IE 11 is not supported. For an optimal experience visit our site on another browser.

Confirming Roberts

How will Judge John Roberts  tackle tough questions during the Supreme Court confirmation  hearings?  MSNBC-TV's Dan Abrams talks to the judge's advisor for clues.

The first shots have been fired in the battle to remake the U.S. Supreme Court. Confirmation hearings continued today for Federal Appeals Court Judge John Roberts, President Bush‘s choice to replace William Rehnquist as chief justice. 

Members of the Senate Judiciary Committee grilled Roberts on issues like abortion and civil rights.

So who does Judge Roberts turn to for advice on how to tackle tough questions in these hearings?  That man is former Tennessee senator, Fred Thompson. 

President Bush has asked the senator to serve as an “informal advisor" to Judge Roberts, help him communicate with the senators who will decide on his nomination.  These days Senator Thompson is also known as D.A. Arthur Branch on NBC‘s “Law & Order.”  He also served as minority counsel on the Senate Watergate Committee as well.   

Thompson talked to MSNBC-TV's Dan Abrams about Roberts' confirmation process.

DAN ABRAMS, ABRAMS REPORT HOST: I noticed that Judge Roberts did not use any notes today, even in his statement to the committee.  Was that your advice? 

FRED THOMPSON, FORMER REPUBLICAN SENATOR: No, it wasn‘t my advice.  It was just the way he operates.  I think he operates that way before the Supreme Court when he‘s arguing cases and it‘s clear that what he said was heartfelt.  I thought it was one of the most impressive sincere statements that I‘ve ever heard under these circumstances.  So I was quite impressed.  But then again, you know I‘ve been with him now for a few weeks and I‘m impressed anew every day, almost. 

ABRAMS: We know that he is not going to answer questions about how he would rule on future cases.  I mean that‘s kind of a non-issue.  But how about his opinion on past cases, on how they were decided?  He has written on issues.  He‘s offered legal advice on certain cases.  Is he going to talk about any of that? 

THOMPSON: It probably will depend on whether or not it is of the kind of case that still regularly comes up before the Supreme Court.  There are certain hot button issues that produce litigation almost every term.  With regard to those kinds of cases, asking him about a prior case is almost like asking him about a current...

ABRAMS: You know, from the past confirmation hearings, it seems to me that if a judge or a nominee has written about an issue, they‘re kind of stuck with it and in a way, they‘re forced to answer questions about that even if it does relate to a case that may come before the court in the future. 

THOMPSON: That‘s a god point.  That‘s been some history of that with regard to some judges when they have either written in an opinion or written in, say, a law review article, expressing an opinion.  I think that all that Judge Roberts has written about has to do with memos that he authored, giving legal advice or other advice to President Reagan or the attorney general back several years ago.  Those did not purport to be his own opinion. 

ABRAMS: And that‘s going to mean he‘s obviously written on controversial issues such as Roe v. Wade, et cetera, and I assume...

THOMPSON: Well he‘s not written on them as such in terms of John Roberts.

ABRAMS: Right.

THOMPSON: ... writing an article. 

ABRAMS: I was going to say that his position is going to be as an advocate.  This was the position that we were taking in that particular case, but I‘m not going to tell you one way or another whether that‘s my personal opinion. 

THOMPSON: Well clearly when he was working as the role of a lawyer and part of the Reagan administration, for example, he was writing memos that would carry out those policies.  That doesn‘t mean that he disagreed with them for sure, but you really do have to understand his role as a lawyer versus his role as a judge.  He‘s been on the bench a couple of years and has been a part of about 50 opinions. 

Now, I think that is fair game. 

ABRAMS: Do you worry though that the American public hates the distinction between lawyers serving as advocates versus their own opinion?  Because it does sort of make it sound like a lawyer saying, you know, 'I was just saying that stuff.  I was effectively playing a role.' 

THOMPSON: You need to understand the lawyer‘s role in American society and I think the American people are up for that.  I think that they understood when John Adams represented the British Redcoats after the Boston massacre.  When he stepped up and says I‘ll give those men a defense.  They deserve one. 

It‘s a part of what makes our country great and he did that and later became president of the United States.  So I don‘t think we ought to underestimate the ability of the American people to figure out that we need strong lawyers who can take an individual side against the most powerful force in the world and that‘s the government of the United States.  

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