Three great legal minds -- Professor Jonathan Turley from George Washington Law School and an NBC legal analyst and famous Alan Dershowitz from Harvard Law School and Wendy Long, a former law clerk for Justice Clarence Thomas -- joined Dan Abrams on Tuesday evening to discuss the first day of questioning of Judge John Roberts.
To get their impressions of Roberts' testimony and read an excerpt of their conversation, continue to the text below. To watch the video, click on the "Launch" button to the right.
ABRAMS: ... I don't understand how Roberts or any other nominee can say repeatedly 'I can't answer that question,' because that issue may come before me as a justice, except of course if I've written about it or ruled on it, then I must answer the questions. ... Jonathan, I'm not sure that I learned anything new about Judge Roberts' legal philosophy.
TURLEY: Yes, he really did bring a new meaning to being a Philadelphia lawyer. You know they used to say a Philadelphia lawyer could answer a question 100 ways and not answer it once and that's certainly the case today. What was confusing really about all this is that his position was not consistent. He said that he would not speak about his views of particular cases but he went ahead and did so in some regards, like the Griswold case.
He said I'll just talk about that because I think that's settled. And what you get out of this quite frankly was a very strategic decision. That he's got the votes on the committee to get him through. And I think that Karl Rove basically walked him outside the Capitol and showed him the chalked outline of Bob Bork's body and said you know if you want to have a cathartic moment in there, go ahead. It's your seat to lose ...
ABRAMS: But he's no Bork, right? I mean you know, look, Robert Bork ... Robert Bork had many more opinions on the record in writing than does this judge.
TURLEY: You know, Dan, I actually am longing for Bork. I mean Bork was a very honest and direct fellow and he answered questions. But I got to tell you, if you shave off the beard, have a few Botox injections, you could end up with John Roberts because many of his views that he's stated in the past are not that dissimilar from Bork... who believed in a very narrow judiciary.
ABRAMS: Well I'll let Wendy respond to that in a minute, but Alan, do you agree -- on some issues, yes, but on the whole, it doesn't seem to me entirely fair to compare the two, in particular because Robert Bork had so much on the record, such firm opinions on the record on so many controversial issues.
DERSHOWITZ: Well, Robert Bork in many ways is like me. I'm not confirmable for anything because ... I say whatever I think. I write everything all the time. I upset people on the right, people on the left. I couldn't get a single vote from a Democrat or a Republican.
Robert Bork decided to lead his life in that manner. I admire that. And he spoke his mind at all times and he paid a very, very heavy price for that. Roberts is the anti-Bork. He has never said anything controversial in public and what few things he said controversial in private he seems to be taking back a little bit.
But look, the whole show is a charade. It's all about Roe v. Wade, which will never be overruled because it's been the greatest support the Supreme Court ever gave to the Republican Party and the Democrats would love to see Roe v. Wade overruled so that every election becomes a plebiscite over a woman's right to choose, which would win because those of us support a woman's right to choose have the vote.
So the whole thing has been a sideshow. We didn't hear one word about the rights of atheists, of dissidence, of criminal defendants, of people on death row, of the homeless, of the truly disenfranchised. We only heard questions relating to special interest groups on the right and on the left. This has become a clash between Republicans, Democrats, special interest groups, and it has nothing to do with the rights of the people, the disenfranchised who really need the Supreme Court.
ABRAMS: Following up on that, there is a lot of sound, as Alan points out, from the-Judge Roberts and the Senate on this issue of Roe v. Wade. I was surprised at how Arlen Specter, the pro-choice Republican, went after Roberts again and again and again on Roe v. Wade.
--Begin video clip SEN. ARLEN SPECTER (R), PENNSLVANIA: Do you see any erosion of precedent as to Roe? ROBERTS: Well again, I think I should stay away from discussions of particular issues that are likely to come before the court again and in the area of abortion there are cases on the court's docket, of course. It is an issue that does come before the court. --End video clip
ABRAMS: Wendy Long, what did you make of Judge Robert's presentation?
WENDY LONG, JUDICIAL CONFIRMATION NETWORK: Well I thought he drew a very fine line, but he did it exactly right, Dan. He discussed general principles of constitutional law. He talked about various aspects of the right to privacy that are found in the Constitution. But I think he took a very principle stance and I disagree with Jonathan in that respect.
The cases that he refused to discuss are cases and issues that might come before the court in the future. The case involving the marital right to privacy between a man and woman and contraception is not coming before the case anytime in the near future or ever. That's not something that's controversial in our society right now. Abortion is.
ABRAMS: But isn't there something odd about the fact -- and this doesn't just apply to Roberts. It applies to others -- that if they've written about the topic, then they have to answer questions about it. But if they haven't written about it, they can say that may come in front of us and as a result, I can't answer questions.
LONG: But as with Ruth Bader Ginsburg, the things they're discussing are their specific writings, the positions and arguments that they personally have made in the past. ... That's what's under discussion. When Justice Ginsburg was asked those aspects of the abortion issue, for example, she did discuss them, but when she was asked questions about, for example, the federal funding cases on abortion ... she said absolutely not.
ABRAMS: But does that make sense? I mean does it make sense that because Alan makes the point that Robert Bork has been honest, straightforward about his positions and as a result, he had no chance, but because Roberts has never really spoken public publicly about these issues well, that's going to make him a candidate with little problems.
LONG: If I were making the rules, I might back it off and say don't even discuss your prior writings. But traditionally the line has been drawn there. I think it's a sensible line. It's a principle line. You can't walk away from things you've said in the past before you were a nominee for a judicial office, so I think it does make some sense.
ABRAMS: The issue of Justice Ginsburg came up and exactly what she said and that was the comparison that kept coming up again and again, how many questions did Justice Ginsburg answer when she had her confirmation process. Joseph Biden, Democrat from Delaware, challenged Roberts on this issue.
--Begin video clip: SEN. JOSEPH BIDEN (D), DELAWARE: Justice Ginsburg said precisely what position she agreed on. Did she in fact, somehow compromise herself when she answered that question? ROBERTS: She said no hints, no forecasts...BIDEN: No, no...ROBERTS: ... no previews. BIDEN: Judge, she specifically in response to a question, whether or not she agreed with the majority or minority opinion in Moore v. the City of Cleveland, said explicitly, I agree with the majority and here's what the majority said and I agree with it. My question to you is, do you agree with it or not?ROBERTS: Well I do know, Senator, that in numerous other causes because I read the transcript...BIDEN: So did I...ROBERTS: ... she took the position that she should not comment. Justice O'Connor took the same position. She was asked about a particular case...BIDEN: Oh, Judge, Judge...ROBERTS: She said it's not correct for me to comment. Now there's a reason for that...SPECTER: Wait a minute, Senator Biden. He's not finished his answer.BIDEN: He's filibustering, Senator.SPECTER: Go ahead. ... No he's not.--End video clip
ABRAMS: Whether Ginsburg said it or not, Jonathan Turley, Joe Biden knew he wasn't going to answer these questions, right?
TURLEY: Well I think that's right and I thought it was interesting when Feinstein said, 'Yes, I'll have to vote against you if I know for sure you'll overturn Roe v. Wade.' Well I think any rational actor would then refuse to say I'm going to overturn Roe v. Wade. But the issue of principle that Wendy pointed out I think is an important one and people of good faith can disagree.
I personally don't see the principle basis of his refusing to give more specifics on his view of privacy. Not about an individual case. Traditionally, the rule is you can't ask him how are you going to rule on ... Jacobs v. Alabama, but what he was being given were hypotheticals and more importantly, more broad questions of is there a right of privacy.
ABRAMS: Very quickly, Alan Dershowitz, I was surprised that he did say that he's not so thrilled about the court using foreign law, which is a controversial issue as precedent. That was the most specific I heard him get.
DERSHOWITZ: Well, yes, I mean that's easy because all of his constituents hate that kind of thing. I wish somebody had asked him the following question. You were there when Bush v. Gore was decided in Washington. Everybody talked about it. What did you say to people about Bush v. Gore? Did you support it? And remember, it's a case that has no precedential value. The court has said it will never be cited again ... so it's a perfect question to ask him about. But so far we haven't.
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