a right listed in the Constitution, you can't sum it up. But for most Americans, when they realized the consequence of that would mean that Bork thought it be OK, for instance, Constitutional for Connecticut to outlaw birth control for married people -- which they did.
That was the case of established right of privacy -- he was seen as just outside the mainstream. I can't imagine that Judge Roberts would let himself be in the position where he'd say: that's right, there's no right of privacy and if they want to outlaw birth control that's fine with me. But that's the kind of inquiry that I think is fair.
KING: Dick Thornburgh, do you believe that Roberts believes in the right of privacy?
THORNBURGH: I haven't the slightest notion what John Roberts believes. I know one thing, that he is a scholar of the law. He's an intellectual. The last time I saw John was last week. We flew back together from London, where he had been spending part of his summer doing what: Teaching -- teaching law in England. He is -- has an inquisitive mind and I think he is not one who's going to succumb to the kind of "gotcha" games that are often played on judicial nominees. He'll give a careful, reasoned, honest, straightforward answer to every question that's put to him during these hearings.
KING: Do you expect that, Professor Tribe?
TRIBE: I certainly expect him to be reasoned and straightforward and he is really an eloquent advocate and teacher. And I think there is an important thing to note. There's something in between the broad platitudes, like: Is there a right of privacy in the Constitution?
You've got to be pretty extreme these days to think that there is none at all. And on the other extreme, how will you rule if the precise case of Roe v. Wade came before you today? The thing in between is: Do you think that a woman's reproductive freedom is entitled to fundamental protection so that a health exception might be necessary? That's an issue and if he says, well, I can't talk about that issue, then I think that a number of senators will ask: Well, why not?
It's quite clear that justices of the Supreme Court have views about issues like that before the cases are viewed; views that are subject to change and that doesn't disqualify them. I think it's at that level, in between the specific case and the bumper-sticker slogan, that the country is likely to ask more questions of a Justice Roberts.
KING: I only about 30 seconds, Jeff. Bush and Roberts will have breakfast tomorrow. Do you thin the president will ask him those questions?
THORNBURGH: No.
KING: No?
THORNBURGH: I think the president has been well-briefed on where his advisers think Judge Roberts comes out on things that they care about. But I think this president -- presidents love to say: I don't have a litmus test for -- it's the official thing you have to say. So, I think they'll have a nice, polite conversation and talk about the weather or talk about baseball, but I don't think he'll -- I think he doesn't want to be in a position where he says: Yes, I pressed Justice Roberts -- Judge Roberts on how he'd rule on a bunch of cases and what his views are. That's already been done.
KING: Wouldn't he want to know?
THORNBURGH: Yes, but I think he does know. You asked me if I thought he'd as him tomorrow.
KING: I see. You think he does know because his staff asked...
THORNBURGH: I think he has been informed by people who know, saying: This is the kind of guy you want on the court. Absolutely.
KING: Thanks, Jeff.
THORNBURGH: OK.
KING: Jeff Greenfield, Dick Thornburgh, Lawrence Tribe, our guests earlier, we thank them very much. From this very special edition of LARRY KING LIVE following the president's nomination of John Roberts to be the next Justice of the United States Supreme Court Standing by here in New York, is Aaron Brown. He will host "NEWSNIGHT" of course and I would Imagine -- just guessing, that Aaron is going to follow up on this same topic. Am I right?
AARON BROWN, HOST, "NEWSNIGHT": My goodness, we screwed up. We were going to lead otherwise. We'll change our minds.
KING: OK.
BROWN: Thank you. Good to see you. I didn't expect to see you for a week or so. So, it's nice to see you.
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