MELISSA BLOCK, host:
And now two legal scholars to interpret some of what we've learned in this week's hearings. We're joined here in the studio by Jeffrey Rosen, professor at George Washington University Law School. He's also legal affairs editor of The New Republic.
Professor JEFFREY ROSEN (George Washington University Law School; Legal Affairs Editor, The New Republic): Nice to be here.
BLOCK: And joining us from his office at Pepperdine University in Malibu, California, Professor Douglas Kmiec.
Professor DOUGLAS KMIEC (Pepperdine University): Thank you.
BLOCK: We heard Judge Roberts today trying to reassure Democrats, saying, `I am not an ideologue. Just look at my 50 rulings in my two years on the US Circuit Court of Appeals. Douglas Kmiec, did he make his case?
Prof. KMIEC: I think he did. I think he--his entire case for the last several days has been that he is going to be someone who follows the law as written, the Constitution as ratified and that all of the efforts in so many ways to press him for personal views, personal philosophy, hypotheticals on one substantive area after another just simply were resisted by his very strong conception of a judge as an impartial arbiter, who does not bring those personal conceptions to the bench. So I think he was persuasive.
BLOCK: But, Jeffrey Rosen, thinking about those personal views, the Democrats brought up a number of memos that John Roberts wrote when he was in the Reagan administration. And we heard voices from interest groups today--I'm thinking of Wade Henderson of the Leadership Conference on Civil Rights--saying, `Look, Judge Roberts has never distanced himself from these positions. I find no comfort.' It seems like Democrats on the committee are still struggling with that to some extent.
Prof. ROSEN: They were struggling, and they were struggling openly. There was a very dramatic moment, I thought, when Senator Schumer said, `I'm trying to weigh the pros and cons. On the pro side, you seem modest and humble. You care about stability and modesty. That all means a lot to me. But on the con side, there are documents you haven't released. You have these troubling youthful views. I don't know what I'm going to do.'
BLOCK: Jeffrey, I want to ask about what you wrote in The New Republic this week. You say in an article, `Democrats should vote to confirm Roberts as chief justice with gratitude and relief. Democratic senators should recognize that although they may not agree with every one of Roberts' views, they and the country almost certainly couldn't do better.' Why do you say that?
Prof. ROSEN: I did argue that. I have been very concerned, when the president was beginning to make a nomination, about whether he'd choose someone who took a very narrow view of congressional power and tried to resurrect restrictions on Congress that had been dormant since the New Deal. The Democrats were concerned about this, too. After reviewing his record, I was convinced that on congressional power, he was actually more liberal than Justice O'Connor, who he's replacing. And I was delighted to see that in the hearing Senator Schumer expressed similar relief. He said, `I'm reassured by your views that Congress can regulate cloned toads,' as Nina was discussing, `and I fear that--I'm relatively reassured that you're not a partisan of this movement to resurrect the Constitution in exile.'
So for those reasons, it struck me that it was hard to imagine a nominee who would be better suited to Democratic views of congressional power, and that's why I suggested that liberals should vote to confirm him.
BLOCK: It did seem, Doug Kmiec, that on this committee there quite clearly was a lot of concern about deference to Congress. We heard Arlen Specter today fussing at John Roberts, saying, `Look, I'm not talking about the essence of jurisprudence here. I'm talking about a specific issue, and I don't seem to be able to get an answer from you.'
Prof. KMIEC: Yes, there--Senator Specter started out the hearings by, even before the testimony began, saying he was going to be questioning the nominee closely about the scope of deference given to Congress' authority. And I agree with Jeffrey, and it's not something that I actually am cheered up about because there's--this is a place where his difference from Justice O'Connor, I think, in my judgment, takes him away from the structure of the Constitution. His--too much deference to Congress on the commerce power means that Congress regulates things under that power which have nothing to do with commerce at all, even in terms of serious commercial effects, like the use of medicinal marijuana, for example, the court considered in the last term.
But I'm not overly concerned about it because the rest of John Roberts is what is the real guarantee, and that is in any given case, he will fairly apply the principles of law as they exist in precedent and as they are written down. And I think, Melissa, when you asked before did he make his case that he was a non-ideological judge, I thought it was very effective when he said, `I know my time on the Court of Appeals has been modest or relatively short, but look at those opinions.' And I think anyone who does look at them does see a John Roberts who applies the law carefully and reasonably, so that even when he's suggesting that maybe the commerce power doesn't reach the hapless arroyo toad, he's suggesting that Congress might have alternative ways to accomplish its objectives. And he's not reaching out to strike down laws without due consideration.
BLOCK: Jeffrey Rosen, if you look at what John Roberts said during these last few days in these hearings, where do you see gaps or air between his views, say, and those of Justices Scalia and Thomas? We've heard President Bush say that the justice he would want to see on the court is the justice in the model of Antonin Scalia or Clarence Thomas.
Prof. ROSEN: Very much so. And Senator Biden today said, by contrast, `If I think you're like Scalia and Thomas, I'll vote against you. By contrast, if I think you're like Kennedy or Rehnquist, I'll vote for you.' That seems like a sensible standard. I think he's unlike Scalia and Thomas in several ways. He said a bunch of times, `I am not a doctrinaire originalist. I do not believe that the Constitution should only be construed in light of its original understanding. I believe more in pragmatism and flexibility.' That's a big difference.
He's different than Justice Thomas in his views about precedent. Justice Thomas will vote to overturn any precedent with which he disagrees. Judge Roberts said repeatedly that, `I believe in stability and modesty, even if I disagree with the decision.' And he's unlike Scalia and Thomas in his visions of the right to privacy. He said that liberty clearly protects a substinate dimension(ph) of privacy, which Scalia is more skeptical about. He's also unlike Scalia and Thomas in his views about congressional power for the reasons we've been discussing. So that was another series of reasons that I thought liberals should be relatively relieved that they have a Roberts rather than a Scalia and Thomas. And Democratic senators will be weighing these considerations as they try to decide what to vote.
BLOCK: Doug Kmiec, obviously John Roberts would be filling the role of chief justice of the United States. He was asked about a couple of his predecessors: Warren Burger, Earl Warren. Did you hear anything in his answers that would indicate the type of chief justice that John Roberts says he would be?
Prof. KMIEC: Well, he expressed admiration, as you know, Melissa, for both. One would expect him to have great admiration for William Rehnquist by virtue of his courting relationship with him. But he expressed particular respect for Earl Warren in terms of his ability to achieve a unanimous vote in Brown vs. the Board of Education. And one of the things that is crystal clear from this hearing is how strong a conception of equal protection of the law is--John Roberts has, noting in particular that it should not be governed by a crabbed legislative history but, instead, by the expansive words of the text.
I think if there's anything that tells us what he'll be like as chief justice, it's his stamina in answering these questions over the last 20 hours. He is virtually unflappable. He is charming to a fault. He is self-effacing. And he is wonderful at listening to opposing arguments and responding as well as he possibly can.
BLOCK: And, Jeffrey Rosen, briefly to you.
Prof. ROSEN: There was one chief justice that he expressed a little bit of skepticism about, and that was Chief Justice Burger, Rehnquist's predecessor. Burger drove his colleagues crazy by switching his vote at the last minute, so that he could hog the best opinions to himself. And Roberts said, `I'm not going to be like that at all costs.'
BLOCK: Thanks to you both.
Prof. ROSEN: Thank you.
BLOCK: Jeffrey Rosen, professor at the George Washington University Law School here in Washington, and Douglas Kmiec, professor of constitutional law at Pepperdine University in Malibu, California.
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