The Roberts Nomination: What's Next
ROBERT SIEGEL, host:
I'd like to talk more--hear more about this nomination now from our two legal scholars whom we've invited to comment on it. In the studio, Jeffrey Rosen, professor at George Washington University Law School and also legal affairs editor at The New Republic magazine.
Welcome back, Jeffrey.
Professor JEFFREY ROSEN (George Washington University Law School): Thanks for having me.
SIEGEL: And joining us from Malibu, California, is Douglas Kmiec, who's professor of constitutional law at Pepperdine University.
Hello, Doug Kmiec.
Professor DOUGLAS KMIEC (Pepperdine University): Robert, nice to be with you.
SIEGEL: I want to get a sense from you about this--and, first, generally about this nomination. A good one that fits the bill, Jeffrey Rosen?
Prof. ROSEN: I am one of those many Democrats who will sing John Roberts' praises.
Prof. ROSEN: I had the pleasure of interviewing him for The New York Times Magazine a couple of years ago and was just impressed with the idea that he was a judge who had a reverence for the courts. He said, `If I were inclined to take a position that I would feel politically satisfying, that I didn't feel like I could adequately defend in an opinion, I'd feel embarrassed to put that out in front of the Clinton appointees,' who he's known for years. So you have the sense that he's not an ideologue with an agenda but really someone who's always revered the court his whole life. And you could see him almost weeping as the president was standing there.
SIEGEL: Doug Kmiec, do we have a complete accord here?
Prof. KMIEC: Well, I think very highly of John. I was privileged to work with him in the Reagan administration and in the first Bush administration. He is the type of person who, as Jeffrey suggests, is very careful, that you can see as a judge, that he listens well, he studies words, he studies documents and he prepares. Somebody doesn't argue 30 cases before the Supreme Court, winning most of them--I think 25--without preparing well. John Roberts is a very careful lawyer who does revere the law and has a great understanding of the Constitution and, in that sense, is a very strong nomination.
SIEGEL: Let's talk about an issue that is always discussed nowadays in Supreme Court nominations, and that is abortion. As I understand it, when he was questioned by Senator Durbin of Illinois, a Democrat, for his appeals court nomination, he was asked: `Do you regard Roe v. Wade as settled law? Is it the law of the land?' and my impression is he said yes. Do I have that right, Jeffrey?
Prof. ROSEN: He did. But some Democratic interest groups don't like him because when he was a deputy solicitor general, he signed a brief endorsing the Bush administration's position at the time, which is that Roe should be overruled. And he also signed briefs calling for limitations on federal funds regarding abortion counseling and limitations on abortion protests. So there'll be some groups that'll try to make abortion an issue.
Now I hope that given his answer to the Senate, people can focus on other, frankly more controversial parts of his record which have to do with whether or not he has a narrow view of federal power. In some ways that's much more relevant to the issues the court will be confronting on abortion and perhaps, given his answer, that'll just be taken off the table.
SIEGEL: Douglas Kmiec, do you think that abortion's going to be off the table based on that answer?
Prof. KMIEC: I'm afraid it won't be, because the National Abortion Rights Action League has already a brief document or a briefing backgrounder criticizing John. And here's one of the difficulties that John will face in the confirmation proceeding, and that is, as Jeffrey suggests, he has been an advocate most of his life. He's been on the Court of Appeals since 2003. So his judicial role is relatively brief. So he has been taking the position of the Reagan and first Bush administration against flag burning and in favor of restrictions on abortion counseling and asking the Supreme Court to overturn Roe, which, of course, was the policy of President Reagan. And I'm certain he will be asked if those are his views, and this will bring up exactly the difficulty that every Supreme Court nominee faces, and that is what can be said with jeopardizing impartiality for the cases that will be coming up next and that are on the docket, including an abortion case that will be argued next term.
SIEGEL: Let me make sure that I understand whether I as a layman read the answer to Senator Durbin the same way that you as a law professor do. If he says, `I regard it as the law of the land' or `It's settled law,' does that mean he accepts that there is a right to privacy which extends to a woman's right to choose to have an abortion? Is that what you think when you hear him say--Jeffrey Rosen, is that what you hear? I'm sorry.
Prof. ROSEN: Not necessarily.
SIEGEL: Not necessarily.
Prof. ROSEN: You're being very legalistic about it, you might say that as a lower court nominee who'd be sitting on a lower court, he feels that the Supreme Court precedents on abortion are settled, and therefore he's bound to apply them. However...
Prof. ROSEN and SIEGEL: (In unison) ...as a Supreme Court justice...
Prof. ROSEN: ...he might find a different answer.
SIEGEL: And do you agree with that, Doug Kmiec, that that's what you hear, that same...
Prof. KMIEC: I think that's right. I think the argue--I think the answer that an appellate nominee gives is an answer that is different from a Supreme Court justice. And on the other hand, the principle of stare decisis for the reasons that Jeffrey alluded to at the beginning about John's personality and his reverence for the court and his reverence for the law, the principle of stare decisis would be one that is going to loom large in his judicial philosophy.
SIEGEL: Stare decisis meaning it's settled; it's been decided.
Prof. KMIEC: It is settled. That precedent will not be easily set aside to the extent that it has been articulated and relied upon. And that's not just something that binds appellate judges; it's something that is a consideration for every Supreme Court justice as well, and John will take that very seriously.
SIEGEL: I want to ask you both your sense of the man's intellect and character and personality. Do you think it's possible that President Bush has nominated somebody who is going to be a leader, someone who becomes a truly influential justice above and beyond his role as associate? Does he have the possibility for greatness in that sense, Jeffrey Rosen?
Prof. ROSEN: Well, he's just so dazzlingly smart. It's just so exciting to see someone who's so able, who impresses his colleagues and the justices every time he makes an oral argument, who's able to take either side of a controversial case--he's argued for liberal positions as well as conservative ones as a lawyer--and in addition to that, as Nina suggested, is so nice. The combination of being really smart and very nice is a lethal one when you're talking about influence. Chief Justice Rehnquist, after all, for whom Roberts clerked, had both of those qualities. He had a political savvy; he was extremely smart, and also he just got along well with people. And if we know anything from the court, it's that a pleasant temperament can really get you very far.
SIEGEL: Douglas Kmiec, do you suspect...
Prof. KMIEC: We know that very well from the life and powerful history of Bill Brennan. And in fact, John Roberts has the potential of being a conservative Bill Brennan on the court because of that great gift of even temper and personality. He will not be arguing with people through anonymous footnotes and e-mail messages. John is the type of person who will get up from his chair and walk down the hall and visit to talk out an argument and to try and genuinely understand what an opposing view has to say.
SIEGEL: You mention Justice Brennan, who was a Republican nominee to the Supreme Court...
Prof. KMIEC: Exactly.
SIEGEL: ...and went on to be remembered as a great liberal justice, I think much to the dismay of the president who appointed him. Do you think it's possible that a man of 50 who goes to the Supreme Court starts thinking differently, surprising the people whom he's worked with, or is he stare decisis?
Prof. ROSEN: Many do, but the Bushies are voting that Roberts won't evolve. And from everything I can gather from talking...
SIEGEL: Or devolve, I think, is...
Prof. ROSEN: No, no, evolving. Remember Clarence Thomas, right after he got on the court, had a slogan, `I'm not evolving.' And there's a sense that Roberts won't, either, because by all accounts--and his friends are circumspect about this, but they say that in private conversations, he is extremely conservative. His views about most of the hot-button issues that are convulsing the country are reliably conservative. And in this sense, before this degenerates into a love fest, remember, Leahy said no one's entitled to a free pass. There's no question that replacing Justice O'Connor with John Roberts might indeed transform the law on many, many issues that people care about, from abortion to--forgive me, not primarily abortion, but affirmative action, immigration rights. Roberts just decided a crucial case involving the trial of an enemy combatant who was bin Laden's driver.
So all of the fear that this nomination might indeed mark a turning point for the court is indeed raised by the appointment of a reliably conservative nominee and his tremendous ability and scrupulousness and good temperament shouldn't blind us to that fact.
SIEGEL: Douglas Kmiec, you don't expect any evolution, either, there? You're fairly confident?
Prof. KMIEC: Well, I expect fidelity to the constitutional text, and that's different than a reliable political program or agenda. That's not John Roberts. Roberts is someone who has great respect for the structure of the Constitution. Jeffrey started the conversation by noting that one of the things of interest about him is what he sees as the appropriate balance between federal and state power. In his short time on the US Court of Appeals, he has taken a very careful but a constrained view of federal power, and that certainly will, I think, be what he is faithful to, both the limitations of his own office as well as the limitations of enumerated power and the federal government generally.
SIEGEL: Professor Douglas Kmiec of Pepperdine University Law School and Jeffrey Rosen of George Washington University, thanks to both of you.
Mr. ROSEN: Thanks for having us.
SIEGEL: Nina Totenberg.
NINA TOTENBERG reporting:
Yes, I think we shouldn't take our eye off of the political ball here a little bit. And what the president has done is pick somebody who is almost universally admired for his intellectual acumen, whether or not people agree with him, but he's also picked somebody that will be, I suspect, greatly satisfying in the long run and if not the short run to his conservative base.
SIEGEL: He's also picked a white male.
TOTENBERG: And he's picked a white male. And when he gets his next opportunity to pick a justice, which is likely to be for chief justice, some time in the next couple of years, let's say, there will be a strong likelihood, I suspect, that he will pick a woman or a minority, and my guess would be--is that that's when he will pick Alberto Gonzales, his longtime friend and adviser, and his base will not like it at all, but he will satisfy them with the first one, and they will be in a less good place to complain.
SIEGEL: I won't hold you to that, but thank you. NPR legal affairs correspondent Nina Totenberg.
And, NPR White House correspondent David Greene, thanks for talking with us.
Now to recap, President Bush has nominated Judge John G. Roberts to succeed Sandra Day O'Connor on the Supreme Court. Roberts is 50 years old. He currently serves on the US Court of Appeals for the District of Columbia, and he is a conservative. He began his career as a clerk for Chief Justice William Rehnquist. His nomination now goes to the Senate for confirmation, and tonight President Bush said that he has spoken with the leaders from both parties, Senators Frist--excuse me, Senator Bill Frist and also Senator Harry Reid.
President GEORGE W. BUSH: 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.
SIEGEL: For his part, Judge Roberts thanked his wife and his family, and he called it an honor and very humbling to be nominated.
Judge JOHN G. ROBERTS (Supreme Court Nominee): 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.
SIEGEL: That's Judge John G. Roberts, whom President Bush has nominated for a seat on the Supreme Court of the United States.
This has been special coverage from NPR News. I'm Robert Siegel.
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