LYNN NEARY, host:
This is TALK OF THE NATION. I'm Lynn Neary in Washington, sitting in for Neal Conan.
Last night President Bush appeared before prime-time cameras to introduce his nominee for the Supreme Court, Judge John Roberts. Since then the nation has begun to learn more about the man the president has chosen to succeed Sandra Day O'Connor. Roberts has spent the past two years on the US Circuit Court of Appeals for the District of Columbia. He served in the administrations of Presidents Ronald Reagan and George H.W. Bush, and also worked in private practice here in Washington. His career led him to argue nearly 50 cases before the high court. If all goes as the president hopes, Roberts will be sitting on the bench come October when the Supreme Court returns to session.
But that still leaves two months for Roberts' advocates, opponents and the media to tease out every angle of his legal history and thinking. His brief tenure on the Appeals Court leaves a thin record as a judge, and there are many questions about his beliefs on such hot-button topics as abortion, with both sides seizing on his seemingly contradictory statements on that issue.
Right now, senators are trying to decide exactly what they want to ask Judge Roberts in his upcoming confirmation hearings, and advocacy groups are staking out the battle lines in the court of public opinion.
Before the fight is joined full force, we want to hear from you. What do you want to know about John Roberts, about his legal record and judicial philosophy, his personal history and the upcoming nomination battle? Join the conversation. Our number here in Washington is (800) 989-8255. That's (800) 989-TALK. And our e-mail address is firstname.lastname@example.org.
And joining us now in the studio is Stephen Wermiel. He is the constitutional law professor at American University's Washington College of Law.
Thanks for being with us.
Professor STEPHEN WERMIEL (Washington College of Law): Hi, Lynn.
NEARY: Now you've known Judge Roberts for a long time, I understand. What can you tell us about him?
Prof. WERMIEL: We're not close friends, but I've known him for about 20 years. He's a very warm, personable individual, you know, very easygoing, down to earth, all factors that I think will be significant at the confirmation hearings. That he's not gonna be somebody who will sort of--comes off as gruff or overbearing, which some people will recall was a factor in the Bork hearings in 1987.
NEARY: Yeah. Of course, the fact that you say that you don't know him well but you've known him for 20 years, this is a man who's quite well known in legal circles here in the nation's capital, correct?
Prof. WERMIEL: Right. He's well known to lawyers and political figures of all stripes. He's interacted with Democrats, with Republicans, with lawmakers, with government officials, with other judges. I think he's extremely well connected and seemingly universally highly regarded for his intelligence and ability by everyone.
NEARY: So it seems like this was a pretty good choice?
Prof. WERMIEL: I think it's maybe a--quite a stroke of brilliance on the White House's part. It doesn't mean there isn't gonna be a fight, but I think they really picked somebody who has impeccable legal credentials, but about whom there is not so much known about his views on kind of the hot-button legal issues of the day.
NEARY: Yeah. He's quite conservative. He is known to be conservative, correct?
Prof. WERMIEL: We know that he's very conservative, but we don't know how that translates into views on abortion or on church-state separation or on affirmative action.
NEARY: What are some of the things that he has said about abortion? What do we know about his thinking on abortion?
Prof. WERMIEL: There are really two major things. The case in which he participated in the preparation of a brief when he was a Justice Department lawyer in the solicitor general's office in 1990-1991, he signed the brief in which the Justice Department asked the Supreme Court to overrule Roe vs. Wade and suggested that Roe vs. Wade was really not based on any sound precedent or text of the Constitution. He's been asked about that in past confirmation hearings, and basically said, `I was a lawyer representing my client, that was the Justice Department's position,' and has sort of declined to say anything else about his own views except the one other thing that we know, which is that he said as a Court of Appeals judge he would consider Roe vs. Wade to be settled precedent, law that he was bound to apply as a lower-court judge. That doesn't really tell us what he would do as a Supreme Court justice.
NEARY: Because as a Supreme Court justice, he's not merely obliged to follow existing law.
Prof. WERMIEL: Right. The whole point is--of this nomination is that on the Supreme Court you're not bound to accept Roe vs. Wade as settled law. You're perfectly free to decide, as Chief Justice Rehnquist and Justice Thomas and Justice Scalia have, that it's an invalid precedent and should be overruled.
NEARY: Yeah. Now would you say that this nomination would be equally acceptable to cultural and fiscal conservatives?
Prof. WERMIEL: Well, I think business conservatives in particular--his law practice for the past 10 years, 1993 to 2003, consisted of representing primarily business interests. He's very familiar with antitrust law, with securities law, with all kinds of federal regulatory law, and so I would think that would make him a choice that business would be very appreciative of.
NEARY: And cultural conservatives, religious conservatives?
Prof. WERMIEL: Well, I think they're gonna be less sure. He also participated in a case when he was in the Justice Department involving prayer at a high school graduation, and played a part in the preparation of that brief in which the Justice Department was urging the court to allow the prayer at the high school graduation. The court struck down the prayer. But same problem, we don't know which is Judge Roberts' views and which is his representing a client.
NEARY: And some of his other public statements seem to indicate that he is that kind of man that says, `My beliefs are separate from the law.'
Prof. WERMIEL: I mean, in some sense that's what we look for in a judge. In some sense, that's what we want a judge to say is, `This isn't about my own personal preferences and predilections. This is about my--as a lower-court judge, my ability to follow precedent, my ability to interpret what the Supreme Court is telling us.' It gets a little trickier when we're talking about a Supreme Court justice because I don't think any of us is so naive to believe that Supreme Court justices aren't at least partly framed by their own view of the universe that they live in.
NEARY: And he is a Roman Catholic, and that might affect the way he views an issue like abortion, for instance.
Prof. WERMIEL: It could make a difference. It could also make a difference in church-state separation issues.
NEARY: Yeah. And you expect that the Senate will--he will be asked about these personal views?
Prof. WERMIEL: I think he will be asked about personal views to the extent that he tries to draw a distinction between personal views and judicial views. Certainly Democratic senators will want to press him harder on that distinction, and how do we know, you know, which is really you? I mean, we've already seen this in his confirmation hearings for the Court of Appeals, we sort of have the model. We have Democratic senators yelling at him saying, `You haven't told us enough. You haven't given us a real sense of yourself. We don't know whether we can vote for you or not. You need to be more forthright.' That's only gonna be even more dramatic on the part of the Democrats, I think, in the confirmation hearings for the Supreme Court.
NEARY: How well has that worked in past confirmation hearings, to take that strategy as a nominee?
Prof. WERMIEL: Different nominees have pulled it off with different degrees of success. Justice Scalia, who was riding a couple of things that worked in his favor, one that the Democrats were putting their effort into opposing the elevation of William Rehnquist to chief justice at the time, and so weren't focusing on Scalia, and another factor that he was the first Italian-American appointed to the court. He went through without ever answering a single question about any case ever decided by the Supreme Court. He said he thought it would be wrong to even take a position on the 1803 decision of Marbury vs. Madison, the kind of underpinning of the Supreme Court's power now, you know, 200-plus years ago.
NEARY: Hmm. Joining us now is David Leach. He is general counsel and senior vice president of Ford Motor Company. He worked with John Roberts at the Washington law firm Hogan & Hartson, and he joins us now from his office in Dearborn, Michigan.
Thanks for being with us, Mr. Leach.
Mr. DAVID LEACH (Ford Motor Company): Glad to be here.
NEARY: Give us a sense of what you know about John Roberts from the time that you spent working with him.
Mr. LEACH: Well, he's a wonderfully warm individual. I think you saw a little bit of that last night in his remarks after the president spoke. Just down-to-earth and personable. And he's really just an outstanding lawyer. I mean, I think folks from across the political spectrum have praised his ability, have praised his fair-mindedness, and have praised the way that he conducts himself as an attorney and as a person.
NEARY: How would you describe his legal philosophy?
Mr. LEACH: His legal philosophy is one that I would say is more conservative than not, but I don't view him as an ideologue. He's not somebody who makes a determination early in a case about how he thinks it ought to come out and then fit the legal reasoning to a desired result. Instead, as a lawyer's lawyer, he is going to use the tools that he thinks a lawyer ought to use and the interpretive methodologies that a lawyer ought to use to reason his way to what he thinks is the correct legal result in a case.
NEARY: A lawyer's lawyer. Is that the best way to describe him and his legal philosophy or...
Mr. LEACH: I think so. I think that's why so many people from across the political spectrum and across jurisprudential lines recognize that he is an outstanding pick for the court.
NEARY: Yeah. Now we've heard that the business community apparently is quite pleased with this nomination. A lot of the cases he dealt with in private practice dealt with cases--dealt with business. Is that correct?
Mr. LEACH: Well, he dealt with a lot of cases involving business interests. He also dealt with environmental issues. He dealt with affirmative action issues, church-state issues, so I don't think it's easy to say that he was expert in any particular area of the law. His ability was to take cases in various areas of the law and to present them to the Supreme Court in 39 arguments in the Supreme Court in a way that made them accessible to the justices who themselves are generalists. So while he was hired by a lot of business entities, he was also hired by a lot of other types of entities to present their cases. He argued for states, for example. He represented Hawaii, he represented the state of Alaska and he represented the state AGs in their lawsuit against Microsoft, so...
NEARY: All right. We're gonna continue talking about the president's choice for--to join the Supreme Court, John G. Roberts. What do you know about the nominee? Give us a call at (800) 989-TALK.
I'm Lynn Neary. It's TALK OF THE NATION from NPR News.
(Soundbite of music)
NEARY: This is TALK OF THE NATION. I'm Lynn Neary in Washington, sitting in for Neal Conan.
We're discussing what we know and what you still want to learn about John Roberts, the president's nominee for the Supreme Court. What are your questions about Judge Roberts' records, his record, his views and confirmation process? You're invited to join the discussion. Give us a call at (800) 989-TALK, and again, our e-mail address is email@example.com.
Joining me in the studio is Stephen Wermiel. He is the constitutional law professor at American University's Washington College of Law, and joining us by phone is David Leach, general counsel and vice president of Ford Motor Company. He worked with John Roberts at the Washington, DC, law firm Hogan & Hartson.
And I've got to ask you both a question. Over and over and over again you keep hearing about Judge Roberts' personality. Is that the best thing he's got going for him as he enters into this confirmation process, Stephen Wermiel?
Prof. WERMIEL: I don't think it's necessarily the best thing, but it's a strong asset. I mean, it's not just his personality, it's his legal talent and his skill and his reputation as an absolutely brilliant lawyer. I can't tell you how many people in this morning's newspapers and last night's...
Prof. WERMIEL: ...commentary used the word `brilliant' over and over and over again. But his personality, his kind of unflappability, his calm demeanor, some charm, some polish, a sincerity, I think will make the confirmation hearings go well for him, or better than they might if he were a divisive and kind of hostile personality.
NEARY: David Leach, what about his style in the courtroom?
Mr. LEACH: Well, his style in the courtroom is much like what you've heard about him outside the courtroom. He's a reserved person. He is forthright and trustworthy. I think the justices in the cases that he's argued before them, 39 of them, have come to trust John Roberts. When they say--when he says something, even as an advocate, they know that they can take it to the bank. And I think part of the question of his personality is by no means the best asset--it's one of a great number of good assets this man brings to the court--but one thing he does bring is instant collegiality with the other members of the court. They all know him, they like him, they admire him, and I think they'll welcome him to their--to the fold as soon as he gets there.
NEARY: All right. We're gonna take a call now from Patricia in Rochester, New York.
PATRICIA (Caller): Hi. Thank you for taking my call. I do have a quick question. I've heard that Judge Roberts had some professional association with special prosecutor Ken Starr. He's a controversial figure, as we all know, and I'm just really curious as to the level of that relationship, and do you anticipate this being a stumbling block in him receiving the support he needs?
Mr. LEACH: I can take a stab at that, if you want. He and Ken Starr worked together in the Justice Department, both when John was a young lawyer, a special assistant on the attorney general's staff, and then John was his deputy when Ken Starr was the solicitor general. I don't think it should be a stumbling block. Ken Starr is a distinguished lawyer, former judge himself, and John certainly has made a name for himself that is hard to attack, I think.
NEARY: All right. Thanks for your call, Patricia.
PATRICIA: Thank you.
Prof. WERMIEL: I would just add that all of that took place before Ken Starr became the more controversial figure that perhaps he is today when he was investigating Bill Clinton.
NEARY: All right. And I want to thank you, David Leach, for joining us.
Mr. LEACH: My privilege. Thank you.
NEARY: David Leach is general counsel and vice president of Ford Motor Company. He worked with John Roberts at the Washington, DC, law firm Hogan & Hartson.
We now turn to Capitol Hill where one of the members of the Senate Judiciary Committee joins us now. Charles Grassley is a Republican senator from Iowa.
Welcome to the show.
Senator CHARLES GRASSLEY (Republican, Iowa): Yeah, I'm glad to be with you, Lynn.
NEARY: What do you think of the president's choice?
Sen. GRASSLEY: Well, first of all, you know, I was a member of the Senate Judiciary Committee for a long time, so I've had an opportunity to vote for Judge Roberts when he was going on the Circuit Court. He was voted out 14-to-3, I believe it was. I was one of them. He passed in a non-controversial way on the floor of the Senate with a voice vote. I think that though there's a higher standard, or at least more introspection of a person being put on the Supreme Court than being on a Circuit Court, so I don't think that that's any indication he's going to get a free ride for the Supreme Court. We have cases now that he has ruled on to look at, other things. We're going to have--pay more attention to his views now than probably when he was going on the Circuit Court.
NEARY: What do you think is--the main challenges are gonna be?
Sen. GRASSLEY: I think his main challenges will be to try to explain positions that he took for his client, which was the president or the attorney general at the time, when he was counsel to presidents or within the solicitor general's division of Justice, for the reason that I think a lot of people will want to take those papers he wrote, those opinions he took, those positions he took in the Supreme Court arguing a case as his own personal view as opposed to his being a lawyer for his client, which in most cases was a president or an attorney general or the government generally.
NEARY: Do you think it's a problem that he doesn't really have much of a record as a judge?
Sen. GRASSLEY: I--you know, I suppose we're used to that today because so many judges that have gone on the Supreme Court--or people that have gone on the Supreme Court have been judges, and so we think of only judges being qualifications enough to be a justice. But if you go back to the mid-1950s, you know, it was not a concern. At one time we had three former senators on the Supreme Court at one time. And nobody raised any concern about their lack of judicial experience. So maybe, you know, we shouldn't be overly concerned about that today. On the other hand, I suppose you'd say, well, look at what has happened to various controversial people in the past, and the more they wrote, maybe the more of a problem it was.
On the other hand, you know, look at how quickly Justice Ginsburg went through and the respect that she was given and the unanimous position she had. She didn't give a lot of opinions before committee, and maybe we shouldn't expect more of Judge Roberts.
On the other hand, let's suppose there are a lot of intensive questions asked or there's a lot of strong opinions given about a nominee. I always refer to Senator Kennedy in 1990, Justice Souter was before there. Senator Kennedy said, and I've got a quote, but I got to paraphrase it because I don't have it memorized--anyway, he thought that Justice Souter might be a threat to the right of privacy and could be a deciding vote in overturning Roe v. Wade. Well, obviously Justice Souter did not turn out to be anything like what Senator Kennedy was concerned about. So if Senator Kennedy can be wrong on that, you know, you've got to look at broader issues than--and avoid litmus test-type issues before the court, because you could be wrong 15 years from now.
NEARY: All right, Senator, we're gonna try and get a call in before you have to leave. We're gonna go to Jill in Aurora, New York.
JILL (Caller): Hi. I would like to know more about Justice Roberts' involvement in giving advice to the Bush campaign in their Bush v. Gore case, a very controversial case with a controversial decision. Thank you.
NEARY: OK. Thanks for your question. Senator Grassley, can you take that?
Sen. GRASSLEY: Well, I can't give any more information than the fact that he was an adviser, not to the Bush campaign, but to Governor Bush, as the chief executive of Florida. I suppose the extent of which the government of Florida, having control over the election laws of Florida, could help resolve the election issues that were going on down there. And I don't know whether you would get any such information, because the information between a client and the lawyer is confidential.
NEARY: Given the divisive nature of politics on the Hill right now, do you expect that his involvement in that might fuel some opposition to this nomination?
Sen. GRASSLEY: I wouldn't think so. I would think the Supreme Court answered that question in December 2000.
NEARY: One last question: What role do you think the so-called Gang of 14, the bipartisan group of senators who are committed to preventing both judicial filibusters and the nuclear option, what role might they play in this confirmation?
Sen. GRASSLEY: The strongest member of that Group of 14 is Senator McCain. Senator McCain has been on radio and television saying that there are no unique circumstances in this particular nomination that should bring about a filibuster of this judge.
NEARY: All right. Thanks so much for joining us.
Sen. GRASSLEY: Thank you.
NEARY: Charles Grassley is a Republican senator from Iowa. He joined us by phone from Capitol Hill. And with me in Studio 3A is Stephen Wermiel, and he is constitutional law professor at American University's Washington College of Law.
Stephen, there is an e-mail here asking: `How close is Mr. Roberts' association with the Federalist Society? Many of the lawyers advising Paula Jones, state troopers and other parties to lawsuits against former President Clinton were key members of the Federalist Society. Has Mr. Roberts been involved in such activities?'
Prof. WERMIEL: He's a member of the Federalist Society, but he's not somebody that has given many, many, many speeches to them, has been a highly visible figure involved in it the way some of the other, I think, names that were under consideration were.
NEARY: And what does that say about him, that he is a member of the Federalist Society?
Prof. WERMIEL: Well, we know he's conservative. I mean, he came to--you know, when he finished his clerkship with Justice Rehnquist on the Supreme Court, he went to work in the Reagan Justice Department, with a number of young conservative lawyers, and they've all been involved in the Federalist Society. Michael Luttig, who was another one of the finalists, J. Harvie Wilkinson, who was another name that was under consideration; Chuck Cooper is a Washington lawyer; Doug Kmiec, former dean of Catholic Law School--they all were kind of young conservative lawyers in the Reagan administration, and they're among the people that helped get the Federalist Society started. I don't think it tells us much more than that we know that he's conservative.
NEARY: I wanted to ask you about something that Senator Grassley brought up, and that is this distinction being made between statements that Judge Roberts has made on behalf of clients and what his beliefs might be. I mean, is there anything we can learn about his views from cases he has chosen to take on, as well as what he has done on behalf of administrations?
Prof. WERMIEL: I think that's really going to be a crucial question in the confirmation hearings, and I'm not sure that I can give you an answer now because I don't know how it's going to play out. I think that will depend, in part, on how Judge Roberts decides to answer those questions. As a Court of Appeals nominee, he pretty much stood pat on the idea that he made arguments on behalf of clients, both the government and in private practice, and that's what a lawyer is supposed to do, period, end of discussion.
I don't think the Democrats on the Senate Judiciary Committee, during their chances to question the nominee, will accept that as a sufficient answer. I think they will press him for more information, but I also think he's very skilled at keeping his calm and not necessarily giving them information that he doesn't really want to provide. So I think that's sort of going to be the essential tension in the hearings, is how much do we learn about him and can we learn it from knowing what cases he's handled?
NEARY: My guest is Stephen Wermiel, and we're talking about President Bush's choice for the next Supreme Court justice. If you'd like to join our discussion, give us a call at (800) 989-8255. And you're listening to TALK OF THE NATION from NPR News.
We're going to take a call from Steve in St. Louis, Missouri. Hi, Steve.
STEVE (Caller): Hi. I'm calling because to a certain degree, I'm disappointed that so many people have focused on questions about specific cases that Mr. Roberts has been involved with. I'm much more interested in the legal principles that he's used in making these decisions. For instance, does he believe that there's a constitutionally protected right to privacy or does he believe, you know, that the contract clause of the Constitution applies to individuals and not corporations? You know, what are the underlying principles that determine his decisions? Because these are issues that will ultimately take play in the multiplicity of decisions that he'll be making over, you know, the couple of decades that he would be involved in the court.
NEARY: Very good point. And I'm going to ask Stephen Wermiel to answer that for you. Thanks, Steve.
Prof. WERMIEL: Very good question, but difficult to answer. And really, I don't mean to sound like I'm ducking it and going back to what we were talking about, but it really does go to the complexity of this nominee. He's taken certain positions in behalf of clients in specific cases. He has not been willing to, at this point, say, `Those are my personal views.' Whether it's broad judicial, philosophical view about the existence of a right to privacy or not. He's dealt with very few of those kinds of issues as a judge on the US Court of Appeals. He answered relatively few specific questions along the lines that the caller mentioned during his confirmation hearings to be a judge on the Court of Appeals. And so the answer is, those are the right questions, but we don't know the answer, and we don't know whether we're going to know the answers.
NEARY: Yeah. And I imagine that's what members of the Senate Judiciary Committee, Democratic members in particular, are going to be trying to get at. And we are joined now by Democratic Senator Richard Durbin of Illinois. He is a member of the Judiciary Committee. The committee will be holding the confirmation hearings on John Roberts. Thanks for being with us, Senator.
Senator RICHARD DURBIN (Democrat, Illinois): Good to be with you.
NEARY: Senator Durbin, at this point, what are your questions for the nominee? What do you want to know?
Sen. DURBIN: You know, I liked your last caller.
Sen. DURBIN: I think it really got to the heart of it. It isn't a matter of saying, `What about Roe vs. Wade? Would you decide it the same way?' and such. But I really think that we need to get to first principles when it comes to this inquiry. Let's concede the obvious. Judge John Roberts is a man of extraordinary legal ability; by every indication, is an honest person with integrity and has a good temperament.
Now let's go to the work of the committee, and that is to see if his values and views are in the mainstream of America on a lot of fundamental, core issues: privacy of individuals, the privacy of families, workers' rights, women's rights, civil rights, protecting the environment. You know, these are the things which will guide his decisions, whatever the fact patterns might be, and I think that's what we should be talking about.
NEARY: How do you uncover that, those sort of philosophical underpinnings?
Sen. DURBIN: It's a good question. I didn't have much luck the first time around with this judge when he was seeking the DC Court of Appeals. When I questioned him about some statements on Roe vs. Wade, he said that when he called for overturning that case, he was being an attorney for a client; in this case, the government. And I said, `Well, what about your personal views?' He said, `Well, it's settled law. The Supreme Court has decided that, and after the Casey decision vs. Planned Parenthood, it's even more settled,' in his words, but he wouldn't go so far as to tell me what he thought.
NEARY: And that's what you're going to be probing from him.
Sen. DURBIN: Well, I think so...
Sen. DURBIN: ...and it really gets down, as the caller said...
NEARY: Senator Durbin, we're going to take a very short break and come back and continue this discussion with you. As I just said, we'll be continuing our discussion of the Supreme Court nominee, John Roberts. Give us a call.
I'm Lynn Neary. It's TALK OF THE NATION from NPR News.
NEARY: This is TALK OF THE NATION. I'm Lynn Neary in Washington. Neal Conan is out today.
Here are some of the stories NPR News is following today. Nine staff members of the Iraqi Special Tribunal preparing to try Saddam Hussein have been dismissed because of links to the Baath Party.
And the US and Russia have apparently agreed on plans to dispose of nearly 70 tons of weapons grade plutonium. Analysts say the deal will help keep dangerous materials away from potential terrorists. Details of those stories and others later today on "All Things Considered" from NPR News.
Tomorrow, China's appetite for resources continues to boom, and its footprint on the international stage is only getting larger. To better understand these changes, we begin a series of occasional conversations on the Middle Kingdom, starting with Clyde Prestowitz, author of "Three Billion New Capitalists." That's tomorrow on the show.
Today we're learning more about John Roberts of the District of Columbia's Circuit Court of Appeals and his nomination to the Supreme Court. What more do you want to know about this candidate? Call us at (800) 989-TALK or send us an e-mail to firstname.lastname@example.org.
Still with us is Stephen Wermiel, constitutional law professor at American University's Washington College of Law. And joining us from Capitol Hill, Democratic Senator Richard Durbin.
Before the break, Senator Durbin, you were talking about the nomination hearing for Judge Roberts to the District of Columbia's Circuit Court of Appeals and the fact that it was hard to pin him down on his philosophy during that hearing. What approach are you thinking about taking now that might be different or...
Sen. DURBIN: Well, he's kind enough to call today and ask for a meeting tomorrow, so I'll get a chance to see him face-to-face. But I really want to find out how we can approach this in a civilized and informative manner. I really think we have to get to some core values here and have him speak to his vision of America. If he is a member of the bench of the Supreme Court, he could be there for 20 or 30 years, and I think before giving that lifetime opportunity, he really needs to tell us what's in his heart, not his mind, as a jurist.
So I think we approach it, let's--for example, on the whole issue of abortion, which really stems from the whole question over privacy in Griswold vs. Connecticut. What's his view on privacy? Does he think this is an implicit right in the Constitution, one that should be respected in the future? And for those who think there's no relevance to this, that the cases are all decided, we're just a few months away from the Terri Schiavo experience where the privacy of a family in making the most difficult decision a family can face was going to be interrupted by government intervention. So I think it's continuing to be a relevant topic and will be in the future.
NEARY: OK. I know Professor Wermiel wanted to ask you a question as well, Senator Durbin.
Sen. DURBIN: Sure.
Prof. WERMIEL: Senator, I appreciate it. I read the transcript of the last hearing, the one that you're talking about, and while I wasn't in the room, it sounds from the transcript like your frustration at his not answering those questions was very apparent. Does he have to answer those questions to get confirmed, and if so, does he have to answer it for you, or is that a critical issue in the Democrats that were part of the so-called Gang of 14? How does that play out, do you think?
Sen. DURBIN: Well, it's not just a matter of personal curiosity. What I'm asking are questions that I think most Americans would ask. You know, when you ask most Americans, they say, `We want somebody who's legally talented and skilled and honest and good temperament, but we want to know who they are. We want to know what their values are. We want to know if they come to the bench with an open mind or a partisan agenda, whether they're not only intelligent but independent?' These are things which, I think, get to the heart of it, and so for my own satisfaction, to support him, he'll have to be more forthcoming than he was in the previous hearing. I was concerned, as you can tell from reading that transcript, that no matter how I asked the question, I couldn't get a straight answer. I just don't think that's going to be enough for the Supreme Court.
NEARY: This is going to be playing out, though, before a national television audience, I think, and might that affect the proceedings in any way?
Sen. DURBIN: Well, I hope it does in a positive way. First, I am certain members of the committee on both sides want this to be a dignified orderly hearing, and it will be. But secondly, I hope that Judge Roberts comes to it with a spirit of cooperation. As Senator Schumer said last night, it's not our burden on the committee to prove that he is of quality to serve on the Supreme Court. It is his burden to stand up and show us why he should receive this lifetime appointment to the highest court in the land. And I think that means that he has to be forthcoming in his answers.
NEARY: We've been talking a lot about the fact that there's a real need to know his philosophy, his underlying values, but will you also be asking about some of these very specific, very hot button issues that we're facing? Specifically what his take is on Roe vs. Wade, those kinds of questions?
Sen. DURBIN: I will, but in a larger context. I know America is divided on this issue, and I see it in my own state. People feel strongly one way or the other, but the overwhelming majority of Americans do understand the right of privacy, and I think that really is the key to this. And I'd like to know what he thinks about that, because it's going to be a recurring issue, a recurring challenge. I also think that the court seems to be moving in a new direction when it comes to the Commerce Clause. That's a power of the federal government over states, a much more restrictive view. If Judge Roberts is going to be a deciding vote on those issues, it really opens up a huge array of possibilities of questions that need to be asked, from business regulation to environmental regulation. All of those things may fall under the Commerce Clause.
NEARY: If you find, in asking these questions, that you are concerned about Judge Roberts' underlying philosophies and thoughts and ideas and values, what then?
Sen. DURBIN: I don't want to vote no, but I won't be reluctant to if his answers to questions give me pause about whether his vision of America is reflective of mainstream values. I just don't think--and I don't want this to reflect on Judge Roberts. I want to give him his day in court, as we say. But I just don't think that we need to bring anyone to the bench that doesn't understand the importance of this institution. This is the last stop in America when it comes to our individual rights and freedoms, and we need to make certain the justices on that court are appreciative of it, and we certainly don't want anyone on this court who comes in with a political agenda, right or left.
NEARY: OK. And just one other thing. I presume that you've been taking with other Democrats on the Hill today. I'm just wondering what you're hearing?
Sen. DURBIN: Well, most of them have said, `Let's follow the regular process here.' The Senate Judiciary Committee has proven in the past that with the right approach, given enough time and deliberation, they can really get to the heart of the matter and really understand the nominee and his feelings. And I think most members on both sides of the aisle come to this with a very open mind.
NEARY: All right. Thanks so much for your time.
Sen. DURBIN: Thank you.
NEARY: Democratic Senator Richard Durbin joined us from Capitol Hill. And I wanted to ask you, Professor Wermiel, how much cooperation will the Judiciary Committee need from the White House just in terms of opening up records about Judge Roberts or the time that he spent when he worked in the White House under different administrations?
Prof. WERMIEL: Well, that has the potential to be a very critical issue. A couple of years ago when the Senate was considering the nomination to the US Court of Appeals of Miguel Estrada, a very hard-fought battle and Mr. Estrada eventually withdrew his nomination when the Senate wouldn't vote on him, a key issue in that fight was the senators wanting access to the internal working memos that Mr. Estrada had written while he was in the solicitor general's office.
This may be a little bit different because John Roberts, as a deputy solicitor general, was not routinely--at least presumably, not routinely writing the same kinds of case memos that Mr. Estrada would have written. He would have been receiving those memos from lawyers below him rather than writing them. But there's no doubt a paper trail from his time working for the attorney general, his time in the White House, his time in the Solicitor General's Office--if the senators feel that they're not getting insight into his views, then trying to get their hands on that paper trail as a way of getting insight becomes more of an important issue and something that the Democrats certainly are likely to raise.
NEARY: And what role do you think different advocacy groups are going to play in this confirmation process? We've been hearing an awful lot about the fact that advocacy groups on the right and the left have been raising a lot of money. Is it really going to influence the proceedings?
Prof. WERMIEL: I think it influences the proceedings in a couple of ways. The most critical way that it influences things is that it influences public opinion. And with all due respect to the Senate, you know, they are going to want to know how the nominee is playing in their home states, and they're going to be looking at opinion polls, and the advocacy groups are going to be looking to influence that public opinion in those home states. And at least in the Bork nomination in 1987, that made a big difference.
Prof. WERMIEL: That really made it possible to defeat the nomination.
NEARY: Let's take a call from Tay(ph) in Charlotte, North Carolina. Hi, Tay.
TAY (Caller): Hi. Thank you for taking my call. I have a comment and a question. My comment is--and I won't be able to quote President Bush directly, but last night he said something about Judge Roberts being fair and providing equality for everyone. And it's ironic to me that this is the same president that's trying to pass a constitutional amendment to deny same-sex marriage. My question is do we have any idea of Judge Roberts' view on gay rights and/or same-sex marriage?
NEARY: OK, Tay, thanks for that call.
TAY: Thank you.
NEARY: Again, that's another one of these hot button issues that we've been talking about, one of these cultural issues that can be very divisive.
Prof. WERMIEL: I don't think we have anything specific that tells us what his views are. I think that people are going to presume that because he's known to be fairly conservative, that he probably is opposed to gay marriage, but I don't think that's based on any specific factual record. I don't think there really is anything to go on there.
NEARY: All right. We're joined now from his office in Washington, by Wade Henderson. He's executive director of the Leadership Conference on Civil Rights. Thanks for being with us, Mr. Henderson.
Mr. WADE HENDERSON (Leadership Conference on Civil Rights): Thank you, Lynn, as well.
NEARY: Now earlier, you described the president as having chosen, quote, "the politics of conflict and division over bipartisan consensus." Why do you say that? What are your objections to this...
Mr. HENDERSON: Well, we say that with some degree of sadness, because truthfully, we had hoped that we and the civil rights community and the broad progressive community in general would have been able to enthusiastically embrace the president's nominee for the Supreme Court and that, like most Americans, would be able to get behind that nominee and hope for his or her confirmation.
Unfortunately, the president had an opportunity to unite our country and to choose a consensus nominee who represented all Americans, but instead, he's chosen a nominee whose record raises perhaps as many questions as it answers about where he stands on critical constitutional and legal issues. We have not expressed, I should remind you, opposition to Judge Roberts' candidacy, but we have said that serious questions have been raised that require a thorough review by the Senate Judiciary Committee.
I mean, certainly, we, like I think many Americans, are impressed by the qualifications that Judge Roberts brings to the table as a lawyer, but I think it's also important that we examine a candidate's record and judicial philosophy. I mean, you know, after all, there is no automatic right to a Supreme Court confirmation, and the burden rests with the nominee, even one who was previously confirmed for a lower federal court. And so thorough hearings are required. And that's not a strategy. It's a constitutional imperative.
NEARY: OK. Wade Henderson is the executive director of the Leadership Conference on Civil Rights, and you're listening to TALK OF THE NATION from NPR News.
Can you cite any particular rulings that disturb you or anything in his past career that you know about...
Mr. HENDERSON: Well...
NEARY: ...that you have particular concerns about that you would like to see...
Mr. HENDERSON: Yeah. Well, I think there are several rulings. I would begin first with one handed down just last week by the DC Circuit here in Washington in the case of Homden vs. Rumsfeld. That's the case in which the court overturned a lower district court decision which had held up the continued prosecution of a so-called enemy combatant in the military tribunals that President Bush has established in the aftermath of 9/11 and, of course, the Iraq War. The Court of Appeals, in effect, allowed the process to continue, but equally troubling, it said that the Geneva Conventions were not matters to be dealt with by the US federal courts and that the court really lacked the jurisdiction to examine these issues and that it didn't apply to al-Qaeda members. That's certainly a concern for us.
We're also concerned, I should point out, about issues of religious freedom. We know, for example, that in the past, Judge Roberts has, in fact--when he was deputy solicitor in the Bush administration, he helped to craft a brief which called on the Supreme Court literally to scrap decades of settled church-state law and uphold school sponsored prayer at public school graduations. It's an issue that touches many Americans where they live, and it deserves to be examined.
We're troubled by individual rights issues. For example, there was a case involving a young 12-year-old African-American school girl here in Washington, DC, who was arrested for riding our DC Metro subways in which she was eating a french fry, and the case involved whether, in fact, the child was subjected to unfair treatment and a denial of equal protection under the law, because our children faced a mandatory arrest while adults did not.
Mr. HENDERSON: Judge Roberts sided on the wrong side. And obviously, cases involving the right of privacy, a woman's right to choose and, you know, a--women's health-care issues as a civil rights concern. Those are troubling.
NEARY: Thanks so much for joining us today, Mr. Henderson.
Mr. HENDERSON: Yeah. Thank you so much as well, Lynn.
NEARY: Wade Henderson is the executive director of the Leadership Conference on Civil Rights. And joining us now is Carrie Gordon Earll, a senior policy analyst with Focus on the Family. Ms. Earll, I expect that you're happy about this.
Ms. CARRIE GORDON EARLL (Focus on the Family): Well, we're certainly pleased in the regard that this is a highly qualified and experienced candidate. We're impressed with his qualifications. His man has experience in every area of the law, and we commend the president for picking such a quality candidate.
NEARY: What are you expecting from the confirmation hearing? Do you think it's going to be a fight?
Ms. EARLL: Well, I don't know. Of course, it's a little early to tell on that. We do hope that there will be a fair access and polite and civilized debate within the Senate. We would hope for an up or down vote without any attempt to obstruct the president's desire to name someone. He did win the election in November, whether everyone likes that or not, and with that victory came the right for him to nominate, and the Senate has a role to advise and consent, but that does not mean obstruct. So we do hope it will be civil in the Senate.
NEARY: And is your organization getting ready to fight in favor of Judge Roberts' confirmation?
Ms. EARLL: Well, at this point, we will continue to educate our constituency as far as his strengths are concerned. There are some things we like about him. In his rulings, he does tend to move toward a more strict interpretation of the Constitution. It is indicated that he is an originalist, a strict constructionist in judicial philosophy. And again, the president was very clear during re-election that that was the type of candidate he would be looking for if a vacancy was open. So this really shouldn't be a surprise to Mr. Henderson or Senator Durbin or anyone else you've had on the program today. Clearly, Judge Roberts is not an activist and has no history of social activism, as did Ruth Bader Ginsburg before she was confirmed by the Senate.
NEARY: All right. Thanks so much for joining us today.
Ms. EARLL: Thank you.
NEARY: Carrie Gordon Earll is a senior policy analyst with Focus on the Family. She joined us from her office in Colorado Springs, Colorado. And with less than a minute to go, Professor Wermiel, is it going to be a fight? How tough is this fight going to be, would you say?
Prof. WERMIEL: Oh, I think it's going to be a fight, and I think there are a lot of stakes, and groups on all sides have extraordinary interests. Whether Democrats will ultimately end up opposing him in large numbers, I think it's too soon to tell, but I certainly think it's going to be a fight.
NEARY: All right. Thanks so much for being with us.
Prof. WERMIEL: Thank you.
NEARY: Stephen Wermiel is the constitutional law professor at American University's Washington College of Law.
You've been listening to TALK OF THE NATION from NPR News. I'm Lynn Neary.
NPR transcripts are created on a rush deadline by a contractor for NPR, and accuracy and availability may vary. This text may not be in its final form and may be updated or revised in the future. Please be aware that the authoritative record of NPR’s programming is the audio.