Senate Hearings and John Roberts

Part One

For analysis of the confirmation hearings for chief justice nominee John Roberts, Robert Siegel continues his conversation with Douglas Kmiec and Jeffrey Rosen.

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MELISSA BLOCK, host:

This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.

ROBERT SIEGEL, host:

I'm Robert Siegel.

With me in the studio is law Professor Jeffrey Rosen of the George Washington University, and also Douglas Kmiec of Pepperdine University, who's in his office, not at home. I'm sorry about that earlier, Doug.

I want to start with you, Douglas Kmiec, about your sense of--in today's questioning of the nominee, who in particular struck you as being the most productive in terms of the answers that we heard?

Professor DOUGLAS KMIEC (Pepperdine University): Well, I share some of the sentiments that Jeffrey expressed before, and that is Senator Grassley was remarkably effective. And this is notable because I think he is the only non-lawyer on the Judiciary Committee; he is by profession a farmer. And his approach to asking questions was notably different than the other members of the panel. The other members are quite taken with the hot-button issues of the day: affirmative action, congressional power, abortion and so forth. Senator Grassley wanted to know something different. He wanted to know how Justice Roberts decides cases. And as Jeffrey pointed out, it was partially an inquiry as to whether or not he was an unbending advocate of originalism, but it was also a general inquiry into his method.

SIEGEL: Mm-hmm.

Prof. KMIEC: And one of the things that he demonstrated in that was how adroitly he avoided the problem that Robert Bork ran into. Robert Bork questioned the reasoning in part of Brown vs. the Board because it couldn't by supported by the original intent of the drafters of the 14th Amendment. And Roberts said, `Well, it's important to understand not just the legislative history and the record of the 14th Amendment, but also its words.' And in saying that, he gave it a broad application to racial discrimination and gender discrimination and a host of modern issues that was very contentious in the Bork hearings.

SIEGEL: I want to ask Jeffrey Rosen about one moment in the questioning which struck me a great deal. That was when Patrick Leahy of Vermont was questioning Judge Roberts, and we heard Judge Roberts talk about a Supreme Court justice whom he admires tremendously; one of his great role models is Justice Jackson.

Professor JEFFREY ROSEN (George Washington University Law School): I'm so glad you noticed that moment because I did, too. It was my favorite moment, as well. Leahy was questioning Roberts about his views of congressional power, and Leahy said, `You've said you've admired Jackson most. What was it that you so admired?' And Roberts said, `One reason people admire Justice Jackson so much is that although he had strong views as attorney general...'

SIEGEL: He was FDR's attorney general.

Prof. ROSEN: He was, indeed. But after he was appointed to the Supreme Court, Roberts said he recognized that his job had changed. He was not the president's lawyer; he was not the chief lawyer in the executive branch. And at that point, Leahy said, `Are you trying to send us a message?'

SIEGEL: `Trying to send us a message?'

Prof. ROSEN: Exactly. And it was a wonderful moment, both because it did seem to be Roberts' quite elegant answer to the claim of Democrats that he would just enact the views that he'd expressed in the youthful memos, but more importantly, it showed a deference to congressional authority that many of us have been unsure about whether he has. It was interesting that several senators, and not only Democrats, questioned him quite closely about whether he would defer to Congress' fact-findings and strike down lots of federal laws; Specter and Kyl as well as Leahy.

SIEGEL: Mm-hmm.

Prof. ROSEN: And by citing this famous opinion by Justice Jackson, Roberts seemed to say that when the president acts in combination with Congress, his authority is at its height; when he acts unilaterally without congressional support, he deserves less deference. So that was both reassuring--it was touching to see him speak about a justice he much admired, and I thought it was a nice little moment.

SIEGEL: And a nod to both, in that case, realism and also growth, the idea of change and growth in a person.

Prof. ROSEN: Growth--well, you know, Roberts, or at least conservatives don't like the word `growth.'

SIEGEL: I see.

Prof. ROSEN: Remember Justice Thomas, `I'm not evolving.' But certainly it was a difference in role that he was talking about and saying, `Don't assume that just because I behaved this way in the executive branch, I'll behave this way as a judge.'

SIEGEL: Well, Professors Rosen and Kmiec, thank you very much for talking with us today.

Prof. KMIEC: Good to be with you.

Prof. ROSEN: Thank you.

SIEGEL: That is Doug Kmiec out in Pepperdine--in Malibu, California, at Pepperdine University, and Jeffrey Rosen of George Washington University in our studio, talking about today's confirmation hearings for Judge John Roberts.

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