ROBERT SIEGEL, host:

Well, we've heard from Judge Roberts under questioning--some of it friendly, some of it not so friendly--and now we're going to hear what two scholars of the law make of what he said. Joining us today, as they have in the past, are Professor Douglas Kmiec, who teaches constitutional law at Pepperdine University in Malibu, California, and joins us from his home there.

Welcome back, Doug Kmiec.

Professor DOUGLAS KMIEC (Pepperdine University): Thank you, Robert.

SIEGEL: And Professor Jeffrey Rosen of the George Washington University Law School, who's also legal affairs editor of The New Republic and is with me in the studio.

Good to see you again, Jeffrey.

Professor JEFFREY ROSEN (George Washington University Law School): Good to be here.

SIEGEL: I'm going to start with you, Jeffrey Rosen. From what Judge Roberts said in those answers about Roe vs. Wade, the right of privacy, stare decisis, should liberal or pro-choice senators and those who support them be in some way cheered by what they heard today or not?

Prof. ROSEN: It was always obvious that the effort to smoke out Roberts' views on Roe v. Wade would be doomed to failure. He bobbed and weaved as effectively as past nominees have. He gave enough reassuring words about stare decisis to reassure liberals, but also to maintain some hope in conservatives who think that he could go either way. So I wouldn't be upset or happy about that aspect of the testimony.

What should reassure liberals, and much more illuminating than his views about Roe, were that he explicitly disavowed the strict constitutional originalism, the idea that the Constitution should be interpreted in light of the understanding of its framers, of Justices Scalia and Thomas. And in a very interesting exchange with Senator Grassley, he said, `I find those demands, the nuances of academic theory, are dispensed with fairly quickly. Judges take a more practical and pragmatic approach to reaching the best decision.' He said, `I'm a bottom-up judge, not a top-down judge. I don't impose a theory from above; I take each case as it comes.' That gladdened this particular heart, in any event, because it suggests that he doesn't have a comprehensive theory, and I thought that was good.

SIEGEL: And that's a liberal heart that you're talking about.

Prof. ROSEN: Well, let's call it a moderate heart.

SIEGEL: OK, a moderate heart.

Prof. ROSEN: A moderate liberal heart.

SIEGEL: We heard in Nina Totenberg's report--we heard him answering clearly, `Yes, I do believe that there is a right to privacy that is guaranteed in the Constitution,' something that Judge Bork, as we may recall, did not say when he was up for confirmation a long time ago.

Prof. ROSEN: He did say that. He also said that he and other justices believed in the doctrine of substantive due process, which is the doctrine by which the right to privacy has been recognized. But on the other hand, he said that the right of privacy is protected by particular amendments, and he did not say that he explicitly agreed with the result in Roe. So I wouldn't read too much into that.

SIEGEL: Well, Douglas Kmiec, does your conserv--more conservative heart, in any case, out in Pepperdine--is it at all cheered by what you heard, or was it dismayed by what you heard on these subjects?

Prof. KMIEC: No, I'm cheered, to keep the verb going, because he has stayed very close to the model of an impartial, open-minded judge that he has demonstrated all along since his nomination. And he has done this in a number of ways, both in the substantive answers that he's given that you and Jeffrey have just discussed on abortion and substantive due process and privacy, both giving a clear understanding of what the existing law is as well as a commitment to be respectful of the settled precedent, but also being very careful--and this is the other part of the hearings that I think he's doing very well with--being very careful to walk the line that stays clear of making predictions or promises, stays clear of expressing, for the most part, his personal view on whether a past case was correct or not, or whether or not another justice got it right or incorrect.

And in this, we've heard an awful lot of references to Justice Ginsburg and whether or not he's following the Ginsburg model. And when you look--in fairness to Senator Biden, when you do look at the confirmation hearings...

SIEGEL: We should explain we're referring to the Ginsburg model of what questions you answer or don't answer at confirmation.

Prof. KMIEC: That's exactly right. And when you look at the transcript of Justice Ginsburg's hearings, you see that she declined to answer a great many questions, like Justice Roberts today, because they would have improperly committed her to an outcome, but also that she answered some and that she deviated from her general rule, and that's inevitable.

SIEGEL: That's Douglas Kmiec, and we'll be hearing more from him and also from law Professor Jeffrey Rosen on today's answers from Judge John Roberts at his Senate confirmation hearings.

We'll hear that when we continue with ALL THINGS CONSIDERED from NPR News.

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