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Day Four: More questions for Roberts

Getting to the heart of matters on abortion, Congressional power and much, much more.

Sept. 15, 2005 | 1:45 p.m. ET

The emphasis of the Ticktock has been on the Q&A between the Judiciary Committee and Judge Roberts. With the conclusion of the third round of questioning, the blog has ended for the day.

The Roberts hearings are winding down with a parade of allies and opponents making brief statement to the Judiciary Committee.

Wade Henderson of the , accused Roberts of failing “to distance himself from the anti-civil rights positions he has advocated” 20 years ago while serving in the Reagan Administration.

Henderson questioned whether Roberts in his 1980s persona would have approved of literacy tests and poll taxes to prevent black people from voting.

“He was on the wrong side of history,” testified . “Judge Roberts, as a young attorney in the Reagan administration, failed to go with his gut.”

The spotlight has already shifted from this committee – when one can safely predict a party-line vote on Roberts – to the Senate as whole.

The interesting votes to watch in the Senate are a handful of conservative-to-moderate Democrats such as of Nebraska and likewise a handful of liberal -to-moderate Republicans, such as of Rhode Island. These senators are the center of gravity in the Senate.

I worked the Senate lobby during a roll call vote and can report that Nelson and another centrist Democrat, of Arkansas, are sending unmistakable signals that they will vote for Roberts.

Here’s what Nelson told me: “I wanted to know whether Judge Roberts sought to be an adjudicator or a legislator. Is he going to take an agenda to the bench to try to effect changing the laws -- or is he going to decide cases? He satisfied me that his intent is to go and decide cases.”

Nelson did not explicitly say he would vote for Roberts, but his signals seemed clear.

“At this point in time, I don’t see any surprises,” Nelson said.  “Are there any disqualifiers? I’m not aware of any.”

Pryor told me he wanted to wait until the finished its work but, “Judge Roberts is a very impressive nominee.”

Asked whether Roberts had been evasive or unresponsive in his testimony, Pryor said, “I don’t feel that way, maybe as much as some of my colleagues do. I’m not sitting in the Judiciary Committee every day as they are. They have more expertise in examining nominees to the bench, but from my standpoint I don’t feel that he’s been that evasive.”

“I just want the very best jurist we can have… and he’s a very impressive nominee,” Pryor said.

But when we questioned another publicly undecided Democrat, she said “I’m going to wait until the hearings are totally over.” 

I asked her if she was going to read the hearing transcript.

“I’m reading some transcript and reading some very detailed reports of the questioning but it’s not over, so I’m going to wait until it is,” she replied.

“What criteria will you use to decide?” I asked her.

“I will announce that when I make my decision,” she said.

She, like the other 99 senators, will decide Roberts’s fate in the final week of September. Then we’ll know where all 100 stand.

And as Ralph Neas said, in 2006 and 2008 the voters can give their verdict on those senators’ votes.

Sept. 15, 2005 | 12:25 p.m. ET

Jay Sekulow, the conservative lawyer who is helping the pro-Roberts effort told us during the break that he hoped Sen. Schumer would vote for Roberts, but as far as Schumer’s remark that he woke up in the middle of the night wondering how to vote on Roberts, Sekulow said, “He may have been waking up in the middle of the night, but perhaps because he saw the intellect of John Roberts. If he woke up in the in the middle of the night, it was because they (Democrats) could not tangle with John Roberts and succeed.”

Sekulow said we’d all be meeting each other again over the months ahead – because there’ll be more vacancies on the Supreme Court.

“For both sides, the Supreme Court is such a huge issue – we’ve got another vacancy to fill right here and then you just look at the age of the court and you realize, what’s left? There’s multiple vacancies in the next probably two or three years. You could be looking at the most significant shift in who is on the court in Supreme Court history.”

Standing right behind Sekulow as he was saying all this was Ralph Neas of People for the American Way.

Neas stepped up and told reporters that in three days of testimony, nominee Roberts had been cleverly using “his hidden ball trick. He has been concealing his judicial philosophy for three days. Two-thirds of Americans say they don’t have enough information to make a decision on John Roberts and he owed it to the American People and the United States Senate… to answer questions, but he has set an all-time record for refusing to answer questions.”

Neas said no one should declare the battle over.

“We still have two weeks left and I don’t think we should be looking forward to the next nominee… This one is not done yet. I think there’s going to be a close vote in the Judiciary Committee and if there is a close vote in the Judiciary Committee, I think it’ll be a close vote on the Senate floor.”

Then Neas got in a shot at chairman Arlen Specter: “the right wing and the White House is expecting him to vote for John Roberts. He has always marched in solidarity with President Bush over the past four and a half years. I hope he pleasantly surprises me and the country, but as great a questioner as he is… I think he is going to vote for the nominee.”

Sept. 15, 2005 | 11:57 a.m. ET

Lauren Sokolski, from Silver Spring, Md., was here in the hearing room to witness today’s testimony this morning. During a break in the action she gave me her views on the Supreme Court and the nation.

Sokolski, who opposes Roberts, worked during the Clinton administration as a volunteer. I mentioned to her that her two senators, Democrats Barbara Mikulski and Paul Sarbanes, seem likely to vote “no” on Roberts, given how they have voted on other Bush conservative judicial nominees. If that turns out to be the case, then her views will be represented.

But, she told me, “Democracy is not working for me, because (the late chief justice William) Rehnquist decided Bush should be president (by his vote in the 2000 Bush v Gore case) and Rehnquist was first put on the court by Nixon – who subsequently resigned. I find the whole thing very ironic.”

Since Bush’s election in 2000, she said, “we live in fear of the government, because the government decides what the threat is. I strongly believe 9/11 would not have happened if Bush hadn’t been president.”

Later, as we chatted about Rehnquist, she added, “I like to think he died of guilt – for what he did to this country.” (

Sept. 15, 2005 | 10:52 a.m. ET

Sen. Charles Schumer, D-N.Y., told Roberts he has woken up in the middle of the night wondering whether he should vote ‘yes’ or ‘no’ on Roberts.

This remark draws a world-weary smile of disbelief from Jay Sekulow, the conservative super-lawyer and a Roberts booster who is here in the second row of the audience in the hearing room.

Could Schumer vote “yes” on Roberts?

In theory, yes.

But it would seem to create a conflict of interest: Schumer is head of the Democratic Senatorial Campaign Committee, the whole purpose of which is to elect Democratic senators who could vote down President Bush’s conservative judicial nominees who in Schumer’s view are “way off the deep end.” (.)

Would it not have a demoralizing effect on Democratic donors if Schumer were to vote for this most high-profile of Bush’s conservative judicial nominees?

As Ralph Neas of the liberal group noted yesterday, the vote on Roberts is “an opportunity to have an issue for the 2006 and 2008 elections.”

Neas added that if Democrats vote for Roberts, “they’d be complicit in being part of an effort to turn back the clock on privacy, on civil rights, on the environment.”

Likewise on the other side of the ledger, it would be politically difficult for a Republican senator to vote “no” on Roberts, especially at a time when Bush needs a morale-boosting win.

Sept. 15, 2005 | 10:40 a.m. ET

Sen. Russ Feingold, D-Wisc., or his staff have found a personal letter Roberts once wrote (in 1981 or thereabouts) to his old mentor federal Judge Henry J. Friendly in which he complained about the abuse by convicts of the federal to try multiple – and Roberts thought in 1981 redundant – re-hearings of their convictions.

Feingold complained that young Roberts did not “show the slightest concern about innocent lives possibly being lost.”

“As far as my personal letter to Judge Friendly —I thought it was personal letter,’ Roberts said, slightly annoyed at his past being dredged up from the National Archives.

“As you know, the law has changed dramatically,” Roberts said.  “Congress acted to address the very concerns I was raising there” in the letter to Judge Friendly.

Signed into law by President Clinton, a 1996 law reduced the ability of convicts to file repeated habeas actions.

“These successive petitions had made sort of a game out of the process,’ Roberts told Feingold, referring to “fourth or fifth successive petitions raising issues that could have been raised in the first petition.”

I think the interchange really clarifies the divide between a liberal Democratic view, with Feingold concerned about the possibility of an innocent man being kept in jail or executed, and a conservative Republican view (Roberts) which is more concerned about people abusing or “gaming” the legal system and which is more inclined to emphasize that some guilty people really are guilty and belong in jail.

It’s not so much a question of who’s right in an absolute sense - -ultimately it comes down to the number of votes. Fortunately for Roberts there are 55 Republican senators, not 45 as was the case back when Bush’s father was president.

Sept. 15, 2005 | 10:10 a.m. ET

Like a decade-long version of Groundhog Day we keep re-living the 1980s.

Sen. Dianne Feinstein, D-Calif., took a trip back in time to the Nicaragua war of the 1980s, asking Roberts whether President Reagan and his aides were acting illegally by funding the anti-communist rebels in Nicaragua in 1985 and 1986.

Roberts said his only role in the White House counsel’s office in that episode was advising that if outside groups raised money to help the contras they had to stay away from lobbying Congress or the executive branch.

But Feinstein wanted to know about the Ollie North efforts to keep the contras going despite Congress cutting off funds to the contras. (He did not mention this but every year Congress kept changing the arcane provisions of the various versions of the Boland Amendment, allowing non-lethal aid in some cases but not in others, etc.)

The North effort “seemed to be inconsistent with the law,” Roberts said blandly – adding that the North effort only came to light after Roberts left the Reagan administration. Good timing, as it now seems with the advantage of 20-years' hindsight.

Sept. 15, 2005 | 10:00 a.m. ET

Kennedy asked Roberts: What assurance can you give the American people that you might be another Chief Justice Earl Warren?

(I can’t help but feel the Democrats keep hoping in vain for President Bush to appoint a Republican-appearing justice who will turn out to be a crusading liberal once he or she gets on the bench.)

Roberts explained that he had praised Warren for convincing the other justices of the importance of what the court was doing in the landmark school desegregation decision in 1954 – that their decision would have deep impact on real people’s lives.

Judges should never lose sight of the fact that the decisions do affect real people’s lives, Roberts said. No one could argue with that innocuous statement – but he was still unwilling to say “I’ll be another Earl Warren, you can count on me.”

Sept. 15, 2005 | 9:55 a.m. ET

Sen. Edward Kennedy, D-Mass., asked Roberts about racial discrimination, sex discrimination and discrimination against the disabled.

Kennedy talked about , arguing that although a state is usually immune to suits, in her case Tennessee could be forced to offer accommodations to disabled people under the .

Lane herself will be in this room in a few hours as a witness to urge the Senate to reject Roberts.

Four dissenting justices indicated that this kind of disability question ought to be resolved by states, Kennedy told Roberts.

“We have come to the point where we as a country want to invite all these people with disability to be part of the mainstream…. I gather you’re sympathetic” to that point of view, Kennedy told Roberts.

The nominee replied he had no quarrel with access for the disabled – but the precise legal issue is whether Congress has authority under section 5 of to the Constitution to abrogate state sovereign immunity from lawsuits.

Kennedy brushed aside the constitutional question and prefers to speak in terms of “American values.”

Kennedy accused Roberts of showing “a pattern” over 20 years of writing memos opposing racial preferences – or as Kennedy prefers to phrase them “affirmative action.”

Kennedy criticized Roberts for opposing racial preferences in the Federal Communications Commission awarding TV and radio licenses – a position upheld by the Supreme Court in in 1995.

By the way, the Republicans have said they will ask no more questions. But Republicans Jon Kyl, Mike DeWine, John Cornyn, Sam Brownback, and Tom Coburn are here in the Hart 211 hearing room. Coburn, Brownback & Cornyn were sipping coffee and chatting every once in a while as Roberts testified. I assume they’re here to defend him or rebut Democrats’ criticism.

Sept. 15, 2005 | 9:42 a.m. ET

If the schedule issued by the Judiciary Committee is followed today, this is what you can expect (Senators Leahy and Kennedy have already spoken):

Sen. Feinstein        9:40 to 9:55
Sen. Feingold         9:55 to 10:15
Sen. Schumer         10:15 to 10:30
Sen. Durbin            10:30 to 10:50
Closed Session       11:00 a.m. to 11:30 a.m.

Outside Witnesses
ABA                 11:30 a.m. to 12:00 p.m.
Panel 2            12:00 p.m. to 1:00 p.m.
Lunch              1:00 p.m. to 2:00 p.m.
Panel 3            2:00 p.m. to 3:00 p.m.
Panel 4            3:00 p.m. to 4:00 p.m.
Panel 5            4:00 p.m. to 5:00 p.m.
Panel 6            5:00 p.m. to 6:00 p.m.

Sept. 15, 2005 | 9:30 a.m. ET

Leahy portrays the tussle with Roberts over the right to sue as due to negligence by judges and state officials who refuse to do what they have sworn to do in their oaths of office. Then Leahy abruptly ends that line of inquiry.

For the non-lawyer observer the issue seems clear: in looking at any federal statute, either Congress created a right to bring a civil suit for damages – or it didn’t.

And if it didn’t, does a judge have the power to unilaterally create that right to sue – in the absence of a clear congressional statute?

Sept. 15, 2005 | 9:20 a.m. ET

The third day of interrogation chief justice nominee John Roberts (and fourth day of the hearings) has begun with the chairman’s gavel.

By this point all the reporters, dignitaries, senators and voyeurs are all familiar with each other – it’s like the another day of jury duty or the another day in the life boat. Former senator (acting as Roberts’s coach/advisor), vice president Leonard Leo, Keith Perrine from , Sen. John Cornyn of Texas, -- we all greet each other and nod – not friends but fellow inmates and familiar faces by now.

A new celebrity is here today: conservative radio hot .

Sen. Patrick Leahy, D-Vermont, opens the round, with a question about sex discrimination and the implied right to sue for civil damages someone accused of sexual assault.

Leahy is criticizing Roberts for briefs he wrote in which he said certain federal law did not clearly, explicitly create a right to bring a civil suit.

The fault is Congress’s for not explicitly writing the statute – that’s the gist of Roberts’s argument. ()

Sept. 14, 2005 | 7:45p.m. ET

The hearings have adjourned for the day, and will resume at 9 am ET on Thursday. Click back here on Thursday for more minute-by-minute coverage from inside the hearing room.

Sept. 14, 2005 | 5:43 p.m. ET

Some scheduling details.

Judiciary Committee chairman Specter announced that today's questioning will continue until 8 pm, and will resume again on Thursday morning at 9..

Sept. 14, 2005 | 4:27 p.m. ET

Prior to nominee Harlan Fiske Stone in 1928, no Supreme Court nominee had ever testified before the Senate Judiciary Committee.

Regular hearings with more than routine questions did not become customary until the mid-1950s.

Nonetheless Sen. Schumer told Roberts, “As the Founding Fathers constructed (the constitutional system) this (hearing) is the one time you go before an elected body.”

But the framers of the Constitution never set up a confirmation hearing process – it is a distinctly modern invention.

According to Schumer, “It seems strange to the American people” that Roberts won’t specify his views on cases – apart from the 1954 school desegregation case and . Does Schumer have polling data?

Schumer then mocked Roberts saying his non-answers where like a person being asked what movies he liked and saying “Movies with good actors” or “movies with good cinematography.”

But Schumer wondered, what about Casablanca, the 1943 classic?

Some in the audience laughed scornfully – it seemed Schumer had won them over.

Then chairman Specter called for a 15-minute break.

But Roberts asked to make a brief reply to Schumer before the break, and said, “Doctor Zhivago and North by Northwest.”

That drew a round of applause from the crowd.

He then explained, “This not a bargaining process” and “judges are not politicians. They can not promise to do certain things in exchange for votes.”

Sept. 14, 2005 | 4:10 p.m. ET
The committee is taking a short break.

Again Roberts is reduced to playing the role of a well-dressed mannequin as Sen. Lindsey Graham, R-S.C., rolls on in a denunciation of the Supreme Court’s decision in 2004 in the case, which allowed al Qaida detainees at Guantanamo to file petitions in U.S. federal courts to try to get sprung from “Gitmo.”

“To my colleagues, it is imperative for this body to get involved in the war on terror” by legislating rules on detainees and not leave it to the courts. This is the same statement Graham made at a June 8 Judiciary Committee hearing on detainees, the only difference today is that Roberts is sitting here listening respectfully.

“I’m not going to ask you how you’d decide the (eminent domain) case… but this is the only time you can hear from us,” Graham said. When you meet your new colleagues, the senator suggested, “please let them know that some of the things they do -- and we watch” are very upsetting.

Roberts kept his brow thoughtfully wrinkled throughout all this.

Sept. 14, 2005 | 3:27 p.m. ET

Sen. Jeff Sessions, R-Ala., played newsbreaker, telling the hearing room that a federal judge in California in the last hour had declared the reciting of the because it forces students to utter the words "under God"

That means the case – which the court sidestepped last year because it found the plaintiff did not have standing – is headed back to the Supreme Court. Thus Roberts refused to comment on it.

Sept. 14, 2005 | 3:20 p.m. ET

During the lunch break Sen. Biden explained to a gaggle of reporters why he will keep trying to extract more information from Roberts.

He accused the news media of coddling Judge Roberts: “Come on guys, you’re giving this guy such a free ride!”

He wants to get at Roberts’s view of gay rights and the court’s 2003 decision which declared a constitutional right to sodomy for same-sex couples.

Yesterday Roberts virtually endorsed the 1965 decision which struck down a state law banning use of contraceptives by married couples.

Roberts testified that “I agree with the Griswold court's conclusion that marital privacy extends to contraception.”

“He said what his view of Griswold was, but he won’t say what his view of Lawrence is.” Biden told reporters.

What about “the fundamental right for you to control your body and engage in relationships?” Biden asked reporters. “Can the state legislature intrude into your bedroom whether you are gay or straight?”

And the Delaware Democrat said Roberts ought to be willing to state in general terms “whether or not the state legislature can tell my mother whether she can take out her feeding tube, or she gets to make that decision. Come on. That’s going to give away a (future) case?”

Alluding to his own near-death experience in 1988, Biden said, “I’ve been hooked up on those machines. Seems to me I should have had the right after the second aneurysm to say, ‘Look, I don’t want to be on these machines any more.’ I want to know what he thinks about that.”

Given that Roberts has refused to answer questions about Lawrence and about the right to end life-sustaining treatment, could Biden ever vote for him? “It ain’t over yet,” Biden said breezily.

He added that it was “preposterous” for Roberts to argue that if he gave answers on specific cases that might come before him, he’d be trading his commitment on voting a particular way in a future case in exchange for a senator’s vote.

“He’s entitled to change his mind” once he gets confirmed and joins the Supreme Court, Biden said, mocking “this bizarre notion that you’re buying a vote.”

By the way, he may seem frustrated by Roberts’s refusal to reply to questions but Biden, as usual, is also having a hell of a good time.

He’s grinning broadly even as he complains about Roberts.

Sept. 14, 2005 | 2:45 p.m. ET

Sen. Dianne Feinstein, D-Calif. told Roberts she still does not have a good sense of Roberts as a man.

She’s troubled by his refusal to answer Sen. Biden’s questions right before lunch about the right to terminate life-sustaining treatment for critically ill people.

“I’m trying to see your feelings as a man!” Feinstein beseeched him. “How would you feel?”

It is “hard to conceptualize unless you were there” in the position of the relative of an incurably ill person, Roberts said.

“You wouldn’t want the government telling you what to do,” Feinstein declared. To which Roberts shied away, saying the discussion was entering forbidden legal turf.

Here’s why Biden is frustrated by Roberts’ refusal this morning to answer questions on life-sustaining treatment and terminal patients: yesterday he was free in endorsing a right to privacy when it comes to contraception.

“I agree with the court's conclusion that marital privacy extends to contraception and availability of that,” Roberts told Sen. Herb Kohl, D-Wisc., yesterday. “The court, since Griswold, has grounded the privacy right discussed in that case in the liberty interest protected under the due process clause.”

He added, “I feel comfortable commenting on Griswold and the result in Griswold because that does not appear to me to be an area that is going to come before the court again.”

Feinstein also asked Roberts whether during yesterday’s lunch break someone – a White house political advisor perhaps – told him to not speak so freely about the right to privacy.

Sept. 14, 2005 | 1:45 p.m. ET

The hearings have resumed following the lunch break.

Sept. 14, 2005 | 12:45 p.m. ET

The committee is on its lunch break. Hearings will resume at 1:45.

Sept. 14, 2005 | 12:22 p.m. ET

Will any Democrats vote for John Roberts?

Republicans on the Judiciary Committee seem to be playing a game of testing the Democrats’ nerves – the purpose I think to put pressure on other Democratic senators who don’t serve on the committee – such as Sen. Mark Pryor of Arkansas.

“It remains to be seen whether Judge Roberts will get any Democratic votes,” said Sen. John Cornyn, R-Texas, during a break in the hearings. “I think that would be a terrible message if, in fact, the Democrats make this a matter of party and partisan purity. To oppose a nominee like this would cause me to ask whether any nominee of this president could get any Democratic support” – echoing Hatch’s argument from about an hour ago.

Sen. Lindsey Graham, D-S.C., said, “How do you go from 98 votes for Scalia? There’s no way he (Roberts) is more conservative than Scalia. How do go from 96 votes for Ginsburg? What does he (Roberts) get? If he gets no Democratic votes on the Judiciary Committee to me it’s the best evidence you can point to that the standard for confirmation is no longer qualification, but ideological allegiance. That will eventually destroy the law – you’ll be putting political hacks on the bench”

But Ralph Neas, president of People for the American Way, a liberal group that opposes Roberts, told reporters that both Democrats and Republican senators must vote ‘no’ on Roberts.

“It’s important that progressives, whether they are Democrats or Republicans, stand up for what they believe," he said. "This is a wonderful opportunity to articulate the differences between the right wing and progressive Democrats and progressive Republicans on issues that resonate with American people: equal opportunity, clean air and clean water, right to privacy, reproductive rights. This is an issue that can have an impact on the next nominee, how strong the Democrats and some Republicans are on this one and an opportunity to have an issue for the 2006 and 2008 elections.”

If certain Democrats and Republicans vote for someone who is much more in the mode of Rehnquist than Sandra Day O’Connor, they’d be complicit in being part of an effort to turn back the clock on privacy, on civil rights on the environment.”

So do Democrats want to risk being “complicit”? Will that put them at odds with the core Democratic voters in 2006 and 2008?

Sept. 14, 2005 | 11:40 a.m. ET

The hearings have resumed, and Sen. Charles Grassley, R-Iowa, has begun his 20 minutes of questioning.

Sept. 14, 2005 | 11:10 a.m. ET

The committee is on a break and will convene at 11:25.

As he did yesterday, Sen. Edward Kennedy, D-Mass., is chiding Roberts for work he did in 1982 as special assistant to Attorney General William French Smith on amending the Voting Rights Act.

The issue concerned plaintiffs who clamed they were denied the right to get their favored candidates elected.

Did such plaintiffs need to prove the local officials intentionally rigged election procedures against them?

Or did they need to show only that those election procedures had a discriminatory effect, even if there was no proven intent to discriminate?

We’ve been over this ground repeatedly in the past two days.

Kennedy confronted Roberts with a memo he wrote in 1982 that said the “effects test” was constitutionally suspect – or wrong, but Roberts said he had no reason today to think it was constitutionally suspect.

If this ever comes before the Supreme Court, “as a judge I would come to the issue with an open mind,” Roberts pledged.

But the Kennedy-Roberts jousting is much calmer than it was yesterday. ()

Sept. 14, 2005 | 10:52 a.m. ET

Sen. Orrin Hatch, R-Utah, heaps praise on Roberts and issues a dare to the Democrats to vote against him: “If people can’t vote for you, then I doubt they can vote for any Republican nominee.”

Sept. 14, 2005 | 10:37 a.m. ET

Specter complained to Roberts that the Supreme Court has been subjective and arbitrary in its rulings on the Referring to two terms used in a 2004 case, , Specter said, “it is hard to find a definition of ‘congruence,’ it is hard to find a definition of ‘proportionality.’ "

Specter noted that Justice Antonin Scalia dissented in Tennessee v. Lane, saying the majority’s decision is based on “flabby” reasoning.

“Do you agree with Scalia?” Specter asked. Roberts flailed around for a few moments, not wanting to answer, prompting Specter to say, “Do you disagree with Justice Scalia?”

But Roberts said this issue would come before the Supreme Court again in this 2005-2006 term (which starts in three weeks) so he would not comment on it for fear of committing himself one way or the other.

Specter is deeply annoyed and wanted Roberts to feel his annoyance – even if he can’t get any answer from the nominee.

Specter urged Roberts to try to bring a consensus to the court. He said all the multiple opinions and concurrences that the justices have gotten in the habit of issuing recently are sowing confusion.

The chairman called the 2004 Guantanamo decisions by the high court “a patchwork of confusion.”

Roberts listened patiently, then said, “An important function of the Supreme Court is to provide guidance – as a lower court judge I appreciate clear guidance.”

Roberts did say that a welter of concurring opinions without one clear ruling from the court “undermines the importance of providing guidance.”

Based on the Specter round and now the round by Sen. Patrick Leahy, D-Vermont, my sense is that increasingly this hearing is feeling like simply a round of venting and speech-making – the usual routine of Capitol Hill.

Leahy is now giving a speech on the flaws in the use of the death penalty.

Roberts is simply the pretext for senators to say what they have been wanting to say for a while.

Sept. 14, 2005 | 10:00 a.m. ET

John Roberts speaks during his confirmation hearing in Washington
Supreme Court Chief Justice nominee John Roberts speaks during the third day of his confirmation hearing on Capitol Hill in Washington, September 14, 2005. During yesterday's session, Roberts declined to say if he would reverse the long-standing decision legalizing abortion but said he believed the Constitution accorded Americans the right to privacy, the key underpinning of the landmark ruling. REUTERS/Kevin LamarqueKevin Lamarque / X00157

When does human life begin?

Coburn – a medical doctor who has delivered thousands of babies – told Roberts that at 41 days after conception, neonatal doctors can detect brain activity and brain waves.

Coburn is a staunch opponent of abortion. Needless to say, the Roe decision allows the aborting of fetuses who are 41 days old and older.

What’s noteworthy here: as Coburn complained to Roberts that many judicial decisions on abortion “are made in a vacuum” without acknowledging neonatal science, Roberts remained silent, but nodded and nodded  -- as if in tacit agreement.

Sept. 14, 2005 | 9:55 a.m. ET

Oklahoma Republican Tom Coburn reminded Roberts that federal judges take an oath to uphold the and the laws of the United States – that’s the United States, not any foreign country.

Paging Justice Anthony Kennedy – who used foreign legal precedent in writing his majority decision in last March which struck down the death penalty for murderers under age 18.

Coburn said judges who cite foreign legal precedent are violating their oath of office and “I would like to send a message” to such federal judges, he said.

Roberts didn't take the bait -- he refused to criticize those judges who have used foreign legal precedents.

As dry as a good martini, the wit of John Roberts came out again when Coburn asked Roberts to advise how Congress could do a better job in writing clear laws so judges could enforce them.

“Sitting where I am, I’m not terribly inclined to be critical,” Roberts cracked.

Sept. 14, 2005 | 9:42 a.m. ET

Brownback asked Roberts whether the fetus in the womb is a person within the meaning of the which says no state shall deny any person life, liberty or property without due process of law.

Roberts said he can’t comment on that since it might come before the Supreme Court.

Brownback then attacked the idea that Roe is a “super-duper precedent” because it had not been overturned since 1973, despite the Supreme Court having many opportunities to do so.

The Kansan pointed out that , the 1896 Supreme Court decision upholding racial segregation, was not overturned for 58 years. (Roe has stood for 32 years.)

“I don’t think anybody would agree that Plessy should not have been overturned,” Brownback said.

Brownback is not going to get any answers or commitments from Roberts – so this is futile, isn’t it?

No. Brownback is using his allotted time to air his views – even if Roberts refuses to say anything at all in response. Brownback’s audience is more the national one, than Roberts himself.

Sept. 14, 2005 | 9:33 a.m. ET

As the second day of questioning began at 9am sharp, only five of the are here in the hearing room: all Republicans: chairman Arlen Specter and senators Coburn, Cornyn, DeWine and Brownback.

Brownback, the Kansan, began by asking about the June 23 decision in which the Supreme Court upheld the power of the city’s redevelopment agency to seize people’s houses and property in order to do a privately owned urban redevelopment project.

Brownback reminded Roberts that the Fifth Amendment to the Constitution says private property can only be taken for public use.

As a result of the Kelo decision, Brownback wondered, “Isn’t it now much easier for one man’s home to become another man’s castle?”

Roberts replied that some states have passed legislation to restrict seizure of private property in situations similar to Kelo. “That’s a very appropriate approach to consider,” Roberts said. He defended the court’s Kelo ruling, explaining that the majority didn’t tell states they must use the power, only that they had the power.

“It is up to the legislature to decide if it wants to use that power,” he said. “It imposes a heavy responsibility on the legislature to determine whether it (the private property) really is (being seized for) public use.”

Sept. 14, 2005 | 9:21 a.m. ET
Day Three has begun.

As Day Three of the John Roberts hearings begins, here’s the oddity of the political situation: on the very day when headlines were blaring that President Bush has the lowest of his presidency, he appeared to be on the brink of scoring a historic political victory: winning Senate confirmation of the first genuine conservative to the Supreme Court since Clarence Thomas 14 years ago.

If Bush is so weak, then how could this be?

Maybe he isn't so weak, or maybe John Roberts is very strong, or some of both.

Sen. Edward Kennedy, D-Mass., and the other Democrats on the do not appear to have shaken Judge Roberts, nor caught him in an embarrassing contradiction on his legal rulings, nor reduced him to incoherence.

Indications from his first day of responding to questions:

Will he vote to overturn the 1965 decision striking down a state contraceptive ban? No.

Will he vote to overturn the 1973 decision which legalized abortion in all 50 states? Maybe, maybe not.

Roberts pointedly reminded his audience Tuesday that in 1937 – under withering fire from the liberals of that day – the justices reversed themselves on the question of minimum wages for women. It was a historic change of direction.

Prior to 1937, the justices had struck down many laws which attempted to set rules for child labor and hours and wages for women.  But suddenly in 1937 the court said a minimum wage law for women was constitutional.

As I heard it, the implied message from Roberts was clear: if the Supreme Court could change course in a landmark case in 1937, it could do so in 2005 or beyond.

Kansas Republican Sen. Sam Brownback, a possible 2008 GOP presidential contender, indicated late Tuesday, in a post-hearing interview with me, that he could live with – or wasn’t too surprised by -- Roberts’s virtual endorsement of the Griswold decision.

“It’s unlikely that Griswold comes back in front of the court, the marital right to privacy” Brownback said.

But the sodomy case and Roe v. Wade might come back in front of the court, he said.

Roberts “seemed to say the marital right to privacy was well-established, but didn’t extend it further,” Brownback said. And under current state laws -- except in Massachusetts -- only a man and a woman can marry.

Sept. 13, 2005 | 7:53 p.m. ET
Click back here Wednesday for more questioning.

It's over ... after almost 11 hours ... at least for the day.

Senators have now asked Roberts dozens of questions about legal memos he wrote when he served in the Reagan administration -- when he claimed to be not speaking in his own name, simply as a staff lawyer.

So far, I think senators have mostly ignored the 50 or so decisions and dissents that Roberts has written in his own name, where he voiced his own views as federal appeal court judge since 2003. They've asked him about two cases: the Hamdan case (about a Guantanamo detainee who was Osama bin Ladens' chauffeur) and the hapless toad case but -- as far as I can recall, no other cases from his two years on the federal bench.

Sept. 13, 2005 | 7:25 p.m. ET

Full-time judge, but part-time comedian, John Roberts slipped in another wisecrack after Sen. Lindsey Graham, R-S.C. asked him how he wanted history to remember him when his career is over. The judge said he’d like historians “to start by saying, ‘He was confirmed’ (as chief justice).”

Graham launched into an extended criticism of Ruth Bader Ginsburg, who at one time in the 1970s was a general counsel to the , but later a federal judge and now a Supreme Court justice.

According to Graham, at one time Ginsburg had expressed support for taxpayer funding of abortion, opposed separating male and female prisoners, and critiqued Mother’s Day and Father’s Day as discriminatory labels.

Once Sen. Charles Schumer D-N.Y. took over questioning, it was Clarence Thomas who was the bad guy.

Schumer said that Thomas wanted such a limited reading of Congress’s power under the to regulate local matters that it could lead to a person legally owning biological weapons – as long as that person made and kept the weapons within the borders of one state.

Pointing to Thomas’s dissent in the case last year, Schumer said the Thomas view would allow the establishment of religion in individual states.

And in fact five states did have established (taxpayer-supported) churches at the time of the writing of the First Amendment.

Roberts didn’t defend or criticize Ginsburg or Thomas. He’ll have to work with them soon enough – if the Democrats can not round up the votes to stop him.

Sept. 13, 2005 | 6:06 p.m. ET

One constant feature of the day has been the TV image of John Roberts’s furrowed brow and tense lips.

He was coming under heavy pressure at 5:30 from Sen. Russ Feingold, D-Wisc., on his views from the 1980s on the Voting Rights Act.

Roberts supported requiring plaintiffs to prove that local officials had the intent to discriminate in order to prove a violation of their right to vote.

Feingold’s argument: if you force low-income minority litigants to prove that local officials had the intent to discriminate, it is too costly and difficult for them to win voting rights cases.

The 1982 amendment – reversing a Supreme Court decision – said plaintiffs need only show that a part of a voting procedure had a discriminatory effect.

He was pressing Roberts to “cry uncle” – to admit he had been wrong in opposing the 1982 amendment.

“You keep referring to what I supported and what I wanted to do,” Roberts said in frustration to Feingold. But it was my first job, he said, I was not shaping administration policy, it was the policy of President Reagan.

Feingold wins the prize for this day on the fastest speaker: he asked his questions at a break-neck pace – making the most of his allotted time.

Sept. 13, 2005 | 4:56 p.m. ET

Did we just see a hint of an arrogant John Roberts?

Roberts made a couple of sardonic remarks in his dialogue with Sen. Jeff Sessions, R-Ala.

Sessions made a statement about legal briefs in cases being clearly and eloquently written – to which Roberts replied (and here I paraphrase) that every once in while a judge will get briefs like that, in other words, not often enough.

Then a few minutes later, Roberts was talking about the hundreds of briefs that can be filed by “friends of the court” in Supreme Court cases – outside advocacy groups and others who are not directly party to the case. “A few of them are even helpful,” Roberts cracked.

His jokes had a slightly barbed edge to them. Is the benign Hoosier a little tougher and more scornful than he appeared on Day One?

Sept. 13, 2005 | 4:50 p.m. ET

Sen. Feinstein asked Roberts about two decisions written by Chief Justice Rehnquist (Morrison in 2000 and Lopez in 1995) which limited the power of Congress under the to regulate matters within states. (

Roberts seemed to want to minimize the importance of those cases written by his old mentor.

Look instead at last June’s Supreme Court decision in the California medical marijuana decision, he urged Feinstein.

Federal drug laws can reach within the orders of a single state to stop the growing of marijuana plants, the Supreme Court held – a broad view of the powers of Congress under the Commerce Clause.

“There are a lot more precedents as to the Commerce Clause than just Lopez and Morrison,” Roberts said, subtly “dissing” the Morrison and Lopez precedents. 

Then Feinstein asked about the and the “” -- to use Roberts’s phrase from a 2003 dissent he wrote in case testing whether Endangered Species Act protects species that live only within one state and never cross state lines and are never traded in interstate commerce.

Roberts told Feinstein that what he was suggesting in his “hapless toad” dissent was this: Even though there might be problems with basing the Endangered Species Act on the Commerce Clause, “there are other ways of sustaining this (Endangered Species) act.”

If we could sustain it on other grounds, that would be better all around, he added.

Feinstein looked baffled by that answer. 

“If I understand you correctly, you do not believe that Commerce Clause bars enforcement of Endangered Species Act?” Feinstein asked. 

“I did not have occasion to decide that,” he said, deftly slipping away from her attempt to pin him down.

What can we make of all this: Roberts seems to think the Endangered Species Act is not itself an endangered species – it can upheld in specific cases, but not necessarily relying on the Commerce Clause.

Sept. 13, 2005 | 4:30 p.m. ET

Sen. Dianne Feinstein, D-Calif, asked Roberts about the 1992 decision, which upheld the basic principles of .

Those decisions are “entitled to respect like any other precedent of the court under the principles of stare decisis,” Roberts replied.

But as of 4pm, Sen. Feinstein was not gaining any ground in trying extract from the nominee a statement that the Roe and Casey decisions were correctly decided.

This is like pulling teeth – but the patient is fighting back.

Sept. 13, 2005 | 3:20 p.m. ET

A lot of what has gone on today is Democratic senators trying to get a debate going between two people: the John Roberts of the early 1980s and the John Roberts of 2005.

“I assume there are views that you are prepared to disavow?’ said Sen Herb Kohl, D-Wisc., in a half-question, half-statement.

Roberts said only that there were some of his early 1980s views he still held, but some he did not.

“No one cared what my personal views were” in the early 1980s, implying the memos he wrote then ought not to be taken too seriously.

He stressed that now, 24 years later, the law has changed dramatically.

He was a staff attorney back then. “Of course it’s not how I would look at the issue if I were a judge,” he noted.

Kohl wanted to see some evidence that Roberts could “grow,” as Kohl put it.

A few minutes later, Roberts the comedian made a brief appearance.

When Kohl asked whether he thought President Bush should appoint a woman to fill the Sandra Day O’Connor vacancy, Roberts said he didn’t want to express any opinion on future presidential picks – but he liked the president’s track record of recent picks. The audience in hearing room got a good laugh from that, as it did when Kohl asked about an early 1980s memo in which Roberts endorsed judicial term limits.

“That would be one of those memos I no longer agree with,” Roberts said dryly.  

Sept. 13, 2005 | 3:10 p.m. ET

Arizona Republican Jon Kyl opened the afternoon session by denouncing the Supreme Court’s March decision in . In that decision, the court said that a convicted murderer under age 17 could not be given the death penalty by the state of Missouri (or by any state).

Kyl made the point of noting that the murderer had killed his victim (an old woman) by throwing her off a bridge. (He didn’t mention that the murderer and his accomplices bound her with electrical tape.)

What incensed Kyl was the court (in a decision written by Justice Anthony Kennedy) cited foreign legal precedents in making the case that American law was out of step with other nations.

Kyl asked Roberts what he thought about citing foreign precedents.

Roberts gave a surprisingly (to me) emphatic answer, agreeing with Kyl that it was ill-advised for American judges to cite foreign precedents.

Judges are not accountable but “we are appointed through a process that allows for the people to participate” because presidents and senators are up for re-election.

But if Supreme Court justices rely on legal precedent from foreign judges, it’s fundamentally different, because  “no president appointed that (foreign) judge and no senator voted to confirm that judge.”

The problem, said Roberts, is that using foreign law does not limit the discretion of American judges. In foreign law “you can find anything you want” -- picking and choosing from Somalia or Indonesia or any number of other countries’ legal rulings.

“That actually expands the discretion of the judge,” Roberts said – in other words, it allows a judge to do pretty much what he wants.

Well, if Roberts is confirmed, this should make for interesting one-on-one chats with Justice Kennedy and the other big supporter of using foreign legal precedent, Justice Breyer.

Roberts’s answer on this point echoes what Justice Scalia said in his debate with Breyer last winter at American University.

Sept. 13, 2005 | 2:48 p.m. ET

No event of this magnitude would be complete without spin and those who do the spinning – the bevy of advocates, lobbyists, party loyalists, and friends and foes of Judge Roberts to give us their instant interpretation.

During a bathroom break and again during the lunch break the interpreters were busy interpreting.

Here’s a sample:

Elliot M. Mincberg, General Counsel and Legal Director of , told me that he was concerned about Judiciary Committee chairman Arlen Specter intervening so frequently to stop the Democratic senators’ questions and to give Roberts a chance to give an answer.

“This is a nominee who needs no help,” Mincberg said.

He also said senators needed to follow up and get more complete answers from Roberts on a Reagan Era case where he, as a Justice Department official, had urged his superiors, not to intervene in a Kentucky sex discrimination case involving inmates in the state prison.

Nan Aron, president of the , which opposes Roberts, said, “We assume that some of the senators will continue to probe – particularly on the Roe v. Wade issue.”

She called Roberts’s views of the early 1980s on civil rights and the Voting Rights Act “indefensible.”

She said had the Reagan administration’s views been implemented “we would not today have a Voting Rights Act or a Fair Housing Act with any teeth in them. I don’t think he provided any kind of consolation to those senators on the committee who have been sharply critical of his views on civil rights.”

But Leonard Leo, vice president (on leave) of the , praised Roberts for avoiding making any commitments in his morning testimony.

“He made no clear commitment (on adhering to previous Supreme Court precedents) because no responsible nominee can,” Leo told me. “The factors that one has to apply in thinking about the principles of (adhering to precedent) require you to know what case is before you. All he can do is to explain how a judge goes about the exercise –- and he nailed that right on the head.”

Leo explained his view that if you’re a judge, “You have to look at settled expectations, you have to look at whether a change in precedent would create a jolt in the law, and at times whether a jolt in the law is just what the doctor ordered and he handled that question very deftly.”

“A jolt in the law is just what the doctor ordered”?

Yikes, you might say if you were a supporter of Roe v. Wade.

“He gave no commitment to uphold Roe or Casey,” Leo said.

A while later Ed Gillespie, former Republican National Committee chairman and now special assistant for helping Roberts, told reporters he couldn’t explain why social conservative groups were so supportive of Roberts – if he didn’t intend to overturn Roe.

“You could ask the same question on the other side -- why are and the pro-abortion groups so opposed to him – you’d have to ask them.”

Gillespie lauded Specter, saying the chairman “did a very good job of allowing Judge Roberts to have some time to provide fulsome responses to very fulsome questions…. He has protected the right of the nominee to provide answers to questions that are posed to him.”

He meant “full” not “fulsome” but we get the point.

Sept. 13, 2005 | 2:20 p.m. ET

The hearings have resumed.

Sept. 13, 2005 | 1:10 p.m. ET

The hearings are on recess until 2:15 ... but perhaps the best theatre of the session came just before the break.

The irrepressible Sen. Joe Biden, D-Del., began his grilling of Roberts with a breezy Regular Guy salutation: “Judge, how are ya?"

In what we at MSNBC should appreciate as a free promotional blurb, Biden mentioned , who says on his program, "!"

Biden said to Roberts, "Let's play baseball!"

Biden launched into a long and winding preface to a question – “let me get right to it,” he said after talking for three or four minutes, without asking a question.

Finally Biden did ask: “do you agree that there is right of privacy to be found in the ?”

“I do, senator,” Roberts replied. “Liberty is not limited to freedom from physical restraints, it does cover privacy.”

Is there a liberty right of privacy that applies to women? (NBC Video: Watch Roberts respond to a question on gender descrimination)

“Certainly,” Roberts said. 

Could a state outlaw abortion?

In her confirmation hearing in 1993, Ruth Bader Ginsburg said no, a state could not, but Roberts refused to answer.

Why won’t you answer? Biden asked Roberts.

“As these questions come before me – either on the court on which I now serve or if I am confirmed (to the Supreme Court) – I need to decide those questions with an open mind… and not on the basis of any commitment during the confirmation process,” Roberts said.

And Roberts added Ginsburg had written law review articles about abortion – prior to her nomination to be a Supreme Court justice – so she felt free to voice her views.

But Biden pressed on, asking Roberts to discuss subjects that he said Ginsburg hadn't written about, yet talked about during her confirmation hearings. Let’s see if you are willing to talk about them, Biden said, winking at Roberts in a saucy way — as if to say, “We’re having fun, aren’t we?” 

Roberts said that in 1993, Ginsburg had in some of her answers said she’d offer, “No hint, no forecast, no previews.”

“That is not true, judge.” Biden said.

She specifically responded to a question about a case called .

“He’s filibustering,” Biden told the hearing room.

Like he did with Kennedy earlier in the day, chairman Specter again intervened to demand that Biden allow Roberts an opportunity to finish his answers.

“But they’re misleading!,” Biden complained.

Specter said, "they may be misleading, but they’re his answers.”

“With respect, they are my answers and with respect, they are not misleading,” Roberts told Biden.

In all, it was a tough, adversarial and totally entertaining round of questioning. ()

Sept. 13, 2005 | 12:48 p.m. ET

The hearings recessed until 2:15 ET.

Sept. 13, 2005 | 12:30 p.m. ET

Sen. Joseph Biden, the Delaware Democrat is currently questioning Judge Roberts.

Sept. 13, 2005 | 11:57 a.m. ET

The hearings have resumed, and Sen. Chuck Grassley, R-Iowa, is taking his turn questioning.

Just prior to the 15 minute break, Sen. Kennedy and Roberts spent time re-living -- and quarreling about -- the history of the early 1980s, when Roberts served in the Reagan Justice Department.

They spent several minutes arguing about what the meant.

They also wrangled about what the Supreme Court meant in its 1980 decision when it ruled that someone claiming a particular local voting procedure violated their right to vote had to prove that the local government intended to discriminate.

Showing that the voting procedure had a discriminatory effect was not enough, the court said in a 6-3 ruling written by Justice Potter Stewart.

“You think the Supreme Court got it wrong in Mobile against Bolden,” Roberts told Kennedy.

Then – as is his usual style of interrogating, Kennedy tried to get a momentum going in which he asks long, adversarial questions and the witnesses get almost no time to answer them.

But in what may be a key tactical decision that will affect how these hearings go, both committee chairman Specter and former chairman Hatch intervened to break up Kennedy’s momentum and to give Roberts breathing space and time to think.

(Question: is Kennedy a tougher adversary to face than Justice Scalia – who is notorious for interrupting and berating lawyers in court?)

“Let him finish his answer, Sen. Kennedy,” Specter said.

When Kennedy asked whether Roberts supported the Voting Rights act, Roberts replied, “Certainly, certainly.” ()

He seemed to imply that Kennedy was stuck in 1980s nostalgia. “This was the same debate that took place then as whether the court was right or wrong in Mobile v Bolden,” he said to the Massachusetts Democrat. “I know you think it was wrong.”

Roberts added that he was “as fully committed to protecting the right to vote as anyone” and called the Voting Rights Act “an important legislative tool to ensure that most precious of rights.”

Then Kennedy denounced a Reagan Era memo Roberts wrote on the question of whether colleges getting federal funds should be cut off from all of their funding if they discriminate.

“You have not accurately represented my position,” Roberts crisply told Kennedy.

Again Specter to rescue – as he intervened to break up Kennedy’s rhythm.

Roberts said the Reagan position was vindicated by a Supreme Court decision known as the Grove City decision, but – in reaction to that ruling -- Congress changed the position about funding of colleges that discriminate and that became the new law of the land.

Who won this Kennedy-Roberts bout? I’d say Specter and Hatch did.

Sept. 13, 2005 | 11:32 a.m. ET

Chairman Specter has called for a 15-minute break in the hearings.

Sept. 13, 2005 | 11:23 a.m. ET

Former Judiciary Committee chairman Sen. Orrin Hatch, R-Utah waded into a discussion with Roberts on when the Supreme Court can overrule laws passed by Congress and the state legislatures.

He complains about the written by Rehnquist in which the court struck down part of the .

“I felt they overreached in that particular case,” Hatch said.

In his reply, Roberts quoted who said it is “emphatically the duty and province of the judicial branch” to say what the law is.

Then Roberts gave a strong defense of the power of the court.

“If the court strikes down an act of Congress and gets it wrong, it is not an act of ‘judicial activism,’ it is just being wrong,” Roberts explained.

He then quoted one of his heroes, , who said the court’s duty to review laws passed by Congress and the states is “the gravest and most delicate duty the court performs.”

He made maybe the most quotable remark of the day so far, explaining why judges must defer to legislators whenever they can.

“Millions and millions of people have voted for you and not one has voted for us,” Roberts said to Hatch and the panel of senators – an obvious point but it summed up the need for judicial restraint in about as clear a way as any citizen could want, and it should be music to the ears of these legislators in this room. (.)

Sept. 13, 2005 | 10:50 a.m. ET

Suddenly – just for moment – Sen. Leahy started yelling at Roberts, "What kind of back pay was this student going to be receiving?” The case they’d been sparring about concerned whether Congress created a right to sue when it enacted a law prohibiting sex discrimination.

A girl had been raped. Could she sue her attacker under federal law?

This theme will come up again and again in these hearings: the anti-Roberts forces will say if he was against a particular remedy, then he must therefore be “hostile to civil rights” or “insensitive to women’s rights.”

They will argue that without a remedy, a victim has no way to protect her rights.

But Roberts reminded Leahy the issue in the case was whether Congress had in fact specifically created such a right to sue when it enacted the sex discrimination statute.

“There was no issue in the case about condoning the behavior,” Roberts huffed, in a restrained way, “I found it abhorrent then, I find it abhorrent now.”

He told Leahy it was a lawyerly, finely-detailed question of how to interpret the statute: had Congress made that remedy available or not?

He contended that Congress had not spelled out whether there was a right to sue in the first place.

The fault, dear Sen. Leahy, lies not in former deputy solicitor general but in the Congress, so he implied.

But Roberts admitted that the Supreme Court had ruled against him in that case.

Sept. 13, 2005 | 10:30 a.m. ET

Leahy asked about the Supreme Court's World War II which held that American citizens of Japanese ancestry could be held in interment camps because they were potential enemy spies and saboteurs.

Leahy wanted to know if Roberts would ever uphold internment of a group of Americans solely on the basis of ethnicity or ancestry.

Roberts said a policy like the one upheld in Korematsu might conceivably come before the high court in the future but he “would be surprised if there were any argument that would support it.”

Sept. 13, 2005 | 10:19 a.m. ET

Does Congress have the power to stop a war, ranking Democrat Sen. Patrick Leahy, D-Vermont, asked Roberts.

Leahy or his staffers have unearthed a memo Roberts wrote 20 years ago when he worked in the Reagan administration regarding pension benefits for U.S. military veterans of the Lebanon operation in 1983-1984.

The memo reflected a view that it was up to the president, not Congress to decide when a military conflict had ended – at least for the purposes of deciding which veterans were eligible for what pension and other benefits.

Leahy implied that Roberts believed then and perhaps believes now that only a president can end a war – even if Congress wanted to stop it.

Roberts showed he wouldn’t be bashful in defending himself. “You’re vastly over-reading the memo,” he told Leahy bluntly.

Bringing common sense to the matter, Roberts tells Leahy, “Congress has the power of the purse,” it can cut off funding.

Leahy parried that thrust with the Iran-contra operation in which the Reagan administration found ways to keep funds flowing to the contra rebels in the now-forgotten war in Nicaragua.

Sept. 13, 2005 | 10:06 a.m. ET

Supreme Court Confirmation Hearings For John Roberts Continue
WASHINGTON - SEPTEMBER 13: U.S. Senate Judiciary Committee Chairman Arlen Specter (L) (R-PA), and ranking Democrat Sen. Patrick Leahy (R) (D-VT), hold a chart while questioning Supreme Court Chief Justice Nominee John Roberts during the second day of confirmation hearings September 13, 2005 in Washington, D.C. During questioning about the high court ruling on abortion, Roberts said the 1973 ruling was a court precedent. (Photo by Mark Wilson/Getty Images) *** Local Caption *** Arlen Specter;Patrick LeahyMark Wilson / Getty Images North America

A relentless Specter asked wouldn’t Roberts agree that Casey v Planned Parenthood and amounted to a kind of “super-duper precedent.”

Roberts did not quite agree.

Specter deployed a huge chart – but with print a bit too small for TV purposes – which lists cases in which the court upheld Roe.

Roberts did say, Roe v. Wade was “settled as a precedent of the court entitled to respect under the principles of stare decisis.”

Specter then asked about Roberts’s religious views and whether they’d impinge on his job as a judge.

“Nothing in my personal views… would prevent me from applying precedent faithfully under principles of ,” he said.

So does all this mean Roberts would – for certain – vote to uphold Roe?

Of course not. He might think it is time for the Supreme Court to re-think the Roe precedent – as the high court re-thought child labor in 1938.

Roberts then said the right to privacy is protected under the Constitution in various ways, including Fourth Amendment – which he quoted almost verbatim.

He seemed to recant his early 1980s memo in which he cast doubt on whether there was a right to privacy explicitly spelled out in the Constitution.

Specter then tried to get Roberts to imitate the late Chief Justice William Rehnquist – who once opposed the Miranda decision but later ruled that it was so well-established that it could not be overturned.

Roberts doggedly said he would not reveal exactly how he would apply the principle of stare decisis in any future case.

Sept. 13, 2005 | 9:46 a.m. ET

WASHINGTON -- Judiciary Committee chairman Arlen Specter kicks it off with a line of questions on – the principle that judges should adhere to precedent – unless it is clearly erroneous, or as Roberts said “has been eroded by subsequent developments.”

“I feel a need to stay away from discussion of specific cases,” Roberts told Specter after he asked the nominee about abortion and the 1992 case, which upheld , the 1972 ruling that made abortion legal in every state. (NBC Video: Sen. Specter asks Roberts about Roe v. Wade)

“I should stay away from discussion of any issues likely to come before the court.”

Roberts was holding firm: he wouldn’t say whether he agrees with Casey or Roe or any other decision.

“I’m going to have to draw the line,” he tells Specter.

But Roberts said sometimes the high court does overrule its own previous decisions: in the 1930s, it over-ruled its decision from the early 1900s which said states can’t regulate child labor. He also cited , the 1954 school desegregation decision.

Sept. 13, 2005 | 9:40 a.m. ET

WASHINGTON --As I entered the Hart Building room 211 at 9:15 am, I ran into Michael Carvin, the famous “pit bull” Washington lawyer, who was part of the legal team for Bush versus Gore. You could say it is thanks to Carvin that Bush got this chance to appoint John Roberts to the high court.

And Carvin has known Roberts for more than 20 years – since they were young lawyers in the Reagan administration.

“We’re all very happy for him and nobody deserves it more,” said Carvin.

As for Carvin’s fateful role in history, he jokes in his distinctive street-smart New York accent, “I always tell my family President Bush is totally beholden to me. I think that might be slightly exaggerating my role, but OK I’ll take that.”

Carvin sometimes argues cases before Supreme Court – so he may be facing his old pal in the years ahead.

“You know, you get to a certain age in your legal career – the truth is I’m arguing in front of a lot of judges these days who were my colleagues and contemporaries at one time. It will be a little different when the chief justice is my contemporary, but still I’m gradually acclimating myself to the notion that they’ve switched sides.”

Sept. 13, 2005 | 8:55 a.m. ET

WASHINGTON -- As I grab my coffee to charge up for today’s marathon hearing, some thoughts stick in my mind from yesterday's opener.

Sen. Dianne Feinstein, D-Calif., told John Roberts that if confirmed he would become “the chief justice of the United States at a time of unique division and polarization in this country.”

So, she argued, “it's really essential for us to try to determine whether you can be the kind of leader that can generate consensus, find compromise and, above all, really embody the mainstream of American legal thinking.”

Last week Judiciary Chairman Arlen Specter said that he’d like to see Roberts bring unity and cohesion, at least to the high court if not to the population at large

The chief justice as the Great Unifier, the National Consensus Builder?

I wondered: in the great tradition of which chief justices of the past?

Would that be....

William Rehnquist, whom Democrats derided when he went through his own confirmation ordeal in 1987. Rehnquist was no Great Unifier: witness the reaction from Democrats to his role in the Bush v. Gore decision that stopped the Florida recount in 2000 and indirectly gave us John Roberts.

Earl Warren: People may forget how bitterly white Southerners, including almost all the elected political leaders of the South, opposed the 1954 desegregation ruling. And law-and-order people were irate at the Miranda ruling in 1966 and the Warren Court's rulings on obscenity and pornography.

Charles Evans Hughes: Liberals were outraged when the Depression Era chief justice joined the conservative faction on the court to kill most of Franklin Roosevelt’s New Deal legislation – until Hughes switched in 1937.

Roger Taney: His Dred Scott decision helped start the Civil War.

So, putting it mildly, chief justices often are dividers, not uniters.

I also wondered whether Feinstein was right that we're living “at a time of unique division and polarization in this country.” It may be bad, but is it “unique”? If you happen to see a historian today, ask him whether the Civil War and the national split over civil rights in the 1950s were worse.

Sept. 12, 2005 | 6:32 p.m. ET

How did Day One go for John Roberts?

| 3:40 p.m. ET

WASHINGTON The gavel has fallen and day one has concluded. At 9:30 am on Tuesday, the first round of questioning begins.

Sept. 12, 2005 | 3:30 p.m. ET

WASHINGTON Judge Roberts has been sworn in as dozens of press cameras fluttered. He’s now giving his opening statement. and click here to

We’ve already been through 21 speeches – 18 from Judiciary Committee senators, and three from senators Lugar, Bayh and Warner, who introduced the nominee.

Nbc News

Bayh, the Indiana Democrat, vouching for a man he called “a fellow Hoosier,” is perhaps the most interesting person at today’s hearing apart from Roberts himself,

As a courtesy to Roberts who was raised in Indiana, Bayh graciously agreed to introduce him to the committee. (Sen. Richard Lugar and Sen. John Warner also did the honors.)

Bayh – who is said to have presidential ambitions for 2008 – made a slow and easy entrance on to the stage with a deliberate walk from behind the table where the 18 committee members were arrayed, all the way round to the witness table.

But in a piece of luck or by design, he wasn’t seated directly next to Roberts but two seats away, at the far end of the witness table – therefore no chance of embarrassing photos of the two men in the same frame that might used by any of Bayh’s potential 2008 rivals for the Democratic nomination.

Bayh’s statement was respectful and innocuous. It was a matter of sheer Hoosier ability: “I am proud that someone from our state would be so talented and so successful to be considered for a position on the highest court in our land.”

Sept. 12, 2005 | 3:15 p.m. ET

WASHINGTONElected just last November, Sen. Tom Coburn, R-Okla., choked up and for moment couldn't continue his opening statement.

"My heart aches for less divisiveness, less polarization, less finger pointing, less bitterness and less mindless partisanship, which, at times, sounds almost hateful to the ears of ordinary Americans," Coburn said, not really addressing the nominee, but simply having a very public moment of emotion.

Coburn is one big reason Roberts appears to be in good shape. In last year's elections, Republicans picked up five seats in the Senate. They now have 55, which is much more comfortable than 51 -- it would allow a few Republicans to vote "no" and still allow Bush to win this battle.

Now comes the presenters: Sen. Lugar () and Sen. Bayh -- from Judge Roberts home state of Indiana -- as well as Sen. Warner.

Sept. 12, 2005 | 2:50 p.m. ET

WASHINGTONDemocrat Charles Schumer of New York – who seven weeks ago submitted to Roberts for his answers on specific cases – raised the question of what is “the mainstream,” and who gets to define “the mainstream.”

Can there be any agreement among senators on such clashing views as to the definition of “the mainstream”?

Even in the absence of an agreed-upon definition, Schumer used the term repeatedly in his opener.

The New Yorker wondered, “Are you within the mainstream – albeit the conservative mainstream – or are you an ideologue…?” Schumer said that when Roberts went to his office to meet with him, the nominee assured him that he was no ideologue.

Yet, Schumer said, “You’ve been embraced by some of the most extreme ideologues in America.” The unsettling question, in Schumer’s view, “what do they know that we don’t?”

Sept. 12, 2005| 2:36 p.m. ET

WASHINGTONTwo senators captured the clash in what the opposing sides expect at these hearing: “tell us simply who you really are” versus “tell us how complicated the law is.”

Self-revelation was what Democrat Herb Kohl of Wisconsin asked of Roberts. “We presume you want the country to know more about what is in your mind and in your heart.”

No, what’s in his heart doesn’t matter, argued Sen. Jeff Sessions., R-Ala. “When we have an ‘activist’ judiciary, the personal views of the judge become everything.” And that’s not what Sessions wants.

When you answer, Sessions advised Roberts in a bit of public coaching, “explain the procedural posture of the cases and exactly how you ruled as a judge or the position you took as a lawyer. Americans know these matters are often complex.”

So, in effect, ‘don’t afraid to be complex.’

Another contrast in the GOP and Democratic approaches: the court as an Engine of Progress versus the court deciding only specific cases.

Kennedy spoke for the Engine of Progress approach: thanks partly to Congress and partly to Supreme Court rulings the nation has made progress in expanding rights for women, minorities, and the disabled. .

We have come too far “to turn back the clock on that progress,” Kennedy said.

But in the text of his remarks handed out to reporters, Sen. Sam Brownback, R-Kansas, said the justices can’t use an ever-evolving view of the Constitution to promote progress.

“It is what it is, and not what we wish it to be,” Brownback said. “Democracy loses its luster when justices on the high court – who are unelected and not directly accountable – invent constitutional rights….”

Sept. 12, 2005| 2:18 p.m. ET

WASHINGTON — The break is over and Sen. Lindsey Graham is delivering his opening statement.

Sept. 12, 2005| 2:07 p.m. ET

WASHINGTON — The committee is on a 15 minute break. Just prior to the recess, it was Sen. Russ Feingold's 10 minutes in the spotlight. You are obviously talented, the Wisconsin Democrat observed to the still-silent Roberts. “You also look healthy,” Feingold cracked.

In fact, Roberts, at age 50, is two years younger than Feingold and could be on the court (if confirmed) long after Feingold has left the Senate.

He could swear in President Feingold, if things work for both of them. (Feingold seems to be pondering a bid for the 2008 presidential nomination.)

“I’ll be looking for a different John Roberts than the John Roberts of 1985,” Feingold said – a reference to the memos Roberts wrote in the early 1980s while in the Reagan Justice Department.

It was clearly an invitation to Roberts to recant, to explain that he doesn’t believe today what he believed then – when for instance he referred to “the tragedy of abortion.”

Sept. 12, 2005| 1:37 p.m. ET

WASHINGTON — Given his turn, Sen. Mike DeWine, R-Ohio, neatly struck both a liberal and conservative approach, saying that he is disturbed both by recent Supreme Court rulings that cite international law as precedents (paging Justices Stephen Breyer and Anthony Kennedy) and by another ruling that struck down a key part of the 1994 Violence against Woman act (the culprits there – Rehnquist and four of his colleagues – went unnamed by DeWine).

Then, in what seemed a corny moment, DeWine mentioned that while preparing for the hearing “I came across a statement from a sitting federal judge that neatly summed up” the approach to judging cases that DeWine wants to see: “humility’"and “deference to legislative policy judgments.”

The author of that statement: John Roberts, of course, two years ago. .

Sept. 12, 2005| 1:12 p.m. ET

WASHINGTON — Crusty Iowa Republican Charles Grassley told Roberts he – for one – won’t give in to “the liberal interests groups who only want judges who will do their bidding.”

Shortly before the one-hour mark, Sen. Joseph Biden, D-Del., told Roberts, “This is no academic exercise.” The outcome “will affect our lives in very real and personal ways. And there is nothing they can do about it after this moment.”

It seems Democrats have decided to develop the theme that “this is America’s last chance” to perhaps avoid making an irreparable mistake by allowing Roberts to be confirmed. Democrats are countering the general feeling here in the capitol that Roberts is pretty sure to win confirmation.

Biden then engaged in a bit of prediction: the Supreme Court will rule in the years ahead on whether microscopic tags can be implanted a person to track his movements.

“You will rule on that – mark my words” Biden declared. (

Biden told Roberts “I’d have to vote no” – based on his past record of writings and rulings.

Biden’s own past record: he voted against GOP nominees Rehnquist, Bork and Thomas. He voted for Justice Antonin Scalia but later said he regarded that as a terrible mistake.

But he implied that Roberts still had chance to redeem himself and get Biden’s vote.

Sept. 12, 2005| 12:30 p.m. ET

WASHINGTON — Five minutes before Committee chairman Arlen Specter brought down the gavel at noon, the horde of still photographers went mildly berserk when Roberts hugged his son.

He’d already posed for photos with chairman Specter and ranking Democrat Patrick Leahy of Vermont. Other Democrats drifted over to shake hands and beam at Roberts’s son and his daughter – who kept a firm grip on her mother’s hand.

After Specter gaveled the hearing to order, the senators began their speeches.

The chairman noted that it was in this room that Reagan nominee Robert Bork was grilled in 1987 – no reminder needed that Specter himself was one of the Republican “no” votes that scuttled Bork and led eventually to the far less conservative Anthony Kennedy getting the seat on the court that Bork had hoped for. ()

Despite all the praise heaped on the late chief justice William Rehnquist, Specter tartly noted in his opener that in its rulings on the division of power between the federal government and the states, the Rehnquist court had “made it impossible to figure out what the law is.”

Leahy then called the hearing “the only chance that ‘We the People’have to hear from and reflect n the suitability of the nominee… The light of the nominations is intense because it is the only time that light is going to shine….” .

And shortly after, in his statement, Sen. Edward Kennedy, D-Mass., brings up “the special interests” and the price of gasoline. .

Kennedy went on to say that he “is deeply concerned” about Roberts’ record and has questions about the nominee’s “commitment to equal opportunity.”

What Kennedy is getting at: in 1990, as acting solicitor general. Roberts opposed use of racial preferences by the Federal Commucaiotns Commission in awarding broadcast licenses.

In 1982, Roberts also opposed changing the standard in voting rights cases from needing to prove a racially discriminatory intent to merely needing to show a discriminatory effect.

Leahy voted against Republican Supreme Court nominees Rehnquist in 1986, Bork in 1987, and Clarence Thomas in 1991; Kennedy did Leahy  one better, voting against all those nominees – plus David Souter in 1990. So it seems a risky bet to think that Kennedy and Leahy will vote “aye” on Roberts. But they do get to try to define the terms of the debate – in the glare of TV lights and in front of a room with a couple of hundred print reporters. That’s what this part of the ritual is about.

Jitters on the panel?
As he entered the hearing room Sen. Mike DeWine, R-Ohio said he had no opening-day jitters. “I’m not the one on the hot seat,” he said. .

The ornate hearing room had memories for DeWine: he was a House member who served on the Iran-contra investigating committee that held hearings in this room nearly 20 years ago.

And it was here that DeWine served as one of the House impeachment mangers when it impeached federal district judge Harry Claiborne in 1987.

“This is partly to give us a chance to say some things about what we don’t like about the way the court has been going and try to get some response,” DeWine told me.

“This is the opportunity for senators to have the last chance to tell this man who is going to go on the court what we think – for whatever merit that has,” DeWine said. “But the most important thing is for the members of the Senate to gauge who he is.”

Sept. 12, 2005| 11:30 a.m. ET

WASHINGTON — At a pro-Roberts rally in the rat-plagued park just across from the Russell Senate Office Building where the hearing starts shortly, I ask Leonard Leo, influential vice president of the Federalist Society, the vetting agency for conservative judges, how this battle will affect the one that is about to begin once President Bush nominates someone to replace retiring Justice Sandra Day O’Connor.

“I don’t think what happens during this process affects his resolve and determination with regard to any future nominations,” Leo said.

Bush has promised in two consecutive presidential campaigns to pick judges “with a commitment to the Constitution as it is written” and Leo and other conservatives fully expect him to come through on his promise.

“I don’t think that anything that happens in this confirmation hearing will affect the president. If anything, what would affect the future… is if Democrats and liberal interests become extreme and rancorous in their rhetoric. That will turn the American people against them, not against John Roberts or against the president”

Meanwhile Roberts’s foes were firing their own warning shots: the Leadership Conference on Civil Rights demanded that Roberts explain his views on remedies used to overcome racial discrimination against blacks and Latinos.

“Throughout his career, Roberts has advocated an excessively narrow reading of civil rights laws like the Voting Rights Act… John Roberts must use the hearings as an opportunity to account for his unacceptable stances on civil rights,” said Wade Henderson, head on the Leadership Conference, which opposes Roberts’s nomination.  “As it stands, he has a lot to explain.”

Sept. 12, 2005| 7 a.m. ET

The opening soliloquies
WASHINGTON — Act One, Scene One in the Drama of John Roberts opens Monday at high noon in the marble splendor of the Caucus Room in the Senate’s Russell Office Building.

No playwright would design the first act of his play this way: 18 supporting actors, all of them entitled to 10-minute opening soliloquies.

And the protagonist of the drama, from whom everyone has been waiting to hear since his nomination to the Supreme Court was announced eight weeks ago? Forced to sit and stay quiet at least a few more hours as senators deliver their opening speeches.

This grandiose room was made for drama: here was where Clarence Thomas in 1991 denounced the hearings on his nomination as “a high-tech lynching for uppity blacks.”

It was in this room that the hearings on the Watergate break-in were held in 1973.

Check back here through the day, as follows the Senate Judiciary Committee confirmation hearings of John Roberts ... from inside the hearing room.