Video: SCOTUS confirmation

updated 9/15/2005 11:40:50 AM ET 2005-09-15T15:40:50

Alan Dershowitz, Harvard Law professor, former Supreme Court clerk and Wendy Long who clerked for Justice Clarence Thomas, and is now legal counsel for the Judicial Confirmation Network, weighed in on Wednesday's 'Abrams Report.'

To read an excerpt of the conversation between Abrams, Dershowitz and Long, continue to the text below. To watch the video, click on the "Launch" button to the right.

DAN ABRAMS: After looking at two days of the Confirmation hearings for John Roberts, "my take" is that this hearing is, and I would assume almost all the hearings in the foreseeable future will be a waste of time.  The Senators spout off either about issues they care about and how they want answers or about how great Roberts is.  In this polarized environment these hearings have become useless, I think.

Alan, hasn't this become a kind of a waste of time? 

ALAN DERSHOWITZ:  It has, but I think it's important for this reason.  Remember that the Republicans are saying we want an open-minded judge.  We want a judge whose decisions we can't predict.  And Roberts has said over and over again, I'm not going to give you anything to be able to predict.  But Bush knows, after all, the mantra of the Republican Party is no more Souter's, no more Souter's.

And so the Bush administration picked somebody who they knew wasn't a (David) Souter.  They know what his views are.  They know he's predictable.  They know he's reliable and now we're being denied the right to know what they know and there's no basis whatsoever....

ABRAMS:  Wait.  But if they know it then-you're saying they know it only because they've read some of the writings that haven't been released.  I mean they know it.  The Democrats know it.  Everyone knows it.

DERSHOWITZ:  The Democrats don't know it.  No, the Democrats don't know it.  The Democrats and the public don't know what his views are on separation of church and state because he's not written about that.  But you can be sure that the Bush administration knows that this guy is going to break down the wall of separation.  He's not going to be one who believes in a high wall of separation. 

They know what his views are going to be on capital punishment.  You know what his views are going to be on a range of other issues.  He is a guaranteed, certified, non-Souter.  They know, because they have an opportunity to talk to him in private. 

ABRAMS:  Wendy ... do they know more than the Democrats and the public?

WENDY LONG, JUDICIAL CONFIRMATION NETWORK:  They do not know more.  In fact Judge Roberts was asked today by Senator Feinstein whether he had been asked by the administration what he'd do about Roe and he answered truthfully no.  Of course we know his general judicial philosophy.  George Bush is not going to appoint someone in the mold of Ruth Bader Ginsburg. 

That's not what he promised.  He promised someone in the mold of Justice Thomas and Justice Scalia and that's exactly what we've got.  It's very clear from the testimony and yes, it's clear from his record, but you know what, it was clear from Justice Ginsburg's record too exactly what kind of justice we were getting with her. 

DERSHOWITZ:  But there's a big difference.  Justice Ginsburg could have been appointed by George Bush the first, as could Stephen Breyer.  They are centerists, moderates in the center wing of the Democratic Party and here, the Republicans have constantly either made mistakes or done it correctly, but they've appointed people who they think are right wing ideologues.  Sometimes they guess right.  Sometimes they guess wrong. ... This time they made sure they didn't make a mistake.

ABRAMS:  Let me let Wendy respond to that real quick.

LONG:  You're exactly right that this President Bush is doing a much better job than President Reagan and the first President Bush about getting justices.... with a judicial philosophy consistent with his, who won't put up with the kind of silliness, I predict, that we saw today again out of the Ninth Circuit on the Pledge of Allegiance. 

ABRAMS:  We'll talk about that as a district court judge.  But here's what I think the problem is.  All right, listen to Senator (Arlen) Specter, who is a moderate Republican, who is the chairman of the committee, and it seems that he's very concerned about the justices insulting the Congress.  Listen. 

-- Begin video clip --
SEN. ARLEN SPECTER (R), PENNSYLVANIA:  We do our homework evidenced by what has gone on in this hearing and we don't like being treated as schoolchildren, requiring as Justice Scalia says, a taskmaster.  Will you do better on this subject, Judge Roberts? 

JOHN ROBERTS:  Well, I don't think the court should be taskmaster of Congress.  I think the Constitution is the Court's taskmaster and it's Congress' taskmaster as well. 
-- End video clip --

ABRAMS:  Alan, this is their one chance, right, to say to the justices, stop doing this to us.

DERSHOWITZ:  Well you know, here you have one issue where most people agree, it's judicial activism to do what the Rehnquist court did, strike down nearly 30 laws duly enacted by Congress and so the senators get on high judging and they're defending their own right.  This has all been about power ... the Senate's power, the Republican's power. 

ABRAMS:  Right.

DERSHOWITZ:  We haven't heard a word about little people.  We haven't heard a word about the disenfranchised.  We haven't heard a word about the people who the Constitution, the Bill of Rights... who's really intended to protect. 

ABRAMS:  You know you're not going to get the answers...

DERSHOWITZ:  But I have my answers.  I know that Justice Roberts and I've been assured by your other guest, Justice Robert is not going to defend the rights of atheists.  He's not going to defend the rights of dissidents.  He's not going to defend the rights of people who don't have special interest behind them to support them. 

ABRAMS:  Let's talk about that issue.

LONG:  And we just heard that Professor Dershowitz disagrees with the whole concept of judicial review.  It's the job of the Supreme Court to strike down a statute that is incompatible with the Constitution.  That is not judicial activism.  Judicial activism is when the court reaches out and takes upon itself a role that is not assigned by the Constitution.

Watch the 'Abrams Report' for more analysis and interviews on the top legal stories each weeknight at 6 p.m. ET on MSNBC TV.

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